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Florida Fourth DCA affirms trial court's exclusion of expert's PTSD diagnosis which was not disclosed to defense until eve of trial

On July 8, 2020, in Krysiak v. Dawson, et al., No. 4D19-1532, the Florida Fourth DCA affirmed a trial court ruling excluding expert testimony concerning a motor vehicle negligence plaintiff’s PTSD.  According to the defense, the plaintiff’s disclosure of the PTSD diagnosis did not occur until February 5,  2019, the day before trial, despite the assessment having been made by the expert in October 2018 (although plaintiff’s counsel did not meet with the expert until February 1, 2019). The Fourth DCA cited Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), in which the Florida Supreme Court held that while a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order, the court’s discretion is “guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party.” 401 So. 2d at 1313–14. “Prejudice” in this sense means “surprise in fact,” and is not dependent on the adverse nature of the testimony. Id. at 1314.  The Fourth DCA noted that Binger rule has been extended from undisclosed witnesses to disclosed witnesses who offer previously undisclosed testimony, citing Gurin Gold, LLC v. Dixon, 277 So. 3d 600, 603 (Fla. 4th DCA 2019). The Fourth DCA additionally observed that Florida courts have applied a Binger-type analysis where a treating doctor formulates a new opinion based upon an examination of the plaintiff that occurred after the doctor’s deposition, citing See Auto Owners Ins. Co. v. Clark, 676 So. 2d 3, 4 (Fla. 4th DCA 1996) (“[I]t was error to permit plaintiff’s neurosurgeon to give testimony regarding a treatment session which occurred after the discovery deadline in the suit, and to formulate a permanent impairment rating on the witness stand when he had not rated plaintiff’s impairment when deposed.”); Colonnell v. Mitchels, 317 So. 2d 799, 800–01 (Fla. 2d DCA 1975) (holding that the trial court abused its discretion by permitting the treating physician of one of the plaintiffs to testify that an examination, which took place after the pretrial conference, indicated that the condition of the plaintiff’s knee would continue to get worse, which differed from the physician’s deposition testimony that he expected no material change in the knee’s condition).

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