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Florida Third DCA reverses motor vehicle negligence verdict and remands for new trial, holding that trial court erred in allowing defense to introduce evidence not disclosed until three business days before trial

On June 2, 2021, in Montero v. Corzo, No. 3D20-406, the Florida Third DCA reversed a trial verdict in a motor vehicle negligence case and remanded for a new trial. The plaintiff had appealed the verdict in his favor on the basis that the $30,000 award was inadequate. The Third DCA concluded that the trial court abused its discretion in allowing the defense to introduce surveillance video and the testimony of the investigator who recorded the video, both of which were untimely disclosed to the plaintiff less than three business days before trial. The trial court’s uniform order setting the case for trial directed that parties were to file their witness lists “at least 90 days prior to the first day of the trial period” and their exhibit lists “at least 30 days prior to the first day of the trial period,” with the actual exhibits being made available for examination and inspection “no later than 5 days prior to the first day of the trial period.” The Third DCA noted that that the trial court had allowed the evidence and testimony notwithstanding this breach of the uniform order and without engaging in the analysis required under Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981). In Binger, the Florida Supreme Court reaffirmed that in exercising its discretion in determining whether to permit an untimely disclosed witness to testify, the trial court should be guided largely by whether the testimony will prejudice the objecting party, setting forth several factors a trial court should consider: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the; proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.