Filing # 16790788 Electronically Filed 08/06/2014 02:48:47 .
Filing # 16790788 Electronically Filed 08/06/2014 02:48:47 PMRECEIVED, 8/6/2014 14:53:41, John A. Tomasino, Clerk, Supreme CourtIN THE SUPREME COURT OF FLORIDAJAMES J. KELLI IER and PATRICIAR. BERGERSON,CASE NO.: SC14-1511Petitioners,vs.5th DCA Consolidated Nos:SD12-2027 and SD12-2116CYNTHIA A. DAVID andFRANK DAVID,Trial Case No. 2008-CA-2738Respondents.PETITIONERS' AMENDED BRIEF ON JURISDICTIONIKUBICKI DRAPER201 N. Franklin StreetSuite 2550Tampa, FL 33602(813)204-9776Fax (813)204-9660BG-KD(a kubickidraper.conlCounsel for KellnerBAI IKER LOPEZ GASSLER P.A.501 1st Avenue NorthSuite 900St. Petersburg, FL 33701(727)825-3600(727)821-1968mtinlcer(c t ,banlcerlo ez.comCounsel for BergersonBy: /s/ Betsy Ellwanger Gallag e Betsy Ellwanger GallagherFlorida Bar No. 229644By:/s/ Ma k D. TinkerMark D. Tinker, B.C.S.Florida Bar No. 0585165Charles W. HallFlorida Bar No. 0326410 Amended only to include the inadvertently-omitted Appendix.
TABLE OF CONTENTSPAGETable of Contents . iTable of Authorities. iiStatement of the Case and of the Facts . 1-4Summary of Argument. 5Argument:. 6-10Certificate of Service .:. 11Certificate of Coinpliance . 12
TABLE OF AUTHORITIESPAGEBinder v. Kind,Pest Control,401 So. 2d 1310, 1314 (Fla. 1981).4, 5, 7Chesser v. State,30 So. 3d 625, 627-28 (Fla. 1st DCA 2010). 9En 1g e v. Ligg ett Group, Inc.,945 So. 2d 1246, 1254 (Fla. 2006). 6LKellner v. David,So. 3d ,2014 WL 2249477 (Fla. 5th DCA 2014).1, 9Wallace v. Dean,3 So. 3d 1035, 1040 n.6 (Fla. 2009). 6Fla. R. App. P. 9.210 .12 http://www.mapquest.com/#f17c4906c56bed1bb0477fae . 8ii
STATEMENT OF THE CASE AND OF THE FACTSOn April 30, 2008, David was riding her motorcycle on a highway with aposted speed limit of 45 miles per hour. Kellner v. David, So. 3d ,2014 WL2249477 (Fla. 5th DCA 2014). Kellner, driving an SUV owned by Bergerson,exited a Post Office parking lot by turning left onto the highway, resulting in acollision between David's motorcycle and Kellner's SUV. Id. David sued Kellnerand Bergerson for damages, and they defended the case, in part, by asserting thatshe was comparatively negligent because she was speeding. Id.The case proceeded to trial, and multiple eyewitnesses provided conflictingtestimony about David's speed —some said she was riding at the posted 45 mileper-hour limit, while others estimated her speed as high as 65 miles per hour. Id.In light of that conflict, the parties presented video footage from a nearbybusiness's surveillance Gamera that had actually filmed the accident. Id. The videocontained a running clock, so David had an expert witness examine it, pick twofixed points, and estimate David's speed prior to impact based upon the time ittook her to travel between them. Id.But the expert did not physically measure that distance. Id. Instead, he usedGoogle Earth satellite imagery of the area and arrived at an estimate of 75 feet. Id.He then opined that, in order to cover that distance in the time depicted, David hadbeen traveling at the posted 45 mile-per-hour limit. Id. On cross examination,
Kellner's counsel challenged the accuracy of his measurements, and got the expertto admit that if the distance he used was wrong, his speed opinion was also wrong.Id.During his case, Kellner then tools the stand to testify, and the followingexchange tools place:Q: If you want to, could you go out today and identifythat point [where the motorcycle appears in the 32ndframe of the surveillance video footage] based on the carthat is parked there now?A: Yes, sir,Q: And this past Sunday at my request did you, infact, do that?A; Yes,I did.Q: And did you also identify the approximate point ofthe impact between your vehicle and the motorcycle?THE COURT: You all need to come up here please.(At sidebar.)THE COURT: Where are you going with this? It's nothappening. Number one, it was past discovery cut off.It's been done after discovery cut off. It's discovery. He'snot an expert. You're not going there.(Sidebar ends).Q: Olcay. I don't want to talk about anything thathappened on Sunday.A: Olcay.Q: So we're not going to do that.A: All right.anapproximation, based on yourQ: Can you give mebest estimate having gone by that location every dayvirtually, of the distance from where your vehicle was at2
the time of the accident to the point depicted by themotorcycle right now?[David's counsel]: We would object to this questionand answer, Your Honor.THE COURT: Sustained.[Kellner's counsel]: I don't know how to cure it. Socan we come up?(At sidebar.)THE COURT: Was this covered in the deposition, inany deposition that was taken of this witness?[David's counsel]: No.THE COURT: Olcay. You're not going to turn himinto any kind of accident reconstructionist.[Kellner's counsel]: I'm not going to try to. Distancesdon't require an expet-t to measure.THE COURT; He went out on Sunday, so he's goingto approximate what he knew on Sunday.[Kellner's counsel]: No,he's—THE COURT: No. You're not going to ask thequestion.Id.During a recess, Kellner proffered testimony revealing that the actualdistance he had measured was 105 feet. Id. In order to cover that distance in thedepicted time, David would have been riding her motorcycle at the excessive speedof 65 miles per hour that some witnesses reported, not the posted limit of 45. Id. Inaddition, and as someone who visited that Post Office every day to retrieve hissnail, and who was a licensed builder who actually built the building that housed3
the security camera, he offered his lay opinion that, from just looking at it, thedistance was obviously "no less than a hundred feet." Id.Following an adverse verdict, Kellner and Bergerson appealed, in part, basedupon the exclusion of that evidence. Id. In a split 2-1 decision, the majority of theFifth District's panel decided to apply ,the Bin er2 test for undisclosed testimony.Id. It decided that, although David should have anticipated that Kellner wouldtestify about the accident scene, she would have been "hampered" in her ability tocure any prejudice because her expert had already been excused from the trial. Id.The majority further opined that allowing Kellner's testimony would havedist-upted the trial, because the parties would have needed a recess in order toconduct a scene inspection and assess its veracity. Id.In a dissenting opinion, Judge Orfinger stated that the majority had failed toproperly apply Bin er. Id. He first noted that this was not even a case of unfairsurprise, because it should have come as no surprise that Kellner, as a partyinvolved in the accident, would testify about the scene. Id. Nevertheless, duringhis deposition, David's counsel never even bothered to aslc him about it. Id. Moreimportant, since the primary concern under Binder is unfair prejudice, JudgeOrfinger noted that the trial judge never even made any inquiry into how Davidwas unfairly prejudiced, or if she was, her ability to cure it. Id.Z Binger v. Kind; Pest Control, 401 So. 2d 1310(Fla. 1981).4
SUMMARY OF ARGUMENTIn Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981), the Courtestablished the test for exclusion of "surprise" evidence. It held that the trialjudge's decision should be guided by the extent of prejudice the objecting partywould experience, and explained: "Prejudice in this sense refers to the surprise infact of the objecting party, and it zs not dependent on the adverse nature of thetestimony." Id.(emphasis added).In this case, the twojudge majority of the Fifth District's panel misappliedthat law in two ways. First, it decided that Binger applied to this case, despite thefact that there could not even be any surprise. The evidence related to the distancebetween two objects, and David could not possibly claim to be surprised byKellner's evidence of that distance since she hired her own expert to calculate theexact same thing. She may have been embarrassed that her expert got it wrong, butshe cannot claim to be surprised by the issue.Second, the majority found prejudice in David's inid-trial inability to correcther expert's mistake. But as quoted above, that is not the Binger test. Themajority focused on the adverse nature ofthe evidence for David's case, not on anyunfair surprise —which as noted above, could not even exist. The Court shouldaccordingly accept jurisdiction and correct that misapplication of its precedent,because otherwise there will be confusion in the conflict going forward.5
ARGUMENTThis Court has conflict jurisdiction to review decisions which misapply itsprecedent. E.g. Wallace v. Dean, 3 So. 3d 1035, 1040 n.6 (Fla. 2009)(citing Ev. Liggett Group Inc , 945 So. 2d 1246, 1254 (Fla. 2006)). That is because suchmisapplications create confusion, as other courts begin to diverge from this Court'sprecedent when litigants cite and rely upon the district court misapplications. Asexpressly noted by Judge Orfinger, this is just such a case.The majority applied the Binger test of "unfair surprise" to the distancebetween two fixed objects shown on the video. But David could not possibly beunfairly surprised by anything related to that issue, because she hired an expet t tocalculate the exact same thing. This was not a case of unfair surprise, it was atbest David simply being embarrassed that her retained expert got the measurementwrong. He did so because he decided to forego driving the 80 miles between hisGainesville office and the Holder accident scene, and instead attempted tocalculate the distance using Google satellite images.Lacic of preparation does not equal unfair surprise. Certainly David mayhave been surprised that her expert was wrong, but not unfairly so. The topic wassomething that she undisputedly had already hired her own expert to investigate.
The Bin 7er test is meant to prevent trials by ambush. It is meant, forexample, to preclude a litigant from showing up at the courthouse with anundisclosed expert prepared to testify about undisclosed opinions.This is not such a case.There can be no "ambush" when Davidindependently investigated the issue and hired an expert to testify about it. Thefact that her expert was wrong does not create a Binder question of unfair surprise.Moreover, to the extent that the majority did apply Bid, it severelymisapplied it. First, the majority actually did recognize that David should not havebeen unfairly surprised by Kellner's testimony, since he was after all a party andwould be expected to testify about the accident scene. But it then concluded that,regardless, David would have been unable to cure the resulting prejudice.That conclusion overlooks the point of law that, under Binger, prejudicedoes not refer to the damaging nature of the evidence. Binger v. King Pest Control,401 So. 2d 1310, 1314 (Fla. 1981)("Prejudice in this sense refers to the su1-prise infact of the objecting party, and it is not dependent on the adverse nature of thetestimony.")(emphasis added).It is only a question of unfair surprise. Id.Accordingly, when the majority concluded that David should have been aware ofKellner's testimony, it should not have proceeded any further on this point. Herability to cure relates only to the adverse nature of the evidence and damagecontrol, not surprise.7
Likewise, to the extent that the majority did assess that issue —which as thedissent notes the trial judge never did — it failed to consider the facts supportingthe dissent's conclusion that "it would have been easy to have Stokes, or someother representative, go to the scene of the accident and measure the distance onDavid's behalf" Kellner, 2014 WL 2249477 at *8(Orfinger, J., dissenting).David had the unfettered ability to cure — or more pointedly, the ability toindependently confirm or otherwise evaluate Kellner's measurement. It was amere11.2milesfromthecourthousestepstotheaccident scene. http://www.mapquest.com/#f17c4906c56bed1bb0477fae . Kellner proffered his"surprise" testimony on the afternoon of September 14, 2011. (T.822-23). Thedefense did not even rest until the following day, on the morning of September 15,2011. (T.886). Critically, that following day David then reopened Ize case inortCe to present ebuttnl evidence. (T.886). Accordingly, the majority failed toconsider the indisputable fact that David was able to assess and, if necessary,confront Kellner's measurement.The scene was only a 10 minute drive away, so David's counsel could havetaken his own measurement over a lunch break or on his way home that evening.In fact, the route from the courthouse to David's counsel's law office passesdirectly by it. The shortest route is to take U.S. 41 through Holder, Florida, whichis precisely where the accident happened — in front of the Holder Post Office on
U.S. 41. Counsel likely drove by the scene that evening anyway, as well as thenext morning.3Likewise, since David reopened her case to present rebuttalanyway, if Kellner's measurement was also something that required rebutting, shecould have simply done so.The fact that she had released Mr. Stokes from trial is inconsequential, sincethis is not a matter that would require elaboration by him as an expert. It was not amatter of opinion, it was a question of fact. If David discovered that Kellner'smeasurement was incorrect because —for example — he had measured from thewrong street sign, she could have easily said so. Otherwise, she could have simplyconfirmed that he was correct. Either way, the jury would have at least heard thetruth. This was not a "trial by ambush." It was a misapplication of Bin er.While that is true for Kellner's actual measurement, it is even more so withrespect to his lay opinion about the distance. As noted in Judge Orfinger's dissent,"[1]ay witnesses may generally testify as to both distance and speed." Kellner,2014 WL 2249477 at *7(citing Chesser v. State, 30 So. 3d 625, 627-28 (Fla. 1stDCA 2010)). Indeed, throughout this trial several witnesses did precisely that.With respect to the distance issue, Kellner was likely one of the mostuniquely qualified people to comment on it. He traveled to that location every dayIndeed, there is no telling how many times over the course ofthis litigation — orfor that matter just the trial itself —that counsel drove past the scene. Regardless,and even if he asserts that he did not, the fact remains that it was readily accessiblesince it was only 11 miles away.3
to retrieve mail from his P.O. Box, and he was the contractor who built thebuilding that housed the security camera. He obviously had ample opportunity toview the scene.Regardless, David never asked Kellner anything about it during hisdeposition. By then applying — or rather, misapplying —Binger to exclude thatopinion, what the majority has done is create an affirmative obligation for litigantsto disclose everything that they plan to say at trial. Even if their opponent neverasks them about the topic, litigants will have to gratuitously explain everythingthey wish to say. Otherwise, they risk having a judge use the David majority'sintet-pretation of Binger to exclude evidence as a purported unfair surprise.Once again, a lack of preparation should never be considered "unfair"surprise. David never asked Kellner about the distance, hired her own expert tocalculate it, and unfortunately for her chose one who got it wrong because heelected to take shortcuts. Trials are supposed to be a search for the truth, and thejury did not hear the truth in this case due to a misapplication of Binger.The majority failed to heed this Court's directive that prejudice only refersto "surprise in fact of the objecting party, and it is not dependent on the adversenature of the testimony." Binger, 401 So. 2d at 1314. In doing so, it has createdconfusing due to apparently-conflicting decisions. The Court should accordinglytake jurisdiction to correct that confusion and the misapplication of its precedent.10
CERTIFICATE OF SERVICEI HEREBY CERTIFY that the foregoing initial brief has been electronicallyfiled through the e-Filing Portal, and that one copy each has been furnished by email to: JACK J. FINE, ESQUIRE and A. DANIEL VAZQUEZ, ESQUIRE(CounselfogDavid,atjfine a ffplaw.com,dvazquez ff law.com;arivera cz,ffplaw.com; BETSY GALLAGHER,ESQUIRE,(Counselfor Kellner),at BG-KD lcubicicidraper.corn; and FRANK MILLER,ESQUIRE (Co-CounselfogBe ger son),atfmiller(cr ,ca mil.coin,lsauto cr,ca mil.comandbal lcer(c cagmil.com; on this August 6, 2Q 14.BAI IKER LOPEZ GASSLER P.A.501 1st Avenue NorthSuite 900St. Petersburg, FL 33701Phone:(727)825-3600Fax:(727) 821-1968e-mail: mtinlcer@banlcerlopez.comservice e-mail: service-mtinlcer(c banlcerlopez.comAttorneys for BergersonBy: /s/ Mask D. Tinker'Marls D. Tinker, Esq., B.C.S.Florida Bar No: 0585165Charles W. Hall, Esq.Florida Bar No: 0326410
CERTIFICATE OF TYPEFACE COMPLIANCEPursuant to Florida Rule of Appellate Procedure 9.210, the undersignedcounsel certifies that this Brief is printed in Times New Roman 14-point font.BANKER LOPEZ GASSLER P.A.501 1st Avenue NorthSuite 900St. Petersburg, FL 33701Phone:(727)825-3600Fax:(727)821-1968e-mail: mtinlcer@banlcerlopez.comservice e-mail: service-mtinker(a ,banlcerlo ez.comAttorneys for Bergersonlsl Marla D. Tinker Marls D. Tinker, Esq., B.C.S.Florida Bar No: 0585165Charles W. Hall, Esq.Florida Bar No: 032641012
APPENDIXConformed copy of Kellner v. David,SD12-2027 & SD12-2116 (Consolidated). 1-1613
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICTJUN Z0NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILEDJAMES J. KELLNER andPATRICIA R. BERGERSON,Appellants,Case Nos. 5D12-2027 &5D12-2116vCYNTHIA A. DAVID andFRANK DAVID,Q ppellees.Opinion filed May 30, 2014.Appeal from the Circuit Courtfor Citrus County,Patricia A. Thomas, Judge.Mark D. Tinker and Charles W. Hallof Banker Lopez Gassier, P.A., St.Petersburgh, for Appellant, Patricia R.Bergerson.Michael C. Clarke, Betsy E. Gallagherand Courtney A. Umberger of KubickiDraper, P.A., Tampa,for Appellant,James J. Kellner.A.Daniel Vazquez and Jack J. Fineof Fine, Farkash & Parlapiano, P.A.,Gainesville, for Appellees.
WALLIS, J.James J. Kellner and Patricia R. Bergerson ("Appellants") appeal the lowercourt's final judgment after a jury returned a verdict in favor of Cynthia A. David andFrank David ("Appellees"). Appellants raise three issues: (1) the exclusion of Kellner'stestimony about his measurements at the accident scene; (2) the denial of Appellants'motions contesting the 420,000 award to Cynthia David ("David") for loss of futureearning capacity; and (3) the admission of testimony about Kellner's prescription druguse. We affirm the trial court's decision to exclude Kellner's testimony regarding theaccident scene measurements. We reverse on issue two because the evidence onlysupports an award of 390,000 for David's loss of future earning capacity. Finally,because we find Appellants' argument concerning the prescription drug testimony to bewithout merit, we affirm the trial court without elaboration on that issue.On April 30, 2008, David was riding a motorcycle on a highway with a postedspeed limit of forty-five miles per hour. Kellner, driving an SUV owned by Bergerson,exited a parking lot by turning left onto the highway, resulting in a collision betweenDavid's motorcycle and Kellner's SUV. Kellner testified that he did not see David'smotorcycle until immediately before the collision.Appellees filed a negligence action against Appellants. Frank David also soughtdamages for loss of consortium. Appellants filed separate answers and affirmativedefenses alleging David was comparatively negligent by exceeding the posted speedlimit. In depositions of both lay and expert witnesses, the parties spent significant timediscussing David's position and speed leading up to the point of impact.2
The trial court set March 4, 2011, as the deadline to disclose all witnesses to beused at trial. Appellees' February 25, 2011 witness list disclosed Alan D. Stokes as anexpert in the field of accident reconstructionnamedJames R. Ipser, Ph.D., asanKellner's March 2, 2011 witness listexpert in the fieldof "AccidentReconstruction/Biomechanical." The March 2 disclosure also listed Kellner as a witnesswith the topic of his testimony as "liability and damages." On March 22, 2011, Kellnerfiled a Notice of Withdrawal of Expert Witness, removing Ipser from his witness list.Appellants did not retain another accident reconstructionist.On August 30, 2011, Appellees filed a synopsis of witness testimony describingStokes as "[a]n engineer that viewed the video surveillance tape and calculated[David's] speed and her opportunity to avoid [Kellner]." The synopsis further disclosedthat Stokes would "present a breakdown of the (surveillance] video and an animation ofthe accident."On August 31, 2011, Appellants filed separate witness testimony synopses.Appellants listed neither an accident reconstructionist nor Kellner as witnesses. Thesynopses provided no discussion of distance measurements or the calculation ofDavid's speed. Appellants' exhibit lists, dated August 31, 2011, were sim[larly devoid fany items referencing distance measurements or speed estimates.The trial began on Monday, September 12, 2011.Multiple eye-witnessestestified, providing conflicting testimony concerning whether David was speeding prior toimpact. Additional trial evidence included surveillance camera footage from a business,which captured the scene of the accident in multiple frames. Appellees' expert, Stokes,2 On March 4, 2011, Bergerson filed a witness list, which included "[a]II personsnamed by [Kellner]. 3
used accident scene measurements and a detailed analysis of the surveillance videofootage to establish David's speed at the time of the accident.3Stokes did notphysically measure the accident scene, opting to use computer programs, Google Aerialand Google Earth Pro, for his measurements. Appellants' cross-examination of Stokeschallenged the accuracy of his virtual measurements and corresponding speedcalculations.Appellants called Kellner to challenge Stokes' measurements, resulting in thefollowing exchange:Q: If you want to, could you go out today and identify thatpoint[where the motorcycle appears in the 32nd frame of thesurveillance video footage] based on the car that is parkedthere now?A: Yes, sir.Q: And this past Sunday at my request did you, in fact, dothat?A: Yes, I did.Q: And did you also identify the approximate point of theimpact between your vehicle and the motorcycle?THE COURT: You all need to come up here please.(At sidebar.)Stokes earned a degree in engineering from the University of Florida, wasaccredited by the Accreditation Commission for Traffic Accident Reconstructionists, andwas certified as a forensic consultant by the American College of Forensic Examiners.Stokes indicated that he had appeared as an expert witness in Florida courts aboutfifteen times. Appellants never challenged Stokes' qualifications as an accidentreconstructionist.2Stokes estimated the distance between David's positions in two frames of thesurveillance video footage as 75 feet. The two frames were taken one second apart.Most of Stokes' calculations estimated a speed of between 43 and 47 miles per hour forDavid's motorcycle immediately before impact.3
THE COURT: Where are you going with this? It's nothappening. Number one, it was past discovery cut off. It'sbeen done after discovery cut off. It's discovery. He's not anexpert. You're not going there.(Sidebar ends).BY [Appellants' counsel]:Q: Okay. I don't want to talk about anything that happenedon Sunday.A: Okay.Q: So we're not going to do that.A: All right.Q: Can you give me an approximation, based on your bestestimate having gone by that location every day virtually, ofthe distance from where your vehicle was at the time of theaccident to the point depicted by the motorcycle right now?[Appellees' counsel]: We would object to this question andanswer, Your Honor.THE COURT: Sustained.[Appellants' counsel]: I don't know how to cure it. So can wecome up?(At sidebar.)THE COURT: Was this covered in the deposition, in anydeposition that was taken of this witness?[Appellees' counsel]: No.THE COURT: Okay. You're not going to turn him into anykind of accident reconstructionist.[Appellants' counsel]: I'm not going to try to. Distances don'trequire an expert to measure.THE COURT: He went out on Sunday, so he's going toapproximate what he knew on Sunday.[Appellants' counsel]: No, he's - -
THE COURT: No. You're not going to ask the question.During a recess, Appellants proffered testimony revealing that Kellner physicallymeasured the distance discussed in Stokes' pretrial deposition. Kellner measured thedistance one or two days prior to the commencement of trial, at the request of hisattorney. The proffered testimony challenged the accuracy of multiple measurementsused by Stokes. Kellner testified that the true distance depicted in Stokes' animationswas "no less than a hundred feet." Kellner claimed that he measured the accidentscene and found a distance of 105 feet between the two points at issue in Stokes'reconstruction. Following the proffer, the trial judge maintained her previous rulingconcerning Kellner's accident scene measurements.4Standard of review"Generally, rulings on evidentiary matters are within the sound discretion of thetrial court." LaMarr v. Lanq, 796 So. 2d 1208, 1209 (Fla. 5th DCA 2001)(citing Connellv. Guardianship of Connell, 476 So. 2d 1381, 1382 (Fla. 1st DCA 1985)). "A trial courthas wide discretion in determining the admissibility of evidence, and, absent an abuse4In sustaining the objection, the trial court provided:My ruling remains the same. Number one, anymeasurements that you elicited testimony were done two orthree days ago. That's outside the discovery timeframe. Youset him up as an expert, which there was no representationthat he would do any kind of accident reconstruction or anykind of measurements. Not only was he - - and I don't carethat you didn't list him on the witness list, the letter that yousent in that you forgot to put your people on, but he's not onthere as indicating anything about measurements orreconstruction of the accident scene at all. You've knownabout Mr. Stokes for some time, and I would hive assumedthat you would have discussed that with your client so youcould let the other side know there were going to be someissues with regard to that.D
of discretion, the trial court's ruling on evidentiary matters will not be overturned." Id.(citing Dale v. Ford Motor Co., 409 So. 2d 232, 234 (Fla. 1st DCA 1982)). "Whenreviewing erroneous rulings on evidentiary matters, we examine the entire record todetermine if the error is harmless." Id.In Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981), thesupreme court provided gtaidance for analyzing a trial court's exclusion of testimony thatshould have been disclosed pursuant to a pretrial order, as follows:The goals underlying discovery practice are readilyapparent in Florida Rules of Civil Procedure 1.200(c), whichprovides that a trial court's pretrial order detailing theagreements made by the parties "shall control thesubsequent course of the action unless modified at the trialto prevent injustice." Consistent with this rule, we now holdthat a pretrial order directing the parties to exchange thenames of witnesses requires a listing or notification of allwitnesses that the parties reasonably foresee will be calledto testify, whether for substantive, corroborative,impeachment or rebuttal purposes. Obviously, a generalreference to "any and all necessary" impeachment orrebuttal witnesses, as was the case here, constitutesinadequate disclosure. We expressly disapprove decisions .which hold or imply that certain types of witnesses areautomatically exempt from the dictates of a pretrialdisclosure order.It follows, of course, that a trial court can properlyexclude the testimony of a witness whose name has notbeen disclosed in accordance with a pretrial order. Thediscretion to do so must not be exercised blindly, however,and should be guided largely by a determination as towhether use of the undisclosed witness will prejudice theobjecting party. Prejudice in this sense refers to the surprisein fact of the objecting party, and it is not dependent on theadverse nature of the testimony. Other factors which mayenter into the trial court's exercise. of discretion are: (i) theobjecting party's ability to cure the prejudice or, similarly, hisindependent knowledge of the existence of the witness; (ii)the calling party's possible intentional, or bad faith,7
noncompliance with the pretrial order; and (iii) the possibledisruption of the orderly and efficient trial of the case (orother cases). If after considering these factors, and anyothers that are relevant, the trial court co
201 N. Franklin Street Suite 2550 Tampa, FL 33602 (813) 204-9776 Fax (813) 204-9660 BG-KD(a kubickidraper.conl Counsel for Kellner By: /s/ Betsy Ellwanger Gallag e Betsy Ellwanger Gallagher Florida Bar No. 229644 BAI IKER LOPEZ GASSLER P.A. 5 01 1st Avenue North Suite 900 St. Petersburg, FL
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