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Florida Fourth DCA rules that plaintiff’s counsel engaged in impermissible “trial by ambush” tactics in motor vehicle negligence case by waiting until trial to have plaintiff’s treating physician review MRI from previous accident

On July 10, 2019, in Gurin Gold, LLC v. Dixon, No. 4D18-2156, the Florida Fourth DCA reversed a verdict for the plaintiff in a motor vehicle negligence and remanded for a new trial based on what the Fourth DCA described as “trial by ambush” tactics by plaintiff’s counsel.  The plaintiff’s treating physician had testified in deposition about an MRI performed after the 2014 accident at issue in the case but had not opined about an MRI which had been performed in 2010 following an earlier accident.  Defense counsel mentioned this in his opening statement at trial and informed the jury that his medical expert had reviewed both MRI results.  Subsequently, immediately prior to plaintiff’s counsel’s direct examination of the treating physician, the physician was shown the 2010 MRI and a proffer was made to the trial court that the physician would have new opinions based on his review of the 2010 MRI, including that that the herniation depicted in the 2010 MRI had showed a “progression” in the 2014 MRI.  Defense counsel moved to exclude any testimony by the physician about the 2010 MRI or the comparability of the 2010 and 2014 MRI scans based on the late disclosure.  The trial court initially granted the motion to exclude, but then changed his opinion, allowing the testimony as going only to a “weight issue.”  At the conclusion of the trial, the jury returned a verdict finding the defendants negligent and liable for damages. On  appeal, the Fourth DCA concluded that the new testimony, which the Fourth DCA characterized as an “intentional non-compliance with the pre-trial discovery order,” prejudiced the defense because it occurred after the defense had made a representation to the jury based on the expert’s failure to review the 2010 MRI.  The Fourth DCA opined that prejudice also arose from the fact that some of the treating physician’s new testimony concerned how different magnet strengths in the two MRIs might prevent accurate comparison, leaving defense counsel without sufficient time to counter this testimony with expert testimony of their own on the same subject.  This latter issue appears to have been determinative for the Fourth DCA. The Fourth DCA primarily relied on two precedents, Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981) (when a witness is undisclosed and then is offered for testimony at trial, the focus should be on the potential prejudice to the objecting party); and Dep’t of Health & Rehab. Servs. v. J.B. By & Through Spivak, 675 So. 2d 241, 244 (Fla. 4th DCA 1996) (extending Binger from undisclosed witnesses to disclosed witnesses who offer previously undisclosed testimony).

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