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Florida Third DCA reverses punitive damage award and remands for new trial after finding that trial court excluded proposed expert testimony based on plaintiff’s late disclosure without first conducting prejudice analysis required under Florida Supreme Court’s Binger decision

On October 27, 2021, in Callari v. Winklejohn, No. 3D20-0870, the Florida Third DCA ruled in a motor vehicle negligence case that the trial court committed reversible error when it denied the plaintiff the right to have an accountant expert testify regarding the defendant’s net worth and the punitive damages that would “bankrupt/economically castigate” the defendant. The plaintiff had filed a timely pre-trial expert witness disclosure that included the proposed accountant expert but had initially simply identified the subject of the expert’s testimony as “the Plaintiff’s economic damages.” Two weeks before the scheduled trial date, the plaintiff filed a supplemental expert witness disclosure specifically identifying the proposed punitive damages testimony, which was followed by a defense motion to strike the untimely disclosure, and a subsequent trial court order limiting the expert’s testimony to economic damages. The Third DCA noted that its review was subject to an abuse of discretion standard, and that a trial court’s discretion in this situation should be guided largely by whether the testimony will prejudice the objecting party. The Third DCA quoted fromBinger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981) that “[p]rejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony,” and that the factors a trial court should consider in making its prejudice determination are “(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).” The Third DCA additionally noted that a trial court’s failure to analyze the Binger factors will result in reversal, citing, inter alia, Montero v. Corzo, 320 So. 3d 976, 977 (Fla. 3d DCA 2021). Because the trial court failed to make any findings on prejudice or analyze the Binger factors, the Third DCA reversed the punitive damages award and remanded for a new trial on punitive damages.

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