11 Fla. L. Weekly Supp. 634a
Insurance — Personal injury protection — Discovery — Failure to comply — Motion to strike expert witness is granted where defendant disclosed report of vocational rehabilitation expert’s examination of plaintiff only after calendar call and discovery completion date and only two weeks before trial, plaintiff was precluded thereby from conducting necessary discovery to adequately prosecute case, and further continuances would disrupt orderly and efficient trial
BARRY RUBIN, Plaintiff, vs. ELLEN RADDE, Defendant. Circuit Court, 15th Judicial Circuitin and for Palm Beach County. Case No. CA 01-08005 AH. April 19, 2004. Catherine M. Brunson, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Charles B. Green, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO STRIKE EXPERT WITNESS DR. JOHN M. WILLIAMS, D.ED.
THIS CAUSE having come before the undersigned on April 1, 2004, upon the Plaintiff’s Motion to Strike Expert Witness Dr. John M. Williams, D. ED. and the Court having heard argument of counsel and having been otherwise fully advised in the premises, finds as follows:
1. The above referenced matter arises out of an automobile accident that occurred on May 6, 2000.
2. This matter is set for the trial period of March 1 through April 9, 2004.
3. On January 9, 2004, at the request of the Defendant, Plaintiff was examined by a vocational rehabilitation expert, Dr. John M. Williams.
4. Dr. Williams’ report was not prepared until March 12, 2004.
5. Defendant failed to disclose Dr. Williams’ report containing his opinions and conclusions until March 24, 2004, more than two months after the examination.
6. Pursuant to the Order Setting Jury Trial And Directing Pretrial Procedures entered on September 22, 2003, each party was required to provide a copy of any written reports issued by the expert regarding the case on the business day no later than 120 days prior to calendar call at initial listing, and on the last business day no later than 60 days prior to calendar call on rebuttal. Calendar call was February 18, 2004. Defendant is several months tardy in her disclosure of Dr. Williams’ report.
7. In the instant matter, discovery was to be completed by February 8, 2004, 10 days prior to calendar call. Therefore, Plaintiff is precluded from conducting the necessary discovery to adequately prosecute this case.
8. Florida Rule of Civil Procedure 1.360(b) requires the disclosure of all opinions and conclusions reached by an expert which the expert plans to testify to at trial. The purpose of requiring that physical examinations and discovery be completed by the time of the pretrial conference is to avoid surprise at trial. Colonnell v. Mitchels, 317 So.2d 799 (Fla. 2d DCA 1975). It is not enough that the party opposing use of the expert simply knows what a witness may say before he testifies at trial. Prejudice also exists by the fact that the opponent is unable to counter the offered testimony. Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993). As the Court stated in Grau, “Once the trial starts the parties’ attorneys should be allowed to concentrate on the presentation of the evidence at hand. Neither side should be required to engage in frantic discovery to avoid being prejudiced. . .” Grau at 1061.
9. The supreme court in Binger presented guidelines where the trial court is called upon to exercise its discretion to exclude the testimony of an undisclosed witness:
Prejudice 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. Other factors which may enter into the trial court’s exercise of discretion are: (1) the objecting party’s ability to cure the prejudice, or similarly, his independent knowledge of the existence of the witness; (2) the calling party’s possible intentional, or bad faith, noncompliance with the pre-trial order; and (3) the possible disruption of the orderly and efficient trial of the case. Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981).
10. Plaintiff is prejudiced by the Defendant’s delay in producing the expert report. Plaintiff needs time to review this report, consult with his own expert, depose Defendant’s vocational expert regarding his opinions and conclusions, and conduct discovery including propounding interrogatories permitted by Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), Allstate Ins. Co. v. Boecher, 719 So. 2d 286 (Fla. 1999), and Springer v. West, 769 So. 2d 1068 (Fla. 5th DCA 2000).
11. Permitting Dr. Williams to testify as to the contents of his opinions and conclusions contained within his report when his report was produced less than 2 weeks prior to trial constitutes an unfair prejudice as contemplated by Binger.
12. A continuance was already granted pursuant to the Defendant’s request. Any further continuances would disrupt the orderly and efficient trial of this case.
13. In the per curium decision of Pipkin and Sears, Roebuck & Company v. Hamer, the appellate court affirmed the trial court’s decision to strike certain of Defendant’s listed experts and limit testimony derived from experts’ reports due to the Defendants’ late disclosure of expert opinion in violation of a pre-trial order. Pipkin v. Hamer, 501 So.2d 1365 (Fla. 4th DCA 1987). The Court ruled that admission of the last minute expert opinion or in the alternative, a continuance of the trial, would prejudice Plaintiffs. Id. at 1370.
14. For the reasons set forth above, the Plaintiff’s Motion to Strike Expert Witness Dr. John M. Williams, D. ED. is granted and Dr. Williams shall not be permitted to testify at any trial or proceeding in this cause.
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