12 Fla. L. Weekly Supp. 1027b
Insurance — Personal injury protection — Discovery — Expert witnesses — No abuse of discretion in exclusion of undisclosed expert witness
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. MOBILE DIAGNOSTICS IMAGING, L.L.C., a/a/o AMEKIA SAMMS, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-11448(11). August 1, 2005.
OPINION
(BARRY E. GOLDSTEIN, J.) THIS CAUSE is before the Court upon the Appellant, United Automobile Insurance Company’s appeal of the lower court’s Final Judgment. Having reviewed the appellate record, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
The standard of review required to reverse the trial court’s ruling to exclude an expert witness is clear abuse of discretion. Florida Marine Enterprises v. Bailey, 632 So.2d 649 (Fla. 4th DCA 1994).
In Binger v. King Pest Control, the Florida Supreme Court set out guidelines for the trial court to use in exercising its discretion to exclude the testimony from an undisclosed witness. 401 So.2d 1310 (Fla. 1981). The factors include: (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. Id. at 1314. In this case, the record does not show that the trial court abused its discretion when it excluded the Appellant’s expert witness.
The Appellee is seeking Appellate Attorney’s fees. The Court grants the Appellee’s request pursuant to Florida Rules of Appellate Procedure 9.400(b) as the prevailing party on appeal. The Court remands to the County Court for a determination of amount of fees and costs.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Judgment in favor of the Appellee by the County Court is AFFIRMED.
ORDERED AND ADJUDGED that the Appellee’s Motion for Appellate Attorney’s Fees is GRANTED and remanded to the County Court for a proper determination of fees and costs.
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