13 Fla. L. Weekly Supp. 314a
Insurance — Personal injury protection — Expert witnesses — Exclusion — Abuse of discretion to exclude testimony of insurer’s expert witness as discovery sanction where expert was included in insurer’s timely filed amended pre-trial catalogue
SECURITY NATIONAL INSURANCE COMPANY, a Florida Corporation, Appellant, vs. ADVANCED DIAGNOSTIC GROUP, INC., a/a/o MELISSA VEGA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 04-315 AP & 05-020AP. L.T. Case No. 02-4437 SP 23. February 2, 2006. An appeal from the County Court for Miami-Dade County, Myriam Lehr. Counsel: Richard A. Sherman, Sr., Richard A. Sherman, P.A.; and Jacob C. Jackson, Law Office of Richard M. Nelson, for Appellant. Marlene S. Reiss, Stephens, Lynn, Klein, et al., for Appellee.
(Before LESTER LANGER, KEVIN M. EMAS, and IVAN FERNANDEZ, JJ.)
(PER CURIAM.) We reverse and remand this cause for a new trial for failure to allow appellant to present the testimony of Dr. Hershkowitz, the board certified neurologist, who we find was wrongfully excluded from testifying on behalf of the appellant. A review of the record reveals, and appellant concedes, that Dr. Hershkowitz was included in the Appellant’s amended pre-trial catalogue which was timely filed.
“A trial court’s ruling excluding evidence as a discovery sanction is subject to an abuse of discretion standard of review.” Grace v. State, 832 So. 2d 224, 226-227 (Fla. 2d DCA 2002) citing to State v. Tascarella, 580 So. 2d 154, 157 (Fla. 1991). “. . . [T]he right to present evidence and call witnesses is a most important due process right of a litigant, the excluding of the testimony of a witness being a drastic remedy which should be invoked only under the most compelling circumstances.” Fogel v. Mirmelli, 413 So. 2d 1204, 1208 (Fla. 3d DCA 1982) citing to Lobue v. Travelers Insurance Co., 388 So. 2d 1349 (Fla. 4th DCA 1980). “Our function on appeal is not to try a case de novo or to substitute our judgment for the trier of the facts, but rather to determine whether the proper principles of law were applied. . .” New Horizons Telecasting Corporation v. Professional Insurance Corporation, 200 So. 2d 835, 836 (Fla. 1st DCA 1967). Accordingly, the trial court abused its discretion in excluding this testimony, it is therefore unnecessary to address the remaining issues on appeal.
REVERSED and REMANDED for a new trial.
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