24 Fla. L. Weekly Supp. 927a
Online Reference: FLWSUPP 2411HUDSInsurance — Trial court abused its discretion by striking insurer’s expert witness’s testimony as sanction for discovery misconduct where there was no showing of prejudice to opposing party or willfulness or bad faith on part of insurer
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. NATIONAL NUCLEAR CENTER, d/b/a HOLLYWOOD DIAGNOSTICS CENTER, INC. (a/a/o Brenda Hudson), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. February 13, 2017. Case No. CACE15016664 (AP). L.T. Case No. COCE13015591 (53). Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County. Robert W. Lee, Judge. Counsel: Gregory J. Willis, Cole Scott Kissane P A, Plantation, for Appellant. Robert J. Hauser, Pankauski Hauser PLLC, West Palm Beach, for Appellee.
OPINION
Having carefully considered the briefs, the Record, and the applicable law, this Court dispenses with oral argument and the final judgment in favor of the Plaintiff/Appellee is hereby REVERSED AND REMANDED as set forth below.
State Farm’s expert witness’ testimony was stricken as a sanction for discovery misconduct. An order striking a witness should be entered only in the most compelling circumstances. Kaye v. State Farm Mut. Auto Ins. Co., 985 So. 2d 675 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1691b]. State Farm claims that its witness’ testimony was crucial to its defense and without it State Farm could not present critical evidence to support its theory of the case and demonstrate that genuine issues of material facts exist as to all elements of its case. Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1921b] (“A trial court should exercise caution when the witness sought to be excluded is a party’s only witness or one of the party’s most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case.”).
A trial court’s discretion to exclude testimony from a witness not disclosed in discovery is guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party with “prejudice” being a surprise in fact. Binger v. King Pest Control, 401 So. 2d 1314 (Fla. 1981). There was no showing of prejudice to the Plaintiff/Appellee, or willfulness or bad faith on the part of State Farm.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1. The August 4, 2015 Order granting the Provider’s motion for summary judgment on the issue of reasonableness and the subsequent August 12, 2015 Final Judgment in favor of the Provider are both REVERSED and this cause is REMANDED for further proceedings consistent herewith.
2. Pursuant to Fla. R. App. P. 9.400(a) and Florida Statutes, § 768.79, State Farm’s motion for appellate attorney’s fees is hereby conditionally granted and REMANDED to the trial court for consideration upon the trial court’s determination that its proposal of settlement was valid, enforceable and made in good faith.
3. The Provider’s motion for attorney’s fees is hereby DENIED. (MURPHY, PERLMAN and LEVENSON, JJ., concur.)
