This article is one in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal.
If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.
PRESERVATION OF ERROR: UNDISCLOSED EVIDENCE, WITNESSES OR EXPERT OPINIONS
In order to preserve a challenge to an undisclosed witness or evidence at trial, attorneys must make a contemporaneous objection. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 185 (Fla. 3d DCA 2005). "The purpose for requiring a contemporaneous objection is to put the trial judge on notice of a possible error, to afford an opportunity to correct the error early in the proceedings, and to prevent a litigant from not challenging an error so that he or she may later use it as a tactical advantage." Id.
If the witness is disclosed immediately before trial, attorneys should file a motion in limine or a motion to strike. HSBC Bank Mortg. Corp. United States v. Lees, 201 So. 3d 699, 701 (Fla. 4th DCA 2016). Alternatively, attorneys may request a continuance to conduct further investigation or discovery.
The primary authority on undisclosed witnesses is Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). In Binger, the plaintiffs called an undisclosed expert at trial to impeach the testimony of a defense expert who was disclosed more than a month prior to trial. The Florida Supreme Court set forth the test for admission of undisclosed witness testimony or evidence: “whether use of the undisclosed witness will prejudice the objecting party.” Id. at 1314. The Florida Supreme Court approved of the Fourth District’s definition of prejudice as meaning “that the objecting party might well have taken some action to protect himself had he timely notice of the witness and that there exist no other alternatives to alleviate the prejudice." Id.
Accordingly, in order to succeed on an objection to undisclosed evidence or testimony, the objecting party must show prejudice or surprise in fact. The Florida Supreme Court identified three factors, commonly referred to as the "Binger factors" that the trial court should consider in addition to the prejudice to the objecting party:
- the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness or evidence;
- the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and
- the possible disruption of the orderly and efficient trial of the case (or other cases).
Binger, 401 So. 2d at 1313–14. This list of factors is not exclusive; the trial court may consider any additional effect on the proceedings or the parties in ruling on a Binger objection. Kellner v. David, 140 So. 3d 1042, 1047 (Fla. 5th DCA 2014). The undisclosed witness should only be permitted to testify when "the trial court concludes that use of the undisclosed witness or evidence will not substantially endanger the fairness of the proceeding." Binger, 401 So. 2d at 1314.
There is a current trend of treating physicians not being disclosed as experts but nevertheless providing expert testimony. See, e.g., Gutierrez v. Vargas, 239 So. 3d 615, 622–24 (Fla. 2018). In order to preserve a challenge to this undisclosed expert opinion, attorneys must object and move to strike the testimony.
Sometimes a judge may suggest a recess for a midtrial deposition of the witness on this aspect of their testimony. See Fla. Peninsula Ins. Co. v. Newlin, 44 Fla. L. Weekly D1517 (Fla. 2d DCA June 12, 2019) (Lucas, J., concurring). However, this does not cure the prejudice of the undisclosed evidence or testimony. Deposing the witness midtrial will only inform the objecting party of the witness's testimony; it will not provide them an opportunity to refute or contradict that testimony with evidence. See, e.g., Fid. Warranty Servs. v. Firstate Ins. Holdings, Inc., 74 So. 3d 506, 513 (Fla. 4th DCA 2011) ("[T]he mid-trial deposition here was insufficient to cure the prejudice because the only way [the defendant] could have countered the testimony was through its own expert testimony."); Dep't of Health & Rehab. Servs. v. J.B. by & Through Spivak, 675 So. 2d 241, 244 (Fla. 4th DCA 1996) ("Although the court afforded [the defendant] the opportunity to depose one of the witnesses after the first day of the trial, [the defendant] had no opportunity to obtain information or expert opinion to rebut the testimony of the witness and thereby cure the prejudice."); Grau v. Branham, 626 So. 2d 1059, 1061 (Fla. 4th DCA 1993) ("[T]he trial court thought that prejudice could be cured simply by allowing the defense to take the deposition of the doctor, but that is a far too narrow view of the prejudice involved. It is not enough that the defendant simply know what a witness may say before he testifies. Prejudice also exists by the fact that appellant is unable to counter the offered testimony.").
Attorneys should also move for a mistrial in order to ensure preservation of the issue. Southstar Equity, LLC v. Chau, 998 So. 2d 625, 629 (Fla. 2d DCA 2008) ("The only conceivable means of avoiding gross prejudice to the plaintiff would have been to declare a mistrial."). If the motion for mistrial is denied, the introduction of undisclosed evidence or testimony may also be a valid basis for new trial. See, e.g., Allstate Prop. & Cas. Insur. Co. v. Lewis, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009) ("The Binger analysis should be applied where a medical expert changes his or her opinion, resulting in surprise and prejudice to the opposing party and necessitating a new trial.").
When facing testimony or evidence from an undisclosed expert, remember to object immediately, move to strike, and ask for a mistrial. This will ensure that this issue is adequately preserved for a motion for new trial or subsequent appeal.
If you have any questions about this article, preservation of error, or would like to refer a matter, please contact our appellate attorneys.
About the Author:
Laura A. Roe is an Associate of Boyd & Jenerette P.A. practicing in the St. Petersburg office. She focuses her practice on appeals and general litigation support. She received her J.D. from the University of Florida in 2011 with certificates in International and Intellectual Property Law. Prior to joining the firm, Laura clerked at Florida’s Second District Court of Appeal. She also currently teaches legal writing and appellate advocacy courses at the University of Tampa.