NO ABUSE OF DISCRETION IN EXCLUDING PLAINTIFF’S EXPERT UPDATED OPINIONS DISCLOSED ON THE EVE OF TRIAL—EVEN THOUGH THE PRETRIAL ORDER DID NOT EXPRESSLY REQUIRE UPDATES, THE DISCLOSURE VIOLATED THE JOINT PRETRIAL STIPULATION.

Krysiak v. Dawson, 45 Fla. L Weekly D1613 (Fla. 4th DCA July 08, 2020):

A woman paralyzed on one side of her body, who used a power chair to get around, was hit crossing a road being widened. The plaintiff was thrown from her chair and suffered a fractured ankle, requiring hardware. She was also left with scars that would occasionally break open. The plaintiff lost the movement she had in her ankle before the accident, and this led to difficulty in standing and additional falls.

The defense CME opined that plaintiff had no permanent psychological impairment from the accident. Plaintiff’s expert testified that Plaintiff suffered from PTSD.

The plaintiff listed the treating psychotherapist as a witness, but did not state her anticipated testimony. The trial court’s pretrial order stated that 90 days before trial, all information regarding expert testimony required by Rule 1.280(b)(5)(A) had to be disclosed, further noting that 10 days prior to trial, all discovery had to be completed. The order also required a pretrial stipulation.

To comply, plaintiff adopted the Defendant driver’s witness list, which included the plaintiff’s psychotherapist, but also did not state the substance of the testimony. The case was not reached until February of 2019 (it had been set originally for February 2018). The trial court gave the parties 24 hours notice, and on the morning the court advised about trial, plaintiff’s counsel sent defense lawyers an email stating that the psychotherapist had performed an assessment on the plaintiff in October of 2018, and determined that she suffered from PTSD. Counsel advised that the information on the testimony came in a meeting with the witness several days before trial. Defendants moved to exclude such testimony based on Binger.

During the argument on the issue, defense argued that plaintiff’s counsel waited until after the case was called for trial to disclose the opinion, and that late disclosure would require new depositions of both the plaintiff’s expert and the defense expert, in a case that had been litigated for six years.

Plaintiff’s counsel asserted that because the doctor was a treating psychotherapist and not an expert, that plaintiff’s counsel had no obligation to seek an update, and that excluding the evidence would deny plaintiff the right to put on her testimony. When the trial judge asked plaintiff’s counsel if he wanted a continuance, counsel refused, asking that the expert be permitted to testify to her full opinions. Defense counsel also argued that the court should not reopen discovery in the middle of trial, and urged that the case needed to go forward because it had been pending for so long and the parties were now prepared for trial.

The trial court ruled that it would allow testimony concerning the plaintiff’s symptoms and how the accident affected her, but would not allow discussion of the PTSD diagnosis because of the untimely disclosure.

The jury found the defendant driver 25% responsible, the plaintiff 75% responsible, and found that the defendant construction company had no liability.

The Fourth District found no abuse of discretion in this trial court’s ruling to exclude the new opinion. Reminding us that civil trials are not the “wild west,” where one side ambushes the other at trial, and stated that a Binger analysis also applies to treating physicians, the court ruled that the circumstances resulted in a failure to timely disclose the substance and scope of the doctor’s testimony. The court further stated that while a plaintiff does have the right to present all relevant evidence supportive of her claim at trial, the right is subject to reasonable procedural restrictions to ensure that the process is fair.