IN RE ESTATE OF ANNA VIRGINIA LOCHHEAD, A/K/A ANNA V. LOCHHEAD, DECEASED. IRVIN RAYMOND MARTZ AND LUCY MARTZ, APPELLANTS,
v.
MARGARET LOUISE BRANAM, THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNA VIRGINIA LOCHHEAD, DECEASED, APPELLEE
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In a will revocation proceeding, the trial court excluded expert psychiatric testimony from appellants because the witness's name was not disclosed in discovery responses. The appellate court reversed, holding that exclusion was an abuse of discretion where the disclosure purpose could have been achieved through deposition or continuance.
Exclusion of the witness's testimony was an abuse of discretion. Although appellants had no continuing duty to update discovery responses absent a pretrial order, the exclusion sanction was too drastic given that the discovery purpose could have been achieved through deposition or continuance, and appellants demonstrated prejudice from inability to present countervailing medical evidence on closely contested issues.
[1] Exclusion of a witness's testimony is a drastic remedy that should be invoked only under the most compelling circumstances.
[2] A party's obligation to supplement discovery responses regarding witnesses may be limited by the absence of a pretrial order or a request for particulars.
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Join FLexlaw to unlock all legal intelligence“Exclusion of the testimony of a witness "is a drastic remedy which should be invoked only under the most compelling circumstances."”
Establishes the high standard required before excluding witness testimony as a discovery sanction.
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Join FLexlaw to unlock all legal intelligenceAppellants sought to revoke a will, claiming lack of testamentary capacity and undue influence. They answered interrogatories identifying various witn…
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HERSEY, Judge.
This was a proceeding to revoke probate of a will. At trial, appellants, seeking to show lack of testamentary capacity and undue influence, attempted to call a medical witness whose name had not previously been disclosed to appellees. The trial court excluded the testimony of the witness by virtue of violation of the discovery rules. Final judgment upheld the will and this appeal ensued.
Appellants were served with interrogatories which contained the requirement that they furnish the “names and addresses of each and every witness to be called at trial.” Their answers to interrogatories were filed February 25, 1982, listing various witnesses together with the notation “additional witnesses as needed.” There was no objection or request for particulars in response to this answer, nor was there a pretrial conference or pretrial order. After several continuances the matter came to trial in October 1982. Appellants unsuccessfully attempted to call a psychiatrist to counter the testimony of appellees’ expert witness. They argue that the necessity for this testimony only became apparent a month before trial. They further argue that they had no obligation to disclose the name of the witness before trial in the absence of a pretrial order. Appellants strongly suggest that their answers to interrogatories were complete when filed so that there was no continuing duty to make discovery based upon Rule 1.280(e) of the Florida Rules of Civil Procedure. This is a correct interpretation of the rule. Binger v. King Pest Control, 401 So. 2d 1310, 1312 n. 4 (Fla.1981).
Exclusion of the testimony of a witness “is a drastic remedy which should be invoked only under the most compelling circumstances.” LoBue v. Travelers Ins. Co., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980).
The evidence produced in the trial court presented very close questions on the issues of undue influence and testamentary capacity. The testimony of appellees’ medical expert undoubtedly was entitled to and was given great weight by the trier of fact. Under these circumstances it is clear that appellants’ case was prejudiced by the inability to put on a countervailing medical view. While there was not a complete proffer of what his testimony would have been its importance can be gleaned from counsel’s summary and argument. Appellants thus meet the burden of showing prejudice. First Republic Corp. of America v. Hayes, 431 So. 2d 624 (Fla.1983).
One laudable purpose of disclosure is to eliminate surprise and trial by ambush. King Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th DCA), aff’d, 401 So. 2d 1310 (Fla.1980). That purpose could have been achieved in this case by permitting appellees to depose the witness or simply by granting a continuance (particularly is this so where appellees never sought to compel a more explicit answer than “additional witnesses as needed.”)
We therefore conclude that it was an abuse of discretion to exclude the testimony of appellants’ psychiatric witness. This makes it unnecessary to consider the additional points on appeal. The final judgment is reversed and the cause remanded for a new final hearing.
REVERSED and REMANDED.
ANSTEAD, C.J., and DELL, J., concur.
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Dep't of Health & Rehabilitative Servs. v. J.B., 675 So. 2d 241 (Fla. 4th DCA 1996)…imony of a witness is one of the most drastic of remedies which should be invoked only under the most compelling of circumstances. Acquisition Corp. of Am. v. American Cast Iron Pipe Co., 543 So. 2d 878 (Fla. 4th DCA 1989); In re Estate of Lochhead, 443 So. 2d 283 (Fla. 4th DCA 1983). As stated in Binger: It follows, of course, that a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised…
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Acquisition Corp. OF Am. & Kenneth v. Hemmerle, Sr., 543 So. 2d 878 (Fla. 4th DCA 1989)…le for deposition, but the expert did not view the property until the day before the trial. Exclusion of the testimony of a witness is a drastic remedy which should be utilized only under the most compelling circumstances. In re Estate of Lochhead, 443 So. 2d 283 (Fla. 4th DCA 1983). However, it is within the broad discretion of the trial court to examine and deal with problems of witness disclosure involving prejudice in the preparation of trial. Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981). Unde…
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OTS Elevator Co. v. Scott, 551 So. 2d 489 (Fla. 4th DCA 1989)…the record indicating he felt reinstatement was not a viable alternative because of the animosity between the parties. Most important, we hold the trial court erred in excluding the testimony of Willie James Ferguson. See In re Estate of Lochhead, 443 So. 2d 283, 284 (Fla. 4th DCA 1983); First Republic Corp. of America v. Hayes, 431 So. 2d 624 (Fla. 3d DCA 1983), petition for review denied, 441 So. 2d 632 (Fla.1983). As for the cross appeal, the trial court did not err in failing to award prejudgment inter…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- LoBUE v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980)
- First Republic Corp. OF Am. v. Hayes, 431 So. 2d 624 (Fla. 3d DCA 1983)
- Seymour Benson v. Benson, 379 So. 2d 660 (Fla. 5th DCA 1980)