EDWINA H. DAVIS AND JEFF V. DAVIS, APPELLANTS,
v.
GENE H. PFUND, IRMA PFUND, AND THE INSURANCE COMPANY OF NORTH AMERICA, A FOREIGN CORPORATION, APPELLEES
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The appellate court reversed the trial court's exclusion of expert witness testimony and remanded for a new trial. The trial court erred in prohibiting the expert from testifying based on his post-discovery-closure examination of the accident scene, as no legal authority supports exclusion of expert testimony merely for continuing preparation activities after discovery closes.
The trial court erred in excluding the expert's testimony. No legal authority supports excluding expert testimony merely because the expert continued to examine and gather materials about the subject matter after discovery closure. Exclusion of witness testimony is an extreme remedy requiring compelling circumstances.
[1] An expert witness's continued preparation of testimony-related materials or examination of objects after discovery closure does not violate a discovery order.
[2] Exclusion of a witness's testimony is a drastic remedy that should be invoked only under the most compelling circumstances.
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Join FLexlaw to unlock all legal intelligence“Appellees have not offered, nor has our independent research disclosed, any authority for the proposition that an expert cannot continue to prepare materials (in this case, the drawings) or examine objects (in this case, an allegedly defective staircase) about which he is to testify.”
The core holding that no legal basis exists for excluding expert testimony based on post-discovery preparation activities.
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Join FLexlaw to unlock all legal intelligenceIn a personal injury case arising from an accident involving an allegedly defective staircase, the plaintiffs' expert witness James Elwood had prepare…
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PER CURIAM.
We agree with the plaintiffs/appellants that it was error for the trial court to have excluded the plaintiffs’ witness, James Elwood, from testifying.
The trial court’s stated reason for not permitting the testimony was that, following the pretrial conference and the closure of discovery, Mr. Elwood had returned to the scene of the accident and taken certain measurements in order to clarify his original drawings.
The trial court concluded that Elwood’s activity was in violation of its order closing discovery. Appellees have not offered, nor has our independent research disclosed, any authority for the proposition that an expert cannot continue to prepare materials (in this case, the drawings) or examine objects (in this case, an allegedly defective staircase) about which he is to testify. It was error, therefore, for the trial court to have prohibited Elwood from testifying on the ground that Elwood’s activity constituted a violation of the court’s discovery order. Cf. Dandashi v. Fine, 397 So. 2d 442, 443 (Fla. 3d DCA 1981) (no authority in Florida for exclusion of testimony of expert witness where expert, without knowledge of counsel, discusses case with opposing party, who is also an expert).
Exclusion of a witness’s testimony “is a drastic remedy which should be invoked only under the most compelling circumstances.” LoBue v. Travelers Insurance Co., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980).
Because the trial court prevented a proffer of Elwood’s testimony, we cannot determine the effect of this exclusion. We must presume that the exclusion was prejudicial, and, therefore, we reverse. See Musachia v. Terry, 140 So. 2d 605, 608 (Fla. 3d DCA 1962). In view of our reversal on this point, we do not consider the other issue raised.
Reversed and remanded for a new trial.
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Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000)…d 1200, 1202-03 (Fla. 4th DCA 1995); accordingly, the exclusion of the testimony of expert witnesses must be carefully considered and sparingly done. See Aguila-Rojas v. City Management Group Corp., 606 So. 2d 765 (Fla. 3d DCA 1992); Davis v. Pfund, 479 So. 2d 230 (Fla. 3d DCA 1985). Furthermore, 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…
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Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990)…narily, where the court refuses to allow a proffer, it prevents a determination of the propriety of the trial court’s ruling by the reviewing court and is prejudicial to the party making the proffer and generally is reversible error. Davis v. Pfund, 479 So. 2d 230 (Fla. 3d DCA 1985); Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978); Musachia v. Terry, 140 So. 2d 605 (Fla. 3d DCA 1962). While there may be situations where the preclusion would constitute harmless error, this is certainly not one of them. The…
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Tetrault v. Fairchild, 799 So. 2d 226 (Fla. 5th DCA 2001)…know of that prevents expert witnesses from continuing to obtain new or supplemental information regarding their opinions that might necessitate formulating new opinions during the preparation for their testimony at trial. See e.g., Davis v. Pfund, 479 So. 2d 230 (Fla. 3d DCA 1985), rev. denied, 491 So. 2d 280 (Fla.1986). The majority contends that the answer given by the plaintiff to the expert interrogatory limited Dr. Gordon’s testimony to the care and treatment of the plaintiff and his examination of th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- LoBUE v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980)
- Salem Dandashi and Mansham Dandashi v. Fine, 397 So. 2d 442 (Fla. 3d DCA 1981)
- Musachia v. Terry, 140 So. 2d 605 (Fla. 3d DCA 1962)