PHOTO 60 OF MIAMI INTERNATIONAL, APPELLANT,
v.
WARRICK ROUNDTREE AND KATHY ROUNDTREE, APPELLEES
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Photo 60 of Miami International appeals a negligence verdict, arguing the trial court abused its discretion by excluding its sole expert physician witness due to an unreasonable refusal to extend the jury's lunch recess by one hour. The appellate court reverses, finding that excluding expert testimony on credibility grounds requires the most compelling circumstances and that the trial court's action deprived the defendant of essential defense evidence.
The trial court abused its discretion and committed reversible error. Excluding witness testimony is a drastic remedy that should be invoked only under the most compelling circumstances. The refusal to extend the lunch recess by one hour was an abuse of discretion that deprived the defendant of its only evidence and testimony essential to its defense.
[1] Excluding the testimony of a witness is a drastic remedy that should be invoked only under the most compelling circumstances.
[2] A proffer of a witness's report is not an adequate substitute for the live appearance of the witness when the case is largely a contest of experts.
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Join FLexlaw to unlock all legal intelligence“[e]xcluding the testimony of a witness is a drastic remedy which should be invoked only under the most compelling circumstances.”
Establishes the legal standard that witness exclusion is exceptional and requires compelling justification
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Join FLexlaw to unlock all legal intelligencePlaintiff Warrick Roundtree concluded his case on the third day of trial after presenting lengthy testimony from several physicians about his physical…
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JORGENSON, Judge.
Photo 60 of Miami International appeals the trial court’s order denying its motion for a new trial following an adverse jury verdict on a claim of negligence. For the following reasons, we reverse.
The plaintiff below, Warrick Roundtree, concluded his case after 11:00 a.m. on the third and last day of trial after eliciting lengthy testimony from several physicians concerning his physical condition and degree of disability. Photo 60 represented to the trial court that its sole witness, a physician who had examined Roundtree, would be present to testify at 1:15 p.m. Photo 60 requested that the trial court extend the jury’s lunch recess by one hour to allow Photo 60 to call its witness. The trial court refused although it permitted a proffer of the physician’s report.
While it is true that a trial court is accorded broad latitude in the control of cases, Duran v. Neff, 366 So. 2d 169 (Fla. 3d DCA 1979), “[ejxcluding 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) (citations omitted), rev. denied sub nom, Burnes v. Stafford-Lo-Bue, 397 So. 2d 777 (Fla.1981). See also Herbert v. Garner, 78 So. 2d 727 (Fla.1955). In LoBue, the plaintiff in a personal injury action was prohibited from calling her physician as a witness after the physician failed to appear in court at the appointed hour.
The trial court did allow the plaintiff to make a lengthy proffer of the physician’s testimony. Speaking through Judge Anstead, our sister court reversed, finding that the proffer was not “an adequate substitute for the live appearance of the physician upon which the jury could make a valid determination of credibility in a trial which was largely a contest of experts.” LoBue, 388 So. 2d at 1351.
Based upon their clinical observations, all of Roundtree’s medical experts asserted that Roundtree had extensive permanent injuries despite the fact that no fewer than seven objective tests — four CAT scans, two blood flow studies, and a thermogram— showed negative, normal results. Had he been permitted to testify, Photo 60’s expert witness would have offered his own observations and impressions of Roundtree’s condition. His testimony would have directly contradicted the diagnosis and prognosis of Roundtree’s medical experts. By refusing to extend the lunch recess even one hour, the trial court deprived the jury of the only evidence and testimony essential to Photo 60’s defense.
The trial court’s action was an abuse of discretion and reversible error. Herbert; LoBue.
Accordingly, we reverse and remand for a new trial.
Reversed and remanded for a new trial.
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Glenna Fisher v. Perez, 947 So. 2d 648 (Fla. 3d DCA 2007)…shows that defense counsel failed to use due diligence to secure his appearance. However, there has been no case explicitly stating a subpoena is the only way to satisfy the due diligence requirement. See, e.g., Photo 60 of Miami Int’l v. Roundtree, 541 So. 2d 687, 688 (Fla. 3d DCA 1989)(reversing denial of continuance with no mention of whether expert witness was subpoenaed); Taylor v. Inst. for Medical Weight Loss, 863 So. 2d 398, 399 (Fla. 4th DCA 2003)(same). Due Diligence Although we view a subpoena as…
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Vega v. CSCS Int'l, N.V., 795 So. 2d 164 (Fla. 3d DCA 2001)…). Additionally, the exclusion of a witness’ testimony is a drastic remedy which should be utilized only under the most compelling circumstances. See Griefer v. DiPietro, 708 So. 2d 666, 670 (Fla. 4th DCA 1998); Photo 60 of Miami Int’l v. Roundtree, 541 So. 2d 687 (Fla. 3d DCA 1989); see also Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000)(“[T]he exclusion of the testimony of expert witnesses must be carefully considered and sparingly done.”). Vega did not violate any court order, or any obligation…
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Longo v. Jackson, 564 So. 2d 652 (Fla. 3d DCA 1990)…PER CURIAM. The appellee properly concedes that the trial court erred in directing a verdict in his favor. Thus, this case is reversed and remanded for a new trial. See Photo 60 of Miami Int’l v. Roundtree, 541 So. 2d 687 (Fla. 3d DCA 1989); LoBue v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980).…
Authorities Cited
- LoBUE v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980)
- Herbert v. Garner, 78 So. 2d 727 (Fla. 1955)
- Ginny Duran v. Neff, 366 So. 2d 169 (Fla. 3d DCA 1979)