DEBORAH J. WALTERS, APPELLANT,
v.
KEEBLER COMPANY AND CRAWFORD & COMPANY, APPELLEES
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In this workers' compensation appeal, the court reversed a benefits denial where the employer successfully raised a Martin Co. misrepresentation defense but the judge improperly excluded a coworker's testimony offered by the claimant in rebuttal. The exclusion was error because the employer suffered no prejudice from the witness not being on the pretrial list.
The court held that the judge erred in excluding the coworker's testimony. Because the employer/carrier did not assert or demonstrate prejudice or other compelling circumstances, the witness should have been allowed to testify.
[1] The exclusion of an unlisted witness' testimony is a drastic remedy that should be applied only in the most compelling circumstances.
[2] When the opposing party is not prejudiced by the late disclosure of a witness and compelling circumstances are not otherwise shown, the witness should generally be allowe…
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Join FLexlaw to unlock all legal intelligence“the exclusion of an unlisted witness' testimony is a drastic remedy which should pertain in only the most compelling circumstances”
Establishes the high bar for excluding unlisted witness testimony in workers' compensation cases.
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Join FLexlaw to unlock all legal intelligenceDeborah Walters filed a workers' compensation claim against Keebler Company and Crawford & Company. The employer/carrier raised a misrepresentation de…
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ALLEN, Judge.
The claimant appeals a workers’ compensation order by which benefits were denied pursuant to Martin Co. v. Carpenter, 132 So. 2d 400 (Fla.1961). We conclude that the employer/carrier presented sufficient evidence to support a Martin Co. misrepresentation defense, but that the judge erred in excluding a coworker’s testimony which the claimant proffered in response to this defense. The employer/carrier objected to the testimony below, arguing that it was not proper rebuttal and should be excluded because the coworker was not on the pretrial list of witnesses. The claimant initially argued below that the coworker was a rebuttal witness. But the claimant does not pursue this theory on appeal, despite the distinction between rebuttal and other witnesses in workers’ compensation proceedings. See Bose v. Madden & McClure Grove Service, 629 So. 2d 234 (Fla. 1st DCA 1993); Calleyro v. Mt. Sinai Medical Center, 554 So. 2d 1208 (Fla. 1st DCA 1989).
The claimant also argued below that the employer/carrier were not surprised by the proffered testimony, explaining that the witness was not discovered until after completion of the pretrial witness list, and that the employer/carrier were promptly informed of this situation. The claimant also noted that ' the employer/carrier participated in the claimant’s subsequent inquiry of the witness, and were advised that the claimant intended to present the witness’ testimony at the hearing.
The employer/carrier did not dispute these recitations, and did not assert any surprise or prejudice even when questioned by the judge as to the basis for their objection. As indicated in Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981), the exclusion of an unlisted witness’ testimony is a drastic remedy which should pertain in only the most compelling circumstances. See also Rose. Binger further indicates that when the opposing party is not prejudiced by the late disclosure, and compelling circumstances are not otherwise shown, the witness should generally be allowed to testify. See also Zales Corp. v. Clark, 643 So. 2d 108 (Fla. 1st DCA 1994).
Because there was no showing or assertion of prejudice or other compelling circumstances in the present case, the judge should have allowed the coworker to testify. The appealed order is therefore reversed, and this case is remanded.
DAVIS, J., and WENTWORTH, Senior Judge, concur.
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Cedar Hammock Fire Dep't & Fla. League of Cities v. Bonami, 672 So. 2d 892 (Fla. 1st DCA 1996)…phy, 660 So. 2d 1065 (Fla. 1st DCA 1995), is inap-posite because that ease involved the striking of all defenses, not just the striking of one witness, which amounted to entry of a default judgment. Similarly, the citation to Walters v. Keebler Co., 652 So. 2d 976 (Fla. 1st DCA 1995), is inapposite because in that case: The claimant also argued below that the employer/earrier were not surprised by the proffered testimony, explaining that the witness was not discovered until after completion of the pretrial w…1 / 2
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Med. Logistics, Inc. v. Marchines, 911 So. 2d 823 (Fla. 1st DCA 2005)…covery violations in the criminal context, see Richardson v. State, 246 So. 2d 771 (Fla.1971), and we have applied Binger in workers’ compensation cases. See, e.g., Cedar Hammock v. Bonami, 672 So. 2d 892 (Fla. 1st DCA 1996); Walters v. Keebler Co., 652 So. 2d 976 (Fla. 1st DCA 1995). Because the per se rule applied by the judge in the present case is antithetical to the case-specific analysis prescribed in Binger, the exclusion of the surveillance tapes on this basis was an abuse of discre [*825] tion and c…1 / 2
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Bombardier Aerospace Corp. v. Signature Flight Support Corp., 123 So. 3d 128 (Fla. 5th DCA 2013)…lso find no error in the trial court’s ruling, which permitted Mr. McBreen to testify in the original trial, as Bombardier failed to demonstrate that his testimony substantially endangered the fairness of the proceedings. See Walters v. Keebler Co., 652 So. 2d 976, 977 (Fla. 1st DCA 1995) (holding witness should be allowed to testify absent prejudice, and exclusion of unlisted witness’s testimony is “drastic remedy” to be used only in “most compelling circumstances”); Utica Mut. Ins. Co. v. Penn. Nat’l Mut. C…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Martin Co. & Cont'l Cas. Co. v. Drucella Carpenter & Fla. Indus. Comm'n, 132 So. 2d 400 (Fla. 1961)
- Rose v. Madden & McCLURE Grove Serv., 629 So. 2d 234 (Fla. 1st DCA 1993)
- Calleyro v. MT. Sinai Med. Ctr. & Gates McDonald, 554 So. 2d 1208 (Fla. 1st DCA 1989)
- Zales Corp. & CNA Ins. Grp. v. Clark, 643 So. 2d 108 (Fla. 1st DCA 1994)