JACQUES M. JEAN, APPELLANT,
v.
FRED THEODORSEN, AND HELENA THEODORSEN, APPELLEES
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Trial court erred in striking expert testimony due to alleged discovery violation, but the error was harmless because other medical witnesses adequately established plaintiff's permanent injury from the accident.
The trial court's striking of a neurosurgeon's entire testimony constituted error, but the error was harmless where other qualified medical witnesses testified to plaintiff's permanent injury and future care needs.
[1] Striking an expert witness's entire testimony based on discovery violations constitutes error when the expert's name, address, and report were timely disclosed and the op…
[2] Harmless error doctrine applies to exclusion of expert testimony where other qualified medical witnesses adequately establish the plaintiff's injury causation and permane…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The name and address of the expert were timely disclosed and plaintiff supplied the defense with the expert's report. The defense did not depose the expert or propound expert interrogatories.”
Court's explanation of why the defense claim of surprise was unreasonable
Plaintiff Jean was injured in an automobile accident. The defendant received timely disclosure of the neurosurgeon expert's name, address, and report …
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PER CURIAM.
The trial court erred in striking the entire testimony of plaintiffs expert. The name and address of the expert were timely disclosed and plaintiff supplied the defense with the expert’s report. The defense did not depose the expert or propound expert interrogatories. The defense claim of surprise is based on an unreasonable reading of the written report. Even assuming a discovery violation, the court’s remedy was excessive under Keller Indus. v. Volk, 657 So. 2d 1200 (Fla. 4th DCA 1995).
However, upon review of the entire record, we find the error to be harmless. See § 59.041, Fla. Stat. (1997). The expert was a neurosurgeon who examined the plaintiff one time at the request of the plaintiffs attorney. A chiropractor and an orthopedic surgeon both testified that the plaintiff suffered a permanent injury as a result of the accident, they gave him a disability rating, and they described the future care which would be necessary. This was not a case where “the physician excluded was the only medical witness who connected the appellant’s injury to the automobile accident ... and attributed permanent effects to the injury.” LoBue v. Travelers Ins. Co., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980).
AFFIRMED.
GUNTHER, GROSS and HAZOURI, JJ., concur.
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Citator
Authorities Cited
- LoBUE v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980)
- Keller Indus. v. LeNora Volk and John Volk, Jr., 657 So. 2d 1200 (Fla. 4th DCA 1995)