BARBARA K. CLARKE, APPELLANT,
v.
RICHARD J. SANDERS, APPELLEE
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In a medical malpractice case, the trial court erred in excluding deposition testimony from two expert doctors based on the plaintiff's failure to list them in a pretrial statement, when no pretrial order requiring such listing existed for the retrial and the defendant had actual notice of the evidence through interrogatory responses and prior deposition.
The trial court erred in excluding the depositions because: (1) no pretrial order required listing witnesses for the retrial; (2) even if such an order existed, the failure to list was not sufficiently prejudicial to warrant exclusion given that the defendant had actual notice through multiple discovery avenues; and (3) the excluded evidence was not merely cumulative and was essential to proving malpractice, as expert testimony is difficult to obtain in such cases.
[1] A trial court errs in excluding relevant deposition testimony as a sanction for failing to list witnesses on a pretrial statement when no pretrial order mandates such a l…
[2] The exclusion of relevant deposition testimony is an abuse of discretion if the opposing party is not prejudiced by the failure to list the witnesses.
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Join FLexlaw to unlock all legal intelligence“there was no pretrial order requiring the parties to list witnesses on a pretrial statement and even if there was an order, the failure to list their names was not so prejudicial to the defendant so as to require such a strong sanction as disallowing the presentation of the evidence”
Establishes the court's primary basis for finding error—absence of any pretrial order for the retrial and lack of sufficient prejudice to warrant exclusion.
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Join FLexlaw to unlock all legal intelligenceBarbara Clarke sued Richard Sanders for medical malpractice. At trial, the court excluded depositions of two doctors whose testimony would have suppor…
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DAUKSCH, Judge.
In this malpractice case the trial court erred in refusing to allow in evidence at trial the depositions of two doctors whose testimony was quite relevant to the issue of malpractice. The reason the trial court gave for disallowing the introduction of the depositions into evidence was the plaintiff’s failure to list the names of the doctors on a pretrial statement.
We find error because there was no pretrial order requiring the parties to list witnesses on a pretrial statement1 and even if there was an order, the failure to list their names was not so prejudicial to the defendant so as to require such a strong sanction as disallowing the presentation of the evidence. The defendant was quite aware of the proposed evidence and the doctors’ testimony because their names were furnished on answers to interrogatories; the defendant took the depositions of the doctors; the plaintiff had listed the bills of the doctors as being items to be introduced in evidence at trial; after the mistrial the defendant was again furnished the names of the doctors in answers to interrogatories; and the defendant made specific references to these doctors and their testimony by deposition during his opening statements to the jury at trial.
The trial court has broad discretion in these matters. County of Brevard v. Interstate Engineering Company, 224 So. 2d 786 (Fla. 4th DCA 1969).
The aggrieved party must show he was prejudiced by the court's abuse of discretion. County of Brevard v. Interstate Engineering Company, supra. Here the plaintiff was prejudiced because the two excluded depositions were of two doctors who gave testimony that the accused doctor had committed the malpractice. It is common knowledge it is difficult to obtain expert testimony in professional malpractice cases and it is obvious malpractice can hardly be proved without such evidence, so to exclude it could often ring the death knell for the plaintiff’s case. We are aware the plaintiff presented three other expert witnesses but the evidence offered by these two was not merely cumulative.
The plaintiff also appeals the judgment and the order denying the requested new trial saying the evidence was insufficient to support the verdict. Because we reverse on other grounds we need not get to that.
REVERSED and REMANDED for new trial.
BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur. . There was a pretrial order for the first trial which was a mistrial but not for this re-trial.
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Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)…So. 2d 697 (Fla. 4th DCA 1973); County of Brevard v. Interstate Eng’r Co., 224 So. 2d 786 (Fla. 4th DCA 1969). . Green v. Shoop, 240 So. 2d 85 (Fla. 3d DCA 1970). See also Fuller v. Rinebolt, 382 So. 2d 1239 (Fla. 4th DCA 1980); Clarke v. Sanders, 363 So. 2d 843 (Fla. 4th DCA 1978). . See DeMarines v. KLM Royal Dutch Airlines, 580 F. 2d 1193 (3d Cir. 1978); Slomanson, Supplementation of Discovery Responses in Federal Civil Procedure, 17 San Diego L.Rev. 233, 258 n.149 (1980); Note, 43 Tenn.L.Rev. 124, 130-…
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LoBUE v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980)…t such a right a trial would be nothing more than a sham. Excluding the testimony of a witness is a drastic remedy which should be invoked only under the most compelling circumstances. Bradford v. State, 278 So. 2d 624 (Fla.1973); Clarke v. Sanders, 363 So. 2d 843 (Fla.4th DCA 1978). We recognize that the trial court has broad discretion to control the trial of cases before him. In Duran v. Neff, 366 So. 2d 169 (Fla.3d DCA 1979), a trial court’s ruling denying a request to continue trial proceedings into the…
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First Republic Corp. OF Am. v. Hayes, 431 So. 2d 624 (Fla. 3d DCA 1983)…49 (Fla. 4th DCA 1980); however, it is also true that the trial judge has broad discretion to control the trial of cases before [*627] him. This court may not overturn the trial court’s decision absent an abuse of that discretion. Clarke v. Sanders, 363 So. 2d 843 (Fla. 4th DCA 1978); County of Brevard, supra. See also Goldring v. Escapa, 338 So. 2d 871 (Fla. 3d DCA 1976), cert. denied, 346 So. 2d 1248 (Fla.1977); Warriner v. Ferraro, supra. The burden is on the aggrieved party to show that he was prejudiced…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cnty. OF Brevard v. Interstate Eng'g Co., Inc., 224 So. 2d 786 (Fla. 4th DCA 1969)