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Binger v. King Pest Control

Supreme Court of Florida

July 16, 1981

No. 58882


  [*1311]  ENGLAND, Justice.

In this civil proceeding, we endeavor to reconcile conflicting district court decisions regarding the effect of a pretrial failure to disclose the names of witnesses. King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA 1980); Mall Motel Corp. v. Wayside Restaurants, Inc., 377 So.2d 41 (Fla. 3d DCA 1979); Hartstone Concrete Products Co. v. Ivancevich, 200 So.2d 234 (Fla. 2d DCA 1967). The situation which brings us the conflict arose when the Bingers were permitted to present at trial the testimony of an impeachment witness whose identity had not previously been disclosed to King Pest Control.

The detailed [**2]  facts of this dispute, which are amplified in the district court's opinion, 1 begin with a pretrial order requiring each party to exchange witness lists at least 20 days prior to trial. Both parties complied with this order, and the Bingers not only specifically listed their primary witnesses but advised that they would call to testify "any and all necessary" impeachment or rebuttal witnesses.

Over a month before trial, King Pest Control filed an amended pretrial catalog naming as a witness Burton Murrow, an accident reconstruction expert. The Bingers took Murrow's deposition approximately four days before trial and subjected it to scrutiny by their own privately-retained expert. The Bingers did not identify their expert for King Pest Control, however. Following Murrow's testimony at trial, the Bingers sought to introduce the testimony of their own expert to impeach Murrow, and over King Pest Control's objection they were permitted [**3]  to do so.

King Pest Control successfully appealed the trial court's action to the Fourth District Court of Appeal, obtaining a reversal of the Bingers' judgment and a remand for a new trial. Noting considerable confusion in the case law regarding pretrial disclosure of witnesses' names, the district court relied on the spirit of the discovery rules to suggest that

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401 So. 2d 1310 *; 1981 Fla. LEXIS 2789 **

ROBERT DENNIS BINGER, et ux., Petitioners, v. KING PEST CONTROL, Respondent

Prior History:  [**1]  Certiorari to the District Court of Appeal, Fourth District - Case No. 78-1495


witnesses, impeachment, disclosure, discovery, pretrial order, district court, pretrial disclosure, pretrial, surprise, trial judge, cases, prior to trial, directing, parties

Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Discovery & Disclosure, Disclosure, Mandatory Disclosures, Pretrial Matters, General Overview, Conferences, Pretrial Orders