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Binger v. King Pest Control

Supreme Court of Florida

July 16, 1981

No. 58882

Case Summary

Procedural Posture

Petitioners, accident victims, filed a petition for writ of certiorari to the District Court of Appeal, Fourth District (Florida), challenging the court's reversal of petitioners' judgment and remand for a new trial.

Overview

Petitioners, accident victims, were permitted to present at trial the testimony of an impeachment witness whose identity had not previously been disclosed to respondent, pest control company, despite the existence of a court order directing disclosure. After the district court reversed, the court considered the issue to reconcile conflicting district court decisions on the issue. In approving the district court's order directing a new trial, the court held that a court-ordered witness list should contain the names and addresses of all persons who, within reason, a party might call as a witness, be they for impeachment, corroboration or to adduce substantive proof, and regardless of the part of the trial in which they might appear, and that whether an unlisted witness should be permitted to testify was to be guided by whether prejudice would accrue to the objecting party. Petitioners' intentional nondisclosure, combined with the surprise and disruption occasioned by the use of the unlisted witness and inability to alleviate these problems, prejudiced respondent in the presentation of its case, justifying a new trial.

Outcome

The court approved the decision of the district court directing a new trial, holding that the intentional nondisclosure by petitioners, accident victims, of the identity of their expert witness, despite the existence of a pre-trial order requiring such disclosure, prejudiced respondent to the extent that a new trial was warranted.

LexisNexis® Headnotes

 

 

Civil Procedure > Judicial Officers > Judges > Discretionary Powers

Civil Procedure > Discovery & Disclosure > Disclosure > Mandatory Disclosures

HN1  Judges, Discretionary Powers

A court ordered witness list should contain the names and addresses of all persons who, within reason, a party might call as a witness, be they for impeachment, corroboration or to adduce substantive proof, and regardless of the part of the trial in which they might appear. The key to the proper administration of such a rule is the trial judge, clothed as he is, with a broad discretion in resolving questions arising during a trial.

 

Civil Procedure > Judicial Officers > Judges > Discretionary Powers

Civil Procedure > Discovery & Disclosure > Disclosure > Mandatory Disclosures

HN2  Judges, Discretionary Powers

A trial judge's discretion in determining whether an unlisted witness can testify should be guided primarily by whether prejudice would accrue to the objecting party. Prejudice means that the objecting party might well have taken some action to protect himself had he timely notice of the witness and that there exist no other alternatives to alleviate the prejudice.

 

Civil Procedure > Discovery & Disclosure > Disclosure > Mandatory Disclosures

Civil Procedure > Pretrial Matters > General Overview

Civil Procedure > Pretrial Matters > Conferences > Pretrial Orders

HN3  Disclosure, Mandatory Disclosures

Fla. R. Civ. P. 1.200(c) provides that a trial court's pretrial order detailing the agreements made by the parties shall control the subsequent course of the action unless modified at the trial to prevent injustice. Consistent with this rule, the Florida Supreme Court holds that a pretrial order directing the parties to exchange the names of witnesses requires a listing or notification of all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes. Obviously, a general reference to "any and all necessary" impeachment or rebuttal witnesses constitutes inadequate disclosure. The court expressly disapproves decisions in witness disclosure cases that hold or imply that certain types of witnesses are automatically exempt from the dictates of a pretrial disclosure order.

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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