Facts In a wrongful-death negligence suit arising from a nighttime intersection collision between defendant Crecelius’s SUV and decedent Alves’s motorcycle (both drivers were intoxicated), the trial court entered a case management order (later amended) requiring the defendant to disclose all expert witnesses and their opinions by March 18, 2024. The defendant disclosed the names of two experts (accident reconstruction and human-factors) on April 10, 2024, and provided their substantive reports on May 29 and 31, 2024—roughly three weeks before the June 18, 2024 trial date. Plaintiff moved to strike the experts for untimely disclosure. After a hearing, the trial court found the violations egregious (the original deadline had been May 2023), noted the case had been pending over two years, and struck both experts. The case proceeded to trial without the defendant’s experts; the jury returned a verdict finding the defendant 100% at fault and awarding $8.25 million in damages. The defendant appealed, arguing the trial court abused its discretion by striking the experts without performing the full Binger prejudice analysis required by decisions of the other district courts.
Issue Whether a trial court must conduct a Binger prejudice analysis (considering surprise/prejudice to the opposing party and other factors) before it may exclude late- or non-disclosed expert witnesses or opinions that violate a pretrial case-management order, or whether the trial court may strictly enforce its own disclosure deadlines under the Florida Rules of Civil Procedure without such an analysis.
Rule
- Under Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), the Florida Supreme Court’s holding is limited to the proposition that a trial court must consider prejudice to the objecting party before allowing the testimony of an undisclosed witness. The portion of Binger stating that an undisclosed witness “should be allowed to testify” if no substantial prejudice exists is dictum.
- Florida Rule of Civil Procedure 1.200 (both the 2024 and the amended 2025 versions) authorizes trial courts to set deadlines for expert disclosures in case-management orders and expressly requires that those deadlines “must be strictly enforced unless changed by court order.”
- Florida Rule of General Practice and Judicial Administration 2.545(b) imposes on trial judges the duty to “take charge of all cases at an early stage … and … control the progress of the case” to conclude litigation “as soon as it is reasonably and justly possible.”
- The 6th DCA expressly declines to follow the expansion of Binger by its sister courts, which had required a prejudice analysis before exclusion of late-disclosed witnesses or expert opinions. It certifies direct conflict with 16 listed decisions from the 1st, 2nd, 3rd, and 4th DCAs.
Analysis The en banc court first traced Binger’s history and its four-factor prejudice test, then demonstrated that sister courts had improperly converted dictum into a binding rule that effectively neutered pretrial orders. Using the Pedroza v. State, 291 So. 3d 541 (Fla. 2020) framework for distinguishing holding from dictum, the court concluded that Binger’s language about when a witness “should be allowed” was not necessary to the judgment (which reversed for admitting an undisclosed witness) and therefore is not binding.
The court emphasized that the Florida Rules of Civil Procedure and General Practice give trial judges affirmative authority—and a duty—to set and strictly enforce disclosure deadlines to prevent surprise, promote efficiency, and control dockets. Requiring a prejudice analysis before exclusion would undermine that authority and create perverse incentives for noncompliance. Recent amendments to Rule 1.200 (effective Jan. 1, 2025) reinforce strict enforcement, making the sister courts’ Binger expansion incompatible with current rules.
Applying these principles to the facts, the trial court acted within its discretion when it enforced its unambiguous expert-disclosure deadline and struck the untimely experts. No Binger prejudice balancing was required before exclusion.
Conclusion The 6th DCA affirmed the trial court’s order striking the defendant’s experts and the final judgment. The cross-appeal was dismissed. The court certified direct conflict with the listed decisions of its sister courts. Multiple judges filed concurring opinions (some calling for re-examination of Binger itself in light of the 2025 rule amendment. It is fair to say that the 6th DCA does things different.
“Roads? Where we’re going, we don’t need roads.” — Doc Brown, Back to the Future (1985)
The opinion is attached here:
