Scott Callari, VS. Elizabeth Winkeljohn,

Facts

In September 2017, Scott Callari crossed the center lane and struck Elizabeth Winkeljohn’s vehicle, flipping it roughly one-and-a-half times; Winkeljohn and her two children survived. Winkeljohn sued for negligence and later amended to add a claim for punitive damages, alleging Callari was driving under the influence of heroin.

Callari had disclosed CPA Marta Alfonso to testify on economic damages. On January 7, 2020 — the same day the court set trial for the week of January 21 — Callari served a supplemental disclosure adding that Alfonso would also testify about his net worth and the financially ruinous effect of a punitive award. Winkeljohn moved to strike, and the trial court limited Alfonso to economic-damages testimony without analyzing prejudice. Trial was later reset to February 24; Callari testified only to limited financial resources and never called Alfonso. The jury returned $3,662,572 in compensatory and $1,000,000 in punitive damages.

Issue

Whether the trial court abused its discretion by excluding an untimely supplemental expert disclosure without first analyzing prejudice to the opposing party under Binger v. King Pest Control.

Holding

Affirmed in part, reversed in part, and remanded. The Third District affirmed the balance of the judgment but reversed the punitive-damages award and remanded for a new trial on punitive damages, because the trial court restricted the late-disclosed expert testimony without making any findings on prejudice.

Rationale

Reviewing for abuse of discretion, the court reaffirmed that the decision to exclude a late-disclosed witness must be “guided largely by whether the testimony will prejudice the objecting party.” That inquiry turns on the Binger factors: (i) the objecting party’s ability to cure any prejudice or its independent knowledge of the witness; (ii) whether the calling party’s noncompliance was intentional or in bad faith; and (iii) possible disruption to the orderly and efficient trial of the case.

Because the trial court made no findings on prejudice and did not analyze the Binger factors before limiting Alfonso’s testimony, the exclusion was error that required reversal of the punitive award. Citing Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981); Montero v. Corzo; and Deutsche Bank Nat’l Tr. Co. v. Perez.