Clair v. Perry, 2011 Fla. App. LEXIS 12466

Appellee injured in a motor vehicle collision; appellant admits negligence and the trial proceeded on damages.
At trial, appellee sought to introduce Dr. Theofilos’s testimony about permanency; the court excluded that portion as undisclosed expert testimony.
The jury found appellee had no permanent injury.
Appellee moved for a new trial asserting lack of discovery disclosure; the trial court determined notice was sufficient and granted a new trial.
Appellant argues the court abused its discretion; this Court reviews for abuse of discretion and affirms the trial court’s decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by granting a new trial to permit the undisclosed testimony.	Clair argues undisclosed permanency testimony prejudiced defense.	Perry contends no prejudice due to discovery disclosures and notice.	No abuse of discretion; new trial affirmed.
Whether Dr. Theofilos’s permanency opinion constitutes expert testimony requiring disclosure.	The permanency opinion is an expert opinion needing disclosure.	Not decisive; focus is on prejudice and notice.	Court did not resolve as a universal rule, holding no prejudice here.

Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981) (trial court may exclude undisclosed witness; prejudice and related factors govern discretion)
Menard v. Univ. Radiation Oncology Assocs., LLP, 976 So.2d 69 (Fla. 4th DCA 2008) (conceivably undisclosed testimony may trigger Binger analysis)
Dep’t of Health & Rehab. Svcs. v. J.B. By & Through Spivak, 675 So.2d 241 (Fla. 4th DCA 1996) (exclusion is drastic; used under compelling circumstances)
Ganey v. Goodings Million Dollar Midway, Inc., 360 So.2d 62 (Fla. 1st DCA 1978) (surprise due to undisclosed physician testimony bears responsibility on party fault)
Scarlett v. Ouellette, 948 So.2d 859 (Fla. 3d DCA 2007) (disclosure of medical opinions; permanency issue notice)