Binger v. King Pest Control
401 So. 2d 1310 (1981)
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Rule of Law:
A pretrial order requiring parties to exchange witness lists applies to all witnesses the parties reasonably foresee they will call, whether for substantive, corroborative, impeachment, or rebuttal purposes. A trial court has broad discretion to exclude the testimony of an undisclosed witness, and that discretion should be guided primarily by whether the opposing party would be prejudiced by the surprise testimony.
Facts:
- A pretrial court order required both Robert Dennis Binger and King Pest Control to exchange witness lists at least 20 days prior to trial.
- Both parties complied, with the Bingers' list also including a general statement that they would call 'any and all necessary' impeachment or rebuttal witnesses.
- Over a month before trial, King Pest Control amended its witness list to include Burton Murrow, an accident reconstruction expert.
- Approximately four days before trial, the Bingers' attorneys deposed Murrow.
- The Bingers had their own privately-retained expert analyze Murrow's deposition testimony.
- The Bingers did not disclose the identity of their expert to King Pest Control at any point before trial.
- During the trial, after Murrow testified for King Pest Control, the Bingers sought to call their expert to impeach Murrow's testimony.
Procedural Posture:
- The Bingers initiated a civil action against King Pest Control in a Florida trial court.
- At trial, the court, over King Pest Control's objection, permitted the Bingers to call an expert witness whose identity had not been disclosed prior to trial.
- Following a jury verdict, the trial court entered a judgment in favor of the Bingers.
- King Pest Control, as the appellant, appealed the judgment to the Florida Fourth District Court of Appeal.
- The Fourth District Court of Appeal reversed the trial court's judgment and remanded the case for a new trial.
- The Bingers, as petitioners, sought review from the Supreme Court of Florida to resolve a conflict among the district courts of appeal on the issue of witness disclosure.
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Issue:
Does a pretrial order requiring the parties to exchange witness lists compel the disclosure of all witnesses a party reasonably foresees will be called to testify, including witnesses intended for impeachment?
Opinions:
Majority - Justice England
Yes. A pretrial order requiring the exchange of witness lists requires the disclosure of all witnesses that a party reasonably foresees will be called to testify, including for impeachment purposes. The goals of modern civil discovery are to eliminate surprise, encourage settlement, and arrive at the truth, not to engage in 'gamesmanship' or 'trial by ambush.' The court rejected categorical distinctions between substantive, rebuttal, and impeachment witnesses, holding that any reasonably foreseeable witness must be disclosed. A trial judge has broad discretion to exclude an undisclosed witness, but that decision must be guided by whether the objecting party suffers prejudice, defined as 'surprise in fact.' Here, the Bingers knew of King Pest Control's expert and the substance of his testimony four days before trial, making it reasonably foreseeable they would call their own expert to counter him. The intentional nondisclosure prejudiced King Pest Control, justifying a new trial.
Dissenting - Chief Justice Sundberg
No. The majority opinion improperly confuses the rules of discovery with a party's ability to call an unlisted impeachment witness at trial.
Analysis:
This decision significantly clarified Florida civil procedure by eliminating automatic exceptions for disclosing impeachment or rebuttal witnesses under a pretrial order. It established a unified, flexible standard centered on foreseeability and prejudice, shifting the focus from the type of witness to the fairness of the trial process. The ruling empowers trial judges to enforce pretrial orders to prevent 'trial by ambush' but requires them to exercise their discretion based on a multi-factor analysis rather than a rigid rule. For litigators, this case underscores the importance of diligent trial preparation and a broad interpretation of disclosure requirements, compelling them to anticipate and list any witness they might conceivably call.
