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Kellner v. David, Case Nos. 5D12-2027 & 5D12-2116 (5th DCA)

In Kellner, the defendants in an auto accident case appealed a final judgment entered against them following a jury trial. The first issue raised on appeal by the defendants was the trial court’s exclusion of the defendant, James Kellner’s testimony about measurements he took at the accident scene. In evaluating the issue, the Fifth DCA noted that the defendants initially listed an accident reconstruction expert, but later withdrew the expert, and did not disclose any additional accident reconstruction experts. The court also noted that the defendants’ witness synopses did not mention distance measurements or speed estimations. At trial, the defendants relied upon the defendant, Kellner, to challenge the plaintiffs’ accident reconstruction expert’s measurements and speed calculations. Kellner had measured certain distances at the accident scene a couple of days prior to trial, at the request of his attorneys. The trial court excluded his testimony as to measurements and speed calculations.

Following a Binger analysis, the Fifth DCA affirmed the trial court’s exclusion of Kellner’s testimony. In Binger, the Florida Supreme Court provided guidance for analyzing a trial court’s exclusion of testimony that should have been disclosed pursuant to a pretrial order. The Fifth DCA noted that Binger dictates 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. A general reference to any and all necessary impeachment or rebuttal witnesses constitutes an inadequate disclosure. Therefore, Binger provides that a trial court may exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. However, a trial court’s discretion to exclude such a witness must not be exercised blindly, but should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. As used by the Binger court, prejudice refers to the surprise in fact of the objecting party, not the adverse nature of the testimony. Other factors which may be considered by the trial court include (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case.”

The Fifth DCA found that the Binger factors supported the trial court’s exclusion of Kellner’s measurement testimony. While the plaintiffs should have been aware that Kellner would testify, their ability to cure the prejudice was hampered by their expert having fully testified, been released from his witness subpoena and excused from the trial. The measurements the defendants sought to introduce through Kellner were collected six months after the discovery cutoff, one month after filing witness synopses, and one or two days before the trial began. This afforded no notice to the defendants, and no opportunity to conduct meaningful discovery. This, according to the Fifth DCA, demonstrates a deliberate strategy constituting a trial by ambush. In addition, the Fifth DCA found Kellner’s testimony to have been a disruption of the orderly and efficient trial of the case, as a recess would have been needed to permit further discovery. The Fifth DCA therefore affirmed the trial court’s decision to exclude Kellner’s testimony.


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