IN THE SUPREME COURT OF FLORIDA

JAMES J. KELLI~IER and PATRICIAR. BERGERSON,

Petitioners,

vs.

CYNTHIA A. DAVID andFRANK DAVID,

Respondents.

CASE NO.: SC14-1511

5th DCA Consolidated Nos:SD12-2027 and SD12-2116

Trial Case No. 2008-CA-2738

PETITIONERS' AMENDED BRIEF ON JURISDICTIONI

KUBICKI DRAPER201 N. Franklin StreetSuite 2550Tampa, FL 33602(813) 204-9776Fax (813) 204-9660BG-KD(a~kubickidraper.conlCounsel for Kellner

By: /s/ Betsy Ellwanger^ Gallag~e~Betsy Ellwanger GallagherFlorida Bar No. 229644

BAI~IKER LOPEZ GASSLER P.A.5 01 1st Avenue NorthSuite 900St. Petersburg, FL 33701(727) 825-3600(727) 821-1968mtinlcer(c~t~,banlcerlo~ez.comCounsel for Bergerson

By: /s/ Ma~^k D. Tinker_Mark D. Tinker, B.C.S.Florida Bar No. 0585165Charles W. HallFlorida Bar No. 0326410

~ Amended only to include the inadvertently-omitted Appendix.

Filing # 16790788 Electronically Filed 08/06/2014 02:48:47 PM

RECEIVED, 8/6/2014 14:53:41, John A. Tomasino, Clerk, Supreme Court

TABLE OF CONTENTS

PAGE

Table of Contents ....................................................................................................... i

Table of Authorities ................................................................................................... ii

Statement of the Case and of the Facts ................................................................. 1-4

Summary of Argument .............................................................................................. 5

Argument:............................................................................................................ 6-10

Certificate of Service ...............:............................................................................... 11

Certificate of Coinpliance ....................................................................................... 12

TABLE OF AUTHORITIES

PAGE

Binder v. Kind, Pest Control,401 So. 2d 1310, 1314 (Fla. 1981) ...............................................................4, 5, 7

Chesser v. State,30 So. 3d 625, 627-28 (Fla. 1st DCA 2010) ........................................................ 9

En 1g e v. LiggLett Group, Inc.,945 So. 2d 1246, 1254 (Fla. 2006) ....................................................................... 6

Kellner v. David,So. 3d _, 2014 WL 2249477 (Fla. 5th DCA 2014) ...................................1, 9

Wallace v. Dean,3 So. 3d 1035, 1040 n.6 (Fla. 2009) ..................................................................... 6

Fla. R. App. P. 9.210 ...............................................................................................12

<http://www.mapquest.com/#f17c4906c56bed1bb0477fae> ................................... 8

ii

STATEMENT OF THE CASE AND OF THE FACTS

On April 30, 2008, David was riding her motorcycle on a highway with a

posted speed limit of 45 miles per hour. Kellner v. David, _ So. 3d _, 2014 WL

2249477 (Fla. 5th DCA 2014). Kellner, driving an SUV owned by Bergerson,

exited a Post Office parking lot by turning left onto the highway, resulting in a

collision between David's motorcycle and Kellner's SUV. Id. David sued Kellner

and Bergerson for damages, and they defended the case, in part, by asserting that

she was comparatively negligent because she was speeding. Id.

The case proceeded to trial, and multiple eyewitnesses provided conflicting

testimony about David's speed —some said she was riding at the posted 45 mile-

per-hour limit, while others estimated her speed as high as 65 miles per hour. Id.

In light of that conflict, the parties presented video footage from a nearby

business's surveillance Gamer a that had actually filmed the accident. Id. The video

contained a running clock, so David had an expert witness examine it, pick two

fixed points, and estimate David's speed prior to impact based upon the time it

took her to travel between them. Id.

But the expert did not physically measure that distance. Id. Instead, he used

Google Earth satellite imagery of the area and arrived at an estimate of 75 feet. Id.

He then opined that, in order to cover that distance in the time depicted, David had

been traveling at the posted 45 mile-per-hour limit. Id. On cross examination,

Kellner's counsel challenged the accuracy of his measurements, and got the expert

to admit that if the distance he used was wrong, his speed opinion was also wrong.

Id.

During his case, Kellner then tools the stand to testify, and the following

exchange tools place:

Q: If you want to, could you go out today and identifythat point [where the motorcycle appears in the 32ndframe of the surveillance video footage] based on the carthat is parked there now?

A: Yes, sir,

Q: And this past Sunday at my request did you, infact, do that?

A; Yes, I did.

Q: And did you also identify the approximate point ofthe impact between your vehicle and the motorcycle?

THE COURT: You all need to come up here please.

(At sidebar.)

THE COURT: Where are you going with this? It's nothappening. Number one, it was past discovery cut off.It's been done after discovery cut off. It's discovery. He'snot an expert. You're not going there.

(Sidebar ends).

Q: Olcay. I don't want to talk about anything thathappened on Sunday.

A: Olcay.

Q: So we're not going to do that.

A: All right.

Q: Can you give me an approximation, based on yourbest estimate having gone by that location every dayvirtually, of the distance from where your vehicle was at

2

Id.

the time of the accident to the point depicted by themotorcycle right now?

[David's counsel]: We would object to this questionand answer, Your Honor.

THE COURT: Sustained.

[Kellner's counsel]: I don't know how to cure it. Socan we come up?

(At sidebar.)

THE COURT: Was this covered in the deposition, inany deposition that was taken of this witness?

[David's counsel] : No.

THE COURT: Olcay. You're not going to turn himinto any kind of accident reconstructionist.

[Kellner's counsel]: I'm not going to try to. Distancesdon't require an expet-t to measure.

THE COURT; He went out on Sunday, so he's goingto approximate what he knew on Sunday.

[Kellner's counsel] : No, he's—

THE COURT: No. You're not going to ask thequestion.

During a recess, Kellner proffered testimony revealing that the actual

distance he had measured was 105 feet. Id. In order to cover that distance in the

depicted time, David would have been riding her motorcycle at the excessive speed

of 65 miles per hour that some witnesses reported, not the posted limit of 45. Id. In

addition, and as someone who visited that Post Office every day to retrieve his

snail, and who was a licensed builder who actually built the building that housed

3

the security camera, he offered his lay opinion that, from just looking at it, the

distance was obviously "no less than a hundred feet." Id.

Following an adverse verdict, Kellner and Bergerson appealed, in part, based

upon the exclusion of that evidence. Id. In a split 2-1 decision, the majority of the

Fifth District's panel decided to apply ,the Bin~er2 test for undisclosed testimony.

Id. It decided that, although David should have anticipated that Kellner would

testify about the accident scene, she would have been "hampered" in her ability to

cure any prejudice because her expert had already been excused from the trial. Id.

The majority further opined that allowing Kellner's testimony would have

dist-upted the trial, because the parties would have needed a recess in order to

conduct a scene inspection and assess its veracity. Id.

In a dissenting opinion, Judge Orfinger stated that the majority had failed to

properly apply Bin er. Id. He first noted that this was not even a case of unfair

surprise, because it should have come as no surprise that Kellner, as a party

involved in the accident, would testify about the scene. Id. Nevertheless, during

his deposition, David's counsel never even bothered to aslc him about it. Id. More

important, since the primary concern under Binder is unfair prejudice, Judge

Orfinger noted that the trial judge never even made any inquiry into how David

was unfairly prejudiced, or if she was, her ability to cure it. Id.

Z Binger v. Kind; Pest Control, 401 So. 2d 1310 (Fla. 1981).

4

SUMMARY OF ARGUMENT

In Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981), the Court

established the test for exclusion of "surprise" evidence. It held that the trial

judge's decision should be guided by the extent of prejudice the objecting party

would experience, and explained: "Prejudice in this sense refers to the surprise in

fact of the objecting party, and it zs not dependent on the adverse nature of the

testimony." Id.(emphasis added).

In this case, the two judge majority of the Fifth District's panel misapplied

that law in two ways. First, it decided`that Binger applied to this case, despite the

fact that there could not even be any surprise. The evidence related to the distance

between two objects, and David could not possibly claim to be surprised by

Kellner's evidence of that distance since she hired her own expert to calculate the

exact same thing. She may have been embarrassed that her expert got it wrong, but

she cannot claim to be surprised by the issue.

Second, the majority found prejudice in David's inid-trial inability to correct

her expert's mistake. But as quoted above, that is not the Binger test. The

majority focused on the adverse nature of the evidence for David's case, not on any

unfair surprise —which as noted above, could not even exist. The Court should

accordingly accept jurisdiction and correct that misapplication of its precedent,

because otherwise there will be confusion in the conflict going forward.

5

ARGUMENT

This Court has conflict jurisdiction to review decisions which misapply its

precedent. E.g. Wallace v. Dean, 3 So. 3d 1035, 1040 n.6 (Fla. 2009)(citing E

v. Liggett Group Inc•, 945 So. 2d 1246, 1254 (Fla. 2006)). That is because such

misapplications create confusion, as other courts begin to diverge from this Court's

precedent when litigants cite and rely upon the district court misapplications. As

expressly noted by Judge Orfinger, this is just such a case.

The majority applied the Binger test of "unfair surprise" to the distance

between two fixed objects shown on the video. But David could not possibly be

unfairly surprised by anything related to that issue, because she hired an expet~t to

calculate the exact same thing. This was not a case of unfair surprise, it was at

best David simply being embarrassed that her retained expert got the measurement

wrong. He did so because he decided to forego driving the 80 miles between his

Gainesville office and the Holder accident scene, and instead attempted to

calculate the distance using Google satellite images.

Lacic of preparation does not equal unfair surprise. Certainly David may

have been surprised that her expert was wrong, but not unfairly so. The topic was

something that she undisputedly had already hired her own expert to investigate.

The Bin~7er test is meant to prevent trials by ambush. It is meant, for

example, to preclude a litigant from showing up at the courthouse with an

undisclosed expert prepared to testify about undisclosed opinions.

This is not such a case. There can be no "ambush" when David

independently investigated the issue and hired an expert to testify about it. The

fact that her expert was wrong does not create a Binder question of unfair surprise.

Moreover, to the extent that the majority did apply Bid, it severely

misapplied it. First, the majority actually did recognize that David should not have

been unfairly surprised by Kellner's testimony, since he was after all a party and

would be expected to testify about the accident scene. But it then concluded that,

regardless, David would have been unable to cure the resulting prejudice.

That conclusion overlooks the point of law that, under Binger, prejudice

does not refer to the damaging nature of the evidence. Binger v. King Pest Control,

401 So. 2d 1310, 1314 (Fla. 1981)("Prejudice in this sense refers to the su1-prise in

fact of the objecting party, and it is not dependent on the adverse nature of the

testimony.")(emphasis added). It is only a question of unfair surprise. Id.

Accordingly, when the majority concluded that David should have been aware of

Kellner's testimony, it should not have proceeded any further on this point. Her

ability to cure relates only to the adverse nature of the evidence and damage

control, not surprise.

7

Likewise, to the extent that the majority did assess that issue —which as the

dissent notes the trial judge never did — it failed to consider the facts supporting

the dissent's conclusion that "it would have been easy to have Stokes, or some

other representative, go to the scene of the accident and measure the distance on

David's behalf" Kellner, 2014 WL 2249477 at *8(Orfinger, J., dissenting).

David had the unfettered ability to cure — or more pointedly, the ability to

independently confirm or otherwise evaluate Kellner's measurement. It was a

mere 11.2 miles from the courthouse steps to the accident scene.

<http://www.mapquest.com/#f17c4906c56bed1bb0477fae>. Kellner proffered his

"surprise" testimony on the afternoon of September 14, 2011. (T.822-23). The

defense did not even rest until the following day, on the morning of September 15,

2011. (T.886). Critically, that following day David then reopened Ize~ case in

ortCe~ to present ~ebuttnl evidence. (T.886). Accordingly, the majority failed to

consider the indisputable fact that David was able to assess and, if necessary,

confront Kellner's measurement.

The scene was only a 10 minute drive away, so David's counsel could have

taken his own measurement over a lunch break or on his way home that evening.

In fact, the route from the courthouse to David's counsel's law office passes

directly by it. The shortest route is to take U.S. 41 through Holder, Florida, which

is precisely where the accident happened — in front of the Holder Post Office on

U.S. 41. Counsel likely drove by the scene that evening anyway, as well as the

next morning.3 Likewise, since David reopened her case to present rebuttal

anyway, if Kellner's measurement was also something that required rebutting, she

could have simply done so.

The fact that she had released Mr. Stokes from trial is inconsequential, since

this is not a matter that would require elaboration by him as an expert. It was not a

matter of opinion, it was a question of fact. If David discovered that Kellner's

measurement was incorrect because —for example — he had measured from the

wrong street sign, she could have easily said so. Otherwise, she could have simply

confirmed that he was correct. Either way, the jury would have at least heard the

truth. This was not a "trial by ambush." It was a misapplication of Bin er.

While that is true for Kellner's actual measurement, it is even more so with

respect to his lay opinion about the distance. As noted in Judge Orfinger's dissent,

"[1]ay witnesses may generally testify as to both distance and speed." Kellner,

2014 WL 2249477 at *7(citing Chesser v. State, 30 So. 3d 625, 627-28 (Fla. 1st

DCA 2010)). Indeed, throughout this trial several witnesses did precisely that.

With respect to the distance issue, Kellner was likely one of the most

uniquely qualified people to comment on it. He traveled to that location every day

3 Indeed, there is no telling how many times over the course of this litigation — orfor that matter just the trial itself —that counsel drove past the scene. Regardless,and even if he asserts that he did not, the fact remains that it was readily accessiblesince it was only 11 miles away.

to retrieve mail from his P.O. Box, and he was the contractor who built the

building that housed the security camera. He obviously had ample opportunity to

view the scene.

Regardless, David never asked Kellner anything about it during his

deposition. By then applying — or rather, misapplying —Binger to exclude that

opinion, what the majority has done is create an affirmative obligation for litigants

to disclose everything that they plan to say at trial. Even if their opponent never

asks them about the topic, litigants will have to gratuitously explain everything

they wish to say. Otherwise, they risk having a judge use the David majority's

intet-pretation of Binger to exclude evidence as a purported unfair surprise.

Once again, a lack of preparation should never be considered "unfair"

surprise. David never asked Kellner about the distance, hired her own expert to

calculate it, and unfortunately for her chose one who got it wrong because he

elected to take shortcuts. Trials are supposed to be a search for the truth, and the

jury did not hear the truth in this case due to a misapplication of Binger.

The majority failed to heed this Court's directive that prejudice only refers

to "surprise in fact of the objecting party, and it is not dependent on the adverse

nature of the testimony." Binger, 401 So. 2d at 1314. In doing so, it has created

confusing due to apparently-conflicting decisions. The Court should accordingly

take jurisdiction to correct that confusion and the misapplication of its precedent.

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing initial brief has been electronically

filed through the e-Filing Portal, and that one copy each has been furnished by e-

mail to: JACK J. FINE, ESQUIRE and A. DANIEL VAZQUEZ, ESQUIRE

(Counsel fog David, at jfine a~ffplaw.com, dvazquez~ff~law.com;

arivera cz,ffplaw.com; BETSY GALLAGHER, ESQUIRE, (Counsel for Kellner),

at BG-KD~lcubicicidraper.corn; and FRANK MILLER, ESQUIRE (Co-Counsel

fog Be~ger~son), at fmiller(cr~,ca~mil.coin, lsauto cr,ca~mil.com and

bal lcer(c~cagmil.com; on this August 6, 2Q 14.

BAI~IKER LOPEZ GASSLER P.A.501 1st Avenue NorthSuite 900St. Petersburg, FL 33701Phone: (727) 825-3600Fax: (727) 821-1968e-mail: mtinlcer@banlcerlopez.comservice e-mail: service-mtinlcer(c~banlcerlopez.comAttorneys for Bergerson

By: /s/ Mask D. Tinker'Marls D. Tinker, Esq., B.C.S.Florida Bar No: 0585165Charles W. Hall, Esq.Florida Bar No: 0326410

CERTIFICATE OF TYPEFACE COMPLIANCE

Pursuant to Florida Rule of Appellate Procedure 9.210, the undersigned

counsel certifies that this Brief is printed in Times New Roman 14-point font.

BANKER LOPEZ GASSLER P.A.501 1st Avenue NorthSuite 900St. Petersburg, FL 33701Phone: (727) 825-3600Fax: (727) 821-1968e-mail: mtinlcer@banlcerlopez.comservice e-mail: service-mtinker(a~,banlcerlo~ez.comAttorneys for Bergerson

l sl Marla D. Tinker^Marls D. Tinker, Esq., B.C.S.Florida Bar No: 0585165Charles W. Hall, Esq.Florida Bar No: 0326410

12

APPENDIX

Conformed copy of Kellner v. David,SD12-2027 & SD12-2116 (Consolidated) ................................................ 1-16

13

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

JUN ~ Z0

JAMES J. KELLNER andPATRICIA R. BERGERSON,

Appellants,

v

CYNTHIA A. DAVID andFRANK DAVID,

Q~ppellees.

Opinion filed May 30, 2014.

Appeal from the Circuit Courtfor Citrus County,Patricia A. Thomas, Judge.

Mark D. Tinker and Charles W. Hallof Banker Lopez Gassier, P.A., St.Petersburgh, for Appellant, Patricia R.Bergerson.

Michael C. Clarke, Betsy E. Gallagherand Courtney A. Umberger of KubickiDraper, P.A., Tampa, for Appellant,James J. Kellner.

A.Daniel Vazquez and Jack J. Fineof Fine, Farkash & Parlapiano, P.A.,Gainesville, for Appellees.

NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILED

Case Nos. 5D12-2027 &5D12-2116

WALLIS, J.

James J. Kellner and Patricia R. Bergerson ("Appellants") appeal the lower

court's final judgment after a jury returned a verdict in favor of Cynthia A. David and

Frank David ("Appellees"). Appellants raise three issues: (1) the exclusion of Kellner's

testimony about his measurements at the accident scene; (2) the denial of Appellants'

motions contesting the $420,000 award to Cynthia David ("David") for loss of future

earning capacity; and (3) the admission of testimony about Kellner's prescription drug

use. We affirm the trial court's decision to exclude Kellner's testimony regarding the

accident scene measurements. We reverse on issue two because the evidence only

supports an award of $390,000 for David's loss of future earning capacity. Finally,

because we find Appellants' argument concerning the prescription drug testimony to be

without merit, we affirm the trial court without elaboration on that issue.

On April 30, 2008, David was riding a motorcycle on a highway with a posted

speed limit of forty-five miles per hour. Kellner, driving an SUV owned by Bergerson,

exited a parking lot by turning left onto the highway, resulting in a collision between

David's motorcycle and Kellner's SUV. Kellner testified that he did not see David's

motorcycle until immediately before the collision.

Appellees filed a negligence action against Appellants. Frank David also sought

damages for loss of consortium. Appellants filed separate answers and affirmative

defenses alleging David was comparatively negligent by exceeding the posted speed

limit. In depositions of both lay and expert witnesses, the parties spent significant time

discussing David's position and speed leading up to the point of impact.

2

The trial court set March 4, 2011, as the deadline to disclose all witnesses to be

used at trial. Appellees' February 25, 2011 witness list disclosed Alan D. Stokes as an

expert in the field of accident reconstruction

named James R. Ipser, Ph.D., asan

Kellner's March 2, 2011 witness list

expert in the field of "Accident

Reconstruction/Biomechanical." The March 2 disclosure also listed Kellner as a witness

with the topic of his testimony as "liability and damages."~ On March 22, 2011, Kellner

filed a Notice of Withdrawal of Expert Witness, removing Ipser from his witness list.

Appellants did not retain another accident reconstructionist.

On August 30, 2011, Appellees filed a synopsis of witness testimony describing

Stokes as "[a]n engineer that viewed the video surveillance tape and calculated

[David's] speed and her opportunity to avoid [Kellner]." The synopsis further disclosed

that Stokes would "present a breakdown of the (surveillance] video and an animation of

the accident."

On August 31, 2011, Appellants filed separate witness testimony synopses.

Appellants listed neither an accident reconstructionist nor Kellner as witnesses. The

synopses provided no discussion of distance measurements or the calculation of

David's speed. Appellants' exhibit lists, dated August 31, 2011, were sim[larly devoid ~f

any items referencing distance measurements or speed estimates.

The trial began on Monday, September 12, 2011. Multiple eye-witnesses

testified, providing conflicting testimony concerning whether David was speeding prior to

impact. Additional trial evidence included surveillance camera footage from a business,

which captured the scene of the accident in multiple frames. Appellees' expert, Stokes,2

~ On March 4, 2011, Bergerson filed a witness list, which included "[a]II personsnamed by [Kellner].°

3

used accident scene measurements and a detailed analysis of the surveillance video

footage to establish David's speed at the time of the accident.3 Stokes did not

physically measure the accident scene, opting to use computer programs, Google Aerial

and Google Earth Pro, for his measurements. Appellants' cross-examination of Stokes

challenged the accuracy of his virtual measurements and corresponding speed

calculations.

Appellants called Kellner to challenge Stokes' measurements, resulting in the

following exchange:

Q: If you want to, could you go out today and identify thatpoint [where the motorcycle appears in the 32nd frame of thesurveillance video footage] based on the car that is parkedthere now?

A: Yes, sir.

Q: And this past Sunday at my request did you, in fact, dothat?

A: Yes, I did.

Q: And did you also identify the approximate point of theimpact between your vehicle and the motorcycle?

THE COURT: You all need to come up here please.

(At sidebar.)

2 Stokes earned a degree in engineering from the University of Florida, wasaccredited by the Accreditation Commission for Traffic Accident Reconstructionists, andwas certified as a forensic consultant by the American College of Forensic Examiners.Stokes indicated that he had appeared as an expert witness in Florida courts aboutfifteen times. Appellants never challenged Stokes' qualifications as an accidentreconstructionist.

3 Stokes estimated the distance between David's positions in two frames of thesurveillance video footage as 75 feet. The two frames were taken one second apart.Most of Stokes' calculations estimated a speed of between 43 and 47 miles per hour forDavid's motorcycle immediately before impact.

THE COURT: Where are you going with this? It's nothappening. Number one, it was past discovery cut off. It'sbeen done after discovery cut off. It's discovery. He's not anexpert. You're not going there.

(Sidebar ends).

BY [Appellants' counsel]:

Q: Okay. I don't want to talk about anything that happenedon Sunday.

A: Okay.

Q: So we're not going to do that.

A: All right.

Q: Can you give me an approximation, based on your bestestimate having gone by that location every day virtually, ofthe distance from where your vehicle was at the time of theaccident to the point depicted by the motorcycle right now?

[Appellees' counsel]: We would object to this question andanswer, Your Honor.

THE COURT: Sustained.

[Appellants' counsel]: I don't know how to cure it. So can wecome up?

(At sidebar.)

THE COURT: Was this covered in the deposition, in anydeposition that was taken of this witness?

[Appellees' counsel]: No.

THE COURT: Okay. You're not going to turn him into anykind of accident reconstructionist.

[Appellants' counsel]: I'm not going to try to. Distances don'trequire an expert to measure.

THE COURT: He went out on Sunday, so he's going toapproximate what he knew on Sunday.

[Appellants' counsel]: No, he's - -

THE COURT: No. You're not going to ask the question.

During a recess, Appellants proffered testimony revealing that Kellner physically

measured the distance discussed in Stokes' pretrial deposition. Kellner measured the

distance one or two days prior to the commencement of trial, at the request of his

attorney. The proffered testimony challenged the accuracy of multiple measurements

used by Stokes. Kellner testified that the true distance depicted in Stokes' animations

was "no less than a hundred feet." Kellner claimed that he measured the accident

scene and found a distance of 105 feet between the two points at issue in Stokes'

reconstruction. Following the proffer, the trial judge maintained her previous ruling

concerning Kellner's accident scene measurements.4

Standard of review

"Generally, rulings on evidentiary matters are within the sound discretion of the

trial court." LaMarr v. Lanq, 796 So. 2d 1208, 1209 (Fla. 5th DCA 2001) (citing Connell

v. Guardianship of Connell, 476 So. 2d 1381, 1382 (Fla. 1st DCA 1985)). "A trial court

has wide discretion in determining the admissibility of evidence, and, absent an abuse

4 In sustaining the objection, the trial court provided:

My ruling remains the same. Number one, anymeasurements that you elicited testimony were done two orthree days ago. That's outside the discovery timeframe. Youset him up as an expert, which there was no representationthat he would do any kind of accident reconstruction or anykind of measurements. Not only was he - - and I don't carethat you didn't list him on the witness list, the letter that yousent in that you forgot to put your people on, but he's not onthere as indicating anything about measurements orreconstruction of the accident scene at all. You've knownabout Mr. Stokes for some time, and I would hive assumedthat you would have discussed that with your client so youcould let the other side know there were going to be someissues with regard to that.

D

of discretion, the trial court's ruling on evidentiary matters will not be overturned." Id.

(citing Dale v. Ford Motor Co., 409 So. 2d 232, 234 (Fla. 1st DCA 1982)). "When

reviewing erroneous rulings on evidentiary matters, we examine the entire record to

determine if the error is harmless." Id.

In Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981), the

supreme court provided gtaidance for analyzing a trial court's exclusion of testimony that

should have been disclosed pursuant to a pretrial order, as follows:

The goals underlying discovery practice are readilyapparent in Florida Rules of Civil Procedure 1.200(c), whichprovides that a trial court's pretrial order detailing theagreements made by the parties "shall control thesubsequent course of the action unless modified at the trialto prevent injustice." Consistent with this rule, we now holdthat a pretrial order directing the parties to exchange thenames of witnesses requires a listing or notification of allwitnesses that the parties reasonably foresee will be calledto testify, whether for substantive, corroborative,impeachment or rebuttal purposes. Obviously, a generalreference to "any and all necessary" impeachment orrebuttal witnesses, as was the case here, constitutesinadequate disclosure. We expressly disapprove decisions ...which hold or imply that certain types of witnesses areautomatically exempt from the dictates of a pretrialdisclosure order.

It follows, of course, that a trial court can properlyexclude the testimony of a witness whose name has notbeen disclosed in accordance with a pretrial order. Thediscretion to do so must not be exercised blindly, however,and should be guided largely by a determination as towhether use of the undisclosed witness will prejudice theobjecting party. Prejudice in this sense refers to the surprisein fact of the objecting party, and it is not dependent on theadverse nature of the testimony. Other factors which mayenter into the trial court's exercise. of discretion are: (i) theobjecting party's ability to cure the prejudice or, similarly, hisindependent knowledge of the existence of the witness; (ii)the calling party's possible intentional, or bad faith,

7

noncompliance with the pretrial order; and (iii) the possibledisruption of the orderly and efficient trial of the case (orother cases). If after considering these factors, and anyothers that are relevant, the trial court concludes that use ofthe undisclosed witness will not substantially endanger thefairness of the proceeding, the pretrial order mandatingdisclosure should be modified and the witness should beallowed to testify.

401 So. 2d at 1313-14. The Binger factors, although not exhaustive, generally support

the lower court's discretionary decision to exclude Kellner's measurement testimony.

a. Appellees' knowledge of Kellner as a witness and their ability to cureprejudice resulting from his testimony

The first Binger factor supports both Appellants' and Appellees' positions.

Appellees should have been aware that Kellner, as the driver of a vehicle involved in the

accident, would testify at trial. Conversely, Appellees' ability to cure the prejudice was

hampered because their expert had fully testified, had been released from his witness

subpoena, and was excused from the trial.

Appellants argue that Kellner should have been allowed to testify because

Appellees failed to demonstrate that his testimony would have prejudiced their case.

Appellants' reliance on Moore v. Gillett, 96 So. 3d 933 (Fla. 2d DCA 2012), and

Spalding v. Zatz, 70 So. 3d 692 (Fla. 5th DCA 2011), is misplaced because these cases

are dissimilar to the fact pattern at issue. The second district in Moore ruled that an

expert's alleged "surprise" testimony "was consistent with [the expert's] prior report" and

reversed the trial court's decision to grant a new trial. Moore, 96 So. 3d at 943, 947. In

Spalding, the opposing party did not claim surprise by the non-noticed expert testimony

and instead "attempted to capitalize" on the expert's new testimony. Spalding, 70 So.

3d at 699. The opposing party also earlier attempted to exclude the "surprise" testimony

via an unsuccessful motion in limine. Id. at 698. Furthermore, prejudice in the context

of Binger "refers to the surprise in fact of the objecting party, and is not dependent on

the adverse nature of the testimony." 401 So. 2d at 1314. Kellner's attempt to testify

clearly resulted in "surprise in fact" sufficient to prejudice Appellees' case.

b. Appellants' possible intentional or bad faith noncompliance Frith thepretrial order

We have previously granted trial courts wide discretion in determining whether to

admit the testimony of a witness or other evidence not disclosed pursuant to a pretrial

order. See Mistri v. Joseph Rutgliano &Sons, Inc., 827 So. 2d 391, 392 (Fla. 5th DCA

2002) (affirming trial court's exclusion of a document "of dubious authenticity" that was

not produced in discovery or listed by the appellants as required by the court's pretrial

order). A party can claim surprise and a trial court may exclude witness testimony

where that witness or testimony was not disclosed by the other party. Cascanet v.

Allen, 83 So. 3d 759, 763-64 (Fla. 5th DCA 2011) (citing Suarez-Burgos v. Morhaim,

745 So. 2d 368, 370-72 (Fla. 4th DCA 1999)).

A trial court may admit witness testimony, despite late notice, if the opposing

party has an opportunity to depose the witness about the new testimony and is not

prejudiced by the new testimony itself. See Utica Mut. Ins. Co. v. Pa. Nat'I Mut. Cas.

Ins. Co., 639 So. 2d 41, 43 (Fla. 5th DCA 1994) (affirming trial courf's decision to allow

additional expert testimony despite late notice where opposing party had the opportunity

to depose the new expert the night before trial); Baker v. Matthew, 518 So. 2d 290, 290-

91 (Fla. 5th DCA 1987) (reversing trial court's refusal to permit additions to the witness

list where the addition was made sixdays after discovery cut-off but more than three

months before trial).

E

Applying the second Binger factor to the present case supports the lower court's

exclusion of Kellner's measurement testimony. Here, Appellants attempted to introduce

measurements collected six months after discovery cut-off, one month after filing

witness synopses, and one or two days before beginning the trial. Appellants provided

no notice of Kellner's expected testimony and .no opportunity for Appellees to conduct

meaningful discovery of his measurements.

Appellants' concealment of Kellner's measurements until he testified is

concerning. Appellants engaged in a deliberate strategy of first disclosing and then

withdrawing an accident reconstructionist who would have presumably testified about

critical distances at the accident scene and calculations of the vehicles' speeds. None

of the documents Appellants filed with the lower court demonstrated Kellner's intent to

challenge Stokes' measurements or calculations. Instead, Appellants furthered their

strategy by directing Kellner, one or two days prior to the beginning of the trial, to take

specific measurements for the purpose of directly challenging the accuracy of

corresponding measurements taken by Appellees' properly-disclosed and deposed

expert. Appellants' conduct is the type of "trial by ambush" addressed in Tetrault v.

Fairchild, 799 So. 2d 228, 229 (Fla. 5th DCA 2001) (Harris, J., concurring),

c. Possible disruption of the orderly and efficient trial of the case

Allowing Kellner's testimony would have disrupted trial because the parties would

have needed a recess from the trial proceedings to engage in further discovery,

including a scene inspection and follow-up depositions. As a further inconvenience,

Appellees would have needed an opportunity to recall their accident reconstructionist,

which would have delayed trial.

10

Appellants rely principally upon Davis v. Pfund, 479 So, 2d 230 (Fla. 3d DCA

1985), to suggest that a witness may return to the scene of an accident and take

measurements after discovery cut-off. Davis is nofi applicable to fhe instant case. In

Davis, the plaintiff's expert witness "returned to the scene of the accident and [took

certain measurements in order to clarify his original drawings." Id. at 231. Furthermore,

the expert witness and his drawings were properly noticed and provided to opposing

counsel prior to the close of discovery. Id. Here, Kellner was not an expert witness and

was not "clarifying" his earlier deposition testimony. Furthermore, Kellner was not

included in either of Appellants' final witness lists, and Appellees had no notice of his

intent to testify regarding the distance measurements. The testimony in this case

established that Kellner acted at the request of his trial counsel in taking certain

measurements, one or two days prior to the start of trial, to oppose the expert testimony

from Appellees' accident reconstructionist.

We conclude that Appellants failed to demonstrate an abuse of the lower court's

broad discretion conferred by Bier. Appellants' serious violations of the pretrial

disclosure rules support the lower court's decision to exclude Kellner's testimony. "Trial

courts should not allow litigants to circumvent the rules by preparing [this type of

evidence] at the last minute." Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440, 444

(Fla. 3d DCA 2011). The potential prejudice from the testimony to Appellees' case was

clear. Appellees' expert had finished testifying, and had been excused from trial.

Allowing the testimony would have disrupted the trial and disserved judicial economy.

In light of our analysis, we affirm the lower court's decision to exclude Kellner's

testimony about his accident scene measurements.

11

We are persuaded by Appellants' arguments and find that the record supports an

award of only $390,000 in lost future earnings capacity as a result of this accident. The

lower court's original award of $420,000 in lost future earnings capacity resulted from

calculation errors introduced in Appellees' closing argument.5 We remand for the trial

court to enter judgment in the amount of $390,000 for loss of future earnings capacity.

We hold the lower court did not abuse its discretion when it excluded Kellner's

accident scene measurements. Appellants had ample opportunity to contest the

measurements and calculations provided by Appellees' expert, either through

competing expert testimony or by properly noticing the lower court and Appellees of

Kellner's expected testimony. Instead, Appellants caused Kellner to take measurements

shortly before trial and did not notify Appellees of those measurements until Kellner

attempted to testify at trial. Accordingly, we affirm the lower court's decision to exclude

Kellner's accident scene measurements and remand for the trial court to enter judgment

in an appropriate amount for David's loss of future earnings capacity.

AFFIRMED in part; REVERSED in part, and REMANDED with INSTRUCTIONS.

BERGER, J., concurs.ORFINGER, J., concurs in part and dissents in part with opinion.

5 During closing argument, Appellees' counsel asked the jury to assume thatDavid would work 52 weeks per year for another 15 years and would earnapproximately $400 per week. Appellees' counsel then incorrectly calculated David'slost earnings capacity as $420,000. However, properly applying their own counsel'ssuggested assumptions results in a loss of future earnings capacity of only $312,000.Considering the evidence—including testimony that David earned $500 per week—inthe light most favorable to Appellees, an award of up to $390,000 is appropriate.

12

Case Nos. 5D12-2027 & 5D12-2116

ORFINGER, J., concurring in part; dissenting in part.

concur in the majority opinion except as to the exclusion of Kellner's testimony

about the measurements he took at the accident scene. On that issue, I believe the trial

court reversibly erred and that the majority fails to properly apply the factors relevant to

the exclusion of evidence mandated by Binger v. King Pest Control, 401 So. 2d 1310

(Fla. 1981).

The speed of David's motorcycle at the time of the accident was the major

liability issue at trial, particularly as it related to her comparative fault, if any. Kellner

claimed that David was speeding at the time the vehicles collided. During discovery,

the parties obtained copies of a security video from a nearby store, which recorded the

accident. David's accident reconstructionist, Alan Stokes, did not visit the accident

scene. Instead, he used several computer mapping programs and two still frames

obtained from the video tape, taken one second apart, showing two fixed landmarks

where the motorcycle can also be seen. Stokes testified that the two landmarks were

seventy-five feet apart and that David's motorcycle traversed that distance in one

second. He testified that "distancE equals velocity times time." Applying that formula,

and the distance and time he extrapolated from the video, Stokes calculated David's

estimated speed at the time of the crash to be approximately the speed limit.

Kellner disputed Stokes's seventy-five foot measurement of the critical distance

between the two points. He claimed, on proffer, that Stokes's measurements were

wrong and that he measured the actual distance at 105 feet. The importance of an

13

accurate measurement is obvious—if the motorcycle traveled a longer distance in the

same amount of time, it would have been traveling faster at the time of the crash.

Kellner is a builder who drove almost daily through the accident scene. Several

days before the trial began, Kellner went to the scene of the crash and measured the

distance between the two landmarks relied on by Stokes. If Kellner's measurements

are correct, using the formula provided by Stokes, the jury could have concluded that

David was traveling more fihan twenty miles over the posted speed limit, rather than at

the speed limit as Stokes calculated. This evidence might have supported Kellner's

comparative negligence defense.

Before Kellner had an opportunity to testify to his measurements, and without

objection from David's counsel, the court called the attorneys to the bench and asked

David's attorney: "Where are you going with this? It's not happening. Number one, it

was past discovery cutoff. It's been done after discovery cutoff, it's discovery, he's not

an expert. You're not going there." The trial court prohibited Kellner from testifying to

either his actual measurements or his estimate of the distance between the two points.

believe the trial court erred when it excluded the evidence. The majority makes

no effort to defend the trial judge's view that an expert is required to measure a distance

of one hundred or so feet. Lay witnesses may generally testify as to both distance and

speed. Chesser v. State, 30 So. 3d 625, 627-28 (Fla. 1st DCA 2010) (citing Charles W.

Ehrhardt, Ehrhardt's Fla. Evidence § 701.1 at 668-71 (2008 ed.)). Expert testimony

would be required to measure the distance between, for example, the earth and the

moon, since that measurement is outside the ordinary experience of most witnesses

14

and jurors. However, measuring distances of one hundred feet or so is well within the

common experience of most people and does not require expert testimony.

Instead, the majority concludes that the trial court properly excluded the

testimony because of a perceived discovery violation. I am not persuaded that any

discovery violation occurred. That Kellner would testify to the circumstances of the

crash and the observations he made regarding the accident scene should have come

as no surprise. And, as David's counsel candidly admitted, Kellner was never asked at

deposition or otherwise during discovery about the dimensions or the configuration of

the accident scene. This is not a situation where a witness said one thing at deposition,

and then changed his answer at trial. Here, the question was never asked. For a party

to claim unfair surprise, he or she must have exercised reasonable diligence to protect

himself or herself from such surprise by making use of the available discovery devices.

Passino v. Sanburn, 190 So. 2d 61, 63-64 (Fla. 3d DCA 1966); Bowen v. Manuel, 144

So. 2d 341 (Fla. 2d DCA 1962). That did not occur here.

The majority is correct that the Binger opinion provides guidance for analyzing

the trial court's exclusion of testimony that should have been disclosed during

discovery. However, the majority misapplies the Binger factors to this case. Binger

held that the primary consideration for the trial court when confronting a discovery

violation is "a determination as to whether use of the undisclosed witness [or testimony]

will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of

the objecting party, and it is not dependent on the adverse nature of the testimony."

401 So. 2d at 1314 (footnotes omitted).

15

If we assume, as the majority does, that a discovery violation occurred, then

Binger would require the trial judge to determine the procedural, not substantive,

prejudice to the objecting party (although here, the objecting party was the trial court).

The trial court did not do so. It made no inquiry regarding prejudice or David's ability to

cure the prejudice as Binger requires. In my view, the trial court erred when it

concluded that there was a discovery violation, when it failed to determine how David

was prejudiced, and by failing to determine if David could have cured the prejudice.

suspect it would have been easy to have Stokes, or some other representative, go to

the scene of the accident and measure the distance on David's behalf.

There is no doubt that Kellner was primarily, if not exclusively, responsible for

this collision. But depriving him of his main defense, David's alleged comparative

negligence, unfairly tilted the balance against Kellner. I believe a new trial on liability is

warranted.

16