Cedar Hammock Fire Dept. v. Bonami

• Decision Date: 07 May 1996
• Docket Number: No. 94-1681,94-1681
• Citation: 672 So.2d 892
• Parties: 21 Fla. L. Weekly D1108 CEDAR HAMMOCK FIRE DEPARTMENT and Florida League of Cities, Appellants, v. James BONAMI, Appellee.
• Court: Florida District Court of Appeals

Page 892

672 So.2d 892

21 Fla. L. Weekly D1108

CEDAR HAMMOCK FIRE DEPARTMENT and Florida League of Cities, Appellants, v. James BONAMI, Appellee.

No. 94-1681.

District Court of Appeal of Florida First District.

May 7, 1996.

An appeal from Order of the Judge of Compensation Claims. Joseph E. Willis, Judge.

Keith A. Mann of Mann Employers Legal Group, P.A., Sarasota, for Appellants.

Teresa A. Marra of Marra & Kalo, P.A., Sarasota, for Appellee.

ALLEN, Judge.

The employer/servicing agent appeal a workers' compensation order awarding permanent total disability benefits, supplemental benefits, and chiropractic care, while finding entitlement to payment of an attorney's fee and costs. We conclude that there is sufficient evidence to support each of these awards, but that the judge erred in excluding certain evidence.

In their pretrial witness list the employer/servicing agent indicated that a vocational counselor might be called to testify, but they did not identify this individual by name. When the claimant subsequently inquired as to the identity of this witness the employer/servicing agent again maintained that they did not know the identity of this individual, and they did not provide the name of the witness until eight days before the hearing. The employer/servicing agent maintained that they were unaware of the individual's name until that time, but the claimant asserted that this late disclosure was prejudicial. The judge noted that the late disclosure was a violation of local rules, and suggested that the employer/servicing agent should have made a more diligent investigation so as to ascertain the name of the witness. Accepting the claimant's assertion of prejudice, the judge precluded the employer/servicing agent from using this evidence.

The claimant did not describe the manner in which he was prejudiced, other than to say that he was not sure who would be called to testify. However, the claimant's attorney was present when the vocational counselor met with the claimant at the attorney's office, and the employer/servicing agent provided the claimant with a copy of the vocational counselor's report. In the absence of other compelling circumstances, late disclosure which does not result in actual prejudice does not ordinarily warrant the exclusion of evidence. Walters v. Keebler Co., 652 So.2d 976 (Fla. 1st DCA 1995). Such a sanction may be unduly harsh even when there has been a deliberate violation of local rules. Horizon Healthcare v. Murphy, 660 So.2d 1065 (Fla. 1st DCA 1995). The claimant did not establish actual prejudice in the present case, and although Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), indicates that the judge has broad discretion in this area, in these circumstances the exclusion of evidence was an abuse of discretion.

Because the excluded evidence impacts the award of permanent total and supplemental benefits, the appealed order is reversed in this regard. The order is otherwise affirmed, and the case is remanded.

KAHN, J., concurs.

ZEHMER, C.J., dissents with written opinion.

ZEHMER, Chief Judge (dissenting).

I dissent because the majority's decision substitutes this court's judgment on a matter of discretionary fact finding that properly lies with the judge of compensation claims.

The employer and servicing agent's counsel did not give notice of the witnesses that they expected to call within the time prescribed in the pretrial order. Mr. Dertod, a rehabilitation counselor, had met with claimant in his attorney's office on February 8, 1994, at the request of the employer and servicing agent. But claimant's counsel was not made aware until the employer and servicing agent submitted their witness list on February 16, seven days after the deadline for exchanging the witness list, that the employer and servicing agent might potentially call a vocational rehabilitation expert. This notice did not identify Mr. Dertod as a witness. Hearing nothing further, on February 24 claimant's counsel attempted to confirm from opposing counsel whether any vocational rehabilitation expert would be called by appellants, and was told by appellants' counsel that "the simple fact is that these witnesses were not known" at that time. Not until March 1 was notice given by the employer and servicing agent confirming that Mr. Dertod would be called. According to claimant's attorney, this witness's report was not received until March 3.

When claimant's attorney eventually received notice of intention to call Mr. Dertod, claimant's attorney filed a motion to strike this witness for noncompliance with the pretrial order. Claimant's four-page motion alleged facts showing appellants' noncompliance with the order and asserted prejudice based on the short period of time remaining to obtain adequate discovery and preparation as to this witness for the final hearing on March 8, 1994.

At the final hearing the judge first took up claimant's motion to strike the late-filed notice of witnesses. Claimant's attorney recited the events described above, asserted prejudice because the employer and carrier failed to timely provide notice of witnesses, and urged the judge to disallow the use of this expert witness. Claimant's attorney also argued that there was a strong possibility of intentional, bad faith noncompliance with the pretrial order by appellants, and that claimant was prejudiced by appellants' tactics in not disclosing this information because they were not able, in the time remaining before final hearing, to perform sufficient discovery or to obtain sufficient information to counter the opinion testimony that may have been given by this expert witness.

Counsel for the employer and servicing agent responded to the argument of claimant's attorney, stating:

Judge, the--the employer has no objection to the--to the claimant's motion, which is based upon your local rule, which states that a witness list is due no later than 30 days before the final hearing. The rule also states that the list cannot be amended except upon motion and approval of the judge.

(Emphasis added.) Having thus conceded the validity of the grounds for the motion, counsel for the employer and servicing agent then argued that claimant's motion should be denied on three procedural grounds: (1) that claimant failed to give five days' notice of the hearing on this motion to strike as required by rule 4.140, Florida Rules of Workers' Compensation Procedure, although claimant's counsel knew of the violation of the witness list rule several weeks before filing this motion; (2) that claimant's witness list served on February 8 was also one or two days late, so the judge should apply his local rule even-handedly and preclude claimant from calling the witnesses on his list; and (3) that claimant had not shown any prejudice by appellants' failure to comply. Counsel's only explanation for noncompliance with the pretrial order was that he did not determine the name of the vocational rehabilitation counselor to be used as a witness until March (even though Mr. Dertod had met with claimant on February 8 at the request of the employer and servicing agent). There is nothing to indicate that appellants' counsel inquired of his clients or otherwise made efforts to learn the name of this witness before March.

Claimant's counsel reiterated in response, among other things, that Mr. Dertod's report was not received until shortly before this...