Metropolitan Dade County v. Sperling, 91-1823

• Decision Date: 12 May 1992
• Docket Number: No. 91-1823,91-1823
• Citation: 599 So.2d 209
• Parties: METROPOLITAN DADE COUNTY, Appellant, v. Abraham SPERLING, Appellee. 599 So.2d 209, 17 Fla. L. Week. D1235
• Court: Florida District Court of Appeals

Page 209

599 So.2d 209

METROPOLITAN DADE COUNTY, Appellant, v. Abraham SPERLING, Appellee.

No. 91-1823.

599 So.2d 209, 17 Fla. L. Week. D1235

District Court of Appeal of Florida Third District.

May 12, 1992.

Rehearing Denied June 23, 1992.

Robert A. Ginsburg, Dade County Atty., and William X. Candela and Eric K. Gressman, Asst. County Attys., for appellant.

Grover Ciment Weinstein Stauber Friedman & Ennis and Marvin Weinstein, Miami Beach, for appellee.

Before HUBBART, FERGUSON and JORGENSON, JJ.

PER CURIAM.

Metropolitan Dade County appeals from a final judgment entered on a jury verdict holding the County liable to Abraham Sperling for damages of $100,000. We affirm.

Eighty-year-old Abraham Sperling fell while riding in a Metro-Dade County bus. Treatment for the injuries he incurred cost over $40,000. Sperling sued Dade County for negligence, claiming that the bus driver proceeded from the bus stop before Sperling had an opportunity to sit down. The trial court initially set the case for jury trial during the two-week period beginning June 25, 1990. The uniform order setting the cause for trial required that a list of all witnesses be provided to opposing counsel no later than forty-five days before the Monday of the trial period. ¹ The order also required that all discovery was to be completed at least fifteen days before the trial period. ²

Following a series of motions, the case was reset for jury trial for the calendar beginning November 12, 1990. The new order setting the cause for jury trial contained the identical language of the first order. Approximately a month before the trial date, the County moved for a continuance, claiming that its one expert would be out of town during the set trial period. The trial court continued the case until the jury calendar of April 29, 1991. The order of continuance specifically stated that "[a]ll pretrial instructions remain in full force and effect."

On April 9, 1991, twenty-five days after the ordered deadline for listing witnesses, Dade County amended its pretrial catalog to include Dr. Charles Kurucz as an expert witness. The following day, Sperling's counsel filed a motion to strike the additional witness based on the uniform order. The County then made an ore tenus motion for continuance, supposedly to provide Sperling an opportunity to depose Dr. Kurucz. The court denied the continuance and reserved ruling on the motion to strike. Dr. Kurucz gave a sworn statement on May 1, 1991, two days after the trial period began and only five days before the actual trial.

At trial, the County made an ore tenus motion to allow Dr. Kurucz to testify. The court denied the County's motion and granted Sperling's earlier motion to strike because of the "obvious prejudice" that would occur by allowing the late-noticed Dr. Kurucz to testify. ³ The jury returned a $200,000 verdict reduced by a finding of 50% comparative negligence on the part of Sperling. This appeal followed.

Dade County argues that the trial court erred in excluding Dr. Kurucz's testimony. We disagree. The Florida Supreme Court has held that "a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order ... [when] use of the undisclosed witness will prejudice the objecting party." Binger v. King Pest Control, 401 So.2d 1310, 1313-1314 (Fla.1981). In this case, the trial court specifically found that Sperling would be prejudiced by the late addition of Dr. Kurucz as a witness and, therefore, correctly excluded his testimony.

In addition, the County claims that any prejudice that might have befallen Sperling could have been cured by deposing Dr. Kurucz prior to trial. Although a deposition might have been possible, Sperling's counsel would not have had adequate time to prepare. ⁴ See Gustafson v. Jensen, 515 So.2d 1298, 1301 (Fla. 3d DCA 1987) ("While a hastily scheduled deposing of the husband's surprise expert may have been possible, the time frame for assimilation and analyzation of refuting testimony and documents was too highly compressed to allow the wife a fair presentation.").

The order in this case specifically excluded testimony of witnesses not listed at least forty-five days before the set trial period. This was the third time that the case was set for trial. ⁵ There was evidently ample opportunity for this witness to have been listed within the ordered time frame. Accordingly, we find that the trial court correctly excluded the testimony of the late noticed witness. ⁶ See ...