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Legal Updates for Florida Coverage and Property Litigation

Sixth DCA Rejects Prejudice Requirement for Excluding Late‑Disclosed Expert Opinions, Certifies Conflict with Sixteen DCAs

Legal Update for Florida Coverage & Property Litigation – June 2026

June 11, 2026

by Danielle N. Robinson

Michael John Crecelius v. Mildred Rizzitano; (February 27, 2026)

Crecelius involved an appeal by a defendant of the trial court’s exclusion of its late disclosed experts at trial. The defendant was involved in a vehicle accident, in which he made a left turn into an intersection and collided with the plaintiff, killing him. Plaintiff’s estate sued for negligence.

The defendant disclosed two experts after the deadline imposed by the court. The disclosure described each expert’s anticipated scope of work, but did not contain their respective substantive opinions. Approximately three-weeks before trial, both expert reports were provided. The plaintiff moved to strike the experts’ testimony, arguing it was prejudiced because their expert had insufficient time to prepare rebuttal testimony before trial. The defendant argued the late disclosures were due to the experts’ not diligently providing reports and opinions to the defendant and there was no bad faith. The trial court granted the motion to strike. The plaintiff obtained a verdict in its favor, finding the defendant 100% at fault, to which the defendant appealed.

The defendant argued on appeal that the experts’ opinions were received three weeks before trial, so any prejudice to the plaintiff was insufficient to warrant exclusion of his experts, and any prejudice could have been cured by a brief continuance. The defendant argued that he suffered extreme prejudice, as striking his witnesses left the plaintiff’s experts uncontradicted.

In reaching its decision in Crecelius, the 6th DCA addressed the opinion of the Florida Supreme Court in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) at length, which addressed late disclosed experts. The Crecelius court found that its sister courts have consistently misapplied the Binger opinion, which “has severely ambered the ability of trial judges to effectively manage civil lawsuits and . . . prevent surprises at trial and to assist arriving at the truth.” The court wrote, “if the trial court finds that the undisclosed witness will not prejudice the other party after considering the factors listed in Binger, then the witness should be allowed to testify – as binding holding,” highlighting that its sister courts improperly expanded the Binger opinion to apply to undisclosed opinions of disclosed experts.

The court criticized this approach, finding it meant that a trial judge could not enforce pretrial orders and exclude undisclosed testimony without first finding that the opposing party was prejudiced. The court noted that approach puts the burden on the opposing party to make an adequate showing of prejudice, potentially in the middle of trial and with no notice, which is inappropriate and incentivizes non-disclosure. The court explained that completing a last-minute deposition prior to trial to cure any prejudice also places a burden on the non-offending party, and even offering a continuance, puts that party in a position of having to choose between inadequate time to prepare or delay the trial, none of which is proper.

The Crecelius court found that “Binger concerned undisclosed witness testimony that was improperly allowed and should have been excluded due to prejudice to other party. Binger did not concern undisclosed testimony that was improperly excluded or what the trial court should have considered before excluding undisclosed testimony.” Additionally, the Crecelius court found the statement in the Binger opinion “about what a trial court considers before excluding an undisclosed witness’s testimony was pure dictum” and that nothing in that statement led to the judgment, and thus, was not binding on it or on trial courts. The court noted that Binger expressly stated trial courts can issue pretrial orders that prohibit the introduction of undisclosed opinions, and those orders do not derogate from its decision. Trial courts are permitted to strictly enforce pretrial orders and to require them to make a finding of prejudice before doing so makes the ability to enforce court orders meaningless.

The court ultimately affirmed the trial court’s order, striking the defendant’s witnesses, finding that Binger imposes no requirement that a trial court find that the opposing party would be prejudiced by the introduction of an undisclosed or late-disclosed expert opinion before excluding the opinion and certified conflict with 16 decisions out of the 1st DCA, 2nd DCA, 3rd DCA and 4th DCA.

Firm Highlights

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.