Jared M. Adelman

In a new opinion from the Sixth District Court of Appeal in Crecelius v. Rizzitano, 2026 WL 555031 (Fla. 6th DCA Feb. 27, 2026), the Sixth District held that Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), has been interpreted too broadly by the Florida courts and clarified that a trial court is not required to make an express finding of prejudice before excluding a witness or expert testimony that was disclosed late. Trial courts retain broad discretion to enforce pretrial disclosure deadlines and case management orders, including excluding untimely disclosed witnesses. In Crecelius, the Sixth District examined how Florida courts have interpreted Binger since it was decided. The court explained that Binger addressed a relatively narrow issue involving whether a trial court erred by allowing testimony from an undisclosed expert witness where the opposing party was prejudiced. The Florida Supreme Court emphasized the importance of full disclosure in discovery and recognized that trial courts have discretion to exclude witnesses who are not disclosed in compliance with pretrial orders. At the same time, the court noted that trial courts should consider whether the nondisclosure creates surprise or prejudice when deciding whether to allow such testimony. Over time, district courts expanded Binger beyond its original scope. Many courts interpreted Binger to require trial judges to conduct a prejudice analysis before excluding late-disclosed testimony. Courts also began applying Binger more broadly to disclosure disputes involving fact witnesses, expert witnesses, and other evidence. According to the Sixth District, this interpretation significantly limited trial courts’ ability to enforce pretrial disclosure deadlines and case management orders. The Sixth District rejected that expansion, explaining that the language in Binger discussing prejudice was dicta rather than part of the holding. In the Sixth District’s view, Binger addressed circumstances in which a trial court allowed undisclosed testimony, not situations where a court excluded testimony for violating a pretrial disclosure order. As a result, Binger did not require a trial court to conduct a formal prejudice analysis before excluding untimely disclosed witnesses or expert testimony. The court also identified practical problems caused by the expanded interpretation. Trial judges were often forced to stop proceedings and conduct quick hearings on prejudice whenever late-disclosed evidence was offered. This placed the burden on the surprised party to immediately demonstrate prejudice with little notice, which the court found inconsistent with the purpose of discovery rules designed to prevent trial by ambush. The Sixth District, therefore, clarified that a trial court may exclude untimely disclosed witnesses or expert testimony without first conducting a prejudice analysis or holding a hearing to determine prejudice. Although the dispute in Crecelius involved testimony rather than documentary evidence, the court’s reasoning could potentially extend to the late disclosure of exhibits in future cases. The court certified conflict with several district court decisions that had interpreted Binger differently. While the Florida Supreme Court will have to weigh in on these issues, the Sixth District’s opinion in Crecelius highlights the importance of compliance with case deadlines, case management orders and trial orders.