Thought Leadership

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 6^th 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 1^st DCA, 2^nd DCA, 3^rd DCA and 4^th DCA.