thedemiSeoFtheBinGer analySiSForlatediSCloSure
Trial & litigation Section Chair: JenayE. Iurato – IuratoLawFirm, PL theunderlying messageisclear: Strictlycomplywith casemanagement orderdeadlines.
For decades, a court confronted with a witness or evidence that was not timely disclosed under a pretrial order has applied the analysis established by the Florida Supreme Court in Binger v. King Pest Control, 401 So. 2d 1310( Fla. 1981).
In Binger, the supreme court stated a court may exercise discretion to exclude a witness’ s testimony if the witness was not timely disclosed under a pretrial order and the testimony would be a prejudicial“ surprise in fact” to the objecting party. 401 So. 2d at 1314. The supreme court identified three factors to consider:( 1) the objecting party’ s ability to cure the prejudice or its independent knowledge of the witness;( 2) whether the calling party’ s violation of the pretrial order was intentional or in bad faith; and( 3) the potential disruption of an orderly trial. Id. The supreme court concluded:“ If after considering these factors and any others that are relevant, the trial court concludes that the use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be
modified and the witness allowed to testify.” Id.( emphasis added).
The supreme court’ s recent amendments to the Florida Rules of Civil Procedure, however, called into question the continued viability of the Binger analysis. Rule 1.200 now requires trial courts to enter case management orders with detailed deadlines and Rule 1.200( e)( 1) provides:“ Deadlines in a case management order must be strictly enforced unless changed by court order.” In light of these changes, what discretion does a trial court retain to permit late-disclosed evidence? And does prejudice continue to weigh in the analysis?
Yet the first cut to Binger did not arise from the tension created by the new rule amendments. Instead, in Crecelius v. Rizzitano, Case No. 6D2024-2217( Fla. 6th DCA Feb. 27, 2026), the Sixth District, en banc, concluded that Binger had simply been misinterpreted and misapplied by the other district courts of appeal. It concluded the italicized language quoted above from Binger was“ pure dictum” that was“ not binding on this court or on trial courts.” Id. at * 12.
As a result, the Sixth District did not apply the Binger analysis to review a trial court order excluding a defendant’ s late-disclosed experts. Instead, it reviewed the rules of procedure( prior to the 2025 amendments) to conclude the trial court had authority to enforce its deadline without considering whether the late disclosure caused any prejudice. Id. at * 20-23. The court noted the recent amendments merely put a finer point on its conclusion that case management deadlines can be strictly enforced. Id. at * 22-23.
For a trial practitioner at this point, it matters little whether Binger ever required a prejudice analysis or whether the Binger analysis applied but is now altered by the 2025 rule amendments. The underlying message is clear: Strictly comply with case management order deadlines. A lack of prejudice from a late disclosure may not save you. n
Author: Kristin A. Norse – Kynes, Markman & Felman, P. A.
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