Witness disclosure is a major aspect of civil trial practice. What to do when opposing counsel calls an undisclosed witness? The seminal case is Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981). In short, consistent with Rule 1.200(c) of the Florida Rules of Civil Procedure, “a pretrial order directing the parties to exchange the names of witnesses” means “all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes.” There is no exception for impeachment witnesses.
The trial court has broad discretion to exclude an undisclosed witness, but not unlimited discretion. The primary question is whether allowing the testimony would ambush the opposing party, causing prejudice. Other factors include whether the prejudice is curable, bad faith exclusion, and the disruption of an orderly trial. Tactical nondisclosures are highly disfavored. Nevertheless, the trial court’s word generally goes. This issue is reviewed for abuse of discretion, “and reversal is appropriate only when the affected party can clearly show the abuse resulted in unfair prejudice.”
Improper to exclude witness: The trial court fails to consider prejudice. Gaspar’s Passage, Ltd. Liab. Co. v. RaceTrac Petroleum, Inc., No. 2D17-55, 2018 Fla. App. LEXIS 4542, at *22 (2d DCA Apr. 4, 2018).
Proper to exclude witness: “On the eighth day of trial as the plaintiff’s case was drawing to a close, the defense came forward with an unlisted witness–an employee of one of the defendants–proffering testimony that contradicted a key element of the plaintiff’s case and offering no reason for the failure to list this employee-witness on its witness list as required by the pretrial order.” Southstar Equity, LLC v. Chau, 998 So. 2d 625, 629 (Fla. 2d DCA 2008).