Crecelius May End the “Lack of Prejudice” Defense for Late Witness Disclosures in Florida
Crecelius May End the “Lack of Prejudice” Defense for Late Witness Disclosures in Florida
In the 43 years since the Florida Supreme Court’s opinion in Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), Florida trial and appellate courts have regularly required judges to consider whether an opposing party would suffer uncurable prejudice before striking an untimely-disclosed witness.
For trial courts within the jurisdiction of the Sixth District Court of Appeals, this “prejudice” analysis is no longer required as of February 27, 2026. In Crecelius v. Rizzitano, Florida’s Sixth District Court, sitting en banc, addressed what it perceived as a misapplication of Binger, which has frustrated trial courts’ abilities to manage civil lawsuits fairly, without surprise, and in a timely manner, by “effectively neutering pretrial orders.” No. 6D2024-2217, 2026 WL 555031 (Fla. 6th DCA Feb. 27, 2026).
The Crecelius Court, certifying conflict, discussed its view of the misapplication and expansion of Binger and the interplay with the Rules of General Practice and Judicial Administration, as well as the amended Rules of Civil Procedure governing case management.
In Crecelius, the defendant did not timely disclose its experts or the substance of their opinions. Plaintiff moved to strike the untimely disclosure and the trial court found Defendant’s untimeliness egregious, received no excuse for the delay besides “internal office mismanagement” and delay on defendant’s experts’ part. Based upon Binger, Plaintiff argued prejudice because their experts had insufficient time to finalize rebuttal opinions before trial. The trial court granted Plaintiff’s motion to strike, and jury returned a verdict in favor of Plaintiff. The defendant then sought a new trial arguing error in, among other things, excluding defendant’s expert witnesses. The trial court denied the motion, and the defendant appealed.
On appeal, the defendant argued that under Binger, any prejudice from the untimely disclosure could have been cured in the three weeks prior to trial. The Sixth District Court of Appeals addressed this issue as an original issue of first impression before it.
In affirming the trial court’s ruling, the Court looked first to the then-current Florida Rules of Civil Procedure, which gave the trial court the power to set a deadline for disclosing witnesses through Rule 1.200, and found that the power to set a deadline is meaningless without the power to enforce.
The Court next discussed Rule 2.545(a) of the Florida Rules of General Practice and Judicial Administration, which states that “judges … have a professional obligation to conclude litigation as soon as it is reasonably and justly possible to do so” and mandates in subsection (b) that “the trial judge shall take charge of all cases at an early stage in the litigation and shall control the progress of the case thereafter until the case is determined.” The Court opined that the duty to “take charge” of a case and “control the progress of the case” towards resolution includes the power to set and enforce case management deadlines that serve precisely to accomplish that end.
The Sixth DCA further noted that after the Crecelius proceedings, Rule 1.200 was amended (effective January 1, 2024) and now “imposes an affirmative duty on trial courts to enter a case management order which specifies a deadline for ‘completion of expert discovery.’” The rule now also provides that “the case management order must indicate that the deadlines established in the order will be strictly enforced unless changed by court order.” Fla. R. Civ. P. 1.200(d)(3). This, the Court explained, speaks to “a trial court’s authority to set and enforce case management deadlines that was already embodied in Rule 1.200.” 2026 WL 555031 at *8.
On March 20, 2026, the Sixth DCA cited its Crecelius opinion to affirm exclusion of an expert witness’ opinion. Wal-Mart Stores East, L.P. v. Dorothy Wynn, Case No. 6D2023-1940 (Fla. 6th DCA March 20, 2026).
Because the Sixth DCA has made its position clear, and in light of the Florida Supreme Court’s emphasis on case management and the related amendment to Rule 1.200, litigants in other jurisdictions should not assume or expect that Binger will provide relief from the failure to timely and properly disclose experts, witnesses, or other evidence.
