By Jennifer Nairn
In Crecelius v. Rizzitano, No. 6D2024-2217, 2026 WL 555031 (Fla. 6th DCA Feb. 27, 2026), the Sixth District Court of Appeal disagreed with 45-years worth of precedent from Florida courts requiring a showing of prejudice for undisclosed or late disclosed witnesses.
In the years since the Florida Supreme Court announced its decision in Binger v. King Pest Control,401 So. 2d 1310 (Fla. 1981), sister district courts have consistently interpreted Binger to mean that a party is required to show prejudice by their opponent’s failure to disclose a witness. The Crecelius opinion discusses where the court believes the other district courts of appeal have strayed in their interpretation of Binger. The Sixth District certified its decision to be in conflict with 16 other opinions.
There are two aspects of Binger that the Sixth District explained are misinterpreted by its sister districts. The first is that they have treated portions of the Supreme Court’s opinion in Binger as binding precedent when the statements that witnesses should be permitted to testify if the trial court finds that the failure to disclose that witness will not prejudice the other party is actually dicta. The second is that the other district courts of appeal have expanded Binger to include new or changed opinions from an expert witness. These expansions of Binger have thus hampered the ability of trial courts to manage lawsuits and prevent unfair surprises.
The Sixth District’s interpretation of the Binger holding is that if a party fails to disclose a witness by the required deadline, the trial court must consider prejudice to the other party before exercising its discretion to allow the testimony, rather than using prejudice as a metric for excluding the witness.
In the underlying Crecelius dispute, the defendant failed to timely disclose the identity of two experts and the substance of their opinions, citing to “internal office mismanagement.” Plaintiff moved to strike these two experts on the basis that the untimely disclosure precluded their experts from preparing rebuttal testimony which prejudice Plaintiff pursuant to Binger. The trial court granted Plaintiff’s motion to strike these experts. The jury returned a verdict in favor of the Plaintiff. The defendant filed a motion for a new trial citing, inter alia, that the trial court erred in striking the two experts. This appeal followed.
The Sixth District affirmed the exclusion of Defendant’s experts pursuant to two guiding principles from court rules. The first is the prior version of Florida Rule of Civil Procedure 1.200, which empowers courts with the authority to set case management order deadlines, including the disclosure of experts and the substance of their opinions. The Sixth District interpreted this rule strictly, noting that the trial court has the authority to enforce the deadlines in the case management order issued by the trial court.
The second principle is derived from Rule 2.545(a) of the Florida Rules of General Practice and Judicial Administration, which obliges trial judges with the professional obligation to conclude litigation as soon as is justly possible and mandates that trial judges control the progress of the case.
Using these principles, the Sixth District concluded that the trial court was permitted to strictly enforce the expert disclosure deadlines and exclude the experts, without considering whether Plaintiff would have been prejudiced by the introduction of the untimely disclosed expert opinions. The court determined that Binger imposed no such requirement to consider prejudice to the other party before excluding any opinion. And, in the court’s view, to hold otherwise would be inconsistent with the authority of the trial courts provided in the rules.
The 2025 amendment to Florida Rule of Civil Procedure 1.200, while not applicable in Crecelius, imposes an affirmative duty on courts to establish a deadline for the completion of expert discovery and that case management orders must expressly indicate that the deadlines will be strictly enforced. Taken together with the Crecelius decision, litigants must be aware that the standard to exclude untimely disclosed witnesses may not require a showing of prejudice in some jurisdictions.
Jennifer Nairn is a civil litigation attorney with Buchanan Ingersoll & Rooney, PC in Tampa, Florida. Her practice focuses on complex civil litigation matters in state and federal court. She graduated from Rutgers Law School – Camden, magna cum laude, and Order of the Coif.
