The Sixth DCA issued the attached opinion certifying conflict with the Supreme Court Binger opinion, which requires a finding of prejudice to exclude an undisclosed or late disclosed trial witness. If the Supreme Court of Florida agrees that the Binger opinion has been interpreted too broadly, it will put the onus on servicers to ensure they have timely disclosed the trial witness pursuant to the Court’s Non-jury Trial Order or Case Management Order throughout the state of Florida. Going forward, in the Sixth District Court of Appeals, which includes Orange, Osceola, Hardee, Highlands, Polk, Charlotte, Collier, Glades, Hendry, and Lee County, a late change or assignment of a witness may lead to an involuntary dismissal if the opposing side objects, even if they didn’t depose or conduct discovery, as the Sixth DCA case now says they can be excluded from trial.
In conclusion, the Sixth DCA held: “While our sister courts have held that Binger requires a trial court to find that the opposing party would be prejudiced by the introduction of an undisclosed or late-disclosed expert opinion before excluding the opinion, we find that Binger imposes no such requirement for the reasons stated above. We decline to adopt such a requirement because to do so would be inconsistent with the Florida Rules of Civil Procedure. Pursuant to Article V, Section 3(b)(4) of the Florida Constitution, we certify this decision to be in direct conflict with the following decisions of our sister courts holding that Binger requires a trial court to find that the opposing party would be prejudiced by the introduction of testimony of an undisclosed or late-disclosed witness, or by the introduction of a late-disclosed expert opinion, before excluding the witness's testimony.” Crecelius v. Rizzitano, No. 6D2024-2217, 2026 WL 555031, at *9 (Fla. 6th DCA Feb. 27, 2026).