Cases: Crecelius v. Rizzitano, Wal-Mart Stores v. Wynn
Decided: March 20, 2026

The Sixth District Court of Appeal has just upended forty years of case law related to when a party can use testimony or evidence that was not disclosed by the deadlines established by a case management order. In Crecelius v. Rizzitano, 2026 Fla. App. LEXIS 1606 * | 2026 LX 96675 | 2026 WL 555031 (Fla. 6^th DCA Feb. 28, 2026) and Wal-Mart Stores, E., L.P. v. Wynn, 2026 Fla. App. LEXIS 2182 * | 2026 LX 100268 (Fla. 6^th DCA Mar. 20, 2026), the Sixth DCA expressly certified conflict with all of the post-Binger cases that had held that a trial court abused its discretion in excluding late disclosed evidence when there was no prejudice to the opposing side or the prejudice could be alleviated.

The Sixth District Court of Appeal has recently issued rulings that depart from forty years of established case law regarding the disclosure of testimony and evidence. These decisions emphasize that strict compliance with Case Management Order (CMO) deadlines is now mandatory, as the court has certified conflict with the longstanding "prejudice" standard that previously allowed for more flexibility with late disclosures.

In both cases, the court affirmed a trial court’s decision to exclude testimony or witnesses that were disclosed after the deadline set in a case management order. In Crecelius, the defendant failed to disclose a witness until well after the deadline and only a few weeks before trial. In Wynn, the defense doctor, who was deposed shortly before trial in lieu of appearing live, gave a new or changed opinion from the one he had given in a discovery deposition months before. In both cases, the defense lost the testimony and the jury returned substantial verdicts against them.

These two cases are based on the Sixth District’s departure from longstanding precedent interpreting Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), in which the Florida Supreme Court had held that a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. In Binger, the Supreme Court qualified this conclusion by noting that the court’s discretion “must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party.” Prejudice in this context means the “surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” In other words, the court does not exclude opinions that are adverse to the case, but opinions that were unknown to the party. In the subsequent 40 years since Binger, the lower appellate courts had largely concluded that late-disclosed evidence should be admitted so long as there was no prejudice to the other side – or if the prejudice could be cured. Curing the prejudice usually meant a continuance of the trial.

In Crecelius, a lengthy opinion with multiple concurrences, the Sixth District rejected this interpretation of Binger, asserting that it was based on dictum and was inconsistent with the Supreme Court’s recent emphasis on “strict enforcement” of case management orders. The Sixth District certified conflict with dozens of cases from the other appellate courts.

The key takeaway is that in the Sixth District’s jurisdiction (Counties: Orange, Osceola, Polk, Hardee, Hendry, Highlands, Lee, Charlotte, Collier, Glades) courts are very likely to exclude testimony from late-listed witnesses and opinions that are not timely disclosed. The rule is strict compliance with case management deadlines. Clients must be prepared to incur the cost of retaining experts early in the case or risk losing that evidence at trial. This might justify earlier mediations or cooperation with opponents to make more realistic deadlines. In addition, this means motions to exclude late-disclosed evidence and witnesses should be routinely filed.

Key Takeaways:

• Strict Compliance is Mandatory: In the Sixth District, Case Management Order deadlines are now considered firm "drop-dead" dates. Do not rely on "lack of prejudice" as a reason to admit late evidence.
• Front-Load Expert Discovery: Defendants must retain experts and finalize their opinions early. Any change in an expert's testimony after the disclosure deadline may lead to the total exclusion of that expert at trial.
• Proactive Motion Practice: Defense counsel should routinely file motions to exclude any late-disclosed witnesses or opinions from the plaintiff’s side, as the court is now empowered to strictly enforce these boundaries.
• Strategic Deadline Negotiation: Cooperating with opponents to establish realistic, achievable deadlines at the start of the case is essential to avoid the catastrophic loss of evidence later.

Update from:

• Dorothy DiFiore, Tampa Partner
  

This article is intended for informational purposes only and does not constitute legal advice. Please consult with an attorney to discuss your specific legal situation.