MICHAEL JOHN CRECELIUS v. MILDRED RIZZITANO, as Personal Representative of the ESTATE OF ROBERT ANTHONY ALVES, JR.

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 6D2024-2217

Lower Tribunal No. 2022-CA-001430

_____________________________

MICHAEL JOHN CRECELIUS,

Appellant/Cross-Appellee,

v.

MILDRED RIZZITANO, as Personal Representative of the ESTATE OF ROBERT

ANTHONY ALVES, JR., deceased,

Appellee/Cross-Appellant.

_____________________________

Appeal from the Circuit Court for Lee County.

Keith R. Kyle, Judge.

February 27, 2026

EN BANC

MIZE, J.

The Florida Supreme Court issued its decision in Binger v. King Pest Control

in 1981. 401 So. 2d 1310 (Fla. 1981). Since Binger was decided, our fellow district

courts have misapplied the opinion in a manner that has severely hampered the

ability of trial judges to effectively manage civil lawsuits and accomplish the

primary goals of our civil discovery rules – to prevent surprises at trial and to assist

in arriving at the truth. This opinion explains where our sister courts went wrong on

Binger.

I. Binger and its Progeny

(a) The Binger opinion

The plaintiffs in Binger failed to disclose an expert witness prior to trial as

required by a pretrial order. 401 So. 2d at 1311. Specifically, the pretrial order at

issue in Binger required each party to disclose its witness list at least twenty days

before the trial. Id. Both parties served witness lists by the required deadline. Id.

The plaintiffs listed their primary witnesses by name but also “advised that they

would call to testify ‘any and all necessary’ impeachment or rebuttal witnesses.” Id.

Over a month before the trial, and before the witness disclosure deadline, the

defendant filed an amended witness list identifying an accident reconstruction expert

that had not been previously disclosed. Id. The plaintiffs took the expert’s deposition

four days before the trial but did not disclose any counter-expert to the defendant.

Id. After the defendant’s expert testified at trial, the plaintiffs sought to introduce

their own previously undisclosed expert to impeach the defendant’s expert. Id. Over

the defendant’s objection, the trial court allowed the plaintiffs to introduce testimony

from their previously undisclosed expert. Id.

After the jury returned a verdict for the plaintiffs, the defendant successfully

appealed to the Fourth District Court of Appeal and obtained a reversal of the

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judgment and a remand for a new trial. Id. The plaintiffs appealed to the Florida

Supreme Court. The plaintiffs argued to the Supreme Court that the trial court was

correct to allow their undisclosed witness to testify because impeachment witnesses

were not required to be disclosed prior to trial. Id. at 1311-12. The defendant argued

that the rule permitting nondisclosure of impeachment witnesses only applied to

“situations in which the need for an impeachment witness is totally unforeseeable

and arises from matters which come out for the first time during trial.” Id. at 1312.

In beginning its opinion, the Florida Supreme Court noted that there then

existed a conflict among the district courts of appeal “regarding the effect of a

pretrial failure to disclose the names of witnesses,” and that the district courts had

taken four approaches. Id. at 1311, 1312. Some district court cases held “that a

witness need not be disclosed if he is an ‘impeachment’ witness.” Id. at 1312. At

least one district court opinion held that “subject to the trial judge’s discretion, a

‘rebuttal’ witness need not be disclosed prior to trial.” Id. “Yet another [district

court] case suggest[ed] that a witness need not be disclosed if he will respond to any

new or surprise testimony brought out at trial.” Id. The Florida Supreme Court

concluded that none of these approaches was “adequate to furnish practical rules

which can be used by the Bench and Bar to resolve this thorny problem in the midst

of a trial.” Id. at 1312-13 (quoting King Pest Control v. Binger, 379 So. 2d 660, 662

(Fla. 4th DCA 1980)). The Court endorsed the fourth approach it identified in the

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case law, which was to “place[] all problems regarding the testimony of undisclosed

witnesses within the broad discretion of the trial judge” thereby vesting “in the trial

judge the interpretation and enforcement of any pretrial order mandating witness

disclosure, and limit[ing] reviewing courts to reversals only in cases of a clear

showing of abuse prejudicial to the affected party.” Binger, 401 So. 2d at 1313.

The Court found that its chosen approach was consistent with “the general

policy of full and open disclosure” enshrined in Florida’s discovery rules and that it

would best further the goals of those rules, which the Court stated were “to eliminate

surprise, to encourage settlement, and to assist in arriving at the truth.” Id. (quoting

Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. 4th DCA 1975) (Downey, J.,

concurring), cert. denied, 314 So. 2d 590 (Fla. 1975)). Consistent with these goals,

the Court held “that a pretrial order directing the parties to exchange the names of

witnesses requires a listing or notification of all witnesses that the parties reasonably

foresee will be called to testify, whether for substantive, corroborative, impeachment

or rebuttal purposes.” Binger, 401 So. 2d at 1313. The Court specifically rejected

any distinction between impeachment witnesses, including expert impeachment

witnesses, and other types of witnesses, and the Court expressly disapproved of cases

that had drawn such a distinction. Id. The Court went on to state:

It follows, of course, that a trial court can properly exclude the

testimony of a witness whose name has not been disclosed in

accordance with a pretrial order. The discretion to do so must not be

exercised blindly, however, and should be guided largely by a

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determination as to whether use of the undisclosed witness will

prejudice the objecting party. Prejudice in this sense refers to the

surprise in fact of the objecting party, and it is not dependent on the

adverse nature of the testimony. Other factors which may enter into the

trial court’s exercise of discretion are: (i) the objecting party’s ability

to cure the prejudice or, similarly, his independent knowledge of the

existence of the witness; (ii) the calling party’s possible intentional, or

bad faith, noncompliance with the pretrial order; and (iii) the possible

disruption of the orderly and efficient trial of the case (or other cases).

If after considering these factors, and any others that are relevant, the

trial court concludes that use of the undisclosed witness will not

substantially endanger the fairness of the proceeding, the pretrial order

mandating disclosure should be modified and the witness should be

allowed to testify.

Id. at 1313-14. While the above paragraph has been quoted repeatedly by our sister

courts, the Court did not stop there. The Court continued:

We cannot talk about pretrial discovery without mentioning local

pretrial practices. We have intentionally left room for the operation of

local rules and customs within the broad parameters of our decision.

Local customs regarding pretrial disclosure of witnesses vary

throughout the circuits in Florida, and these variations can and should

continue. For example, in some circuits the pretrial disclosure order not

only directs that witnesses’ names be exchanged, but expressly prevents

the testimony of any witness not identified within a certain period of

time. In other circuits, it is common for the order to exempt by category

certain types of witnesses from being listed. Another local practice

requires that counsel for each party demand witnesses’ names before a

court order is entered or in lieu of a court-directed exchange of names.

These local variations in discovery practice within the circuits of

Florida in no way derogate from our decision, and we leave their

interpretation and application, within the stated goals of discovery, to

the presiding trial judge in each case.

Id. at 1314. As to the parties in Binger itself, the Florida Supreme Court found that

the plaintiffs should have disclosed their expert witness as required by the trial

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court’s pretrial order and that the defendant was prejudiced by their failure to do so.

Id. at 1314-15. Because the defendant was prejudiced by the plaintiffs’ failure to

disclose their expert witness, the trial court erred by allowing the witness to testify.

Id. The Florida Supreme Court affirmed the decision of the Fourth District

overturning the judgment and granting the defendant a new trial. Id.

(b) The Binger expansion

Since the Florida Supreme Court decided Binger, our sister courts have done

two things. First, they have treated the Supreme Court’s statement – that if the trial

court finds that the undisclosed witness will not prejudice the other party after

considering the factors listed in Binger, then the witness should be allowed to testify

– as a binding holding. See, e.g., Allstate Prop. & Cas. Ins. v. Lewis, 14 So. 3d 1230,

1234 (Fla. 1st DCA 2009) (“The supreme court’s opinion in Binger is clear that

testimony should be excluded only after the trial court determines it is prejudicial to

the opposing party.”); State Farm Mut. Auto. Ins. v. Thorne, 110 So. 3d 66, 71 (Fla.

2d DCA 2013) (“A trial court has discretion to exclude testimony from a witness not

disclosed pursuant to a pretrial order. But Binger v. King Pest Control, 401 So. 2d

1310, 1314 (Fla. 1981), requires a finding of such prejudice before discretion may

be exercised.”); Gaspar’s Passage, LLC v. RaceTrac Petroleum, Inc., 243 So. 3d

492, 500 (Fla. 2d DCA 2018) (“The trial court also erred when it refused to permit

Gaspar to add additional witnesses which were crucial to its defense without

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conducting a required prejudice analysis.”); Heritage Prop. & Cas. Ins. v. Killmeyer,

382 So. 3d 708, 712 (Fla. 4th DCA 2024) (“As such, it is incumbent upon the trial

court to analyze the Binger factors before exercising its discretion to admit or

exclude late-disclosed exhibits or witness testimony.” (quoting Montero v. Corzo,

320 So. 3d 976, 980 (Fla. 3d DCA 2021) (internal alterations omitted))); Moore v.

Gillett, 96 So. 3d 933, 943 (Fla. 2d DCA 2012) (“Under Binger, the test for exclusion

of evidence for non-disclosure during pretrial discovery is whether the opposing

party was prejudiced in his preparations for trial.” (quoting Gouveia v. Phillips, 823

So. 2d 215, 222 (Fla. 4th DCA 2002) (internal quotations omitted))).

Second, they have expanded Binger from governing undisclosed witnesses to

also governing changes in the testimony of disclosed witnesses, including new or

changed opinions from an expert witness. 1 See, e.g., Gurin Gold, LLC v. Dixon, 277

So. 3d 600, 603 (Fla. 4th DCA 2019) (“The Binger rule has been extended from

undisclosed witnesses to disclosed witnesses who offer previously undisclosed

testimony.”); Killmeyer, 382 So. 3d at 712 (“Thus, the principles of Binger apply

not only to the listing of witnesses, but also changes to expert testimony and listing

1

While not at issue in this case, our sister courts have also expanded Binger

to govern undisclosed and late-disclosed exhibits, in addition to witnesses. See, e.g.,

Heritage Prop., 382 So. 3d at 712; Montero, 320 So. 3d at 980; Miller v. Conney,

413 So. 3d 306, 309 (Fla. 1st DCA 2025); Callari v. Winkeljohn, 329 So. 3d 795,

797 (Fla. 3d DCA 2021); Bank of N.Y. Mellon v. Burgiel, 248 So. 3d 237, 239 n.3

(Fla. 5th DCA 2018).

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of exhibits.”); Dep’t of HRS v. J.B. By & Through Spivak, 675 So. 2d 241, 244 (Fla.

4th DCA 1996) (“Although Binger dealt with the failure to disclose a witness, its

principles have been applied where the presentation of a changed opinion is

tantamount to permitting an undisclosed adverse witness to testify.”); Drs. Co. v.

Plummer, 210 So. 3d 711, 718 (Fla. 5th DCA 2017) (“The Binger analysis has

subsequently been applied to cases where an expert changes his or her opinion or

gives a new opinion, which results in surprise and prejudice to the opposing party.”);

Grau v. Branham, 626 So. 2d 1059, 1061 (Fla. 4th DCA 1993) (“Binger dealt with

the failure to disclose a witness, although its teachings have been applied where the

presentation of a changed opinion is tantamount to permitting an undisclosed

adverse witness to testify.”); Moore, 96 So. 3d at 943 (“The Binger analysis should

be applied where a medical expert changes his or her opinion, resulting in surprise

and prejudice to the opposing party and necessitating a new trial.” (quoting Lewis,

14 So. 3d at 1234)).

(c) The detrimental effect of the Binger expansion

Simply put, the combination of these two expansions of Binger have made it

extremely difficult for trial courts to enforce their pretrial orders in order to

effectively manage civil lawsuits and prevent trial by surprise. Under Binger as

interpreted by our sister courts, anytime a party fails to disclose a witness or a change

in a witness’s testimony by the deadline set forth in a pretrial order, the trial judge

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cannot enforce the pretrial order and exclude the undisclosed testimony without first

finding that the opposing party was prejudiced by the failure to disclose. Thus, if an

undisclosed witness or undisclosed testimony is offered in the middle of a trial or

other evidentiary proceeding, the trial judge must interrupt the proceeding to make

a prejudice determination. In such an instance, if the party that did not fail to comply

with the pretrial order cannot make an adequate showing of prejudice, potentially in

a very short discussion during trial and with little or no notice that the party would

have to make that showing (since the non-disclosure is, by definition, a surprise),

then the trial judge must allow the undisclosed testimony notwithstanding that the

testimony was not disclosed by the deadline set forth in the pretrial order. Surprising

a party with new testimony in the middle of trial, and then forcing the surprised party

to show prejudice with a very short period of time to argue the issue and no notice

that it would be argued, is no way to run a trial and is certainly not consistent with

the goals of the discovery rules. Moreover, because the failure to disclose a new

witness or new testimony places the opposing party in the difficult position of

needing to establish prejudice in a brief argument with little or no notice, this

procedure in fact creates a significant incentive for parties not to disclose testimony.

While non-disclosure may result in the testimony being excluded, the nature of the

requirement for the trial court to find prejudice before excluding the testimony

means that the testimony will often ultimately be admitted with the added benefit of

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the other party being surprised by the testimony and unable to adequately prepare to

counter the testimony – or at least unable to prepare to the same extent the party

would have prepared if the testimony had been disclosed by the disclosure deadline

in the pretrial order.

Untimely disclosed witnesses or testimony are, in some ways, more disruptive

when an untimely disclosure is made not during trial but within the last few days or

weeks before the trial. Having sufficient time and the ability to take a deposition of

the previously undisclosed witness or concerning the previously undisclosed

testimony may, depending on the circumstances, weigh against a finding of

prejudice. However, the nature of modern litigation is such that the parties may have

been preparing their respective cases for months or years. The new witness or

testimony may have affected all of that preparation. While a late deposition may

theoretically, sometimes, eliminate the amount of unfair prejudice sufficient to

warrant exclusion, the ability to take a deposition in the days before trial is simply

not a substitute for a timely disclosure as required by a pretrial order – which may

have set the deadline weeks or months earlier. Another very common problem is

created if the trial court determines that the only way to ameliorate the prejudice is

to allow the party affected by the non-disclosure a continuance – now the party that

did not fail to comply with the pretrial order must choose between inadequate time

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to prepare to deal with undisclosed testimony or a delay of their trial that, given

modern trial dockets, could be months.

There is a reason that trial courts issue pretrial orders with disclosure deadlines

– it allows trial courts to manage civil lawsuits to ensure that they are fair, lack

surprises, and are completed in a timely manner. Binger, as it has been applied by

our sister courts, frustrates these important goals by effectively neutering pretrial

orders.

(d) The Binger holding

Our sister courts’ expansion of Binger is exactly that – an expansion of Binger

beyond its holding. Binger did not require either of the above-described expansions.

The holding of a case “consists of those propositions along the chosen decisional

path or paths of reasoning that (1) are actually decided, (2) are based upon the facts

of the case, and (3) lead to the judgment.” Pedroza v. State, 291 So. 3d 541, 547

(Fla. 2020) (quoting State v. Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005)

(Canady, J., specially concurring)). “Any statement of law in a judicial opinion that

is not a holding is dictum.” Pedroza, 291 So. 3d at 547. Dicta is without force as

precedent. Johnson v. State, 397 So. 3d 626, 641 n.9 (Fla. 2024) (citing State ex rel.

Biscayne Kennel Club v. Bd. of Bus. Regul. of Dep’t of Bus. Regul. of State, 276 So.

2d 823, 826 (Fla. 1973)). While we are bound to follow all holdings of the Florida

Supreme Court, we are not bound by dicta contained in the Supreme Court’s

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opinions. Regala v. McDonald, 397 So. 3d 742, 752 (Fla. 6th DCA 2024) (citing

Churchill v. DBI Servs., LLC, 361 So. 3d 896, 904 (Fla. 1st DCA 2023) (“We are

not bound by dicta, only holdings.”)).

Applying the framework set forth in Pedroza, the Supreme Court’s statement

in Binger – that if the trial court finds that the undisclosed witness will not prejudice

the other party after considering the factors listed in Binger, then the witness should

be allowed to testify – was dictum. The facts of Binger were that the trial court

allowed the plaintiffs to introduce testimony from a witness that the plaintiffs failed

to disclose by the deadline set forth in the pretrial order. The Florida Supreme Court

found that the defendant was prejudiced by the testimony of the undisclosed witness.

The issue actually decided in Binger – based upon its facts – was that the trial court

should not have permitted the plaintiffs to introduce the undisclosed witness’s

testimony where the defendant would suffer prejudice from the undisclosed

witness’s testimony.

In sum, Binger concerned undisclosed witness testimony that was improperly

allowed and should have been excluded due to prejudice to the other party. Binger

did not concern undisclosed testimony that was improperly excluded or what the

trial court should have considered before excluding undisclosed testimony. Thus,

per Pedroza, the holding of Binger is that where a party fails to disclose a witness

by the deadline set forth in a pretrial order, the trial court must consider prejudice to

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the other party before exercising discretion to allow the testimony. The Supreme

Court’s statement about what a trial court should consider before excluding an

undisclosed witness’s testimony was pure dictum. Nothing about this statement led

to the judgment in Binger and it is, therefore, not binding on this court or on trial

courts. 2

Moreover, turning this dictum into a holding ignores other dicta in Binger. As

noted above, the Supreme Court stated in Binger:

We have intentionally left room for the operation of local rules and

customs within the broad parameters of our decision. Local customs

regarding pretrial disclosure of witnesses vary throughout the circuits

in Florida, and these variations can and should continue. For

example, in some circuits the pretrial disclosure order not only directs

that witnesses’ names be exchanged, but expressly prevents the

testimony of any witness not identified within a certain period of time.

In other circuits, it is common for the order to exempt by category

certain types of witnesses from being listed. Another local practice

requires that counsel for each party demand witnesses’ names before a

court order is entered or in lieu of a court-directed exchange of names.

These local variations in discovery practice within the circuits of

Florida in no way derogate from our decision, and we leave their

interpretation and application, within the stated goals of discovery, to

the presiding trial judge in each case.

401 So. 2d at 1314 (emphasis added). Thus, the Florida Supreme Court expressly

stated in Binger that trial courts can issue pretrial orders that prohibit the introduction

of testimony from undisclosed witnesses, that such orders “in no way derogate from”

2

Judge Gannam’s and Judge Pratt’s well-reasoned concurrences further

explain why the Florida Supreme Court’s statement in Binger about what a trial court

should consider before excluding an undisclosed witness’s testimony was dictum.

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the Binger decision, and that these orders, among other local case management

practices, “can and should continue.” It cannot be the holding of Binger that pretrial

orders prohibiting the introduction of testimony of undisclosed witnesses cannot be

strictly enforced when Binger explicitly states that such orders can be enforced.

II. The Instant Case

(a) The proceedings below

On the evening of the incident that gave rise to the proceedings below,

Appellant, Michael John Crecelius (“Defendant”), was driving home with his wife

in the passenger seat of his SUV when he made a left turn into an intersection and

collided with a motorcycle rider, Robert Anthony Alves, Jr. (“Decedent”). Alves

died in the collision, and the representative of his estate (“Plaintiff”) subsequently

sued Defendant for negligence on behalf of the estate. The parties stipulated in the

proceedings below that at the time of the crash, Defendant had a blood alcohol level

between 0.097 and 0.145 g/100 mL, and Decedent had a blood alcohol level of 0.128

g/100 mL.

On December 29, 2022, the trial court entered a case management order

requiring Defendant to disclose his expert witnesses and their opinions by May 1,

2023. Defendant did not serve any expert disclosures by that deadline. On

September 19, 2023, after the case was consolidated with a related case against

another defendant, the trial court entered an amended case management order that

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required Defendant to disclose his experts and their opinions by February 10, 2024.

By agreement of the parties, this deadline was subsequently extended to March 18,

2024.3

On April 10, 2024, Defendant filed his expert witness list, which disclosed the

names of two expert witnesses, an accident reconstruction expert named Dr. Martin

Garcia, and a human factors expert named Dr. Justin Morgan. The disclosure

described each expert’s anticipated scope of work, but it did not contain the experts’

substantive opinions. On April 25, 2024, Plaintiff served Defendant with two sets

of interrogatories and two sets of requests to produce as part of expert witness

discovery. On May 15, 2024, Plaintiff filed a motion to strike both defense experts

on the ground that the names of the experts were disclosed after the expert disclosure

deadline, and the experts’ opinions still had not been provided. Defendant filed a

response which explained that the expert witness list had been filed late because of

internal office mismanagement by Defendant’s counsel, and the opinions had not yet

been provided because the experts had not given the opinions to Defendant’s counsel

despite Defendant’s counsel’s requests for them to do so. Defendant also argued

3

Despite the trial court’s amended case management order stating that any

changes to the order had to be “approved by the Court,” nothing in the record

indicates that the parties ever sought the trial court’s approval for this extension of

Defendant’s expert disclosure deadline. However, neither party argued below or on

appeal that the agreed upon extension was not valid.

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that striking Defendant’s experts would prejudice him by preventing him from

presenting evidence on his comparative negligence defense.

Defendant finally provided Plaintiff with Dr. Garcia’s expert report on May

29, 2024, and Dr. Morgan’s expert report on May 31, 2025. Dr. Garcia’s report

made the following findings: (1) at the time of the accident, Decedent’s motorcycle

was approaching the subject intersection going above 70 mph in a 50 mph zone; (2)

left-turning drivers often do not see approaching motorcycles, which was

exacerbated by the nighttime conditions and the motorcycle’s excessive speed; (3)

the greatest risk of a motorcycle accident is when a motorcycle is approaching an

intersection with a left-turning vehicle; and (4) had Decedent been attentive and

driving his motorcycle at a reasonable speed, the accident would not have occurred.

Dr. Morgan’s report made the following findings: (1) as Defendant began to

turn left, Decedent’s motorcycle was not in a position where its time of arrival could

be appreciated; (2) the average person in Decedent’s position would be expected to

brake approximately 1.2-1.6 seconds after Defendant began to turn; (3) the speed of

Decedent’s motorcycle increased the likelihood of drivers not detecting its pending

arrival and significantly increased the risk of collision.

On June 3, 2024, fifteen days before the trial was scheduled to begin on June

18, 2024, the trial court held a hearing on Plaintiff’s motion to strike Defendant’s

experts. Plaintiff’s counsel argued that since they had only received Dr. Garcia’s

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and Dr. Morgan’s opinions on May 29 and 31, respectively, they had insufficient

time to prepare rebuttal testimony before trial. This assertion relied in part on

Plaintiff’s own expert, who told counsel that he could offer a preliminary summary

of his rebuttal opinions but could not, from a mathematical and accident

reconstruction modeling standpoint, have rebuttal opinions finalized by the time of

the trial. Plaintiff argued that, for this reason, allowing Defendant to use his untimely

disclosed expert opinions at trial would prejudice Plaintiff.

In response, Defendant’s counsel admitted that Defendant’s expert disclosures

were disclosed late, and that the late disclosure was prejudicial to the Plaintiff.

Defendant’s counsel attributed the late disclosure of the experts’ names to an

oversight in their office and asserted that the delay in disclosing the experts’ opinions

was due to the experts not diligently providing their reports and opinions to

Defendant’s counsel despite counsel requesting that they do so. 4

The trial court concluded that Defendant’s reasons for the late disclosure did

not excuse the untimeliness, and that the circumstances of Defendant’s

noncompliance with expert disclosure deadlines were egregious. The trial court

pointed out that the original expert disclosure deadline was approximately a year

earlier in May 2023, and that the deadline had only been extended because the case

4

There is some indication in the record that the experts believed the delay in

preparing their opinions was due to lack of proper communication from Defendant’s

counsel.

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was consolidated with a related case. Even under the amended case management

order that the trial court entered for the consolidated cases, the deadline to disclose

expert opinions was more than three months earlier, in February 2024. The trial

court also observed that the case had been pending for more than two years and

needed to be resolved. The trial court concluded that Plaintiff would suffer prejudice

if Defendant were permitted to call the experts at trial and granted Plaintiff’s motion

to strike. 5

The trial began as scheduled on June 18, 2024. Defendant’s theory at trial

was that Decedent was speeding and that is why Defendant did not have sufficient

time to complete his left-hand turn before the parties’ vehicles collided. Plaintiff’s

theory was that Decedent was not speeding, or at most was going a few miles per

hour over the speed limit, and that Defendant’s poor choice to accelerate his vehicle

in the seconds before the crash instead of braking is what caused the crash.

During the trial, Plaintiff presented the testimony of Corporal John Robert

Benton of the Florida Highway Patrol, who calculated the speed of Decedent’s

motorcycle to be 46-58 mph before Decedent began braking. The speed limit in

Decedent’s lane of traffic was 50 mph. Plaintiff also presented the testimony of

5

At the beginning of the hearing, the trial court had also indicated that it did

not believe granting a continuance was appropriate, noting that the case was over

two years old and “the fact that someone may have hired experts that are being

difficult and won’t give their opinions isn’t a basis for continuance of the trial.”

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Roland Hoover, an accident reconstruction expert. He testified, among other things,

that: (1) Decedent’s speed was 46.3 to 57.3 mph; (2) Decedent operated his

motorcycle with more than a reasonable amount of care; and (3) according to his

calculations, Decedent noticed Defendant’s vehicle and responded by braking within

1.3 seconds, which was 76% faster than most other drivers would have responded.

Mr. Hoover further testified that Defendant did not stop before turning left, but rather

slowed to 15 mph. He also calculated a gap of 3.8 to 4.07 seconds between the

vehicles when Defendant began turning, and he testified that 69% of drivers would

not have tried to turn with a gap this small. He believed Defendant had several

options, including stopping or rejoining the through lanes of traffic, but continuing

the turn was the worst option.

The jury returned a verdict in favor of Plaintiff, finding Defendant to be 100%

at fault, and awarding Plaintiff $8.25 million in damages. Defendant filed a motion

for new trial which argued, among other things, that the trial court erred by striking

Defendant’s expert witnesses. The trial court denied the motion, and Defendant

timely filed this appeal. 6

6

Plaintiff filed a notice of cross-appeal. However, Plaintiff’s Answer Brief

did not include any issues presented in the cross-appeal. Accordingly, the cross-

appeal is dismissed. See Fla. R. App. P. 9.210(c).

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(b) Analysis

i. Defendant’s argument

On appeal, Defendant argues, in keeping with his argument below, that under

the test set forth in Binger and cases from our sister courts applying Binger, the trial

court erred in striking Defendant’s experts. Specifically, Defendant argues that

because Plaintiff received Defendant’s expert opinions nearly three weeks before the

trial, any prejudice to Plaintiff was not sufficient to warrant exclusion of Defendant’s

experts and, moreover, the prejudice could have been cured prior to trial or with a

brief continuance. Defendant argues that in comparison to the minimal and curable

prejudice to Plaintiff from Defendant’s late disclosure, Defendant suffered extreme

prejudice as a result of the trial court striking his only two experts, which left

Plaintiff’s experts essentially uncontradicted. Defendant argues that given this

balance of prejudice and the lack of any bad faith by Defendant, the trial court abused

its discretion by striking Defendant’s experts.

ii. Authority governing exclusion of late-disclosed expert opinions

As noted above, Binger’s holding concerns what a trial judge must consider

before allowing an undisclosed witness; it does not concern what a trial judge must

consider, if anything, before excluding a late-disclosed witness or a late-disclosed

opinion from an expert witness. In the absence of a binding holding from the Florida

Supreme Court, we decide this issue from first principles. See CED Cap. Holdings

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2000 EB, LLC v. CTCW-Berkshire Club, LLC, 363 So. 3d 192, 195 (Fla. 6th DCA

2023).

Simply put, the rules promulgated by the Florida Supreme Court give trial

judges the power and duty to set and enforce deadlines, including deadlines

concerning disclosure of expert witnesses and expert opinions. The version of

Florida Rule of Civil Procedure 1.200 in effect at the time of the proceedings below

stated that at a case management conference, “the court may . . . schedule disclosure

of expert witnesses and the discovery of facts known and opinions held by such

experts.” Fla. R. Civ. P. 1.200(a)(8) (2024). The power to set a deadline to disclose

expert witnesses and opinions includes the power to enforce the deadline – otherwise

the power is meaningless and there is really no deadline at all.

Further, Rule 2.545(a) of the Florida Rules of General Practice and Judicial

Administration states that “[j]udges . . . have a professional obligation to conclude

litigation as soon as it is reasonably and justly possible to do so.” To that end, Rule

2.545(b) mandates that “[t]he 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 duty to “take charge” of a case and “control the progress

of the case” in order to conclude the case as soon as it is reasonably and justly

possible to do includes the power to set and enforce case management deadlines that

serve precisely to accomplish that end.

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After the proceedings below concluded, the Florida Supreme Court amended

Florida Rule of Civil Procedure 1.200 to make a trial judge’s authority to enforce

case management deadlines even more explicit. The new version of Rule 1.200,

which became effective January 1, 2025, continues to grant trial courts explicit

authority and in fact now imposes an affirmative duty on trial courts to enter a case

management order which specifies a deadline for “completion of expert discovery.”

Fla. R. Civ. P. 1.200(d)(2)(E) (2025). The rule now also provides that “[t]he 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) (2025)

(emphasis added). Subsection (e)(1) reiterates this requirement, again stating that

“[d]eadlines in a case management order must be strictly enforced unless changed

by court order.” Fla. R. Civ. P. 1.200(e)(1) (2025) (emphasis added). While the new

version of Rule 1.200 was not in effect at the time of the proceedings below, it speaks

to a trial court’s authority to set and enforce case management deadlines that was

already embodied in Rule 1.200. 7

7

The amendment to Rule 1.200 certainly also supports this opinion’s analysis

of Binger as it might apply after the amendment, as the rule’s mandate for trial courts

to strictly enforce case management deadlines is incompatible with our sister courts’

holdings that Binger requires a prejudice determination before a trial court can

actually enforce a case management order and exclude a witness or testimony that

was not disclosed as required by the case management order. Our sister courts’

interpretation of Binger cannot survive the Florida Supreme Court’s mandate that

case management orders be “strictly enforced.” Additionally, an amendment to

Florida Rule of Civil Procedure 1.380 that also took effect on January 1, 2025, sets

22

iii. The trial court was permitted to strictly enforce the case

management order and exclude Defendant’s experts.

The case management order at issue in this case was exactly the type of order

contemplated by Rule 1.200. The amended case management order entered by the

trial court set a deadline of February 10, 2024, for Defendant to disclose all of his

experts and their opinions to Plaintiff. Because trial courts have authority to set and

enforce case management orders, when Defendant failed to disclose his experts’

names, much less their opinions, by the required deadline, the trial court was

permitted to strictly enforce the case management order and exclude the experts,

without considering whether Plaintiff would have been prejudiced by the

introduction of the late-disclosed opinions. Accordingly, the trial court did not err

by granting Plaintiff’s motion to strike Defendant’s experts and excluding the

experts from testifying. 8

a new standard that is different than our sister courts’ interpretation of Binger for

excluding certain specific categories of undisclosed witnesses and evidence. Under

Rule 1.380(d), as amended, “[i]f a party fails to provide information or identify a

witness as required by rule 1.280(a) or (g), the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial,

unless the failure was substantially justified or is harmless.” Thus, for undisclosed

witnesses or evidence falling within the scope of Rule 1.380(d), a trial court now

must exclude the evidence unless the failure to disclose was “substantially justified

or . . . harmless.” This is a significantly different standard than determining whether

the other party would suffer prejudice under Binger. In this additional respect, our

sister courts’ interpretation of Binger is incompatible with the Florida Supreme

Court’s recent amendments to the Florida Rules of Civil Procedure.

8

While neither lack of prejudice to Plaintiff from admitting the late-disclosed

opinions, nor prejudice to Defendant from excluding the opinions, required the trial

23

III. Conclusion

The Florida Rules of Civil Procedure allow trial courts to set and enforce case

management deadlines, including deadlines for the disclosure of expert witnesses

and their opinions. Where a party fails to meet a disclosure deadline set forth in a

case management order, the trial court may strictly enforce the order and exclude the

undisclosed or late-disclosed evidence. Because Defendant did not disclose his

experts and their opinions by the deadline set forth in the case management order,

the trial court did not err by enforcing its order and excluding the experts’ testimony.

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-

court to admit Defendant’s late-disclosed expert opinions, the version of Florida

Rule of Civil Procedure 1.200 in effect at the time of the proceedings below did

provide that a trial court’s case management order “controls the subsequent course

of the action unless modified to prevent injustice.” Fla. R. Civ. P. 1.200(d) (2024)

(emphasis added). Thus, in cases governed by that prior version of the rule, where

a trial court denied a request to modify a case management order, the party that

sought the modification could argue that the trial court erred by denying the

modification because the modification was necessary to prevent injustice. However,

in this case, while Defendant sought to admit the late-disclosed opinions of his

experts despite missing the expert disclosure deadline, Defendant never requested

an extension of the expert disclosure deadline beyond the initial extension to which

the parties agreed. Thus, subsection (d) of the prior version of Rule 1.200 is not at

issue in this case. Even if Defendant had sought a modification of the case

management order, nothing in the record indicates that a modification of the case

management order was necessary to prevent injustice. The current version of Rule

1.200, which became effective January 1, 2025, removes the reference to “prevent

injustice” and simply provides that “[d]eadlines in a case management order must

be strictly enforced unless changed by court order.” Fla. R. Civ. P. 1.200(e)(1).

24

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:

1. Callari v. Winkeljohn, 329 So. 3d 795 (Fla. 3d DCA 2021)

2. Gaspar’s Passage, LLC v. RaceTrac Petroleum, Inc., 243 So. 3d 492

(Fla. 2d DCA 2018)

3. Bank of N.Y. Mellon v. Pearson, 212 So. 3d 1071 (Fla. 3d DCA 2017)

4. Deutsche Bank Nat’l Tr. Co. ex rel. LSF MRA Pass-Through Tr. v. Perez,

180 So. 3d 1186 (Fla. 3d DCA 2015)

5. State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So. 3d 66 (Fla. 2d DCA

2013)

6. Harrell v. Aztec Env’t, Inc., 921 So. 2d 805 (Fla. 1st DCA 2006)

7. Dos Santos v. Carlson, 806 So. 2d 539 (Fla. 3d DCA 2002)

8. Berlin v. Roldan, 786 So. 2d 649 (Fla. 4th DCA 2001)

9. Westerly v. King, 782 So. 2d 997 (Fla. 1st DCA 2001)

10. Cedar Hammock Fire Dep’t v. Bonami, 672 So. 2d 892 (Fla. 1st DCA

1996)

25

11. Walters v. Keebler Co., 652 So. 2d 976 (Fla. 1st DCA 1995)

12. Pimentel v. Alamo, 555 So. 2d 895 (Fla. 3d DCA 1990)

13. Lugo v. Fla. E. Coast Ry. Co., 487 So. 2d 321 (Fla. 3d DCA 1986)

14. Haines v. Haines, 417 So. 2d 819 (Fla. 4th DCA 1982)

15. Gray Truck Line Co. v. Robbins, 476 So. 2d 1378 (Fla. 1st DCA 1985)

16. Melrose Nursery, Inc. v. Hunt, 443 So. 2d 441 (Fla. 3d DCA 1984)

DISMISSED in part; AFFIRMED in part; CONFLICT CERTIFIED.

TRAVER, C.J., and STARGEL, NARDELLA, BROWNLEE, and KAMOUTSAS,

JJ., concur.

WOZNIAK, J., concurs and concurs specially, with opinion, in which STARGEL,

J., concurs.

GANNAM, J., concurs and concurs specially, with opinion.

PRATT, J., concurs and concurs specially, with opinion, in which STARGEL, J.,

concurs.

SMITH, J., concurs in result only, with opinion.

WHITE, J., concurs in result only, without opinion.

______________________________________

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF TIMELY FILED

_______________________________________

WOZNIAK, J., specially concurring.

I concur in the majority opinion, however I write separately to address section

I(d). I agree with the analysis in that section insofar as it acknowledges that our

sister courts have expanded Binger v. King Pest Control, 401 So. 2d 1310 (Fla.

1981), beyond what the Florida Supreme Court originally intended. However, I

would end the discussion there and call for a reexamination of Binger.

26

In my view, there is tension both inherent in Binger (its call for the application

of a prejudice consideration, albeit under limited circumstances, as compared with

its reassurance that local rules and customs are to be given weight) and extant with

the amendments to Florida Rules of Civil Procedure 1.200(d)(3) and 1.200(e)(1) that

became effective on January 1, 2025. 9 On this latter point, I agree with Judge

Gooden’s concurrence in Marine Design Dynamics, Inc. v. All City Construction

Services, LLC, 50 Fla. L. Weekly D2653 (Fla. 3d DCA Dec. 17, 2025), that the

Florida Supreme Court’s recent rule amendments intended to streamline litigation 10

are incompatible with Binger. Id. at D2656 (Gooden, J., concurring specially) (“The

core tension is self-evident: A judge cannot simultaneously ‘strictly enforce’ the

discovery deadline, as the Rules now demand, while also applying a prejudice

analysis, that functionally excuses the violation of that very deadline.” (citing

Binger, 401 So. 2d at 1313-14)).

STARGEL, J., concurs.

_______________________________________

9

Rule 1.200(d)(3) addresses the strict enforcement of deadlines: “The case

management order must indicate that the deadlines established in the order will be

strictly enforced unless changed by court order.” Rule 1.200(e)(1) provides that

“[d]eadlines in a case management order must be strictly enforced unless changed

by court order.”

10

In re: Amends. to Fla. Rules of Civ. Proc., 402 So. 3d 925 (Fla. 2024), as

corrected (Jan. 23, 2025); In re: Amends. to Fla. Rules of Civ. Proc., 386 So. 3d 497

(Fla. 2024).

27

GANNAM, J., specially concurring.

I fully concur in the majority opinion. I write separately to explain how the

Florida Supreme Court’s definitional test for holding and dicta in Pedroza v. State,

291 So. 3d 541 (Fla. 2020), changes how we distinguish holding from dicta and to

highlight its application to our interpretation of Binger v. King Pest Control, 401 So.

2d 1310 (Fla. 1981), in this case.

I

A

Florida’s earliest supreme court opinions generally identified propositions as

dicta when the propositions were unrelated to case facts or issues presented. See,

e.g., Ponder v. Moseley, 2 Fla. 207, 272 (1848) (“The character of the execution was

not discussed, no authorities on the point were referred to by counsel, or the court;

with very great respect for Chief Justice Taney, I incline to think his decision of that

point may be regarded as rather an obiter dictum.”); City of Apalachicola v.

Apalachicola Land Co., 9 Fla. 340, 354 (1861) (“That portion of the opinion of the

court which is not directly in analogy with the acts of the case under consideration,

can only be looked upon as extra judicial dicta.”).

The court first suggested a necessity approach for identifying dicta in Hart v.

Stribling, 6 So. 455 (Fla. 1889). Having to discern what it held in a prior decision in

the same case, the Hart court concluded, “[T]he court did not, and could not, decide

28

the case upon its merits, because the merits [of] the cause were not then before the

court.” Id. at 456. Thus, the court continued, “The only reasonable conclusion that

can be arrived at . . . is that the opinion there expressed upon the merits of the cause

was the mere dictum of the justice rendering the decision. The dictum of a judge is

not the decision of a court.” Id. The court then quoted a necessity principle for

identifying dicta: “There is nothing authoritative in a case, except what is required

to be decided to reach the final judgment . . . .” Id. (quoting Love v. Miller, 53 Ind.

294, 299 (1876)). In 1903, the court first expressly identified dicta as a proposition

“not necessary” to a decision. See Hillsborough Cnty. v. Henderson, 33 So. 997, 999

(Fla. 1903) (“[I]t was therefore not necessary to the determination of the case that

they should decide whether gold bonds could be issued, but, as a dictum, the court

intimates that the power existed.”).

The 1910 second edition of Black’s Law Dictionary added a citation to Hart

in support of its definition of dicta, which carried over from its 1891 first edition:

“an observation or remark made by a judge in pronouncing an opinion upon a cause,

concerning some rule, principle, or application of law, or the solution of a question

suggested by the case at bar, but not necessarily involved in the case or essential to

its determination . . . .” Dictum, Black’s Law Dictionary 366 (2d ed. 1910); Dictum,

Black’s Law Dictionary 365 (1891). In the 1929 case Pell v. State, the Florida

Supreme Court, similarly to Black’s, identified dicta by its lack of essentiality to a

29

decision. 122 So. 110 (Fla. 1929). Referring to a “suggestion” in a prior case that

“was more or less apposite to the point being discussed,” the court concluded “it was

not essential to the decision in that case, and hence mere obiter dictum and without

force as a precedent.” Id. at 112.

In the nine decades between Pell and Pedroza, the supreme court

interchangeably used necessity and essentiality as its test for dicta. See, e.g., Therrell

v. Reilly, 151 So. 305, 306 (Fla. 1932) (“What was said in that case was not mere

obiter dicta, because it was necessary for us to say what we did in order to dispose

of the petition . . . .”); Harris v. Baden, 17 So. 2d 608, 610 (Fla. 1944) (“[I]t will be

apparent that the language of the decisions upon which counsel relies, as addressed

to the point at hand, was dicta upon a collateral subject and not essential to the

question then pending.”); Doyle v. City of Coral Gables, 33 So. 2d 41, 41 (Fla. 1947)

(“[W]hat was said on that point was purely obiter and unnecessary to decision of the

main question in the case.”); State v. Fla. State Improvement Comm’n, 60 So. 2d

747, 750 (Fla. 1952) (“The language above quoted was not essential to a decision in

that case and is obiter dicta.”); Seaboard Air Line R. Co. v. Gay, 68 So. 2d 591, 593

(Fla. 1953) (“Such language was unnecessary to a decision in that case and may be

considered as dictum.”); Pinkerton-Hays Lumber Co. v. Pope, 127 So. 2d 441, 443

(Fla. 1961) (“We are of the view that the portion of the . . . opinion which we have

quoted and which has met with our disapprobation was not essential to the result at

30

which the court ultimately arrived. It is purely and simply obiter dictum.”);

Withlacoochee River Elec. Co-op., Inc. v. Tampa Elec. Co., 158 So. 2d 136, 137

(Fla. 1963) (“[T]he remarks contained in said footnote were unnecessary to the

decision which we reached . . . and constitute nothing more nor less than obiter

dicta.”); State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regul., 276 So. 2d 823,

826 (Fla. 1973) (“The statement of the District Court of Appeal in its opinion . . .

was not essential to the decision of that court and is without force as precedent.”);

State v. Ferrari, 398 So. 2d 804, 807 (Fla. 1981) (“By the court’s admission this

reasoning was not necessary to the decision and therefore was dicta.”); Van Tassel

v. Coffman, 486 So. 2d 528, 529 (Fla. 1986) (“The quoted statement was not essential

to that holding and was dicta.”); Puryear v. State, 810 So. 2d 901, 904 (Fla. 2002)

(“This Court’s discussion in Power concerning section 90.801(2)(c), however, was

not essential to the holding in Power. . . . Thus, the . . . discussion was not necessary

and constituted dicta.”). 11

11

Given the court’s regular oscillation between “necessary” and “essential”

during this period, and the significant overlap of their definitions at both ends of the

period, I assume the court used the terms synonymously. Compare Necessary,

Universal Dictionary of the English Language 3263 (1899) (def. 3, “Indispensably

requisite or needful; essential; such as cannot be done without or dispensed with.”),

and Necessary, 7 Oxford English Dictionary 60 (1933) (def. A.I.1.a, “Indispensable,

requisite, essential, needful; that cannot be done without.”), and Necessary,

Webster’s New International Dictionary 1635 (2d ed. 1934) (def. 1, “Essential to a

desirable or projected end or condition . . . .”), and Necessary, Merriam-Webster’s

Collegiate Dictionary 828 (11th ed. 2020) (def. 1, “absolutely needed”), and

Necessary, American Heritage Dictionary of the English Language (5th ed. 2022),

31

B

In Pedroza, the supreme court reformed the dicta analysis. The court defined

dicta as “[a]ny statement of law in a judicial opinion that is not a holding,” and then

defined holding: “A holding consists of those propositions along the chosen

decisional path or paths of reasoning that (1) are actually decided, (2) are based upon

the facts of the case, and (3) lead to the judgment.” 291 So. 3d at 547 (quoting State

v. Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005) (Canady, J., specially

concurring) (quoting Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57

Stan. L. Rev. 953, 1065 (2005))). Setting aside the prior necessity test, the court

adopted its new, refined definitional test from a 2005 Stanford Law Review article,

verbatim:

https://perma.cc/8BMY-XCSG (def. 1, “Needed or required . . . .”), and Necessary,

Oxford English Dictionary (3d ed. Dec. 2025), https://doi.org/10.1093/OED/

8623364186 (adj. def. I.1.a, “Indispensable, vital, essential; requisite.”), with

Essential, Universal Dictionary of the English Language 1937 (1899) (def. 1,

“Necessary to the essence, constitution, or existence of anything . . . .”) (def. 3,

“Important in the highest degree.”), and Essential, 3 Oxford English Dictionary 296

(1933) (def. 3.b, “Affecting the essence of anything; ‘material’, important”) (def.

4.a, “Absolutely necessary, indispensably requisite”), and Essential, Webster’s New

International Dictionary 874 (2d ed. 1934) (def. 3, “Important in the highest degree;

indispensable.”), and Essential, Merriam-Webster’s Collegiate Dictionary 427

(11th ed. 2020) (def. 2a, “of the utmost importance”), and Essential, American

Heritage Dictionary of the English Language (5th ed. 2022),

https://perma.cc/M7GN-P6YM (def. 2, “Fundamentally important or necessary . . .

.”); and Essential, Oxford English Dictionary (3d ed. Dec. 2025),

https://doi.org/10.1093/OED/1717600687) (def. 3.b, “Affecting the essence of

anything; ‘material’, important”) (def. 4.a, “Absolutely necessary, indispensably

requisite”).

32

Having now considered several definitions of

holding and dicta, we will set out our own. This definition

seeks to capture in an easily applied manner the

resolutions of the problem categories that we have

suggested above. A holding consists of those propositions

along the chosen decisional path or paths of reasoning that

(1) are actually decided, (2) are based upon the facts of the

case, and (3) lead to the judgment. If not a holding, a

proposition stated in a case counts as dicta.

Abramowicz & Stearns, supra, at 1065 (footnote omitted). With over 140 pages of

analysis and commentary, the authors carefully worked through easy categories,

such as propositions necessary to a judgment (presumptively holding), and “problem

categories” (potentially holding or dicta), such as alternative justifications (e.g., two

independent grounds for a decision), structured or ordered tests (e.g., strict scrutiny,

qualified immunity, etc.), and hypotheticals. See Abramowicz & Stearns, supra, at

1025–43. They also explained considerations that could move certain propositions

from presumptive holding to dicta, and vice versa. Id. The result was, in the authors’

view, a definition of holding that “allows a judge to draw one or more conceptual

lines (or paths) from case facts to judgment, and to credit all issues resolved along

the chosen path or paths to produce holdings,” and that “discounts as dicta issues on

paths that do not originate in the facts in the case or that lead nowhere.” Id. at 1066.

Thus, “[e]ach of the three numbered prongs is premised upon the power of the

deciding jurist or court to select among one or more potential decisional paths in

resolving a case.” Id. at 1065. The authors cautioned, however, that their “definition

33

is easy to articulate,” but “each element proves more complex than it might first

appear.” Id. at 1067.

The Abramowicz–Stearns definitional approach is intentionally innovative, as

the authors extensively reviewed prior scholarship and concluded that “no

satisfactory definition has yet to emerge.” Abramowicz & Stearns, supra, at 958; see

also id. at 959 (“[T]he most commonplace—and frequently cited—definitions of

these terms are problematic in profound ways. Appreciating both the questions of

why these definitions emerged and what is problematic about them is essential to

our project.”); id. at 960 (“The approach that we offer proves essential . . . in

exposing nuances that more impressionistic methodologies have failed to identify.”).

The authors hoped judges would adopt their new definition, commending, “[O]ur

definition captures the essential intuitions necessary for a theoretically satisfying and

functional understanding of holding and dicta, one that we believe has the potential

to benefit the process of judicial decisionmaking,” and promising, “If judges were

uniformly to adopt our definition and our proposed resolution of particular problems,

courts would apply the holding-dicta distinction more consistently and in a manner

more faithful to the underlying function of the distinction.” Id. at 1093–94. 12

So far, Florida’s is the only state high court to wholly adopt the

12

Abramowicz–Stearns definitional test.

34

While we should not assume the Pedroza court endorsed all of the

Abramowicz–Stearns article, we can assume the court’s verbatim adoption of the

authors’ new definitional test indicates some persuasion by the authors’ case for its

need and incorporates some substantial part of their work in making the case. At a

minimum, we should assume Pedroza’s adoption of the definitional test incorporates

what the authors said about identifying holding and dicta by a proposition’s

necessity: “as a core element in the definition of holding, necessity is itself not

necessary.” Id. at 959 (emphasis added). Like the pre-Pedroza Florida Supreme

Court decisions that usually identify dicta by reference to a proposition’s lack of

necessity to a judgment (see supra Part I.A.), Black’s Law Dictionary, both at the

time of the article and now, puts necessity at the center of its definition of dicta: “A

judicial comment made while delivering a judicial opinion, but one that is

unnecessary to the decision in the case and therefore not precedential.” Obiter

dictum, Black’s Law Dictionary 1102 (8th ed. 2004) (12th ed. 2024). Abramowicz

and Stearns deemed this definition “[t]he most influential” but also “the easiest to

falsify,” concluding, “we should not be surprised that it is inconsistent with standard

judicial practices, including that of according precedential status to alternative

justifications.” Abramowicz & Stearns, supra, at 1056. On this point, they deemed

the definition “indefensible” because “it cannot be the case that an opinion that

strikes down a law on two grounds rather than one expresses no holding,” even

35

though the court’s resolution on either ground is made unnecessary by its resolution

on the other. Id. at 959 & n.15. 13

Abramowicz and Stearns also rejected the necessity definition because “[a]ny

time a case could be resolved on narrower grounds, the broader rationale can be

claimed unnecessary.” Id. at 1058. Thus, they argued, the mere availability of any

narrower ground “would potentially prevent the broader articulated ground from

having precedential status.” Id. at 1060. Any suggestion of a narrower ground in an

opinion concurring in the judgment, or even a law review article, could “prove a

sufficient . . . condition for disregarding the broader rationale embraced in a majority

opinion.” Id. They “conclude[] as a normative matter that judges should be allowed

13

In a 1931 case, the Florida Supreme Court implicitly excepted alternative

holdings from the necessity requirement, though the exception is rarely cited:

A ruling in a case fully considered and decided by

an appellate court is not dictum merely because it was not

necessary, on account of one conclusion reached upon one

question, to consider another question the decision of

which would have controlled the judgment.

Two or more questions properly arising in a case

under the pleadings and proof may be determined, even

though either one would dispose of the entire case upon its

merits, and neither holding is a dictum, so long as it is

properly raised, considered, and determined.

Parsons v. Fed. Realty Corp., 143 So. 912, 920 (Fla. 1931).

36

to create holdings broader than necessary” and “that judges are, in fact, allowed to

do so in practice.” Id. at 1058.

On the other hand, necessity is still relevant under the Abramowicz–Stearns

approach because “any proposition that is necessary to . . . either the disposition or

for another holding will itself be a presumptive holding.” Abramowicz & Stearns,

supra, at 973 (emphasis added). Only presumptively, however, because propositions

seemingly necessary to a judgment but not actually decided are not holdings. Id. at

1071–72. “A common form of this is for a court to assume arguendo that a particular

proposition holds and then resolve the case on that basis.” Id. at 1072.

To summarize the Abramowicz–Stearns treatment of necessity, which is

baked into the new definitional test Pedroza adopted verbatim from their article, a

proposition that is not necessary to a judgment is not automatically dicta, and a

proposition that is necessary to a judgment is not automatically holding—a

necessary proposition is only presumptively holding. In either case, the full

definitional test must be applied to determine what is holding. This means the

Pedroza definitional test for holding and dicta is incompatible with the century of

prior Florida caselaw treating necessity as the bright line dividing them. Post-

Pedroza, necessity is no longer viable as a shorthand test for propositions that count

as holding.

37

C

Pedroza’s definitional test for holding is holding because it meets its own

criteria. The Pedroza court granted review to decide two questions regarding a forty-

year prison sentence for a homicide offense committed by a juvenile—whether the

sentence violated the Eighth Amendment and whether it violated Florida law under

three prior Florida Supreme Court opinions: Henry v. State, 175 So. 3d 675 (Fla.

2015), Kelsey v. State, 206 So. 3d 5 (Fla. 2016), and Johnson v. State, 215 So. 3d

1237 (Fla. 2017). See Pedroza, 291 So. 3d at 544–45. To answer the second question,

the Pedroza court reviewed Henry, Kelsey, and Johnson to determine what they held.

Id. at 546–49. And to determine what those cases held, the court announced and

applied its new, three-part definitional test for holding. Id. at 547. Applying the test

to its prior Kelsey opinion, the court determined Kelsey’s holding was narrower than

its interpretation by some district courts. Id. at 546–48. Applying the test to Johnson,

however, the court determined that Johnson’s holding—a new, three-part juvenile

sentencing test—was in error. Id. at 548. The court receded from the erroneous

Johnson test and ultimately concluded the sentence on review did not violate the

Eighth Amendment or Florida law. Id. at 549.

Pedroza’s new definitional test for holding is part of the opinion’s holding

because it was actually decided on the court’s chosen decisional path of reasoning,

leading from the case facts to the judgment. See 291 So. 3d at 547. As a holding, the

38

test replaces the court’s prior necessity approach, and at least two aspects of the

opinion show the replacement was intentional. First, in distinguishing Kelsey’s

holding from its dicta, the Pedroza court identified the propositions “not necessary”

to the Kelsey decision and kept going. 291 So. 3d at 547. Instead of stopping at

necessity, the court completed its holding analysis of Kelsey by considering the

“decisional path of reasoning” element of its new test. Id. at 547–48. Second, the

Pedroza court identified as holding the new, three-part juvenile sentencing test

announced in Johnson even though the Johnson test was “clearly . . . a rule of law

much broader than the facts required.” Id. at 548. For both the Kelsey and Johnson

propositions at issue, the Pedroza court did not pin its holding or dicta

determinations on the necessity of the propositions to their respective decisions.

Thus, the Pedroza court adhered to the Abramowicz–Stearns definitional approach

to identifying holding, which rejects necessity as necessary and, when a court

chooses a decisional path to judgment that announces (i.e., actually decides) a test

and applies it to case facts, treats both the test and its application as holding. See

Abramowicz & Stearns, supra at 959, 984–85, 1039–40, 1055–61, 1077–78. 14

Despite enshrining the definitional test in its Pedroza holding, the supreme

court did not cite Pedroza when it answered a holding-or-dicta question in Tsuji v.

14

Stating existing law as a precedential test to be applied in future cases is

within the judicial power “to say what the law is,” “expound and interpret it,” and

“apply the rule to particular cases.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

39

Fleet, 366 So. 3d 1020 (Fla. 2023). After taking many steps down its decisional path,

the Tsuji court considered the precedential effect of statements in a prior case, and

concluded, “Our statements . . . supporting the result reached [in the prior case] were

not essential to our holding. So these statements are ‘without force as precedent’

. . . .” 366 So. 3d at 1031. To the extent the Tsuji court meant the prior statements

were not holding because they were not necessary to the judgment in the prior case,

it would be difficult to reconcile the court’s callback to the old necessity test with

the Pedroza definitional test. But if, by “not essential to our holding,” the Tsuji court

meant not an essential step on the chosen decisional path leading to the judgment,

then Tsuji may be consistent with Pedroza. See Abramowicz & Stearns, supra, at

1072 (treating proposition as holding when it forms “an essential step on the selected

path” and is actually decided). Either way, however, the supreme court “does not

intentionally overrule itself sub silentio.” Puryear v. State, 810 So. 2d 901, 905 (Fla.

2002); see also Roberts v. Brown, 43 So. 3d 673, 683 (Fla. 2010) (“Notably, our

decision in Lane was issued . . . only two years after we proclaimed our original and

exclusive jurisdiction over these matters. Had we intended to overrule our prior

declaration of exclusive jurisdiction, we would have done so in a more definite and

express manner . . . .” (citation omitted)). There is no express holding in Tsuji

40

overruling, limiting, or receding from Pedroza’s definitional test. Thus, we should

treat Pedroza as binding unless the supreme court says otherwise. 15

Pedroza binds us to its definitional test for holding and dicta, so we should

employ it fully when distinguishing between holding and dicta in prior opinions. To

be sure, it requires more of us than the prior necessity test. Now, instead of

determining only whether a proposition was necessary to the prior decision, we

should determine whether it was actually decided on the court’s chosen decisional

path leading from the case facts to the judgment. We need not disregard necessity,

but if we determine a given proposition was necessary to the prior decision, we must

still determine whether the proposition was actually decided in the case. And if we

15

The supreme court also alluded to the necessity test for dicta, post-Pedroza,

in Davis v. State, 332 So. 3d 970, 975 (Fla. 2021), but did not rely on it, viewing the

“broad, unqualified” proposition at issue to be not only unnecessary to its prior

decision, but also “far beyond the facts.” Thus, the proposition would not have

satisfied the Pedroza holding requirement that a proposition be “based upon the facts

of the case.” 291 So. 3d at 547. Our Court has also called back to the necessity test

in two cases since Pedroza, but neither conflicts with Pedroza’s holding. In one,

Mannella v. Mannella, 363 So. 3d 236, 240–41 (Fla. 6th DCA 2023), we did not rely

on the necessity test exclusively, viewing the proposition at issue to be not only

unnecessary to a prior supreme court decision, but also to have “no bearing on its

decision.” Thus, the proposition would not have satisfied the Pedroza holding

requirement that a proposition lie “along the chosen decisional path . . . of reasoning

that . . . lead to the judgment.” 291 So. 3d at 547. In the other, Regala v. McDonald,

397 So. 3d 742, 752 (Fla. 6th DCA 2024), we identified as dicta a proposition “not

necessary to” a supreme court decision, but also quoted the Pedroza definitional test

in support of the identification. To the extent Mannella and Regala muddy the waters

in this district, the en banc majority opinion in this case clarifies that the Pedroza

definitional test is binding.

41

determine the proposition was not necessary to the prior decision because the court

could have ruled more narrowly or also ruled on a separate question that would have

disposed of the case by itself, we must still determine whether the proposition was

nonetheless decided on the court’s chosen decisional path from facts to judgment. If

we determine the proposition is dicta, we should say which part of the definitional

test it did not meet. Consistently applying the Pedroza definitional test will promote

development of precedent on the test itself and clarity in the application of both

vertical and horizontal stare decisis in future decisions.

II

Having explained what Pedroza requires of us, I turn to Binger’s holding and

its application to the present case. Although a court’s announcement of a new test

can be a binding holding, along with the court’s application of the test (see supra

Part I.C), the majority correctly concludes the test announced in Binger does not

bind a trial court to consider prejudice to the objecting party (or the noncompliant

party) before excluding undisclosed witness testimony, even if Binger does require

a trial court to consider prejudice to the objecting party before allowing undisclosed

witness testimony.

In Binger, the supreme court affirmed a Fourth District decision granting the

defendant a new trial after the trial court allowed trial testimony by the plaintiffs’

undisclosed impeachment witness. 401 So. 2d at 1314–15. The supreme court’s

42

judgment was based on its conclusions that the plaintiffs should have disclosed the

impeachment witness on their pretrial witness list and that the defendant was

prejudiced by the trial court’s allowance of the undisclosed witness’s testimony. Id.

The court reached its conclusions by applying two “rules” that it had developed in

the course of its opinion. Id. at 1314. The first rule the Binger court announced was

that “a pretrial order directing the parties to exchange the names of witnesses

requires a listing or notification of all witnesses that the parties reasonably foresee

will be called to testify, whether for substantive, corroborative, impeachment or

rebuttal purposes.” Id. at 1313. The second rule proceeds from the first: “It follows,

of course, that a trial court can properly exclude the testimony of a witness whose

name has not been disclosed in accordance with a pretrial order. The discretion to

do so must not be exercised blindly . . . .” Id. The court appended to the “must” of

the discretionary exclusion rule some “should[s]” and a “may” regarding

consideration of prejudice to the objecting party. Id.

The majority correctly reads Binger’s rule for excluding undisclosed

witnesses to begin and end with trial court discretion. See id. at 1312 (“[W]e

essentially approve . . . leav[ing] ultimate control over witness disclosure problems

to the broad discretion of the trial judge . . . focus[ing] on prejudice in the preparation

and trial of a lawsuit.”); id. at 1313 (“That approach places all problems regarding

the testimony of undisclosed witnesses within the broad discretion of the trial judge.

43

It thus vests in the trial judge the interpretation and enforcement of any pretrial order

mandating witness disclosure, and limits reviewing courts to reversals only in cases

of a clear showing of abuse prejudicial to the affected party.”); id. at 1314

(“Requiring reasonable compliance with a pretrial order directing witnesses’

disclosure will help to eliminate surprise and avoid trial by ‘ambush.’”). The

prejudice “should[s]” and “may” appended to the “must” rule of discretion were self-

consciously rules of “reasonable guidance,” id. at 1312, not obligation, especially

considering the court’s several examples of “discovery practice within the circuits”

that “in no way derogate from our decision,” including pretrial orders that “expressly

prevent[] the testimony of any witness not identified within a certain period of time.”

Id. at 1314. The court left “interpretation and application” of such orders “to the

presiding trial judge in each case,” provided such discretion is “not . . . exercised

blindly”—i.e., outside “the stated goals of discovery.” Id. at 1314. Thus, under

Pedroza, Binger’s discretion-to-exclude rule was actually decided and is holding,

and Binger’s “reasonable guidance” regarding consideration of prejudice was only

actually decided as to the case facts—i.e., requiring a trial court to consider prejudice

before allowing undisclosed witness testimony. Beyond the Binger case facts, its

guidance regarding consideration of prejudice is dicta. 16

16

Even under the prior necessity test, the Florida Supreme Court recognized

that tests announced by the court do not always apply in future cases involving

44

materially different facts, including where the difference is between a trial court’s

allowance and disallowance of a party’s request:

To recite and approve a general rule in one case is

not the equivalent of establishing it as an unyielding,

inflexible guide in every case. . . . We have held that an

opinion emanating from this Court must be construed in

the light of the facts and circumstances of the case which

was then before us for decision. . . . The effect of our ruling

was an affirmance of the Circuit Judge who disallowed

expert witnesses’ fees. In the present case the Circuit

Judge allowed expert witnesses’ fees and included them in

the judgment.

Dade Cnty. v. Brigham, 47 So. 2d 602, 603 (Fla. 1950).

45

_______________________________________

PRATT, J., specially concurring.

I fully concur in the majority’s opinion. I write separately to make three

observations.

First, judges are constrained to decide the cases before them. The judicial

power is not a “roving commission.” See TransUnion LLC v. Ramirez, 594 U.S. 413,

423 (2021). It is a limited grant of authority that permits the judiciary to decide actual

cases and controversies. See, e.g., Casiano v. State, 310 So. 3d 910, 913 (Fla. 2021)

(“Article V, section 1 of the Florida Constitution vests ‘[t]he judicial power’ in

Florida’s courts, and Florida’s courts, including its appellate courts, reserve the

exercise of judicial power for cases involving actual controversies. This limitation

on the exercise of judicial power to justiciable controversies is rooted in judicial

adherence to the doctrine of separation of powers.” (citations omitted)). Of course,

there is nothing inherently improper about a court, in deciding an issue properly

before it, to render an opinion that also includes dicta. See Pierre N. Leval, Judging

Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1253 (2006)

(“What is problematic is not the utterance of dicta, but the failure to distinguish

between holding and dictum.”). To the contrary—dicta may, where appropriate,

serve a variety of useful purposes, including providing preliminary guidance to the

bench, bar, and public for future cases. See id. Today’s majority opinion does just

46

that when it discusses the prior and current versions of Florida Rule of Civil

Procedure 1.200, even though the prior version of the rule is the only version of the

rule at issue in this case. However, courts must be vigilant to distinguish holdings

from dicta. See Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020). Although dicta of

a higher court should be carefully considered by lower courts, unlike a higher court’s

holdings, a higher court’s dicta neither horizontally constrains the higher court nor

vertically binds the lower courts because dicta is not precedent. See Sims v. State,

743 So. 2d 97, 99 (Fla. 1st DCA 1999) (“While dicta from the Florida Supreme

Court may afford welcome guidance, such passages lack the binding force of

precedent.” (citation and italics omitted)); see generally Stare Decisis, Black’s Law

Dictionary (12th ed. 2024) (“The doctrine of precedent, under which a court must

follow earlier judicial decisions when the same points arise again in litigation.”).

Dicta must therefore be viewed with “caution,” as it represents a court’s non-

binding, preliminary view of an issue that is not yet before it. See Huie v. Dent &

Cook, P.A., 635 So. 2d 111, 113 (Fla. 2d DCA 1994). Judges should not

mechanically follow dicta, lest they abdicate their duty to decide the issues before

them. See Leval, supra, at 1282 (“If a rule was declared only in dictum, the question

remains undecided, and we have a constitutional duty to make our own

determination of the answer. Unless we do, we have not done our job.”). In this case,

the majority opinion has respectfully considered the majority opinion in Binger v.

47

King Pest Control, 401 So. 2d 1310 (Fla. 1981), carefully distinguished between the

holdings and dicta of Binger pursuant to Pedroza as is this court’s duty, decided the

issues presented in this case from first principles in the absence of binding

precedent—including whether 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—and offered a few appropriate dicta statements

regarding the current version of rule 1.200. In doing so, the majority opinion has

certified conflict so that the Florida Supreme Court may authoritatively speak to the

certified-conflict issue. Of course, our court will respectfully follow any decision by

our supreme court resolving that conflict. See generally art. V, §§ 1-6, Fla. Const.

(structurally delineating between Florida’s courts, including its supreme court,

district courts of appeal, circuit courts, and county courts).

Second, and relatedly, whether a statement by the Florida Supreme Court in a

majority opinion in a conflict jurisdiction case constitutes a holding or dicta flows

from the Florida Constitution and Pedroza. The Florida Constitution provides that

“[t]he supreme court . . . [m]ay review any decision of a district court of appeal . . .

that expressly and directly conflicts with a decision of another district court of appeal

or of the supreme court on the same question of law.” Art. V, § 3(b)(3), Fla. Const.

(emphasis added). It also provides that “[t]he supreme court . . . [m]ay review any

48

decision of a district court of appeal . . . that is certified by it to be in direct conflict

with a decision of another district court of appeal.” Art. V, § 3(b)(4), Fla. Const.

(emphasis added). Thus, the focus of the supreme court’s jurisdiction in an express-

and-direct-conflict case or a certified-conflict case—or any other case under article

V, section 3(b)(3)-(4)—is its review of a specific district court decision. In

Pedroza—a certified-conflict case—the Florida Supreme Court reviewed the

decision of the Fourth District Court of Appeal in Pedroza v. State, 244 So. 3d 1128

(Fla. 4th DCA 2018), and addressed the issue of “whether Pedroza’s forty-year

sentence for second-degree murder [was] unconstitutional under the Eighth

Amendment to the United States Constitution as interpreted and applied in Miller v.

Alabama, 567 U.S. 460 (2012).” Pedroza, 291 So. 3d at 543. The supreme court held

in Pedroza among other things that “[a]ny statement of law in a judicial opinion that

is not a holding is dictum” and “[a] holding consists of those propositions along the

chosen decisional path or paths of reasoning that (1) are actually decided, (2) are

based upon the facts of the case, and (3) lead to the judgment.” Id. at 547 (first citing

to and then quoting from State v. Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005)

(Canady, J., specially concurring) (quoting Michael Abramowicz & Maxwell

Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005))). These holdings were

necessary to the supreme court’s decision in Pedroza because, as a part of deciding

the issue presented, the supreme court went on to examine two prior supreme court

49

decisions to determine whether relevant language in those decisions constituted dicta

or a holding and, if the latter, whether the supreme court should recede from any

such holding. See id. at 547-49. The first of the two decisions—Kelsey v. State, 206

So. 3d 5 (Fla. 2016)—was a certified-question case (as the Florida Constitution

allows district courts to pass upon and certify questions of great public importance

under article V, section 3(b)(4)). The second of the two decisions—Johnson v. State,

215 So. 3d 1237 (Fla. 2017)—was a certified-conflict case. In discussing Kelsey and

Johnson, the supreme court in Pedroza focused on the underlying facts that led to

the decisions in Kelsey and Johnson. Pedroza, 291 So. 3d at 547-48. In doing so, the

supreme court emphasized that Kelsey “limit[ed] the holding to the narrowest issue

presented by the facts of the case” whereas Johnson “clearly st[ood] for a rule of law

much broader than the facts required.” Id. at 548. Ultimately, in deciding the issue

presented, Pedroza read Kelsey narrowly and receded from Johnson. See id. at 547-

49. All that to say, as a general proposition, a statement by the supreme court in a

conflict jurisdiction case—or any other case under article V, section 3(b)(3)-(4)—

has to be tethered to the district court decision on review and the facts underlying

that case in order for a statement to be a holding and not dicta under Pedroza.17 As

17

In the context of conflict jurisdiction, the district court decision on review

is reviewed in relation to the other decision or decisions the Florida Supreme Court

deems the district court decision on review to be in conflict with. See art. V,

§ 3(b)(3)-(4), Fla. Const. But the primary focus of the Florida Supreme Court’s

50

applied to Binger, that means that a statement by the supreme court in Binger would

need to be tethered to the Fourth District Court of Appeal’s decision in King Pest

Control v. Binger, 379 So. 2d 660 (Fla. 4th DCA 1980), and the facts underlying

that case in order for a statement in Binger to be a holding and not dicta under

Pedroza. 18 And as explained by the majority opinion in this case, “the Supreme

Court’s statement in Binger—that if the trial court finds that the undisclosed witness

will not prejudice the other party after considering the factors listed in Binger, then

the witness should be allowed to testify—was dictum” under Pedroza because “[t]he

issue actually decided in Binger—based upon its facts—was that the trial court

review remains on the district court decision on review. See art. V, § 3(b)(3)-(4), Fla.

Const.

18

Binger was decided pursuant to the Florida Supreme Court’s then-existing

certiorari conflict jurisdiction, as the 1980 amendments to article V, section (3)(b)

of the Florida Constitution took effect Apri1 1, 1980, after the Fourth District

decided its decision in King Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th DCA

1980), on January 16, 1980, and after certiorari jurisdiction was invoked in the

Florida Supreme Court. See LaMarche v. Shelby Mut. Ins. Co., 390 So. 2d 325, 325

(Fla. 1980) (exercising certiorari jurisdiction “under article V, section 3(b)(3), as it

existed prior to April 1, 1980”). Nevertheless, the same general reasoning regarding

the Florida Supreme Court’s current conflict jurisdiction—i.e., that a statement by

the supreme court in a conflict jurisdiction case has to be tethered to the district court

decision on review and the facts underlying that case in order for a statement to be a

holding and not dicta under Pedroza—applies to its then-existing certiorari conflict

jurisdiction authorized by the 1973 amendments to article V, section 3(b)(3) of the

Florida Constitution which took effect January 1, 1973. See generally art. V,

§ 3(b)(3), Fla. Const. (1973) (“The supreme court . . . [m]ay review by certiorari any

decision of a district court of appeal . . . that is in direct conflict with a decision of

any district court of appeal or of the supreme court on the same question of

law . . . . ” (emphasis added)); Goodman v. Olsen, 278 So. 2d 612, 613 n.1 (Fla.

1973).

51

should not have permitted the plaintiffs to introduce the undisclosed witness’s

testimony where the defendant would suffer prejudice from the undisclosed

witness’s testimony.” Maj. op. at 12.

And third, and finally, regardless of whether the Florida Supreme Court

accepts jurisdiction to resolve the majority opinion’s certified conflict and agrees

with our interpretation of Binger (as well as our interpretation of the prior version of

rule 1.200), I respectfully submit that the Florida Supreme Court should consider

amending Florida Rule of Civil Procedure 1.200 to make clear beyond any possible

doubt—either within rule 1.200 or the commentary to the rule—that Binger was

premised on a prior version of rule 1.200 and that Binger’s interpretation of the prior

version of rule 1.200 does not govern the current version of rule 1.200. The prior

version of rule 1.200 is clearly and materially distinguishable from the current

version of rule 1.200. See generally maj. op. at 21-24 & nn. 7-8. Nevertheless, many

trial courts may still be laboring under the misimpression that they must continue to

follow each and every statement in Binger—presumably because their own district

courts of appeal have not yet had occasion to interpret and apply the substantial

revision to rule 1.200 that went into effect on January 1, 2025. In turn, this may mean

that the current version of rule 1.200 is not being fully implemented by Florida’s

trial courts—to the detriment of the “just, speedy, and inexpensive determination of

every action,” Fla. R. Civ. P. 1.010, and contrary to the Florida Constitution’s

52

expectation that the supreme court’s rules for practice and procedure will be

uniformly applied “in all courts,” art. V, § 2(a), Fla. Const. 19 The Florida Supreme

Court need not wait for a controversy to arise regarding the meaning of the current

version of rule 1.200 to provide additional guidance and clarity to Florida’s trial

courts by means of an amendment to rule 1.200 or the commentary to the rule. See

art. V, § 2(a), Fla. Const.

With these observations, I concur in the majority’s opinion.

STARGEL, J., concurs.

_______________________________________

SMITH, J., concurring in result only.

I. Introduction

Binger 20 expressly defined the issue it was facing under the facts of the case

before it: to reconcile conflicting district court opinions on how trial courts are to

handle late-disclosed witnesses. The Florida Supreme Court then set forth in Binger

a standard for trial courts to apply when faced with the decision to admit or exclude

late-disclosed witnesses. The majority reads Binger as limited to admission of late

disclosed witness testimony despite clear language in Binger to the contrary and the

19

Of course, not every statement in Binger fails to survive the rewrite of rule

1.200. For example, Binger’s holding that “all problems regarding the testimony of

undisclosed witnesses [are placed] within the broad discretion of the trial judge” has

not been displaced by the current version of rule 1.200. Binger, 401 So. 2d at 1313.

20

Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).

53

reality that admission and exclusion are two sides of the same coin. Binger’s

application to the facts of this case can only be ignored at the risk of diminishing our

state’s highest court’s ability to clarify the issues it decides in the opinions it writes.

That is a risk not worth taking, especially here where recent rule amendments have

resolved any deleterious effects of Binger. While, as a former practitioner and trial

judge, I empathize with the deep frustration expressed by the majority relative to

effect of Binger on case management over the years, I am constrained to concur in

result only, guided by the “foundational premise that ‘[w]here an issue has been

decided in the Supreme Court of the state, the lower courts are bound to adhere to

the Court’s ruling when considering similar issues, even though the court might

believe that the law should be otherwise.’” Black Voters Matter Capacity Bldg. Inst.,

Inc. v. Sec’y, Fla. Dep’t of State, 415 So. 3d 180, 191 (Fla. 2025) (quoting State v.

Dwyer, 332 So. 2d 333, 335 (Fla. 1976)).

II. Analysis

A. Whether to Apply Binger in the Present Case

1. Factual and procedural background of Binger.

The Bingers sued King Pest Control for alleged injuries arising from an

automobile accident. 21 The trial court issued a pretrial order requiring exchange of

The underlying facts of Binger were not fully laid out by the Florida

21

Supreme Court but were adopted by the court from the Fourth District Court of

Appeal’s underlying opinion, King Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th

54

witness names twenty days prior to trial. Binger, 401 So. 2d at 1311. Despite this

requirement, the Bingers were permitted, over objection, to use a rebuttal expert

witness at trial that they had not previously disclosed. Id. King Pest Control

appealed, and the Fourth District Court of Appeal held that a trial court must make

a prejudice determination when deciding whether to admit or exclude testimony

from an undisclosed or untimely disclosed witness:

Should either party offer an unlisted witness, objection by the

opposition requires the trial judge to determine whether the witness

should be allowed. If no prejudice will accrue to the objecting party,

the witness should be heard. On the other hand, if the objector will be

prejudiced, then the court must determine whether the party offering

the witness should have foreseen the eventuality of needing to call the

witness. Prejudice, of course, does not mean that the witness will testify

favorably to the side calling him. Rather, it means that the objecting

party might well have taken some action to protect himself had he

timely notice of the witness and that there exist no other alternatives to

alleviate the prejudice[.]

King Pest Control v. Binger, 379 So. 2d 600, 663 (Fla. 4th DCA 1980) (internal

citation omitted). Applying this prejudice test, the district court found that King Pest

Control was prejudiced, and, therefore, reversed. Id.

On certiorari review, the Florida Supreme Court approved the decision of the

Fourth District with some expansion on the prejudice test. 401 So. 2d at 1311 (“We

essentially agree with the district court’s analysis.”). Binger premised its analysis

DCA 1980). Any reference in this concurring opinion to “Binger” is to the Florida

Supreme Court decision unless otherwise indicated.

55

on “existing” Florida Rule of Civil Procedure 1.200, adherence to basic “notions of

discovery,” and discretion of trial judges. 401 So. 2d at 1312 (“Existing Rule 1.200

. . . provides an adequate framework, when supplemented by a faithful adherence to

the notions of discovery which underpin civil trial practice and the good judgment

of Florida’s trial judges.”). Binger identified several different approaches trial courts

were currently using to tackle the problem of pretrial witness disclosures, such as

not requiring impeachment witnesses to be disclosed, not requiring disclosure of

rebuttal witnesses “subject to the trial judge’s discretion,” and not requiring

disclosure of witnesses who will respond to “new or surprise” trial testimony. Id. at

1312. Binger rejected all of these as inadequate to “resolve this thorny problem in

the midst of trial.” Id. at 1312-13 (quoting 379 So. 2d at 662).

Binger, instead, endorsed a fourth approach, which a “vast majority of district

courts” had adopted, including the Fourth District. Id. at 1313. “That approach

places all problems regarding the testimony of undisclosed witnesses within the

broad discretion of the trial judge.” Id. The court went on to provide guidance to

the trial courts in exercising that discretion, commonly referred to as the “Binger

test”:

It follows, of course, that a trial court can properly exclude the

testimony of a witness whose name has not been disclosed in

accordance with a pretrial order. The discretion to do so 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 sense refers to the

56

surprise in fact of the objecting party, and it is not dependent on the

adverse nature of the testimony. Other factors which may enter into the

trial court’s exercise of discretion are: (i) the objecting party’s ability

to cure the prejudice or, similarly, his independent knowledge of the

existence of the witness; (ii) the calling party’s possible intentional, or

bad faith, noncompliance with the pretrial order; and (iii) the possible

disruption of the orderly and efficient trial of the case (or other cases).

If after considering these factors, and any others that are relevant, the

trial court concludes that use of the undisclosed witness will not

substantially endanger the fairness of the proceeding, the pretrial order

mandating disclosure should be modified and the witness should be

allowed to testify.

Id. at 1313-14 (emphasis added) (internal citations omitted). The rule announced by

the court was not limited to a trial court’s determination to admit but also expressly

applied to exclusion as well. Applying this test, the Binger court found that the non-

disclosure was intentional, that it caused “surprise and disruption,” that there was an

“inability to alleviate,” and that King Pest Control was prejudiced. Id. at 1314-15.

The court concluded that the Fourth District correctly ordered a new trial due to the

trial court’s erroneous ruling permitting the Bingers’ undisclosed witness to testify.

Id.

2. Does Binger’s holding apply to the trial court’s decision to exclude as well

as admit untimely disclosed witness testimony under the Pedroza 22 test?

In rejecting application of Binger, despite clear language in Binger stating it

applied to decisions to admit as well as exclude, the majority asserts the Binger

decision should be limited to wrongful admission of undisclosed testimony. The

22

Pedroza v. State, 291 So. 3d 541 (Fla. 2020).

57

majority concludes that any portion of Binger that may speak to a court’s decision

to exclude undisclosed testimony is “pure dictum”:

In sum, Binger concerned undisclosed witness testimony that was

improperly allowed and should have been excluded due to prejudice to

the other party. Binger did not concern undisclosed testimony that was

improperly excluded or what the trial court should have considered

before excluding undisclosed testimony. Thus, per Pedroza, the

holding of Binger is that where a party fails to disclose a witness by the

deadline set forth in a pretrial order, the trial court must consider

prejudice to the other party before exercising discretion to allow the

testimony. The Supreme Court’s statement about what a trial court

should consider before excluding an undisclosed witness’s testimony

was pure dictum.

Ante, p. 12-13. Following the analysis method modeled to us in Pedroza in

determining what constitutes a holding, I reach the opposite conclusion.

As the majority observes, the Florida Supreme Court in Pedroza recently

provided clear direction for lower courts in discerning holding versus dictum.

Pedroza was sentenced to forty years incarceration for second-degree murder—an

act which she committed at the age of seventeen. 291 So. 3d at 543. She challenged

her conviction as cruel and unusual punishment under the Eighth Amendment. Id.

The supreme court considered statements from three cases that Pedroza relied on

and analyzed whether each statement was a holding, or, a “statement of law in a

judicial opinion that is not a holding,” i.e. dictum. Id. at 547 (citing State. v. Yule,

905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005) (Canady, J., specially concurring)).

58

In concluding that a statement in the case of Kelsey v. State that “all juvenile

offenders whose sentences [are] . . . longer than twenty years [] are entitled to judicial

review,” 23 was dictum, the Pedroza court provided the following three-pronged test:

“A holding consists of those propositions along the chosen decisional path or paths

of reasoning that (1) are actually decided, (2) are based upon the facts of the case,

and (3) lead to the judgment.” Id. (emphasis added) (quoting Yule, 905 So. 2d at

259 n.10). The Pedroza court explained that Kelsey addressed a narrowed, certified

question that did not require addressing the length of Kelsey’s sentence as the court

had done in dictum:

It was not necessary for this Court to address whether the length of

Kelsey’s sentence implicated Graham, as the narrow issue we framed

when we rephrased the certified question—whether “a defendant whose

original sentence violated Graham . . . and who was subsequently

resentenced prior to July 1, 2014, [is] entitled to be resentenced

pursuant to the provisions of chapter 2014-220”—was dispositive.

Kelsey, 206 So. 3d at 6.

291 So. 3d at 547 (emphasis added). The court ultimately opined that the language

of Kelsey mandating review on juvenile sentences longer than twenty years was

dictum “[g]iven that the Court in Kelsey expressly and repeatedly stated that it was

narrowly deciding only the issue framed by the rephrased certified question, and

that the ‘decisional path’ or ‘path of reasoning’ in Kelsey is less than clear[.]” Id. at

547-48 (emphasis added).

23

Id. (quoting Kelsey v. State, 206 So. 3d 3, 8 (Fla. 2016)).

59

Applying the three-pronged Pedroza test, it is clear the Binger court’s holding

addresses what test trial courts are to apply when facing late or undisclosed witness

testimony.

a. Pedroza factor 1—Actually decided.

To determine what Binger “actually decided,” we look to how the court

framed the issue from the outset of the case: “In this civil proceeding, we endeavor

to reconcile conflicting district court decisions regarding the effect of a pretrial

failure to disclose the names of witnesses.” 401 So. 2d at 1311 (emphasis added).

Throughout the opinion, the court continued with similar language regarding a trial

court’s handling of the failure to disclose witness names, and at no point did the

court limit its opinion to only a decision of admission rather than exclusion:

• “The Bingers argue here that the law in Florida is well-settled to the effect

that impeachment witnesses need not be disclosed prior to trial.”

• “[W]e accept neither the Bingers’ nor King Pest Control’s view of the role

of witness disclosure in civil trial practice.”

• “Conceding, however, the existence of a confusing string of witness

disclosure cases[.]”

• “Florida’s district courts seem to have taken four approaches to the

problem of pretrial witness disclosure.”

• “That approach places all problems regarding the testimony of undisclosed

witnesses within the broad discretion of the trial judge.”

• “The only prior decision of this Court directly addressing the issue of

witness disclosure leaned toward this fourth approach.”

60

Id. at 1311-13 (emphasis added).

As the Binger court was “endeavor[ing] to reconcile conflicting district court

decisions” regarding the standard applied by trial courts when faced with late

disclosed witnesses, 401 So. 2d at 1311, it must be considered, then, whether those

district court decisions were limited to cases involving admission of late disclosed

evidence or whether they addressed both admission and exclusion. The following is

a chart of all district court opinions addressed by Binger in this context and whether

the underlying trial courts admitted or excluded the witnesses:

WHETHER TRIAL COURT

DCA CASES EXPRESSLY LISTED/DISCUSSED IN

ADMITTED OR EXCLUDED

BINGER

WITNESS TESTIMONY

King Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th ADMITTED

DCA 1980)

Mall Motel Corp. v. Wayside Rests., Inc., 377 So. 2d EXCLUDED

41 (Fla. 3d DCA 1979)

Hartstone Concrete Prod. Co. v. Ivancevich, 200 EXCLUDED

So. 2d 234 (Fla. 2d DCA 1967)

A.A. Holiday Rent-A-Car, Inc. v. Edwards, 190 So. EXCLUDED

2d 362 (Fla. 3d DCA 1966)

Williamson Truck Lines, Inc. v. Kellar, 301 So. 2d ADMITTED

818 (Fla. 3d DCA 1974)

Atlas v. Siso, 188 So. 2d 344 (Fla. 3d DCA 1966) EXCLUDED

Fuller v. Rinebolt, 382 So. 2d 1239 (Fla 4th DCA ADMITTED

1980)

McDonald Air Conditioning, Inc. v. John Brown, Inc., EXCLUDED

285 So. 2d 697 (Fla 4th DCA 1973)

Green v. Shoop, 240 So. 2d 85 (Fla. 3d DCA 1970) EXCLUDED

Brevard Cnty. v. Interstate Eng’g Co., 224 So. 2d 786 EXCLUDED

(Fla. 4th DCA 1969)

61

Alvarez v. Mauney, 175 So. 2d 57 (Fla. 2d DCA 1965) EXCLUDED

TOTALS: ADMISSION: 3

EXCLUSION: 8

Thus, not only did Binger expressly state that it was addressing the issue of late-

disclosed witnesses which would encompass both the decision to admit as well as to

exclude, the district court opinions analyzed by the Binger court also confirm that

the supreme court was addressing both scenarios.

In addition to addressing both exclusion and admission, several of the district

court cases noted above expressly discussed whether a prejudice standard should be

applied or whether a trial court should be permitted to strictly enforce without regard

to the effect on the objecting party. For starters, in the very case analyzed by Binger,

that being King Pest Control v. Binger, the Fourth District proposed that the trial

court consider prejudice to the objecting party when deciding whether to exclude the

late-disclosed witness: “Should either party offer an unlisted witness, objection by

the opposition requires the trial judge to determine whether the witness should be

allowed. If no prejudice will accrue to the objecting party, the witness should be

heard.” 379 So. 2d at 663 (emphasis added). A similar test was set out in Fuller v.

Rinebolt, another case Binger analyzed:

[T]he trial court has broad discretion in determining whether or not to

allow a witness to testify where the opposing party has not had prior

notice as to his identity. . . . [W]hile the lower court may exclude the

testimony of a witness if the testimony is prejudicial to a party, the

62

testimony should be allowed in the absence of a showing of such

prejudice.

382 So. 2d 1239, 1241 (Fla. 4th DCA 1980) (emphasis added) (citing Colonnell v.

Mitchels, 317 So. 2d 799 (Fla. 2d DCA 1975)). Contrarily, another decision cited

in Binger concluded that strict enforcement without regard to the effect on the

objecting party was the appropriate standard:

We have not overlooked the thrust of the argument that the witness was

an expert and as such not subject to the wide area of discovery

procedures to which other types of witnesses are exposed. Or that as

an expert his testimony could not surprise the plaintiff.

Notwithstanding the status of the witness as an expert nor the lack of

surprise the trial court has the inherent authority to insist upon

compliance with any reasonably imposed pretrial requirements

designed to expedite the trial of litigated matters.

Brevard Cnty. v. Interstate Eng'g Co., 224 So. 2d 786, 788 (Fla. 4th DCA 1969)

(emphasis added).

Although not a district court decision, Binger also analyzed and synthesized

into its holding Rose v. Yuille, 88 So. 2d 318 (Fla. 1956), which the supreme court

described as “[t]he only prior decision of this Court directly addressing the issue of

witness disclosure.” 401 So. 2d at 1313. In Rose, the supreme court addressed

whether a trial court abused its discretion in excluding a late-disclosed witness, the

exact scenario which the majority here claims the Binger holding should not extend.

Thus, after considering how the Binger court framed the issue it was

addressing, and examining the cases analyzed by Binger, the issue “actually

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decided” was establishing a test for trial courts to apply when faced with the decision

to admit or exclude late-disclosed witness testimony.

b. Pedroza factor 2—Based on the facts of the case.

In Binger, the trial court was faced with the question of whether to admit or

exclude a witness that the plaintiff had not disclosed in its witness list as required by

a pretrial order. The Binger court announced a test for courts to apply when faced

with such late disclosure. Thus, the holding of the case, the test which was

articulated by Binger, was based on these pertinent facts.

c. Pedroza factor 3—Led to the judgment.

Binger articulated a test for how trial courts were to exercise their discretion

in dealing with late-disclosed witness testimony:

It follows, of course, that a trial court can properly exclude the

testimony of a witness whose name has not been disclosed in

accordance with a pretrial order. The discretion to do so 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 sense refers to the

surprise in fact of the objecting party, and it is not dependent on the

adverse nature of the testimony. Other factors which may enter into the

trial court’s exercise of discretion are: (i) the objecting party’s ability

to cure the prejudice or, similarly, his independent knowledge of the

existence of the witness; (ii) the calling party’s possible intentional, or

bad faith, noncompliance with the pretrial order; and (iii) the possible

disruption of the orderly and efficient trial of the case (or other cases).

If after considering these factors, and any others that are relevant, the

trial court concludes that use of the undisclosed witness will not

substantially endanger the fairness of the proceeding, the pretrial order

mandating disclosure should be modified and the witness should be

allowed to testify.

64

Id. at 1313-14 (emphasis added) (citations omitted). Binger then applied this test to

the facts of the case before it and concluded that all factors supported the Fourth

District’s decision to grant a new trial. As to the factor of “the calling party’s

possible intentional, or bad faith, noncompliance with the pretrial order,” the court

noted that the Bingers “knew, of course who [the undisclosed witness] was and what

he would say,” and that there was “intentional nondisclosure.” Id. at 1314. As to

the factor of prejudice, which the court defined as “surprise in fact of the objecting

party,” as well as the factor of “possible disruption of the orderly and efficient trial

of the case,” Binger noted the “surprise and disruption occasioned by the use of the

unlisted witness.” Id. Finally, as to the factor of “the objecting party’s ability to

cure the prejudice,” the court pointed out King Pest Control’s “inability to alleviate

these problems.” Id. at 1314-15. Having considered all the factors of the “Binger

test,” the Binger court concluded that the Fourth District was “correct in directing a

new trial.” Id. at 1315.

This articulated test resolved the central issue of Binger, that being to

“reconcile conflicting district court decisions regarding the effect of a pretrial failure

to disclose the names of witnesses.” 401 So. 2d at 1311. As previously discussed,

the district court decisions were in conflict as to whether prejudice to the objecting

party should be considered or whether trial courts should be permitted to strictly

enforce their orders. Thus, the test announced by the court clearly led to the

65

judgment of reconciling conflicting district court opinions into a singular, uniform

standard for trial courts to use when facing late-disclosed witnesses.

I recognize the majority reaches the opposite conclusion in applying its

Pedroza analysis, and I would respectfully say that may be due to the majority’s sole

focus on the factual prong of the Pedroza test. The majority opines as follows:

Applying the framework set forth in Pedroza, the Supreme Court’s

statement in Binger – that if the trial court finds that the undisclosed

witness will not prejudice the other party after considering the factors

listed in Binger, then the witness should be allowed to testify – was

dictum. The facts of Binger were that the trial court allowed the

plaintiffs to introduce testimony from a witness that the plaintiffs failed

to disclose by the deadline set forth in the pretrial order. The Florida

Supreme Court found that the defendant was prejudiced by the

testimony of the undisclosed witness. The issue actually decided in

Binger – based upon its facts – was that the trial court should not have

permitted the plaintiffs to introduce the undisclosed witness’s

testimony where the defendant would suffer prejudice from the

undisclosed witness’s testimony.

Ante, at 12. I concede that the majority is correct that the facts of Binger involve

admission of late-disclosed witness testimony, and the majority would in turn need

to concede that the trial court in Binger was faced with the question of whether to

admit or exclude the subject late-disclosed witness testimony. The question is

whether the decision to admit was a part of the chosen decisional path of Binger.

When all three portions of the Pedroza analysis are considered in tandem, that being

(1) what is actually decided, (2) based upon the facts of the case, and (3) which leads

66

to the judgment, Binger’s holding concerns the broader issue of what standard trial

courts are to apply when faced with late-disclosed witness testimony.

The majority’s analysis focuses solely on certain facts of Binger without

sufficient consideration of how the supreme court framed the issue it was facing.

Pedroza is instructive on this point. As discussed above, Pedroza addressed a

statement in Kelsey v. State where the Kelsey court opined: “[W]e conclude that our

decision in Henry v. State, 175 So. 3d 675 (Fla. 2015), requires that all juvenile

offenders whose sentences meet the standard defined by the Legislature in chapter

2014–220, a sentence longer than twenty years, are entitled to judicial review.”

Kelsey, 206 So. 3d at 8. In deciding whether to treat this statement as dicta versus

holding, Pedroza focused on how the Kelsey court expressly defined the issue it was

facing, which was: “[W]hether ‘a defendant whose original sentence

violated Graham [v. Florida, 560 U.S. 48 (2010)] . . . and who was subsequently

resentenced prior to July 1, 2014, [is] entitled to be resentenced pursuant to the

provisions of chapter 2014-220.’” 291 So. 3d at 547 (quoting Kelsey, 206 So. 3d at

6). Because the issue framed in Kelsey involved whether Kelsey’s original sentence

violated Graham (which it clearly did), 24 it was unnecessary for the court to reach

24

In Graham, the Supreme Court held that a life sentence without the

possibility of parole constitutes cruel and unusual punishment under the Eighth

Amendment when imposed for nonhomicide offenses committed by a juvenile. 560

U.S. at 74.

67

whether Kelsey’s current sentence (which was not his original sentence, but a

product of a resentence) entitled him to another resentencing:

Given that the Court in Kelsey expressly and repeatedly stated that it

was narrowly deciding only the issue framed by the rephrased certified

question, and that the “decisional path” or “path of reasoning” in Kelsey

is less than clear, it makes more sense to read the questionable language

as a statement of the necessity of including judicial review and an

opportunity for early release in the remedy for any Graham violation

and not as a means of defining when an Eighth Amendment violation

occurs.

291 So. 3d at 547-48. Thus, the Pedroza court looked at how the issue was framed

by the deciding court in determining the scope of the Kelsey court’s holding.

In similar fashion, the Binger court framed the issue it was facing at the outset

of the case: “In this civil proceeding, we endeavor to reconcile conflicting district

court decisions regarding the effect of a pretrial failure to disclose the names of

witnesses.” 401 So. 2d at 1311 (emphasis added). The supreme court reiterated this

view of the issue throughout the opinion. Pursuant to Pedroza, it is appropriate to

look at how the supreme court defines the issue before it when attempting to discern

the decisional path and binding holding from the case. The Binger court framed the

issue it was addressing as the broader question of resolving conflicting district court

opinions on how trial courts are to handle late-disclosed witnesses, and not a limited

scope of admission only.

In reaching this conclusion, I am mindful of our supreme court’s self-limiting

guidance from Thourtman v. Junior:

68

Because the issue of detention beyond first appearance pending a bail

hearing was not raised by the facts in Arthur, implicated by either of

the certified questions in Arthur, or analyzed or discussed in Arthur, the

language from Arthur relied on by Thourtman—despite the fact that

it was self-described as a holding—constitutes dicta and does not

control our decision here.

338 So. 3d 207, 212 (Fla. 2022) (emphasis added). It is true that merely stating “we

hold” does not make something a holding. I see that as starkly different from our

present case where Binger did not simply say “we hold,” but rather defined the issue

before it, and that issue was based on facts before the supreme court. While

Thourtman stands for the proposition that appellate courts do not have the power to

reach any issue they please by saying “we hold,” Pedroza gives necessary latitude

to appellate courts to define the issues before them from existing facts before them.

3. Two additional arguments raised by the majority.

I will close this portion of my analysis by addressing two additional points

raised by the majority: (1) whether it is inappropriate to apply Binger to changed or

undisclosed witness testimony as opposed to only circumstances involving the

failure to disclose a witness’s name; and (2) whether a “strict enforcement” standard

exists apart from Binger, and whether the January 2025 rule changes “buttress” that

alleged “strict enforcement” standard.

a. Application of Binger to changed or undisclosed witness testimony

First, the majority briefly claims that district courts have improperly extended

Binger to cases involving not just undisclosed witness names, but undisclosed,

69

changed witness testimony. The majority does not clarify its reasoning nor does it

tie that observation to its holding. The question of whether Binger applies to

changed witness testimony was recently addressed and decided by our court in

Richardson v. Tenery, 422 So. 3d 1216 (Fla. 6th DCA 2025), and the majority

presents no argument as to why this court should recede from its holding in

Richardson.

In Richardson, the plaintiff disclosed a treating medical doctor as one of her

witnesses. 422 So. 3d at 1218. At trial, the defense objected when the doctor

testified as to the cost of plaintiff’s future medical care. 422 So. 3d at 1220. The

trial court overruled the objection and the defendant challenged the decision on

appeal. Id. This court analyzed the trial court’s admission under Binger, and we

held that the defendant was prejudiced by the admission of the undisclosed opinion

testimony: “[W]e conclude that the trial court abused its discretion in finding that no

Binger violation occurred when Tenery offered the undisclosed expert opinion of

Dr. BiFulco regarding her future medical treatment and costs.” 422 So. 3d at 1226.

Thus, we applied Binger in the context of a disclosed witness who attempted to

provide testimony beyond what was timely disclosed pursuant to the pretrial order.

In addition to the Sixth District, all districts have applied Binger to matters

involving undisclosed, changed witness testimony. See Miller v. Conney, 413 So.

3d 306, 309 (Fla. 1st DCA 2025) (“Although Binger involved an undisclosed

70

witness, the Binger analysis has subsequently been applied to cases where an expert

changes his or her opinion or gives a new opinion, which results in surprise and

prejudice to the opposing party.”) (quotations omitted); Moore v. Gillett, 96 So. 3d

933, 941 (Fla. 2d DCA 2012) (applying Binger to review whether testimony by

previously disclosed expert that objecting party claimed was “new” or in conflict

with prior testimony should have been excluded, and concluding trial court did not

err in admitting testimony); Scarlett v. Ouellette, 948 So. 2d 859, 862 (Fla. 3d DCA

2007) (“In order for the trial court to exclude a witness or a witness’ testimony from

trial, the objecting party must establish that he or she was ‘surprised in fact’ by the

undisclosed witness or testimony.”); Grau v. Branham, 626 So. 2d 1059, 1061 (Fla.

4th DCA 1993) (“Using a Binger analysis on this case . . . we find that the defendant

was surprised in fact by the changed testimony of the two doctors.”); Cooper v.

Gonzalez, 374 So. 3d 841, 843–44 (Fla. 5th DCA 2023) (“Binger and its progeny

provide that testimony, such as previously undisclosed expert testimony in the form

of a new witness, undisclosed opinion, or substantially changed opinion, may be

excluded when it is first offered after a critical point in time, if allowing it would

result in surprise and substantial prejudice.”). The Florida Supreme Court has

arguably adopted this approach as well. See Scipio v. State, 928 So. 2d 1138, 1145

(Fla. 2006) (“Similarly, as this Court concluded in Evans . . . in finding error in a

litigant’s failure to disclose a change in an expert’s opinion, ‘[a] party can hardly

71

prepare for an opinion that it doesn’t know about, much less one that is a complete

reversal of the opinion it has been provided.’” (quoting Off. Depot, Inc. v. Miller,

584 So. 2d 587, 590 (Fla. 4th DCA 1991))).

Beyond the fact that this Court has already applied Binger in this context in

Richardson as discussed above, the application of Binger to undisclosed witness

testimony is both logical and appropriate. A changed or undisclosed expert opinion

in violation of a pretrial order can be “tantamount to permitting an undisclosed

adverse witness to testify.” Dep’t of HRS v. J.B. By & Through Spivak, 675 So. 2d

241, 244 (Fla. 4th DCA 1996); see also Grau, 626 So. 2d at 1061 (“Binger dealt

with the failure to disclose a witness, although its teachings have been applied where

the presentation of a changed opinion is tantamount to permitting an undisclosed

adverse witness to testify.”). Again, while it does not appear the majority in any

way pursues this argument, cases from our court, all other districts, and the Florida

Supreme Court indicate that Binger is appropriately applied to circumstances of

changed witness testimony.

b. Whether a “strict enforcement” standard exists apart from Binger,

and whether the January 2025 rule changes buttress that alleged

“strict enforcement” standard.

Second, the majority claims that a strict enforcement standard exists apart

from Binger and that certain, recent rule amendments “buttress” the majority’s

position that strict enforcement was the existing standard prior to the rule

72

amendments taking effect. I do not agree that the 2025 rule amendments provide

guidance as to what standard existed during the trial of this case in June 2024, nor

do I agree that the law is clear that a strict enforcement standard existed relative to a

trial court’s decision to exclude late-disclosed witness testimony during that same

timeframe.

The majority concedes that on January 1, 2025, significant rule changes went

into effect regarding a trial court’s abilities to enforce pretrial orders:

The new version of Rule 1.200, which became effective January 1,

2025, . . . now imposes an affirmative duty on trial courts to enter a case

management order which specifies a deadline for “completion of expert

discovery.” Fla. R. Civ. P. 1.200(d)(2)(E) (2025). The rule now also

provides that “[t]he 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) (2025) (emphasis

added). Subsection (e)(1) reiterates this requirement, again stating that

“Deadlines in a case management order must be strictly enforced unless

changed by court order.” Fla. R. Civ. P. 1.200(e)(1) (2025) (emphasis

added).

....

Our sister courts’ interpretation of Binger cannot survive the Supreme

Court’s mandate that case management orders be “strictly enforced.”

Additionally, an amendment to Florida Rule of Civil Procedure 1.380

that also took effect on January 1, 2025, sets a new standard that is

different than our sister court’s interpretation of Binger for excluding

certain specific categories of undisclosed witnesses and evidence.

Under Rule 1.380(d), as amended, “[i]f a party fails to provide

information or identify a witness as required by rule 1.280(a) or (g), the

party is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.” Thus, for undisclosed witnesses

or evidence falling within the scope of Rule 1.380(d), a trial court now

73

must exclude the evidence unless the failure to disclose was

“substantially justified or…harmless.” This is a significantly different

standard than determining whether the other party would suffer

prejudice under Binger.

....

[T]he version of Florida Rule of Civil Procedure 1.200 in effect at the

time of the proceedings below did provide that a trial court’s case

management order “controls the subsequent course of the action unless

modified to prevent injustice.” Fla. R. Civ. P. 1.200(d) (2024)

(emphasis added). . . . The current version of Rule 1.200, which became

effective January 1, 2025, removes the reference to “prevent injustice”

and simply provides that “Deadlines in a case management order must

be strictly enforced unless changed by court order.” Fla. R. Civ. P.

1.200(e)(1).

Ante, at 22, 22-23 n.7, 24 n.8 (emphasis in original).

At the outset, I express my agreement with the majority that the Binger test

stands directly opposed to these recent rule changes. At any point in the last several

decades since Binger, the Florida Supreme Court could have provided trial courts

with the ability to strictly enforce their case management orders. In January 2025,

the Florida Supreme Court appears to have done just that. See In re Amends. to Fla.

Rules of Civ. Proc., 402 So. 3d 925 (Fla. 2024). As the majority recites, among other

significant changes, the supreme court amended the Florida Rules of Civil Procedure

to mandate that trial courts strictly comply with pretrial orders which stands in direct

opposition to Binger’s prejudice determination. Id. at 931; see Fla. R. Civ. P.

1.200(e)(1) (2025) (“Deadlines in a case management order must be strictly enforced

unless changed by court order.” (emphasis added)); Marine Design Dynamics, Inc.

74

v. All City Constr. Servs., LLC, 50 Fla. L. Weekly D2653, D2656 (Fla. 3d DCA Dec.

17, 2025) (Gooden, J., concurring) (“But these changes [to rule 1.200] are

incompatible with Binger. The core tension is self-evident: A judge cannot

simultaneously ‘strictly enforce’ the discovery deadlines, as the Rules now demand,

while also applying a prejudice analysis, that functionally excuses the violation of

that very deadline.”); contra Lugo, 487 So. 2d at 323 (“[E]xclusion of the witness

for failure to strictly comply with the pretrial order is indefensible [under a Binger

analysis].” (emphasis added)).

While the majority claims these recent changes to the procedural rules buttress

its rejection of Binger, rules of construction lead me to a different conclusion. Under

the reenactment canon, “a significant change in language is presumed to connote a

different meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 256 (2012). The rule changes discussed above were

significant to say the least. If the rules have undergone a significant change, then I

must conclude the rules convey something different than they did before—not that

the changes “buttressed” what already existed.

I concede that under the present version of the rules, trial courts now have a

duty to strictly enforce their case management orders, however that was not the rule

in place at the time of the trial in our case sub judice. Trial courts and parties to a

case are governed by procedural law and rules in effect at the time of the relevant

75

procedural event. See Whittaker v. Eddy, 147 So. 868, 873 (Fla. 1933) (“It is our

opinion that as a general rule the parties are governed by the law of pleading,

practice, and procedure as it may exist at the time of their proceeding.”); see also

State v. Espinoza, 264 So. 3d 1055, 1059 (Fla. 3d DCA 2019) (“[W]e apply the

Florida Statutes and rules of procedure as they existed at the time of the alleged

conduct to the facts of this case to determine whether the trial court erred in

dismissing the information filed against Espinoza.”). Here, that relevant event was

the exclusion of the challenged testimony based on untimely disclosure. Therefore,

the state of the law and the rules of procedure in effect in June 2024, which was prior

to the January 1, 2025 rule changes, must apply.

Finally, while I wish that I could agree with the majority that if Binger does

not apply, we could merely revert to a “strict compliance” standard, I question

whether that would be the case. Prior to Binger, the last Florida Supreme Court case

that dealt with late-disclosed witnesses was Rose v. Yuille. See 401 So. 2d at 1313

(Binger court describing Rose v. Yuille as “the only prior decision of this Court

directly addressing the issue of witness disclosure”). In Rose, the plaintiff failed to

disclose a witness in accordance with the court’s order at pretrial conference. Id. at

319. The plaintiff attempted to call the late-disclosed witness at trial, and the trial

court excluded the witness’s testimony entirely. Id. On appeal, the supreme court

set forth the issue to be decided as follows: “The point for determination is whether

76

or not the trial court committed error in refusing to permit the witness C. L. Macurda

to testify at the trial.” Id. In holding that the trial court did not abuse its discretion

in excluding the witness, the court opined:

Since the testimony of Macurda was not proffered at any stage of the

proceedings, there is no way to tell whether or not its rejection was

injurious to the plaintiff.

In his ‘Notice of Disclosure’ counsel for plaintiff should have advised

the court and opposing counsel what Macurda would testify to, that his

testimony was material and essential to prove his case and that there

could be no lawful objection to its introduction in evidence. . . .

Failing in this, in view of the fact that the trial court has broad discretion

in conducting a trial, we find no abuse of discretion in rejecting

Macurda’s testimony.

Id. Although its reasoning was hardly robust, the supreme court outlines what

appears to be a prejudice test to be applied to a trial court’s decision to exclude

witness testimony. I am by no means advocating for a reversion to Rose v. Yuille,

but instead point out that the majority’s formula of “no Binger = strict enforcement”

does not square with prior existing supreme court precedent.

At bottom, the majority purports to fix a problem that has already been fixed,

yet simultaneously creates a problem that need not be created. By imposing a new

standard other than Binger on the last few remaining appeals involving late

disclosure exclusions which were tried prior to January 1, 2025, we effectively pull

the rug out from under the parties and trial courts who had followed Binger in

deciding not just one, but all matters involving the pretrial late disclosure of witness

77

testimony. To the extent there may be any existing errors by trial courts that require

correction on appeal, our Court is now insisting on applying a “strict enforcement”

standard to the errors raised on appeal despite the fact that the Binger test was applied

to other late disclosure issues faced throughout the trial. This is hardly a fair result

for litigants who carefully conducted their trials under Binger. Though I stand

alongside the majority’s expressed concerns about Binger’s effect on case

management (again, prior to the rule changes in January 2025 that have now negated

Binger), I also stand with Judge Gooden’s observations that Binger is a known

standard that skilled attorneys have navigated for decades: “[Binger has been] a

cornerstone of Florida’s jurisprudence since 1981. Seasoned trial lawyers know its

prejudice analysis and how to effectively navigate its contours when faced with

undisclosed or late-disclosed evidence, witnesses, or testimony.” Marine Design

Dynamics, Inc., 50 Fla. L. Weekly D2653, D2656 (Fla. 3d DCA Dec. 17, 2025)

(Gooden, J., concurring). While this particular case results in a “no harm-no foul”

scenario as it is an affirmance whether we apply Binger or not, other cases and

litigants may not fare as well.

B. Application of Binger to the Present Case

We review a trial court’s decision to admit or exclude witness testimony under

Binger for abuse of discretion. See Monzón v. R.J. Reynolds Tobacco Co., 388 So.

3d 930, 931 (Fla. 3d DCA 2024) (“[The] standard of review on a trial court’s

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evidentiary rulings is abuse of discretion.” (quotation omitted)); see also Walerowicz

v. Armand-Hosang, 248 So. 3d 140, 146 (Fla. 4th DCA 2018) (“Admission or

exclusion of the testimony of a witness in violation of a trial preparation order is

within the trial court’s discretion.” (citing Binger, 401 So. 2d at 1313-14)).

Along with prejudice to the opposing party (defined as that involving

“surprise in fact”), the three additional factors set forth in Binger when analyzing

exclusion of testimonial evidence are:

(i) the objecting party’s ability to cure the prejudice or, similarly, his

independent knowledge of the existence of the witness; (ii) the calling

party’s possible intentional, or bad faith, noncompliance with the

pretrial order; and (iii) the possible disruption of the orderly and

efficient trial of the case (or other cases).

401 So. 2d at 1314. Binger also expressly permits trial courts to consider “any other

factors that are relevant.” Id.

Application of Binger to the present facts results in an unremarkable

affirmance. Appellee’s two expert witnesses were disclosed well past the court-

ordered deadline, and the opinions were produced so close to trial that Appellant

would not have had sufficient time to prepare an appropriate response to the same.

The trial court was faced with either a disruption of the orderly and efficient trial of

the case if a continuance would have been granted, or substantial unfairness to

Appellee if trial continued forward as scheduled. The trial court did not abuse its

discretion in striking Appellant’s experts. Thus, affirmance is appropriate.

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C. Response to Additional Concurrences

After circulating this concurring opinion, I received additional concurrences

from other members of the court, two of which–Judge Gannam’s and Judge Pratt’s–

were expressly relied upon by the majority. To ensure the timely and efficient

issuance of this en banc opinion, I have not revised my opinion but instead am

separately responding to the portions of the additional concurrences that directly or

indirectly address points I have made above.

Judge Gannam provides a detailed analysis of Florida law relative to how dicta

are discerned from holdings. Relative to the Pedroza test, he concludes that the

Florida Supreme Court’s holding on what constitutes a holding is in fact a holding.

Ante, at 39 (Gannum, J., concurring) (“Pedroza’s new definitional test for holding

is part of the opinion’s holding because it was actually decided on the court’s chosen

decisional path of reasoning, leading from the case facts to the judgment.” (citing

Pedroza, 291 So. 3d at 547)). On this we agree as I have applied the Pedroza test in

my concurrence as well.

Judge Gannam also concludes that decisions need not be limited to the

narrowest possible reading of the law and facts, but, instead, we must look to the

chosen decisional path of the opining court. Id. at 41-42 (“And if we determine the

proposition was not necessary to the prior decision because the court could have

ruled more narrowly or also ruled on a separate question that would have disposed

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of the case by itself, we must still determine whether the proposition was nonetheless

decided on the court’s chosen decisional path from facts to judgment.”) (emphasis

in original). In other words, the Florida Supreme Court has the power to express

whether it is more narrowly or more broadly addressing the issue before it. Id. at

36-37 (“They ‘conclude[] as a normative matter that judges should be allowed to

create holdings broader than necessary’ and ‘that judges are, in fact, allowed to do

so in practice.’” (citing Michael Abramowicz & Maxwell Stearns, Defining Dicta,

57 Stan. L. Rev. 953, 1058 (2005))). On this, as set forth in my concurrence above,

I also agree.

Where I diverge from Judge Gannam’s concurrence is in his application.

Contrary to the majority, rather than reading Binger’s pronouncements relative to a

trial court’s exclusion of evidence as not part of the holding and “pure dictum,” ante,

at 13, 25 Judge Gannam concludes that a portion of Binger does in fact apply to

exclusion decisions. Ante, at 43 (“The second rule [of Binger] proceeds from the

first: “‘It follows, of course, that a trial court can properly exclude the testimony of

a witness whose name has not been disclosed in accordance with a pretrial order.

The discretion to do so must not be exercised blindly[.]’”) (emphasis added) (quoting

25

The majority also states: “In sum, Binger concerned undisclosed witness

testimony that was improperly allowed and should have been excluded due to

prejudice to the other party. Binger did not concern undisclosed testimony that was

improperly excluded or what the trial court should have considered before excluding

undisclosed testimony.” Ante, at 12.

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Binger, 401 So. 2d at 1313). Rather than denying that Binger’s holding applies to

exclusion decisions, Judge Gannam asserts that Binger established one rule for when

a trial court admits late-disclosed witnesses and a separate rule for when trial courts

decide to exclude the same. He argues that the rule for admission requires

consideration of prejudice to the objecting party: “Binger does require a trial court

to consider prejudice to the objecting party before allowing undisclosed witness

testimony.” Id. at 42 (emphasis in original). However, Judge Gannam describes the

rule for excluding as “begin[ing] and end[ing] with trial court discretion” with no

requirement to consider prejudice to the objecting party. Id. at 43.

I cannot agree with Judge Gannam’s conclusion that Binger contains two

binding, alternate holdings relative to a trial court’s decision to admit rather than

exclude a late-disclosed witness. I do not see the Binger court anywhere laying out

two separate rules as Judge Gannam proposes. Beyond that, as discussed more fully

in section II(A)2.c. above, the same, singular rule which the court describes as

applying to exclusion decisions was applied by the Binger court to the trial court’s

decision to admit. By applying the one and only rule it announced, the supreme

court was making clear its chosen decisional path and the scope of its holding.

Finally, I cannot agree with Judge Gannam’s reading of the following rule set

forth in Binger:

It follows, of course, that a trial court can properly exclude the

testimony of a witness whose name has not been disclosed in

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accordance with a pretrial order. The discretion to do so 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 sense refers to the

surprise in fact of the objecting party, and it is not dependent on the

adverse nature of the testimony. Other factors which may enter into the

trial court's exercise of discretion are: (i) the objecting party's ability to

cure the prejudice or, similarly, his independent knowledge of the

existence of the witness; (ii) the calling party's possible intentional, or

bad faith, noncompliance with the pretrial order; and (iii) the possible

disruption of the orderly and efficient trial of the case (or other cases).10

If after considering these factors, and any others that are relevant, the

trial court concludes that use of the undisclosed witness will not

substantially endanger the fairness of the proceeding, the pretrial order

mandating disclosure should be modified and the witness should be

allowed to testify.

401 So. 2d at 1313-14 (internal citations omitted). While I concede there are a

mixture of “musts” and “shoulds” in the court’s pronouncement, it is clear in reading

the opinion as a whole that the court was announcing a rule, not a suggestion. As

the court states in its concluding paragraph, “Applying the above rules to the instant

case . . . .” Id. at 1314 (emphasis added). The court then applies, point by point, the

rule quoted above which it had just pronounced 26 and found that, “King Pest Control

was prejudiced in the presentation of its case, and that the district court was correct

in directing a new trial.” Id. at 1315. This is the epitome of a holding, not dictum.

I make a final observation of Judge Gannam’s concurrence where he speaks

to an appellate court’s ability to address the issues before it more narrowly or more

A full discussion of the how the Binger court applied its prejudice test and

26

accompanying factors is set forth in section II(A)2.c. above.

83

broadly depending on the court’s chosen decisional path. I make a similar

observation of Judge Pratt’s concurring opinion in which he rightly observes that a

decision must be tethered to its facts. 27 Ante, at 50 (Pratt, J., concurring). I cannot

disagree that our supreme court could have opted to narrow its decision to one only

applying to circumstances involving admission of late-disclosed witness testimony.

It is a “fact” that the trial court opted to admit rather than exclude the particular

27

While it is not necessary to engage in a deep dive on this point as the facts

of Binger clearly involve a trial court’s decision whether to admit or exclude

evidence, I note that Judge Pratt indicates that although Binger was reviewed under

conflict jurisdiction, the scope of the holding must be tethered to the facts in Binger:

All that to say, as a general proposition, a statement by the supreme

court in a conflict jurisdiction case—or any other case under article V,

section 3(b)(3)-(4)—has to be tethered to the district court decision on

review and the facts underlying that case in order for a statement to be

a holding and not dicta under Pedroza. As applied to Binger, that

means that a statement by the supreme court in Binger would need to

be tethered to the Fourth District Court of Appeal’s decision in King

Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th DCA 1980), and the

facts underlying that case[.]

Ante, at 50-51 (Pratt, J., concurring) (footnote omitted). When considering matters

of conflict jurisdiction, our supreme court has also looked at the facts and holdings

of the conflict cases as well (Judge Pratt appears to largely agree with this per his

discussion in the footnote deleted from the quote above). See Love v. State, 286 So.

3d 177 (Fla. 2019) (court considered both facts of the case under review as well as

a discussion of factual background and holding of case in conflict); Robinson v.

State, 329 So. 3d 103, 106-07 (Fla. 2021) (discussing the case under review as well

as three certified conflict cases); Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla.

2000) (discussing in depth both the consolidated cases under review as well as the

facts of one of the certified conflict cases). I attempted to discuss the case on review

as well as the conflict cases referenced in Binger in my analysis section above.

84

witness in question. However, viewed more broadly, it is equally a “fact” that the

trial court was faced with a decision whether to admit or exclude a late-disclosed

witness.

Thinking of these potential decisional paths in the form of flow charts, we

could depict the narrower and the broader decisional paths as follows:

Narrower View of Decisional Path

Broader View of Decisional Path

The boxes depict the possible places upon the decisional path the Binger court could

have opted to direct its holding, and both paths fall within the facts faced by the

85

Binger court. Thus, either are viable options for the breadth and application of the

holding. The question simply becomes: What decisional path did the Binger court

choose? Beyond the fact that the rule announced by the court clearly stated it applied

to both admission as well as exclusion, the court’s opening sentence in Binger is:

“In this civil proceeding, we endeavor to reconcile conflicting district court decisions

regarding the effect of a pretrial failure to disclose the names of witnesses.” 401 So.

2d at 1311. That self-description by the Florida Supreme Court places it on the broad

path, not the narrow one. I note that neither the majority nor any of the concurrences

discuss the impact of the opening pronouncement in Binger court which reflects the

breadth of the issue the opinion addresses. Nor is there any effort to refute the

various portions of Binger, which I set out in detail in section II(A)2.a., which

broadly describe the issue of the case as one of the “problem of pretrial witness

disclosure” not an issue of admission versus exclusion. Nor is there any effort to

analyze the conflicting cases the Binger court was attempting to reconcile. Nor is

there any effort to refute that the Fourth District’s opinion on review, King Pest

Control v. Binger, expressly set forth a broad rule applicable to both exclusion as

well as admission of late-disclosed witnesses:

Should either party offer an unlisted witness, objection by the

opposition requires the trial judge to determine whether the witness

should be allowed. If no prejudice will accrue to the objecting party,

the witness should be heard. On the other hand, if the objector will be

prejudiced, then the court must determine whether the party offering

the witness should have foreseen the eventuality of needing to call the

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witness.

379 So. 2d at 663.

I do not believe this is a close call. The Florida Supreme Court had sufficient

facts before it to take a broader – rather than a narrower – view of the question of

exclusion versus admission of late-disclosed witnesses, and it clearly chose the

broader path. The rule announced in Binger relative to determining prejudice to the

objecting party applied to a trial court’s decision when faced with late-disclosed

87

witnesses, guiding the trial court on whether to admit or exclude the same. 28 This is

the binding holding of Binger. 29

28

Judge Gannam ends his concurrence with a footnote citation to Dade

County v. Brigham, 47 So. 2d 602 (Fla. 1950), which he alludes stands for the

proposition that the Florida Supreme Court can establish one test for allowance of a

party’s request and another for disallowance. I do not believe Brigham stands for

that proposition, but rather that the Brigham court held that a general rule of not

allowing expert fees to be taxed as costs does not prohibit a later court from

determining there to be an exception to the general rule. Id. at 605 (“We sustained

[in Inland Waterway Development Co. v. City of Jacksonville, 38 So. 2d 676 (Fla.

1948),] the invocation by the trial judge of the ‘general rule’ [of not treating expert

fees as taxable costs] and his exercise of sound judicial discretion in applying it. In

this case we sustain the trial judge for recognizing an exception to the ‘general rule’

and his exercise of sound judicial discretion.”). There are numerous cases that

establish a single decisional test for an issue without regard to the direction the lower

court chose in the case before it. For example, the three-factor test trial courts apply

when deciding continuances is not dependent on whether the court grants or denies

the continuance. See Dussan v. Zoghbi, 359 So. 3d 388 (Fla. 3d DCA 2023) (applied

three-factor continuance test and determined continuance was improperly denied);

Krock v. Rozinsky, 78 So. 3d 38 (Fla. 4th DCA 2012) (applied three factor

continuance test and determined continuance was improperly denied). The test

announced by the United States Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984), for ineffective assistance of counsel applies equally upon review

of decisions granting or denying such claims. See Wiggins v. Smith, 539 U.S. 510

(2003) (finding ineffective assistance of counsel occurred utilizing the Strickland

test); Occhicone v. State, 768 So. 2d 1037 (Fla. 2000) (finding there was no

ineffective assistance of counsel under Strickland). The test for retroactivity

announced in Witt v. State, 387 So. 2d 922 (Fla. 1980), is the same whether finding

for or against retroactivity. Phillips v. State, 299 So. 3d 1013 (Fla. 2020) (finding

retroactive application inappropriate under Witt); Mosley v. State, 209 So. 3d 1248

(Fla. 2016) (deeming retroactive application appropriate under Witt). It is not

outside the bounds of the facts of a case or jurisprudence of our courts for a single

decisional test to be created in one appellate decision rather than requiring two cases,

one of which the trial court ruled one direction and a second case ruling the other, to

establish one complete test.

88

29

Judge Gannam also cites a portion of the following paragraph from Binger,

which he asserts to further show that Binger’s prejudice test need not apply when a

trial court excludes a late-disclosed witness:

We cannot talk about pretrial discovery without mentioning local

pretrial practices. We have intentionally left room for the operation of

local rules and customs within the broad parameters of our decision.

Local customs regarding pretrial disclosure of witnesses vary

throughout the circuits in Florida, and these variations can and should

continue. For example, in some circuits the pretrial disclosure order

not only directs that witnesses’ names be exchanged, but expressly

prevents the testimony of any witness not identified within a certain

period of time. In other circuits, it is common for the order to exempt

by category certain types of witnesses from being listed. Another local

practice requires that counsel for each party demand witnesses’ names

before a court order is entered or in lieu of a court-directed exchange of

names. These local variations in discovery practice within the circuits

of Florida in no way derogate from our decision, and we leave their

interpretation and application, within the stated goals of discovery, to

the presiding trial judge in each case.

401 So. 2d at 1314 (footnote omitted). The same paragraph is cited in full by the

majority. I agree with the majority that this paragraph is dictum. However, to the

extent either the majority or Judge Gannam’s concurrence contend this language

modifies the clear holding of Binger as I have already discussed, I disagree with that

premise for the following reasons.

First, this paragraph begins with an express limitation by the Binger court–

that local rules and customs are permitted “within the broad parameters of our

decision.” Id. (emphasis added). The paragraph ends with a similar qualification:

“we leave [the] interpretation and application [of local pretrial practices], within the

stated goals of discovery, to the presiding trial judge in each case.” Id. (emphasis

added). Thus, whatever the implication of this paragraph, Binger has expressly

stated those local practices must still fall “within” the parameters of the holding of

Binger.

Second, both Judge Gannam and the majority read the following sentence,

“For example, in some circuits the pretrial disclosure order not only directs that

witnesses’ names be exchanged, but expressly prevents the testimony of any witness

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III. Conclusion

As I stated at the outset, my deeper concern in writing this concurrence is the

potential diminishing effect the majority’s opinion has on our state’s highest court’s

ability to provide clear guidance to courts, the bar, and the people of our state about

the law of our state in the opinions that it writes. The Binger court clearly set out

the issue it was addressing and that issue fell squarely within the facts of the Binger

case—to resolve conflicting district court opinions and provide clarity to trial courts

when faced with late-disclosed witness testimony. While I share my colleagues’

concerns about the sum effect of Binger over the last several decades on our trial

courts, I believe the supreme court has always had the power to redirect the

procedural path of our state through rule amendments. That is in fact what the

supreme court accomplished in 2025—giving trial courts both the power and duty

to strictly enforce their pretrial orders and deadlines. Attempting to “fix” Binger at

this late stage not only diminishes our supreme court’s authority to define the issues

it faces, but it also creates unnecessary confusion in the law relative to the cases that

not identified within a certain period of time[,]” to mean that the Binger court is

greenlighting strict enforcement of the pretrial orders without regard to prejudice to

the objecting party or the other Binger factors. When read in context, however, the

Binger court was merely throwing out several scenarios for the timing and manner

of witness disclosure, not dictating a new test for trial courts to apply when there is

non-compliance with pretrial orders. Id. (other examples of local discovery practices

relative to timing and manner of witness disclosures were 1) requiring exchange of

witness names before a court order is entered, and 2) pretrial orders that exempt

certain types of witnesses from having to be disclosed).

90

were tried prior to the recent rule changes and are now pending on appeal throughout

the state. For the reasons expressed above, I concur in result only with the majority’s

affirmance.

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