Summary
reversing trial court's refusal to permit additions to the witness list where the addition was made six days after discovery cut-off but more than three months before trial
Summary of this case from Kellner v. DavidOpinion
No. 86-1957.
September 24, 1987. Rehearing Denied January 22, 1988.
Paul Lee, Winter Park, and Jackson O. Brownlee, Tavares, for appellants.
H. David Luff, Karin D. Wherry of Sanders, McEwan, Mims Martinez, P.A., Orlando, for appellees.
Hugh and Lucille Baker appeal a summary final judgment in favor of appellees, Lourdes M. Mathew and George M. Mathew, M.D., P.A. (Mathew). The Bakers contend that the trial court abused its discretion in failing to permit them to reopen their witness list. We agree with this contention.
We find the Bakers' remaining points to be without merit.
The Bakers filed suit, alleging that Dr. Lourdes Mathew had negligently misdiagnosed Hugh Baker as suffering from small cell cancer of the lung and had forced him to undergo chemotherapy when in fact Baker had a tumor that was treatable with surgery. The case was set for pretrial in November 1985. The court ordered counsel to provide a list of expert witnesses to be used at trial. Jury trial was scheduled for April 1986. The Bakers agreed to designate their witnesses by January 1, 1986. On December 31, 1985, the Bakers gave Mathew a list of fifty-six expert witnesses.
The Bakers later found that the expert witnesses on whom they actually intended to rely were not available. On January 7, 1986, the Bakers moved to reopen the disclosure list. Mathew filed an objection to the request and moved for sanctions. The trial court denied the Bakers' motion to reopen, denied Mathew's motion for sanctions and later entered summary judgment in favor of Mathew.
While the summary judgment is the basis for this appeal, the question turns on whether the court abused its discretion in failing to permit the Bakers to reopen their witness list. We conclude that it did and reverse. At the time the Bakers moved to reopen, only six days had elapsed since the disclosure list was due. The trial was not scheduled until April, some three months away. In view of the short time that had elapsed since the filing of the disclosure list and the time available before trial, Mathew had ample time to interview or depose the witnesses. Therefore, he cannot demonstrate that he was prejudiced by permitting the disclosure to be reopened. See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981)
Mathew's argument that since the Bakers had listed fifty-six expert witnesses, the trial court probably concluded the additional witness would be able to offer only cumulative testimony, is without merit. The Bakers concede and we agree that it is poor practice to list every witness with whom a plaintiff comes into contact. The result is nondisclosure rather than disclosure. There are ample sanctions available to a trial judge to prevent this type of abuse of the discovery process but those sanctions are more properly directed at counsel rather than the client by dismissal of his case. Here it became obvious that the Bakers could not survive a motion for summary judgment without these critical witnesses.
After their request to reopen disclosure was denied, the Bakers voluntarily dismissed the case. However, the trial court found that the dismissal was improper and later reinstated the action.
REVERSED and REMANDED for further proceedings consistent with this opinion.
BEVERLY, Associate Judge, concurs.
COWART, J., dissents with opinion.
This medical malpractice case had been pending over one and one-half years when, pursuant to court order, the plaintiffs provided a list of expert witnesses they intended to use at trial. After providing a list of fifty-six expert witnesses "to be used at trial," the plaintiffs could not produce the testimony of even one expert witness to oppose the affidavits supporting the doctor's motion for summary judgment. Every lawyer knows, or should know, that a medical malpractice claim cannot be maintained unless it is supported by expert medical testimony that the defendant doctor deviated from the standard of medical care in the community. Lawsuits are serious matters and should not be filed unless and until the plaintiffs' attorney knows the claims therein are based on available and admissible evidence. The bar may not consider the filing of an action to be frivolous "merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery." However, the public certainly believes that a law action without a sure basis in fact is not justified and should be "thrown out of court." A law action without factual support sufficient to survive a summary judgment lacks substantive merit and should not be maintained. The trial court did not abuse its discretion in refusing to permit the plaintiffs to enlarge their expert witness list — a year and a half and fifty-six expert witnesses are enough! The summary judgment should be affirmed.
See e.g. Parrino v. Ayers, 469 So.2d 837 (Fla. 5th DCA 1985), rev. denied, 479 So.2d 118 (Fla. 1985).
See the comment to Rule 4-3.1, Rules Regulating The Florida Bar, effective January 1, 1987 ( The Florida Bar re: Rules Regulating The Florida Bar, 494 So.2d 977 (Fla. 1986)).