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March 20, 2026 Get Citation Alerts Download PDF Add Note

Wal-Mart Stores East, Lp v. Dorothy Wynn

District Court of Appeal of Florida

• Citations: None known

• Docket Number: 6D2023-1940

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (50.7K)

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Combined Opinion

SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA

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Case No. 6D2023-1940
Lower Tribunal No. 2018-CA-000160-O

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WAL-MART STORES EAST, L.P.,

Appellant,

v.

DOROTHY WYNN,

Appellee.

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Appeal from the Circuit Court for Orange County.
A. James Craner, Judge.

March 20, 2026

MIZE, J.

Appellant Wal-Mart Stores East, L.P. (“Wal-Mart”) appeals the final

judgment entered below following a jury trial. Wal-Mart asserts that the trial court

erred by excluding an opinion of Wal-Mart’s expert witness. We find no error in the

trial court’s ruling and, therefore, affirm the final judgment. In doing so, we certify

this decision to be in conflict with Callari v. Winkeljohn, 329 So. 3d 795 (Fla. 3d

DCA 2021), and Dos Santos v. Carlson, 806 So. 2d 539 (Fla. 3d DCA 2002), for the
same reasons set forth in the court’s recent opinion in Crecelius v. Rizzitano, No.

6D2024-2217, 2026 WL 555031, at *1 (Fla. 6th DCA Feb. 27, 2026).

Background and Procedural History

In August 2015, the Plaintiff, Dorothy Wynn (“Wynn”), was walking in a

Wal-Mart parking lot and tripped on a crack in the pavement, which she alleges

resulted in a sprained ankle and nerve damage, including specifically to the peroneal

nerve in her ankle. In January 2018, Wynn sued Wal-Mart for negligence. Both

below and on appeal, Wal-Mart did not dispute that Wynn fell and suffered a

sprained ankle, but Wal-Mart disputed that the injury caused Wynn any nerve

damage.

The trial court below entered a case management order which: (1) set the trial

for a trial period beginning April 25, 2022; (2) set a pretrial conference for April 12,

2022; (3) set a discovery cut-off date of April 11, 2022; (4) required disclosure of

all witnesses, exhibits and depositions to be used at trial no later than sixty days

before the pretrial conference; and (5) required the parties’ attorneys to meet at least

fifteen days before the pretrial conference to, among other things, exchange trial

exhibits and agree on which exhibits could be admitted without objection. As to

expert witnesses, the case management order required Wynn to disclose her expert

witnesses no later than 120 days before the pretrial conference. The order required

Wal-Mart to disclose its expert witnesses within fifteen days of receiving Wynn’s

2
expert witness disclosure. The case management order stated that to “disclose” an

expert witness meant to provide, among other things, “a statement of the specific

subjects upon which the expert will testify and offer opinions.” The order further

required that “[a]ny changes in an expert’s opinion or changes in the basis of the

expert’s opinion must be disclosed to all parties no less than sixty (60) days prior to

the Pre-Trial Conference.”

The trial court subsequently entered an order continuing the trial which: (1)

set the trial for a trial period beginning October 10, 2022; (2) set the pretrial

conference for September 27, 2022; (3) set a discovery cut-off date of September

26, 2022; (4) required the pretrial meeting of attorneys to occur at least fifteen days

before the new pretrial conference date; and (5) required the parties to serve any

amended witness lists, exhibit lists or deposition designations at least fifteen days

before the meeting of the attorneys. Since the case management order required the

parties to disclose any changes in an expert’s opinion at least sixty days before the

pretrial conference, the order continuing the trial had the effect of setting July 29,

2022 as the parties’ deadline to disclose any changes in expert opinions.

Pursuing its defense of Wynn’s claims, Wal-Mart retained Dr. Thomas

Odmark, a board-certified orthopedic surgeon who gave his first deposition in March

1. In his deposition, Dr. Odmark opined that Wynn’s nerve damage was not

caused by her fall in the Wal-Mart parking lot. Additionally, Dr. Odmark discussed

3
the possibility and “wondered” whether her nerve damage was related to a

preexisting back condition from which Wynn had suffered since at least 2001.

Ultimately, Dr. Odmark testified in the deposition that he was not of the opinion that

the preexisting back condition was the cause of the nerve damage at issue in the

lawsuit.

On September 26, 2022, the day of the discovery cut-off, Wynn produced new

medical records reflecting ongoing complaints of her injury and treatment she

received from March 17, 2022 through August 29, 2022. 1 On October 7, 2022, just

days before the start of the trial period on October 10, 2022, Wynn’s counsel

conducted a second deposition of Dr. Odmark. The parties agreed that this

deposition was for the purpose of taking testimony to be presented at trial because

Dr. Odmark would not appear in person at the trial. As he did in his first deposition,

Dr. Odmark did not contest that Wynn was injured from her fall in the Wal-Mart

parking lot. However, unlike in his first deposition, Dr. Odmark testified in his

second deposition that based on his review of the additional medical records

produced by Wynn, Wynn’s nerve injury could in fact be related to her preexisting

back condition. Wynn’s counsel did not object to this testimony during the

deposition.

1
Wal-Mart requested these records on June 24, 2022. Wynn failed to timely
provide them, causing Wal-Mart to file a motion to compel. Wynn finally produced
the records on September 26, 2022.
4
At trial, Wynn’s counsel objected to the introduction of Dr. Odmark’s new

opinion through deposition designations. Wal-Mart’s counsel responded by arguing

that: (1) “I don’t know if [Dr. Odmark] goes [so] far as to directly contradict his prior

testimony”; (2) per Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), Wynn

was not prejudiced by any new opinion on causation from Dr. Odmark because

Wynn’s own experts had already testified that Wynn’s nerve damage was caused by

her fall in the Wal-Mart parking lot; (3) the reason for any failure to timely disclose

Dr. Odmark’s new opinion (if it was new) was because Wynn produced new medical

records on the last day of the discovery period; and (4) Wynn did not

contemporaneously object to the new opinion during the deposition.

After hearing the parties’ arguments, the trial judge proceeded to rule based

on Binger as it had been incorrectly applied by our sister courts. See Crecelius, 2026

WL 555031, at *3-5. In short, the trial judge found that Dr. Odmark’s opinion was

a “very different opinion” than Dr. Odmark had given in his first deposition, that the

new opinion was not disclosed by the deadline set forth in the case management

order, that Wynn would be prejudiced by the introduction of the new opinion, and

that there was no time to cure the prejudice. The trial court also found that permitting

the introduction of the new opinion would cause “a substantial disruption to the

orderly and efficient progress of the trial at this time.” For these reasons, the trial

judge excluded the new opinion.

5
At the conclusion of the trial, the jury found in favor of Wynn and awarded

her $1,000,000.00 in damages, which was reduced to $900,825.81 in the judgment

due to setoffs to which the parties stipulated. On appeal, Wal-Mart argues that the

trial court abused its discretion by excluding Dr. Odmark’s opinion that Wynn’s

nerve damage may have been caused by her preexisting back condition. Wal-Mart

asserts that Wynn would not have been prejudiced by the new opinion because Wynn

presented two of its own experts on causation who testified that Wynn’s nerve

damage was caused by her fall in the Wal-Mart parking lot. Wal-Mart argues that

because Wynn was prepared to and, in fact, did address the opinion that Wal-Mart

sought to introduce, she could not have been prejudiced by the introduction of the

opinion. 2

Analysis

As this court recently explained in Crecelius, 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 its

discretion to allow the testimony. Crecelius, 2026 WL 555031, at *4. The Florida

2
Wal-Mart also argues that Dr. Odmark’s causation opinion excluded by the
trial court was in fact not a new opinion, that it was not inconsistent with Dr.
Odmark’s testimony in his discovery deposition, and therefore, that it was not an
undisclosed opinion subject to potential exclusion for non-disclosure to begin with.
As another ground for its appeal, Wal-Mart also separately argues that the judgment
must be reversed because the trial court permitted Wynn’s counsel to make improper
closing arguments. We affirm as to both of these issues without discussion.
6
Supreme Court’s statement in Binger about what a trial court should consider before

excluding an undisclosed witness’s testimony was dictum that is not binding on this

court. Id. Additionally, while our sister courts 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, this expansion

was exactly that – an expansion of Binger that was not required by its holding. Id. at

*3-4.

Contrary to our sister courts’ decisions expanding Binger beyond its holding,

where a party fails to disclose an opinion of its expert witness by the deadline set

forth in the applicable case management order, the trial court is permitted to strictly

enforce the case management order and exclude the undisclosed opinion, without

considering whether the other party would be prejudiced by the introduction of the

undisclosed opinion. Id. at *7-8. Accordingly, the trial court did not err by excluding

the undisclosed expert opinion of Dr. Odmark. 3

Like the case management order at issue in Crecelius, the case management
3

order entered by the trial court in this case was entered pursuant to the version of
Florida Rule of Civil Procedure 1.200 that was in effect prior to January 1, 2025.
See Crecelius, 2026 WL 555031, at *8; Fla. R. Civ. P. 1.200 (2024). As we did in
Crecelius, we note that the new version of Rule 1.200 that became effect on January
1, 2025, states that “deadlines in a case management order must be strictly enforced
unless changed by court order.” Crecelius, 2026 WL 555031, at *8 (quoting Fla. R.
Civ. P. 1.200(e)(1) (2025) (internal alteration omitted, emphasis in original)).
Additionally, an amendment to Florida Rule of Civil Procedure 1.380 that also took
effect on January 1, 2025, provides that “if 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
7
We acknowledge Wal-Mart’s argument that Wynn produced new medical

records after the parties’ deadline to disclose changes in their experts’ opinions.

However, despite being aware of the deadline, Wal-Mart did not file a motion in the

trial court to extend the deadline. Had Wal-Mart filed a motion to extend its deadline

to disclose changes in its experts’ opinions on the ground that Wynn made a late

production of new medical records, the trial court could have considered that issue

and extended the deadline or taken other appropriate action. See Crecelius, 2026 WL

555031, at *9 n.8. Wal-Mart filed no motion to extend the expert disclosure

deadline, and no ruling from the trial court on any such motion is at issue in this

appeal. All that is before this court is Wal-Mart failing to disclose an expert opinion

by the required deadline and a trial court enforcing its case management order and

excluding the undisclosed opinion, which the trial court was permitted to do.

We also acknowledge Wal-Mart’s argument that Wynn did not

contemporaneously object to the new opinion during the deposition. However,

Wynn had no such obligation. Florida Rule of Civil Procedure 1.330(b) states that

when a deposition is used at trial, “objection may be made at the trial . . . to receiving

in evidence any deposition or part of it for any reason that would require the

exclusion of the evidence if the witness were then present and testifying,” subject to

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.” Crecelius, 2026 WL
555031, at *8 (quoting Fla. R. Civ. P. 1.380(d) (2025) (internal alteration omitted)).
8
the provisions of Rule 1.330(d)(3) providing that certain objections, none of which

are at issue here, may be waived if not made at the deposition. Wal-Mart argues,

and Wynn did not dispute, that the parties stipulated below that Dr. Odmark’s second

deposition was for the purpose of taking testimony to be presented at trial because

Dr. Odmark would not appear in person at the trial. On that basis, Wal-Mart argues

that Wynn was required to make during the deposition any objections that she would

otherwise have been required to make only at the trial. However, nothing in the

record of this appeal contains the terms of the parties’ agreement or establishes that

the parties stipulated that the deposition would not be governed by the rules of

procedure that normally govern depositions. 4 Since Wynn was permitted to object

for the first time at trial to any part of the deposition for any reason that would require

the exclusion of the testimony if Dr. Odmark were present and testifying, Wynn’s

failure to object to the introduction of a new opinion at the deposition is of no

moment.

Conclusion

As we stated in Crecelius, 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 evidence. Crecelius, 2026 WL 555031, at *9. Because

We express no view as to whether any such stipulation, if made, would be
4

enforceable.
9
Wal-Mart attempted to offer in evidence an expert opinion that had not been

disclosed by the deadline set forth in the trial court’s case management order, the

trial court did not err by enforcing its order and excluding the undisclosed opinion.

Accordingly, we affirm the final judgment. In doing so, pursuant to Article V,

Section 3(b)(4) of the Florida Constitution, for the same reasons articulated in

Crecelius, we certify this decision to be in direct conflict with Callari v. Winkeljohn,

329 So. 3d 795 (Fla. 3d DCA 2021), and Dos Santos v. Carlson, 806 So. 2d 539

(Fla. 3d DCA 2002), both of which held that Binger requires a trial court to find that

the opposing party would be prejudiced by the introduction of a late-disclosed or

undisclosed expert opinion before excluding the expert witness’s opinion. 5

AFFIRMED. CONFLICT CERTIFIED.

WOZNIAK, J., concurs. 6
SMITH, J., concurs in result only, with opinion.

5
Crecelius concerned both the failure to timely disclose the names of expert
witnesses and the failure to timely disclose those experts’ opinions. Crecelius
certified conflict with sixteen decisions of our sister courts which held that Binger
v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), 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. This case concerns only
the failure to timely disclose an opinion of an expert witness whose name was timely
disclosed. Therefore, this decision only certifies conflict with Callari and Dos
Santos, which are the cases with which Crecelius certified conflict that concern the
failure to timely disclose an opinion of an expert witness rather than the failure to
timely disclose the name of a witness.
6
Judge Wozniak has viewed the oral argument that was conducted in this
case.
10

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NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED

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

I agree with the majority that under Crecelius v. Rizzitano, No. 6D2024-2217,

2026 WL 555031 (Fla. 6th DCA Feb. 27, 2026), this is an affirmance. However, if

the Florida Supreme Court disagrees with Crecelius, then Binger v. King Pest

Control, 401 So. 2d 1310 (Fla. 1981), would apply. As discussed more fully below,

under Binger, this case warrants reversal.

I. Background

Dorothy Wynn claimed she suffered a sprained ankle and ankle-related nerve

damage when she tripped and fell on a crack in the pavement in Wal-Mart’s parking

lot. Wal-Mart did not deny that Wynn fell and injured her ankle, but it disputed

Wynn’s claim that the fall caused her to suffer nerve damage.

To support its position, Wal-Mart retained Dr. Thomas E. Odmark, a board-

certified orthopedic surgeon. Wynn deposed Dr. Odmark in March 2022, during

which he expressed puzzlement about not seeing any or much evidence of ankle-

related neurological damage in Wynn’s medical records in the months after the fall.

This led Dr. Odmark to conclude that no nerve damage resulted from the fall.

11
It was undisputed that Wynn had a preexisting back injury from over a decade

prior. When Dr. Odmark was asked in his March 2022 deposition about whether the

back injury could be causing the ankle issues, he responded as follows:

Q: But just to be clear, I guess you’re not- and I think we might have
covered this, but you’re not saying that her preexisting back problem is
the cause of her current nerve problem in her right ankle?

A: No. No. The nerve problem in the ankle -- I mean, she has this back
issue from before with positive straight leg raise bilaterally and pain
bilaterally, but no radiculopathy on the right side in that 2001 report
from what I recall. But I don’t necessarily think that that created this
nerve problem for her. If she had a long-term nerve problem there, I’d
expect some other issue to be going on that she would have been treated
for or had numbness or weakness or something like that. She didn’t.

Thus, although Dr. Odmark overall denied that the ankle nerve issue was due to the

fall, as of his March 2022 deposition, he discounted that any nerve problem in the

ankle would be related to Wynn’s preexisting back injury because her prior medical

records would have revealed it.

The pretrial order contained an expert witness disclosure deadline of sixty

days before the pretrial conference. The judge ultimately set the pretrial conference

for September 27, 2022. The order expressly defined disclosure of an expert witness

as, among other things, provision of “a statement of the specific subjects upon which

the expert will testify and offer opinions.” The parties were also required to disclose

“[a]ny changes in an expert’s opinion or changes in the basis of the expert’s opinion”

within the same timeframe.

12
On October 7, 2022, Wal-Mart deposed Dr. Odmark for the specific purpose

of using the deposition at trial, which was set to commence on Monday, October 10.

His testimony, for the most part, unremarkably tracked his prior deposition–namely,

that the fall at Wal-Mart did not cause Wynn to suffer nerve damage to the ankle.

However, this time, Dr. Odmark also opined that the nerve injury and nerve-related

symptoms in the ankle could be related to Wynn’s preexisting back injury. Counsel

for Wynn picked up on this distinction and asked Dr. Odmark about his prior

deposition testimony discussed above. Dr. Odmark responded that his position

regarding Wynn’s preexisting back condition was due to facts revealed in medical

records that he only recently had received. The “recently received” records had been

belatedly produced by Wynn on September 26, 2022, the last day of discovery per

the court’s pretrial order. Further, the records were produced in response to

Wal-Mart’s request for production that had been served on June 24, 2022, but only

after Wal-Mart moved to compel Wynn’s response. The treatment records spanned

the period from March 2022 to August 2022. Counsel for Wynn did not assert at the

October 7 deposition that she was in any way prejudiced by Dr. Odmark’s adjusted

opinion testimony, or that Dr. Odmark could have formed his modified opinion

without the records received on September 26, 2022.

At trial, when Wal-Mart sought to admit into evidence portions of Dr.

Odmark’s second deposition, Wynn’s counsel objected because the testimony was a

13
“new” or “changed” opinion. Wal-Mart made two responses: one, that the opinion

relative to connecting the prior back injury to the present ankle nerve complaints

was based on records only recently received by Wal-Mart; and two, that introduction

of this revised opinion would not prejudice Wynn. As for potential prejudice, Wal-

Mart noted that Wynn had just presented two experts who testified to the jury about

this same issue. Wal-Mart also pointed out that Wynn had the opportunity to address

this revised opinion before trial during Dr. Odmark’s October 7 deposition. Other

than the lateness of the disclosure, Wynn made no other argument about potential

prejudice to Wynn in allowing the opinion. The trial court excluded the opinion

testimony under Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), making

the following ruling on the record:

I think when you appl[y] Binger, and I have a copy of it in front of me,
it talks about excluding the testimony of a witness here, and here it
seems to be an opinion offered by Odmark, a doctor in this case as
recently as Friday in a trial deposition, which is to be played for the
jury, I guess. It’s not to be -- my discretion is not to be exercised blindly,
guided largely, however, by a determination as to whether the
undisclosed witness, or I’ll say in this case, the opinion of the witness
will prejudice the objecting party. Prejudice refers to surprise [in] fact.
It is not dependent upon the adverse nature of the testimony. There are
other factors, of course, the Court may consider, including the objecting
party’s ability to cure or similarly his independent knowledge of the
existence of the witness in the calling parties hostile intentional or bad
faith noncompliance with the order, possible disruption of the orderly
and efficient trial of the case. And, of course, other relevant factors. I
think here it would be appropriate to sustain [Wynn’s] objection. I do
find it to be, one, a very different opinion under the circumstances based
upon what I read here. The trial deposition versus the discovery
deposition, I do find that it would create prejudice for the plaintiff under
14
the circumstances that results in surprise [i]n fact [] to them, there is no
time at this time to cure it. There does not appear to be any evidence or
independent evidence through this witness, I guess, or any other
witness, I guess. But critically, this witness, I believe, the existence of
this opinion, under the circumstances, I don’t know that it rises to the
level of noncompliance with a court order equaling bad faith. It does
seem, however, though, if you read this deposition, if I’m reading
accurately, I may or may not be, but certain records were provided to
this deponent prior to this deposition, which may have caused this to
occur. I’m not sure why those weren’t provided prior to this, and the
opinion made known, but it wasn’t. I do find it would represent a
substantial disruption to the orderly and efficient progress of the trial at
this time. . . . Plaintiff’s objection will be sustained as to that limited
new opinion. That modification can be made for purposes of trial
preparation and playing it for the jury under the circumstances.

At the end of the trial, the jury returned a verdict in favor of Wynn for

$1,000,000, apportioning 100% fault for the accident to Wal-Mart. 7 Wal-Mart then

filed the subject appeal.

II. Analysis

Under Binger, the trial court’s exclusion of Dr. Odmark’s revised opinion

testimony would be reviewed under an abuse of discretion standard. 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 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

7
The verdict was eventually reduced to $900,825.81 based on agreed setoffs.
15
violation of a trial preparation order is within the trial court’s discretion.” (citing

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

A. Application of Binger to the Present Case

Along with prejudice to the opposing party, 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. While at first blush it appears that the trial court went through

the factors outlined in Binger, upon closer inspection it does not appear that any of

those factors are satisfied to justify the exclusion of Dr. Odmark’s testimony. To be

clear, Dr. Odmark never changed his opinion that any nerve damage claimed by

Wynn was not related to her fall at Wal-Mart. Moreover, the belated nature of

Wal-Mart’s disclosure, that being Dr. Odmark’s opinion that Wynn’s claimed nerve

damage may be related to her preexisting back injury, was not because of lack of

diligence by the doctor, but was solely attributable to the late provision of records

by Wynn. As to the factor of prejudice, the only prejudice outlined by the trial court

and supported by the record would be the late disclosure of the revised opinion. As

for Wynn’s “ability to cure the prejudice,” the record reveals that Wynn had not one,

16
but two experts available who testified that Wynn’s prior back injury was not related

to the present nerve-related complaints in her ankle. 8

As to the next factor of possible “intentional, or bad faith, noncompliance with

the pretrial order,” the record reveals no such thing. Dr. Odmark’s testimony at his

second deposition occurred within eleven days of when Wal-Mart’s received the

supplemental records belatedly provided by Wynn. The trial court appears to have

also conceded that there was no evidence of bad faith: “I don’t know that it rises to

the level of noncompliance with a court order equaling bad faith.”

As to the factor of “possible disruption of the orderly and efficient trial of the

case,” the trial court did not reference any facts supporting such a finding (again,

other than the late nature of the disclosure, which was not attributable to Wal-Mart).

Given that Wynn was aware of the testimony before trial and had two experts testify

earlier in the trial directly contrary to Dr. Odmark’s proposed (and known)

testimony, no “disruption” of the trial would have arisen from its admission.

In Lugo v. Florida East Coast Railway Co., 487 So. 2d 321, 322 (Fla. 3d DCA

1986), the plaintiffs failed to disclose their expert within sixty days before trial as

required by the pretrial order. Defendants were aware of the expert and in fact had

8
On appeal, Wynn appears to concede that she had such experts ready and
available to testify: “Wal-Mart talks in its Brief about the fact that Wynn had her
own experts talk about her preexisting back condition, specifically that it was not the
cause of her ankle pain. This is true[.]” Ans. Br. p. 26 (internal citations omitted).
17
deposed him. Id. at 323. The only basis for striking the expert was lack of

compliance with the pretrial order. Id. In accordance with Binger, the Third District

stated: “At the outset we agree with appellants that exclusion of the witness for

failure to strictly comply with the pretrial order is indefensible.” Id. Finding no

prejudice in permitting the testimony, and that the other Binger factors favored the

plaintiff, the court reversed and remanded for a new trial. Id. at 324-25.

As in Lugo, even if Dr. Odmark’s change in opinion was untimely disclosed

under the pretrial order, under Binger, his opinion should not have been excluded

simply based on “strict compliance” with the pretrial order. Further, Wynn bore the

burden of establishing some form of prejudice that would ensue from the testimony.

In Myron v. South Broward Hospital District, 703 So. 2d 527, 528 (Fla. 4th

DCA 1997), the lower court excluded the testimony of the plaintiff’s expert based

on a perceived stipulation by the parties to not call him. The Fourth District Court

of Appeal applied the Binger factors to determining whether permitting the

testimony at trial would have prejudiced the remaining defendant:

Applying these criteria to the instant case, we can easily see that there
was no prejudice to the opposing party. Memorial not only
independently knew of the witness, but also knew the substance of his
expected testimony. Its attorney was specifically put on notice that
appellant intended to use his opinions at trial against Memorial. At
trial, Memorial had listed its own experts whose testimony could have
been used to combat Dr. Calcagno’s opinions. There was no prejudice.

Id. at 529 (emphasis added).

18
The Myron court found no prejudice from admission of the expert testimony

based on three grounds: (1) that the opposing party knew of the witness; (2) that the

opposing party knew of the expected testimony of the witness; and (3) that the

opposing party had its own experts available who could have combatted the

testimony. Id. Similarly, our instant case has all three. Wynn not only knew of Dr.

Odmark, but was apprised before trial of his expected testimony based on the

recently produced records. And Wynn had two experts available to testify, and who

in fact testified, to the exact subject matter of causation that Wal-Mart sought to

address with Dr. Odmark. As in Myron, Wynn was not prejudiced.

Wynn centrally relies on two cases in asserting exclusion was proper under

Binger: Gurin Gold, LLC v. Dixon, 277 So. 3d 600 (Fla. 4th DCA 2019), and

Belmont v. North Broward Hospital District, 727 So. 2d 992 (Fla. 4th DCA 1999).

In Gurin, the plaintiff waited until the second day of trial to furnish to its expert MRI

results that plaintiff’s counsel had possessed for years. 277 So. 3d at 602. Based on

the results, the expert offered significant causation testimony highly favorable to the

plaintiff, and which had not been disclosed at any time before that point. Id. The

trial court allowed the testimony over the defendants’ objection. Id. The Fourth

District Court of Appeal began with the premise that “presentation of a changed

opinion is tantamount to permitting an undisclosed adverse witness to testify.” Id.

at 603 (quoting Dep’t of HRS v. J.B. By & Through Spivak, 675 So. 2d 241, 244 (Fla.

19
4th DCA 1996)). In applying the Binger factors, the Gurin court determined that the

lower court reversibly erred in admitting the undisclosed testimony based on the

following: (1) the defendants had told the jury during their opening statement that

plaintiff’s expert would not be offering that particular causation opinion; (2) the

defendants could not cross-examine the expert about this opinion before trial; (3) the

defendants could not counter the plaintiff’s expert testimony with testimony from

their own experts; and (4) the record showed the non-compliance with the pretrial

order was intentional. Id. at 603-04.

A side-by-side comparison of Gurin to our case reveals the two cases are not

comparable. Here, Wynn had not relied on Dr. Odmark’s original March deposition

testimony in her opening. Wynn was able to cross-examine Dr. Odmark about the

changed opinion by deposition before trial. Wynn did have experts available to

combat Dr. Odmark’s modified opinion. And perhaps most significantly, Dr.

Odmark’s modification, in part, of his opinion was not intentional, but was brought

about because of new medical records being provided to him by the plaintiff only

days before commencement of trial. Gurin offers no support to Wynn’s position.

Wynn’s reliance on Belmont is similarly unavailing. Much like Gurin, the

defendants in Belmont gave their testifying physicians (who were also defendants in

the action) an exhibit in the middle of trial that resulted in a 180-degree change in

their testimony. 727 So. 2d at 994. During plaintiff’s case-in-chief, those same

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physicians testified that the decedent plaintiff’s aorta had been punctured and then

stitched together during performance of an emergency medical procedure. Id. at

993-94. After plaintiff’s case-in-chief, while testifying for the defense, both doctors

claimed that they no longer believed the aorta had been punctured or stitched. Id. at

994. This was based on defense counsel presenting the doctors with the actual aorta

preserved by the medical examiner and having them examine the same in court. Id.

The Fourth District Court of Appeal reversed and remanded due to the trial court’s

admission of the doctors’ testimony despite the plaintiff’s objection, reasoning:

“All the discovery rules and the extensive efforts of the parties to
discover the other party’s case would be for naught if one side were
able to wait until trial started to establish key pieces of evidence such
as what occurred in this case.[“] [Grau v. Branham, 626 So. 2d 1059,
1061 (Fla. 4th DCA 1993)]. We had previously stated in Office Depot,
Inc. v. Miller, 584 So. 2d 587, 590 (Fla. 4th DCA 1991): “A party can
hardly 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.”

Id. (emphasis added).

The distinctions between Belmont and this case are plain. Dr. Odmark’s

change in opinion was not made midtrial. Nor did Wynn rely in any way on Dr.

Odmark’s position as expressed in his March 2022 deposition in her case-in-chief.

This is hardly a situation of Dr. Odmark being presented with evidence midtrial to

induce a change in his testimony. Rather, he was presented with new medical

records by Wynn only two weeks before trial, and later testified from these

21
additional records at his deposition. Thus, Belmont is not supportive of Wynn’s

position.

Finally, Wynn argues that even if the trial court erred by excluding Dr.

Odmark’s testimony, it was at most harmless. Wynn contends that Wal-Mart was

able to argue that the nerve-related complaints in Wynn’s ankle were unrelated to

the fall at Wal-Mart. While that is true, what Wal-Mart was prevented from arguing

before the jury was any alternate source to Wynn’s nerve-related issues in her ankle.

It is one thing to say, “we didn’t do it,” but entirely another to say, “but this is what

did.” Preventing Wal-Mart from arguing an alternate cause to the ankle-related

nerve complaints could not be deemed harmless under these facts.

III. Conclusion

In Crecelius, I expressed in my concurring opinion my disagreement with the

majority’s rejection of the Binger standard. 2025 WL 555031, at *18 (Smith, J.

concurring in result only). While I will not reiterate the entirety of my position, I

believe that under Pedroza’s 9 chosen decisional path test for a holding, Binger

should be deemed to apply equally to both admission as well as exclusion decisions

by a trial court faced with late-disclosed testimonial evidence. While I did not

9
What is commonly referred to as the “Pedroza test” to discern dictum from
holding is as follows: “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.” Pedroza v. State, 291 So. 3d
541, 547 (Fla. 2020) (emphasis added) (quoting Yule, 905 So. 2d at 259 n.10).
22
disagree with the majority in Crecelius that the January 2025 rule changes have

negated the effect of Binger and now allow courts to strictly enforce their case

management orders, 10 I stand by my concern expressed in Crecelius that changing

the Binger standard for the remaining cases in the appellate pipeline 11 “creates

unnecessary confusion in the law,” 2026 WL 555031, at *33, as well as the

10
As I noted in Crecelius, I agreed “with the majority that the Binger test
stands directly opposed” to the January 2025 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. v. All City Constr. Servs., LLC,
51 Fla. L. Weekly D2653, D2656, ––– So.3d ––––, ––––, 2025 WL
3649646 (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)).

2026 WL 555031, at *27.
11
By “appellate pipeline,” I am referring to those cases tried prior to the rule
changes effective January 1, 2025, but which are still pending appellate review.
23
possibility of disparate impact on the parties. 12 What would have been a clear

reversal under Binger has now resulted in an affirmance under Crecelius.

12
As I stated in Crecelius, “While this particular case [Crecelius] 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.” 2026 WL 555031, *28. This case
appears to be in the “foul” territory, as it was fully litigated by both sides under the
presumption of Binger’s applicability yet now is subject to a different result due to
the non-application of Binger. Neither party in this case argued that Binger should
not be applied here, even when given the opportunity to make the argument by a
supplemental briefing order; rather, the first time the Binger standard was questioned
came from comments by this Court during oral argument:

J. Mize: Counsel, you are doing the same thing in your oral argument
that I thought was interesting in the brief, which was both parties
operate under the assumption that we’re going to read Binger the
same way the other five DCAs read Binger, and I’m not sure why
anybody made that assumption.

Reiter (Counsel for Wal-Mart): Well your honor-

J. Mize: Can you give a Pedroza analysis on Binger?

Reiter: Let me start with the, I’m sorry your honor what was the
question?

---

J. Mize: So, if the facts of Binger and the decision of Binger was about
undisclosed testimony that was improperly allowed without
considering prejudice to the opposing party, how was anything the
supreme court said about what a trial court needs to do as a predicate to
excluding testimony not dicta?

Reiter: Well, your honor, it’s a very interesting perspective and I say
that because quite frankly I’ve not heard a court call to question this
specific analysis of what we have come to characterize as the Binger
approach.
24

---

J. Mize: If I am wrong about how I’m reading Binger and the other five
DCAs were right, tell me how.

Reiter: Well, your honor, I would only start from the premise of the
fact that many district courts over the course of several years have-

J. Mize: I’m not interested in how many, I’m interested in whether they
are right, I just told you how I’m looking at Binger. Tell me why I’m
wrong.

Reiter: I’m not suggesting you’re wrong. I guess my question. Not a
question, my comment is I’m trying to understand how that would
impact the analysis in this case.

---

Reiter: So I guess the reason why [Binger was applied] –and I’ll
certainly admit your honor since the trial court applied Binger and
both sides have looked at Binger as the presiding understanding it’s
not—and I understand the Court’s—your honor’s—perspective on this
understanding that it’s not necessarily that its dicta, not necessarily a
holding, I have to go back, you know, with respect to this case.

---

J. Mize: Do you think that I’ve mischaracterized whether or not that
was actually the holding in Binger?

Reiter: I do not think you have mischaracterized the way you framed
the holding in Binger.

---

Lee (Counsel for Wynn): I do want to talk about the question of Judge
Mize has brought because I knew it was coming my way. When we
look at Binger, yes, Binger is talking about a pretrial disclosure of
25

---

Jack R. Reiter, Sydney M. Feldman, and Lucia L. Leoni, of GrayRobinson, P.A.,
Miami, for Appellant.

Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee.

witnesses, it’s a list, and I think one part of it when we are talking about
how we look at Binger and how we’ve used it in our appeal, is, is still
key[.]

Oral Argument at 00:00:46-00:01:09, 00:02:39-00:03:10, 00:03:56-00:04:23,
00:05:12-00:05:34, 00:06:03-00:06:12, 00:17:33-00:17:55, Wal-Mart Stores E., LP
v. Wynn, 6D2023-1940 (argued Oct. 22, 2024), https://youtu.be/AdiHyWROzWM
(emphasis added).
26