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Filing # 188099791 E-Filed 12/15/2023 09:40:52 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA
ASBEL ALEXANDER LLERENA,
CASE NO.: 2020 CA 002872 AN
Plaintiff,
v.
ADRIAN RODRIGUEZ CHAVEZ AND
GRANNY'S GARDEN II, INC.,
Defendants.
_______________________________/
DEFENDANTS MOTION TOSTRIKE PLAINTIFF’S AMENDED DISCLOSURE OF EX-
PERT WITNESSES TO ADD REBUTTAL EXPERT AND INCORPORATED MEMO-
RANDUM OF LAW
COMES NOW Defendants, ADRIAN RODRIGUEZ CHAVEZ and GRANNY’S
GARDEN II, INC., (hereinafter Defendants) by and through undersigned counsel, and
files this Motion to Strike Plaintiff’s Amended Disclosure of Expert Witnesses to Add Re-
buttal Expert, and in support thereof, states as follows:
1. This case arises out of a motor vehicle accident that occurred on or about
December 3, 2019.
2. This matter is currently scheduled for the trial docket commencing March
11, 2024.
3. On June 19, 2023, this Court issued its Order establishing pre-trial dead-
lines.
4. Specifically, the Plaintiff was required to disclose expert witnesses on or
before October 24, 2023.
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
5. On October 24, 2023, Plaintiff filed their Disclosure of Expert Witnesses,
which identified ten (10) treaters. One of the treaters was identified as a “Treating Physi-
cian/Retained Expert”.
6. On November 7, 2023, Defendants timely filed their Expert Witness Disclo-
sure.
7. On December 11, 2023, Plaintiff filed an Amended Disclosure of Expert Wit-
nesses. A copy of Plaintiff’s Amended Disclosure is attached as Exhibit “A”. Plaintiff’s
Amended Disclosure identified two (2) new retained experts. Plaintiff’s late disclosure of
Michael Freeman, Ph.D. and Farhad Booeshaghi, Ph.D., P.E. is improper, untimely and
they must be not be allowed.
8. Plaintiff’s attempt to correct their failure to timely retain and disclose their
two (2) new Liability and Causation experts comes a mere thirty-nine- (39) days before
the discovery cut-off of January 19, 2024.
9. Plaintiff’s late disclosure of the new experts as “rebuttal” experts is nothing
more than “smoke and mirrors” to avoid the Trial Order disclosure deadline on October
24, 2023. These experts are not Rebuttal experts despite Plaintiff’s attempt to designate
them as such. This is merely Plaintiff’s attempt to avoid application of the Trial Order’s
deadline to disclose experts to the detriment and prejudice of Defendants.
MEMORANDUM OF LAW
Defendant’s motion seeks to exclude Plaintiff’s late disclosed experts: Michael
Freeman, Ph.D. and Farhad Booeshaghi, Ph.D., P.E. The Florida Supreme Court’s de-
cision in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) is the lead case ad-
dressing the late disclosure of experts. The Binger case came up in the context of a late-
2
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
listed impeachment witness, which resulted from the fact that many trial judges and law-
yers in those days believed that impeachment witnesses did not have to be listed at all,
or at least not listed under the same time deadlines as substantive witnesses. The Binger
Court held that impeachment witnesses were no different from other witnesses when it
came to the duty to list them in a timely fashion, and then established parameters for
enforcing or excusing deadlines for listing of all witnesses.
The Supreme Court in Binger held that a trial court’s discretion to strike a late-listed
witness “should be guided largely by a determination as to whether use of the undisclosed
witness will prejudice the objecting party.” Id. at 1314. “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.” Id. A party cannot be surprised, for example, if you call an expert who
was on a different party’s witness list, but not your own. See State Paving Corp. v.
Zebrowski, 544 So. 2d 279 (Fla. 4th DCA 1989).
In addition to considering the paramount issue of prejudice, the court in Binger
held: “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, non-
compliance with the pre-trial order; and (iii) the possible disruption of the orderly and effi-
cient trial of the case (or other cases).” Id.
In the instant case, Plaintiff waited roughly six (6) weeks after Defendants Expert
Disclosure on November 7, 2023, which included Ming Xiao, Ph.D., P.E., accident recon-
structionist, to disclose their new experts to the surprise and prejudice of Defendants. It
is virtually impossible to conduct the expert discovery and depositions of Plaintiff’s late
3
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
disclosed experts at this stage of the litigation with a mere thirty-nine days remaining until
the discovery cut-off. As such, Plaintiff’s Amended Expert Disclosure filed December 11,
2023 must be stricken.
WHEREFORE, Defendants request this Honorable Court to enter an Order Grant-
ing this Motion to Strike Plaintiff’s Amended Expert Witness Disclosure on December 11,
2023 and for all such further relief this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of December, 2023, a true and correct
copy of the foregoing was filed with the Clerk of Osceola County by using the Florida
Courts e-Filing Portal, which will send an automatic e-mail message to the following
parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan &
Morgan, P.A., malzate@forthepeople.com; imerlos@forthepeople.com;
anajera@forthepeople.com, 198 Broadway Avenue, Kissimmee, FL 34741, (407) 452-
1597/(407) 452-1623 (F), Attorney for Plaintiff, Asbel Alexander Llerena.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant ADRIAN RODRIGUEZ
CHAVEZ AND GRANNY'S GARDEN II, INC.
Tower Place, Suite 400
1900 Summit Tower Boulevard
Orlando, Florida 32810
Telephone (321) 972-0011
Facsimile (321) 972-0099
Primary e-mail: scott.shelton@csklegal.com
Secondary e-mail: gary.lewis@csklegal.com
Alternate e-mail:
C:\Users\SMCINT~1\AppData\Local\Temp\1224.dat
4
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
By: s/ Gary L. Lewis
SCOTT A. SHELTON
Florida Bar No.: 36486
GARY L. LEWIS
Florida Bar No.: 158887
5
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
Preview
Filing # 188099791 E-Filed 12/15/2023 09:40:52 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA ASBEL ALEXANDER LLERENA, CASE NO.: 2020 CA 002872 AN Plaintiff, v. ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC., Defendants. _______________________________/ DEFENDANTS MOTION TOSTRIKE PLAINTIFF’S AMENDED DISCLOSURE OF EX- PERT WITNESSES TO ADD REBUTTAL EXPERT AND INCORPORATED MEMO- RANDUM OF LAW COMES NOW Defendants, ADRIAN RODRIGUEZ CHAVEZ and GRANNY’S GARDEN II, INC., (hereinafter Defendants) by and through undersigned counsel, and files this Motion to Strike Plaintiff’s Amended Disclosure of Expert Witnesses to Add Re- buttal Expert, and in support thereof, states as follows: 1. This case arises out of a motor vehicle accident that occurred on or about December 3, 2019. 2. This matter is currently scheduled for the trial docket commencing March 11, 2024. 3. On June 19, 2023, this Court issued its Order establishing pre-trial dead- lines. 4. Specifically, the Plaintiff was required to disclose expert witnesses on or before October 24, 2023. COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN 5. On October 24, 2023, Plaintiff filed their Disclosure of Expert Witnesses, which identified ten (10) treaters. One of the treaters was identified as a “Treating Physi- cian/Retained Expert”. 6. On November 7, 2023, Defendants timely filed their Expert Witness Disclo- sure. 7. On December 11, 2023, Plaintiff filed an Amended Disclosure of Expert Wit- nesses. A copy of Plaintiff’s Amended Disclosure is attached as Exhibit “A”. Plaintiff’s Amended Disclosure identified two (2) new retained experts. Plaintiff’s late disclosure of Michael Freeman, Ph.D. and Farhad Booeshaghi, Ph.D., P.E. is improper, untimely and they must be not be allowed. 8. Plaintiff’s attempt to correct their failure to timely retain and disclose their two (2) new Liability and Causation experts comes a mere thirty-nine- (39) days before the discovery cut-off of January 19, 2024. 9. Plaintiff’s late disclosure of the new experts as “rebuttal” experts is nothing more than “smoke and mirrors” to avoid the Trial Order disclosure deadline on October 24, 2023. These experts are not Rebuttal experts despite Plaintiff’s attempt to designate them as such. This is merely Plaintiff’s attempt to avoid application of the Trial Order’s deadline to disclose experts to the detriment and prejudice of Defendants. MEMORANDUM OF LAW Defendant’s motion seeks to exclude Plaintiff’s late disclosed experts: Michael Freeman, Ph.D. and Farhad Booeshaghi, Ph.D., P.E. The Florida Supreme Court’s de- cision in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) is the lead case ad- dressing the late disclosure of experts. The Binger case came up in the context of a late- 2 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN listed impeachment witness, which resulted from the fact that many trial judges and law- yers in those days believed that impeachment witnesses did not have to be listed at all, or at least not listed under the same time deadlines as substantive witnesses. The Binger Court held that impeachment witnesses were no different from other witnesses when it came to the duty to list them in a timely fashion, and then established parameters for enforcing or excusing deadlines for listing of all witnesses. The Supreme Court in Binger held that a trial court’s discretion to strike a late-listed witness “should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party.” Id. at 1314. “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.” Id. A party cannot be surprised, for example, if you call an expert who was on a different party’s witness list, but not your own. See State Paving Corp. v. Zebrowski, 544 So. 2d 279 (Fla. 4th DCA 1989). In addition to considering the paramount issue of prejudice, the court in Binger held: “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, non- compliance with the pre-trial order; and (iii) the possible disruption of the orderly and effi- cient trial of the case (or other cases).” Id. In the instant case, Plaintiff waited roughly six (6) weeks after Defendants Expert Disclosure on November 7, 2023, which included Ming Xiao, Ph.D., P.E., accident recon- structionist, to disclose their new experts to the surprise and prejudice of Defendants. It is virtually impossible to conduct the expert discovery and depositions of Plaintiff’s late 3 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN disclosed experts at this stage of the litigation with a mere thirty-nine days remaining until the discovery cut-off. As such, Plaintiff’s Amended Expert Disclosure filed December 11, 2023 must be stricken. WHEREFORE, Defendants request this Honorable Court to enter an Order Grant- ing this Motion to Strike Plaintiff’s Amended Expert Witness Disclosure on December 11, 2023 and for all such further relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 15th day of December, 2023, a true and correct copy of the foregoing was filed with the Clerk of Osceola County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan & Morgan, P.A., malzate@forthepeople.com; imerlos@forthepeople.com; anajera@forthepeople.com, 198 Broadway Avenue, Kissimmee, FL 34741, (407) 452- 1597/(407) 452-1623 (F), Attorney for Plaintiff, Asbel Alexander Llerena. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC. Tower Place, Suite 400 1900 Summit Tower Boulevard Orlando, Florida 32810 Telephone (321) 972-0011 Facsimile (321) 972-0099 Primary e-mail: scott.shelton@csklegal.com Secondary e-mail: gary.lewis@csklegal.com Alternate e-mail: C:\Users\SMCINT~1\AppData\Local\Temp\1224.dat 4 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN By: s/ Gary L. Lewis SCOTT A. SHELTON Florida Bar No.: 36486 GARY L. LEWIS Florida Bar No.: 158887 5 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX