In Premark Intern., Inc. v. Pierson, 823 So. 2d 859 (Fla. 5th DCA 2002), the Fifth District considered a case in which the trial court struck an expert witness based on a problem coordinating the expert’s availability for a CME. This is an important case for those of us handling first-party property insurance cases in South Florida, because the South Florida trial court situation is difficult.

This difficulty is, in part, caused by the high volume of cases. Attending calendar calls in South Florida, we see that judges often berate the lawyers when they attempt to discuss their experts’ availability for trial. The judges simply will not consider experts’ schedules, at all. I understand the judges’ position. It’s hard enough to get a trial to happen even when considering only the lawyers’ and parties’ availability. The courts cannot be worried about every witness who has vacation plans. The Premark Intern case shows, however, that judges should not have an immovable “don’t talk to me about your expert’s schedule” rule.

In Premark Intern, there was a problem with coordinating the time for the CME of Janet Pierson and mediation, because she was an out-of-state plaintiff and only wanted to make one trip. Before the CME took place, the Piersons propounded expert interrogatories on Premark and it responded, but as Premark explained, not fully because the CME had not yet taken place. Although the court denied the Piersons’ motion to strike Premark’s expert witness at that time, it ruled the expert must be made available for deposition no later than the close of business May 3, 2002. The trial was scheduled to commence May 15, 2002.

Dr. Maluso’s staff advised counsel for Premark that the doctor would be out of his office through May 3, 2002, and accordingly Premark filed a motion for extension of time for his deposition. Apparently counsel for Premark was misinformed because Dr. Maluso was scheduled to perform another CME on a different client of the Pierson’s attorney, in his office on May 3, 2002.

Premark, having learned Dr. Maluso was present on May 3 in his office, filed an amended motion for extension of time. The court was advised Dr. Maluso and another witness were available for deposition on May 8, 2002. The court allowed an extension of time regarding the other witness but denied it as to Dr. Maluso, and struck him as a witness in an order dated May 9, 2002. On that date, Dr. Maluso’s CME of Janet Pierson was filed with the court.

Premark filed a motion for rehearing or to continue the trial from the May 15, 2002 docket. Included with the motion was an affidavit by Dr. Maluso in which he averred that due to appointments and schedule constraints he would not have been available for deposition by counsel on May 3, 2002, but that he was available on May 8, 2002, and would also make all reasonable efforts to make himself available prior to trial. The trial court refused any relief.

The appellate court concluded that the denial to Premark of its sole expert witness was too drastic a sanction under the circumstances. The importance of his testimony at trial, reasoned the court, was beyond serious dispute. See, e.g.. Life-mark Hospitals of Florida, Inc. v. Hernandez, 748 So.2d 378 (Fla. 3d DCA 2000) (certiorari granted when the testimony was material to the central issue in the case); Travelers Indemnity Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980) (“It is difficult to understand how the denial of the right to take the testimony of an alleged material witness can be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.”).

In Premark Intern, there was no allegation that counsel for Premark intentionally misrepresented to the court the whereabouts of Dr. Maluso, after learning of his presence in his office May 3. There was also no allegation or representation that counsel for Dr. Maluso did anything other than rely on the statements or representations made to him by Dr. Maluso’s office staff. In addition, the trial court failed to make any finding of contempt or other misconduct by anyone involved.

Prior to striking an obviously essential expert witness, on eve of trial, the trial court should find serious misconduct by the party or counsel involved, or a violation of an appropriate court order. According to Cooper v. Lewis, 719 So.2d 944, 945 (Fla. 5th DCA 1998), before striking an expert witness, the trial court should “find someone is in contempt of court or has violated an appropriate court order.” (Emphasis in original). In Premark Intern, there was no testimony or evidence that anyone disregarded a court order or made an intentionally false representation to the trial court.