The Fourth District Court of Appeal Wednesday cautioned against using “trial by ambush” ploys, in its opinion on a personal injury case in which the plaintiff's expert witness was shown evidence for the first time during trial.

Though there were no surprise witnesses or pieces of evidence mid-trial, the appellate court found it wasn't fair for plaintiffs counsel to tell jurors what the expert's opinion was on a piece of evidence before the expert had actually reviewed it.

The plaintiffs had relied on the expert as the only witness to have compared two MRI scans, but in fact he'd only seen one of them when trial started, according to the opinion, which suggests Fort Lauderdale plaintiffs attorney Todd L. Baker of Steinger Iscoe & Greene tried to ”bolster his case” with undisclosed testimony, by waiting until the last minute to get it.

The court noted that the case comes 26 years after it first addressed the issue in Grau v. Branham.

“These 'trial by ambush' tactics were wrong in 1993, and they remain wrong today,” the ruling said.

The decision came in a case involving plaintiff Charles Dixon, who sued driver Mindaugas Macijauskas, car owner Gurin Gold LLC and insurer State Farm Mutual Automobile Insurance Co. in 2015, alleging a car crash had aggravated his preexisting spinal injuries.

Dixon's treating physician after the accident became his expert witness. But although the doctor had examined Dixon's MRI scan from 2014, he hadn't seen another one stemming from a prior accident in 2010, even though it was a crucial part of the defense's case.

The ruling means a new trial for the plaintiff, who was awarded $150,000 in damages.

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'This is a surprise'

Plaintiffs attorney Baker told jurors in opening statements that the plaintiff's expert witness was prepared to testify about the differences between the two scans.

But it came to light at a proffer before jurors entered that it was the first time the doctor had seen the 2010 MRI. On first review, he concluded that Dixon's spinal disc herniation had been aggravated by the 2014 crash, and found that the MRI scans were of different quality because they were created using different machines. But on second glance, the doctor had new opinions, according to the ruling, finding the MRIs weren't comparable because they were made using magnets of different strength.

The defense moved to stop the doctor from testifying and Broward Circuit Judge Jeffrey R. Levenson at first agreed, calling the doctor's testimony “completely prejudicial” and “egregious.”

“The one thing the judge does not want is surprises, okay. This is a surprise,” Levenson told Baker, according to Wednesday's ruling. “Obviously, you didn't show it to him between the time he took the depo and now, and you showed it to him in the hallway.”

But Levenson changed his mind, allowing the testimony because the doctor's key message hadn't changed. The defense's expert, who had reviewed the MRIs before the discovery cut-off date, testified at trial that they showed no changes.

The Fourth DCA called that an abuse of discretion, ruling that the court's focus should have been on any potential prejudice to the defense. The panel relied on the Binger rule, which is aimed at preventing “ambush-based prejudice.”

“After opening statements, unless there exist 'extraordinary' circumstances, the time for development of new testimony is long past,” the opinion said.

In an emailed statement, Dixon's appellate lawyers Andrew A. Harris and Adam Richardson of Burlington & Rockenbach in West Palm Beach said they were disappointed with the outcome.

“Nonetheless, we appreciate that the appellate court thoroughly reviewed the issues, as it does in every case. We respectfully disagree with the court's decision, and are evaluating our additional appellate options. Our client looks forward to another opportunity for an even better result at the re-trial,” Harris wrote.

Defense lawyers Jaime J. Baca and Alyssa M. Reiter of Wicker Smith O'Hara McCoy & Ford's Coral Gables and Fort Lauderdale offices did not respond to a request for comment by deadline.

Chief Judge Spencer D. Levine wrote the opinion, with Judges Dorian K. Damoorgian and Jeffrey T. Kuntz concurring.

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