A personal injury lawsuit rocked by a surprise email the day before trial was the subject of a Fourth District Court of Appeal ruling that highlighted what could happen if procedural restrictions aren't followed, even if unintentionally.

It led to praise for a South Florida jurist, when the appellate panel found Broward Circuit Judge David Haimes "admirably balanced the competing interests," leading the higher court to affirm a defense verdict.

"Civil trials are not the Wild West, where one side ambushes the other at trial," the opinion said. "Except under extraordinary circumstances, 'the lawyers have a right to expect that once a trial commences, discovery and examinations must cease.' "

The dispute involved Claudia Krysiak, an elderly Broward woman who sued after a car hit her in 2011, throwing her out of her power chair.

The left side of Krysiak's body has been paralyzed since 1994 when she suffered a brain aneurysm, according to the ruling.

After undergoing surgery for a fractured ankle after the 2011 incident, she blamed driver Shellyann Dawson and Wellington company H & J Contracting Inc., which was widening the road at the time.

But on the day before trial in February 2019 — after six years of litigation that included a year of trial delays — plaintiffs lawyer Kenneth J. Kavanaugh in Davie emailed defense lawyers David Chaiet of Eisinger Law in Hollywood and Jason Friedman of Kubicki Draper's Fort Lauderdale office to explain a new discovery.

Kavanaugh had found out that months earlier, the treating psychotherapist had changed her opinion to find that Krysiak was now suffering from post-traumatic stress disorder, despite having previously found otherwise. The plaintiff had also had an accident in 2018, according to the ruling.

The defense moved to exclude that evidence, alleging "trial by ambush," according to the opinion, which said the defense's psychiatrist had never addressed the issue. But Kavanaugh argued leaving it out would infringe on his client's constitutional rights and claimed he wasn't obligated to obtain updates on the treating psychotherapist, who wasn't an expert.

That last-minute development forced Haimes "to untangle the Gordian knot of the process required by Binger v. King Pest Control," which dictates when trial courts can exclude witness testimony. Meanwhile, the parties were in the courtroom and jurors were waiting outside, according to the opinion, which said Haimes suggested a continuance but the plaintiffs lawyer declined.

Haimes allowed the psychotherapist to testify, including testimony on the "permanency of any psychological symptoms" but blocked any talk about the PTSD diagnosis.

That was the right move, according to the appellate panel, because the diagnosis violated a joint pretrial stipulation requiring everyone to share all information regarding expert testimony and outlining a pretrial discovery deadline for 10 days before trial.

The psychotherapist wasn't on the plaintiff's witness list, but was on defendant Dawson's — without indication of her testimony, according to Wednesday's opinion.

"The plaintiff did not accept the trial court's tentative offer of a continuance, so the court crafted a ruling that limited the unfair prejudice imposed on the defendants while allowing much of the testimony to go forward," the ruling said.

Jurors found H&J wasn't negligent, apportioning 25% of blame to Dawson and 75% to the plaintiff. But because they found Krysiak's injuries weren't permanent and the verdict form only sought noneconomic damages, the result was a defense verdict.

Fourth DCA Judge Robert M. Gross wrote the ruling, backed by Fourth DCA Judge Jeffrey Kuntz and Palm Beach Circuit Judge G. Joseph Curley, sitting by special designation.

Dawson's appellate attorney Stuart J. Freeman of Freeman, Goldis & Cash in St. Petersburg was pleased with the decision.

"This was a case that the trial court originally, and appellate court now, both recognized was an attempt by the plaintiff to unfairly introduce into evidence a new and changed diagnosis at the very last moment," Freeman said. "Both courts refused to allow 'trial by ambush' and, as a result, justice was served."

Plaintiffs lawyer Kavanaugh and Sharon C. Degnan of Kubicki Draper in Orlando, who represents H&J, did not respond to a request for comment by deadline.

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