BY HON. DONALD J. O’BRIEN, JR., MARTIN HEALY, JR. AND TERENCE GEOGHEGAN
Burdened by the weight of exceptions fashioned by Illinois courts during its eleven year reign, the good ship SCR 220 sprung too many leaks, took on too much water and sank to the bottom of the civil practice ocean. However, like the infamous vessel which rests at the bottom of the Atlantic, SCR 220 has not been forgotten, and its ghost still hovers over the decision-making process during the voyage of its successor, SCR 213, into uncharted waters.
For better or worse, on June 1, 1995, Supreme Court Rule (“Rule”) 220 was repealed and replaced by an amended Rule 213. Almost overnight the life of the trial lawyer changed dramatically. Some practitioners expressed alarm, others shrugged it off expecting the new rule to become a clone of its predecessor. Which group was correct? Only time will tell, but the decisions of reviewing courts suggest the former group may be closer to the mark. In any event no discussion of Rule 213 would be complete without reference to the repealed Rule 220 and the circumstances of its fall from grace.
II. The Winds of Change
A good example of the judicial dissatisfaction with the operation of Rule 220 is outlined in a 1993 case, Yamnitz v. William J. Diestelhorst Company, Inc. where Justice Steigmann stated in a special concurring opinion:
I am fully aware of the goals the Supreme Court of Illinois had in mind when it promulgated Rule 220- elimination of surprise, easier and more effective preparation for trial, better utilization of discovery procedures-but the volume of litigation Rule 220 has caused reveals that it has not achieved these goals.
I suggest that the time has come for the court to rethink this entire subject and to provide a rule regarding expert testimony which is clear, easy to understand and easy to apply. The rule I propose has the attractiveness of being a “bright-line” rule: Before a party may elicit an expert opinion at trial from a witness that party has called to testify, that party must disclose in advance of trial (at whatever the supreme court determines that point to be) the existence of the expert witness from providing any expert testimony.
Less that two years later, after input from the bench and bar concerning problems with expert discovery, significant changes were made. The June, 1995, Order also amended numerous discovery rules, repealed others, and adopted a new Rule 222. Changes included an interrogatory limit of 30, a continuing duty to supplement or amend answers, and a limitation on the length of discovery depositions to three hours.
Rule 213 not only deals with identification and opinions of experts, it also requires the identification of all witnesses who will testify at trial, together with the subject matter of their testimony. Rule 213 must be read in conjunction with Rule 218, which provides for scheduling of case management conferences. These conferences establish discovery schedules, including the time within which 213(g) witnesses are required to be disclosed and deposed. Under rule 213 there is no need to propound supplemental discovery, as was required by Rule 220. Rather, as previously stated, each party has a continuing obligation to supplement previously-provided answers. Furthermore, under Rule 218(c), the identity, qualifications and opinions of all of those witnesses who will give opinions must be identified no later than sixty days before trial. These new rules appear to provide straightforward guidelines but, inevitably, also give rise to questions.
III. Rules 213 and 218; The Early Days
It was not long before courtroom war stories began to emerge confirming that these new rules were, indeed, potent weapons in the hands of the astute practitioner. It also became quickly apparent that failure to follow the strict provisions of the rules could result in disastrous consequences for both practitioner and client.
The most notable change for attorneys was the need to elicit opinions at discovery depositions of eyewitnesses, other lay witnesses and “experts,” retained or otherwise. Previously, attorneys who had disclosed an expert under Rule 220 would allow the opposing counsel to develop opinions of the expert at deposition, a general statement of those opinions having been expressed in the Rule 220 disclosures. Failure to ask about all opinions was at the inquisitor’s peril. However, under Rule 213, all attorneys are required to elicit whatever opinions they plan to use at trial from any witnesses, regardless of their relationship to the witness. Failure to do so, in the belief that the adverse party should have asked the appropriate questions, will most likely result in the undisclosed opinions remaining that way at trial.
(A) Rule 213(f)
A controversy developed concerning Rule 213(f) which required the identification of witnesses who will testify at trial, together with the subject matter of their testimony. In practice, although plaintiffs and defendants would have disclosed their own witnesses, in response to 213(f) interrogatories, motions were brought to bar opposing parties from calling those witnesses undisclosed by that party.
Effectively, the defendant could assert that although defendant’s trial witnesses had been disclosed, this did not mean that plaintiff could call them during his case-in-chief, since they had not been independently disclosed by the plaintiff. Some judges, strictly interpreting the Rule, have barred these witnesses from being called by the adverse party; others have found that they could be called by either party if their depositions had been given. Because of the strict interpretation by some courts, it is recommended that each party name the opposing parties’ witnesses in response to 213 interrogatories, if there is a chance any of these witnesses will be called by the disclosing party. Effectively, the defendant could assert that although defendant’s trial witnesses had been disclosed, this did not mean that plaintiff could call them during his case-in-chief, since they had not been independently disclosed by the plaintiff. Some judges, strictly interpreting the Rule, have barred these witnesses from being called by the adverse party; others have found that they could be called by either party if their depositions had been given. Because of the strict interpretation by some courts, it is recommended that each party name the opposing parties’ witnesses in response to 213 interrogatories, if there is a chance any of these witnesses will be called by the disclosing party.
(B) Rule 213(i)
In the earlier trials, under the new rules, motions were filed to bar opinions of witnesses not disclosed in response to Rule 213 interrogatories, notwithstanding these opinions had been identified in deposition testimony. Some judges, interpreting the Rule strictly, did, in fact, bar these opinions, leading to unforeseen, sometimes disastrous consequences. To address this problem Rule 213(i) was amended in April, 1997, providing that deposition testimony of opinion witnesses should be read in conjunction with answers to Rule 213 interrogatories. The Rule further provides that for a party to specifically supplement Rule 213(g) answers with the new or additional opinions or bases. However, it is the burden of the proponent of these opinions to identify them in the deposition or answers, if challenged by the opponent.
(C) Rule 218
Under the new Rule 218, which has ancillary provisions affecting the operation of Rule 213, the motion judge has an obligation to establish an initial case management conference, followed by subsequent conferences, in accordance with the requirements of the case. Case management orders establish dates for each side to disclose witnesses under Rule 213(f) and (g), and provide cut-off dates for taking witness depositions. Under the provisions of Rule 213(f) and (g), responses are only required “upon written interrogatory:” thus, a party is not required to answer fact or opinion discovery unless it is propounded in writing by the other party. Under Rule 218(c), the case management order will establish a time within which fact and opinion witnesses must be disclosed and deposed. The question arises whether a party needs to comply with the provisions of the case management order if no written interrogatory has been propounded. It is the view of the authors that the provisions of Rule 213 are more specific, and thus should apply. Therefore, notwithstanding the case management order, no Rule 213 disclosures are required absent the prescribed interrogatory. However, in practice, cautious practitioners have identified witnesses and their opinions despite the absence of their opponent’s written interrogatories, awaiting a definitive pronouncement on the issue from a reviewing court.
(D) 213(f) or (g); Fact Or Opinion?
The distinction between fact and opinion testimony is sometimes not subject to clear definition. While there is no Rule 213 case law defining “opinion”, an appropriate definition would be,
an inference, judgment, conclusion or supposition drawn by a witness from observable facts.
The final determination of whether testimony is fact or opinion-based rests within the sound discretion of the trial court, Illinois courts have found that, with a proper foundation, a lay witness can give opinions on a wide array of subjects. Some examples are: a vehicle’s speed, the stopping distance of a certain vehicle, the value of property, whether a person was in pain, whether a person was intoxicated, whether a person was unconscious, whether a person was in fear, whether a person was disoriented, whether a person was competent, and whether a person was of sound mind.
Additionally, various types of cases will require a re-examination of what must be disclosed. For example, in wrongful death cases, before Rule 213, it was assumed by both sides that relatives would testify about loss of society. The new rule, however, requires specific disclosure of the identity of these witness and the nature and extent of facts and opinions which will be offered at trial concerning that loss. In injury cases, lay witnesses giving opinions about pain must be identified and their opinions disclosed. Witnesses may be called upon to offer opinion testimony on innumerable subjects and thus, must be properly disclosed in accordance with the provisions of Rule 213(g).
Most trial attorneys are very familiar with this objection, hearing it many times, sometimes without bases. At what point does a constant “objection-213” become a tool of harassment? Because of the potentially disruptive nature of each Rules 213 objection, where a side bar may be necessary on each occasion, courts must consider the good faith nature of the objection, After a number of Rule 213 objections are met with a showing that the opinions appear in the deposition or answers, the court may with to remind the objector that a good faith objection also requires a thorough knowledge of the deposition and answers on the objector’s part.
Rule 213(i) requires the proponent to point out where in the answers or deposition the opinion is located, so it would be advisable in a complex case, for the attorney to have a litigation support system in addition to a thorough knowledge of the testimony,. Litigation support software for use before and during trial allows trial attorneys instantly to search and retrieve specific items of information from increasingly large volumes of materials. Advances in litigation software allow programs to run in the courtroom on laptop computers.
IV. Direction From The Appellate Court
Trial attorneys and trial court judges, alike, have eagerly awaited pronouncements from reviewing courts concerning the application of Rule 213. As of the writing of this article, thirteen opinions are available, with contributions from all five appellate districts. Six of these thirteen cases are notable for reversals based on violations of Rule 213.
The first decision applying Rule 213, Iser v. Copley Memorial Hospital, was issued by the Third District in May, 1997. In Iser, the failure of plaintiff’s expert to disclose four peer-reviewed articles as authoritative during discovery resulted in the articles being barred from use at trial. Plaintiff asserted that the retained medical expert was not relying on the articles to bolster his opinion, but merely identifying them as authoritative, thereby allowing counsel to use them in the cross-examination of defendant’s experts. However, the reviewing court, strictly interpreting the new Rule 213, held that notwithstanding the purpose for which plaintiff sought to use the articles, their introduction came as a surprise to defendant. Accordingly, because the opinion about their authoritative nature was not disclosed, testimony regarding the articles was properly excluded. In affirming judgment for defendant, Iser stands as an excellent example of the range of opinions to which Rule 213 is applied.
Then came the 1998 case, Department of Transportation v. Crull, where the court had the opportunity to comment on the new disclosure requirements. In finding them stricter under Rule 213 than under Rule 220, Justice Steigmann commented:
Trial courts should be more reluctant under Rule 213 than they were under former Rule 220(1) to permit the parties to deviate from the strict disclosure requirement.
The Crull decision left practitioners with little doubt that courts were serious in their application of the new discovery provision and that the new rules would not be afforded a liberal interpretation.
This impression was further confirmed by another 1998 decision in Ashpole v. Brunswick Bowling and Billiards Corp., when the court stated that a witness, disclosed as being present at an accident scene but not as an eyewitness, should have been barred from testifying as an eyewitness. Plaintiff had submitted interrogatories requesting (1) the identities of the witnesses to the accident; (2) the identities of the employees working at the time of the accident; and (3) the identities of all persons who might possibly testify on behalf of defendants. In response, defendants merely listed a certain female employee as working at the time of the accident. She was never identified as an eyewitness.
At trial, the employee was called as an eyewitness to the accident in support of defendant’s theory that the fall occurred at another location. Plaintiffs claimed surprise and prejudice asserting the trial court abused its discretion in failing to bar the testimony, strike it or declare a mistrial. The reviewing court commented that “discovery is not a game; rather, our discovery rules require full and complete disclosure in order to promote the speedy and efficient resolution of cases. Ashpole makes it clear that sketchy, evasive or inadequate disclosures will not be tolerated, especially where there is surprise and prejudice to the opposing party.
This strict attitude in the application of Rule 213 is further apparent in Adami v. Belmonte, a medical negligence case, where the trial court barred plaintiff from calling a witness previously retained as an expert by the defendant hospital. This expert’s testimony was barred notwithstanding that he had given an evidence deposition favorable to plaintiff of a pivotal issue, seven weeks before the trial date. Approximately two weeks before trial, plaintiff identified the doctor as an opinion witness plaintiff might call at trial.
Upon motion of the defendant doctor to prevent this expert testifying in plaintiff’s case-in-chief, defendant asserted that disclosure was untimely. The trial court agreed. On appeal, Plaintiff argued that the defendant doctor knew of the expert’s opinions approximately eight months before trial and, therefore, no prejudice resulted from the untimely disclosure. The reviewing court disagreed stating that the late disclosure of the expert would have prejudiced the defendant doctor in the case. The court found merit in the doctor’s claim that, had he known the testimony would be used against him by plaintiff, he would have sought a rebuttal expert.
The court apparently gave credence to defendant’s claim that he had relied upon plaintiff’s failure to disclose the expert and believed plaintiff would not call him to testify. Although it seems highly unlikely this defendant would not anticipate plaintiff calling such a valuable witness this case provides ample warning that it is not wise to assume merely because the opposing side is aware of adverse testimony that disclosure is unnecessary.
In a Fourth District medical negligence case published in April, 1999, McMath v. Katholi, defendant doctor did not disclose himself as an opinion witness under Rule 213. The reviewing court reversed the jury’s verdict in favor of the doctor. The court noted that:
a surprise opinion presented for the first time at trial (as here) becomes no less a surprise because the witness rendering the opinion happens to be a party.
Defendant attempted to rely on the “party exception” of Rule 220(c)(4), which was done away with by Rule 213. The court also rejected Dr. Katholi’s suggestion that he had somehow complied with Rule 213 disclosure requirements because his deposition testimony included a discussion of the possible causes of plaintiff’s decedent’s death. At trial, Dr. Katholi stated his opinions about the specific cause of plaintiff’s decedent’s death for the first time.
In another case decided in April, 1999, the Second District remanded Warrender v. Millsop, a medical negligence case, for a new trial. That court demonstrated its support for strict construction of Rule 213 holding that the opinion testimony of the defendant doctor’s expert was improperly admitted where he was not disclosed as an opinion witness. The basis for the reviewing court finding in this case hinges on an elaborate factual scenario in which the trial date had been continued on a number of occasions and the court had to determine when to apply the sixty day cut-off provision of Rule 218. The court decided that, for purposes of calculating the sixty day rule, the trial date considered “final” should be used in favor of preliminary trial dates. This case provides a good insight into the application of 218(c) and the sixty-day rule.
Furthermore, the Warrender court reiterated that, in determining whether the exclusion of a witness is a proper sanction for non-disclosure under Rule 219, the following six factors must be considered:
(1) Surprise to the adverse party;
(2) Prejudicial effect of the testimony;
(3) Nature of the testimony;
(4) Diligence of the adverse party;
(5) Timeliness of the objection to the testimony; and
(6) Good faith of the party calling the witness;
Although in this case all six factors weighed in favor of barring the experts testimony, future courts are likely to find that the totality of the situation should be taken into account. Reviewing courts will look to these six indicators for direction when determining if a trial court abused its discretion in applying a sanction for Rule 213 violations.
Concerning the weight to be afforded these factors, some guidance may be found in Curran Contracting Co. v. Woodland Hills Development Co. There, the reviewing court faced the issue of the appropriateness of allowing a witness to testify at trial in the face of plaintiff’s failure to disclose him either in answers to general interrogatories or under Rule 220. In applying the six-pronged test the court noted that several factors; however, the most important factors, including surprise, prejudice and nature of the testimony weighted in the plaintiff’s favor. Accordingly, it may well be that these three factors, especially prejudicial to the opposing party, will receive greatest deference when future courts decide the issue of appropriate sanctions in a Rule 213 context. However, it should be noted that the court in Linn v. Damilano, ruled that even where a Rule 213 violation may have occurred, a case will not be reversed absent a showing of prejudice.
V. Uncharted Waters
The 1997 amendment to Rule 213 sought to clarify the requirement for supplementing answers following a discovery deposition. However, both the wording and interpretation of the amendment may be creating a new problem. Rule 220 restricted the scope of an expert’s testimony as follows:
his direct testimony at trial may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. (Emphasis added).
Rule 213(i) provides in part:
If a deposition of an opinion witness is taken, the witness’ testimony at trial will be limited to the opinions expressed therein, in addition to those opinions identified in answers to Rule 213(g) interrogatories.(Emphasis added).
Because the drafters of Rule 213 did not continue its application to direct testimony, as was done in Rule 220, and because Rule 213(i) limits opinions to those “expressed in the deposition and the answers to interrogatories,” any opinion that was not disclosed would be inadmissible on direct or cross-examination. The authors, however, do not believe this was an intended consequence of the Rule’s amendment.
The Rule should apply only to direct examination because to expand it would severely restrict effective cross-examination. It has always been the case that, as part of a trial strategy, an attorney may choose not to ask a question of an expert during a deposition, saving it for trial instead. Because of the proliferation of deposition banks and attorney collaboration, depositions of active expert witnesses are usually available. If, in a previous deposition, an opinion of an expert is contrary to a current opinion, the seasoned practitioner may want to save this information for cross-examination at trial. It would be appropriate for the trial court to allow impeachment of the expert on a previous opinion, without prior disclosure, as long as the previous opinion is not offered as substantive evidence.
In addition, there is a more practical reason to apply it only to direct examination in the cross-examination at deposition severely weakens or nullifies the witness opinions, the proponent of the opinion may simply withdraw the expert and hire a less vulnerable substitute.
The authors believe, even under the current wording, significant latitude can be given to test the opinions of adverse witnesses, where the general subject matter has been covered in the deposition. While the goal of eliminating “ambush at trial” is laudable, the art of cross-examination, which oftentimes includes an element of surprise, should not be significantly emasculated. The wording of Rule 213(i) should be amended to apply only to direct examination.
Rule 236 provides for the admission of medical charts as business records. A question then arises as to the relationship between Rule 236 admission and Rule 213 disclosure. The authors believe that, while medical records may be admissible under Rule 236, the opinions contained therein must be disclosed under Rule 213(g) before they can be used at trial.
What happens under Rule 213(i) if no deposition is taken? Is the scope of the opinion testimony at trial limited to the answers to interrogatories or does it include what would have been discovered in the deposition? While a minority of judges embrace the latter philosophy, the authors believe that because there is no requirement to take a deposition, the working of Rule 213(i) mandates that the scope of the testimony be limited to the answers to interrogatories.
It could be said that the three most important things in trial work are: preparation, preparation and preparation. This is even more the case since the launch of Rule 213. The Rule can be a friend to trial attorneys who are well prepared, especially in the area of opinion witnesses, and especially those using the latest technology. It can be a shield against “ambush at trial,” which should lead to more predictability, and from this predictability may flow the benefit of earlier case resolutions.
Rule 213 can also be the foe of those who are ill-prepared and those who encounter opponents who object inappropriately using the Rule as a sword during trial. Educating the trial court early on about the substance of opinion testimony, through trial briefs or pre-trial motions, is a must where this problem is anticipated.
It is clear that most trial courts, and certainly all of the appellate courts, mean business when it comes to Rule 213 disclosures. The reviewing courts could be said to have added ballast to this new star of the civil practice fleet, evincing a determination to keep it afloat in the face of broadsides from the swashbucklers of the Illinois trial bar. As a consequence, trial attorneys on both sides, perhaps reluctantly, are coming to accept that disaster awaits those who fail to strictly comply with the letter and spirit of Rule 213.