An update on Rule 213 trial witness disclosure: the Illinois Supreme Court made important changes to the Rule 213 trial witness disclosure requirements in 2002. This article examines the evolution of Rule 213 and reviews the Supreme Court and Appellate Court decisions addressing the rule over the last five years.
In response, the supreme court discarded the "opinion witness" rule and adopted a pretrial disclosure requirement based on the classification of a trial witness as a lay witness, independent expert, or controlled expert. (3) The category of the witness now determines the extent of the pretrial disclosure required to comply with Rule 213.
Based on early results from the reviewing courts, the amended rule appears to be holding its own. one good sign: appellate courts have used far fewer decisions to interpret the 2002 amendments than they did to address the former "opinion witness" rule during the first five years after its adoption. And unlike the former opinion witness rule, the 2002 amendments have inspired no calls for the supreme court to abandon the rule and start over again.
This article will first look at the supreme court's recent amendment to Rule 213 which took effect January 1, 2007. (4) It will then review three decisions by the supreme court interpreting rule 213 issues, which were decided after the court adopted the 2002 amendments to Rule 213 but arose under the former "opinion witness" rule. Finally, it will examine 10 appellate court decisions interpreting and applying the 2002 amendments.
The recent amendment to Rule 213(g)
Trial witness disclosure requirements continue to evolve, as is evidenced by the supreme court's recent amendments to Rule 213, which took effect on January 1, 2007. (5) responding to the fifth district's decision in Morgan v Richardson, (6) the supreme court amended Rule 213(g) to provide that testimony is admissible only if it is disclosed in an answer to a Rule 213(f) interrogatory or in a discovery deposition.
The court amended the rule to state as follows: "Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial." (7)
This amendment reveals the supreme court's commitment to maintaining Rule 213 as a viable rule that is neither subject to exceptions nor easily circumvented.
Supreme court decisions since the 2002 amendments
The supreme court has decided three appeals involving Rule 213 trial witness issues since it adopted the 2002 amendments to Rule 213. In each case, however, the former "opinion witness" rule was still controlling at the time of trial.
Because two of the cases involved the testimony of retained experts under former Rule 213(g), which is almost identical to the current version of Rule 213(f)(3) relating to controlled expert witnesses, they function as precedents when interpreting cases under current Rule 213(f)(3). The third case is significant because the court allowed the testimony of a witness who was not disclosed as a trial witness until after the trial had begun.
Expert allowed to elaborate on disclosed opinion at trial. The first supreme court case to substantively address a Rule 213 opinion witness issue was Schultz v Northeast Illinois Regional Commuter Railroad Corp. (8) There, the plaintiff brought an action under the Federal Employers' Liability Act after being injured when he fell off of a retaining wall.
Following a jury verdict for the plaintiff, the defendant appealed. He argued that the trial court had erred in allowing the plaintiff's retained expert, a structural engineer, to testify that various governmental regulations reflected a standard of care requiring a guardrail above the retaining wall where the plaintiff had fallen. The defendant maintained that the expert's testimony at trial went beyond the disclosed opinions in his report or deposition and had prejudiced and unfairly surprised the defendant. The supreme court disagreed.
The supreme court compared the opinions disclosed in the expert's report and discovery deposition to his testimony at trial. The court concluded that while the plaintiff's expert "never explicitly stated" in his deposition or report the opinion about which defendant was complaining, it was "implicit" in his disclosed opinion. (9)
The court rejected defendant's argument of surprise by noting that he was aware of the plaintiff's position based on arguments made at the pretrial conference when the trial court ruled on motions in limine. Consequently, he could not have been surprised by the testimony of the expert at trial. Moreover, the court noted, the defendant had ample time to prepare an objection or cross-examination.
New opinion not an elaboration or logical corollary. In its most significant Rule 213 decision to date, the supreme court addressed the scope of former Rule 213(g) in Sullivan v Edward Hospital. (10) There, the plaintiff appealed a directed verdict in favor of the defendant hospital. The plaintiff argued that the trial court had erred in striking her retained expert's opinion at trial that the hospital nurse deviated from the standard of care.
Apparently, the plaintiff's expert was not deposed. Thus, the supreme court could only compare the expert's testimony at trial to the plaintiff's Rule 213 disclosure, and the plaintiff conceded that the specific opinion at issue was not contained in her Rule 213 disclosure.
The supreme court rejected the plaintiff's argument that the "gist" of her expert's specific opinion at trial was merely an "elaboration" or "logical corollary" of, or "effectively" implicated in, her Rule 213 disclosure. (11) The court agreed with the trial court that Rule 213 requires that "you ... drop down to specifics." (12)
The court stressed that Rule 213 permits litigants to rely on the disclosed opinions of the opposing party's experts and thereby construct their trial strategy. To allow either party to ignore the plain language of Rule 213 defeats its purpose and encourages tactical gamesmanship. (13)
The court held, therefore, that the trial court did not abuse its discretion in finding that plaintiff had violated Rule 213(g) or in striking those portions of the expert's testimony which violated Rule 213. The court wrote that a trial court should not hesitate to sanction a party who fails to comply with Rule 213 because the rule demands strict compliance. (14)
Nondisclosed witness allowed to testify at trial. In re Marriage of Bates (15) centered on a custody dispute between parents. The trial court appointed an attorney to represent the minor child's interests.
During the bench trial, the court allowed the child's representative to call a deputy sheriff to testify, even though he had not been disclosed. The testimony from the deputy was in the form of an evidence deposition taken telephonically at the insistence of the child's representative.
The deposition was taken during the trial with leave of court and over the mother's objection. Although counsel for all parties participated in the deposition, the mother objected because the deputy had not been disclosed as a witness as required by the court's pretrial order.
The trial court overruled the mother's objection and permitted the child's representative to read the deputy's deposition into evidence. The trial court awarded custody to the father, and the mother appealed.
The supreme court held that the trial court did not abuse its discretion in allowing the deputy to testify at trial. The court did not, however, characterize the child representative's failure to disclose as a Rule 213 violation. (16)
In rejecting the mother's claim of prejudice, the court wrote as follows:
"We recognize the importance of compliance with discovery orders. To prevent surprise or prejudice, and where demonstrated harm results to a party, we will not hesitate to grant relief." (17) The court noted that the mother was aware of the deputy's involvement long before trial began and that her counsel had conducted an extensive and effective cross-examination.
Appellate court decisions on Amended Rule 213
The first district has decided seven of the 10 appellate court decisions that address the 2002 amendments to Rule 213. of the 10, five involved the testimony of controlled expert witnesses in medical malpractice actions and only two were in non-personal-injury cases.
Independent expert allowed to expand on written disclosure. The first appellate case on amended Rule 213 was In re Gwynne P, (18) which arose from an action filed by the state to terminate parental rights to the defendants' minor child. The state called a social worker during a hearing to determine the best interests of the child.
The social worker testified that the mother was assisting in the child's personal development, and she opined that it was in the child's best interests to terminate the father's parental rights. The father argued that the state had not disclosed the social worker's opinion with the specificity required for either a lay or an independent expert witness under amended Rule 213(f)(1) and (2). (19)
The first district referred to the duty under Rule 213(k) (20) for courts to liberally construe the rule to ensure substantial justice between the parties. Applying the more stringent disclosure requirements for an independent expert witness rather than those for a lay witness, the court found that the state's interrogatory answers met the requirements of Rule 213(f) and that the social worker's testimony at the hearing merely expanded upon the state's disclosure. (21)
Disclosure of party as a lay witness deemed inadequate. The first district addressed the adequacy of a Rule 213(f)(1) lay witness disclosure in Kim v Mercedes-Benz, USA, Inc. (22)
In Kim, the plaintiff's complaint sought money damages for the diminution in the value of his vehicle allegedly caused by a manufacturing defect. More than a year before trial, plaintiff's counsel sent a letter to defense counsel stating that "Plaintiff will testify ... about the matters alleged in Plaintiff's complaint...." (23) Significantly, the plaintiff was not deposed.
At trial, the defendant's counsel objected on the basis of nondisclosure under Rule 213 to questions addressed to the plaintiff by his counsel about the diminished value of the vehicle and what the plaintiff would have paid for the vehicle had he known about the alleged defects. Plaintiff's counsel argued that new Rule 213 was much more lenient than the former rule.
The trial court sustained defendant's objection. Because the plaintiff had no other evidence to present on the diminished value of the vehicle and could not prove his damages, the trial court granted the defendant's motion for a directed verdict.
The first district held that the plaintiff had waived his challenge to the exclusion of his proposed opinion testimony because he never proffered any evidence of the diminished value of the vehicle at trial. (24) Notwithstanding the plaintiff's waiver, the court chose to address the merits of the Rule 213 disclosure issue.
The appellate court found that plaintiff had seasonably supplemented his Rule 213 disclosure by his letter to defense counsel. The court held, however, that the disclosure was inadequate under Rule 213(f)(1). (25)
The court noted that, although a detailed disclosure for lay witnesses is no longer required under the newly-amended version of Rule 213, the plaintiff's disclosure that he would testify as to matters set forth in his complaint was a generalized statement akin to the example given in the committee comments to Rule 213(f) that an interrogatory answer would not give reasonable notice if it said only that an eyewitness to a car accident will testify about "the accident." (26)
The court concluded that plaintiff's generalized disclosure created an unfair surprise on the valuation issue and an undue burden on defendant. A more detailed disclosure would have allowed defense counsel to decide whether to depose the plaintiff or offer an opposing expert witness on the issue of diminished value.
Controlled expert allowed to testify without having been deposed. The first case to address the disclosure of controlled expert witnesses under Rule 213(f)(3) was Spurgeon v Mruz, (27) a medical malpractice action out of the first district.
Defense counsel cancelled his own expert's deposition on two occasions but then tendered his expert for his deposition on the eve of trial. Plaintiffs' counsel informed defense counsel that he would not be taking the deposition on that late date but instead would seek to bar the defendant's expert from testifying at trial.
The trial court denied the plaintiffs' motion to bar but offered to allow the plaintiffs to schedule the deposition of the defendant's expert at any time convenient to plaintiffs' counsel at the defendant's expense. Plaintiffs' counsel declined the trial court's offer because he needed the time to prepare for trial.
The trial judge then suggested that plaintiffs' counsel make a list of information he needed for his cross-examination of defendant's expert, to which the defendant would have to supply the answers in writing. however, plaintiffs' counsel never tendered the written questions to defendant's counsel.
At trial, when the defendant's controlled expert witness testified, plaintiffs' counsel did not renew his objection. Instead, he cross-examined the defendant's expert only on his affiliation with the defendant physician and did not cross-examine him on any of his substantive testimony. The jury returned a verdict for the defendant, and the plaintiffs appealed.
The first district held that plaintiffs waived the issue of whether the defendant's expert witness should have been allowed to testify by failing to renew their objection when the expert was called to testify in defendant's case. (28) The court further held that even if the issue had not been waived, the trial court did not abuse its discretion by refusing to bar the defendant's expert. (29)
The court observed that the plaintiffs had cited no authority holding that the unavailability of a witness for a deposition violates Rule 213. They chose to proceed to trial and did not request a continuance to depose the defendant's expert. They also refused to take advantage of the trial court's offers to allow them to either depose or submit written questions to defendant's expert.
The court also rejected the plaintiffs' argument that defendant's expert testimony was "new opinion testimony" that "had never been disclosed nor tested during deposition." (30) The court noted that the plaintiffs failed to offer any specific example of trial testimony that was not included in the defendant's Rule 213(f) responses.
An opinion is not new merely because it offers a more precise time. The first district again addressed the scope of Rule 213(f)(3) in Foley v Fletcher. (31) This case was a medical malpractice action brought by a minor and her parents arising out of injuries sustained by the child during labor and delivery.
In their pretrial disclosures, plaintiffs identified their controlled expert witness and disclosed his opinions, including his opinion that it was a deviation from the standard of care for the defendant to fail to document the warnings allegedly given to the mother of the risks associated with a vaginal birth after caesarian section. The plaintiffs' expert also gave this opinion in his discovery deposition.
At trial, the plaintiffs' expert testified in response to a question asking him to explain what informed consent of a patient means that "if the situation changes with time, any additional risks need to be explained to the patient." (32) The defendant's counsel immediately objected to this disclosure on the basis that it had not been disclosed pursuant to Rule 213 and moved to strike the testimony.
The trial court denied the defendant's motion on the basis that the expert's testimony was a necessary corollary to the statements in his deposition. (33) Following a jury verdict for the plaintiffs, the defendant appealed.
The first district noted that a witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion and does not set forth new reasons for it. (34) The testimony at trial must be encompassed by the original opinion. Rule 213 disclosures cannot be general but must "drop down to specifics." (35) While it is improper for a trial court to allow previously undisclosed opinions that advance a new negligence theory, testimony is not a new opinion merely because it refers to a more precise time than appeared in the expert's Rule 213 disclosure. (36)
The court found that the plaintiffs' disclosure and the expert's deposition testimony indicated that he could have been expected to testify to the need for warnings during the course of the attempted vaginal birth. There was nothing in the plaintiffs' disclosure or the expert's deposition to suggest that his opinion about warnings applied only before and not during the mother's attempt to deliver vaginally.
The court noted that the plaintiffs' disclosures about pre-natal warnings referred to the pre-natal period in general and did not distinguish between warnings before and after the onset of labor. The pre-natal period lasted until the child was born. The first district held that the trial court did not err in admitting the expert's testimony. (37)
Defendant physician allowed to elaborate at trial. In Brax v Kennedy, (38) the first district addressed whether the trial court erred when it allowed the defendant physician to provide an opinion at trial that the plaintiff claimed had not been previously disclosed in defendant's Rule 213 responses or in his discovery deposition. In his deposition, the defendant testified that a barium enema and a CT scan were considered equally acceptable methods in 1995 for diagnosing appendicitis, and that when he examined plaintiff in 1995 a barium enema was a reasonable and appropriate test.
The first district noted that although the defendant was not specifically asked during his deposition whether the diagnosis would have been different had a CT scan been conducted in 1995, the subject of a CT scan was raised during the defendant's deposition. Thus, the court found that the particular question and answer complained of at trial were permissible as an elaboration on, or a logical corollary to, the original opinion. (39)
Expert disclosed within 60 days before trial not automatically barred. In Gee v Treece, (40) a med-mal plaintiff entered into a settlement with two of the three defendants several months before trial and then proceeded to trial against the third defendant. During discovery the plaintiff disclosed Dr. Siegel as her expert witness against the two defendants who later settled.
In anticipation of the settlement by the two other defendants approximately four months before trial, counsel for the nonsettling defendant sent a letter to plaintiff's counsel advising him that the defendant wanted to take Dr. Siegel's evidence deposition at trial if the plaintiff no longer intended to call Siegel as her expert witness. The defendant even disclosed Dr. Siegel as her expert witness within 60 days before trial.
Efforts to take Dr. Siegel's evidence deposition failed, and the plaintiff refused the defense counsel's request to read a portion of Dr. Siegel's discovery deposition into evidence. Finally, the non-settling defendant retained his own expert witness, Dr. Stufflebam, to testify on the same topic on which Dr. Siegel would have testified. The defendant disclosed this new expert only 48 days before the trial was to begin.
The defendant took an evidence deposition of Dr. Stufflebam in which he testified consistently with his disclosure. Plaintiff's counsel did not move to quash Dr. Stufflebam's evidence deposition, nor did he attend. Instead, the plaintiff filed a motion in limine before trial seeking to exclude the evidence deposition, arguing that the defendant failed to comply with Rules 213 and 218 when he disclosed Dr. Stufflebam only 48 days before trial. (41)
The trial court denied the plaintiff's motion. (42) The jury returned a defense verdict, and the plaintiff appealed. The fifth district held that the plaintiff had waived this Rule 213 issue by failing to renew her objection at trial to the defense expert's testimony. The court, however, chose to address the Rule 213 issue on the merits. (43)
The plaintiff argued that the defendant's disclosure of Dr. Stufflebam was untimely in light of Rule 218(c), which requires discovery to be completed no later than 60 days before the anticipated trial date. The court indicated that Rule 213(f)(3), 213(i), and 218(c) are to be read together to ensure that discovery is completed no later than 60 days prior to trial. As a result, information disclosed pursuant to Rule 213(i) must normally be disclosed no later than 60 days before the start of trial.
The court refused, however, to hold that a disclosure less than 60 days before the trial is automatically barred as being untimely regardless of the circumstances that led to the late disclosure. (44) The court stressed that Dr. Stufflebam's testimony was essentially the same as that of the plaintiff's own expert, and thus the plaintiff could hardly claim surprise. The court found that defense counsel had timely disclosed to the plaintiff his intent to call Dr. Siegel as his own defense witness should the plaintiff decide not to call him.
The court further noted that while there was no requirement that Dr. Siegel provide testimony on the defendant's behalf after the plaintiff no longer intended to use him, neither the plaintiff's attorney nor Dr. Siegel had advised defense counsel that Dr. Siegel would not serve as a witness until after the sixty day deadline had already run.
The fifth district wrote as follows:
[B]arring the expert's testimony under the facts in this case might encourage tactical gamesmanship rather than discourage it. While we express no opinion regarding the motivation of the plaintiff's counsel, we think that a mechanical application of the 60-day deadline under the circumstances presented could encourage parties to cause delays which might force opposing parties into a late disclosure of alternate witnesses, thereby unfairly gaining a tactical advantage. (45)
Rule 213 objection on eve of trial was untimely. In Brdar v Cottrell, Inc, (46) a products liability case resulting in a jury verdict for the plaintiffs, the fifth district rejected the defendant's claim that the trial court erred in denying a motion to strike the plaintiffs' disclosure of their controlled expert witness and allowing her to testify at trial.
The plaintiffs disclosed their expert two days after the court-ordered deadline, but within eight days they moved for leave of court to make their late disclosure. The defendants did not object at the time, and the court granted leave.
On the eve of trial, one of the defendants moved to strike the plaintiffs' disclosure. The court continued the trial, and the moving defendant settled with the plaintiffs. The remaining defendant sought to bar the plaintiff's expert, but the trial court refused.
The fifth district held that the trial court did not abuse its discretion in allowing the plaintiff's expert to testify. The court noted that none of the defendants objected when plaintiffs filed their initial disclosure two days late or when they sought leave to file the disclosure late, one week later. Also, the defendant did not object to the substance of the plaintiffs' disclosure until the eve of trial.
The court stated that "[t]he purpose for disclosures under Rule 213 is to permit opposing parties to depose the disclosed experts and prepare to respond to their anticipated testimony." (47) It found that the defendant had adequate time to object promptly to the plaintiffs' disclosure and seek a fuller disclosure in time to respond to her testimony at trial. At no time did defendant seek a court order to compel a more detailed disclosure. The court concluded that "[t]his is the very type of tactical gamesmanship the discovery rules are meant to discourage." (48)
New opinions must be disclosed even during trial. White v Garlock Sealing Technologies, LLC, (49) a wrongful death action, arose out of the decedent's alleged exposure to asbestos. The defendant disclosed Dr. Smith as one of its controlled experts and stated that he could not determine to a reasonable degree of medical certainty if the decedent had suffered from asbestosis. The plaintiff did not depose Dr. Smith.
Shortly before trial, the defendant reaffirmed Dr. Smith's opinion on this key medical issue. Several days before Dr. Smith was to testify at trial, he changed his opinion and now believed that the decedent did not have asbestosis. Dr. Smith promptly disclosed his new opinion to defense counsel, and they even discussed it the night before his trial testimony.
Defense counsel believed it was too late to disclose Dr. Smith's new opinion on this key issue and told Dr. Smith he could not offer that opinion during his direct examination. Defense counsel indicated, however, that it was beyond the defense's control if this new opinion came out during cross-examination by plaintiff's counsel. In fact, Dr. Smith did testify as to his new opinion during cross-examination by plaintiff's counsel, and the plaintiff moved to strike his testimony on the basis that this new opinion had not been disclosed.
Following a verdict for the defendant, the plaintiff filed a post trial motion seeking a new trial based upon the defendant's violation of Rule 213. The court held several hearings on the plaintiff's motion and even called Dr. Smith to testify as a court witness at one of the hearings to determine when he derived his new opinion and his discussions with defense counsel about this new opinion.
In granting a new trial, the trial court concluded that the defendant had committed an egregious violation of Rule 213(i) by failing to disclose Dr. Smith's new opinion immediately even if the defendant did not intend to use the opinion at trial in its case in chief. As a further sanction, the trial court barred Dr. Smith from giving opinion testimony at the new trial on the issue of the decedent's medical condition and the cause of his death. The defendant appealed.
The fourth district affirmed the trial court's granting of a new trial and the limitations it placed upon Dr. Smith's testimony at a new trial. The court complimented the trial court for having carefully considered all issues before rendering a decision, including its extensive discussions with trial counsel and the unusual step of calling Dr. Smith as a court witness to testify at a post-trial hearing. (50)
The court rejected the defendant's argument that there was no Rule 213(i) violation because plaintiff's counsel, not the defense, elicited Dr. Smith's new opinion during cross-examination. The court stated that plaintiff's counsel had the right to expect that he was not going to hear a different opinion from Dr. Smith during cross-examination than had been disclosed by defendant: "To limit Rule 213's applicability in this way would be inconsistent with the supreme court's intent in promulgating Rule 213 and would encourage the sort of 'tactical gamesmanship' that the rule was intended to prevent." (51)
Barring of experts was an appropriate sanction. In Nedzvekas v Fung, (52) the first district affirmed the trial court's order barring the plaintiff from calling at trial in a medical malpractice action any Rule 213(f)(2) witnesses not previously disclosed and all Rule 213(f)(3) witnesses because the plaintiff failed to comply with three separate court-ordered disclosure deadlines.
The plaintiff failed to offer any excuse to the trial court for her non-compliance, nor did she move for an extension of the deadlines. She finally disclosed a controlled expert witness seven days after the trial court's order barring her experts, but she failed to disclose any details for her expert's general opinions.
The appellate court found the plaintiff's disclosure inadequate because "Rule 213 requires specifics." (53) The court emphasized that "[p]roviding the basis of a controlled-expert's opinion in a 'catchall' provision does not comply with the disclosure requirements of this rule." (54) It wrote that "[b]y violating three separate court orders setting the deadlines for disclosing witnesses, and, then, untimely serving the defendant with an insufficient witness disclosure, the plaintiff demonstrated a deliberate and unwarranted disregard of the court's authority." (55)
Classification of witness significant when determining if testimony is admissible. In Matthews v Avalon Petroleum Co, (56) the first district held that the trial court did not commit error in allowing defendant's operation manager to testify at trial in a premises liability case over the plaintiffs' objection that his testimony violated Rule 213.
The plaintiff tripped over a piece of metal jutting up near a fuel pump at defendant's gas station. The defendant disclosed its operations manager as a lay witness and a controlled expert witness. The manager testified that he took measurements the night before his trial testimony of a gas pump island where the plaintiff had fallen. He then gave those measurements. Next, he gave his opinion that there were no obstructions that would have prevented the plaintiff from walking around the island instead of stepping over it.
The plaintiff immediately objected to the manager's testimony on the basis that the measurements should have been previously disclosed. He moved for a mistrial, arguing that the measurements formed the basis for the manager's opinion. Defense counsel responded that the measurements constituted factual information, not opinions, and thus did not have to be disclosed.
The appellate court noted the distinction in the disclosure requirements under Rule 213(f) for lay witnesses and controlled experts. Because the manager gave an opinion not as an expert but as a lay witness, defendant was under no duty to disclose the basis for his lay opinion under Rule 213(f)(1), which requires only the disclosure of the subject matter. (57) The court concluded that, even if the measurements did constitute the basis of an expert opinion, the trial court did not abuse its discretion in allowing that testimony.
Lessons from the cases
While the 2002 amendments to Rule 213 are an improvement over their predecessors, you can lose your case if you don't take the mandatory disclosure requirements seriously.
Although the least forgiving disclosure requirements pertain to controlled expert witnesses, don't let your guard down just because you are disclosing independent expert witnesses or even lay witnesses.
When in doubt, err on the side of disclosing too many opinions or too much detail. If you're worried that your written disclosures under Rule 213(f) are inadequate and that important testimony might be barred at trial, consider taking your own witnesses' depositions regardless of his or her classification.
Remember to object at trial in a timely manner to preserve a potential Rule 213 violation for appellate review. Preserve the record for appeal by making an offer of proof if the trial court bars testimony from one of your witnesses. Always include your client's answers to Rule 213(f) interrogatories and the transcripts of the discovery depositions of the witnesses whose testimony is in issue in the trial court's record for a possible appeal on a Rule 213 issue.
And don't be careless in your Rule 213 responsibilities on the assumption that the trial court or the appellate court will bail you out. Assume that you're on your own. You probably will be.
(1.) 210 Ill 2d r 213 (eff July 1, 2002).
(2.) 210 Ill 2d r 213(g) (eff Jan 1, 1996).
(3.) 210 Ill 2d r 213(f)(1)-(3) (eff July 1, 2002).
(4.) SCR 213 (eff Jan 1, 2007).
(6.) 343 Ill App 3d 733, 798 NE2d 1233 (5th D 2003) (allowing new opinions to be disclosed for the first time in an evidence deposition).
(7.) SCR 213(g) (eff Jan 1, 2007).
(8.) 201 Ill 2d 260, 775 NE2d 964 (2002).
(9.) Id at 295, 775 NE2d at 985.
(10.) 209 Ill 2d 100, 806 NE2d 645 (2004).
(11.) Id at 109, 806 NE2d at 652.
(15.) 212 Ill 2d 489, 819 NE2d 714 (2004).
(16.) Id at 523, 819 NE2d at 732.
(18.) 346 Ill App 3d 584, 805 NE2d 329 (1st D 2004), aff'd on other grounds, 215 Ill 2d 340, 830 NE2d 508 (2005).
(19.) Id at 602, 805 NE2d at 344.
(20.) 210 Ill 2d r 213(k) (eff July 1, 2002).
(21.) Gwynne P. at 603, 805 NE2d at 345.
(22.) 353 Ill App 3d 444, 818 NE2d 713 (1st D 2004).
(23.) Id at 447, 818 NE2d at 716.
(24.) Id at 452, 818 NE2d at 720.
(25.) Id at 454, 818 NE2d at 722.
(26.) 210 Ill 2d r 213 (eff July 1, 2002); 210 Ill 2d r 213(f) (Committee Comments) (eff July 1, 2002).
(27.) 358 Ill App 3d 358, 832 NE2d 321 (1st D 2005).
(28.) Id at 360, 832 NE2d at 323.
(29.) Id at 361, 832 NE2d at 324.
(30.) Id at 362, 832 NE2d at 324.
(31.) 361 Ill App 3d 39, 836 NE2d 667 (1st D 2005).
(32.) Id at 43, 836 NE2d at 671.
(33.) Id at 44, 836 NE2d at 672.
(34.) Id at 47, 836 NE2d at 674.
(37.) Id at 49, 836 NE2d at 676.
(38.) 363 Ill App 3d 343, 841 NE2d 137 (1st D 2005).
(39.) Id at 355, 841 NE2d at 148.
(40.) 365 Ill App 3d 1029, 851 NE2d 605 (5th D 2006).
(41.) Id at 1032, 851 NE2d at 608.
(43.) Id at 1035, 851 NE2d at 611.
(44.) Id at 1038, 851 NE2d at 613.
(46.) 372 Ill App 3d 690, 867 NE2d 1085 (5th D 2007).
(47.) Id at 701, 867 NE2d at 1096.
(49.) 373 Ill App 3d 309, 869 NE2d 244 (4th D 2007), petition for leave to appeal filed July 18, 2007.
(50.) Id, 869 NE2d at 259.
(51.) Id at 257.
(52.) 2007 WL 1828648 (1st D 2007)
(53.) Id at *3.
(56.) 2007 WL 1880306 (1st D 2007)
(57.) Id at *8.
Most interesting Rule 213 opinion: the author's pick
White v Garlock Sealing Technologies, LLC, 373 Ill App 3d 309, 869 NE2d 244 (4th D 2007), written by Justice Steigmann (see pp 470-71). The court held that a defense lawyer had to disclose his expert's revised opinion even though he did not allow the expert to testify about the new opinion on direct. The new opinion--a 180-degree change--came on the eve of trial, and defense counsel thought it was too late to disclose at that point. He clearly hoped opposing counsel would elicit the changed opinion on cross, and that happened. The court ruled that disclosure was necessary to discourage "gamesmanship." A petition for leave to appeal was filed in this case on July 18.
Daniel P. Wurl is a shareholder in Dobbins Fraker Tennant Joy & Perlstein, PC, in Champaign. He is past chair of the ISBA Civil Practice and Procedure and Insurance Law Section Councils. He serves on the Tort Law Section Council.