More than three years have passed since the amendments to Supreme Court Rule 213 took effect. In the last year appellate courts have interpreted the amendments in several noteworthy cases. These opinions demonstrate that the disclosure requirements of Rule 213 are more demanding than those of Rule 220. Consequently, attorneys who fail to fully disclose witnesses, opinions and bases potentially face sanctions under Rule 219.
I. DISCLOSING WITNESSES & TESTIMONY UNDER 213(f)
Supreme Court Rule 213(f) permits litigants to ask whom their opponents will call to testify at trial. The subpart states:
Upon written interrogatory, a party must furnish the identity and location of witnesses who will testify at trial, together with the subject of their testimony.
Assuming a proper interrogatory has been propounded, the responding party must identify all trial witnesses. This requires the responding party to ascertain and disclose the identity of all witnesses and the subject of their testimony. The former rules allowed a respondent to merely identify occurrence witnesses and others with knowledge of material facts and circumstances. The requesting party then had the burden to learn what witnesses knew, by deposition or informal means such as an interview of a nonparty witness. Thus, Rule 213 has shifted the burden of "discovering" a witness’ testimony to the responding party; however, the requesting party still bears the burden of triggering the respondent’s obligation to provide this information by sending a written interrogatory. Additionally, the requesting party still bears the burden of discovering the knowledge of nontestifying witnesses (fact or occurrence witnesses who are disclosed but not listed as 213(f) trial witnesses).
The responding party has a duty to seasonably supplement all discovery responses.
II. RULE 213 VIOLATIONS: SANCTIONS ARE ALLOWED
The consequences for failing to fully disclose all trial witnesses and their testimony can be severe. Whether to impose a sanction for a violation 213(f) or 213(g), and what sanction to impose, are matters left to the sound discretion of the trial court. Ashpole v. Brunswick Bowling and Billiards Corp., 297 Ill.App.3d 725, 697 N.E.2d 1238 (2d Dist. 1998). The court can impose a number of sanctions, enumerated in Supreme Court Rule 219, including barring a witness from testifying. To determine what sanction to impose the trial court must consider:
1. The surprise to the adverse party;
2. The prejudicial effect of the testimony;
3. The nature of the testimony;
4. The diligence of the adverse party;
5. The timely objection to the testimony; and,
6. The good faith of the party calling the witness. Ashpole at 1239.
The sanction imposed must be reasonable and fashioned to advance the discovery process and encourage a trial on the merits. Besco v. Henslee, Monek & Henslee, 297 Ill.App.3d 778, 701 N.E.2d 1126 (3d Dist.1998), appeal denied, 181 Il.2d 658, 706 N.E.2d 495. The purpose of Rule 219 (authorizing courts to impose sanctions for discovery violations) is not to punish the offending party, and the trial court’s discretion in imposing sanctions is limited by the requirement that the court’s order be just. Id.
III. FAILURE TO DISCLOSE RULE 213(f) WITNESSES
Ashpole: Undisclosed Witnesses Tell No Tales
In Ashpole v. Brunswick Bowling and Billiards the Second District held that the failure to disclose a trial witness and her testimony justified barring that witness on retrial. Mikeal Ashpole was injured after slipping on lane oil at defendant’s bowling alley. Ashpole’s counsel submitted several discovery requests, including 213(f) and (g) interrogatories. Defendant identified Patricia Baughn as an employee who was on duty at the time plaintiff fell, but the defendant did not disclose her as a testifying witness. The defendant submitted two supplemental discovery responses and a pretrial statement, none of which identified Baughn as a trial witness.
The trial court granted plaintiff’s motion in limine to bar all undisclosed witnesses from testifying. After the second day of trial defendant’s counsel disclosed that Patricia Baughn would be called to testify. The court allowed Baughn’s testimony over plaintiff’s objection. The court denied plaintiffs’ motion to strike Baughn’s testimony.
The appellate court reversed the jury verdict in favor of defendants because defendant violated Rule 213 by failing to disclose Baughn as a trial witness. Plaintiffs claimed surprise and prejudice resulting from Baughn’s testimony. The defendants argued that plaintiffs were not surprised because Baughn was identified as an employee on duty on the day of the occurrence, and she had helped plaintiff with a scoring computer prior to his accident.
The appellate court concluded that defendants violated Rule 213. The court applied the six factors and determined that the plaintiffs were surprised and prejudiced by the violation. Accordingly, the court remanded the case for retrial, and "as a sanction for defendants’ discovery violations, Baughn will be precluded from testifying on remand."
Ashpole highlights the shifted burdens with respect to testifying witnesses. The court concluded that plaintiffs were diligent in pursuing discovery although they did not depose every individual listed in defendants’ discovery responses. If an individual is not listed as a trial witness, the requesting party has a right to rely on the responding party’s failure to disclose the witness for a determination that the responding party will not call the witness.
IV. DISCLOSING OPINIONS & BASES UNDER RULE 213(g)
Opinion witnesses are those "who will offer any opinion testimony." Even lay witnesses who will offer opinions on matters such as speed or intoxication must be disclosed according to Rule 213(g). In this way, Rule 213(g) demands broader and more specific disclosure than its predecessor, Rule 220.
Crull: More Exacting Standards, a Method to the Madness
In Department of Transportation v. Crull, 294 Ill.App.3d 531, 690 N.E.2d 143 (4th Dist. 1998), a condemnation case, the Fourth District reversed the trial court’s decision to allow an opinion witness to testify beyond the Rule 213(g) disclosure and the witness’ deposition testimony. The trial court recognized that the witness’ opinions with respect to a valuation method had not been disclosed. Nevertheless, the court allowed the testimony in the "interests of justice."
The appellate court reversed, emphasizing that "the Supreme Court Rules on discovery are also mandatory rules of procedure that courts and counsel must follow."
Calling the situation precisely what "the rule was intended to address," the court found that no extenuating circumstances existed to justify suspending the strict disclosure requirements of Rule 213(g). The court also rejected the trial court’s implication that the party objecting to the admission of the undisclosed opinions had sandbagged by failing to bring a motion to bar the witness because his opinions regarding valuation were not legally sound or acceptable. The court’s rejection of this implication was premised not on rules of discovery, but instead on an unwillingness to require attorneys to advise their opponents of deficiencies in their cases.
In Crull, the court observed that Rule 213 demands more exacting standards of compliance than did Rule 220. Therefore, the court admonished trial courts to "be more reluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties to deviate from the strict disclosure requirements, or (2) not to impose severe sanctions when such deviations occur." Despite that urging, the Fourth District reversed and remanded for a new trial rather than remand with directions to enter judgment. The court’s rationale for this leniency was that the case was "one of the first to construe new Rule 213 and point out this higher standard of compliance."
With Crull and subsequent opinions interpreting Rule 213, litigants should not expect such leniency. As severe sanctions may be imposed, violations of Rule 213 are committed at one’s peril.
Linn: Disclose the Examiners
In Linn v. Damilano, ___ Ill.App.3d ___, ___N.E.2d___ (4th Dist. 1999), (1999 WL 130241), the court held that independent medical examiners are opinion witnesses who must be disclosed under Rule 213(g). Moreover, like other 213(g) witnesses, all IME opinions and their bases must be disclosed. The committee comments to Rule 215 state in part:
Examining professionals under the rule fall within the classification of opinion witnesses under Supreme Court Rule 213(g) as opposed to consultants under Supreme Court Rule 201(b)(3). Consequently, the rule has been amended to require that the examination be scheduled in order that the report contemplated by subsection (c) is provided in accordance with the deadlines imposed by Supreme Court Rule 218(c). In addition, the failure to provide the attorney for the party who was examined with a copy of the examiner’s report within the 21-day period . . . will result in exclusion of the examiner’s testimony, opinions, and the results of any tests or X[ ]rays that were performed." Id., citing, 166 Ill.2d R.215, Committee Comments.
Besco: Barring Witnesses Is Sometimes Too Severe
Besco involved a claim for legal malpractice. Plaintiffs’ counsel identified opinion witnesses after the disclosure deadline. Although no trial date had been set, the court barred plaintiffs from naming opinion witnesses, a sanction fatal to plaintiffs’ legal malpractice claim because expert testimony is necessary to establish the applicable standard of care and damages. See Barth v. Reagan, 139 Ill.2d. 399, 564 N.E.2d 1196 (Ill. 1990). Defendant’s motion for summary judgment soon followed and was granted.
The appellate court reversed, finding the sanction unduly severe. The court reasoned that the trial court could have fashioned a sanction which would have (1) acknowledged the discovery violation; (2) balanced the interests of the parties; and, (3) promoted the goal of accomplishing discovery without punishing plaintiffs for their attorneys’ failure to comply with discovery. Moreover, the court stated that a sanction that results in summary disposal of a claim should be used as a last resort only where other enforcement powers have failed to advance the litigation. A trial court should generally avoid barring an expert from testifying if to do so would deny a party a trial on the merits, particularly when no trial date has been set.
V. RULE 213- A HIGHER STANDARD OF COMPLIANCE
Fritzsche: Be Specific or Be Barred
Supreme Court Rule 213 has "more exacting standards regarding disclosure" of witnesses and opinions than former Rule 220 (Adami). These standards are evident in Fritzsche v. Union Pacific Railroad, ___ Ill.App.3d ___, 707 N.E.2d 721 (5th Dist. 1999), where the appellate court affirmed the trial court’s decision to bar a defense witness from offering opinions regarding intoxication. The defendant submitted a "disclosure of opinion witness" identifying an individual who was "…expected to testify regarding the toxicological effect of alcohol on (decedent’s) operation of a motor vehicle[,] and he (was) also expected to testify that in his opinion (decedent) was intoxicated at the time of the accident."
The court held that this disclosure was insufficient under Rule 213(g). It said:
This blanket statement merely informs that the expert will testify regarding this particular subject matter. However, it is impossible to determine what opinions are to be rendered and the factual basis of the expert’s opinion. The ‘answer’ is devoid of substance."
Given the inadequate disclosure, the trial court did not abuse its discretion in barring the witness from testifying concerning the effects of alcohol on the decedent’s driving.
Parker: Undisclosed Opinions are Improper
Admitting undisclosed opinion testimony can be reversible error. In Parker v. Illinois Masonic Warren Barr Pavilion, 299 Ill.App.3d 495, 701 N.E.2d 190 (1st Dist.1998), the trial court allowed plaintiff’s opinion witness to offer undisclosed medical opinions in violation of the court’s in limine order barring them. Specifically, plaintiff’s witness testified to medical opinions regarding deviations from the standard of rehabilitation care. Defendant objected, arguing that the opinions were undisclosed and improper because the case was premised on negligence and not on medical malpractice.
The appellate court held that the trial court erred in admitting the undisclosed opinions. In addition, the improperly admitted testimony prejudiced the defendant, warranting reversal and a new trial. Where no prejudice exists, reversal is not warranted. See, also, McGrew v. Pearlman, ___Ill.App.3d___, ___N.E.2d___(1st Dist. 1999), (1999 WL 176955).
VI. WHAT IS AN OPINION?
The cases interpreting Rule 213 haven’t squarely addressed this question. Older cases, however, have considered and answered the question. It is advisable to review those cases to determine whether a witness is offering facts or opinions in order to eliminate uncertainty and ensure proper and thorough disclosure.
The limited case law on Rule 213 suggests that one should err to the side of disclosure to prevent a sanction barring the witness or portions of his testimony. In particular, much (if not all) of a retained opinion witness’ testimony, including foundation testimony, can be considered opinion testimony which should be thoroughly disclosed.
Iser: Better to Cover All Bases
In Iser v. Copley Memorial Hospital, 288 Ill.App.3d 408, 680 N.E.2d 747 (3d Dist. 1997), appeal denied, 174 Ill.2d 563, 686 N.E.2d 1162, the Third District held that the trial court properly barred a retained physician’s testimony regarding the authoritative nature of a medical article because the testimony constituted an opinion that was not timely disclosed. The physician’s opinions regarding the authoritative nature of the article were not disclosed in written responses to discovery, nor did the physician offer any such opinions during his discovery deposition. To the contrary, the physician testified in deposition that he had not reviewed any articles concerning the subject matter of his testimony.
Citing the committee comments to Rule 213(g), the court stated that
"the definition of an opinion witness is now a person who will offer "any" opinion testimony. It is the Committee’s belief that in order to avoid surprise, the subject matter of all opinions must be disclosed pursuant to this rule and Supreme Court Rule 218, and that no new or additional opinions will be allowed unless the interests of justice require otherwise."
Because plaintiff presented other medical testimony that conflicted with testimony presented by defendants, the interests of justice did not require the undisclosed opinions to be admitted. Therefore, the trial court did not abuse its discretion in restricting the opinion testimony of plaintiff’s retained witness.
Rule 213(g) witnesses and all of their opinions must be disclosed in a timely manner to comply with Rules 213 and 218. This means early and thorough disclosure.
Counsel must be vigilant in pursuing all of the opinions of his witnesses, including all bases of the witness’ opinions. Moreover, rebuttal opinions should be promptly ascertained and disclosed.
Disclosing a witness two weeks before trial can be an untimely disclosure even when all sides are aware of the witness and his opinions. An untimely disclosure can result in an order barring the witness from testifying, as occurred in Adami v. Belmonte.
VII. CALLING ANOTHER PARTY’S 213(G) WITNESS
Adami: He Who Hesitates Causes Surprise & Prejudice
In Adami v. Belmonte, 302 Ill.App.3d 17, 704 NE2d (1st Dist. 1998), Adami brought a medical malpractice action against a physician, a medical association, and Gottlieb Memorial Hospital (Gottlieb). Plaintiff alleged that Dr. Belmonte and his assistant, Dr. Lara, perforated plaintiff’s small intestine while performing surgery to remove her gallbladder. Plaintiff offered testimony from Dr. Goldstone who opined that Drs. Belmonte and Lara deviated from the standard of care.
Belmonte offered testimony from Dr. Altimari who opined that neither Belmonte nor Lara deviated from the standard of care.
During discovery, and nearly 8 months before trial, Gottlieb disclosed Dr. Deziel as its expert. In his evidence deposition on March 7, 1997 (roughly two months before trial), Dr. Deziel opined that Dr. Lara did not deviate from the standard of care in treating plaintiff. However, Dr. Deziel testified that Dr. Belmonte traumatized plaintiff’s small intestines multiple times.
On April 16, 1997, plaintiff’s counsel notified defendants that plaintiff might call Dr. Deziel as an opinion witness. On April 28, 1997, plaintiff’s counsel served a trial subpoena on Dr. Deziel.
Gottlieb objected and moved to quash the subpoena, arguing that plaintiff did not timely disclose Dr. Deziel. Belmonte filed a motion to bar Dr. Deziel from testifying in plaintiff’s case in chief. The trial court determined that Dr. Deziel was an opinion witness who was not properly disclosed by plaintiff. The court quashed the subpoena.
The appellate court affirmed the jury verdict in defendants’ favor, holding that the plaintiff’s failure to disclose Dr. Deziel "violated Supreme Court Rules 213 and 218, which are mandatory rules of procedure." Plaintiff argued that defendant Belmonte was not surprised or prejudiced by the late disclosure of Dr. Deziel because Belmonte knew of Deziel and his opinions as early as September 1996. The court found prejudice because Dr. Belmonte relied upon the plaintiff’s failure to identify Dr. Deziel as a witness in deciding not to retain a rebuttal witness. This late disclosure precluded any reasonable chance for Dr. Belmonte to find an expert to refute Dr. Deziel’s testimony. Accordingly, the trial court did not abuse its discretion in barring plaintiff from calling Dr. Deziel.
Sobczak: Or Maybe He Doesn’t
In Sobczak v. Flaska, ___Ill.App.3d___, ___N.E.2d___(1st Dist. 1998) (1999 WL 130241), the First District reached the opposite conclusion. The trial court allowed plaintiff to call an opinion witness who had been disclosed by a dismissed defendant. Plaintiff failed to disclose the witness (who testified on the applicability of OSHA provisions) to counsel for the remaining defendant. Nevertheless, counsel for the remaining defendant expected plaintiff to call the witness because the witness’ opinions were favorable to plaintiff.
The appellate court affirmed, noting that "each case presents a unique factual situation which is to be considered in determining whether a sanction is to be imposed." There was no prejudice from the admission of the testimony because the jury was exposed to OSHA in the Illinois Pattern Jury Instructions. Moreover, plaintiff had identified another OSHA witness in discovery; however, because of scheduling conflicts, that witness was not available and did not testify at trial.
VIII. THE RELIANCE FACTOR
Dicta in Adami and Ashpole suggest that litigants may rely on a party’s failure to disclose a witness or opinion for a determination that the party won’t call the undisclosed witness or offer the undisclosed opinion at trial. The Ashpole court said "plaintiffs were entitled to rely on defendants’ answers to their interrogatories," which failed to identify Patricia Baughn as a trial witness. The Adami court recognized that the defendant "relied on plaintiff’s failure to disclose" another party’s witness and opinions for that defendant’s decision not to call a rebuttal witness. Thus, it appears that reliance, to the prejudice of one’s interests, is a touchstone for imposing the sanction of barring a witness from testifying. Perhaps it is advisable to promptly disclose as one’s own, any favorable witnesses, their testimony and opinions.
IX. WHAT IS SURPRISE?
Renshaw: Anything You Say Can and Will Be Used Against You
Prompt disclosure of witnesses and opinions can obviate claims of surprise and prejudice. Similarly, there is no surprise in using admissions of an attorney-defendant. In Renshaw v. Black, 299 Ill.App.3d 412, 701 N.E.2d 553 (5th Dist. 1998), a legal malpractice action, plaintiffs did not name experts, believing that the defendant’s pleading and discovery admissions were sufficient to establish liability as a matter of law. The trial court granted the defendant’s motion to bar opinion witnesses from testifying on behalf of plaintiffs. Defendant’s motion for summary judgment soon followed.
Plaintiffs responded to the motion by arguing that the defendant’s admissions and deposition testimony sufficed to prove proximate cause and damages. The court granted defendant’s motion and denied plaintiffs’ cross motion for summary judgment.
The appellate court reversed, stating that Rule 213 is intended to prevent surprise and late disclosure; it was not designed to preclude the use of a professional malpractice defendant’s admissions. Where the defendant is a professional whom plaintiffs intend to call, identity and qualifications are not at issue. The court stated that the defendant could not reasonably claim surprise as a result of plaintiffs’ attempts to use her admissions, even in the absence of a disclosure. Essentially, the defendant in Renshaw, unlike the defendant in Adami and plaintiff in Ashpole, did not have a right to rely on the plaintiffs’ failure to disclose opinion witnesses.
McMath: Surprise Can Be a Weapon But Not a Shield
The Fourth District issued what may be the most interesting opinion to date on Rule 213. In McMath v. Katholi, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 1999) (1999 WL 219144), the court held that a defendant doctor’s undisclosed opinions regarding the cause of death were improperly admitted. The majority reasoned that the trial court’s Rule 218 case management order required the defendant to disclose himself as an opinion witness, even in the absence of a 213(g) interrogatory.
During his deposition, which was conducted while Rule 220 was still in effect, the defendant, Dr. Kartholi, offered several possible causes for the decedent’s death. However, he failed to opine which was the more likely cause of death. At trial, Dr. Kartholi testified to a specific cause of death that he believed was the more likely cause.
On appeal, plaintiff argued that the trial court abused its discretion by allowing Kartholi to offer opinions even though he did not disclose himself as an opinion witness. The defendant claimed that Rule 213 did not require him to disclose his opinions because he was a party and plaintiff learned his opinions during his discovery deposition.
The Fourth District agreed with the plaintiff, holding that the trial court abused its discretion by allowing an undisclosed opinion as to the decedent’s cause of death. The majority distinguished Renshaw v. Black, explaining that Renshaw’s holding is limited to circumstances "where a party is confronted with his own previously expressed opinion which the other side is offering as an admission by a party opponent." Katholi did not offer an admission by a party opponent. Instead, he testified to a self-serving opinion that he did not disclose in written discovery or his discovery deposition.
McMath is a must read for litigators. Justice Cook’s dissent argues that Rule 213 does not by its terms change the "party exception" of Rule 220, which the trial court applied in allowing Katholi’s opinions. Cook explained that "it is not clear that Rule 213(g) expresses a desire to treat a party the same as any other opinion witness. Rule 213(g) does not say that an opinion witness is ‘any’ person who will offer opinion testimony." Rather, "the supreme court simply deleted Rule 220, with the option to make future adjustments as the law develops." Cook recognizes a conflict between the majority’s strict view of Rule 213 and the discretion to control discovery afforded to the trial court by Rule 218.
Cook also criticized what he views as an inconsistent application of Rule 213. He noted that the plaintiff did not submit Rule 213 interrogatories to the defendant. Instead, the defendant’s duty to disclose was triggered by the court’s 218 order. Therefore, the disclosure-triggering mechanism provided by the terms of Rule 213 ("Upon written interrogatory, the party must state...") was rendered unnecessary.
The majority opinion, written by Justice Steigmann, is as notable for its dicta as its holding. The court addressed Rule 213(i) and the burden on a proponent of an opinion to prove that the offered opinions were in fact stated in the witness’ deposition. Merely covering the "subject matter" of an opinion in a deposition, without an explicit statement of the opinion, is insufficient to constitute a proper 213(i) disclosure. To determine whether the opinion was stated in the deposition depends not on what questions were posed, but instead on what answers were given.
In the wake of the new discovery rules, appellate courts have emphasized that "discovery is not a game," and that the discovery rules are "mandatory rules of procedure that courts and counsel must follow."
Attorneys should heed these admonitions and take no chances with discovery disclosure. Inadequate disclosure can lead to a witness being barred or to a severe restriction on the witness’ testimony. Because courts are strictly interpreting the new discovery rules, counsel must provide comprehensive responses to written discovery.
These appellate decisions leave no doubt that discovery is a process, not an event. By hesitating to disclose a witness or supplement a discovery response, an attorney runs the risk of lulling the other side into relying on the nondisclosure. An untimely disclosure invites claims of surprise and prejudice, and will ultimately result in a sanction.
One should expect that every diligent opponent will move in limine to bar all undisclosed witnesses and undisclosed opinions. Expect also that trial courts will grant these motions and adhere to the mandatory rules of procedure requiring broader and more specific disclosure.
Author’s Note: After this article was completed and submitted for publication, the Second District released its opinion in Warrender v. Millsop. The court reversed and remanded for a new trial on damages because the trial court abused its discretion by admitting untimely disclosed medical opinion testimony and surveillance videotape evidence offered by the defendant. The late disclosures violated Rule 213(f) and (g), to plaintiff’s prejudice. Note that the court stated that the defendant’s attorney, as opposed to the defendent herself, violated Rule 213 by failing to timely disclose. Other opinions refer to violations by plaintiffs or defendants, rather than by attorneys. The lesson: Rule 213 violations can lead to malpractice actions.
Thomas M. Dillon is an Associate at Connelly & Schroeder, Geneva. His practice is limited to Tort, Commercial and Professional Liability Litigation. He received his Undergraduate Degree in 1986 and his Law Degree in 1991 from Northern Illinois University. He may be reached at firstname.lastname@example.org.