Every litigator has had to consult the Illinois Supreme Court Rules for guidance in identifying and disclosing the opinions of his or her expert witness before trial. Now is the time for all litigators, including experienced ones, to revisit the rules controlling discovery disclosures. A significant change came approximately six years ago, when Rule 2131 replaced Rule 220.2 Rule 213 eliminated the distinction between disclosing expert and non-expert opinions.3 The courts have since struggled with the application of this rule, which requires strict compliance.4 In response, effective July 1, 2002, Rule 213 has been revised. Once again, the manner in which the practitioner must disclose his or her opinion witnesses has changed. This article explores the new disclosure requirements under Rule 213 (f) and (g).
The scope of a party’s disclosure depends on the classification of the witness. Under the revised rule, witnesses are classified as follows:
(1) Lay Witnesses. A "lay witness" is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.
(2) Independent Expert Witnesses. An "independent expert witness" is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.
(3) Controlled Expert Witnesses. A "controlled expert witness" is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.
The Committee Comments to this 2002 Amendment5 state that the purpose is to prevent unfair surprise at trial without creating an undue burden on the parties before trial.
Because these changes are so new, there is no case law interpreting the classifications. The practitioner must look to the Committee Comments for examples of what is meant by each category. "Lay witnesses" include persons such as an eyewitness to a car accident. For witnesses in this category, the party must identify the "subjects" of testimony, rather than offer a summary. An answer must describe the subjects sufficiently to give "reasonable notice" of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics. For a lay witness, the Comments indicate that a proper answer might state that the witness will testify about: "(1) the path of travel and speed of the vehicles before impact, (2) a description of the impact, and (3) the lighting and weather conditions at the time of the accident." The answer would not be proper if it said only that the witness will testify about "the accident."
Requiring disclosure of only the subjects of lay witness testimony represents a change in the former rule, which required detailed disclosures regarding the subject matter, conclusions, opinions, bases, and qualifications of any witness giving any opinion testimony, including lay opinion testimony. The Comments reveal an intent to eliminate the burden of applying this detailed disclosure requirement to lay witnesses which, according to the Committee, had no corresponding benefit to the opposing party.
With respect to "independent expert witnesses," the Comments state that the category includes persons such as a police officer who gives expert testimony based on the officer’s investigation of a car accident, or a doctor who gives expert testimony based on the doctor’s treatment of the plaintiff’s injuries. For witnesses in this category, the party must identify the "subjects" or topics on which the witness will testify and the "opinions" the party expects to elicit. It further states that the limitations on the party’s knowledge of the facts known by and opinions held by the witness often will be important in applying the "reasonable notice" standard.
The Comments provide the example of a treating doctor who might refuse to speak with the plaintiff’s attorney and, in addition, cannot be contacted by the defendant’s attorney, so that the opinions set forth in the medical records about diagnosis, prognosis, and cause of injury might be all that the two attorneys know about the doctor’s opinions. In those circumstances, the party intending to call the doctor need set forth only a brief statement of the opinions it expects to elicit. On the other hand, a party might know that a treating doctor will testify about another doctor’s compliance with the standard of care, or that a police officer will testify to an opinion based on work done outside the scope of the officer’s initial investigation. In these examples, the opinions go beyond those that would be reasonably expected based on the witness’ apparent involvement in the case. To prevent unfair surprise in circumstances like these, an answer must set forth a more detailed statement of the opinions the party expects to elicit.
The Comments explain that requiring disclosure of only the "subjects" of testimony and the "opinions" the party expects to elicit represents a change in the former rule, which required detailed disclosures about the subject matter, conclusions, opinions, bases, and qualifications of all witnesses giving opinion testimony, including expert witnesses over whom the party has no control. The Comments reveal that it was perceived that the detailed disclosure requirement was too demanding for independent expert witnesses.
According to the Committee Comments, the third category of witnesses, the so-called "controlled expert witnesses," include persons such as retained experts. The party can count on full cooperation from the witnesses in this category, so the amended rule requires the party to provide all of the details required by the former rule. In particular, the requirement that the party identify the "subject matter" of the testimony means that the party must set forth the gist of the testimony on each topic the witness will address, as opposed to setting forth the topics alone.
For any of the categories, the Comments provide that a party may meet its disclosure obligation in part by incorporating prior statements or reports of the witness. The answer to the Rule 213(f) interrogatories served on behalf of a party may be sworn to by the party or the party’s attorney.
While the purpose of the amendment is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial, attorneys will encounter a new and different burden. Attorneys will have to determine the proper category for each witness. It has been suggested that the attorneys present a pretrial motion requesting the court to designate all witnesses so that the problem will be avoided at trial.6 It remains to be seen whether the bench will be open to this procedure.
B. More Freedom in Cross Examination of Experts
Under former Rule 213, the disclosure requirements applied to cross-examination. A party could not elicit opinions under cross- examination that had not otherwise been disclosed. As a result, counsel would conduct lengthy depositions where each side sought to elicit every possible opinion under each theory. Under the new Rule 213 (g), without making disclosure, a cross-examining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.
Revised Rule 213 (g) allows the parties a full and complete cross-examination of any witness and allows them to elicit additional undisclosed opinions in the course of cross examination.7 This freedom to cross-examine is restricted. For example, the new rule prevents a party from eliciting previously undisclosed contributory negligence opinions from a co-party’s expert. The exception to disclosure is limited to the cross-examining party. It does not excuse the party calling the witness from the duty to disclose.
Similarly, under old Rule 213, a party had to disclose that it was adopting another party’s expert as its own or be barred from presenting the testimony. As a practical matter, this situation often arose when a co-defendant was dismissed before trial after making his expert disclosure. In that case, another party could not rely on the dismissed defendant’s witness if that party had not disclosed the witness as part of his case. The duty to disclose under this situation will likely remain under the new rule. Additionally, although not expressly stated in the rule, litigants have a duty to disclose the testimony of their experts even when that testimony responds to the theories of opposing experts.8 In all likelihood, the new rule does not change this duty. Moreover, under former rule 213, the proponent of the testimony was required to prove that the opinion was provided in interrogatory answers or discovery deposition testimony.9 The same would appear to be true under the revised rule.
Recently, in Regala v. Rush North Shore Medical Center,10 the court held, under former Rule 213, that the proponent of the witness bore the obligation to ensure that the expert did not exceed previously disclosed opinions regardless of whether the testimony comes out on direct, cross, or redirect examination. In that case, a doctor testified on redirect examination that plaintiff’s neurological damage would have occurred even if the defendant had delivered the plaintiff sooner. His testimony contradicted plaintiffs’ theory that defendants caused injuries by delaying the delivery. The doctor’s testimony was a new opinion not previously disclosed pursuant to Rule 213(g). Defendants argued that plaintiffs opened the door during cross-examination of the doctor for the testimony elicited on redirect examination. His testimony on cross-examination was consistent with his disclosed Rule 213 opinion that the neurological damage was caused by the placental abruption. By contrast, on redirect examination he went beyond the scope of cross-examination by testifying to new opinions not previously disclosed under Rule 213.
In Regala, the appellate court held that the effect of the erroneous admission of the doctor’s undisclosed opinions mandated reversal and remand to the trial court for a new trial. The court reasoned that as the proponent of the witness, the defendant bore the obligation to ensure that the doctor did not exceed previously disclosed opinions. The court went on to say that experts must be made aware by their attorney of the importance that their opinions at trial are consistent with their pretrial disclosures.
C. Gray Areas Remain
The revisions do not address the difficulty practitioners encounter in determining whether testimony represents an observation or an opinion.11 A mere observation need not be disclosed while an opinion must be disclosed. The solution under both versions of the rule is to disclose. However, unanticipated responses at trial are inevitable. One recent case, Rub v. Consolidated Rail Corporation,12 highlights the difficulty in differentiating between an observation and an opinion. In that case, the plaintiff claimed that the court erred by prohibiting the testimony of police officers, who would have testified that an advance warning sign was no longer "shiny" in terms of its reflectivity. Plaintiff’s counsel asked the officer if he could describe the "shininess" of the advance warning sign. Defense counsel objected on the basis that the question called for an opinion by the witness. The trial court deemed the testimony an undisclosed opinion sustaining the objection. Defense counsel further argued that the witness’ opinion was not competent because he was not an expert in optics, metallurgy, or any field which would determine how shiny a sign is. The position of plaintiff’s counsel was that the testimony was not an opinion, but was merely an observation. Although the trial court did not allow this particular testimony, it did allow a photograph of the sign into evidence which was taken on the night of the accident. The reviewing court affirmed, concluding that the kind of testimony plaintiff was attempting to elicit was not simply an observation, and the opinion concerning the reflectivity of the sign should have been disclosed under Rule 213.
Another recent case illustrates this difficulty. In Petre v. Kucich,13 the defendants’ expert doctor did not disclose either the data or the protocols underlying a study he relied upon in his discovery deposition. All that was provided to plaintiffs during discovery was the doctor’s conclusions as a result of the study. Defendants did not dispute their failure to disclose to plaintiffs the data and protocols underlying the study; rather, defendants argued that calling it a study or calling it personal experience is the same thing. Defendants claim that the study represented the doctor’s firsthand tabulation as an epidemiologist. The court disagreed, finding no evidence that any of the patients in the study were the doctor’s own. The court considered that the fact that the doctor performed the statistical analyses upon which the study was based did not bring the medical care of the patients who were the subjects of the study within the realm of his personal experience. The court had to determine the extent of the expert’s personal experience.
Another common difficulty is failing to disclose not just opinions but all reasons relied upon in reaching the opinion. Expert testimony may be barred where there is inadequate disclosure of all opinions and the bases therefore.14 One court strongly urged practitioners that, if an opinion is important to the theory of one’s case, it is essential that it and the bases therefore be disclosed.15
Although elaborating on the bases for a disclosed opinion does not automatically violate Rule 213, the testimony at issue must be encompassed by the original disclosure. The testimony cannot state new reasons for the opinion.16 However, a logical corollary to an opinion or a mere elaboration of the original statement is acceptable.17
The revised discovery disclosure rule is supposed to remedy the problems encountered under the former rules. However, new problems will likely arise in arriving at the proper classification of witnesses and their corresponding disclosure requirements. Some of the difficulties encountered under the former rule have not been eliminated. One thing is clear, a litigator cannot go wrong with full disclosure and with timely supple-mentation of that disclosure.
1 Ill. S. Ct. R. 213.
2 Ill. S. Ct. R. 220.
3 Ill. S. Ct. R. 213 (f) & (g).
4 DOT v. Crull, 294 Ill. App. 3d 531, 539, 690 N.E.2d 143, 148 (4th Dist. 1998). The Crull court held that the Rule establishes a more exacting standard regarding disclosure than former Rule 220, and that trial courts should be more reluctant under this Rule than they were under former Rule 220 to (1) permit parties to deviate from the strict disclosure requirements or (2) not to impose severe sanctions when such deviations occur. 5 Ill. S. Ct. R. 213 Committee Comments (f) to 2002 Amendment.
6 Robert A. Clifford, Rule 213: Disclose, disclose, disclose, Chicago Lawyer (July 2002).
7 Ill. S. Ct. R. 213 Committee Comments (g) to 2002 Amendment.
8 Boland v. Kawasaki Motors Mfg. Corp., USA, 309 Ill. App. 3d 645, 652-53, 722 N.E.2d 1234, 1241 (4th Dist. 2000).
9 Boehm v. Ramey, 329 Ill.App.3d 357, 365, N.E.2d (4th Dist. 2002).
10 Regala v. Rush North Shore Med. Ctr., 323 Ill.App.3d 579, 584-85, 752 N.E.2d 443, 447-48 (1st Dist. 2001).
11 See Iser v. Copley Mem. Hosp., 288 Ill.App.3d 408, 411, 680 N.E.2d 747, 750-51 (3rd Dist. 1997), where an expert’s foundational testimony as to the authoritative nature of a medical article is an opinion as the term is used in subsection (g).
12 Rub v. Consolidated Rail Corp., 2002 WL 1059099 (Ill.App. 1st Dist. 2002).
13 Petre v. Kucich, 2002 WL 1275101 (Ill.App. 1st Dist. 2002).
14 Firstar Bank of Illinois v. Peirce, 306 Ill.App.3d 525, 536, 714 N.E.2d 116, 122-23 (1st Dist.1999).
15 Seef v. Ingalls Mem. Hosp., 311 Ill. App. 3d 7, 24, 724 N.E.2d 115,128 (1st Dist. 1999).
16 Barton v. Chicago and North Western Transp. Co., 325 Ill.App.3d 1005, 1039, 757 N.E.2d 533, 561 (1st Dist. 1999).
17 Becht v. Palac, 317 Ill. App. 3d 1026, 1036, 740 N.E.2d 1131, 1141 (1st Dist. 2000).
Laurie A. Silvestri is in solo practice concentrating in commercial litigation. She is also an adjunct instructor of legal drafting at Chicago-Kent College of Law. She graduated from the University of Chicago with a B.A. and from Chicago-Kent College of Law with a J.D. Formerly, she was a staff attorney for the Illinois Appellate Court for the Second District.