Reprinted with permission from the Illinois Bar Association.
The Dos and Don'ts of
Rule 213 Opinion Witness Discovery
Consider these guidelines before you conduct opinion witness discovery in Illinois.
It has been five years since the Illinois Supreme Court eliminated former Rule 220 governing expert witness discovery and replaced it with amendments to Rule 213 in the form of subsections (f), (g) and (i) relating to opinion witness discovery. Unfortunately, the transition from Rule 220 to Rule 213 has not produced the clarification that was expected on this important issue of timely and complete opinion witness disclosure before trial.
By this author's count, more than 25 appellate court decisions deal with Rule 213 opinion witness issues, with new decisions being handed down regularly. Twenty were in personal injury actions, and of those, approximately half involved medical malpractice claims. Each of the five appellate courts has issued at least one decision addressing the scope of Rule 213. The first and fourth districts together have issued approximately three-fourths of the total number of Rule 213 decisions. The supreme court passed on its only opportunity to address the substantive issues of Rule 213 in McMath v Katholi,1 holding that the plaintiff had waived her Rule 213 objection by improperly representing to the trial court that Rule 220 still controlled.
With few exceptions, the appellate courts have been strict in their interpretation and enforcement of Rule 213 opinion witness discovery and disclosure requirements. A review of the appellate court decisions reveals that the attorneys often could have avoided the problems that arose at trial had they taken some simple precautions in making their initial disclosure, supplementing their disclosure, or conducting their direct examination of opinion witnesses.
This article offers the busy practitioner a list of basic guidelines for dealing with opinion witness discovery. This list, derived primarily from appellate court decisions, is not intended to be exhaustive, and of course, it is subject to future interpretations of Rule 213 by the appellate courts.
II. Guidelines for Opinion Witness Discovery
A. Serve Rule 213(f) and (g) Interrogatories in Every Case
The disclosure of trial witnesses, opinion witnesses, and their opinions is not self-executing under Rule 213(f) and (g). The duty to disclose arises under these subsections only "[u]pon written interrogatory."
Even in the absence of Rule 213(f) or (g) interrogatories, a party might still have a duty to disclose its trial and opinion witnesses and their opinions pursuant to a Supreme Court Rule 218(c) case management order. While some case management orders might require disclosure as if Rule 213(f) and (g) interrogatories had been served, others might require a lesser disclosure, which could lead to problems later.2
Take no chances – serve these interrogatories in the early stages of discovery and place the burden on the other party to disclose its trial and opinion witnesses and any opinions they are expected to render. Doing so will also ensure that the other party's duty to seasonably supplement its disclosures commences under Rule 213(i).
B. Provide Detailed Answers to Any Rule 213(f) or (g) Interrogatories
The developing case law under Rule 213 indicates that you should take time to provide detailed responses to Rule 213(f) and (g) interrogatories in a timely manner. Otherwise, you might have to explain to your client why the court is allowing the testimony and opinions of the other party's witnesses into evidence while barring that of your client or witnesses.
The second district's decision in Ashpole v Brunswick Bowling and Billiards Corp.3 demonstrates the harsh consequences of a party's failure to disclose a possible trial witness in response to a Rule 213(f) interrogatory. The defendants failed to disclose a key occurrence witness in their response to the plaintiffs' interrogatories requesting the identity of possible witnesses, in their supplemental interrogatory answers, and in their pretrial statement.
The trial court allowed the witness to testify at trial over the plaintiffs' objection. The jury returned a defense verdict. The second district found that this witness' testimony completely surprised the plaintiffs and prejudiced their case. The appellate court ordered a new trial and barred the witness from testifying as a sanction against defendants.
C. Disclose Your Opinion Witnesses Before a Court-Imposed Deadline or Risk Summary Judgment
In actions based on medical and legal malpractice, plaintiffs generally must have expert testimony to prove their claims. A plaintiff's failure to identify an opinion witness under Rule 213(g) can be fatal to the claim. The best advice is never to ignore a court-imposed deadline to disclose opinion witnesses when they are essential to proving your client's claim or defense.
In Higgens v House,4 the plaintiffs failed to answer both Rule 220 and Rule 213(g) interrogatories and failed to disclose an expert by the court-imposed deadline in this medical malpractice action. The defendant moved for summary judgment. To make matters worse, the plaintiffs' counsel did not file a response to the motion or appear at the hearing. The trial court granted summary judgment.
Acknowledging that another trial judge might have proceeded in a different fashion, the fourth district held that the trial court did not abuse its discretion in refusing to set aside the summary judgment where the plaintiffs failed to respond to the motion for summary judgment and offered no reasonable explanation for their failure to identify an expert witness in a timely manner.
The plaintiffs in Renshaw v Black5 failed to identify any opinion witnesses before the court-imposed deadline in their legal malpractice action. The defendant moved for summary judgment. The plaintiffs apparently believed that the admissions made by the defendant attorney in her pleadings and in her discovery deposition would be sufficient to prove liability as a matter of law. The trial court concluded that plaintiffs could not rely on the defendant's own admissions because they had not disclosed her as an opinion witness under Rule 213(g). The trial court granted the defendant's motion.
In reversing summary judgment, the fifth district in Renshaw held that the defendant's own expert opinions were admissible without regard to the disclosure requirements of Rule 213(g). The court concluded that it would be contrary to the supreme court's intentions to allow Rule 213 to be used in a manner that would preclude the use of a professional malpractice defendant's own admissions made during the course of discovery to defeat a motion for summary judgment. The defendant could not claim surprise when confronted with her own previously expressed opinions.
D. Disclose the Parties as Opinion Witnesses
The fourth district concluded in McMath v Katholi6 that the supreme court, when amending Rule 213, rejected the party exception to former Rule 220 that excepted from disclosure any party whose professional malpractice formed the subject matter of the litigation. Thus, the appellate court held that the trial court abused its discretion in allowing the defendant physician to testify at trial in a medical malpractice action because the defendant had not disclosed himself as a Rule 213 opinion witness. It did not matter that the plaintiff had taken the defendant's discovery deposition.
The fourth district emphasized that "the whole point of replacing Rule 220 with the amendments to Rule 213 and Rule 218 was to rid Illinois law of the myriad of exceptions under the old rule."7 In his dissent, Justice Cook criticized the majority's adoption of an absolute rule for compliance that has no exceptions and does not vest any discretion in the trial court. He characterized the majority's "zero-tolerance policy" as "unrealistic."8
Even though the supreme court reversed the fourth district's decision in McMath v Katholi on other grounds, practitioners should not ignore the fourth district's holding. When making a Rule 213(g) disclosure, always include your own client and also the opposing party if you need to call them at trial to prove a claim or defense.
E. Disclose Treating Physicians as Opinion Witnesses
The fourth district signaled another major departure from the way things were previously done under former Rule 220 when it rejected the "treating physician exception" as part of Rule 213(g) in Spain v Owens Corning Fiberglass Corp.9 The court concluded that the supreme court intended to eliminate the "retained" versus "nonretained" distinction from the discovery requirements of amended Rule 213 as evidenced by its elimination of the phrase "retained to render an opinion at trial" that had been part of former Rule 220.
F. Disclose Another Party's Opinion Witnesses as Your Own if You Intend to Call Them at Trial
There are two first district cases from different divisions addressing this issue. While they reached different results, the best advice is to always disclose the other parties opinion witnesses, including those of a co-party, if you know you need to call them at trial to prove a claim or defense. Likewise, you should always disclose other parties' opinion witnesses if events might cause you to need them to testify at trial.
For example, it is not uncommon for "minor" defendants to sometimes "ride the coattails" of the "primary" defendant and expect to benefit from the testimony of the co-defendant's experts at trial without having retained or disclosed any of their own experts. If the "primary" defendant settles with plaintiff before the co-defendant's experts testify at trial and the "minor" defendant has not disclosed the settling co-defendant's experts as its own, the "minor" co-defendant will likely be left without the ability to call these experts at trial.
In Adami v Belmonte,10 the first district affirmed the trial court's decision barring the plaintiff from calling the defendant hospital's expert witness at trial in a medical malpractice action because of the plaintiff's untimely disclosure under Rule 213. The hospital's expert was critical of the defendant physician, and the plaintiff wanted to call him to prove liability against the physician. The plaintiff waited for over a month after the evidence deposition of the hospital's expert had been taken and until two weeks before trial to send a letter to defense counsel indicating that she might call the hospital's expert as an opinion witness at trial. The jury returned a defense verdict.
The first district held in Adami that the plaintiff's failure to disclose the hospital's expert until two weeks before trial was a violation of Rules 213 and 218. The court found that the physician was prejudiced by the fact that he had relied on the plaintiff's failure to make a timely disclosure of the hospital's expert as an opinion witness in his decision to not retain a rebuttal expert.
In a case decided a month later, the first district held in Sobczak v Flaska11 that the trial court did not commit reversible error in allowing the plaintiffs to call the expert of a co-defendant who had been dismissed from the case to testify at trial. The plaintiffs had not disclosed this witness as their own. Over the defendant's objection, the trial court allowed the dismissed defendant's expert to render opinions at trial that were adverse to the remaining defendant.
Even though plaintiffs in Sobczak conceded that they should have disclosed this expert under Rule 213(g), the first district accepted their argument that the defendant did not suffer any significant prejudice from the expert's testimony. The first district pointed out that the jury had heard similar evidence from other sources at trial.
Moreover, the court noted that the plaintiffs had another expert who they had timely disclosed and who they could have called to testify but for a scheduling conflict. The appellate court speculated that had the trial court decided to exclude the co-defendant's expert, the plaintiffs might have prevailed upon the trial court to allow similar testimony from its own expert by rescheduling him to testify at trial. Finally, the first district questioned defendant's claim of prejudice by pointing out the brevity of this expert's testimony, including defense counsel's cross-examination of him.
G. Disclose Your Rebuttal Witnesses and their Opinions
The fourth district held in Boland v Kawasaki Motors Manufacturing Corp. USA12 that a party has a duty under Rule 213(g) to disclose the identity of one's rebuttal witnesses and their opinions and to supplement those opinions under Rule 213(i). The defendants in this products liability action had indicated in their supplemental Rule 213 disclosures that their experts might be called to rebut "the theories and positions espoused by plaintiff's liability experts and perhaps other matters relevant to the material issues in the lawsuit." Their disclosure did not specify the opinions the defense experts were expected to render. The fourth district found this disclosure inadequate; however, the court held that the trial court had not abused its discretion in light of the Rule 213 violations committed by the plaintiff.
The first district held in Copeland v Stebco Products Corp.13 that litigants have an affirmative duty under Rule 213 to disclose any opinions and the bases therefor that are expected to be rendered at trial in rebuttal of the opinions of the other party's expert, even if that rebuttal testimony is not actually presented at trial during the witness' direct examination. In that case, plaintiff's expert did not present his rebuttal testimony during direct examination because the defendant's expert had died before trial. Instead, the expert's rebuttal opinions came out during cross-examination. The first district found the rebuttal testimony to be highly prejudicial to the defendant's case and held that it violated Rule 213.
H. Disclose the Identity of Your Opinion Witnesses and Their Opinions in a Timely Manner
Never wait to disclose your experts or opinion witnesses until after the 60-day discovery cut-off mandated by Rule 218(c) has passed. The trial court will probably bar the witness from testifying, but if not, the appellate court is apt to reverse the trial court's judgment.
The second district faced this situation in Warrender v Millsop.14 The defendant's counsel waited until 11 days before trial to fax to plaintiff's counsel a report from the defendant's expert. This was the first time the defendant had disclosed this particular expert or her opinions. After initially barring the expert, the trial court reversed its ruling and allowed her to testify at trial. The case went to the jury on damages only, and the jury rendered a monetary verdict for less than the total of plaintiff's medical bills.
The second district found the expert's testimony prejudicial to the plaintiff's damages claim and held that the trial court erred in allowing the defense expert to testify in violation of Rules 213 and 218. The appellate court remanded the case for a new trial on damages.
I. Supplement Your Disclosures before the 60-Day Discovery Cut-off
You should supplement your prior opinion witness disclosure before the 60-day discovery cut-off and avoid last minute supplemental disclosures. This is underscored by the fourth district s decision in Schuler v Mid-Central Cardiology.15
The defendants, only 61 days before trial, served on the plaintiff a detailed supplemental disclosure of their expert's opinions to which he would testify at trial. The plaintiff had already taken a short discovery deposition of the defendants' expert based on defendants' "generic" disclosure of his opinions pursuant to a case management order that required disclosure of only the "gist" of the opinion witnesses' testimony.
With trial approaching, the defendants became concerned that their expert's more detailed opinions would be excluded at trial due to nondisclosure under Rule 213. The trial court refused to strike the defendants' supplemental disclosure as being untimely, and the plaintiff refused the court's offer to allow a supplemental deposition of the expert.
Following a jury verdict for the defendants, the fourth district held that the trial court did not abuse its discretion in finding the defendants' disclosure to be timely. While the appellate court stated that it discouraged the litigants from making these "11th hour" disclosures, it found nothing in the record to indicate that the defendants had made their last minute supplemental disclosure to try to gain an unfair tactical advantage over the plaintiff.
J. Do Not Elicit Previously Undisclosed Opinions at Trial Lest You Risk Reversal of a Favorable Verdict
The appellate courts have not been reluctant to reverse a jury verdict and order a new trial based on Rule 213 violations committed by the prevailing party.
The fourth district reversed a jury verdict because of a Rule 213 violation in Department of Transportation v Crull.16 This case was a condemnation proceeding in which the jury decided damages only. The trial court, over the plaintiff's objection, allowed the defendants' expert to render previously undisclosed opinions at trial on the basis that "the interests of justice" required their admission. The fourth district court reversed the trial court's judgment and remanded the case for a new trial. The court stated that "[t]his is precisely the situation that the rule was intended to address, and no extenuating circumstances exist here that justify an exception to the rule."17
The first district reversed a jury verdict and ordered a new trial because of the plaintiff's Rule 213(g) violation in Parker v Illinois Masonic Warren Barr Pavilion.18 In this personal injury action, the trial court allowed the plaintiff's treating physician to render a previously undisclosed opinion at trial over the defendant's objection. The plaintiff had not formally responded to the defendant's Rule 213(g) interrogatories, but instead had sent a letter to defense counsel stating that the plaintiff's treating physician was going to testify as to the plaintiff's continued course of treatment under his care and that his opinions were "consistent with his records." The first district held the trial court erred in allowing the plaintiff's expert to testify in violation of Rule 213(g) and that this undisclosed testimony was prejudicial to defendant.
The fourth district reversed a jury verdict in favor of the defendant physician in a medical malpractice action and ordered a new trial because of several Rule 213 violations committed by him in McMath v Katholi.19 In addition to holding that defendant had violated Rule 213 by failing to disclose himself as an opinion witness on his own behalf, the fourth district found that he had violated the rule by expressing different opinions at trial than he had given in his discovery deposition. The court rejected defendant's claim that there was no Rule 213 violation because his deposition testimony covered the same basic subject matter as his trial testimony. The court said the proper inquiry under Rule 213 was "not what questions were posed during the discovery deposition but instead...what answers the deponent gave to those questions."20 The fourth district ordered a new trial.
The first district reversed a jury verdict in favor of the plaintiff and ordered a new trial in a medical malpractice case because of a Rule 213 violation in Firstar Bank of Illinois v Peirce.21 The appellate court held that the trial court had committed reversible error by allowing the plaintiff's expert to render an opinion at trial that had not been previously disclosed in the plaintiff's answers to Rule 213 interrogatories or in the expert's discovery deposition. The appellate court disagreed that the expert's testimony was merely a "natural corollary" of his disclosed opinions and that it only explained his testimony given in his discovery deposition.
The first district reversed a jury verdict in favor of the defendants and ordered a new trial in a medical malpractice action because of a Rule 213 violation in Seef v Ingalls Memorial Hospital.22 The first district found that the expert's evidence deposition contained numerous new opinions and new reasons for opinions that had not been previously disclosed pursuant to Rule 213. The court found that the expert's opinion testimony did not consist of mere elaborations or logical corollaries of previously disclosed opinions, which would not have violated Rule 213. The appellate court held that the "cumulative effect" of the trial court's erroneous admission of the defense expert's undisclosed opinions prejudiced plaintiffs.
K. Supplement Even the "Bases" for Your Witness' Opinions
In McGrew v Pearlman,23 the first district held that the trial court properly allowed the defendant's expert, an accident reconstructionist, to testify at trial even though the defendant had not previously disclosed having furnished his expert with his recorded statement given to his insurance company after the accident. The expert did not mention the statement or any of the information contained therein as the basis for any of his opinions rendered during his direct examination at trial.
The first district rejected plaintiff's claim of prejudice. The court pointed out that the trial court had given the plaintiff great leeway in his cross-examination of defendant's expert. The trial court had even offered the plaintiff a chance to recall his own expert to testify regarding the defendant's recorded statement, but the plaintiff had declined. Perhaps most importantly, the appellate court found that the expert had not relied on the defendant's recorded statement to form his opinions. Thus, it did not contribute to form one of the "bases" of his opinions.
The first district reversed a jury verdict in the plaintiff's favor and ordered a new trial in a products liability action because of the plaintiff's failure to supplement her disclosure of her expert's bases for his opinions in Copeland v Stebco Products Corp.24 The plaintiff's expert had testified in his discovery deposition that he had not been able to duplicate the exact manner in which the plaintiff claimed her injury had occurred. He also testified that he had no plans to do any further investigation.
Following his deposition, the plaintiff's expert did perform additional testing and measurements in response to criticisms leveled at him by defendant's expert. As a result, he was finally able to duplicate the exact manner in which the plaintiff had claimed that the injury occurred. Because the defendant's expert died before trial, the plaintiff's expert did not refer to this rebuttal information during his direct examination; however, defense counsel elicited testimony about this additional testing and measurements during cross-examination.
The plaintiff in Copeland argued that she did not have a duty to supplement her disclosure relating to her expert's additional work because it had been done solely to rebut the defendant's expert and that the rebuttal testimony became unnecessary in light of the defendant's expert's death before trial. The first district was not persuaded. It found that the expert's testimony came as a surprise to the defense and prejudiced its ability to defend itself and to cross-examine the plaintiff's expert. The court also found that the undisclosed testimony was clearly prejudicial to the defendant's case because it corroborated for the first time the plaintiff's testimony as to how the accident occurred. The first district ordered a new trial.
L. You Cannot Complain about the Other Party's Noncompliance if You Caused It
In Hilgenberg v Kazan,25 the plaintiffs moved for leave of court shortly before trial to file amended Rule 213 answers so that they could "resurrect" and pursue a claim in this medical malpractice action based on the doctrine of res ipsa loquitur. The trial court granted the plaintiffs' motion one week before trial but also allowed the defendant physician an opportunity to amend his Rule 213 responses. On the first day of trial, defendant filed his amended Rule 213 responses in which he disclosed that his expert, as an additional basis for his opinions, would testify about his personal experiences with one of his own patients who had undergone surgery and had developed an injury similar to the one experienced by plaintiff.
Over the plaintiffs' objection, the trial court ruled that the expert's testimony was admissible for the limited purpose of rebutting plaintiffs' theory on res ipsa loquitur. The jury returned a verdict in favor of the defendant. The first district affirmed the trial court's decision to allow the defendant's expert to testify about the additional basis for his opinions. The court commented that the defendant would have been prejudiced had the trial court not allowed his expert to testify about his experiences with his own patient after having allowed plaintiffs to proceed on the res ipsa loquitur claim.
The fourth district excused the defendants' use of undisclosed opinion testimony in Boland v Kawasaki Motors Mfg. Corp.26 on the basis that the plaintiff had "opened the door" by the scope of his direct examination of his own expert at trial and by the improper conduct of the plaintiff's expert in this products liability action. The jury returned a verdict for the defendants.
The plaintiff argued that the trial court erred in allowing defense counsel to cross-examine his expert as to opinions he had previously expressed in a deposition he had given in a Kentucky lawsuit. The defendants had not disclosed this deposition testimony to the plaintiff in accordance with Rule 213. The plaintiff also complained that the trial court allowed the defendants' experts to rebut the plaintiff's expert testimony with opinions that the defendants had not previously disclosed.
The fourth district found that the plaintiff had "opened the door" to the defendants' cross-examination of the plaintiff's expert and the rebuttal testimony of the defendants' experts by the scope of the plaintiff's own direct examination of his expert. It was significant to the appellate court that the plaintiff's expert had refused to disclose his testimony in the Kentucky lawsuit during discovery in the Illinois case, and that his testimony in the Kentucky lawsuit contradicted his testimony in the Illinois case. The fourth district found that the trial court had properly exercised its discretion to fashion a remedy in light of both parties' noncompliance with Rule 213.
It remains to be seen whether the supreme court's elimination of Rule 220 and its replacement with the amendments to Rule 213 has remedied the old problems of that rule or simply created new problems. There appears to be a tension between the goal of full disclosure under Rule 213 and the equally worthy goal of not placing form over substance.
Because the appellate courts in general are taking a strict approach in dealing with Rule 213 violations, practitioners are advised to follow the first district's advice: "We strongly urge 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. This is a bright line rule and must be followed."27
Copyright 2001, Illinois State Bar Association. Used with permission.
2. See Schuler v Mid-Central Cardiology, 313 Ill App 3d 326, 729 NE2d 536, 540 (4th D 2000) (where the case management order required the parties to disclose only the gist of their opinion witnesses testimony).
Daniel P. Wurl is a partner in the Champaign firm of Dobbins, Fraker, Tennant, Joy & Perlstein, where he concentrates his practice in medical malpractice defense, insurance defense, and commercial litigation. He is a past chair of the Civil Practice & Procedure Section Council. He currently serves as vice-chair of the Insurance Law Section Council and is a member of the Tort Law Section Council.
Copyright 2001, Illinois State Bar Association. Used with permission.