Rule 213 Changes Leading to Double Vision

A 27 year-old UPS driver started experiencing headaches and double vision. He went to a Chicago hospital emergency room, where a CT scan was ordered and a neurologist was consulted. Later, he was referred to a neuro-ophthalmologist. The man began receiving contraindicating medication that led to the lack of bloody supply to his hips, requiring hip replacement surgery on both hips the following year.

He sued a number of doctors who, he alleged, has negligently treated him. Plaintiff called two expert witnesses to testify at trial. A defendant alleged that their testimony went beyond their pretrial disclosures under Illinois Supreme Court Rule 213 (g) and (I). The court allowed the testimony, and on appeal it was held that the experts’ opinions were either discussed during their deposition or were "logical corollaries" to their original opinions.

Thus, the defendants could not have been surprised by their statements. Becht v. Palac,___Ill.App.3d___(No.1-99-3703)1st Dist., decided Dec. 12,2000). Judge William Cousins Jr. wrote an opinion.

Under Rule 213, each party must disclose the subject matter, conclusions, opinions, qualifications and reports of a witness who will offer any opinion testimony. As the court stated in Becht, " The purpose of the rule is to avoid surprise and permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries."

Certainly, on one will quarrel with these laudatory goals, particularly after dealing with the problems involving that rule’s predecessor, Rule 220, and the skulduggery that sometimes became apparent only at trial.

As my colleague Terrence Lavin, incoming President of the Illinois State BAR Association, so aptly pointed out in a recent bar journal article, Rule 213 has spawned to many "nit-picking hyper technical objectaholics among the ranks of trial lawyers."

At the very least, Rule 213 has taken on a strange life of its own, and it’s become fodder for one of the best cottage industries known to man.

Unfortunately, rather than eliminating controversies that developed under Rule 220's disclosure requirements, Rule 213 often results in mini-trials on the admissibility of experts’ testimony before the actual trial begins. As a result, injured plaintiff’s often are denied a meaningful trial on the merits, and defendants are denied valuable defenses over procedural hypertechnicalities. And, costs of litigation on both sides are skyrocketing.

No less than 25 opinions have been penned by Illinois appellate courts in the last few years on the relatively new rule, with several opinions being irreconcilable. Some justices feel the new rule signaled the need for an overly strict interpretation, but such applications was never intended by the drafters of the rules.

Some justices are even ruling that Rule 213 applies to cross examination, despite a constitutional due process right to do so.

Take, for instance, the recent case of Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 738 N.E. 2d 199 (1st Dist. 2000), a product liability case involving a bungee cord on a luggage rack.

Plaintiff’s experts gave a deposition and then conducted further tests, reaching a additional conclusions that were first brought out on cross- examination at trial. In reversing a $3 million verdict for the plaintiff, the 1st District held that litigants have an affirmative duty under Rule 213 to disclose any opinions and the bases thereof, even if the expert’s opinion was elicted by the cross examiner at trial.

Another case decided shortly thereafter in the same district, took a strict reading of the rule even further. In Coleman v. Abella, the Appellate Court upheld the barring of testimony of plaintiff’s expert in a medical malpractice wrongful death case when on cross-examination it was reveled that she had read nine depositions shortly before trial, even though doing so had not changed her opinion, nor did she offer any new opinions.

Justice Allen Greiman in his dissent stated that, " Unless we are prepared to put expert witnesses in space or deep freeze during the period between the deposition and the testimony at trial, deepening of a witness understanding of some of the issues that were the subject of the depositing testimony must be a common matter for a doctor who writes articles, see patients, attends conferences, and interacts with the medical community after giving her discovery depositions."

These problems have led to some proposed amendments to Rule 213(g), which were the subject of a Supreme Court Rules Committee public hearing held in Chicago earlier this year. For most of a day, attorneys from both sides of the aisle argued the pros and cons of two proposals, one drafted by the Supreme Court Rules Committee and the other by the Illinois Judicial Conference Committee on Discovery Procedures.

Both proposals aim to limit the application of Rule 213 to the direct testimony of opinion witnesses, while the Supreme Court Rules Committee proposal also applies to the " cross-examination" of witnesses deemed to be the equivalent of direct testimony. The cross-examiner’s position is identical to that of the questioner on direct, where, for example, a defendant’s "cross-examination" of the co-defendant’s expert, or the plaintiffs cross examination of a co-plaintiffs expert.

The two proposals address largely the same goal: the elimination of surprise while allowing wide latitude in cross-examination . The suggested amendments to paragraph (g), by and large , appear to be embraced by a number of trial attorneys who endorse the tradition that a lawyer should not be forced to disclose one’s cross-examination prior to trial, embracing the fundamental fairness in pursuing this right.

The proposed comments to the proposed amendment to Rule 213, in fact, state that the amendment "eliminates any question that Rule 213 imposes any restriction on otherwise proper cross-examination of an opinion witness."

Certainly, there is much to be said for eliminating gamesmanship and ambush trials and instead, promoting full and complete disclosure before trial. But, trial lawyers are not robots, nor are their witnesses; and there must be some fairness and flexibility in the application of the rule, keeping in mind its purpose- elimination of surprise.

Clearly, if a fair trial is to be accomplished with the "interests of justice" in mind, as Rule 213's Committee Comments specifically note, the proposed amendments ought to be adopted as a major step in accomplishing what the rule originally set out to do.