After 19 months on dialysis, Bianchi died of complications from the disease. His widow brought a lawsuit against the two doctors; and, at trial, defendants cross-examined plaintiff’s medical expert using a clinical laboratory manual that indicated that these test results were within the range of normal for a 65-year-old man.

Plaintiff’s medical expert "was clearly surprised" by this finding, having testified to the contrary. Plaintiff was not provided with that manual, despite a pre-trial production request pursuant to Supreme Court Rule 237 Notice to Produce.

The following morning, plaintiff moved for a mistrial based upon defense counsel’s failure to disclose the lab manual before trial. Defendants contended that the manual did not fall within the plaintiff’s request, and they prevailed at trial.

The appeals court reversed and remanded, Bianchi v. Mikhail, 266 Ill.App.3d 767, 640 N.E.2d 1370 (1^st Dist. 1994), finding that plaintiff had been ambushed on an issue critical to the case.

The case was retried, and that manual became moot because plaintiff had changed experts. On retrial the jury awarded $1 million in June 1998. The case is on appeal now on unrelated grounds.

Other courts have barred such materials used on cross-examination when the party fails to disclose its intention to use authoritative evidence, such as medical journals, in a timely manner. Iser v. Copley Memorial Hospital, 288 Ill.App.3d 408, 680 N.E.2d 747 (3d Dist., 1997).

The courts’ opinions in considering whether Rule 237 has been complied with or whether sanctions are appropriate are determinate on a number of factors: the surprise to the opposing party, the prejudicial effect of the evidence, the diligence of the opposing party in seeking discovery, timely objection to the evidence and the good faith of the party offering the evidence.

In the case of Bianchi, the lack of a foundation for the book’s authoritativeness or relevancy was clear - it was later discovered to have dealt with only non-healthy, bedridden, long-term-care patients, which plaintiff was not at the time of treatment.

It is generally accepted that if counsel presents an adversary with a Rule 237 Notice to Produce, he or she has the right to assume that the opponent has fully complied.

Too many times, though, non-diligent litigators attempt to use Rule 237 as a major discovery tool, a practice that even the Rules Committee recognizes in the Notes to cause serious trial delay. That is not the Rule’s intent.

Rather, Rule 237 is designed to compel parties to produce all documents or tangible items for use at trial. But the crafty attempt to introduce new material on cross-examination, contending their opponent never requested it. Courts have recognized these slippery tactics since the adoption of the rule in 1968.

Sanctions for "unreasonable" non-compliance with the rule have ranged from ordering a mistrial, as in Bianchi, to excluding the evidence at trial, as in Southern Illinois Airport Authority v. Smith, 267 Ill.App.3d 201, 641 N.E.2d 1240 (5^th Dist. 1994). In that case, the 5^th District appeared to go even further and stated that in cross-examination, "[s]imply because a party does not wish to use a document in any manner does not excuse the party from producing a document from within his knowledge and control." 267 Ill.App.3d at 207. To allow otherwise would be unfair.

Principles of fundamental fairness require an opponent to produce or identify learned treaties or articles on which they intend to cross-examine an expert. The principles at issue here can be likened to those involving discovery abuse, which the Illinois Supreme Court addressed in People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6 (1967): "When an attorney attempts to use discovery rules and sanctions as weapons in a war of inconvenience, instead of the truth-seeking purposes for which they were designed, he does a disservice not only to the court and his colleagues at the bar, but also to his client, since his pettifogging makes more difficult a realistic review of the merits of the client’s claim or defense." 82 Ill.2d at 565.

The Bianchi case demonstrates there is little time in a trial setting to properly and fully examine new materials, and the potential prejudice that ensues outweighs its probative value. Certainly, a busy lawyer may not have time to plan for the cross-examination of the opponent’s witnesses months or perhaps even years before trial. But once the attorney decides to use a particular document on cross-examination at trial, it must be identified and disclosed prior to its use.

An expert witness must be provided the time to consider all documents on which he or she is being cross-examined to testify competently and accurately. The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable. Full disclosure is basic in reaching the truth.

Furthermore, because most civil cases settle before trial, the key is to link the entire process to the ultimate resolution of the material issues in the case. Therefore, to try the case by broadsiding one’s opponent by holding back vital information until the time of trial, and then springing it on the unsuspecting opponent’s expert to elicit a particular reaction to the jury, is simply unfair.

Look at the widow in Bianchi. Her husband died in 1982 and she is approaching the 20-year mark before she may see a resolution to her case because of the prejudicial tactics initially used there.

I enjoy a fair fight as much as the next trial lawyer, but trial by surprise and deceit is a thing of the Dark Ages.