Foran Glennon Palandech Ponzi & Rudloff
Rule 213: If it walks like a disclosure and talks like a disclosureâ€¦
Matthew R. Hess
Trial lawyers in Illinois, especially those who litigate medical malpractice cases, have struggled with understanding the requirements of Illinois Supreme Court Rule 213 ever since it replaced the old Rule 220 in 1995.Â Although the Illinois Supreme Court made it clear in Sullivan v. Edward Hospital that the Rule 213 disclosure requirements are mandatory, trial courts have retained the discretion to interpret the rule as they see fit.
On one end of the spectrum, some trial courts have enforced Rule 213 in a draconian way, requiring every bit of proposed expert testimony to be disclosed to the opposing party prior to trial.Â On the other end are those trial judges who liberally allow experts to offer non-disclosed opinions at trial if those opinions can be considered â€ślogical corollariesâ€ť of previously disclosed opinions.
Two recent cases have recently added to the confusion regarding the duty of a litigant to disclose expert testimony under Rule 213(f)(3).Â In Sharbono v. Hilborn, M.D. 2014 IL App (3d) 120597, as modified on denial of reh’g (June 11, 2014), a judgment was entered in favor of the defendant radiologist in a case where the plaintiff asserted a negligent failure to timely diagnose breast cancer.Â One of the issues raised on appeal was whether the defendant violated Rule 213 by failing to disclose a PowerPoint presentation to be used as a demonstrative exhibit during the trial.Â This PowerPoint presentation utilized radiographic images from a medical textbook and contained headings such as â€śbenign,â€ť â€śbenign appearing lesions,â€ť â€śbenign shadowing,â€ť and â€śbenign appearing echoes.â€ť It also incorporated the plaintiffâ€™s own radiographic images in proximity to those headings.
After concluding that the PowerPoint presentation could not be considered â€śdemonstrativeâ€ť evidence because it was not being used to teach or educate the jury but rather to help show the basis of the defendantâ€™s medical opinions in the case, the appellate court concluded that the trial court erred by allowing the use of the PowerPoint presentation.Â While recognizing that the Illinois Supreme Court ruled in the 1981 case of Wilson v. Clark, 84 Ill. 2d 186, 417 N.E.2d 1322 (1981), that the burden was on the cross-examining party to elicit facts underlying the expertâ€™s opinion, it concluded that, as a matter of fundamental fairness, an adverse party must be given proper and timely disclosure under Rule 213 so that it may have an opportunity to prepare for cross-examination.
Since the plaintiff was not provided with the opportunity to investigate the extent of the defendantâ€™s reliance on the medical treatise utilized in the PowerPoint presentation, whether the treatise was truly authoritative, or whether the images contained therein were reliable, the Third District concluded that she was entitled to a new trial.
Contrast Jones v. Beck, M.D., 2014 IL App (1st) 131124, where the First District Appellate Court affirmed a trial courtâ€™s decision to allow expert testimony in a case involving a colonic perforation that occurred following a patientâ€™s spine surgery.Â Plaintiffâ€™s contention was that the defendant, Dr. Beck, should have inserted a nasogastric tube when it became apparent that the patientâ€™s colon had become distended several days following surgery.Â The defendant had disclosed only that he and his retained expert witness would testify that he complied with the standard of care at all times, and further that he and his expert disagreed with the opinions of the plaintiffâ€™s expert.
At trial, when the defendantâ€™s lawyer questioned his expert as to whether the standard of care required the insertion of a nasogastric tube on direct examination, plaintiffâ€™s counsel lodged a Rule 213 objection.Â In affirming the trial courtâ€™s decision to overrule the objection, the First District emphasized that the purpose of the rules of discovery is to â€śavoid surprise and to discourage strategic gamesmanship.â€ťÂ According to the court, it was clear in this case that the defendant and his expert would be testifying that a nasogastric tube was not required by the standard of care.Â Although the defendantâ€™s Rule 213 disclosures were generic in nature, the court found that witnesses may elaborate on previously disclosed opinions as long as the proposed testimony is a logical corollary.Â Therefore, the trial court did not abuse its discretion in allowing the defendantâ€™s standard of care testimony.
Furthermore, even though the only basis disclosed on behalf of the defendant and his expert were their respective â€śeducation, training and experience,â€ť as well as their review of the medical records, the appellate court faulted the plaintiff for failing to ask more detailed questions during the witnessesâ€™ discovery depositions to elicit more detailed information regarding the basis of their opinions.Â The court concluded that Rule 213 should be treated as a â€śshield to prevent unfair surprise but not a sword to prevent the admission of relevant evidence on the basis of technicalities.â€ť
Neither Sharbono nor Jones represent an evolution in Illinois law.Â Rather, they crystallize the fact that litigators must proceed with caution both in drafting Rule 213 disclosures and in deposing an opponentâ€™s retained expert witness and must also use common sense before arguing that a violation of the Rule has occurred.