Uh oh … Will Supreme Court Rule 213 Become Old Rule 220?

April 8, 2011

 

Illinois Supreme Court Rule 220 no longer exists. It was eliminated because it became watered down and unworkable. Rule 220 was intended to provide a responsible framework for the disclosure of expert witness opinions. Over time, the reviewing courts in Illinois created exception after exception to the rule. Eventually, everyone agreed the rule had become ineffectual.

Thus sprang forth Illinois Supreme Court Rule 213, implemented to replace Rule 220. With some adjustments here and there, Rule 213 has been reasonably effective in setting out a clear, understandable and workable outline for expert discovery. A key to its potency has been its mechanism to bar experts whose opinions had not been properly disclosed.

Under Rule 213(f)(1), a party’s disclosure of non-experts “must identify the subjects on which the witness will testify.” Under 213(f)(2) and (3), a party’s disclosure of experts (either retained or independent experts) “must identify the subjects on which the witness will testify and the opinions the party expects to elicit” from the witness. [Note: This is the language applicable to independent experts; the language applicable to retained experts is similar but even more specific and also requires the bases for the opinions be disclosed.]

Rule 213 appears to be very clear that a party must be specific in identifying expert opinions. Of course, case law has also established that an expert “may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it.” Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 757 N.E.2d 533 (2001). Nevertheless, the opinion must be disclosed (along with the bases for the opinion).

Recently, in Timothy Whelan Law Associates, Ltd. v. Kruppe, ___ Ill. App. 3d ___ (2d Dist. No. 2_09_1234 March 31, 2011), the Second District Appellate Court issued a decision which opens a hole in Rule 213’s requirement that an expert’s opinions must be fully disclosed in advance of a trial. This was a lawsuit seeking collection of a lawyer’s unpaid fees. The plaintiff, an attorney, was identified in his Rule 213(f) disclosures as a witness who would testify

“regarding the existence of a contract between plaintiff and defendant, the nature of the services provided, and the damages it incurred as a result.”

At trial, the plaintiff/attorney was permitted to testify that the fees he charged to his client, the defendant, were reasonable. Clearly, the Rule 213(f) disclosure did not explicitly state he would so testify. The defendant objected to this trial testimony as not having been disclosed under Rule 213. The trial court overruled the objection, however, indicating the opinion was encompassed within the Rule 213 disclosure.

The appellate court sustained the trial court, finding that because the plaintiff had disclosed he would testify “regarding” his damages, that would reasonably include giving an opinion that his fees were reasonable.

I dissent.

There should be little doubt that the plaintiff’s Rule 213 disclosure was not sufficient to allow the opinion testimony permitted by the trial court. In fact, the plaintiff’s Rule 213 disclosure could only meet the requirement of Rule 213(f)(1), applicable to non-expert witnesses, that only the “subjects on which the witness will testify” be provided. Merely disclosing an expert will testify “regarding” an element of the cause of action does not indicate what that testimony will be or if it will be an expert opinion. If the disclosure made by plaintiff in the Whelan case had been for a non-expert witness, it would have been sufficient. The fact it was being offered as a disclosure of an expert witness opinion, however, requires more specificity and detail.

The modest disclosure that the plaintiff would testify “regarding” damages not only fails to identify the opinion regarding damages which was intended to be offered at trial, but it also fails to identify the bases for any such opinion (as required by Rule 213(f)(3)).

“The Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Rule 213 requires full disclosure of experts’ opinions and the bases for those opinions, and any deviation from the rule should not be allowed, even if proffered “in the interests of justice.” Dept. of Transp. v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998).

Illinois appellate courts have previously dealt situations similar to the Whelan case and found very general, non-specific disclosures to not comply with Rule 213. In Kim v. Mercedes_Benz, 353 Ill.App.3d 444, 818 N.E.2d 713 (2004), the court held a plaintiff’s general disclosure that he would testify at trial “about the matters alleged in plaintiff’s complaint” is insufficient and does not give adequate notice to the defendant of the plaintiff’s intention to offer opinions regarding his damages. Additionally, in Lisowski v. MacNeal Memorial Hospital Assn., 381 Ill.App.3d 275, 885 N.E.2d 1120 (2008), the court ruled where the plaintiff’s Rule 213 disclosures only indicated the expert would testify to “all of the other problems” of the plaintiff, but the topics “depression” and “suicide” were never mentioned in the disclosures, the catchall phase “all of the other problems” was found to not be specific enough to meet the strict requirements of Rule 213, so the expert was properly barred from testifying that plaintiff became suicidal and depressed.

The Second District’s decision in Whelan backs off of Rule 213’s strict requirements of full and complete disclosure of expert opinions. Let’s hope the decision becomes an isolated, unaccepted part of Rule 213’s background. Otherwise, we should already start thinking about which rule is going to replace Rule 213 — just as Rule 213 replaced old Rule 220.

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Health Care Lienholders Need Not Pay a Portion of the Expenses of a Lawsuit Which Permitted Recovery for the Lien

March 29, 2011

The recent Illinois Supreme Court decision of Wendling v. Southern Illinois Hospital Services, ___ Ill. 2d ___ (Nos. 110199, 110200 cons. March 24, 2011) clarified a point of law which lawyers and others too often misunderstand. Importantly, the Court explained the differences between a statutory lien claim and a subrogation claim. If you wish to review a copy of the decision from the official Illinois courts website, you may access it here: http://is.gd/N1nI1u

In Wendling, the Court reasserted that the “common fund doctrine” does not apply to statutorily created health care liens such as those imposed by hospitals which have billed for care they provided. Thus, in the event of a settlement or judgment on behalf of an injured plaintiff, the health care provider’s lien must be satisfied in full and no deduction can be retained by the plaintiff either for attorney’s fees or the costs of the litigation.

In Illinois, health care providers may assert a lien on the value of the services which they have provided to a personal injury plaintiff. The lien is permitted only because a statute created that right: The Health Care Services Lien Act, 770 ILCS 23/1 et seq. Under the Act, the total amount of all health care liens is limited to 40% of the judgment or settlement. However, if the total amount of the providers’ bills were not satisfied completely, the providers still have the right to pursue the patient directly for the remaining amount of the bills which were not satisfied by the lien recovery. 770 ILCS 23/45.

As explained by the Wendling Court, the Illinois version of the “common fund” doctrine provides “‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.’ [cit. omitted] Underlying the doctrine is the equitable concept that the beneficiaries of a fund will be unjustly enriched by the attorney’s services unless they contribute to the costs of the litigation. [cits. omitted] Courts have applied the common fund doctrine in numerous types of civil litigation, including insurance subrogation claims, class actions, and wrongful_death cases involving an intervenor.[cits. omitted]” In other words, if an entity has paid funds which it would not ordinarily be able recover from anyone, for example an insurance company which was contractually obligated to pay for its insured’s medical expenses, and a lawyer creates a fund (settlement or judgment amount) which permits that entity to recover those outlays, then the entity must share a part of the recovery to pay the party for its costs in creating the fund.

In Wendling, the plaintiff tried to claim that a hospital which had a statutorily created lien, not a subrogation claim, should pay a portion of its lien for the plaintiff’s attorney’s fees and the costs of the lawsuit. Many of us believed this issue had already been decided by the Supreme Court in Maynard v. Parker, 75 Ill. 2d 73, 387 N.E.2d 298, 25 Ill. Dec. 642 (1979), but this time there were powerful amicus curiae briefs filed by the trial lawyers. In the end, the Supreme Court reaffirmed its 1979 holding in Maynard.

Along the way, the Supreme Court noted the differences between subrogation interests and lien claims. Primarily of interest for this decision, the holder of a statutorily created lien has the right to be paid for the lien amount irrespective of whether a recovery is made in the plaintiff’s lawsuit. In essence, the health care provider is the creditor and the plaintiff is the debtor, and the plaintiff must pay for his/her medical bills regardless of what happens in the P.I. lawsuit. In contrast, the holder of a subrogation claim does not ordinarily have an independent right to recover the amounts which were paid to or on behalf of the P.I. plaintiff. The only way the subrogation claimholder can recover is if a fund is created by settlement or judgment in the underlying lawsuit. Accordingly, the Supreme Court noted it to be fair that the subrogation claimant pay a part of the plaintiff’s costs of creating the “common fund” which allowed reimbursement to the subrogee. However, a health care provider with a statutory lien does not need the “common fund” to get paid for its services as the P.I. plaintiff will be required to pay the provider even if a lawsuit has not been filed.

It should be noted that trial lawyers are already trying to have the Illinois legislature enact a law which would get around the holding of this case (and the case law since 1979) by seeking to amend the Health Care Services Lien Act.


Disputes Between Lawyers and Their Experts

March 27, 2011

 

Usually, there is a close relationship between an expert witness and the attorneys for a party on whose behalf the expert has agreed to testify — usually, but not always. When things go wrong between an expert and the lawyers who retained him/her, they can go very wrong.

The recent Illinois appellate court decision in McNally v. Morrison, ___ Ill. App. 3d ___ (1st Dist. No. 1-09-2643 March 15, 2011) shows how bad things can get, although the holding of the case is really just about personal jurisdiction. A link from the official Illinois courts website to a pdf copy of the case follows: http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/March/1092643.pdf

The appellate court case resolves an issue of personal jurisdiction in a suit filed by plaintiffs (attorneys who represented a plaintiff in an underlying medical malpractice case) against their own out-of-state expert witness. The lawsuit alleged the expert from Ohio conferred with the Illinois lawyers and gave them an opinion that the defendant doctor was guilty of professional negligence, but then at his deposition, the expert completely changed his mind and opined the defendant acted appropriately. This lawsuit alleged that just prior to the deposition, the expert disclosed he had not actually reviewed critical deposition testimony and evidence. The lawyers sued the expert for breach of contract, consumer fraud, fraud and professional negligence.

To be clear, the only issue of this case is a matter of civil procedure: Whether the Illinois court has personal jurisdiction over the Ohio expert. The court decided that such jurisdiction exists over the non-Illinois resident because the expert’s work was done for Illinois attorneys to serve as an expert in an Illinois suit and was intended to produce a result in Illinois. The appellate court rejected the expert’s argument that all of his work was performed in Ohio. Instead, the court found the expert’s services were pursuant to a contract with Illinois lawyers and directed at Illinois residents. Further, the court held that Illinois has a “substantial interest” in adjudicating a dispute which concerns an expert witness in an Illinois lawsuit. Thus, the appellate court decided that “sufficient minimum contacts” existed between Illinois and the expert such that the expert should reasonably ancipate being brought into court in Illinois, and accordingly, Illinois courts have personal jurisdiction over him.

However, there is a broader issue here: How can lawyers avoid disputes with their experts?

The answer is full honesty by both sides, but also a lawyer’s willingness to challenge the expert to be sure the expert is being forthright.

The attorney must provide all relevant information to the expert to allow the expert to be aware of all facts and issues. Additionally, the attorney must spend a lot of time with the expert to ensure he/she is thoroughly familiar with those facts and issues. Sometimes, that effort can be through telephone calls, especially for simple matters, but it is vastly preferable that the communications be face to face. Yes, that will mean the litigation expense will be slightly higher, but the risk of a problem occurring between expert and lawyer will be substantially reduced.

To be certain the expert has all necessary information, the lawyer must also be thoroughly familiar with that same information. The attorney must then be willing to “quiz” the expert about the evidence which has been provided. If the expert has only “skimmed” over deposition transcripts or other information, he/she will not be able to properly answer the lawyer’s “quiz” questions and the lawyer will know that more time must be spent by both lawyer and expert.

The nightmare of litigation involving expert witnesses is exactly that which occurred in the McNally appellate court case: The lawyer who retained the expert is in the pre-deposition meeting with the expert and suddenly discovers the expert is not thoroughly familiar with the relevant evidence. The worst possible time to discover that the expert is unprepared is when the expert is from out-of-state, is being deposed in his/her home state, and the opposing counsel is about to walk through the office door to begin the deposition. Most of the time, the expert disclosure deadline has already passed so cancelling the deposition will not be a viable option. Therefore, the time to ensure the expert is adequately prepared is before the expert is even disclosed.

Of course, the responsibility should not be solely placed upon the lawyer. The expert has an obligation to be prepared and clear about his/her opinions. However, only the lawyer owes ethical obligations to the client, so the lawyer must take all steps necessary to be sure the client is well represented. Therefore, the lawyer miust ask the expert about his/her qualifications; ask about the information reviewed; determine whether additional information is needed; identify the issues raised by the other side; and assist the expert in understanding the questions which opposing counsel will ask.

Doing these things could be perceived as a discourteous “challenge” of one’s own expert, but it need not necessarily be so perceived. When dealing with experts, a lawyer should always tell them that the goal is to avoid having the expert be embarrassed in any manner at the time of questioning by opposing counsel. The expert must be made to appreciate that the “challenge” of one’s own expert is intended to prevent the expert from looking foolish.

At a time when so many complex lawsuits are decided by a “battle of the experts,” an attorney must advise the client that the handling of expert witnesses is one of the most critical phases of litigation. As such, time spent in detailed communications with experts is time well spent.


Supreme Court Rectifies “Open-Ended Liability” For Construction Contractors and Engineers

January 21, 2011

On January 21, 2111, the Illinois Supreme Court handed down its unanimous decision in Thompson v. Gordon. The Court reversed the holding of the appellate court. I previously commented on the appellate court’s decision, noting the appellate court misapplied the law which sets forth duties of construction entities, and I expressed my hope the Supreme Court would resolve the issues raised by the appellate court’s decision. (See https://triallaw.wordpress.com/2010/06/02/open-ended-liability-for-contractorsengineers/).

Today, the Supreme Court rectified the appellate court’s errant analysis. A copy of the Supreme Court’s decision can be accessed here through the court’s official website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/January/110066.pdf

The case involves a construction engineer who signed a contract to “replace” a bridge. A motorist traveling through the section of replaced bridge was killed in an accident. Her estate sued the engineer alleging he should have done more than just “replace” the prior bridgework but should have improved it to add better median barriers which might have prevented the death.  The appellate court ruled (1) the scope of services section of the construction contract only required “replacement” of the bridge (not improvement), but (2) the portion of the contract which required the engineer to meet professional practice standards raised a question of fact as to whether he should have also suggested and implemented “improvements” to the bridgework.

The Supreme Court ruled that the appellate court was incorrect in determining the scope of the duty by applying a professional negligence standard of care duty, even though the actual scope of the engineer’s duty was contractually established as mere replacement of the prior bridgework. Although the contract indicated the engineer would apply the same skills as other engineers, the Supreme Court held the skill was only that which would be applied to the scope of the contract work, namely the “replacement” of the bridgework (not its improvement).

Importantly, the Supreme Court reinforced its earlier ruling in Ferentchak v. Village of Frankfort105 Ill. 2d 474 (1985). Here, the Court stated that Ferentchak‘s “actual holding … was that the degree of skill and care required of the civil engineer depended on his contractual obligation, and the scope of that duty was defined by the contract.”

This Supreme Court decision  which developed after the appellate court’s ruling. They were concerned about being held liable for work which was done completely according to contractual requirements, but which an “expert” would criticize after the fact as not having been enough in spite of complying with the contract.

Now, with this decision, it seems clear that courts addressing claims against construction entities must first determine the scope of the services contracted for, and second, determine if the work done only on that scope of services was done properly.

This is a good decision which reestablishes long-held law, clarifies the analysis to be used by trial courts, and allows construction entities to have more certainty about the litigation risks to which they might be exposed.


Illinois Adopts Rules of Evidence

October 4, 2010

 

Until now, the admissibility of evidence in Illinois was primarily governed by the developing case law of reviewing court decisions. Recently, however, the Illinois Supreme Court adopted formal, codified Rules of Evidence. These Rules take effect January 1, 2010. A copy of the Rules may be found here:

http://www.state.il.us/court/SupremeCourt/Announce/2010/092710_2.pdf

As an older lawyer who has worked with the case law pronouncements of our evidentiary rules, I do not fully understand why formal, codified Rules of Evidence must now be imposed. This is especially true given the fact that the Rules of Evidence, as stated in the Commentary accompanying the Rules indicates that these codified Rules for the most part merely restate the case law development of evidentiary rules. In any event, this is the statement  of the Supreme Court committee as to why these Rules were promulgated:

Currently, Illinois rules of evidence are dispersed throughout case law, statutes, and Illinois Supreme Court rules, requiring that they be researched and ascertained from a number of sources. Trial practice requires that the most frequently used rules of evidence be readily accessible, preferably in an authoritative form. The Committee believes that having all of the basic rules of evidence in one easily accessible, authoritative source will substantially increase the efficiency of the trial process as well as expedite the resolution of cases on trial for the benefit of the practicing bar, the judiciary, and the litigants involved. The Committee further believes that the codification and promulgation of the Illinois Rules of Evidence will serve to improve the trial process itself as well as the quality of justice in Illinois.

Truthfully, I don’t believe the presence of these Rules will significantly affect trial practice. Analogous to the adage, “the devil is in the details,”  trial court rulings on the admissibility of evidence will depend on how the appellate courts interpret the general statements of law found in these Rules of Evidence. To the extent that will be founded upon the pre-Rules of Evidence case law, I guess I won’t have to throw out my case law trial book which is 600 pages long in 10 point type and which I have maintained for the last 25 years — thank goodness.


Voir Dire: Lessons From the Blagojevich Trial (Let’s find some smart jurors)

June 10, 2010

 

The “Ward Room” blog posted an interesting item authored by Phil Rogers titled “Surprise: Some Jurors Don’t Know a Thing About Blago.” It can be found at: http://is.gd/cKwiY

The piece reviewed the voir dire process in the corruption trial of ex-Governor Rod Blagojevich. Among the interesting bits of information about the potential jurors for the case was the fact that several of them stated they knew NOTHING about the whole Blagojevich scandal.

Really? They knew nothing about Blagojevich’s impeachment? They knew nothing about Blagojevich being plastered across our TV screens for the past year or more?

OK, fine, let’s assume they are telling the truth and that they know nothing about the allegations against Blago. I suppose that inherently means they must be able to be fair to our ex-Governor during the trial.

I wonder though: Do we really want people who are completely ignorant of the world around them being jurors in one of the most celebrated political corruption trials in history?

I know we cannot and should not impose intelligence requirements on jurors. Nor can we require that prospective jurors read a certain number of newspaper per year. But it is absolutely amazing to me that we can live in a society in which we are constantly bombarded by information and still find people who choose to shield themselves from all of it.

Are people who claim utter ignorance of the world around them necessarily felt to be “good” jurors merely because they can say they have not prejudged the case? This is where I part ways with the philosophy of a good many judges who say that lawyers are only entitled to an extremely limited voir dire which serves the sole purpose of finding jurors who can be “fair” to all sides.

I believe the voir dire system should aspire to more than just finding people who are blank slates. It is important to have jurors who have a sense of curiosity; who are willing to absorb information; who will use their common sense to see the evidence for what it really is; who will be willing to challenge the ideas posited by the attorneys.

In sum, I want smart jurors. And, I don’t want to have my wrist slapped by a trial judge because I want to find out which magazines they read, or the types of websites they visit. Lawyers should be given the tools they need to find jurors who are sufficiently intellectually curious to allow people to have confidence that the justice system comes to the correct result.


Open-Ended Liability for Contractors/Engineers?

June 2, 2010

 NOTE: SEE POST OF JANUARY 21, 2111 FOR THE UPDATE ON THE SUPREME COURT’S RESOLUTION OF THIS ISSUE. THE SUPREME COURT REVERSED THE APPELLATE COURT’S HOLDING DISCUSSED BELOW.

A controversial appellate court decision which included an especially aggressive dissent (not to mention a modified opinion issued three months after the first opinion) has been accepted by the Illinois Supreme Court for further review. The case is Thompson v. Gordon, ___ Ill. App. 3d ___ (2d Dist. No. 2-07-0667 February 3, 2010). A copy of the decision as made available on the Illinois courts’ official website can be accessed here:
http://www.state.il.us/court/Opinions/AppellateCourt/2009/2ndDistrict/November/2070667.pdf 
This personal injury case came to the appellate court on a motion for summary judgment filed by a defendant construction engineer who asserted it was only required to implement the contractual plans and specifications. The plaintiff sued the engineer on a bridge replacement job for failing to include a median barrier in the rebuilt bridge lanes. Plaintiff alleged that if a median barrier had been provided, the decedents would not have gotten into the accident which killed them. The contract for the engineer did not ask it to add median barriers and the contract merely sought replacement of the original work. Plaintiff presented an engineering expert who testified that that the defendant engineer owed a duty beyond the terms of the contract to consider other safety issues. The trial court granted summary judgment to the defendant engineer by ruling the engineer owed no duty under the contract to do a complete redesign of the bridge, but rather only to replace it.

In November, 2009, the majority opinion from the appellate court reversed the summary judgment to the defendant finding there to be a question of fact as to whether the defendant owed a duty beyond the contract. The construction contract stated the engineer was to use “the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services” and requires the engineer “to act within the prescribed standard of care.” The court concluded that as a result of these contractual terms, the engineer “owed a duty to perform that contractual task using the degree of skill and diligence normally employed by professional engineers.” Accordingly, in determining whether the defendant engineer owed a duty to do a certain thing under the contract, the court must also consider evidence outside of the contract, such as an engineer’s expert affidavit indicating what was required under the professional standard of care (regardless of what was in the contract). Thus, the court concluded that the defendant engineer’s motion for summary judgment should have been denied as there was an issue of material fact as to the scope of the defendant engineer’s duty.

The court distinguished the Supreme Court’s decision in Ferentchak v. Village of Frankfort, 105 Ill. 2d 474 (1985), as a case which holds only that a defendant engineer will not be held responsible for obligations outside of the contract where that contract specifically indicated the engineer was not to be involved in the other work and it would not have been possible for the engineer to have done the other work. In this case, however, unlike the engineer in Ferentchak, the engineer defendant was “charged with designing precisely the object (the median barrier) that plaintiff claims was defective … and also unlike the engineer in Ferentchak, had full knowledge of all relevant aspects of the allegedly defective design.” The court also distinguished the doctrine of Hunt v. Blasius, 74 Ill. 2d 203 (1978) that an independent contractor or engineer owes no duty to a motorist to utilize his judgment in exercising reasonable care in the design, construction, and installation of roadway features when the State of Illinois’ specifications are not so obviously dangerous that no competent engineer would follow them. Here, the Court stated that the plaintiff’s engineering expert’s affidavit qualified for the exception to Hunt v. Blasius that an independent contractor cannot follow others’ designs when they are so obviously dangerous that no competent engineer would follow them because the affidavit said the defendant should have done something different under the professional standard of care.

The supplemental opinion filed by the court on February 3, 2010, denying the defendant’s motion for rehearing, included new emphasis by the majority opinion that its decision merely holds that summary judgment cannot be granted because there is a fact question as to whether the engineer had a duty which extended beyond the terms of the contract, as identified by plaintiff’s engineering expert.

This opinion had an aggressive dissent which indicates that the question of duty is a question of law to be decided by the court and is not subject to a fact issue. The dissent stated that, as a matter of law, the engineer defendant’s duty was only as provided in the written contract. It further noted that long established Illinois law concludes a party has no duty beyond the words of the contract and that the majority’s opinion improperly imposed such an extra-contractual duty.

The appellate court decision caused shock waves in some parts of the construction industry which feel the appellate court’s holding opens engineer’s and contractors to new liability not anticipated by the contract documents. Let’s hope the Illinois Supreme Court resolves the issues raised by this decision.