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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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.