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.


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.

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.

Bases for Jurors’ Verdicts

December 29, 2009

Two recently issued appellate court cases come down on different sides of the issue of how much leeway to give jurors in assessing the value of cases before them.

Case #1: Jury’s Verdict Upheld although no competent proof provided

The First District Appellate Court just issued one of those opinions which makes one scratch his head and wonder what lesson is to be learned. Among other significant issues, the appellate court in Diaz v. Legat Architects, Inc., ___ Ill. App. 3d ___ (1st dist. Nos. 1-08-3622 & 1-08-3635 Cons. December 14, 2009) was faced with a trial judge who entered a remittitur of a jury verdict by eliminating the award for future medical expenses. The trial judge ruled that the plaintiff had failed to present competent proof of the costs of future expenses after the court struck the testimony of a physician because he could not state with reasonable certainty what those expenses would be.

The appellate court agreed with the trial court that the testimony of the physician witness should be stricken as speculative. One would think that ends the matter, but the appellate court still ended up awarding the jury’s award for future medical expenses. As best I can tell, there is no good explanation for the appellate court’s decision in this regard. The appellate court merely noted the following: “Given that his past medical bills were $132,000 for the 6 years between his accident and the trial in this case and that his life expectancy was 21 years, an award of $201,000 for future medical expenses was supported by the evidence.”

It is difficult to understand how the jury’s award of future medical expenses could have been proper if the appellate court just held that there was no competent evidence (i.e., testimony of an expert physician) to support the claim for future medical expenses. In essence, the appellate court seems to be saying that because the plaintiff had past medical expenses and the doctors testified he would need future medical care, it is acceptable to let the jury guesstimate the amount of future expenses.

The opinion includes several other substantive holdings, each of which is independently important, but the issue relating to the proof of future medical expenses is disturbing. Jury verdicts must be based on competent proofs and if either party neglects to put in that evidence, then the jury can’t be permitted to just “eyeball” it.

Case #2: Jury’s Verdict stricken as based on prejudicial appeals to emotion

The First District issued a second important case on the same day as Case #1 in Pleasance v. City of Chicago, ___ Ill. App. 3d ___ (1st dist. No. 1-08-1510 December 14, 2009). This was a suit filed on behalf of a man who was killed following a wrongful shooting by a Chicago police officer. In a case against a governmental entity, the city cannot be held liable unless it was shown that the action was willful and wanton misconduct. Rather than fight on the issue of liability, however, the City admitted liability in order to proceed to trial solely on the evaluation of appropriate damages. The jury submitted a verdict of $12.5 million.

On appeal, the City argued that the jury’s verdict was the result of improper comments made by the plaintiff’s attorney which repeatedly referred to the extreme nature of the police officer’s conduct, in spite of a motion in limine preventing such comments. The trial court permitted too many of those comments in spite of objections by the defense. The plaintiff’s closing argument pleaded that it was the jury’s duty to defend the legal system from “abuse” and “injustice,” that it should send a message to the community regarding police conduct in general, that it needed to analyze how the police subverted our laws, and to consider the police officer’s conduct or state of mind. Plaintiff’s counsel even quoted Martin Luther King, Jr. By suggesting the jury needed to do justice to make up for the police department’s manner of conduct. Plaintiff’s counsel made several references to the officer’s conduct as willful and wanton.

The appellate court agreed with the defendant, reversing the judgment entered on the jury’s verdict and ordering a new trial. The appellate court strongly emphasized that verdicts cannot be the result of appeals to passion or emotion. It also noted that whether the police officer’s conduct was willful and wanton was irrelevant because the City had already admitted liability. Determining whether the officer acted willfully and wantonly could only properly serve to determine if the defendant should be held liable, which was already moot because of the admission of liability.

The appellate court quoted an elegantly stated passage from an earlier case as follows:

“The province of the jury is the resolution of factual issues in the narrow context of the case before them, not the rendering of moral or social judgments in the verdict form. The purpose of argument by counsel is to assist the jury fairly, deliberately and impartially to arrive at the truth of the facts submitted to them for their decision. It is error for counsel to indulge in assertions which appeal to the passions of the jury and have no bearing or relation to the case whatsoever.”

I know the attorney who represented the plaintiff in this case and I know him to be a truly excellent lawyer and a good person. I saw him on television soon after the opinion was issued and he complained that the appellate court was wrong in its holding and that the opinion does an injustice to those who have been harmed. Respectfully, I disagree, and this should not be a plaintiff vs. defendant issue. All of us should strive to have verdicts which are not the result of passion or emotion, and if an improper verdict is entered because of those emotions, it is properly voided. There is no doubt whatsoever that the plaintiff attempted to appeal to those emotions by making reference to things which were not in evidence and were irrelevant to the decision making process.

In my opinion, the judges who decided Case #1 have a different perspective than those who decided Case #2. The second case is founded upon the concept that jurors shall reach conclusions based only upon relevant, competent proof. The first case assumes that even when there is a failure of proof, the court must step in to protect the injured party to allow the jury to decide on a non-evidentiary basis.

One of my mentors told me early in my career that whatever is relevant to the case must be allowed to see the light of day. He told me that if that evidence is harmful to my client, “let the chips fall where they may” but at least the justice system must be protected. In order to promote understanding and respect for our legal system, we must insist that “competent evidence” rule the day — let the chips fall where they may.