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.

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:


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.

Blago Trial Winners and Losers

July 26, 2010


John Kass wrote an interesting piece in the Chicago Tribune regarding the “winners” and “losers” of the Blagojevich trial even before the verdict is rendered. Here is a link to his article:


To me, the one big “loser” in all of this is the citizenry of Illinois. The jury will decide whether Blago’s actions were criminal or just good ole’ politics. Regardless of the verdict, however, all of the State’s other politicians are breathing easier because this trial is desensitizing Illinoisans to the fact that politicians’ actions are “OK” even if they are not in the State’s best interests. At best, and the conclusion which Blago’s lawyers want reached, the evidence shows that all of the State’s politicians are willing to compromise, trade and negotiate on their positions if they are given enough to do it.

It is extremely difficult to get good legislation passed in Springfield, regardless of which party is in power, unless the legislators get something for it. They don’t necessarily demand money, but they certainly look for support in other ways.

Why can’t we get Illinois policy action just for the sole reason that it is good for the State? Blago wants us to believe that getting something in exchange for something else is nothing worse than the way things are done in Illinois. The sad truth is he’s correct and it has nothing to do with political party labels; that’s just the way it is.

Blago’s verdict will come soon enough but even before this trial started, all of us were the big losers.

When Negligence Becomes Manslaughter

July 22, 2010


I’ve been following the New York criminal trial of a crane master rigger. He was charged with seven counts of manslaughter after a crane which he “jumped” had collapsed, causing the deaths of several workers. Today, the judge entered not guilty verdicts in favor of the rigger on all seven counts. I’m sure that is one relieved construction worker who never thought he could end up in a criminal courtroom for his acts on a construction site. Here is a copy of the first report of the verdict from New York Construction.com:  http://is.gd/dConm
I have grave concerns about any time when someone is criminally charged with an offense after some type of accident. This crane rigger, for example, appeared to have gotten swept up in a political issue of crane safety in New York City which might have played some role in having him criminally charged for his actions. New York has been the site of several crane collapses in recent years, each of which has caused an uproar about safety. These incidents have drawn a great deal of attention on the City’s inspection procedures. When that type of focus is aimed at a governmental unit, the result can be politically based decisions to criminally prosecute in order to draw away the fire from the government.
I’ve experienced other situations in which there a civil suit has been filed or was about to be filed but in which there have also been pending criminal prosecutions. Much of the time, this occurs following a serious motor vehicle accident so it is almost a routine action. Nevertheless, there is sometimes much pressure brought to bear on the prosecutors by the victim’s civil attorney to obtain a conviction. If it is minor traffic offense, then a finding of guilty after the defendant pleaded not guilty will not be admissible as evidence in a later civil suit. The law on that issue is as follows:
It is the general rule in Illinois that a plea of guilty to a traffic citation is admissible at a subsequent civil proceeding as evidence of the defendant’s admission to guilt of the underlying incident, but that a conviction for the same offense following a not guilty plea cannot be considered evidence in the later civil proceeding. Thurmond v. Monroe, 159 Ill.2d 240, 636 N.E.2d 544, 201 Ill.Dec. 112 (1994); Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988); Hengles v. Gilski, 127 Ill. App. 3d 894, 469 N.E.2d 708 (1984), relying on Smith v. Andrews, 54 Ill.App.2d 51, 62, 203 N.E.2d 160, 166 (1965); Hartigan v. Robertson, 87 Ill. App. 3d 732, 738, 409 N.E.2d 366, 371 (1980). The guilty plea is treated differently than a conviction following a not guilty plea because the plea of guilty is taken as a judicial admission made by the defendant. Spircoff v. Stranski, 301 Ill.App.3d 10, 703 N.E.2d 431, 234 Ill.Dec. 570 (1st Dist. 1998).
In a few of the situations I’ve seen where a plaintiff’s lawyer is putting pressure on a prosecutor, that pressure is directed to seeking a guilty plea (so it can be used as evidence in the civil suit) rather than on obtaining a conviction to see that “justice is done.” I can’t blame the plaintiff attorneys for this as it is attempting to obtain the best position for their clients in the civil case.
The real problem is the role of prosecutors in attempting to assuage public or political outcry by carrying out prosecutorial discretion in a manner which deviates from the normal exercise of discretion.
I cannot make a definitive statement about the motivations of the New York prosecutors in pressing criminal charges against a construction worker. All I know is that when the political system gets involved in attempting to find “justice” following accidents, we should all be careful.


Jackson v. Reid: Party Experts and Bases For Their Opinions

June 1, 2010

A new opinion out of the third district appellate court clarifies some evidentiary and witness rules at trial. The decision is Jackson v. Reid, ___ Ill. App. 3d ___ (3d Dist. No. 3–09–0512 May 24, 2010). It can be found on the Illinois courts’ official website at http://www.state.il.us/court/Opinions/AppellateCourt/2010/3rdDistrict/May/3090512.pdf

The case holds as follows:

(1) A party who is also disclosed as an expert under 213(f)(3) must disclose his/her research and publications reviewed, regardless of whether the material is solely relied upon by the witness in support of his/her opinions. Further, the opposing party has the right to fully cross-examine the party-witness on those results. The court makes clear that research done by a party-expert (whether to educate the party’s attorney or for the party’s own opinions) is not protected by attorney-client or work product privileges.

(2) A chart prepared by the author of an article which merely summarizes certain professional guidelines but does not state them precisely (word for word) cannot be admitted as an independent evidentiary exhibit as it does not represent the actual guidelines or industry standards authorized and issued by the professional society. In “Illinois, scientific and medical treatises are hearsay and are inadmissible as proof of the statements contained therein.”

(3) One cannot admit medical records as business records unless there is a witness who can testify that he/she is familiar with the doctor’s record-keeping practices, the records were made in the regular course of business, and it was the regular course of the business to make such records (per Supreme Court Rule 236).