dissenting:
This case involves a shooting in a parking lot. Plaintiff sued defendant claiming negligence for failure to provide security guards on the premises. At trial, a single issue required resolution: whether security guards were necessary. This was not complex litigation; there was not much that the plaintiff’s attorney had to anticipate. If nothing more, any reasonable attorney would expect two things from defendant at trial: that it would try to refute the claim that security guards were necessary, and that it would call the witnesses it disclosed pursuant to Rule 201 to help it refute that claim. Defendant did so in this case, and little more. The jury returned a verdict in favor of defendant.
Yet today the majority reverses the verdict, giving credence to plaintiff’s allegation of surprise. This surprise stems from defendant’s calling the officer who investigated the shooting to help support its defense that security guards were not necessary. Never mind that his identity was disclosed, albeit under a different rule than plaintiff would have liked; never mind that the officer was available to both sides prior to trial for discovery; never mind that any attorney worth his salt would have anticipated that defendant would call the officer who investigated the shooting and would dispute the claim that security guards were necessary. In an opinion that abandons all reason in order to give the plaintiff a second bite at the apple against a corporate defendant, the majority overturns a perfectly sound jury verdict. I dissent.
Today’s opinion can be bifurcated. The majority first analyzes the requirements of Rule 220, and does an adequate job of doing so. However, its application of the rule to the facts of this case is shockingly off the mark. Although I have no quarrel with the majority’s abstract discussion of Rule 220, I dissent because the majority egregiously misapplies the law to the facts.
At issue is the scope of Rule 220. As the majority notes, this court addressed the scope of this rule in Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226. In that case, a treating physician was called upon to give an opinion despite the fact that he had not been disclosed as an expert witness. After a jury verdict for the plaintiff, the defendants appealed, claiming inter alia that disclosure was required.
This court rejected the defendants’ claim. While the court agreed that the definition of an expert witness in Rule 220(a)(1) would include a treating physician, it ruled that the mandate for disclosure in sections (b) and (c) of the rule is more limited. These sections indicate that not all experts are required to be disclosed as experts.
To determine which experts were excluded from compelled disclosure, the opinion gave great weight to whether the expert was retained for the purpose of rendering an opinion at trial. The word “retained” was taken straight from Rules 220(b) and (c); (b) requires disclosure of “the identity of an expert who is retained to render an opinion at trial,” and (c) requires “the party retaining or employing an expert witness” to comply with discovery rules concerning experts. This court ruled that a retained expert referred to those witnesses engaged for the purpose of giving litigation-related testimony, rather than transaction-related testimony. Tzystuck, 124 Ill. 2d at 234.
Applying this principle to the facts in Tzystuck, this court concluded that disclosure of treating physicians as experts was not required by Rule 220, since these physicians would be giving transaction-related testimony. In support of this conclusion, the opinion noted the history of Federal Rule of Civil Procedure 26(bX4), after which Rule 220 was modeled. The committee notes to that rule cautioned that “the rule does not apply to ‘the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert witness should be treated as an ordinary witness.’ ” Tzystuck, 124 Ill. 2d at 235, quoting Fed. R. Civ. P. 26(b)(4), Advisory Committee Notes (1970 amendment).
Applying the rationale used in Tzystuck to the instant case, the majority here reiterates the same three themes as in Tzystuck. First, it states that the possibility of surprise is important. Since “the defendants in Tzystuck could not reasonably be surprised *** disclosure under Rule 220 was unnecessary.” (154 Ill. 2d at 548.) Therefore, a witness that an opposing party should reasonably expect to be called will probably not fall within the disclosure compelled by Rule 220.
Second, the majority cites the greater control over retained experts versus nonretained experts. This was an important factor in Tzystuck; the conclusion that the treating physicians were not required to be disclosed was:
“logical in light of discovery obligations which Rule 220(c) imposes upon parties. Subsection (c) obligates the party ‘retaining or employing’ an expert witness to respond to interrogatories regarding the subject matter of the expert’s testimony, the expert’s conclusions, opinions and the bases thereof, and the expert’s qualifications. [Citation.] The party retaining the expert must also continuously keep "in touch with the witness in regard to his opinion and advise opposing parties of any changes in the opinion by seasonably supplementing answers to interrogatories propounded under the rule. [Citation.] An expert who refuses or fails to satisfy the discovery obligations of Rule 220(c) is disqualified as a witness. [Citation.]
Rule 220(c) not unreasonably presumes that a litigant who retains an expert witness has control of that witness and will have the expert’s cooperation in answering and supplementing interrogatories of opposing parties.” (Tzystuck, 124 Ill. 2d at 237.)
Thus, if a party has little or no control over a witness, disclosure of the witness’ identity will probably not be required under Rule 220, due to the difficulty of fulfilling the rule’s other requirements concerning expert witnesses.
Finally, the majority rules that ultimately a witness’ intimacy with the case is the determinative factor concerning the disclosure requirement; the more closely the witness is tied to the case, the less likely he is required to be disclosed as an expert. This is because a higher degree of intimacy will give fair warning to the opposing party of the likelihood that the witness will be called, even without disclosure under Rule 220.
I agree that these three points are salient. Contrary to the majority, however, these points lead me to the conclusion that defendant did not have to disclose Officer Lahlien as an expert. First, plaintiff should not have been surprised by his testimony; as in Tzystuck, his name was disclosed as an occurrence witness pursuant to Rule 201. Similar to the rationale in Tzystuck that “[t]here is no reason why a defendant should be surprised by the medical testimony of a treating physician at trial [since although] treating physicians are not experts within the meaning of Rule 220, their identity is discoverable under Supreme Court Rule 201(b)(1)” (Tzystuck, 124 Ill. 2d at 238), disclosure of Lahlien’s name under Rule 201 should have adequately notified plaintiff of his possible testimony.
Second, Lahlien was not retained by the defendant. Rather, he was the officer that investigated the shooting. This court ruled in Tzystuck that since a party generally does not have control over treating physicians, disclosure is not required by Rule 220. A party inarguably has even less control over a testifying police officer, who has never been compensated by the party and has no professional relationship with the party whatsoever.
Further, the rationale used in Tzystuck compels the result that defendant’s lack of control over Lahlien in the instant case exempted Lahlien from Rule 220 disclosure. It is difficult to imagine defendant successfully keeping plaintiff apprised of any changes in Lahlien’s opinions, as required by the rule. Further, there was little incentive to compel Lahlien to adequately answer the multiple interrogatories that plaintiff could have put to him. Disqualification is the price imposed upon a party when an unpaid occurrence witness who falls within the majority’s unfortunate expansion of the term “expert” fails to give a case the same attention as a paid expert. That is a high price to pay, and a huge reward to opponents who can easily disqualify such witnesses simply by treating them as experts. Since defendant had to take the investigating officer as it found him, and therefore lacked the control that was so important in Tzystuck, the officer should not be deemed an expert under Rule 220.
Finally, Lahlien was intimately involved in the case, as he was the investigating officer of the crime. His opinion regarding the need for security guards at the scene of the crime fell within that involvement, and he was not required to disregard the knowledge he derived from his experience as a policeman, including the relative safety of the crime scene (which he learned from an index card system at the police station). The majority concludes that intimacy is the dispositive factor for determining whether Rule 220 compels disclosure. Due to Lahlien’s very close relationship with the instant case, I suggest as inevitable the conclusion that disclosure of his identity was not required.
For the above reasons, I dissent from the majority’s conclusion that Rule 220 required defendant to disclose Officer Lahlien as an expert witness. I would reverse the appellate court and reinstate the jury finding in favor of defendant.