dissenting:
Whether or not plaintiff’s treating physician can be called an expert witness subject to our Rule 220 is not the significant point in this case. The real cause for concern is that the defendant has been “bushwhacked,” either by design or inadvertence.
The opinion of the court states: “This type of surprise, however, must be avoided by adequate trial preparation and not through reliance on the ‘protection’ of Supreme Court Rule 220.” Adequate trial preparation would not have prevented “this type of surprise.” The taking of Dr. Treister’s deposition would not have revealed any opinion as to the permanency of plaintiff’s injury that would be admissible at trial. According to Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, an opinion as to the permanency of an injury formulated long before trial is not admissible. Here, the pretrial discovery proceedings revealed that Dr. Treister had not treated or examined the plaintiff for more than three years before the trial. The trial court in this case initially held that Dr. Treister could not state his opinion as to the permanency of her injury. The defendant had no objection to the doctor’s testifying as to the cause of the plaintiff’s injury.
Plaintiff had disclosed no other expert witness who would give any opinion as to the permanency of the in-. jury. Under Henricks v. Nyberg, Inc., Dr. Treister would not be permitted to express an opinion as to the permenancy of the injury. Defendant had a right to rely on this state of affairs in preparing its defense. To deny the defendant the benefit of this reliance because the doctor saw the plaintiff, presumably somewhere in the courthouse the last day of trial, with no notice to the defendant that this so-called examination was going to take place or had been conducted, just is not playing by the rules.
Dr. Treister should not have been permitted to express his opinion as to the permanency of plaintiff’s injury. To permit this kind of circumvention of our rules of discovery and of evidence defeats the purposes of discovery. I would therefore reverse the judgments of the appellate court and the circuit court, and remand the case to the circuit court of Cook County for a new trial.
MORAN, C.J., and MILLER, J., join in this dissent.