Wilson v. Chicago Transit Authority

JUSTICE MILLER,

also dissenting:

I do not believe that the plaintiff should have been allowed to take advantage of the physician’s testimony regarding his last-minute examination of the plaintiff. That examination was apparently conducted during a noon recess in the trial, and it provided counsel with previously unobtained — and therefore undisclosed — evidence of the permanency of the plaintiff’s injury. Accordingly, I dissent.

Even if it is assumed that Dr. Treister remained a treating or attending physician and therefore was not subject to Supreme Court Rule 220, which requires advance disclosure of the identities and opinions of expert witnesses (107 Ill. 2d R. 220; see Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 233-38), I do not believe that the doctor should have been permitted to testify about the opinion he formed from his mid-trial examination of the plaintiff. Contrary to the majority’s assertion, no amount of pretrial preparation by defense counsel could have prevented the surprise that occurred here.

It is not significant that the plaintiff’s attorney was equally surprised by Dr. Treister’s eleventh-hour examination of the plaintiff. Control over litigation must not be ceded to the witnesses, and we should not appear to condone the undeniable advantage resulting from the unusual events that unfolded here.

MORAN, C.J., joins in this dissent.