dissenting:
Former Supreme Court Rule 220(c)(4), effective until January 1, 1996, specifically provided that defendants such as the defendant in this case did not have to disclose themselves as expert witnesses. Does Rule 213(g) change the “party exception” of former Rule 220(c)(4)? Rule 213(g) does not say that it does so. The majority concludes that Rule 213(g) changes the party exception because “the whole point of replacing Rule 220 with the amendments to Rule 213 and Rule 218 was to rid Illinois law of the myriad of exceptions under the old rule.” 304 Ill. App. 3d at 379. It is an unusual rule of construction that a new rule, which is silent on an issue, should be read one way because the old rule provided the other way. The majority reads Rule 213(g) not as it is written but as the majority would have written it. Rule 213(g) is not a comprehensive solution designed to replace Rule 220 and to answer every question that might arise regarding opinion witnesses. Instead, the supreme court simply deleted Rule 220, with the option to make future adjustments as the law develops. The more important rule is Rule 218, providing for case management conferences, which gives the circuit court discretion to discuss the disclosure of expert witnesses with the parties and to enter orders controlling the subsequent course of the action. 166 Ill. 2d R. 218.
Rule 213(g) first defines “opinion witness” as “a person who will offer any opinion testimony.” 166 Ill. 2d R. 213(g). Rule 213(g) then provides that upon written interrogatory the party must give the opinion witness’ (1) subject matter, (2) conclusions and opinions, (3) bases therefor, (4) qualifications, and (5) reports. 166 Ill. 2d R. 213(g). It is clear that Rule 213(g) does away with the former distinction between retained and nonretained experts. It appears that Rule 213(g) does away with any distinction between lay opinions and expert opinions (“conclusions and opinions”). It is not clear that Rule 213(g) expresses a desire to treat a party the same as any other opinion witness. Rule 213(g) does not say that an opinion witness is “any” person who will offer opinion testimony.
There are problems with applying the opinion witness rules to parties. When defendant calls plaintiff as an adverse witness at trial (735 ILCS 5/2 —1102 (West 1996)), plaintiff may now object that the questioning asks for opinion testimony (e.g., “how fast was your car "going?,” “were you intoxicated?”) and that defendant did not disclose what plaintiffs conclusions and opinions would be, or what plaintiff based them on. The same is true when plaintiff calls defendant as an adverse witness. There are special problems in malpractice cases. A defendant may be prevented from testifying in his own medical malpractice case unless he has voluntarily, without any specific questioning by plaintiff, told plaintiff everything plaintiff later decides might be useful. Under the majority’s rule, the doctor in the present case is prohibited from testifying on the central issues of this case. The doctor may not testify that he acted properly or that he was not negligent. Should we now strike the doctor’s answer to the complaint, in which he made those same denials?
The majority has adopted an absolute rule for compliance with Rule 213(g), which admits of no exceptions and allows no discretion to the trial court. See Crull, 294 Ill. App. 3d at 539, 690 N.E.2d at 148 (“Trial courts should be more reluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties to deviate from the strict disclosure requirements, or (2) not to impose severe sanctions when such deviations occur”). The majority’s zero-tolerance policy is unrealistic. The purpose of discovery sanctions is not to punish but, rather, to insure a fair discovery and a trial on the merits. Each case presents a unique factual situation that is to be considered in determining whether a sanction is to be imposed. Sobczak v. Flaska, 302 Ill. App. 3d 916, 926 (1998); see also Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123, 692 N.E.2d 286, 291 (1998). Trial courts should be encouraged to think about these complicated matters, not penalized when they depart from what the majority sees as an absolute rule.
There is a problem with enforcing strict compliance in this case. Plaintiff did not file Rule 213(g) interrogatories. Plaintiff would respond that he did not have to, that there was a case management conference at which the disclosure of opinion witnesses was discussed, and the answers were filed in response to the order entered at that case management conference. I agree with that argument, but the argument is inconsistent with the majority’s strict compliance approach. Plaintiff’s interrogatories may be excused, but so may be defendant’s answers, when that information is otherwise made available to plaintiff. The circuit court should have discretion in these cases how disclosure may be accomplished and what disclosure is sufficient.
There are dangers with a rule that permits no deviation from what are held to be strict disclosure requirements and requires severe sanctions when such deviations occur. It is dangerous to always rule against the party making discovery. When the court takes such a one-sided position, some litigants will be more interested in imposing sanctions on their opponent than in obtaining disclosure from him. Plaintiff here knew in advance what defendant’s testimony would be, but waited until the last possible moment to bring the issue to the attention of the trial court. Why didn’t plaintiff raise this issue at the case management conference? Plaintiff knew at that time that defendant would be offering opinion testimony. The answer is that plaintiff did not want more information about defendant’s opinion testimony. Plaintiff wanted to keep defendant from giving any opinion testimony.
A litigant will have no knowledge of the identity of, or the opinions of, an opposing retained expert witness, but a litigant will know who the opposing party is and can and should take the opposing party’s deposition. The information listed in Rule 213(g) is designed to allow the opponent to take a thorough deposition of an opinion witness. The deposition, where the opinion witness is subjected to cross-examination, is the great legal engine of truth. What sense does it make, when the opponent has acquired the information covered by Rule 213(g), and has been able to take the deposition of the opinion witness, to prevent the opinion witness from testifying because Rule 213(g) answers to interrogatories were not filed? Why, when we have subjected the opinion to deposition cross-examination, should we go backward and then require the listing of the opinion in an answer to a Rule 213(g) interrogatory? Rule 213(i) indicates that we do not have to go backward:
“If a deposition of an opinion witness is taken, the witness’ testimony at trial will be limited to the opinion expressed therein, in addition to those opinions identified in answers to Rule 213(g) interrogatories.
The opinions expressed in a deposition need not be later specifically identified in Rule 213(g) answers but, upon objection at trial, the burden is on the proponent of the witness to prove the opinions were provided in deposition or Rule 213(g) interrogatory.” 177 Ill. 2d R. 213(i).
The majority states that, even if the testimony at trial was limited to the opinion expressed in the deposition, a violation of Rule 213(g) nevertheless occurred, and the testimony was improperly admitted. The majority indicates this is somehow true because of Rule 213(f), which requires an answer disclosing the witnesses who will testify at trial and the subject of their testimony. I assume Rule 213(f) was complied with for Dr. Katholi. It is unusual to take the deposition of an opinion witness who has not been identified in Rule 213(g) answers, but if such a deposition is taken, Rule 213(i) indicates there is no duty to amend the answers to state the opinions given.
Plaintiff argues that such an interpretation of Rule 213(i) will “put the plaintiffs attorney in the impossible position of having to decide whether relevant questions to be asked during a discovery deposition should not be asked because they may allow the deponent to give opinions at trial even though he or she was not previously identified as an opinion witness.” Plaintiffs argument reflects a fundamental misunderstanding of the discovery process. The discovery process is designed to give a litigant the opportunity to discover whatever information may be relevant to his case. The discovery process is not designed to give litigants technical arguments by which they can keep evidence from being admitted at trial, when they were in fact afforded a fair opportunity to discover that evidence.
There is more to the waiver argument in this case than whether plaintiffs motion is labeled a motion in limine or a motion in bar. During the argument on plaintiffs motion, the trial court asked plaintiffs attorney, “Which statute [(rule)] are we under?” and plaintiffs attorney responded, “I want to say 220 but I’m not sure.” The trial court then read Rule 220(c) to the parties, and the language that the opinion of a party could be the subject of disclosure by deposition only. Plaintiffs attorney did not object that some other analysis should be applied. The court asked whether the doctor’s deposition had been taken and whether he had testified to his opinions in his deposition. (The deposition had been taken under Rule 220, which required plaintiff to inquire at the deposition regarding defendant’s opinions.) Defendant’s attorney responded in the affirmative. The court inquired further: “And you’re telling me, Mr. Velde, that paragraphs 2 and 4, opinions regarding the cause of Mr. McMath’s death and the possible causes of chest pain on February 27th, have been inquired into in the deposition, isn’t that correct?” Defendant’s attorney again responded in the affirmative. Plaintiffs attorney then responded: “Your honor, I will — I think we’ll stipulate he was asked questions about those two issues.” The trial court immediately ruled that the doctor could testify to those issues.
Plaintiff waived the issue on which the majority now reverses first by encouraging the trial court to rule under Rule 220, and then by stipulating that the opinions were provided in deposition, which would make them admissible under Rule 213(i) as well. The majority states, “we have no difficulty concluding that Katholi’s testimony at trial was substantially different than his deposition testimony.” 304 Ill. App. 3d at 381. That decision, however is for the trial court, not for us. (Plaintiff also never objected in the trial court that Katholi’s testimony at trial was substantially different from his deposition testimony.) Plaintiff waived this issue in the trial court, and in any event the trial court’s decision that the opinions were provided in deposition was not an abuse of discretion, unless you accept the majority’s argument that the trial court had no discretion.
I would affirm the decision of the trial court.