dissenting:
I respectfully dissent from the majority’s conclusion that the trial court erred in excluding testimony of plaintiff’s expert in this case. In my opinion, the majority decision represents an unwarranted departure from established authority concerning Supreme Court Rule 220. The trial court’s ruling, proper and indeed mandated by Rule 220, should be upheld.
In this case, Dr. Gilíes had been deposed pursuant to Rule 220. In preparation for his deposition, he had reviewed the X rays taken at the hospital as well as the relevant X rays taken by Dr. Feinberg. Yet, like Dr. Feinberg, he had not seen a fracture of the fibula. In his deposition, his expert opinion was that the spiral fracture of the tibia indicated the possibility of rotation; he gave no opinion that referred to or relied upon a fracture of the fibula. He testified at trial that he had received and reviewed the X rays before his deposition, that he understood his role was to comment about the care rendered, and that he had carefully reviewed the provided materials so as not to reach any incorrect conclusions.
During the discussion concerning the admissibility of Dr. Gilíes’ proposed new opinion, defendant stressed that at his deposition Dr. Gilíes had “based all of his opinions on the theory there was no fracture in the fíbula” and that defendant was surprised and would be prejudiced by the new evidence. Indeed, the record corroborates this argument because defendant’s theory of defense, from opening statement onward, was that plaintiff suffered no injury other than the fractured tibia and that this injury alone would not have caused the rotation plaintiff alleged. Thus, had Dr. Gilíes been allowed to testify at trial concerning a fracture of the fibula, such testimony unquestionably would have been, to use the words of Rule 220(d), “direct testimony at trial,” both “inconsistent with” and “beyond the fair scope of the facts known or opinions disclosed” in his deposition.
In reaching its conclusion that the trial court abused its discretion in applying Rule 220 to exclude Dr. Gilíes’ shift in theory, the majority refers to standards applicable to violations of discovery orders under supreme court rules other than Rule 220. This case, however, is governed by a specific supreme court rule that spells out a specific requirement:
“[The expert’s] direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings.” (134 Ill. 2d R. 220(d).)
As applied to this case, the mandate of Rule 220(d) is unambiguous: the expert’s direct testimony may not contradict or go beyond factual information that was available at the time of his deposition. The majority’s conclusion that the trial court abused its discretion, when in fact it did only what Rule 220(d) requires, is indefensible. That conclusion is not made acceptable by the majority’s insistence that its holding is based on the fact that the evidence of the fractured fibula was first presented by an occurrence witness.2
The majority places great significance in the fact that plaintiff’s occurrence witness/treating physician presented “newly discovered evidence.” The underpinning of its holding is expressed in its assertion that “[p]laintiff did not know of his need for expert testimony on this matter until trial” (231 Ill. App. 3d at 965), but that statement is simply unwarranted by the record in this case. Indeed, plaintiff understood fully his need for expert testimony: plaintiff understood before trial that a primary issue in this case was whether only the tibia injury could have led to rotation, and plaintiff’s expert offered an opinion about X rays during his deposition different from the opinion he desired to give at trial. This case does not present facts similar to those found in Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729, relied upon by the majority. In that case, notwithstanding the court’s order barring all experts, the plaintiff succeeded in having a document examiner give testimony concerning suspicious documents produced for the first time at trial, despite prior discovery requests for their production.
Every case construing Rule 220(d) reaches a conclusion exactly opposite that reached by the majority here. The language of one of those cases, Baird v. Adeli (1991), 214 Ill. App. 3d 47, 573 N.E.2d 279, is quoted extensively by the majority, but the import of the quoted language and the conclusion reached in that case — upholding the barring of an expert from testifying inconsistent with his deposition testimony — are ignored. Another case cited by the majority, Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974, is given short shrift, perhaps because it reached a conclusion totally contrary to the majority’s and stresses the severe limitation placed on the trial court’s discretion by Rule 220. Although the majority expresses its “agree[ment] with the standard for review of sanctions imposed under Rule 220 stated in Caruso [v. Pine Manor Nursing Center (1989), 182 Ill. App. 3d 879, 538 N.E.2d 722]” (231 Ill. App. 3d at 963), it fails to relate that in Caruso, the court held simply that the trial court abused its discretion in barring the defense expert’s entire testimony because he testified beyond the scope of the basis of one of his opinions. The standard endorsed by the majority here does not support the conclusion it reaches; on the contrary, proper application of that standard (sanction must be proportionate to the gravity of the discovery violation) would lead to the same result reached by the trial court in this case.
In addition to Baird v. Adeli and Phelps v. O’Malley, many cases uphold exclusion of expert testimony for being inconsistent with or going beyond the scope of the facts known or opinions disclosed during discovery. (See, e.g., Chicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial Park, Inc. (1992), 225 Ill. App. 3d 653, 658, 588 N.E.2d 337 (“Rule 220 is not advisory and it must be followed”); Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492; Karr v. Noel (1991), 212 Ill. App. 3d 575, 571 N.E.2d 271; Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770; Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292; Friedland v. Allis Chalmers Co. of Canada (1987), 159 Ill. App. 3d 1, 511 N.E.2d 1199.) The majority has not cited, nor am I aware of, any case that justifies the result reached here. Indeed, this result is inconsistent with the goal of Rule 220, that is, to afford timely disclosure of expert witnesses and their testimony, so as to allow adversaries adequate opportunity to investigate the credentials of proposed expert witnesses and to review the substance of their opinions with their own experts in order to prepare their own theory of the case and to properly prepare for cross-examination. See McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 911, 511 N.E.2d 912, 918.
The majority’s suggested cure for what occurred in this case is perplexing. In addition to its determination that the trial court should have ignored the mandate of Rule 220(d), the majority suggests alternatively that “the trial court could have disallowed both parties’ experts from commenting on the evidence.” (231 Ill. App. 3d at 966.) Apparently, the majority feels that permitting Dr. Feinberg’s testimony about the fractured fibula to be unrebutted somehow satisfies the trial court’s “duty of ‘insuring a fair trial for all litigants.’ ” Rather than insuring fairness, disallowance of the defense expert’s testimony would have gutted the defense case while rewarding plaintiff for the previously undisclosed evidence of his occurrence witness/ treating physician.
The majority emphasizes that plaintiff did not seek to circumvent the discovery rules and acted in good faith. Nonetheless, the provisions of Rule 220 that require the exclusion of evidence when an expert changes his theory are not triggered solely by deliberate efforts to circumvent the rule or by bad-faith conduct. Although those considerations are significant, their absence does not preclude application of Rule 220 sanctions. Moreover, it is difficult to understand the statement by the majority that “[t]he expert did not change his basic opinion or beliefs.” (231 Ill. App. 3d at 964.) That statement provides a new and inappropriate rule of application for alleged Rule 220 violations: if an expert’s opinion or beliefs are unchanged, that expert may add to or subtract from the facts or data that form the basis of the opinion or beliefs. Neither the plain language of Rule 220 nor its case law interpretation justifies such a rule.
At the conclusion of its opinion, the majority asserts that although it does not decide whether the trial court’s refusal to allow Dr. Feinberg to testify in rebuttal constituted reversible error, it expresses “an opinion on this issue only because it may arise at the new trial.” (231 Ill. App. 3d at 968.) The implication, however, that the trial court’s ruling was erroneous must be addressed. No one can quarrel with the majority’s statement that rebuttal evidence concerning the model’s legitimacy should be allowed so long as there is a proper foundation for such evidence. Here, although the majority states that “Dr. Feinberg was prepared to testify on rebuttal that the model did not accurately represent the structures involved” (231 Ill. App. 3d at 968), there is no basis in the record before us to conclude that he would have so testified or that he was justified in so doing. The record in this case contains absolutely no foundation for justifying rebuttal evidence.
Plaintiff’s opening and reply briefs demonstrate his awareness that he did not preserve this issue for appeal. In his briefs, plaintiff contends only that he should have been allowed to have Dr. Feinberg use the X rays to show the derotation by drawing a line along the edges of the fracture that he created during his osteotomy. He does not argue that he should have been allowed to rebut defendant’s use of the model. It was not until oral argument before this court that plaintiff first contended that the trial court erred in not allowing rebuttal testimony concerning the model, a contention that he has waived for raising it so late, and one that has no validity for reasons that follow.
Although the record reflects that plaintiff objected to defendant’s use of the skeletal model as misleading and even did so in the presence of the jury, providing the grounds for his objection in the jury’s presence, the record also reflects that plaintiff asked Dr. Hall not one question that would have provided a sufficient foundation for rebuttal testimony. This failure to cross-examine concerning the alleged deficiencies in the model occurred despite the court’s suggestion to plaintiff that his cross-examination could deflect any misleading aspect of the exhibit. Had plaintiff asked Dr. Hall about the alleged shortcomings of the model, he might have developed fully the points he considered significant. In any event, because no foundation questions were propounded to Dr. Hall, there was nothing for plaintiff to rebut. Under these circumstances, the trial court’s ruling was correct.
Further, the record shows plaintiff made a formal offer of proof concerning what Dr. Feinberg would testify to in “rebuttal.” That offer of proof contained not one word addressing the propriety of the model. The trial court properly ruled that the proposed testimony was not rebuttal, but merely a reiteration of the testimony already offered by plaintiff. In short, there is no basis for concluding that the trial court prevented plaintiff from presenting admissible rebuttal evidence.
For the foregoing reasons, I would affirm the judgment of the trial court.
The person so emphatically identified by the majority as an “occurrence witness” (an identification he deservedly receives, pursuant to case law interpretation of Rule 220, because of his role as a treating physician) was Dr. Irwin Feinberg, who performed a surgical procedure that involved cutting through the upper third of both the tibia and the fibula to realign plaintiff’s bones so that the perceived rotation might be corrected. Dr. Feinberg examined the hospital’s and his own X rays and performed the surgical procedure without observing the fracture of the fibula. He first observed what he opined to be a fracture of the fibula when he was shown an X ray during his testimony at trial.