specially concurring:
In concluding that the trial court did not err in refusing to bar Dr. Fischer’s testimony pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), the majority ignores relevant facts and adopts an interpretation of the rule which renders it utterly ineffective. However, because Dr. Fischer’s testimony was cumulative and resulted in no prejudice to Inland, I agree with the majority that a new trial is not warranted.
A reading of the language of Rule 220, quoted by the majority, reveals that its disclosure requirement is clear and specific. The obvious import of the rule is that discovery be completed, at the very latest, 60 days before trial. Although, as the majority notes, the trial court may in its discretion impose sanctions other than disqualification, the fact that the rule explicitly states that failure to disclose “will result in disqualification of the expert as a witness” appears to indicate that the court’s discretion is “severely limited,” at least when faced with a clear and egregious violation of the rule. See Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224, 511 N.E.2d 974, 981.
The record in the case at bar reveals just such a clear and egregious violation of Rule 220. Kosinski had a medical report prepared by Dr. Fischer dated March 21, 1984. Approximately two years after the date on the report, on April 9, 1986, Kosinski’s counsel responded to Inland’s Rule 220 interrogatories by stating that “it is my present intention to have plaintiff evaluated by Dr. Donald Miller, an orthopod.” Apparently, Dr. Miller never evaluated Kosinski. On January 27, 1988, 13 days before the anticipated trial date, Kosinski provided Inland with the four-year-old medical report prepared by Dr. Fischer. Kosinski suggested that the discovery violation was inadvertent.
Instead of focusing on the egregious nature of Kosinski’s violation of Rule 220, the majority focuses its attention on Inland’s reaction to the violation, criticizing Inland for waiting too long to present a motion to exclude Dr. Fischer’s testimony and for failing to depose him in the short time remaining before trial. The prospect of such last-minute depositions was one of the evils sought to be remedied by Rule 220. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974.) In my view, the interpretation placed upon Rule 220 by the majority completely undermines its effectiveness as a tool for ensuring fair and adequate discovery. Under the facts presented in this case, I believe that the trial court abused its discretion in allowing Dr. Fischer to testify.