concluding that proffered evidence was proper rebuttal and noting that “the present case is not one in which the plaintiff has purposely elected to save his best witness for rebuttal”
How later courts described this case
- concluding that proffered evidence was proper rebuttal and noting that “the present case is not one in which the plaintiff has purposely elected to save his best witness for rebuttal”
- holding that the Dead-Man’s Act does not provide an exception when the representative merely introduces notes of a conversation
Written by the judges who cited it.
The opinion
JUSTICE LUND, concurring in part and dissenting in part:
I disagree with the implication of the majority opinion that a standard-of-care expert who could have been called by plaintiff in the case in chief, except for late disclosure under Rule 220, can always testify as to the standard-of-care issue on rebuttal. The suggestion belittles the reasons for Rule 220. My esteemed colleague suggests Rule 220 plays no role in the assessment of the correctness of the trial court’s limitations of Dr. Schoene’s testimony on rebuttal. I believe otherwise.
Prior to trial, defendant’s motion for summary judgment placed plaintiff on notice that testimony of her expert as to standard of care, Dr. Fintel, would be attacked upon the theory that pulmonologists, not cardiologists, know the proper standard. Obviously, because of this warning, plaintiff obtained Dr. Schoene, a pulmonologist, for purposes of testifying as to the standard of care and backing up Dr. Fintel’s opinion. The trial court, based upon Rule 220, held disclosure of Schoene untimely and prohibited his use.
After defense experts, known to plaintiffs well before trial, presented testimony questioning Dr. Fintel’s ability to state the standard of care of a pulmonologist, Dr. Schoene was called as a rebuttal witness to contradict defense experts. As stated in the majority opinion, Schoene’s testimony was restricted. I find no fault with the restrictions.
The reasons for Rule 220 are set forth in an article published in the July 1986 Illinois Bar Journal. The article was authored by Judge Lester D. Foreman and attorney David B. Mueller, cochairman of the Illinois Supreme Court ad hoc committee on discovery. The article contained the following statement:
“At times, an expert’s late or surprise testimony was permitted, even if the opponent was prejudiced. At other times, opinions were barred, to the detriment of the proponent. Trials were delayed. Often the allowance or disallowance of the testimony resulted in reversible error necessitating retrial.
Supreme Court Rule 220 is an attempt to eliminate (or avoid to the greatest extent possible) the foregoing evils, while at the same time retaining the flexibility essential to the exercise of judicial discretion. In short, it gives the judge some guidance, while allowing trial counsel to rely upon its provisions as a means of eliminating the type of ‘surprise’ which previously frustrated the process of pretrial preparation and evaluation.” Foreman & Mueller, Timely Disclosure of Expert Witnesses—Analysis of Supreme Court Rule 220, 74 Ill. B.J. 540 , 540-41 (1986).
Attorney Charles Redden wrote an article published in the September 1992 Illinois Bar Journal, which contained the following statement:
“Where the courts recognize abuses, they rarely impose the sanction provided by Rule 220. As a result, even the diligent and well-prepared trial attorney seldom knows with any certainty who will be called as an expert or what he or she will say.
Rule 220 explicitly mandates the certainty that the courts of review refuse to provide. The simple and precise definition of an expert avoids numerous exceptions. Rule 220 details, under clear and mandatory guidelines, the timing of disclosure of experts and their opinions and demands complete and updated discovery responses so that, at trial, nothing new or inconsistent may be heard.” Redden, The Decline of Rule 220: The Rise of Trial by Ambush, 80 Ill. B.J. 440 , 441 (1992).
Prior to the adoption of Rule 220, it had long been generally accepted that where testimony which might properly have been introduced as proof in chief was offered in rebuttal, admissibility was discretionary with the trial court. (People v. Bell (1927), 328 Ill. 446, 451 , 159 N.E. 807 , 809; First National Bank v. Lake Erie & Western R.R. Co. (1898), 174 Ill. 36, 44-45 , 50 N.E. 1023 , 1026; City of Sandwich v. Dolan (1892), 141 Ill. 430, 441 , 31 N.E. 416, 419 ; see also People v. Crump (1955), 5 Ill. 2d 251, 265-66 , 125 N.E .2d 615, 623.) I see no reason to abandon this case law.
Rule 220 must be enforced so that nothing new or inconsistent pops up at trial to hamper the orderly pursuit of justice. Perhaps the policies underlying Rule 220 would have best been served by allowing Dr. Schoene to testify in plaintiff’s case in chief. On retrial, I see no reason why plaintiff could not then use the doctor in that part of her case. Defendants have, and will have, ample time to complete discovery relating to the doctor. The policy of Rule 220 will not be thwarted. However, I believe Rule 220 is best served by now affirming the decision of the trial court in limiting the examination of Dr. Schoene during rebuttal. Any other decision sends out a message suggesting it is possible to avoid Rule 220 disclosure by withholding an expert witness until rebuttal.