The opinion
JUSTICE COOK, specially concurring:
I concur with the majority opinion, except that in my view the trial court properly barred Dr. Kessel’s testimony for plaintiff’s failure to comply with Rule 220 and refused to consider that testimony on the motion for summary judgment.
Even before Rule 220 was adopted in 1984, a plaintiff who had been given sufficient time but had no expert could not prevent summary judgment by his unsupported assertion he might find an expert before trial. (Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 835-36 , 390 N.E.2d 53, 57 ; see Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 355 , 407 N.E.2d 1067, 1073 .) In Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294-99 , 529 N.E.2d 552, 555-57 , the supreme court considered an argument that Rule 220 added something to those cases, that summary judgment was proper where Rule 220(d) would bar plaintiff from introducing any expert testimony not already disclosed. The supreme court followed Stevenson, and granted summary judgment, but decided it was not necessary to consider the Rule 220 argument. The supreme court held that what was important was whether plaintiff had expert testimony available at the required time, the time the motion for summary judgment was heard, not whether Rule 220 would prevent plaintiff from obtaining an expert in the future. The Addison plaintiff had not attempted to present any evidence barred by Rule 220.
An issue the supreme court did not reach in Addison, whether the barring of testimony under Rule 220 should result in summary judgment, is presented in this case. Here the trial court entered various orders under Rule 220 requiring disclosure and discovery of expert witnesses. Plaintiff failed to comply with those orders, as respects Dr. Kessel, and the trial court accordingly struck Dr. Kessel’s affidavit. The record is unclear as to the sequence of discovery, but plaintiff does not dispute the trial court’s ruling that plaintiff failed to comply with Rule 220 as to Dr. Kessel. Plaintiff argues only, citing Brooks, that a failure to comply with Rule 220 is irrelevant on a summary judgment motion. If that is the holding of Brooks, I would not follow Brooks.
In Brooks, plaintiffs filed the affidavit of a Dr. Mervis in response to defendant’s motion for summary judgment. Discovery continued while the motion was pending, and eventually in answer to Rule 220 interrogatories plaintiffs indicated that no expert witness had been retained. Dr. Mervis was listed merely as a consultant, which prevented him from being called as a witness at trial or from being deposed by defendant. (134 Ill. 2d Rules 220(a)(2), (b)(2).) (It is not clear how a consulting witness can be shielded from discovery on one hand but allowed to file an affidavit on the other.) After a number of continuances, the trial court finally gave plaintiffs 90 days to find an expert who would testify at trial. When that had not been done over a year later the trial court granted the motion for summary judgment. The trial court did not bar Dr. Mervis’ affidavit, but ruled it was vague and conclusory. The appellate court reversed, finding the affidavit sufficient. The court further held that the Rule 191 requirement that a summary judgment affiant be someone who if sworn as a witness could testify competently had been met.
“Although Dr. Mervis was not a Rule 220 expert and was not to be called as a trial witness, a literal reading of Rule 191 requires that the affiant could testify competently, not that affiant will testify. If the supreme court had intended that Rule 191 affiants be disclosed as expert trial witnesses, it could have specifically provided for such.” (Emphasis in original.) (Brooks, 240 Ill. App. 3d at 524-25, 608 N.E.2d at 486.)
Finally the court noted that Dr. Mervis had not been barred from testifying and could have been added to supplemental answers to Rule 220 interrogatories since the case had not been set for trial and was not within 90 days of the trial date.
Taking the last point first, Brooks is contrary to Addison and Stevenson. “[W]e do not believe that the possibility of further disclosures of expert opinion, even though done in compliance with the Rule [(Rule 220)], will enable a party to avoid a summary judgment to which the movant is otherwise entitled at the time the motion is heard.” (Addison, 124 Ill. 2d at 296 , 529 N.E.2d at 556 .) The plaintiff in Brooks was required, at the time of the hearing on the motion for summary judgment, to have an expert who could testify at trial, and he did not.
Brooks appears to say that a witness who is not barred from testifying under Rule 220 can be a summary judgment affiant, and Dr. Mervis had not been barred from testifying under Rule 220. It would be wrong to say that only experts disclosed under Rule 220 can sign summary judgment affidavits. Some expert witnesses, such as treating physicians, need not be disclosed under Rule 220. (See Addison, 124 Ill. 2d at 295 , 529 N.E.2d at 556 .) Even where a witness has been barred from testifying as a Rule 220 sanction, changed circumstances may require the trial court to withdraw that sanction and reopen discovery. (Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 1029 , 522 N.E.2d 117, 121 .) However, where a witness who must be disclosed under Rule 220 has not been so disclosed, and the trial court has barred that witness from testifying, and the trial court’s sanction is an appropriate one, the affidavit of the witness should not be allowed to get the party past a motion for summary judgment.
The trial court properly refused to consider Dr. Kessel’s testimony when it ruled on the motion for summary judgment.