In Re Marriage of Frey

JUSTICE CHAPMAN, concurring in part and dissenting in part: I cannot agree with the majority’s resolution of the Rule 220 issue. Respondent’s request to produce of September 4, 1990, requested that petitioner produce the names and addresses of all witnesses petitioner intended to use. Petitioner concedes that she did not provide respondent with the name of James Whitt in response to the request to produce. While there is no dispute that petitioner furnished respondent with a copy of Whitt’s appraisal at Whitt’s deposition, respondent was not given a copy of Whitt’s resume or advised that he would be called as an expert to testify at trial.

Because of petitioner’s failure to disclose Whitt as an expert prior to trial and to provide respondent with Whitt’s resume, respondent was prejudiced in his ability to cross-examine Whitt and to rebut his testimony through his own expert, Luke Allen. Respondent was not provided a copy of Whitt’s resume until the day of trial. The majority seems to imply that Whitt’s testimony was not prejudicial in that respondent was furnished with a copy of Whitt’s appraisal prior to trial. What the majority fails to point out is that James Whitt’s testimony was more than a simple explanation of his appraisal. In testifying, Whitt freely held himself out as more qualified and more capable of rendering a reliable appraisal than respondent’s expert. A review of the transcript and Whitt’s resume reveals that Whitt was more educated and, hence, seemingly more qualified than respondent’s expert, a fact that cannot be treated lightly. One need look no further than the majority opinion to learn that the trial judge determined that Whitt’s appraisal was more credible than Allen’s, a determination that resulted in an appraisal differential of $19,000.

I would reverse on the Rule 220 issues, and I, therefore, respectfully dissent.