APPEALS COURT SUGGESTS ALTERNATIVE FOR REMEDYING RULE 213 VIOLATIONS

MEDICAL NEWS & INFORMATION

January 23, 2004
Steve P. Garmisa, AttorneySteven P. Garmisa, Attorney
Hoey & Farina, P.C.
1-888-425-1212
info@hoeyfarina.com

At trial, when gushing experts spout opinions that failed to bubble to the surface during discovery, opposing counsel are often splattered with the new opinions the same time as the jury. But, like trying to mop up a big spill with a single tissue, the sanction of "striking" the new opinion can be a soggy solution.

Reviewing the traditional remedies, and proposing a new alternative for mopping up this common mess, an opinion by Justice Patrick J. Quinn suggests: "

One way to retract the offensive testimony would be for the circuit court or the attorney who elicited the testimony to ask the witness, 'To make things clear, in your testimony today, you are not saying (the subject matter of the Rule 213 violation -- e.g., "the standard of care was violated by having medical residents, Dr. A and Dr. B, treat the patient").' Phrasing the question in this manner will allow the witness to retract the testimony that violated Rule 213 without falsely testifying that he or she does not have such an opinion." Clayton v. County of Cook, 2003 Ill. App. LEXIS 1427 (1st Dist., Dec. 11).

Darleen Clayton filed a lawsuit alleging that medical malpractice at Cook County Hospital caused the death of her daughter, Richlyn Cork. A verdict for the county was reversed, and the retrial resulted in a verdict for Clayton. Now, the second verdict was reversed because of a Rule 213 violation, and the case is headed back for a third trial.

During the second trial, one of Clayton's experts, Dr. Madelyn Kahana, disclosed a new opinion. The new opinion was that County Hospital failed to properly supervise its residents.

The county moved to strike this new opinion based on a violation of Illinois Supreme Court Rule 213. Acknowledging the problem, the trial judge told Clayton's counsel: "You need to clear this up because this is a problem. I read through her Rule 213 [deposition]. Nothing like this is in here."

Later, the judge attempted to clean up this mess by asking Kahana, in the presence of the jury, "At the time you disclosed your opinions and gave your deposition, you had no criticism of Cook County Hospital for its failure to supervise its residents on May 3rd from the time of admission until 12 o'clock the next day, is that correct?' Kahana replied, "That's correct."

The judge denied the county's motion for a mistrial, and the jury returned a verdict of $4.3 million on the wrongful-death claim, plus $1 million on the survival claim.

At the time of the second trial, the applicable version of Rule 213(g) provided:

"An opinion witness is a person who will offer any opinion testimony. Upon written interrogatory, the party must state:

"(i) the subject matter on which the opinion witness is expected to testify;

"(ii) the conclusions and opinions of the opinion witness and the bases therefor; and

"(iii) the qualifications of the opinion witness; and provide all reports of the opinion witness."

Here are highlights of Quinn's opinion reversing the verdict (with various omissions that are not indicated in the quoted text):

"The committee comments for Rule 213(g) then in effect specified that, 'in order to avoid surprise, the subject matter of all opinions must be disclosed pursuant to this rule and Supreme Court Rule 218, and that no new or additional opinions will be allowed unless the interests of justice require otherwise.' "Illinois Supreme Court rules on discovery are mandatory rules of procedure subject to strict compliance by the parties. Seef v. Ingalls Memorial Hospital, 311 Ill.App.3d 7, 21 (1999); DOT v. Crull, 294 Ill.App.3d 531, 537 (1998).

"Discovery rules allow litigants to ascertain and rely upon the opinions of experts retained by their adversaries. Parties have a duty to supplement seasonably or amend prior answers or responses whenever new or additional information subsequently becomes known to that party. To allow either side to ignore the plain language of Rule 213 defeats its purpose and encourages tactical gamesmanship.

"The Crull court stated, '[T]rial courts should be more reluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties to deviate from the strict disclosure requirements, or (2) not to impose severe sanctions when such deviations occur.'

"However, neither Rule 213 nor its committee comments," Quinn noted, "provide the circuit court with a guideline describing how to formulate a remedy once a violation occurs.

"The most important function of a court of review is to provide direction to the circuit court as to how to address issues that arise at trial.

"Consequently," Quinn continued, "we next address the issue of what remedies a circuit court has available to it when a violation of Rule 213 occurs at trial.

"A circuit court has the discretion to shape a remedy following a violation of Rule 213, including the exclusion or limitation of the scope of expert testimony. The formulation of a remedy should reflect the underlying purpose of Rule 213 by preventing unfair prejudice or the deprivation of a party's ability to prepare adequately his case through no fault of his own.

"First, upon a party's Rule 213 objection, the proponent of the evidence has the burden to prove the opinions were provided in a discovery deposition or Rule 213 interrogatory or answer. A circuit court has the discretion to review Rule 213 objections in chambers to determine whether opinions were disclosed properly.

"Next, in the event the circuit court finds that a party has violated Rule 213 disclosure requirements and depending upon the severity of the violation, the opposing party has the option of moving to (1) strike only the portion of the testimony that violates the rule; (2) strike the witness's entire testimony and bar the witness from testifying further; and (3) have a mistrial declared.

"The circuit court has the discretion to determine the appropriate remedy. The court must ensure that the applicable sanction allows for a fair trial rather than punish the party that committed the violation. Each case presents unique factual circumstances, which should be considered in determining whether a sanction is imposed.

"The Appellate Court has addressed the issue of which sanctions are appropriate in many cases. Logically, it follows that the severity of the sanction imposed be dependent upon the prejudicial impact of the Rule 213 violation.

"The most common scenario presented to this court is that the issue of a Rule 213 violation comes to the circuit court's attention during the testimony of an expert witness who has expressed an opinion not previously disclosed.

"The real problem is that, all too often, the witness already has expressed this 'new' opinion when an objection is made.

"Unfortunately, merely striking the portion of the testimony that was violative of Rule 213 will not always be sufficient to remedy the prejudice to the opposing party.

"The discussion as to whether the testimony was violative of Rule 213 and, if so, what remedy should be applied should be held outside the presence of the jury. Initially, this discussion may be held outside the presence of the witness as well, but the circuit court may find it useful to have the witness present so he or she can be voir-dired. The presence of the witness also will facilitate an explanation of the nature of the violation to the expert and what steps must be taken to prevent further improper testimony.

"To remedy the prejudice that already has occurred, the circuit court can fashion whatever questions and answers would be most appropriate.

"One way to retract the offensive testimony would be for the circuit court or the attorney who elicited the testimony to ask the witness, 'To make things clear, in your testimony today, you are not saying [the subject matter of the Rule 213 violation -- e.g., "the standard of care was violated by having medical residents, Dr. A and Dr. B, treat the patient"].' Phrasing the question in this manner will allow the witness to retract the testimony that violated Rule 213 without falsely testifying that he or she does not have such an opinion.

"Of course, the circuit court has the discretion to determine the appropriate remedy in any given case. The parties should assist the circuit court in this determination by suggesting workable solutions rather than merely asking for a mistrial on the one hand, or arguing that no remedial action is needed on the other.

"In determining whether striking the witness's entire testimony and barring the witness from testifying further are appropriate sanctions, the following factors must be considered: (1) surprise to the adverse party; (2) the prejudicial effect of the witness' testimony; (3) the nature of the witness' testimony; (4) the diligence of the adverse party; (5) whether objection to the witness' testimony was timely; and (6) the good faith of the party calling the witness.

"Finally, the circuit court has the discretion to declare a mistrial. A mistrial is warranted when the Rule 213 violation is of such character and magnitude as to deprive a party of a fair trial and the party seeking the mistrial demonstrates actual prejudice as a result. In other words, if a less severe sanction cannot eliminate unfair prejudice, a mistrial must be declared.

"The following factors are relevant to assess prejudice: (1) the strength of the undisclosed evidence; (2) the likelihood that prior notice could have helped the defense discredit the evidence; (3) the feasibility of a continuance; and (4) the willfulness of the party in failing to disclose.

"The failure to disclose opinion testimony under Rule 213 should not allow a party to gain a tactical advantage by undermining the adverse party's strategy or undercutting cross-examination. Rule 213 is designed to give those involved in the trial process a degree of certainty and predictability that furthers the administration of justice and eliminates trial by 'ambush.'

"With the above principles in mind, a review of the instant record shows the Circuit Court allowed Dr. Kahana to present entirely new opinion testimony alleging a lack supervision of defendant's residents."

Although the trial judge "directed plaintiff's counsel to retract the error numerous times ... counsel failed to follow the order. The court attempted to remedy the violation by posing the following question to Dr. Kahana in the presence of the jury, 'At the time you disclosed your opinions and gave your deposition, you had no criticism of Cook County Hospital for its failure to supervise its residents on May 3rd from the time of admission until 12:00 o'clock the next day."

Unfortunately, "This question solidified, rather than remedied, the Rule 213(g) violation, because it verified that Dr. Kahana presented new, undisclosed opinions. Significantly, Dr. Kahana's undisclosed opinions provided the jury with a new negligence theory, namely, that defendant's failure to recognize the escalation in Cork's symptoms due to a lack of proper supervision caused the difficulty that occurred during the intubation and the resulting injury.

"The court's failure to provide an adequate remedy to eliminate the resulting prejudice from Dr. Kahana's undisclosed opinions was an abuse of discretion.

"The present case involved complex testimony hinging on an explanation as to why defendant's doctors failed to intubate Cork properly. Dr. Kahana's new opinions offered the jury a reason to find that defendant was negligent. This is precisely the situation which Rule 213 was intended to address and no extenuating circumstances exist justifying the violation of the rule in this case. Contrary to plaintiff's argument, Dr. Kahana's undisclosed opinions affected the outcome of the trial because defendant was surprised and prejudiced as a result.

"Accordingly, the erroneous admission of Dr. Kahana's undisclosed opinions regarding supervision of defendant's doctors and the Circuit Court's subsequent failure to remedy properly plaintiff's Rule 213(g) violation warrants reversal of the jury's verdict and a remand for a new trial."

With a second reversal, and a new suggestion for cleaning up the mess when experts erupt with new opinions at trial, Quinn's closing note was that the litigants "are admonished strongly that surprise cannot be a component of a third trial in this case."

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