The Perils of Rule 615

Written by: Andrew C. Corkery, Maron Marvel Bradley Anderson & Tardy LLC, St. Louis

Most defense counsel probably do not spend a great deal of time analyzing Illinois Rule of Evidence 615, which bars the presence of witnesses at trial while other witnesses are testifying. This rule is invoked in most trials, either at request of counsel or on the court’s own motion. However, failure to consider all implications of the rule can cause serious problems for defense counsel.
Illinois Rule of Evidence 615 states:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize the exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by his attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause or (4) a person who is authorized to be present.

Two recent decisions from Illinois appellate courts illustrate the dangers presented by the rule. In the cases discussed below, one defendant’s failure to comply with the rule resulted in one defendant having its pleadings struck and another defendant having a curative instruction issued against it. Both trials resulted in verdicts for plaintiffs.

Mogensen v. SCF Lewis and Clark Fleeting, LLC

Plaintiff Kevin Mogensen sued Defendant SCF Lewis and Clark Fleeting, LLC (“Fleeting”) pursuant to the Jones Act for injuries he received on March 17 and 18, 2018. Mogensen v. SCF Lewis and Clark Fleeting, LLC, 2025 IL App (5th) 230501, ¶ 3. Mogensen was employed as a boat mate and member of a barge crew operated by Fleeting. Mogensen, 2025 IL App (5th) 230501, ¶ 3. Pursuant to the Jones Act, a maritime employee may file a civil lawsuit against his employer. 46 U.S.C. § 55102. Mogensen alleged that Fleeting failed to provide a safe workplace which resulted in Mogensen being exposed to chemicals that resulted in respiratory injuries. Mogensen, 2025 IL App (5th) 230501, ¶ 3. Fleeting denied liability, and the case proceeded to trial. At the pre-trial hearing, defense counsel invoked Illinois Rule of Evidence 615. Id. ¶ 7.

At trial Mogensen testified that the crew was in the process of cleaning off the barge using blowers and push brooms. They were cleaning grain residue off the barge. The dust was blown in his direction, and he was covered in dust. Mogensen testified the dust was yellow in color. Id. ¶ 21.

Throughout the rest of the shift Mogensen had difficulty breathing. Mogensen continued to have breathing problems, which he described as life-altering. Id. ¶ 22. Mogensen presented medical testimony as to the impact of his exposure to the chemicals. On cross-examination, Mogensen admitted that he had previous exposure to chemicals in February 2018, when he was working for a different employer (Terminals). The trial court barred the introduction of the previous workers’ compensation case which resulted from this exposure. Id. ¶ 6.

A co-worker testified that the crew blew residue off the deck, and it went everywhere. Mogensen was less than 50 feet away from the crew when who were blowing the residue. Id. ¶ 13. The co-worker did not know the name of the product but described the dust as yellow. Mogensen, 2025 IL App (5th) 230501, ¶ 14. He testified it was everywhere. After the exposure, Mogensen was having trouble breathing. The co-worker made the decision that the barge needed to be cleaned by the entity that loaded the barge before the barge could proceed. Bulk was the company that loaded and cleaned the barges.

In their case, Fleeting presented witness Scott Keehner, who was employed by Bulk as an operations manager at the time of trial. Id. ¶¶ 35-36. Bulk received products by rail and other sources and loaded the product onto the barge. Fleeting did not play any role in loading the product. Mr. Keehner testified on direct examination that the product loaded by Bulk was not bright yellow in color. Mr. Keehner was then asked on cross:

Q: Mr. Keehner, did you speak with anyone prior to your testimony today that would have told you that the testimony thus far in this case has been that the product covered all over [the plaintiff] was a bright yellow?
A. Through the lawyers
Q. The lawyers?
A. Um-hum
Q. Told you what prior testimony was already today?
A. Yes.
The court then dismissed the jury and questioned the witness:
Q. So are you indicating to me that you were told what the color of the substance of the prior testimony was in this case??
A. That an orange substance or color, yes.

Id. ¶ 37.

Outside the presence of the jury, the court then clarified with Mr. Keehner that he was an employee of Bulk and that the attorneys he spoke with represented Fleeting in this case. Id. ¶ 39. The defense attorneys had represented Terminals where Mr. Keehner had worked when the incident giving rise to the workers’ compensation case occurred. The court clarified that Terminals was not a party to this litigation. Id.

Based on this testimony, the court concluded that Mr. Keehner was an independent witness. The court asked Mr. Keehner what he had spoken to the lawyers about that day. Id. ¶ 40. Defense counsel objected on the basis of attorney-client privilege. The court clarified that it only wanted to know what Mr. Keehner had discussed with the attorneys that day. Mr. Keehner testified:

He just, you know, had told me that [sic] to answer everything to my ability of what I was going to be briefed on, and then that in the testimony that they had brought up a color of orange had been effected, you know, through the testimony, which, you know, I told them that we didn’t handle anything that was being pertained that was going to be discussed that was orange.

Mogensen, 2025 IL App (5th) 230501, ¶ 40.

The court further clarified, “so you’re telling me today that you spoke with [defense counsel], and he did indicate there was prior testimony in this trial, this trial, was that there was testimony regarding the color of the grain that plaintiff was exposed to?” He answered “Yes.” Id.

 The trial court determined that Fleeting had violated the sequestration order and granted Mogensen’s Motion to Strike Fleeting’s pleadings. Id. ¶ 42. The court granted a directed verdict on the issue of liability. The case proceeded to the jury only on the issue of damages. The jury returned a verdict in Mogensen’s favor for $3.31 million. Id. ¶ 43.

On appeal, the Appellate Court of Illinois, Fifth District, noted that Fleeting moved for Rule 615 to be invoked. The court first distinguished case law in which courts had found that the trial court’s ruling on Rule 615 was unclear and for that reason did not impose sanctions. See Smith v. City of Chicago, 299 Ill. App. 3d 1048 (1st Dist. 1998); In H.S.H., 322 Ill. App. 3d 892 (2nd Dist. 2001). The appellate court found that the ruling on Rule 615 in this case was clear and that it had been made at the request of Mogensen. Mogensen, 2025 IL App (5th) 230501, ¶ 51. The appellate court then found that whether Mogensen was surprised or prejudiced by the contact with the witness was not relevant to the court’s determination. Id. ¶ 55. Finally, the appellate court found that the court did not violate the attorney-client privilege when it questioned the witness in the presence of plaintiff’s counsel. The court upheld the trial court’s verdict. Id. ¶ 56.

Sanders v. CSX Transportation Inc.

Sanders v. CSX Transportation Inc. (CSX) is a FELA case in which the Estate of Joseph Sanders claimed that the decedent, Joseph Sanders, was exposed to asbestos while working for CSX railroad as a plumber at the Barr Yard in Riverdale, Illinois. Sanders v. CSX Transportation Inc., 2024 IL App (1st) 230481; see also 45 U.S.C. § 51 et seq. The plaintiff claimed the decedent was exposed to pipes covered in asbestos. The plaintiff claimed this exposure caused the decedent’s colon cancer. Sanders, 2024 IL App (1st) 230481, ¶ 4.
Prior to the trial, the plaintiff filed a motion in limine barring any witnesses from being present during testimony. Defense counsel agreed to the motion. Id. ¶ 7.

The plaintiff’s former supervisor, Jason Pritchard, was CSX’s table representative at trial. Id. ¶ 9. He was called as an adverse witness by plaintiff’s counsel during Plaintiff’s case in chief. During his testimony, it was discovered that he no longer was employed by CSX. Id. ¶ 15. The court raised the issue that if he was no longer employed by CSX, then his presence violated the ruling on the motion in limine barring witnesses from being present during testimony. Id. ¶¶ 21-22. The plaintiff argued that Mr. Pritchard’s testimony should be stricken, and that the court should issue a curative instruction. The defendant claimed that Mr. Pritchard’s presence did not violate the motion in limine because he was a table representative. Id.

 The trial court found that Mr. Pritchard’s presence violated the motion in limine and Illinois Rule of Evidence 615. The court further noted that Mr. Pritchard was not a figurehead but provided substantive testimony about the plaintiff’s work history. The court decided to give an instruction stating that if the court had been aware that Mr. Pritchard was not an employee of CSX, the court would not have allowed Mr. Pritchard to be present for the other witness’ testimony. Sanders, 2024 IL App (1st) 230481, ¶ 21.

The jury returned a verdict in favor of the plaintiff for $2.2 million but found the plaintiff’s decedent was 65% at fault. Id. ¶ 41. The Appellate Court of Illinois, First District noted that it is a well-established tradition to bar witnesses and Illinois Rule of Evidence 615 establishes that witnesses should be barred. Id. ¶ 59. Rule 615 has an exception for someone who is an officer or employee of the defendant. Because Mr. Pritchard was neither of those at time of trial, the exception did not apply. The appellate court found that the trial court did not abuse its discretion when issuing the curative instruction. The jury’s verdict was upheld on appeal. Id. ¶ 60.

Defense counsel needs to keep the requirements of Rule 615 in mind at all times in trial. Because Illinois Rule of Evidence 615 was modeled after Federal Rule of Evidence 615, counsel can look to federal case law for guidance on interpreting the Rule. People v. Patton, 2024 IL (App (5th) 200399-U. Defense counsel must carefully choose their representative or table witness. Ideally, defendant can designate an officer of the company who has knowledge of the company’s activities and the lawsuit. This approach is more likely possible when representing a smaller company. With larger companies, the selection of a table representative becomes more difficult. The representative needs to be an officer of the defendant company and needs to be employed by the defendant at the time of the trial. Counsel also has to consider how the representative will present to the jury while sitting at the table for the course of the trial. Ideally, the table representative will also be able to provide information to the attorneys during trial about the defendant’s company or operations that may arise during trial. The analysis of who should be the table representative should start early in litigation process, so that counsel can assure availability and make sure the representative is fully prepared.

Large corporations often have a claims department that primarily deals with litigation issues. Although some defense counsel are reluctant to use someone from the claims department as a table representative at trial, this approach does provide some safeguards. Counsel can be certain that claims personnel are compliant with the requirements of Illinois Rule of Evidence 615. Further, individuals in the claims department are familiar with the litigation process and generally can be prepared to testify if needed at trial.
Defense counsel must not provide information derived from trial testimony to witnesses. The Mogenson case involved a situation where the witness was an employee of a prior client, which did not fall into one of the exceptions. Counsel must do a thorough examination as to whether a potential witness qualifies under one of the exceptions to Rule Illinois Rule of Evidence 615 when preparing the witness to testify.

Providing a witness with testimony produced during trial can have serious consequences, as shown in the Mogenson decision. To the extent a potential witness qualifies under one of the exceptions, and counsel believes that the witness needs to hear testimony at trial, counsel should have the witness in the courtroom. Further, counsel must fully evaluate what conversations are protected by attorney-client privilege. Failure to analyze these issues can result in discussions that counsel thought would be privileged, being disclosed to the court and to opposing counsel.

Although Rule 615 is not often an issue in litigation, the cases discussed above show the rule can cause significant problems for defense counsel.

About the Author

Andrew C. Corkery is a partner at Maron Marvel Bradley Anderson & Tardy LLC in St. Louis. His practice concentrates on defense of transportation and medical malpractice cases. He is a cum laude graduate of St. Louis University School of Law. He is Chair of the IDC Civil Practice Committee and serves as a member of the IDC Amicus committee.

About the IDC

The Illinois Defense Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.IDC.law or contact us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, admin@IDC.law.