A Summary of Recent Appellate Decisions Concerning Illinois Supreme Court Rule 213

Written by: Andrew C. Corkery, Pitzer Snodgrass, P.C., St. Louis

Illinois Supreme Court Rule 213 generates as much case law as any rule of Illinois civil procedure, and the last two years are no different. Pursuant to Rule 213, parties must disclose their lay, independent, and retained witnesses. As part of the disclosure for retained witnesses, the party must disclose the conclusions and opinions of witnesses and bases therefore. The following cases illustrate a variety of issues raised in the Rule 213 context. The cases concern the sufficiency of pre-trial disclosures, qualifications of experts to testify to different schools of medicine, interaction between Rule 213 and Illinois Supreme Court Rule 218, expert cross-examination, and the redesignation of experts. Many of the cases address more than one of these issues, illustrating how difficult it is to predict what courts will do with Rule 213 issues and how courts determine whether errors require a new trial. This summary of recent case law will provide the practitioner with a sense of how to navigate the various Rule 213 issues that arise in litigation.

Appellate Court Vacates $50 Million Verdict Due to Stricken Expert Disclosures

In Florez v. Northshore University Health Systems, Armin Michael Drachler, M.D., Northshore Physicians Group, LLC, Eliza Meade M.D., Jennifer Lesko M.D., and Liza Wegryn R.N., 2020 IL App (1st) 190465, the jury awarded Julien Florez, a minor, by his parents and next friends, Aimee Florez and David Florez, $50.3 million in damages. This medical malpractice case arose out of alleged medical negligence during birth that resulted in injuries to the plaintiffs’ child. The defendants appealed, contending the trial court erred in striking the supplemental disclosures of their previously disclosed expert witnesses made in response to the plaintiffs’ supplemental disclosure. The defendants also argued the court erred in excluding evidence of the child’s autism diagnosis and in allowing remarks by the plaintiffs’ counsel in closing argument that the jury should “make a statement” concerning the preciousness of the lives of children.

The mother of the child was admitted to Evanston Hospital five days past her due date. She was examined, including a measurement of the fetal heart rate. The mother did not make progress and the doctors decided to give her Pitocin. The baby continued to experience heart decelerations. The doctors decided to perform a caesarean section delivery. When born, the baby was lifeless and blue, had an Apgar score of 1, and his heart had to be pumped to circulate blood to his brain. The baby was resuscitated and the body temperature was cooled to avoid further brain damage. The baby exhibited signs of brain dysfunction and within five hours showed signs of seizure activity.

The plaintiffs’ attorney supplemented his answers to written interrogatories 56 days before trial. The supplement contained a psychological evaluation of the child. The evaluation was conducted by Dr. Young, one of the child’s treaters in Michigan, who concluded the child would not exceed an early elementary level of acquired academic development. Defense counsel forwarded the report to their experts. The defense experts provided supplemental opinions that Dr. Young’s records supported their position that the child’s disabilities resulted from a chronic condition and not an acute event. Defense counsel also sought to supplement their disclosures to include Dr. Young as a witness.

Plaintiff’s counsel moved to strike the defendants’ supplemental disclosure on the basis it was made within 60 days of trial. The trial court agreed and struck the defendants’ supplemental disclosure.

On appeal, the question was whether Rule 213(i) and Rule 218(c) allow defendants to file supplemental answers less than 60 days before trial where answers are filed in response to additional information filed by plaintiffs’ counsel less than 60 days before trial. The Appellate Court of Illinois First District noted that Rules 213 and 218 should be liberally construed to do substantial justice between the parties, and that the trial court should have allowed the defendants to file their supplemental answers in order to do substantial justice between the parties. The appellate court found nothing in the language of Rule 218 that required the court to hold the 60-day limit above all other considerations. Errors in exclusion of expert testimony warrant a new trial if they are as serious and prejudicial as they were in this case. The court found the experts’ opinions on the issue of the child’s autism were critical to the defendants’ proximate cause defense and remanded the case for a new trial.

This decision addresses the situation where the requirements of Rule 213 conflict with another rule, in this case Rule 218. The opinion illustrates the importance of each party being allowed complete discovery on opinion witnesses and the ability to counter those witnesses. For Rule 213, form should not be elevated over substance.

Retained Emergency Room Doctor Barred from Testifying to Standard of Care of Psychiatrist

At the age of 17, Zenah S. Muhdi died from a heroin overdose. Her death occurred one day after she was treated for a prior heroin overdose and discharged from Advocate Christ Medical Center’s emergency department. The plaintiff, as special administrator of the Estate of Muhdi, sued the physicians and hospital because Muhdi was not admitted or held after the first overdose. The jury returned a verdict for the defendants. The plaintiff appealed, claiming the court improperly granted the defendants’ motion in limine prohibiting the plaintiff’s retained emergency room doctor expert from testifying to the standard of care for a psychiatrist. The Appellate Court of Illinois First District affirmed the decision of the circuit court in Biundo v. Michaelina Holton, M.D., Trale Permar, M.D., Hiufung Lam M.D., Advocate Health and Hosp. Corp. and Advocate Christ Med. Ctr., 2020 IL App (1st) 191970.

Plaintiff disclosed her expert witness to testify that the defendants violated the standard of care by discharging Muhdi without having her undergo a psychiatric evaluation. The records showed that the doctors did consult with a psychiatrist before discharging Muhdi. At his deposition, the plaintiff’s expert amended his opinion to state that the psychiatrist had to see the patient in person.

The defendants argued that the plaintiff’s expert was not qualified to offer an opinion regarding a psychiatrist’s standard of care. Plaintiff’s expert practiced in an emergency room between 1980 and 2005. Thereafter, he practiced in urgent care, taught, and provided expert testimony. The expert admitted that psychiatric evaluations are beyond what an emergency room physician is qualified to do. The appellate court agreed with the trial court that the expert was not qualified to offer the opinion regarding the consult.

The appellate court further found that, even assuming he was qualified, the expert’s opinion failed to establish proximate cause and should be barred. The appellate court noted that in medical malpractice cases, proximate cause must be established by expert testimony to a reasonable degree of medical certainty. Because he could not testify as to what would have occurred had an in-person examination been conducted, the expert could not testify to a reasonable degree of medical certainty that the lack of an in-person examination was the proximate cause of Muhdi’s death.

Plaintiff’s counsel also appealed whether the expert could testify about whether the patient was medically cleared. Because the expert testified at his deposition that he was not sure about that issue, the appellate court concluded the expert could not offer an opinion.

This case provides useful instruction on the qualifications needed for an expert to testify to standard of care and causation and shows that when an expert states he has no opinion on the topic, he should not be allowed to testify differently at trial.

Appellate Court Grants New Trial Based on Trial Court’s Incorrect Ruling on Witness Disclosure

The Appellate Court of Illinois First District considered issues related to Rule 213 in a wrongful death and survival action in Perez v. St. Alexius Med. Ctr., Jeffrey Chung, Midsuburban Radiological Consultants of Woodstock, Christopher Michael M.D., Brad Epstein M.D., Suburban Women’s Health Specialists, Donald Taylor D.O., Suburban Maternal Fetal Med. LLC, Vishvanath C. Karande M.D., and Karande and Assoc. M.D., 2022 IL App (1st) 181887. Perez addressed medical malpractice claims related to the treatment of Marilyn Perez, who died from metastatic pelvic abdominal cancer seven months after giving birth by caesarean section. The plaintiff, who is the executor of the deceased’s estate, sued various physicians, including physicians who treated the deceased before and during her pregnancy. The case went to trial against Dr. Christopher Michael, an obstetric-gynecologist, and his practice group; Dr. Jeffrey Chung, the radiologist who interpreted Marilyn’s ultrasound; and St. Alexius Medical Center under an apparent agency theory. The jury returned a $25 million verdict against Dr. Michael and his practice and returned a defense verdict for Dr. Chung and St. Alexius. The plaintiff subsequently dismissed Dr. Michael and his practice based on a $1 million settlement. The appeal was brought by the plaintiff against Dr. Chung and St. Alexius.

Plaintiff’s counsel first appealed on the basis that the trial court improperly prevented him from using Dr. Chung’s Rule 213 disclosure against the defendants. Plaintiff’s counsel claims that the defendant argued at trial that Dr. Chung did not know about a teratoma when he reviewed the ultrasound and that barring the plaintiff’s use of Dr. Chung’s Rule 213(f) disclosure allowed the defendants to hide from the jury Dr. Chung’s admission that he was aware of the teratoma when he reviewed the ultrasound. The Appellate Court of Illinois First District found that, while the interrogatory answers may have been completed and signed by an attorney as opposed to the expert, that cannot justify modification of the plain meaning of the rule allowing impeachment.

Plaintiff’s counsel wanted to use Dr. Chung’s Rule 213 (f)(3) disclosure as either an evidentiary admission or for the purpose of impeachment. The trial court distinguished the use of Rule 213 disclosures against a retained expert versus their use against a party. The appellate court found Rule 213 does not support the distinction between using the Rule 213 disclosures against an expert but not against a party. The appellate court found that the trial court committed prejudicial error in not allowing plaintiff to confront Dr. Chung in cross-examination with his Rule 213 discovery disclosure. The appellate court also found that the trial court committed reversible error in not allowing plaintiff’s counsel to cross-examine Dr. Chung with radiology practice guidelines.

This case illustrates the extent to which a party can go to cross-examine an expert. Courts give a very wide latitude so that opinions may be examined as much as possible.

Redesignation of a Controlled Expert Witness to a Consulting Expert Witness

In Dameron v. Mercy Hospital and Medical Center, 2020 IL 125219, the Illinois Supreme Court concluded a party may redesignate a disclosed Rule 213(f)(3) witness to a Rule 201(b)(3) consultant. The plaintiff, Dameron, underwent a robotic-assisted hysterectomy at Mercy Hospital. She brought a medical malpractice action against the defendants alleging that, due to improper positioning during surgery, she suffered damage to her femoral nerves. On May 30, 2017, plaintiff’s counsel disclosed Dr. David Preston as a Rule 213(f)(3) controlled expert witness who would testify regarding the performance and results of the comparison of electromyogram and/or nerve conduction studies he performed on the plaintiff on June 1, 2017. Dr. Preston performed an EMG study on Dameron and prepared a report.

On July 27, 2017, plaintiff’s counsel e-mailed the defendants and advised she was withdrawing Dr. Preston as a Rule 213(f)(3) controlled expert witness and considered him instead to be a non-testifying expert consultant pursuant to Rule 201(b)(3). The plaintiff’s counsel also informed the defendants she would not be producing any documents from Dr. Preston’s review of the case or his examination.

On August 3, 2017, plaintiff’s counsel filed a motion to change Dr. Preston’s designation, asserting that Dr. Preston had been disclosed as a testifying expert in error. On August 4, 2017, the circuit court denied plaintiff’s motion and ordered her to produce Dr. Preston’s records. Plaintiff’s counsel refused and a contempt order was entered. The plaintiff appealed the trial court’s interlocutory orders denying her motions to designate Dr. Preston as a consulting expert. The Illinois Court of Appeals First District reversed the circuit court’s denial of Dameron’s motion, relying on several federal cases.

The supreme court first considered the defendants’ argument that Dr. Preston was not an expert but was Dameron’s treating physician, in that he provided medical care to the plaintiff in the form of an examination and an EMG study. The supreme court held the examination did not make Dr. Preston a treating physician, noting that Dameron’s counsel paid both for Dr. Preston’s time and the EMG study.

As to the redesignation of Dr. Preston as a consultant, the supreme court noted that Illinois discovery rules do not expressly permit or prohibit a party from changing a witness’s designation and discerned no reason to prevent her from doing so. The supreme court noted that, since the redesignation of Dr. Preston occurred approximately one year before the scheduled trial date, there would be no unfair surprise to the defendants at trial. Furthermore, because Dameron never disclosed Dr. Preston’s report to the defendants, it could not be said that the defendants came to rely upon Dr. Preston being called as a witness or that they were prejudiced by his withdrawal.

Finally, the defendants argued that, even if Dr. Preston could be redesignated as a consulting expert, the plaintiff was still required to turn over his report and test results consisting of objective data that was not “core work product.” The supreme court rejected this argument and cited Rule 201(b)(3), stating “the identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.”

The Dameron opinion ignores the question of how this situation would be applied to the defendant. According to Illinois Supreme Court Rule 215, a defendant is required to produce a report even if it is not helpful to the defendant. The defendant does not have the option of re-designating that witness as a consulting witness. Thus, Dameron sets one standard for the plaintiff, and one for the defendant.

Confusion about Expert Disclosure Leads to Expert Being Barred

In McKinney v. Newgent 2021 IL App (5th) 200010-U, the Illinois Court of Appeals First District addressed issues related to expert disclosures in the context of an auto accident that occurred on Interstate 64. The parties entered a scheduling order. On the day the defendant was to disclose experts, defense counsel emailed plaintiff’s counsel and stated, “assuming we now have all the medical records for your client’s treatment, and for our 213 disclosure we will probably proceed with having a records review completed by Dr. Peter Anderson. Once we have his opinions we will pass them onto you.” On the date discovery was to be completed, defense counsel filed a motion to extend time to take depositions of plaintiff’s treating physicians and their retained expert.

Four days later, defense counsel provided the expert disclosure to the plaintiff. In the disclosure, the defendant stated Dr. Anderson may provide testimony as to (1) the plaintiff’s injuries caused by the car accident, (2) medical treatment plaintiff received, (3) the plaintiff’s diagnosis, prognosis, and the causes of the same, and (4) the reasonableness and necessity of plaintiff’s medical bills and treatment. The defendant’s expert further indicated he would testify to the opinions and conclusions in his report which, at the time, was currently pending.

Plaintiff responded to defendant’s motion by arguing that the disclosure of Dr. Anderson was untimely and insufficient. Defense counsel responded by producing Dr. Anderson’s report. After argument on the motion to extend time, the trial court granted an extension to take the deposition, but reserved ruling on its admissibility.

Plaintiff then submitted supplemental requests to Dr. Anderson as to 1) the total number of people examined by Dr. Anderson for defendant’s attorney, law firm, and insurer, 2) the total number of plaintiffs, parties, or persons examined by Dr. Anderson for defendants, insurance companies, or civil litigation cases, 3) the total amount of payment received by Dr. Anderson for medical-legal work, 5) the total amount of gross income paid to Dr. Anderson for legal work, and 6) the total income generated by Dr. Anderson for reviewing records from defense counsel and defendant’s insurer. The following day, plaintiff’s counsel served a subpoena on Dr. Anderson. Plaintiff’s counsel then moved for an emergency motion to accelerate discovery to require defendant to produce all documents within four days.

At the pre-trial hearing, the court granted plaintiff’s motion to expedite. Plaintiff then took the deposition of Dr. Anderson’s office manager. Plaintiff’s counsel established that certain charges were not included in the lists provided by the defendant. The next day, Dr. Anderson’s deposition was taken. On cross-examination, he admitted that record reviews may not have been included in the list.

The trial court granted plaintiff’s motion and barred Dr. Anderson from testifying at trial. The jury returned a verdict of $129,510 for the plaintiff. The Illinois Appellate Court Fifth District found that the trial court did not abuse its discretion in granting the motion to bar Dr. Anderson. The appellate court found that the trial court gave defense counsel every opportunity to cure the discovery violations and they ultimately failed to do so. The appellate court noted that the case illustrates the pitfalls of failing to abide by discovery rules and admonished plaintiff’s counsel for not doing more to resolve the discovery disputes. However, the court ultimately upheld the verdict.

The appellate court appears to reach a different conclusion than was reached in Florez v. Northshore Univ. Health Sys., Armin Michael Drachler, M.D., Northshore Physicians Grp., LLC, Eliza Meade M.D., Jennifer Lesko M.D., and Liza Wegryn R.N., 2020 IL App (1st) 190465. In McKinney, the appellate court appears to elevate the form of the rule over the substance of the rule and rewards plaintiff’s counsel for playing games with the Rule 213 deadlines. While the appellate court noted that the plaintiff did as little as possible to resolve these disputes, the court did not punish plaintiff’s counsel in any way. This case shows once again the pitfalls that exist in the application of Rule 213.

Verdict Overruled Where Plaintiff’s Counsel Was Not Allowed to Cross-Examine on Scholarly Articles

In Ricks v. Advocate Health & Hospital Corporation, 2021 IL App (1st) 200952-U, the plaintiff’s wife died from an amniotic fluid embolism while she was in labor at Advocate Christ Medical Center. The plaintiff, decedent’s husband, brought a wrongful death and survival action against Advocate and Dr. Naima Bridges. Dr. Bridges, an obstetrical resident at Advocate, performed an amniotomy and intrauterine pressure catheterization on the decedent.

Prior to trial, but after the defendant had disclosed Dr. Bridges as a Rule 213(f)(3) witness, plaintiff dismissed Dr. Bridges as a defendant. At trial, plaintiff’s counsel attempted to cross-examine Dr. Bridges on three articles the parties had stipulated were authoritative. Dr. Bridges testified she had never read the articles. The trial court upheld the objection and prevented plaintiff’s counsel from cross-examining Dr. Bridges on the articles. The jury returned a general verdict for Advocate.

The Appellate Court of Illinois First District found that the trial court erred in not allowing plaintiff’s counsel to cross-examine Dr. Bridges on these articles. Dr. Bridges testified she complied with the standard of care. The appellate court found that allowing cross-examination on these articles would have tested her direct testimony. The appellate court found the ruling was prejudicial because her cross and re-direct did not address the dangers posed by the amniotomy and thus the court could not agree the issue was cumulative.

Advocate also argued that the general verdict in their favor should be upheld under the two-issue rule, which holds that a general verdict where two or more causes of action or defenses were presented to the jury, and there was sufficient evidence to present one of the theories or defenses, the verdict should not be disturbed. The appellate court found that the proximate cause issue was not presented free from error, and thus the two-issue rule did not apply.

Conclusion

Illinois Supreme Court Rule 213 issues arise in many cases. As noted above, how courts resolve these issues can be unpredictable. Counsel should attempt to do what they can to avoid having Rule 213 issues litigated and appealed. Unfortunately, in the real world of litigation, that may be easier said than done.

About the Author

Andrew C. Corkery is of counsel at Pitzer Snodgrass P.C. 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.