VII Disclosing the Expert Witness

• Library: The Direct Examination of the Plaintiff's Treating Physician (2017 Ed.)

VII. DISCLOSING THE EXPERT WITNESS

A. Supreme Court Rule 213(f)

I11. S. Ct. R. 213(f): Identity and Testimony of Witnesses: Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:
(1) Lay Witnesses. A "lay witness" is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.
(2) Independent Expert Witnesses. An "independent expert witness" is a person giving expert testimony who is not the party, the party's current employee, or the party's retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.
(3) Controlled Expert Witnesses. A "controlled expert witness" is a person giving expert testimony who is the party, the party's current employee, or the party's retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.

The disclosure of witnesses during the course of discovery is rarely discussed in the context of the evidentiary challenges of offering expert testimony. However, with the adoption of modern disclosure requirements, especially Ill. S. Ct. R. 213, and Illinois court decision finding the rule to be mandatory, disclosure seems inextricably tied to trial presentation. Your client's treating physician may be very much able to offer highly relevant, persuasive testimony concerning the plaintiff's injuries. However, if this testimony has not been properly disclosed, the testimony may be barred. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568 (1st Dist. 2001). Thus, the first step to an effective direct examination of any expert is the timely, comprehensive disclosure.

Ill. S. Ct. R. 213(f)(1) mandates the disclosure of lay fact or lay opinion witnesses. Ill. S. Ct. R. 213(f)(3) addresses the disclosure of controlled expert witnesses such as the physician retained solely to give testimony in your case. The treating physician is usually an "independent expert witness" pursuant to Ill. S. Ct. R. 213(f)(2). As an "F-2" expert, plaintiff's counsel must disclose (1) the subject matters of the treater's testimony; (2) the conclusions and opinions to be offered; and (3) the bases of those of opinions and conclusions. While a disclosure may be sufficient if it gives notice to opposing counsel of the expected testimony, the best practice is to be thorough in drafting the disclosure of the plaintiff's treater. See Sullivan v. Edward Hospital, 209 Ill. 2d. 100, 109 (2004) (disclosures must "drop down to specifics").

The obligation to make a disclosure (and the timing of disclosure) is usually dictated by the entry of a Case Management Order pursuant to Ill. S. Ct. R. 218. This Order should include dates by which each of the parties are to make their disclosures. An example of a case management order from the Circuit Court of Cook County is included on the following page.

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

__________, Plaintiff(s)

v.

__________, Defendant(s)

No, __________

Calendar __________

CASE MANAGEMENT ORDER - LAW DIVISION ASSIGNMENT COURTROOMSPursuant to Supreme Court Rule 218(All copies of prior case management orders must be available for presentation to the court upon request of the judge.)(Please check off all pertinent paragraphs and circle proper party name.)

(4296)___ 1. Written discovery & 213(f)(1) and (2) disclosures to be completed by __________;

(4218)___ 2. Oral Discovery & 213(f)(1) and (2) depositions to be completed by __________;

(4218)___ 3. Treating physicians depositions to be completed by __________;

(4288)___ 4. Subpoenas for treating physicians depositions to be issued by __________;

(4296)___ 5. _shall complete outstanding written discovery by __________ ;

(4218)___ 6. _shall be presented for deposition by __________;

(4206)___ 7. Plaintiff/Defendant/Add. Party shall answer 213 (f)(3) interrogatories by __________;

(4218)___ 8. Plaintiff's 213(f)(3) witnesses to be deposed by __________;

(4218)___ 9. Defendant's 213(f)(3) witnesses to be deposed by __________ ;

(4218)___ 10. Additional party's 213(f)(3) witnesses to be deposed by __________;

___ 11. Additional Orders or Modifications: ____________________

___ 12. This matter is set in Room 2005 for:

(4205)___ Jury Trial at 9:00 a.m. on __________ Non-jury Trial at 9:45 a.m. on __________

(4315)___ Jury Status at 9:00 a.m. on __________ Non-jury Status at 9:45 a.m. on __________

NOTICE

* Failure of any party to comply with this Case Management Order will be a basis for Rule 219(c) sanctions. Failure of any party to enforce this Case Management Order will constitute a waiver of such discovery by that party.

* All cases arriving on the Trial Call in Courtroom 2005 must have all discovery in Lines 1 through 10 completed.

* A copy of this order is to be sent to each party by his/her counsel within 10 (ten) days of the initial Case Management Date.

Atty. No.:__________

Name:__________

Atty. for:__________

Address:__________

City/State/Zip:__________

Telephone;__________

ENTERED:

__________

Judge

__________

Judge's No.

DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

In addition, parties' interrogatories will usually make specific requests for disclosure of lay and expert witnesses. Some defense attorneys incorporate these requests in interrogatories that seek general information about the plaintiff's case. Some defense attorneys prepare separate 213(f) interrogatories which only seek the plaintiff's disclosure of all witnesses. Whether the obligation to disclose is triggered by the Case Management Order and/or interrogatories propounded by your opponent, counsel should draft and serve upon defense counsel a disclosure that assures the plaintiff the opportunity to admit all the relevant evidence the treating physician has to offer in support of the plaintiff's case.

Attorneys who represent plaintiffs in...