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DEPOSITIONS – RELATED CASE LAW

EVIDENCE DEPOSITIONS ARE NOT THE PROPERTY OF THE PARTY WHO

TAKES THEM

An evidence deposition is not the "property" of the party who takes it, and any portion of an

evidence deposition may be offered by either side. Prince v. Hutchinson, 49 Ill. App. 3d 990

(1977) see also Dobkowski v. Lowe's, Inc., 20 Ill. App. 3d 275 (1974) and Petryshyn v. Slotky,

387 Ill. App. 3d 1112 (2008).

READING DISCOVERY DEPOSITION INTO EVIDENCE AT TRIAL

Admissions of a party are admissible as substantive evidence when offered by the opponent.

Gillson v. The Gulf, Mobile and Ohio Railroad Co., 42 Ill.2d 193, 197, 246 N.E.2d 269, 272

(1969). These statements are not hearsay. People vs. Aguilar, 265 Ill. App. 3d 105, 637 N.E. 2d

1221 (3rd Dist. 1994). While a statement is usually damaging to the party against whom it is

offered, an admission does not need to be against the interest of the party, and any relevant

statement is admissible as substantive evidence. People vs. Aguilar, 265 Ill. App. 3d 105, 637

N.E. 2d 1221, 202 N.E. 2d 485 (3rd Dist. 1994); Estate of Lewis, 193 Ill.App.3d 316, 323, 549

N.E.2d 960, 964 (4th Dist. 1990); Nastasi vs. VMW, 209 Ill. App. 3d 830 (5th Dist. 1991).

There is no foundation requirement predicating the receipt into evidence of admissions and the

availability of the party opponent at trial is not relevant. Security Savings and Loan Assn. v.

Commissioner of Savings and Loan Assn., 77 Ill.App.3d 606, 611, 396 N.E.2d 320, 324 (3rd

Dist. 1979) ("As the excerpts in question were offered as admissions, no predicate or foundation

was required for their use as direct and substantive evidence."); Behrstock v. Ace Hose and

Rubber Co., 147 Ill.App.3d 76, 87, 496 N.E.2d 1024, 1031 (1st Dist. 1986) (Trial court properly

admitted portions of discovery depositions into evidence, even though the persons who made the

statements were in court and available to testify.)

DECEDENT'S DISCOVERY DEPOSITION NOT ADMISSIBLE ALTHOUGH THE

WIFE SUBSTITUTED IN AS PARTY PLAINTIFF AS ADMINISTRATOR OF HIS

ESTATE

Plaintiff suffering from terminal Mesothelioma unsuccessfully sought to have his evidence

deposition taken, and his discovery deposition was extended over a sufficiently long period of

time that he died before it could be taken. Court held that he remained "a party to the litigation"

for purposes of Supreme Court Rule 212(a)(5) even after his wife was substituted as plaintiff as

administrator of his estate. Additionally, his deposition testimony does not qualify as a dying

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declaration. Therefore, his discovery deposition could not be used as evidence at trial and was

properly barred by the trial court. In this case, plaintiff filed an asbestos action. He had 8 to 18

months to live when the lawsuit was filed. The plaintiff tried to take his evidence deposition but

the defendants wanted a discovery deposition first. It took 6 months and several sessions to take

his discovery deposition. Finally, the discovery deposition was taken but the plaintiff died 1

month later before his evidence deposition was taken. Plaintiff wanted to use his discovery

deposition as an evidence deposition. The court held that pursuant to Supreme Court Rule

212(a)(5), a party's discovery deposition may not be used as an evidence deposition. The

decedent was still a party for the purposes of this rule. Also, the testimony does not constitute a

dying declaration because this principal of law has never been used in a civil case and the

plaintiff did not believe that his death was eminent when he gave his deposition. Therefore, the

trial court properly granted summary judgment because the plaintiff could not prove the case

without his testimony. Berry v. American Standard Inc., 5-06-0621 (5th Dist. 2008).

USE OF EVIDENCE DEPOSITION BY EITHER PARTY: A party who takes an evidence

deposition should have the first opportunity to admit the deposition as part of his case. For

example, the plaintiff, who cross examined defendant's expert in an evidence deposition should

not be allowed to introduce the deposition in his case unless the plaintiff first asks defendant in

open court whether defendant intends to use the deposition. If defendant answers negative, then

plaintiff may use the deposition. Gaddis vs. Gaddis, 314 N.E. 2d 627 (1st Dist. 1974)

PROCEDURE FOR INTRODUCING EVIDENCE DEPOSITION: The proper procedure

for introducing an evidence deposition taken by the opposing party is to ask in open court

whether the opposing party intends to introduce the deposition of its witness and if so the party

attempting to introduce the deposition must refrain from using the deposition until the party

whose witness it is has had an opportunity to introduce the deposition. J. L. Simms Co. vs.

Firestone, 467 N.E. 2d 327 (3rd 1984).

ADMISSION OF DISCOVERY DEPOSITION--DEFENDANT DECEASED: Admissions

against interest made during a discovery deposition are admissible against the defendant who

died prior to trial. The defendant may not then offer the entire deposition under Supreme Court

Rule 212 (c) but only the portion of the deposition which explains or clarifies those portions

offered. Morse v.Hardinger, 341 N.E. 2d 172 (4th Dist. 1976).

USE OF DISCOVERY DEPOSITION--PLAINTIFF DECEASED: The discovery

deposition of a deceased plaintiff is not admissible at trial under any theory. Abel vs. GM, 507

N.E. 2d 1369.

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EVIDENCE DEPOSITIONS--OBJECTIONS DURING: See Supreme Court Rule 211 (c)

(1). Timely objections to the competency of a witness must be made at the evidence deposition

as well as lack of foundation objections which are evident at the time the deposition is being

taken. Lundell vs. Citrano, 412 N.E. 2d 451 (1st 1984). Also see Moore vs Jewel Tea, 2?? N.E.

2d 103

TAXABLE COSTS: Expert fees are not taxable as costs. Deposition expenses are awarded

only if they relate to depositions necessarily used at trial. Witness fees of twenty dollars a day

and twenty cents a mile are taxable. Falkenthal v Public Bldg Comm of Chicago, 444 N.E.2d

498 (1st 1983) and 514 N.E.2d 813. See Code of Civil Procedure '5-109.

CHANGING ANSWERS IN A DISCOVERY DEPOSITION: The deponent may change the

substance of his deposition before he signs it. 513 N.E.2d 1103, and see the Sup. Ct. Rules.

Perhaps the witness may not change the substance of his testimony where he has waived

signature. 508 N.E.2d 301.

DEPOSITIONS -- INSTRUCTING THE WITNESS NOT TO ANSWER: If a deponent

refuses to answer any question during his deposition, the deposition can be completed on other

matters or adjourned, as the proponent of the question may prefer. Thereafter the proponent may

move the court for an order compelling an answer and the court may award costs if it appears

either party acted without substantial justification. Sup. Ct. Rule 219.

EVIDENCE DEPOSITIONS -- ANTICIPATING AN ADVERSE RULING: The plaintiff

asked the witness for an opinion. The defendant objected but cross examined the witness on the

basis of his opinion in the event the objection was overruled. The trial court sustained the

objection but allowed the cross examination to be read to the jury. On appeal the court said the

trial court probably erred but that the error was harmless. Hinrichs vs. Mabrey, 485 N.E.2d 572

(3d 1986).

SANCTIONS C FAILURE TO PRODUCE A PARTY FOR DEPOSITION: Even if the

defendant refused to produce a witness for deposition, the barring of the witnesses testimony was

an inappropriate sanction where the witness was not a surprise witness and the plaintiff had

several days opportunity in which to take the witnesses deposition and would have had ample

time to take whatever steps it believed necessary, as a result of his deposition testimony, and the

trial judge offered to recess to afford the plaintiff an opportunity to take the deposition. Dept of

Public Works vs. Decatur, 282 N.E.2d 517 (1st 1972). [I presume the witness was an employee

of the defendant].

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DISMISSAL FOR FAILURE TO APPEAR FOR A DEPOSITION: A favorable case to

vacate this kind of dismissal. Wyrick v Time Chemical, 548 N.E.2d 524 (1st 1989).

EXPERT LIMITED TO OPINIONS EXPRESSED IN THE EXPERT'S DEPOSITION:

The expert's testimony is restricted to the opinions expressed in the expert's deposition. Zajac v

St Mary, 571 N.E.2d 840 (1st 1991).

DEPOSITION OF AN INCOMPETENT: The deposition of an incompetent plaintiff may be

taken by the defendant but not used to impeach at trial. Diminskis vs. CTA, 508 N.E.2d 215 (1st

1987).

WHERE DEPOSITION MUST BE TAKEN AND WHO PAYS: Amended Sup. Ct. Rule

203 says that a plaintiff must be deposed in the county where the action is pending. All other

persons are to be deposed where they reside, are employed or transact business. The court may

order on officer or an employee of a party to appear in this State for his deposition. Therefore, if

a party wishes to take the deposition, by subpoena, of the other party's expert, it must be taken

where he resides, etc. Further, the party requesting the deposition must pay the statutory costs

to compensate the expert for his travel to the deposition. Under Ch.53, par. 65, this is $20 per

day and 20 cents a mile. The party employing the expert is responsible for the expert's hourly

charge under Rule 220 (c) 6. Lee vs. Hyster Co., 509 N.E.2d 586 (1st 1987). In the case of a

treating physician, the fee shall be paid by the party at whose instance the deposition is taken.

Sup Ct Rule 204(c).

REQUIREMENT OF NOTICE TO OPPONENT OF A SUBPOENAED DEPOSITION: In

this case an attorney subpoenaed a witness to his office with notice to his opponent. He then told

his opponent that the deposition was to be continued. The witness, nevertheless showed up in his

office. The attorney informed the witness that the deposition could not be taken but asked

permission to take a "court reported statement. The appellate court took a "dim view" of the

attorney's conduct because the witness was present at the attorney's office pursuant to subpoena

and should have been sent home. As a result the statement was barred. Beiermann v Edwards,

550 N.E.2d 587 (2d 1990). Also see above under REQUIREMENT OF NOTICE heading.

CHANGING ANSWERS IN A DISCOVERY DEPOSITION: The deponent may change the

substance of his deposition before he signs it. 513 N.E.2d 1103, and see the Sup. Ct. Rules.

Perhaps the witness may not change the substance of his testimony where he has waived

signature. 508 N.E.2d 301.

DEPOSITIONS C INSTRUCTING THE WITNESS NOT TO ANSWER: If a deponent

refuses to answer any question during his deposition, the deposition can be completed on other

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matters or adjourned, as the proponent of the question may prefer. Thereafter the proponent may

move the court for an order compelling an answer and the court may award costs if it appears

either party acted without substantial justification. Sup. Ct. Rule 219.

EVIDENCE DEPOSITIONS C ANTICIPATING AN ADVERSE RULING: The plaintiff

asked the witness for an opinion. The defendant objected but cross examined the witness on the

basis of his opinion in the event the objection was overruled. The trial court sustained the

objection but allowed the cross examination to be read to the jury. On appeal the court said the

trial court probably erred but that the error was harmless. Hinrichs vs. Mabrey, 485 N.E.2d 572

(3d 1986).

EVIDENCE DEPOSITIONS C PROOF THAT DEPONENT IS STILL OUT OF STATE:

A showing that a deponent resided outside the State at the time the deposition was taken raises a

presumption of continuance of residence in the other State and shows that the deponent is not

amenable to subpoena. Laird v Ill. Cent., 566 N.E.2d 944 (5th 1991).

VIDEOTAPE DEPOSITIONS C FAILURE TO FOLLOW THE EXACT

REQUIREMENTS OF THE RULE: The failure to follow Rule 206(f) did not per se render

the videotape inadmissible under the facts of this case. The person objecting to the deposition

must show some prejudice from the failure to follow the rules. Healy v Bearco, 576 N.E.2d 1195

(2d 1991).

JUDICIAL ADMISSION OF PARTY: Party's testimony in deposition may constitute

judicial admission if statement is clear, unequivocal, and within party's personal knowledge and

deliberate testimony relating to concrete fact and not an inference or uncertain summary. Arnold

v. Consolidated Railroad, 169 Ill.Dec. 738, 592 N.E.2d 225 (1st Dist. 1992).

DEPOSITIONS -- USE OF DECEASED PLAINTIFF'S DEPOSITION: The discovery

deposition of a deceased plaintiff may not be used to oppose summary judgment. Abel v GM,

507 N.E.2d 1369 (2d 1987).

STRUCTURAL WORK ACT: Structural Work Act was applicable to plaintiff's injury

because he fell from a support in his work area and was engaged in a hazardous activity

contemplated by the Act. Statements warning the plaintiff about the slippery condition on the

roof were properly excluded when they were only evidence of the plaintiff's contributory

negligence which is not applicable to a cause of action under the SWA. Additionally, court did

not err in allowing plaintiff's expert to offer opinion not provided during discovery when

defendants had an opportunity to question the expert about the subject matter of his opinion at

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the time of the expert's deposition but failed to do so. Pozzi v. McGee Associates, Inc., 602

N.E.2d 1302 (1st Dist. 1992).

TOPICS NOT ADDRESSED AT DEPOSITION AND RULE 220: Where expert is not asked

about topics at his deposition, the expert is able to render an opinion on these topics at trial

without violating Rule 220. Stennis v. Rekkas, 599 N.E.2d 1059 (1st Dist. 1992).

CLIENT RESPONSIBLE FOR COURT REPORTER'S BILL: Based upon agency

principles, the client, not the attorney, is responsible for the court reporter's bill. McCorkle v.

Weinstein, 365 N.E.2d 953 (1st Dist. 1977). (Relied on the case of Petrando v. Barry, 124

N.E.2d 85 (1st Dist. 1935).

EXPERT MAY NOT DEVIATE FROM DEPOSITION TESTIMONY: In med mal case,

court properly instructed jury to disregard two opinions expressed by plaintiff's expert because

they deviated from expert's deposition testimony. Jackson v. Naffah, 609 N.E.2d 958 (1st Dist.

1993).

JUDICIAL ADMISSIONS IN DEPOSITION: Statements a party makes during a discovery

deposition may be treated as an admission. If the admission amounts to a judicial admission, it is

binding upon the party and may not be controverted. A judicial admission is a clear and

unequivocal statement which is made without reasonable chance of mistake about a matter

within the speaker's personal knowledge. Burns v. Michelotti, 604 N.E.2d 1144 (2d Dist. 1992).

SANCTION FOR FAILURE TO APPEAR AT DEPOSITION: Sanctions in the amount of

attorney's fees and costs related to discovery were proper for defendant's failure to appear for

court-ordered deposition. Hartnett v. Stack, 607 N.E.2d 703 (2d Dist. 1993). See also Ch. 110A,

''206(a) and 219(c).

READING OF DEPOSITION AT TRIAL AND RULE OF COMPLETENESS: Supreme

Court Rule 212(c) states in part: "If only a part of a deposition is read or used at trial by a party,

any other party may at that time read or use or require him to read any other part of the

deposition which ought to in fairness be considered." Fairness does not require the reading of

irrelevant information. Kochan v. Owens-Corning Fiberglass Corporation, 610 N.E.2d 683 (5th

Dist. 1993).

DEPOSITIONS IN RESPONSE TO SUMMARY JUDGMENT MOTION: Discovery

deposition which was entire basis for motion for summary judgment could not support summary

judgment where deponent had died before motion was ruled on. Riblet Products Corp. v. Starr

National, 611 N.E.2d 68 (3d Dist. 1993).

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IMPEACHMENT OF WITNESS WHO STATES "I CAN'T REMEMBER": Where

witness claims lack of memory at trial, deposition may be used to impeach the witness's trial

testimony. Van Steemburg v. General Aviation, Inc., 611 N.E.2d 1144 (1st Dist. 1993). See

also, Sommese v. Mailing Bros., Inc., 36 Ill.2d 263, 222 N.E.2d 468 (1966). (Deposition

testimony describing slippery conditions, depth of water, and position of puddle admissible to

impeach trial testimony where witness did not remember slippery conditions.)

STATEMENTS CONTAINED IN MEDICAL REPORTS: Portions of doctor's evidence

deposition referring to statements within other doctor's report inadmissible as hearsay. Beltz v.

Griffin, 612 N.E.2d 1054 (5th Dist. 1993). (Plaintiff waived error by failing to object.)

MISSING WITNESS INSTRUCTION FOR ABANDONED EXPERT IMPROPER: Trial

court erred in admitting deposition testimony of medical expert who plaintiff abandoned nineteen

months before trial and error was compounded by giving the missing witness instruction. The

trial court allowed portions of the doctor's discovery deposition to be read into evidence on the

basis that it constituted an admission of a party's agent under Rule 220. Appellate court reversed

holding that the statements made during the course of the discovery deposition by an expert

medical witness engaged by a party do not constitute statements which may be introduced as

those of a party opponent. Missing witness instruction was improper since the plaintiff had

abandoned the expert nineteen months before trial. The defendant had ample time to seek him as

a witness. Taylor v. Kohli, 642 N.E.2d 467 (Ill. Sup. Ct. 1994).

CANNOT CONTRADICT PREVIOUS JUDICIAL ADMISSION: A party cannot create a

factual dispute by contradicting a previously made unequivocal judicial admission. Burton v.

County of Jackson, 616 N.E.2d 662 (5th Dist. 1993).

VIOLATIONS OF RULE 220 MAY BE CURED BY EXTENSIVE CROSS-

EXAMINATION: At trial, plaintiff's expert testified differently than he did at his deposition, in

violation of Rule 220. However, the trial testimony was not new testimony and in fact favored

the defendant. The expert simply didn't go as far as he did at his deposition in his opinions.

Further, any violation of Rule 220 was cured by extensive cross-examination. Harmon v. Patel,

617 N.E.2d 183 (1st Dist. 1993).

EVIDENCE DEPOSITIONS AT TRIAL: In an evidence deposition, the examination and

cross-examination shall be the same as though the deponent were testifying at trial. Cross-

examination is limited to subjects covered in direct examination, because other subjects would

not be relevant. Toppel v. Redondo, 617 N.E.2d 403 (1st Dist. 1993).

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WHERE OPINIONS KNOWN, BARRING EXPERTS NOT PROPER: Even though

defendant failed to disclose certain witnesses under Supreme Court Rule 220, the trial court

properly allowed those witnesses to testify and render expert opinions because plaintiff was

aware of these opinions through deposition testimony. Therefore, there was no surprise to the

plaintiff, and barring witnesses would have been improper. Bloomquist v. Ely, 617 N.E.2d 474

(3d Dist. 1993).

JUDICIAL ADMISSIONS: Judicial admission is a deliberate, clear, unequivocal statement of

a party, about a concrete fact, within the party's peculiar knowledge. Such an admission may

occur at a discovery deposition, and the party making that admission is bound by that admission

and cannot contradict it. A judicial admission will support a grant of summary judgment. The

term "peculiar" when referring to judicial admissions is that the information must be without

question within the realm of information actually known to the witness although not exclusively

known to him. In other words, the witness must be in a position to know the fact about which he

is testifying. Eidson v. Audrey's CTL, Inc., 621 N.E.2d 921 (5th Dist. 1993). (Where parties

stated at deposition that he was asleep at the time of the accident and couldn't recall the accident,

there was no judicial admission as to him driving at the time of the accident. Therefore,

summary judgment was improper.)

TRIAL TESTIMONY MAY NOT BE READ VERBATIM DURING CLOSING

ARGUMENT: Reading from a trial transcript during closing arguments is improper.

Therefore, the trial court erred in allowing the prosecution to replay an 18-minute audiotape

during its rebuttal closing argument. Allowing such evidence to be reintroduced dramatically

overemphasized its credibility. People v. Ammons, 622 N.E.2d 58 (3d Dist. 1993).

PLAINTIFF ALLOWED TO IMPEACH DEFENDANT WITH HIS ORIGINAL

UNALTERED DEPOSITION STATEMENTS: Plaintiff allowed to impeach defendant with

his original unaltered deposition statements even though he subsequently altered those

statements pursuant to Supreme Court Rule 207, since the defendant admitted he had made the

prior inconsistent statements. Otherwise, a deponent would have the power under Rule 207 to

insulate his unrehearsed spontaneous testimony given at the deposition from ever serving as a

source for impeachment. In this case, defendant admitted that he had in fact made the prior

inconsistent statements from which he was impeached and that they were accurately reflected in

the uncorrected transcript. LaSalle National Bank v. 53rd Ellis Currency Exchange, 618 N.E.2d

1103 (1st Dist. 1993). See also, Chavez v. Watts, 515 N.E.2d 146 (Ill. App. 1987) (Court

rejected plaintiff's argument that her deposition could not be used for impeachment purposes

because she had reserved signing it in order to check its accuracy because she was fully aware of

the existence and substance of the deposition testimony); Palumbo v. Kuiken, 559 N.E.2d 206

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(Ill. App. 1990) (court allowed plaintiff to be impeached with withdrawn answers to

interrogatories).

PARTY NEED NOT PERFORM PHYSICAL RE-ENACTMENT OF EVENT DURING

VIDEO DEP: A California appellate court held that trial courts may not compel deponents to

physically re-enact events during videotaped depositions. Stermer v. Superior Court, 24 Cal.

Rptr. 2d, 577 (Ct. of Appeals, 1993).

USE OF DEPOSITION FOR IMPEACHMENT: Trial court did not abuse discretion

admitting plaintiff's deposition testimony for purposes of impeachment even though deposition

questions were not identical with questions asked at trial. Tarin v. Pellonari, 625 N.E.2d 739 (1st

Dist. 1993).

OPINIONS NOT DISCLOSED DURING DEPOSITION: If extent of expert's opinion is not

developed during his deposition because the opposing attorney does not ask follow-up questions,

then he is not barred from stating opinions at trial merely because such opinions were not stated

during his deposition. Hills of Palos Condominium Association v. I-Del, Inc., 626 N.E.2d 1311

(1st Dist. 1993). See also, Fogarty v. Parichy Roofing Company, 529 N.E.2d 1055 (Ill. App.

1988). Additionally, analysis or work done after a deposition which provides additional basis for

opinions should be precluded at the time of trial on the basis that Rule 220 states that an expert's

testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or

opinions disclosed during discovery. Hills of Palos Condominium Association v. I-Del, Inc., 626

N.E.2d 1311 (1st Dist. 1993).

STATEMENTS BY FORMER EXPERT NOT ADMISSIONS AGAINST PARTY: In

medical malpractice action, trial court erred in admitting portions of discovery deposition of

expert originally named by plaintiff but later rejected, and that error, in conjunction with the fact

that the court issued a missing witness instruction, required reversal and remand for a new trial.

An expert witness is not considered an agent of a third party. A statement by a third person may

only be considered an admission by a party opponent if agency relationship actually exists.

Taylor v. Kohli, 642 N.E.2d 467 (Ill. Sup. Ct. 1994).

PARTIES HAVE DUTY TO UPDATE 220 OPINIONS EVEN IF NOT ASKED DURING

DEPOSITION: Where plaintiff sought to introduce evidence that one of the doctors who

examined her believed that plaintiff suffered seizures as a result of her accident, but doctor did

not offer this opinion during his deposition because he was not asked about it, even though he

later testified that he had held the opinion at the time that he was deposed, trial court properly

barred doctor's testimony on that point as a sanction pursuant to Supreme Court Rule 220 since

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plaintiff has an obligation under Rule 220 to advise defendant of any further opinions developed

by her witness. Savage v. Martin, 628 N.E.2d 606 (1st Dist. 1993).

EXPERT'S FAILURE TO MENTION OPINION AT DEPOSITION: During discovery

deposition, plaintiff's expert rendered the opinion that defendant had not provided guards on

machine as required by OSHA standards. However, expert never criticized defendant or stated

he was negligent for failing to comply with OSHA. Therefore, trial court properly limited

plaintiff's expert's testimony to the opinions expressed in his deposition. I.e., expert could not

render opinion at trial that defendants were negligent for failing to comply with OSHA standard.

Zavala v. St. Regis Paper Company, 628 N.E.2d 405 (1st Dist. 1993).

OPINION NOT DISCLOSED IN DEPOSITION BARRED: Where doctor was asked during

discovery deposition whether he had any other opinions other than that which was included in

his report and answered "no," trial court properly barred his opinion that accident caused seizures

where this opinion was not contained in the medical report. Savage v. Martin, 628 N.E.2d 606

(1st Dist. 1993).

STATEMENT IN DEPOSITION CONSTITUTED ADMISSION: Generally, testimony in

discovery depositions is held to be an evidentiary admission with the limited exception of some

recent cases that have carved out the judicial admission exception to this rule. Because of the

difference in treatment of evidentiary admission and a judicial admission (evidentiary admissions

can be controverted or explained by the party, while judicial admissions cannot be controverted

or explained), it is incumbent upon plaintiff to state specifically the type of admission he or she

is seeking. Pryor v. American Central Transport, Inc., 629 N.E.2d 1205 (5th Dist. 1994).

(Therefore, if defendant attempted to contradict the "admission" plaintiff's counsel should object

on the basis that a statement was a judicial admission that could not be controverted.)

RULE OF COMPLETENESS AND DEPOSITIONS: Supreme Court Rule 212(c) provides if

only part of a deposition is read or used at trial by a party any other party may at that time read or

use or require them to read any other part of the deposition which ought in fairness to be

considered in connection with the part read or used. Therefore, a fairness test is conducted. The

purpose of the rule is to prevent distortion that might occur when a party introduces isolated

statements from a deposition into evidence. Before a party can force another to read additional

portions of the deposition, the trial court must first conclude the additional statements are

necessary to either explain or modify the statements introduced by other party. Bank of Illinois

v. Thweatt, 630 N.E.2d 121 (4th Dist. 1994).

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USE OF SUBSTANTIVE CHANGES IN DEPOSITION TRANSCRIPT AT TRIAL: It is

proper for counsel for plaintiff to use unaltered original transcript, over objection of defendant, to

impeach defendant who had made substantive changes to transcript, provided that there is no

question that those prior inconsistent statements were accurately reflected in the uncorrected

transcript. LaSalle National Bank v. 53rd Ellis Currency Exchange, Inc., 618 N.E.2d 1103 (Ill.

App. 1993); see also Illinois Supreme Court Rule 207 regarding depositions. Note: Many

practitioners have been surprised to find out that Rule 207 allows for changes "in form or

substance" wrongly assuming that the deponent is only allowed to make changes to the transcript

to modify it to correctly reflect the statements actually given before the court reporter. In fact,

under the Rule, the deponent is allowed to make changes in the substance of his answers.

TREATING NURSES ARE NOT 220 EXPERTS AND CAN BE COMPELLED TO

DISCLOSE OPINIONS: During deposition, nurses refused to state any opinions on the basis

that it would be improper under Rule 220 and that because they were not experts, this would

amount to a taking of their intellectual property without just compensation. Relying on Fawcett

v. Reinertsen, 546 N.E.2d 558 (Ill. Sup. Ct. 1989), court found the involvement of these nurses in

the case is treatment related rather than litigation related. The standard of care is an element of

this cause of action, and any opinions the treating nurses have as to the standard of care are

relevant and discoverable. Therefore, nurses were compelled to give their expert opinions.

Crnkovich v. Almedia, 634 N.E.2d 1130 (3d Dist. 1994).

DOCUMENTS USED TO REFRESH MUST BE DISCLOSED: Any documents used to

refresh a witness's recollection ought to be produced by the witness. An attorney has a right to

inspect those documents before used to refresh a witness's memory at deposition or at trial. See

Cleary on Evidence, '612.1, Page 458; Lebajo v. Department of Public Aid, 569 N.E.2d 70 (1st

Dist. 1991); People v. Scott, 193 N.E.2d 814 (Ill. Sup. Ct. 1963). Note: A witness's testimony

that the document refreshed the recollection of the witness constitutes a waiver of the

attorney/client privilege. See Cleary, '612.1 at Page 459.

LEADING QUESTIONS MAY BE ASKED AT DEPOSITION BY OWN ATTORNEY: A

witness's attorney may ask leading questions at a discovery deposition. Arnold v. Consolidated

Railroad, 592 N.E.2d 225 (1st Dist. 1992). Note: By asking leading questions, an attorney can

establish each element of proof of your case and combat defenses simply by asking your client

the right questions. The questions should be phrased to elicit a yes or no answer, and the client

should be told at the pre-deposition meeting the exact elements of proof that you are trying to

establish. You should then instruct your client that if you decide to ask him any leading

questions, they will concern those particular elements and he should simply reply "yes" to your

leading questions. Even if your client contradicts himself at deposition, this should not be

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grounds for summary judgment because the contradictions and testimony create an issue of fact.

However, opposing counsel may object on a basis that a party's unequivocal admission cannot be

contradicted.

CLIENT MAY MAKE SUBSTANTIVE CHANGES TO DEPOSITION TESTIMONY:

Even if you are unable to remedy problems with your client's testimony during his deposition,

when the deposition is written, client may make substantive changes to his deposition testimony

if you reserve your client's signature. LaSalle National Bank v. 53rd-Ellis Currency Exchange,

618 N.E. 1103 (Ill. App. 1993) (Client made a 145 substantive changes to his deposition

testimony.) See also, Supreme Court Rule 207(a). Note: The original deposition can be used to

impeach if the client admits that what he said was accurately recorded. In reply, you will be

allowed to admit the errata sheet with the substantive changes. Therefore, if your client is going

to make substantive changes, take the time to carefully draft a reason for the changes so that the

jury can hear the explanation.

MUST OBJECT TO COMPETENCY OR ADMISSIBILITY OF TESTIMONY AT TIME

OF DISCOVERY DEP: The failure to object to the competency of a deponent or the

admissibility of testimony at the time of taking a discovery deposition may constitute a waiver to

the objection under Supreme Court Rule 211(c). Purpose of this rule is to give opposing counsel

an opportunity to remedy or obviate the basis for the objection at the time the deposition was

taken. Hammer v. Plontke, 240 N.E. 2d 429 (1st Dist. 1968).

HEARSAY TESTIMONY DURING DISCOVERY DEPOSITION: Statements that

constitute hearsay and do not fall within one of the exceptions to the hearsay rule cannot be

cured at a discovery deposition and therefore objection to the testimony can be made for the first

time when the evidence is being offered at trial. Peterson v. Henning, 452 N.E.2d 135 (4th Dist.

1983). Note: An objection to an error in substance may be made at trial when the deposition is

offered. Love v. McElroy, 106 Ill. App. _____(2d Dist. 1903?); Dreisky v. The Hones and

Adams Company, 133 Ill. App. 572 (1st Dist. 1907). If a defendant is attempting to use hearsay

evidence from deposition testimony in a motion for summary judgment, you must make a motion

to strike that portion of the deposition testimony before the hearing or the objection will be

waived.

TREATING NURSES MAY BE COMPELLED TO ANSWER QUESTIONS

REGARDING EXPERT OPINIONS: Because treating nurses may render expert opinions at

trial without disclosure pursuant to Supreme Court Rule 220, (Holston v. Sisters of the Third

Order of St. Francis), the nurses were compelled to answer the questions at depositions as to any

opinions they may have. Crnkovich v. Almeida, 634 N.E.2d 1130 (3d Dist. 1994).

13

WITNESS ALLOWED TO EXPLAIN DEPOSITION TESTIMONY: Trial court properly

ruled that if plaintiff chose to read defendant doctor's deposition testimony in his case in chief

that defense attorneys would be allowed to call the doctor immediately after such reading to

allow the doctor to explain testimony. Court properly ruled that statements in deposition were

not judicial admissions. Glassman v. St. Joseph Hospital, 631 N.E.2d 1186 (1st Dist. 1994)

ADDITIONAL DEPOSITIONS WHERE EXPERT SUPPLEMENTS OPINIONS: Under

Supreme Court Rule 220, expert must seasonably supplement opinion. Where expert's

deposition is taken and he supplements his opinions, a party may take a deposition based upon

additional opinions. Party's failure to take deposition where additional opinions known is a risk

that that party takes, but barring the expert's opinions is not the proper remedy. Dominguez v.

St. John's Hospital, 632 N.E.2d 16 (1st Dist. 1994).

FRIVOLOUS OBJECTIONS AT DEPOSITION MAY WARRANT SANCTIONS: Where

defendant insurance company made frivolous objections and improperly instructed defendant not

to answer questions at deposition and attorney terminated deposition, discovery sanctions in the

form of barring witness' testimony and barring presentation of defense and ordering payment to

plaintiff's attorney for time spent at deposition was warranted. Golembiewski v. Hallberg

Insurance Agency, 635 N.E.2d 452 (1st Dist. 1994).

OPINIONS OF NON-PARTY NURSES MUST BE DISCLOSED AT DEPOSITION:

Nurses could be compelled to testify regarding standard of nursing care at defendant hospital

without being disclosed as Rule 220 experts. Sirnkovich v. Almeida, 634 N.E.2d 1130 (3d Dist.

1994).

FRIVOLOUS OBJECTIONS DURING DEPOSITION REQUIRED SANCTIONS: Where

obstructive tactics of defendant's attorney during discovery depositions, including frivolous

objections and improper instructions not to answer questions were unjustified, trial judge did not

abuse her discretion in imposing sanctions and judgment for $900 against the defendant's

attorney. Golembiewski v. Hallberg Insurance Agency, 635 N.E.2d 452 (1st Dist. 1994).

Discovery and Depositions (735 ILCS 5/2-1003)

Any party who by pleading alleges any bodily injury claim, including mental health,

injury or disease, waives any privilege between the injured person and each health care provider

who furnished care at any time to the injured person.

Upon written request of any party who has appeared in the action, plaintiff must sign and

deliver within twenty-eight (28) days to the requesting party a separate consent authorizing each

person or entity who has provided health care at any time to the allegedly injured person to

14

furnish the requesting party or the party's attorney a complete copy of the medical records;

requesting party entitled to inspect the original chart or record; confer with the requesting party's

attorney before giving testimony in any deposition or trial or other hearing, and engage in

discussion with the attorney on the subjects of the health care providers observations related to

the allegedly injured party's health, including the following: patient history, opinions related to

health, prognosis, etiology or cause of patient's state of health at any time; the nature and quality

of care by the health care providers, including whether any standard of care was breached; and

testimony that the health care provider would give in response to any point of interrogation and

the education, experience, and qualifications of the health care provider.

Should the plaintiff refuse to timely comply with the request for signature on the consent

form, court may dismiss the case.

Applies to causes of action filed on or after its effective date.

Note: This section abolishes the Petrillo doctrine.

EXPERT STATEMENTS ARE NOT ADMISSIONS: Pretrial statements of malpractice

defendant's experts not admissible as admissions of agent or officer made during the course of a

deposition. Expert witnesses are an independent contractor and not agent of party who calls the

witness. Taylor v. Kohli, 642 N.E.2d 467 (Ill. Sup. Ct. 1994).

DEFENDANT'S DEPOSITION ADMISSIBLE EVEN AFTER DEFENDANT DIES:

Carpenter and wife brought action property owner's alleging that property owners negligently

supplied carpenter with unsafe ladder which caused carpenter to fall and be injured. Property

owner's deposition testimony taken prior to his death that he told carpenter that ladder was safe

and that he did not tell carpenter of lack of rubber plates on ladder was not barred by Deadman's

Act where owner was not adverse to side of case represented by his estate and protected under

Act, and where owner would not be likely to lie to detriment to his estate. If common law claim

is at issue, admission by individual in discovery deposition may be presented into evidence as

admission of party opponent against individual's personal representative upon death of the

individual. Overcast v. Bodart, 639 N.E.2d 984 (4th Dist. 1994). This decision overrules Abel,

507 N.E.2d 1369 (Ill. App.). Note: Evidence depositions of parties who die or become

unavailable for trial may be introduced into evidence by personal representative of party

declarant while discovery depositions cannot be introduced by declarant party. Overcast v.

Bodart, 639 N.E.2d 984 (4th Dist. 1994)

ADMISSIONS IN DISCOVERY DEPOSITION PRIOR TO DEATH ARE ADMISSIBLE:

Overcast v. Bodart, 639 N.E.2d 984 (4th Dist. 1994).

15

CANNOT IMPEACH WITNESS INDIRECTLY WITHOUT CONFRONTING WITNESS

DIRECTLY ORIGINALLY: Where witness whose testimony was in form of evidence

deposition was not asked during deposition whether she was a prostitute, it was improper to

admit testimony of another witness than the deposed witness was in fact a prostitute. Esser v.

McIntyre, 642 N.E.2d 803 (1st Dist. 1994).

PARTIES MAY CALL JUDGE ON PHONE IF DISPUTE DURING DEPOSITION: A

new phone-in procedure for resolving disputes that arise during depositions will provide lawyers

near immediate rulings and could save on time by eliminating some courtroom appearances.

Illinois Supreme Court Rule 185 allows for motions to be argued and ruled upon via telephone

conference without a court appearance. The judges to call are Judge Bonaguro and Judge Paul at

312-443-7551.

OPINIONS AT TRIAL NOT DISCLOSED DURING DEPOSITION: If an expert is not

questioned during a discovery deposition on a certain point, then he may render opinions at trial

on that point and not be in violation of Rule 220. This Rule 220(d) plainly states also that expert

may testify at trial as to facts or opinions on matters that the expert was not asked during

discovery. In the present case, expert was not questioned during discovery regarding proximate

cause. Therefore, opinions testimony on that issue did not violate Rule 220. Leonardi v. Loyola

University of Chicago, No. 77383 (Ill.Sup.Ct. 1995).

DEPOSITION OF INMATE WHO’S WHEREABOUTS WHERE UNKNOWN COULD

NOT BE USED: Trial court properly refused to admit into evidence deposition by jail inmate

who could not be found to testify on plaintiff's behalf. Griman v. Makousky, No. 95-1734 (7th

Cir. Ct. of Appeals, 1996).

SWITCHMAN'S DISCOVERY DEPOSITION ADMISSIBLE AGAINST DEFENDANT

RAILWAY COMPANY: Switchman's discovery deposition concerning operation of drawbars

was properly admitted, and machinist's action against railroad under Boiler Inspection Act, since

switchman was employed by railroad, knowledge regarding operation of drawbars was within

scope of switchman's employment, and his statement was thus an admission, sufficient to impute

knowledge to railroad of dangers associated with drawbars. Edward v. Alton and Southern

Railway Company, 656 N.E.2d 208 (5th Dist. 1995).

COUNSEL DID NOT EXERCISE DILIGENCE TO PROCURE ATTENDANCE OF

WITNESS AT TRIAL TO USE DEPOSITION: Court found that plaintiff's counsel had not

used reasonable diligence to procure the attendance at trial of a witness who was released from

jail and subsequently disappeared and therefore plaintiff was unable to procure that witness's

16

attendance so as to entitle the plaintiff to introduce the witness's deposition. Griman v.

Makousky, 1996 WL 48577 (7th Cir. Ct. of Appeals, 1996).

ADMISSIONS MADE BY DECEASED DEFENDANT IN A LEGAL MALPRACTICE

CLAIM MAY BE USED AT TRIAL AND TO DEFEAT MOTION FOR SUMMARY

JUDGMENT: Supreme Court Rule 212 specifically provides that a discovery deposition may

be used as an admission made by a party to the same extent as any other admission made by that

individual. Furniss v. Rennick, No. 3-96-0458 (3d Dist. 1997).

DEPONENTS ALLOWED TO MAKE SUBSTANTIVE CHANGES TO DEPOSITIONS

IN FEDERAL COURT: Deponents are allowed to make substantive changes to depositions

under Federal Rule of Civil Procedure 30(e) which court reads broadly to allow more than

simply typographical corrections. Innovative Marketing and Technology, LLC v. Norm

Thompson Outfitters, Inc., 171 FRD 203 (W.D. Texas 1997).

DECEASED DEFENDANT ATTORNEY'S STATEMENTS IN DEPOSITION

TRANSCRIPT ADMISSIBLE IN LEGAL MALPRACTICE ACTION: In legal malpractice

action against attorney who died shortly after his discovery deposition was taken, trial court

erred in ruling that attorney's discovery deposition was inadmissible. Supreme Court Rule

212(a)(2) clearly states that admissions in discovery depositions can be used in the same manner

as any other admission made by that party. Furniss v. Rennick, 676 N.E.2d 8 (3d Dist. 1997).

ADMISSIONS IN DEPOSITIONS WERE ADMISSIBLE IN ACTION AFTER

DEPONENT DIED: Admissions made by attorney in discovery deposition were admissible

following attorney's death in legal malpractice action against attorney's estate. Furniss v.

Rennick, 676 N.E.2d 8 (3rd Dist. 1997).

DECEASED PARTY’S ADMISSION DURING DISCOVERY DEPOSITION

ADMISSIBLE AGAINST ESTATE: A now deceased party’s admissions during a discovery

deposition can be used at trial against the party’s estate. These admissions may properly be used

as evidence against the decedent’s estate under Supreme Court Rule 212. Rennick v. Rennick,

692 NE2d 1150 (1998). (In light of this decision, it is important to elaborate in your deposition

to clarify any discrepancies made.)

OPPONENT'S EXPERT WITNESSES TRAVEL EXPENSES NOT PART OF

REASONABLE FEE: The party that requests that a deposition of its opponent's expert witness

was not required to pay that witness's travel expenses. Those expenses were not part of the

expert's reasonable fee under Federal Civil Rule 26(b)(4)(c). Rule 26 requires a party seeking

17

discovery to pay the expert a reasonable fee for the time spent in responding to discovery. M.T.

McBrian, Inc. v. Liebert Corp., 1997 WL 323570 (N.D. Ill.).

DEPOSITIONS USED IN MOTION FOR SUMMARY JUDGMENT SHOULD BE

FILED: If a deposition is not on file, trial court may, on motion of party, suppress deposition

and prohibits its use of in support of or in opposition to motion for summary judgment. Ideal

Tool and Manufacturing v. 136, 682 N.E.2d 437 (1st Dist. 1997).

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DEPOSITION RELIED ON IN SUMMARY JUDGMENT MOTION MUST BE FILED

WITH THE COURT: In a motion for summary judgment where a party relies on deposition

testimony, the deposition must be filed with the court. If the deposition was not filed with the

court, the court may allow the filing of the deposition subsequent to the hearing and ruling if

there is no prejudice to the plaintiff. Ideal Tool and Manufacturing Company v. 136, Inc., 682

N.E.2d 437 (1st Dist. 1997).

COURT COULD NOT COMPEL NON-PARTY'S APPEARANCE FOR

CONTINUATION OF HIS DEPOSITION ABSENT SUBPOENA: A Federal District Court

could not compel a non-party's appearance for continuation of his deposition where no subpoena

had been issued to him. A treating physician had agreed to be deposed by the defendants but

withdrew his consent after deposition began. The deponent was under no legal obligation to

continue with his deposition once he withdrew his consent. The court noted, however, that

nothing precluded the defendants from now serving the necessary subpoena. Bueker v.

Atchison, Topeka & Santa Fe Rail Yard Company, 1997 WL 527284 (Ind. Ill.).

DECEDENT’S ADMISSIONS MADE IN DEPOSITION MAY BE USED AGAINST

DECEDENT’S ESTATE: Admissions contained in discovery deposition must be admissible

against Decedent’s estate in same manner as admissions not made during discovery deposition.

Estate of Rennick, No. 82872 (Il.S.Ct. 19980).

EXPERT’S TESTIMONY THAT ELABORATES OR REFINES PRIOR DISCLOSED

TESTIMONY SHOULD NOT BE BARRED: In this case, defendant physician who testified

as an expert at trial expanded and refined the opinions he had expressed previously during his

deposition. The trial testimony did not constitute new opinions beyond the scope of Rule 220

and should not have been barred. Conners v. Poticha, 689 N.E.2d 313 (1st Dist. 1997).

ADMISSIONS FROM DISCOVERY REQUEST TO ADMIT ARE TAKEN AS TRUE:

Admissions resulting from discovery request to admit are tantamount to judicial admissions and

are taken as true. Supreme Court Rule 216. Such admissions are incontrovertible and have

affective withdrawing matter from contention. P.R.S. International, Inc. v. Shred Pax

Corporation, 686 N.E.2d 1214 (Ill.App.3d Dist. 1997).

ADMISSIONS IN DISCOVERY DEPOSITION ARE ADMISSIBLE ARE AGAINST

ESTATE OF DEPONENT: Such admissions are admissible in the same manner as admissions

not contained in a discovery deposition. Death does not erase an admission from a party’s lips

when the admission is made outside the context of a discovery deposition, and no justification

exists for excluding such admissions from a later action against the party’s estate. No unfairness

results from allowing the use of such admissions, because a party who gives an incomplete

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answer during a deposition may rightly suffer from such a lack of disclosure by forfeiting further

opportunity, after the party’s dep, to contradict or explain the admission. In re: Estate of

Rennick, 1998 WL 29882 (Ill. 1998).

FAILURE TO INCLUDE COPY OF EXPERT’S DEPOSITION TRANSCRIPT ON

APPEAL WAIVED ISSUES REGARDING TRANSCRIPT: Plaintiff’s failure to include a

copy of expert’s deposition transcript for the Appellate Court waived issue of whether trial court

erred in failing to read expert’s deposition testimony. It also waived the issue of the trial court

refusing to allow expert to testify at trial as to assessment of labor market after defense counsel

objected on ground that expert was testifying beyond the scope of his deposition testimony and

quoted expert’s deposition testimony that he had not conducted a survey. Branum v. Slezak

Construction Company, Inc., 682 N.E.2d 1165 (Ill.App. 1st Dist. 1997).

IN SOME CIRCUMSTANCES, DOCTOR’S TESTIMONY REGARDING CAUSATION

MAY BE ALLOWED ALTHOUGH DIFFERENT FROM TESTIMONY AT

DEPOSITION: Allowing defendant physician’s testimony regarding causation of plaintiff’s

recurring infections it allegedly differed in detail from his deposition testimony was not abuse of

discretion. Conners v. Poticha, 293 Ill.App. 3d 944 (1st Dist. 1997).

HB 891 - COURT REPORTER PAYMENTS: Allows court reporters to hold an attorney

personally responsible for payment of reporting services that are requested by the attorney. P.A.

9-295; effective 8-1-97.

COST OF DEPOSITION TRANSCRIPTS TAKEN IN RELATED CASE WAS NOT

RECOVERABLE: A prevailing party could not recover cost of deposition transcripts in a

related case, taken before filing of the present case. The prevailing party claimed that the

depositions were highly useful in the present case. American Automotive Accessories, Inc. v.

Fishman, 1998 WL 139393 (N.D. Ill. 1998).

ADMISSIONS MADE IN DISCOVERY DEPOSITION ADMISSIBLE AGAINST STATE

ONCE DEPONENT DIES: Admissions made in course of a discovery deposition are

admissible against that party’s estate just as statements made in other contexts are admissible

against an estate. In Re: Estate of Rennick, 692 N.E.2d 1150 (Il.S.Ct. 1998).

A DISCOVERY DEPOSITION MAY BE USED FOR SEVERAL PURPOSES UNDER

SUPREME COURT RULE 212(a): In this case, the trial court properly refused to permit

defendants to present in evidence portions of a discovery deposition concerning reasons for

terminating plaintiff. Supreme Court Rule 212(a) provides that discovery depositions may be

offered into evidence only for the following reasons: (1) to impeach the deponent by a witness;

20

(2) as an admission of a party opponent; (3) if admissible as an exception to the Hearsay Rule;

and (4) for any purpose for which an affidavit can be used. Knickman v. Midland Risk Services

Illinois, 700 N.E.2d 458 (4th

Dist. 1998).

TESTIMONY AT A DISCOVERY DEPOSITION MAY CONSTITUTE A JUDICIAL

ADMISSION

Judicial Admissions are deliberate, clear, unequivocal statements by a party about a

concrete fact within that party’s knowledge. A judicial admission may not be contradicted in a

motion for summary judgment. Testimony at a discovery deposition may constitute a judicial

admission. In cases involving summary judgment, a counter affidavit does not place an issue

material facts that were removed from contention by a party’s deliberate, unequivocal admission

under oath in a deposition. James v. Ingalls Memorial Hospital, 701 N.E.2d 207 (Ill.App.1st

Dist. 1998).

COURT HAS DISCRETION TO LIMIT TESTIMONY WHERE DISCOVERY TAKEN

AFTER COURT ORDERED DISCOVERY DEADLINE: While trial court may have erred in

allowing litigants to continue to take depositions well after date set for completion of discovery,

trial court properly dealt with situation by permitting physician’s testimony but limiting to

matters discussed in earlier reports. In any event, plaintiff failed to show he was prejudiced by

trial court’s actions. Linn v. Damilano, No. 4-98-0443 (5th

Dist. 1999).

ADMISSION S IN DISCOVERY DEPOSITION ARE ADMISSIBLE AGAINST ESTATE

OF DEPONENT: Admissions contained in a discovery deposition of a deceased party are

admissible against the decedent’s estate in the same manner as admissions not contained in a

discovery deposition. Death does not erase an admission from a party’s lips when the admission

is made outside the context of a discovery deposition, and no justification exists from a later

action against the party’s estate. No unfairness results from allowing the use of such admissions,

because a party who gives an incomplete answer during a deposition may rightly suffer from

such a lack of disclosure by forfeiting further opportunity, after the party’s death, to contradict or

explain the admission. In re Estate of Rennick, 1998 WL 29882 (Ill.S.C. 1998)

ORDINARY A JUDICIAL ADMISSION IS A STATEMENT MADE DURING THE

JUDICIAL PRECEDING OR CONTAINED IN A DOCUMENT FILED WITH THE

COURT: An admission by a party is substantive evidence and is admissible as an exception to

the rule excluding hearsay. Ordinary evidentiary admissions may be contradicted or explained

and ordinary evidentiary admissions should be distinguished from judicial admissions which

conclusively bind a party. Judicial Admissions are defined as deliberate, clear, unequivocal

statements by a party about concrete fact within that party’s knowledge. Where made, a judicial

21

admission may not be contradicted in a Motion for Summary Judgment or at trial . Whether the

deposition testimony constitutes a judicial admission because it is unequivocal is a question of

law. To the extent that the co-employee’s deposition and report, concerning whether workers’

compensation claimant sustained accidental injury, were considered admissions, they constituted

evidentiary admissions and not judicial admissions binding on the employer. Co-employee’s

deposition and report were not unequivocal and unambiguous and the other evidence which

explained and contradicted co-employee’s testimony and report was properly considered by the

Industrial Commission. Elliott v. Industrial Commission, 707 N.E.2d 228 (Ill.App. 1st District

1999)

DEPOSITIONS MAY BE TAKEN BY TELEPHONE OR VIDEO CONFERENCE :

Effective December 1st, 1999, Illinois Supreme Court Rule 206 was amended to allow for

depositions by phone, video conference or other remote electric means. For practical purposes

these procedures have been adopted by attorneys on their own prior to the amendment of this

rule. (No title given)

PLAINTIFF NOT ENTITLED FOR COST OF EVIDENCE DEPOSITIONS WHERE

RECORD DID NOT ESTABLISH UNAVAILABILITY OF WITNESS TO TESTIFY AT

TRIAL: Jury verdict in favor of plaintiff who fell on wet surface near pool area of Inn properly

rendered. Plaintiff met burden of proof by establishing that defendant had at least constructive

notice of wet area; and plaintiff’s expert properly allowed to testify with regard to need for non-

slip surface in location of fall. However, court should not have given plaintiff judgment for costs

of evidence depositions as there was nothing in record to establish unavailability of witness to

testify at trial and no justification for subpoena costs of medical records. Affirmed as modified.

Wiegman v. Hitch-Inn Post of Libertyville, Inc., No. 2-98-1494, (October 13) 2d Dist. Lake

County (THOMAS).

RULE 213 REQUIREMENTS SET A HIGHER STANDARD FOR DISCLOSURE THAN

RULE 220 AND CREATES A BRIGHT LINE RULE WHICH MUST BE FOLLOWED:

The trial court erred when it failed to sustain Rule 213 objection to defendant’s medical expert’s

evidence deposition. There have been numerous opinions rendered which were not adequately

disclosed in discovery. Rule 213, as amended, sets a higher standard for disclosure than former

Rule 220 and creates a bright line rule which must be followed. The opinions disclosed were

substantial and require reversal and a new trial. Seef v. Ingall’s Memorial Hospital, No. 1-98-

1220 (1st Dist. 1999).

22

DEFENDANT MAY BE RESPONSIBLE FOR PAYING COSTS ASSOCIATED WITH

WITNESS FEE FOR PLAINTIFF’S PHYSICIAN AS WELL AS COSTS ASSOCIATED

WITH VIDEO TAPING AND EDITING EVIDENCE DEPOSITION OF PHYSICIAN:

Perkins v. Harris, No. 5-98-0767 (5th

Dist. 1999).

ATTORNEY’S SECRETARY CANNOT VIDEO TAPE DEPOSITION BECAUSE

FINANCIALLY INTERESTED: Trial court correctly ruled that secretary of attorney of one of

the parties could not video tape deposition because employee of attorney is a financially

interested@ in the outcome of the litigation and is therefore disqualified from videotaping

deposition pursuant to the provisions of Supreme Court Rule 205(d). In re: Marriage of

Zuberbrier, No. 2-99-0143 (2nd

Dist. 1999).

PRIOR DEPOSITION TESTIMONY OF EXPERT ALLOWED FOR IMPEACHMENT

PURPOSES DESPITE NOT BEING DISCLOSED DURING DISCOVERY: Trial court did

not err when it allowed counsel to use undisclosed deposition given shortly before trial to

impeach plaintiff’s expert where plaintiff’s expert refused to answer questions with regards to

other products about which he was acting as consultant and where both sides claimed ambush on

the part of the other with regards to expert testimony. Trial court did not limit testimony of

defendant’s experts and plaintiff had opened door, and trial court did the best it could and has

broad discretion. Further, court properly gave assumption of risk instruction with regards to

ATV where there was written warning on vehicle itself and plaintiff’s decedent had been

specifically warned about risk of turnover when on incline. Boland v. Kawasaki Motors

Manufacturing Corp., No. 4-98-0911 (4th

Dist. 2000).

JURISDICTION FOR APPELLATE REVIEW OF DISCOVERY ORDER: In med mal

case where certain defendants and non-party witnesses refused to answer various questions

during discovery depositions and trial court entered an order requiring them to answer, their

appeal under Supreme Court Rule 304(b)5 allowing appeals from orders finding a person in

contempt of court that impose a monetary or other penalty was dismissed for want of

jurisdiction, since the trial court neither found the deponents in contempt nor imposed a penalty

for contempt. Lewis v. Family Planning Management, Inc., 715 N.E.2d 743 (1st Dist. 1999).

ASSESSMENT OF PLAINTIFF’S COSTS INCLUDES EXPENSE OF VIDEO

DEPOSITION: Trial court properly assessed costs for videotaping, editing and transcribing her

evidence deposition and charges for appearances of plaintiff’s treating physician at evidence

deposition. Perkins v. Harris, 720 N.E.2d 1131 (5th

Dist. 1999) (The Supreme Court in Galowich

held that Rule 208(d) authorizes the trial court to tax its costs in its discretion, the expenses only

of those depositions necessarily used at trial. Noting that neither the Illinois Costs Statute nor

the Supreme Court Rule provide a specific definition of costs, the Illinois Supreme Court define

23

costs as allowances in the nature of incidental damages awarded by law to reimburse the

prevailing party to some extent at least for the expenses necessarily incurred in the insertion of

his rights in court. Because the evidence deposition was necessarily used at trial, the court was

within its discretion in taxing its costs against the defendant the physician’s fee in testifying and

the videotaping and transcription fees in recording the evidence deposition.)

NON-PARTY PHYSICIANS MUST BE PAID FOR TIME PURSUANT TO SUPREME

COURT RULE 204(c): Supreme Court Rule 204(c) requires that non-party physicians such as

one involved in this case must be paid for time spent testifying at deposition. Therefore, trial

court correctly rejected plaintiff’s arguments that a reasonable fee provision in Rule did not

apply to physician who is closely associated with at least one defendant in the case. Buckholtz v.

McNeil Hospital, No. 1-98-3916 (1st Dist. 2000).

JUDICIAL ADMISSIONS MAY NOT BE CONTROVERTED: Testimony of party at a

deposition may be controverted or explained. However, when a party’s testimony to a fact that

in his or her personal knowledge is sufficiently deliberate and unequivocal and may be elevated

to the status of a judicial admission and, as such, be settled for the purposes of litigation. Kinco

Corp. v. Murdoch, Coll & Lillibridge, 730 N.E.2d 1143 (1st Dist. 2000).

EMPLOYEE OF PARTY’S ATTORNEY MAY NOT VIDEO RECORD A DEPOSITION:

Employee of a party’s attorney is inherently financially interested in the outcome of the case and

therefore may not video record a deposition unless the parties otherwise agree. In re: Marriage

of Zuberbier, 722 N.E.2d 323 (2nd

Dist. 1999) (Secretary employed by counsel dissolution of

marriage action could not video record deposition of parties’ children).

Rule 212 has been amended, effective March 1, 2001, to include an additional purpose for

which a discovery deposition may be used. As of March 1, 2001, a deposition may be used

as follows: A(5) Upon reasonable notice to all parties, as evidence at trial or hearing against a

party who appeared at the deposition or was given proper notice thereof, if the Court finds that

the deponent is neither a retained opinion witness nor a party, the deponent’s evidence deposition

has not been taken, and the deponent is unable to attend or testify because of death or infirmity,

and if the Court, based on its sound discretion, further finds such evidence at trial where hearing

will do substantial justice between or among the parties.

PARTY MAY NOT CREATE ISSUE OF FACT WITH AFFIDAVIT THAT

CONTRADICTS DEPOSITION TESTIMONY: Kalis v. Colgate-Palmolive Company, No.

99-3343 (7th

Cir. Ct. App. 2000).

24

DISCOVERY DEPOSITION OF A PARTY OPPONENT: The evidentiary rule that limits

the use of a non-party witnesses’ deposition testimony does not apply to a party opponent.

Adams v. Family Planning Associates Medical Group, Inc., 733 N.E.2d 766 (1st Dist. 2000);

see also, Supreme Court Rule 212.

PLAINTIFF’S FAILURE TO DISCLOSE EXPERT’S ADDITIONAL POST-

DEPOSITION TESTING REQUIRED MISTRIAL: A plaintiff who brought product liability

action violated mandatory disclosure requirements of Illinois Supreme Rule governing written

interrogatories to parties by failing to disclose that after her expert witness gave a deposition in

which he stated he is unable to verify through testing that the accident could have occurred in the

manner described by plaintiff, the expert conducted subsequent experiments and established that

the accident could have occurred in such a manner. While the expert’s opinion did not change,

the plaintiff was required to disclose any additional bases for that opinion which were formed

through subsequent testing. The violation substantially prejudiced the manufacturer and

warranted a mistrial. Copeland v. Stebco Products Corp., 2000 WL 1459760 (1st Dist. 2000).

ADMISSIBILITY OF EVIDENCE DEPOSITION REGARDING OPINION TESTIMONY

AS TO PROGNOSIS AND PERMANENCY OF INJURY: Court properly admitted a

chiropractor’s testimony concerning a plaintiff’s prognosis over defendant’s objection that the

doctor’s treatment was too remote in time in relation to both the deposition and the time of trial.

The evidence deposition regarding the prognosis for the plaintiff’s injuries, it was argued it was

too old to represent an opinion at the time of trial and was therefore inadmissible. The

chiropractor, who treated the plaintiff for 4 months after a car accident, gave the deposition more

than 14 months after treatment stopped. The trial started 25 months after the deposition was

taken or 39 months after the last treatment occurred. The court held that the deposition

testimony was properly allowed. In ruling on the admissibility of this type of deposition

testimony, the age of the testimony went to both weight and admissibility. In determining

whether the evidence deposition should be admissible, the court should consider the nature of

plaintiff’s injury condition, the type of treatment administered to the plaintiff, the length of time

the plaintiff was receiving the treatment, the number and frequency of the plaintiff’s visits, the

length of time between the plaintiff’s last treatment and the witnesses’ formation of his or her

opinion, the length of time between the formation of the opinion and the trial, and any other

circumstances that bear on the relevance and the reliability of the proposed testimony. Decker v.

Libell, No. 88-353 (Il. S. Ct. 2000).

AFFIDAVIT MAY NOT CONTRADICT DEPOSITION TESTIMONY TO DEFEAT

MOTION FOR SUMMARY JUDGMENT: Trial court correctly applied well-established rule

that affidavits that contradict prior sworn deposition testimony should be disregarded at entry of

25

summary judgment in favor of defendant, therefore, was not an abuse of discretion. Kalis v.

Colgate-Palmolive Company, 231 F.3d 1049 (7th

Cir. 2000).

OBJECTION AT EVIDENCE DEPOSITION IS PRESERVED AT TRIAL: Once an

objection in an evidence deposition is ruled upon by the trial court, the objecting party need not

object again when the testimony is read to the jury in order to preserve the objection for appellate

review. Soto v. Gaytan, 728 N.E.2d 1126 (Ill. App. 2d Dist. 2000).

PARTIES MUST DISCLOSE NEW WORK PERFORMED AND NEW EVIDENCE

RELIED UPON AFTER GIVING DEPOSITION TO SUPPLEMENT OPINIONS: Plaintiff

violated requirements of 213 which requires supplementing disclosures of opinion witnesses

where expert had conducted subsequent experiments and established that the accident could have

occurred in a manner while expert’s opinion did not change, plaintiff is required to disclose the

additional bases for the opinion formed through subsequent testing. Prior to the testing, the

expert could not verify through testing that the accident occurred in the manner described by

plaintiff. In this case, this evidence substantially prejudiced the defendant and warranted a

mistrial. A recess would not provide adequate opportunity for defendant to review the new test

results. Copeland v. Stebco Products Corp., 738 N.E.2d 199 (1st Dist. 2000).

ADDITIONAL INFORMATION REVIEWED BY EXPERT AFTER DEPOSITION MAY

REQUIRE BARRING OF EXPERT: In this case, expert reviewed depositions after the

expert’s deposition had been taken. At trial, the expert stated that she could not separate the

opinions that she formulated without the review of those depositions and she could not answer

questions based upon her knowledge at the time of her deposition. Because she could not, the

court struck her testimony. Coleman v. Abella, No. 1-99-0711 (1st Dist. 2000).

DEPOSITION TESTIMONY OF PARTY MAY CONTAIN ADMISSIONS WHICH ARE

EXCEPTION TO RULE EXCLUDING HEARSAY AND ARE ADMISSIBLE: Adams v.

Family Planning Associates Medical Group, Inc., 733 N.E.2d 766 (1st Dist. 2000).

DEPOSITION OF NON-PARTY WITNESS IS GENERALLY ADMISSIBLE FOR

IMPEACHMENT PURPOSES: Adams v. Family Planning Associates Medical Group, Inc.,

733 N.E.2d 766 (1st Dist. 2000).

SUCCESSFUL PLAINTIFF NOT ENTITLED TO RECOVER COSTS RELATED TO

VIDEO TAPED EVIDENCE DEPOSITION: Plaintiffs who prevail in negligence action was

not entitled to recover costs related to videotaped evidence depositions used a trial where

plaintiff offered no reason for unavailability of expert witness and did not even claim that other

videotaped deponents were unavailable for trial. Standard for assessing costs for evidence

26

depositions is not whether the depositions were used at trial, but whether they were indispensable

to the trial such as when a witness dies or disappears. Wiegman v. Hitch-Inn Post of

Libertyville, 721 N.E.2d 614 (2nd

Dist. 1999); see also, 735 ILCS 5/5-108.

CLIENT WAIVED ATTORNEY-CLIENT PRIVILEGE BY GIVING DEPOSITION

TESTIMONY: Client waived attorney-client privilege by giving his deposition testimony in

which he referred to his attorney’s comment about the effect of any judgment would have in

dispute with client’s employee and referred to the prior correspondence with attorney and by

failing to object to material in Federal Court action on the basis of its confidential nature. Profit

Management Development, Inc. v. Jacobsen, Brandvik, 721 N.E.2d 826 (2nd

Dist. 1999).

SUPPLEMENTAL DISCLOSURE OF EXPERT’S OPINIONS AFTER DEPOSITION

COMPLETED AND 57 DAYS PRIOR TO TRIAL APPROPRIATE: In medical malpractice

action, cardiologist’s supplemental disclosure of medical expert’s opinions after depositions had

been completed and 57 days prior to trial did not warrant striking of supplemental opinion where

the initial disclosure of opinion witnesses was made in response to Circuit Court’s case

management order rather than Supreme Court Rules, patient’s widow chose to conduct only brief

deposition of expert without exhausting the basis of expert’s ultimate opinion that cardiologist

complied with standard of care and Circuit Court gave widow opportunity to redepose expert

which she declined. Schuler v. Mid-Central Cardiology, 729 N.E.2d 536 (4th

Dist. 2000).

DISCOVERY DEPOSITION OF MEDICAL EXPERT WAS NOT RECOVERABLE

COST: The discovery deposition of a medical expert was not a recoverable cost where the

deposition was not used at trial. In order for the deposition cost to be taxed, the deposition must

have been necessary. Hesson v. Leichsenring, 748 N.E.2d 795 (4th Dist. 2001).

COST OF COPYING VIDEO TAPE OF DEFENDANT’S MEDICAL EXPERT’S

DEPOSITION WAS NOT RECOVERABLE COST: Even though the videotaped deposition

was used at trial, as plaintiff’s obtaining copy of that deposition could not be fairly characterized

as indispensable to trial and use of copy of video tape constituted technique of trial preparation

serving primarily convenience of counsel. Hesson v. Leichsenring, 748 N.E.2d 795 (4th Dist.

2001).

A PERSONAL INJURY PLAINTIFF COULD RECOVER AS TAXED COSTS THE

COST OF VIDEO TAPING TREATING PHYSICIAN’S DEPOSITION WHERE THE

DEPOSITION WAS PLAYED FOR THE JURY BECAUSE THE PHYSICIAN’S

DEMANDING SURGERY SCHEDULED PREVENTED THE PHYSICIAN FROM

PRESENTING LIVE TESTIMONY AT THE TRIAL, EVEN THOUGH ONLY THE

VIDEO TAPE WAS USED AT TRIAL: Perkins v. Harris, 720 N.E.2d 1134 (5th

Dist. 1999).

27

PLAINTIFF IN A PERSONAL INJURY ACTION COULD RECOVER NON-

STATUTORY WITNESS FEE FOR TREATING PHYSICIAN’S VIDEOTAPED

DEPOSITION: Perkins v. Harris, 720 N.E.2d 1134 (5th

Dist. 1999).

CHIROPRACTOR’S DEPOSITION TESTIMONY REGARDING MOTORISTS’S

PROGNOSIS ADMISSIBLE EVEN THOUGH DEPOSITION TAKEN 25 MONTHS

BEFORE TRIAL AND 14 MONTHS AFTER CHIROPRACTOR LAST TREATED

MOTORIST: In determining the admissibility of opinion testimony about the prognosis for a

patient’s injuries or condition, courts will consider the nature of the plaintiff’s injury or

condition, type of treatment administered to plaintiff, the length of time the plaintiff was

receiving the treatment, the number and frequency of plaintiff’s visits, the length of time between

the plaintiff’s last treatment and the witness’ formation of his or her opinion, the length of time

between the formation of the opinion and the trial, and other circumstances that bear on the

relevance and reliability of the proposed testimony. Here, chiropractor’s deposition testimony

concerning patient’s prognosis was admissible even though deposition was taken 14 months after

chiropractor last treated patient and 25 months before trial. Chiropractor treated patient 55 times

in 4 month period after underlying automobile accident and took 2 full sets of x-rays in the

course of the treatment. Chiropractor’s deposition testimony that neck injury patient sustained in

automobile accident could be permanent did not contradict patient’s trial testimony that he no

longer experienced neck pain so as to make the testimony inadmissible in patient’s personal

injury action. Decker v. Libell, 737 N.E.2d 623 (Il. 2000).

ADMISSION OF DEFENDANT DOCTOR’S OPINION AT TRIAL AS TO STANDARD

OF CARE WHICH DIFFERED FROM DEPOSITION TESTIMONY CONSTITUTED

PLAIN ERROR: Admission of defendant doctor’s opinion at medical malpractice trial that

standard of care was to perform an assessment of resident of long-term care facility which

diverged from his opinion expressed at his deposition that the standard of care required

measurement of resident’s vital signs three times a day was plain error and required a new trial.

Prairie v. Snow Valley Health Resources, 755 N.E.2d 1021 (2nd Dist. 2001).

EXPERT WITNESS MAY ELABORATE AT TRIAL ON PROPERLY DISCLOSED

OPINION WITHOUT VIOLATING SUPREME COURT RULE 213: The fact that expert’s

trial testimony is more precise than opinion as originally disclosed does not necessarily result in

violation of Rule 213. However, the witnesses’ testimony must be encompassed by the original

opinion. Further, the failure of the plaintiff to impeach the expert witness did not constitute

waiver of the objection. Prairie v. Snow Valley Health Resources, 755 N.E.2d 1021 (2nd Dist.

2001).

28

DEPOSITION TRANSCRIPT OF TREATING PHYSICIAN SATISFIES 2-622

REQUIREMENT IN MEDICAL MALPRACTICE CASE: Moyer v. Southern Illinois

Hospital Service Corp., 764 N.E.2d 155 (5th

Dist. 2002).

SUCCESSFUL PLAINTIFF MAY RECOVER CHARGES FOR PHYSICIAN VIDEO

DEPOSITION AND TRIAL: Although '5/108 of Code of Civil Procedure allows for costs to

be taxed against Defendants, does not specifically identify which expenses are allowed.

However, Supreme Court Rule 208 provides that with the Court’s discretion, deposition costs

may be taxed as costs. In this case, the successful Plaintiff recovered costs for physician’s video

deposition. Vicencio v. Lincoln-Way Builders, Inc., 2002 WL 417527 (3rd

Dist. 2002).

PROCEDURE WHERE PARTY WANTS TO UTILIZE EVIDENCE DEPOSITION

TAKEN BY OPPONENT: Where a plaintiff desires to introduce into evidence an evidence

deposition taken by the defendant, the proper procedure is for the plaintiff to ask the defendant in

open court whether he intends to use the deposition in his case. If the defendant answers

affirmatively, the plaintiff may not use the deposition in his case. If, after such an exchange, the

defendant fails to introduce the evidence deposition, the plaintiff should be permitted to reopen

his case for the purpose of introducing the deposition into evidence. If the defendant responds

when questioned in open court that he does not intend to use the deposition, the plaintiff may

introduce the deposition into evidence as a part of his case. Lebrecht v. Tuli, 130 Ill.App.3d 457,

473 N.E.2d 1322 (4th

Dist. 1985).

PLAINTIFF NOT ENTITLED TO COSTS OF PHYSICIAN’S DEPOSITION OR

VIDEOTAPE DEPOSITION OF PHYSICIAN WHERE THERE WAS NO SHOWING

THAT PHYSICIAN WAS UNAVAILABLE AND THE PLAINTIFF REQUESTED THE

TRANSCRIPTION: Boehm v. Ramey, 771 N.E.2d 493, 264 Ill.Dec. 789 (4th

Dist. 2002);

RULE 213 VIOLATED WHERE PARTY FAILED TO DISCLOSE THROUGH

SUPPLEMENTING EXPERT DEPOSITION BY ANSWERS REVEALING THAT PART

OF BASES FOR EXPERT’S TRIAL TESTIMONY WOULD BE NEW INFORMATION

LEARNED THROUGH READING OF DEPOSITION OF OTHER EXPERTS AFTER

EXPERT’S DEPOSITION EVEN THOUGH ADDITIONAL MATERIAL DID NOT

CHANGE EXPERT’S OPINION OR BROADEN BASES FOR THAT OPINION:

Coleman v. Abella, 752 N.E.2d 1150 (1st Dist. 2001).

REVIEW OF NOTES DOES NOT REQUIRE PRODUCTION:

In Cole v. Brundage, 36 Ill.App.3d 782, 344 N.E.2d 583 (1st Dist. 1976), the plaintiff, Robert M.

Cole, filed an action for a broker's commission arising out of the sale of the La Salle Hotel by the

defendant Avery Brundage to the defendant Samuel Schulman. After trial the jury returned a

verdict in the amount of $ 133,500 against each defendant. In response to special interrogatories

29

submitted by Brundage, the jury found that an implied brokerage contract existed between

plaintiff and each of the two defendants.

Among issues raised on appeal, Brundage argued that the trial court erred in failing to order

plaintiff to produce certain memoranda for Brundage's inspection.

It appears that in a deposition session, counsel for Brundage learned that plaintiff had prepared at

least two factual memoranda at the request of his attorneys. The memoranda concerned his

negotiations with Brundage and Schulman. Thereafter, Brundage filed a series of motions, before

and during trial, for the production of the memoranda on the ground that they had been used by

plaintiff to refresh his recollection. Plaintiffs opposed the motions on the grounds that the

memoranda were work product and were protected by the attorney-client privilege. The motions

were denied.

The Court emphasized, plaintiff did not utilize the documents while testifying. Had he done so,

the law is clear that Brundage should have been permitted to review their contents. Brundage

argued, production should have been granted because plaintiff refreshed his recollection out of

court prior to testifying. In support of his argument Brundage cites People v. Scott, 29 Ill.2d 97,

193 N.E.2d 814 (1963) where it was held that a party is entitled to examine documents used by a

witness to refresh his recollection prior to testifying. We must note, however, that the Scott case

involves a criminal charge of felony, and, in our opinion, is distinguishable on that basis.

Significantly, the rule in Scott has never been applied in civil proceedings.

The United States Supreme Court in Goldman v. United States, 316 U.S. 129 (1940) stated that,

"We think it the better rule that where a witness does not use his notes or memoranda in court, a

party has no absolute right to have them produced and to inspect them. Thus, under the instant

circumstances, the production of memoranda is a matter largely within the discretion here,

particularly in light of plaintiff's claim that the memoranda were protected from disclosure by the

attorney-client privilege and the work product rule.@ Cole at 344 N.E.2d 598.

Defendant was barred from rejecting arbitration award in favor of plaintiff because defendant

failed to comply with discovery, with orders to be deposed and failed to take action to correct the

sanctions imposed against him. Leticia Lopez v. Ryan Miller, No. 1-05-1035 (1st Dist., 2006)

DEFENDANT FAILURE TO APPEAR FOR DEPOSITION BARS DEFENDANT’S

PRESENTATION OF TESTIMONY AT MANDATORY ARBITRATION

Defendant, who failed to appear for deposition within time period specified in order allowing

motion to compel, was properly barred from presenting testimony at mandatory arbitration and

from rejecting arbitration award in favor of plaintiff. Even though discovery violation occurred

outside of arbitration, it directly impacted arbitration hearing; plaintiff took no action in months

30

between entry of order and arbitration to correct deficient compliance or to challenge order.

Lopez v. Miller, No. 1-05-1035 (1st Dist, February 2006)

31

Disclosures of Periodicals from Expert

If they are going to form the basis of your expert’s opinions they must be disclosed on the other

hand if you are going to use them purely to impeach the other parties witness and they constitute

publically accessible documents you can sit on them.

There may be many reasons to prohibit the use of the document in cross-examination, but in

general, if the document is equally available to both parties, in the public domain, easily

accessible or obtainable, only to be used on cross-examination, and is such that the witnesses

should be familiar with it if their testimony is to be given any credibility, then the cross-examiner

should be allowed to use the document in spite of nondisclosure." Southern Illinois Airport

Authority v. Smith, (Ill.App. 5 Dist. 1994) 641 N.E.2d 1240, 267 Ill.App.3d 201

(“we have held previously that a party’s later submission of an affidavit inconsistent with

that party’s deposition testimony will not raise a disputed issue of fact or prevent the entry

of summary judgment”). Morris v. Margulis, 197 Ill.2d 28 (S. Ct. of IL 2001)

The judicial policy behind this rule, which is well accepted in summary judgment cases, is that

once a party has given sworn testimony he should not be allowed to change his testimony to

avoid the consequences of his prior testimony.

Chmielewski v. Kahlfeldt, 237 Ill.App.3d 129 (2nd Dist. 1992).

Memorandum of Law Impeaching Evidence Deposition Testimony of Dr. Delicata by

Defense Counsel’s affidavit

NOW COMES, the plaintiff, , by and through her attorneys, Lane & Lane, LLC, and

pursuant to Supreme Court Rules 213, move this Court for entry of an order ruling on the

procedure for the video evidence deposition of , the defendant’s 213(f)(3) witness, and in

support of his motion shows this court the following, to wit:

Use of Attorneys Affidavit to Impeach Sworn Deposition Testimony of Retained Expert

Witness

A party is not allowed to introduce an affidavit that contradicts his prior sworn deposition

testimony. Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill.App.3d 103, 114

Ill.Dec. 360, 516 N.E.2d 515, Fountaine v. Hadlock, 132 Ill.App.2d 343, 270 N.E.2d 222;

Dupree v. Terry, 1 Ill.App.3d 169, 273 N.E.2d 630; Burnley v. Moore, 41 Ill.App.2d 156, 190

N.E.2d 141; Meier v. Pocius, 17 Ill.App.2d 332, 150 N.E.2d 215.

Impeachment of own witness

32

It is error to allow a party to impeach his own witness under Supreme Court Rule 238

(Ill.Rev.Stat.1977, ch. 110A, par. 238).

In Seibutis v. Smith, (Ill.App. 1 Dist. 1980) 404 N.E.2d 950, 83 Ill.App.3d 1010, the court stated:

“Rule 238 provides in part: "The party calling an occurrence witness, upon showing that

he called the witness in good faith and is surprised by his testimony, may impeach the

witness by proof of prior inconsistent statements." This part of Rule 238 is one exception

to the general rule that a party may not impeach his own witness. ( Martin v. Brennan

(1977), 54 Ill.App.3d 421, 12 Ill.Dec. 104, 369 N.E.2d 601; Kubisz v. Johnson (1975),

29 Ill.App.3d 381, 329 N.E.2d 815; Hall v. Baum Corp. (1973), 12 Ill.App.3d 755, 299

N.E.2d 156.) This part of Rule 238 is written in clear, unequivocal language. A party

calling an occurrence witness, which Paschalis was in the present case, must show he is

surprised by the witness' testimony before the witness may be impeached. One is

surprised when one is taken aback unexpectedly and without warning. (Webster's Third

New International Dictionary, p. 2301 (1976).) In the present case, the defendant was

unable to show surprise. * * * The mere fact that Paschalis gave damaging

testimony to the defendant did not bring Paschalis within Rule 238. See Martin v.

Brennan (1977), 54 Ill.App.3d 421, 12 Ill.Dec. 104, 369 N.E.2d 601.

Accordingly, we conclude the trial court committed error in allowing Paschalis to

be impeached under Rule 238.” (404 N.E.2d at 952-953)

Surprise should be claimed at the earliest opportunity. (People v. Wesley (1959), 18

Ill.2d 138, 163 N.E.2d 500, cert. denied, 364 U.S. 845, 81 S.Ct. 87, 5 L.Ed.2d 69.)

Supreme Court Rule 238 applies only to occurrence witnesses, not to expert witnesses;

furthermore, rule applies only to witnesses who, while on the witness stand, prove to be hostile,

uncooperative, or unwilling. Mazzone v. Holmes, App. 1 Dist.1990, 145 Ill.Dec. 416, 197

Ill.App.3d 886, 557 N.E.2d 186.

Admissions contained in a discovery deposition are admissible against a decedent's estate.

Estate of Rennick, In re, (Ill. 1998) 692 N.E.2d 1150, 181 Ill.2d 395, Excerpt from page 692

N.E.2d 1155

Using discovery deposition as evidence after death - SCR 212(a)

33

See Overcast v. Bodart, 203 Ill.Dec. 425 (Ill.App.4 Dist. 1194). Should be right on point. Once

the deposition is taken the witness does not belong to anyone there are numerous annotations on

this subject under the rule on depositions.

Evidence deposition is not "property" of party who takes it and any portion of evidence

deposition may be offered by either side. Prince v. Hutchinson, App. 2 Dist.1977, 8 Ill.Dec. 311,

49 Ill.App.3d 990, 365 N.E.2d 549. Pretrial Procedure K 203

Where one party takes a deposition unless he obtains leave before the trial and withdraws

it, if he fails or refuses to read it, the other party may introduce it. All depositions so long as

they are on file in the clerk's office when properly taken and containing evidence pertinent to the

issue may properly be used on the trial. Simpson Fruit Co. v. Atchison, T. & S. F. Ry. Co., 1912,

161 Ill.App. 406.

USE OF DEFENDANT EXPERT EVIDENCE DEPOSITIONS

Dobkowski v. Lowe's 314 N.E.2d 623 (5th Dist. 1974)

HN3 sets forth procedure for using opposing party evidence deposition in your case in chief

Dombrowski v. Laschinski, 385 N.E.2d 35 (1st Dist. 1978) supports partial use of depositions.

Court reporter and videographer costs related to evidence deposition of out-of-state

treating physician were taxable to defendant after verdict for plaintiff.

2nd Dist. Peltier v. Collins, No. 2-07-0432 (May 16, 2008) Ogle County (GILLERAN

JOHNSON) Affirmed

Trial court did not err when it awarded to the prevailing plaintiff, after trial, the cost of the court

reporter and videographer for the taking of plaintiffs out of state treating physicians evidence

deposition. The witness was unavailable for trial, being beyond the subpoena power or the court;

was necessary to prove plaintiffs personal injury damages; and expenses are authorized by SCR

208.

Statements made at deposition by party opponent admissible as party admissions

Admissions of a party are admissible as substantive evidence when offered by the opponent.

Gillson v. The Gulf, Mobile and Ohio Railroad Co., 42 Ill.2d 193, 197, 246 N.E.2d 269, 272

(1969). These statements are not hearsay. People vs. Aguilar, 265 Ill. App. 3d 105, 637 N.E. 2d

1221 (3rd

Dist. 1994). While a statement is usually damaging to the party against whom it is

offered, an admission does not need to be against the interest of the party, and any relevant

statement is admissible as substantive evidence. People vs. Aguilar, 265 Ill. App. 3d 105, 637

N.E. 2d 1221, 202 N.E. 2d 485 (3rd

Dist. 1994); Estate of Lewis, 193 Ill.App.3d 316, 323, 549

34

N.E.2d 960, 964 (4th

Dist. 1990); Nastasi vs. VMW, 209 Ill. App. 3d 830 (5th

Dist. 1991). There

is no foundation requirement predicating the receipt into evidence of admissions and the

availability of the party opponent at trial is not relevant. Security Savings and Loan Assn. v.

Commissioner of Savings and Loan Assn., 77 Ill.App.3d 606, 611, 396 N.E.2d 320, 324 (3rd

Dist.

1979) ("As the excerpts in question were offered as admissions, no predicate or foundation was

required for their use as direct and substantive evidence."); Behrstock v. Ace Hose and Rubber

Co., 147 Ill.App.3d 76, 87, 496 N.E.2d 1024, 1031 (1st Dist. 1986) (Trial court properly admitted

portions of discovery depositions into evidence, even though the persons who made the

statements were in court and available to testify.)

AN EXPERT DOCTOR'S WRITTEN MEDICAL REPORT PREPARED PURSUANT TO

SECTION 2-622 OF CODE OF CIVIL PROCEDURE MAY BE USED AGAINST HIM

AS A PRIOR INCONSISTENT STATEMENT FOR IMPEACHMENT PURPOSES.

EXPERT'S CAUSATION OPINIONS HAD BEEN ADEQUATELY DISCLOSED UNDER

RULE 213 BY THE DEFENSE’S DISCLOSURES, COMBINED WITH HIS RESPONSES

TO HYPOTHETICAL QUESTIONS AT HIS DEPOSITION

AN EXPERT MAY BE CROSS-EXAMINED WITH ARTICLES AND TREATISES HE

DOES NOT RECOGNIZE, PROVIDED SOME OTHER EXPERT HAS TESTIFIED

THAT THE PUBLICATIONS ARE AUTHORITATIVE

EXPERT’S GENERAL REFERENCES AT TRIAL TO MEDICAL LITERATURE DOES

NOT VIOLATE RULE 213 DISCLOSURE REQUIREMENTS WHERE IT IS

CONSISTENT WITH EXPERT’S DEPOSITION TESTIMONY.

Iaccino, a Minor v. Anderson , No. 1-07-0207 (December 20, 2010) Cook Co., 1st Div. (HALL)

Affirmed.

An expert doctor's written medical report prepared pursuant to Section 2-622 of Code of Civil

Procedure may be used against him as a prior inconsistent statement for impeachment purposes.

In this case, the trial court properly ruled in allowing defense counsel to cross-examine and

impeach one of Plaintiff’s experts, using excerpts from his written medical report. In his written

medical report, the expert interpreted the decelerations that he saw on the fetal monitor strip as

"variable decelerations." At trial, he changed his opinion and testified on direct examination that

he interpreted the decelerations as either "late decelerations," or "variable decelerations with a

late component." Plaintiffs argued that allowing an expert to be impeached with his written

medical report would unfairly handicap the expert because the report is only a threshold opinion

usually prepared at a point before all of the facts are fully developed in discovery. The Court

disagreed, stating: “Section 2-622 does not prescribe the form that a written medical report must

take and there is nothing in the statute that prevents the author of such a report from qualifying

his opinions to make clear that they are preliminary opinions subject to amendment or

35

supplementation upon the acquisition of additional information such as additional medical

records or deposition testimony. Therefore, allowing an expert doctor to be impeached with his

written medical report would not be unfair since the doctor could explain that his report was

prepared during the early stages of discovery or he could attempt to explain any inconsistencies

between his report and his trial testimony. See Cohen v. Dauphinee, 739 So. 2d 68, 77 (Fla.

1999) (Anstead, J.,dissenting) (interpreting similar statute); see also Barnett v.Hidalgo, 478

Mich. 151, 164, 732 N.W.2d 472, 480 (2007). In addition, the Court held that allowing such

cross-examination actually furthers the ;legislative goal of discouraging frivolous suits.

The court also held that the defense’s pediatric pathologist expert's causation opinions

had been adequately disclosed under Rule 213 by the defense’s disclosures, combined with his

responses to hypothetical questions at his deposition from which it could be inferred that the

three identified pathologies all combined to possibly cause the medical condition in issue.

Physician expert was properly cross-examined through the use of literature even though

he did not authenticate them as being authoritative, since other experts had. “An expert may be

cross-examined with articles and treatises he does not recognize, provided some other expert has

testified that the publications are authoritative. See Bowman v. University of Chicago Hospitals,

366 Ill. App. 3d 577, 587-88, 852 N.E.2d 383 (2006); Stapleton, 403 Ill. App. 3d at 157-58; see

also Tsoukas, 315 Ill. App. 3d at 380 ("[i]t is not improper to allow questioning to discover what

potentially relevant information plaintiff's expert may have failed to consider in reaching an

opinion"). In addition, an expert may be cross-examined with respect to material he has

reviewed, but upon which he did not rely. Piano v. Davison, 157 Ill. App. 3d 649, 671-72, 510

N.E.2d 1066 (1987); Jager v. Libretti, 273 Ill. App. 3d 960, 962-63, 652 N.E.2d 1120 (1995). In

the instant case, plaintiffs took issue with three medical articles: (1) an article authored by Dr.

Yvonne Wu, published in the Journal of the American Medical Association (JAMA) on

September 20, 2000; (2) an article authored by Dr. Karin Nelson, published in JAMA on July 16,

1997; and (3) a monograph published by the American College of Obstetricians and

Gynecologists (ACOG). These articles had either been reviewed by plaintiffs' expert witnesses

prior to their cross-examination or the articles were established to be authoritative by other

expert witnesses prior to cross-examination. Therefore, the trial court did not err in permitting

defendants to cross-examine and impeach plaintiffs' expert witnesses using the medical literature

in question.

Defense expert’s general references at trial to medical literature did not violate Rule 213

disclosure requirements. At his discovery deposition, when Dr. Chalhub was asked if he was

"relying on any specific literature" to support his opinions, the doctor responded, "No, I mean, I

think the literature is fairly extensive concerning this case." Plaintiffs' counsel then asked Dr.

Chalhub if he was "going to point to one particular article or set of articles as a specific basis" of

his opinions. The doctor responded, "No. I mean, there are too many that are, you know, quite

explicit about the issues in this case."

36

At trial, Dr. Chalhub testified that his opinions were supported by the medical literature.

He did not cite any particular publication or article and he did not point to any particular passage.

The doctor only testified that his opinions were supported by the medical literature in general. In

this regard, Dr. Chalhub's trial testimony concerning the medical literature was consistent with

his deposition testimony. Since we have determined that defendants' use of the medical literature

in the cross-examination of plaintiffs' expert witnesses was not improper, then it follows that

reference to this literature in defendants' closing argument was also not improper. See, e.g.,

Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d 42, 45, 463 N.E.2d 216 (1984) (attorney

uses exhibits to cross-examine expert witnesses and relies on the exhibits in her closing

argument).

USE OF DISCOVERY DEPOSITION

On 12/8/10 the Illinois Supreme Court adopted an amendment to Rule 212(a)(5) that gives a

court discretion to use a party's discovery deposition as evidence at trial if the deponent is

unavailable due to death or infirmity. This Rule change was in response to the case of Berry v.

American Standard, Inc., 321 Ill.Dec. 221 (5th Dist. 2008).

DECEDENT'S DISCOVERY DEPOSITION NOT ADMISSIBLE ALTHOUGH THE

WIFE SUBSTITUTED IN AS PARTY PLAINTIFF AS ADMINISTRATOR OF HIS

ESTATE

Plaintiff suffering from terminal Mesothelioma unsuccessfully sought to have his evidence

deposition taken, and his discovery deposition was extended over a sufficiently long period of

time that he died before it could be taken. Court held that he remained "a party to the litigation"

for purposes of Supreme Court Rule 212(a)(5) even after his wife was substituted as plaintiff as

administrator of his estate. Additionally, his deposition testimony does not qualify as a dying

declaration. Therefore, his discovery deposition could not be used as evidence at trial and was

properly barred by the trial court. In this case, plaintiff filed an asbestos action. He had 8 to 18

months to live when the lawsuit was filed. The plaintiff tried to take his evidence deposition but

the defendants wanted a discovery deposition first. It took 6 months and several sessions to take

his discovery deposition. Finally, the discovery deposition was taken but the plaintiff died 1

month later before his evidence deposition was taken. Plaintiff wanted to use his discovery

deposition as an evidence deposition. The court held that pursuant to Supreme Court Rule

212(a)(5), a party's discovery deposition may not be used as an evidence deposition. The

decedent was still a party for the purposes of this rule. Also, the testimony does not constitute a

dying declaration because this principal of law has never been used in a civil case and the

plaintiff did not believe that his death was eminent when he gave his deposition. Therefore, the

trial court properly granted summary judgment because the plaintiff could not prove the case

without his testimony. Berry v. American Standard Inc., 5-06-0621 (5th Dist. 2008).

37

DECEASED PARTY’S ADMISSION DURING DISCOVERY DEPOSITION

ADMISSIBLE AGAINST ESTATE: A now deceased party’s admissions during a discovery

deposition can be used at trial against the party’s estate. These admissions may properly be used

as evidence against the decedent’s estate under Supreme Court Rule 212. Rennick v. Rennick,

No. 82872 (Il.S.Ct. 1997). (In light of this decision, it is important to elaborate in your

deposition to clarify any discrepancies made.)

MENTAL HEALTH RECORDS: The criminal defendant waives the protection of his mental

health records at his criminal trial if he relies on the defense of insanity. Therefore if the

plaintiff, in a subsequent civil action against the criminal defendant's psychiatrist, seeks

production of the patient's records and depositions of the doctor, the waiver in the prior

proceedings is considered to be a waiver in the subsequent proceedings. Novak v. Rathnam, 478

N.E.2d 1334 (1985).

DEPOSITION OF AN INCOMPETENT: The deposition of an incompetent plaintiff may be

taken by the defendant but not used to impeach at trial. Diminskis vs. CTA, 508 N.E.2d 215 (1st

1987).

DEPOSITIONS -- INSTRUCTING THE WITNESS NOT TO ANSWER: If a deponent

refuses to answer any question during his deposition, the deposition can be completed on other

matters or adjourned, as the proponent of the question may prefer. Thereafter the proponent may

move the court for an order compelling an answer and the court may award costs if it appears

either party acted without substantial justification. Sup. Ct. Rule 219.

EVIDENCE DEPOSITIONS -- ANTICIPATING AN ADVERSE RULING: The plaintiff

asked the witness for an opinion. The defendant objected but cross examined the witness on the

basis of his opinion in the event the objection was overruled. The trial court sustained the

objection but allowed the cross examination to be read to the jury. On appeal the court said the

trial court probably erred but that the error was harmless. Hinrichs vs. Mabrey, 485 N.E.2d 572

(3d 1986).

NEW OPINION OF EXPERT: The facts known by an expert or opinions which he holds may

not, at trial, be inconsistent with those disclosed during discovery through interrogatories,

depositions, etc. Hoverer, an expert's opinion may change at trial if, during the proceedings,

testimony is elicited from a witness which affects the expert's opinion. Crawford vs. Grady, 514

N.E.2d 532 (4th 1987).

ATTORNEY CLIENT PRIVILEGE C CONTROL GROUP: For the purposes of taking

statements and depositions of the defendant's employees, this privilege extends only to those

employees who are in the "control group". Fair vs Car-X, 471 N.E.2d 554 (2d 1984). To argue

that the statements of these people should be protected, the proponent would have to prove that

38

no final decision as to the litigation would be made without first consulting the witnesses.

Claxton v Thackston, 559 N.E.2d 82 (1st 1990).

COMMUNICATION WITH A TREATING DOCTOR C SANCTIONS: This court allowed

the following sanctions:

the court should bar the testimony of defendant's expert...; it should prohibit and

examination by defendant's counsel of any of the treating physicians with whom

defendant's counsel communicated; it should permit the opinions expressed by

[the treating doctor] in his...discovery deposition to be read to the jury as

substantive evidence; and it should award plaintiff the attorney fees and costs he

incurred in connection with taking the evidentiary depositions of [the treating

physicians].

Nastasi vs. UMWA Union Hosp. 567 N.E.2d 1358 (1st 1990).

VIDEOTAPE DEPOSITIONS C FAILURE TO FOLLOW THE EXACT

REQUIREMENTS OF THE RULE: The failure to follow Rule 206(f) did not per se render

the videotape inadmissible under the facts of this case. The person objecting to the deposition

must show some prejudice from the failure to follow the rules. Healy v Bearco, 576 N.E.2d 1195

(2d 1991).

ATTORNEY'S DUTY TO DISCLOSE FALSE QUALIFICATIONS OF EXPERT:

Attorney did not have duty to immediately disclose falsehood by patient's expert witness, during

deposition concerning his qualifications in order to disclose possibility expert would commit

perjury during trial of medical malpractice action. Attorney did bring fraud to attention of trial

court during cross-examination and patient failed to establish unequal access to means to verify

his expert's qualifications. Flynn v. Edmonds, 602 N.E.2d 880 (4th Dist. 1992).

EXPERT MAY NOT DEVIATE FROM DEPOSITION TESTIMONY: In med mal case,

court properly instructed jury to disregard two opinions expressed by plaintiff's expert because

they deviated from expert's deposition testimony. Jackson v. Naffah, 609 N.E.2d 958 (1st Dist.

1993).

MISSING WITNESS INSTRUCTION FOR ABANDONED EXPERT IMPROPER: Trial

court erred in admitting deposition testimony of medical expert who plaintiff abandoned nineteen

months before trial and error was compounded by giving the missing witness instruction. The

trial court allowed portions of the doctor's discovery deposition to be read into evidence on the

basis that it constituted an admission of a party's agent under Rule 220. Appellate court reversed

holding that the statements made during the course of the discovery deposition by an expert

medical witness engaged by a party do not constitute statements which may be introduced as

those of a party opponent. Missing witness instruction was improper since the plaintiff had

39

abandoned the expert nineteen months before trial. The defendant had ample time to seek him as

a witness. Taylor v. Kohli, 642 N.E.2d 467 (Ill. Sup. Ct. 1994).

TREATING NURSES CAN BE COMPELLED TO DISCLOSE OPINIONS: During

deposition, nurses refused to state any opinions on the basis that, because they were not experts,

this would amount to a taking of their intellectual property without just compensation. Relying

on Fawcett v. Reinertsen, 546 N.E.2d 558 (Ill. Sup. Ct. 1989), court found the involvement of

these nurses in the case is treatment related rather than litigation related. The standard of care is

an element of this cause of action, and any opinions the treating nurses have as to the standard of

care are relevant and discoverable. Therefore, nurses were compelled to give their expert

opinions. Crnkovich v. Almedia, 634 N.E.2d 1130 (3d Dist. 1994).

FRIVOLOUS OBJECTIONS AT DEPOSITION MAY WARRANT SANCTIONS: Where

defendant insurance company made frivolous objections and improperly instructed defendant not

to answer questions at deposition and attorney terminated deposition, discovery sanctions in the

form of barring witness' testimony and barring presentation of defense and ordering payment to

plaintiff's attorney for time spent at deposition was warranted. Golembiewski v. Hallberg

Insurance Agency, 635 N.E.2d 452 (1st Dist. 1994).

ADMISSIONS IN DISCOVERY DEPOSITION PRIOR TO DEATH ARE ADMISSIBLE:

Overcast v. Bodart, 639 N.E.2d 984 (4th Dist. 1994).

WITNESS MAY BE SUBJECT TO CRIMINAL PERJURY CHARGE FROM

STATEMENTS MADE IN A CIVIL DEPOSITION: People v. Davis, 647 N.E.2d 977 (Ill.

Sup. Ct. 1995).

FAILURE TO ANSWER DISCOVERY MAY RESULT IN SANCTIONS: Law firm's

refusal to answer interrogatories and instruction to client not to answer certain deposition

questions support imposition of sanctions for refusing to comply with discovery. Kellett v.

Roberts, 658 N.E.2d 496 (2d Dist. 1995).

COUNSEL DID NOT EXERCISE DILIGENCE TO PROCURE ATTENDANCE OF

WITNESS AT TRIAL TO USE DEPOSITION: Court found that plaintiff's counsel had not

used reasonable diligence to procure the attendance at trial of a witness who was released from

jail and subsequently disappeared and therefore plaintiff was unable to procure that witness's

attendance so as to entitle the plaintiff to introduce the witness's deposition. Griman v.

Makousky, 1996 WL 48577

DECEASED DEFENDANT ATTORNEY'S STATEMENTS IN DEPOSITION

TRANSCRIPT ADMISSIBLE IN LEGAL MALPRACTICE ACTION: In legal malpractice

action against attorney who died shortly after his discovery deposition was taken, trial court

erred in ruling that attorney's discovery deposition was inadmissible. Supreme Court Rule

40

212(a)(2) clearly states that admissions in discovery depositions can be used in the same manner

as any other admission made by that party. Furniss v. Rennick, 676 N.E.2d 8 (3d Dist. 1997).

(7th Cir. Ct. of Appeals, 1996).

WORK PRODUCT PRIVILEGE WAIVED AS TO DOCUMENTS SENT TO WITNESS:

A plaintiff's attorney waived the work product privilege as to a memorandum intended to prepare

the plaintiff and some of his witnesses for depositions. The attorney sent the memorandum to a

deponent who was merely a fact witness and who did not have a claim against the defendants

issuing the deposition subpoenas. The memorandum did not indicate it was confidential. Behnia

v. Shapiro, 1997 WL 641294 (N.D. Ill. 1997).

ADMISSIONS IN DISCOVERY DEPOSITION ARE ADMISSIBLE ARE AGAINST

ESTATE OF DEPONENT: Such admissions are admissible in the same manner as admissions

not contained in a discovery deposition. Death does not erase an admission from a party’s lips

when the admission is made outside the context of a discovery deposition, and no justification

exists for excluding such admissions from a later action against the party’s estate. No unfairness

results from allowing the use of such admissions, because a party who gives an incomplete

answer during a deposition may rightly suffer from such a lack of disclosure by forfeiting further

opportunity, after the party’s dep, to contradict or explain the admission. In re: Estate of

Rennick, 1998 WL 29882 (Ill. 1998).

A DISCOVERY DEPOSITION MAY BE USED FOR SEVERAL PURPOSES UNDER

SUPREME COURT RULE 212(a): In this case, the trial court properly refused to permit

defendants to present in evidence portions of a discovery deposition concerning reasons for

terminating plaintiff. Supreme Court Rule 212(a) provides that discovery depositions may be

offered into evidence only for the following reasons: (1) to impeach the deponent by a witness;

(2) as an admission of a party opponent; (3) if admissible as an exception to the Hearsay Rule;

and (4) for any purpose for which an affidavit can be used. Knickman v. Midland Risk Services

Illinois, 700 N.E.2d 458 (4th

Dist. 1998).

OPINION TESTIMONY PURSUANT TO SUPREME COURT RULE 213(g) MUST BE

SPECIFICALLY DISCLOSED TO BE ADMISSIBLE: It is important to remember that

Supreme Court Rule 213 requires a party to seasonably supplement or amend answers when new

or additional information becomes known. If a deposition of an opinion witness is taken, the

witnesses’ testimony at trial will be limited to the opinions expressed therein in addition to those

identified in answers to Rule 213(g) Interrogatories. The opinions expressed in a deposition

need not be later specifically identified in Rule 213(g) answers, but the burden is on the

proponent of the witness to prove the opinions were provided in deposition or in answer to Rule

213(g) Interrogatory. Rule 213(g) imposes mandatory disclosure requirements for opinion

witnesses. Where a party fails to comply with the provisions of Rule 213, a court should not

41

hesitate sanctioning the party because Rule 213 demands a strict compliance. In this case,

doctor’s opinions regarding certain testing should have been barred because his deposition

testimony did not cover these opinions and these opinions were not disclosed in 213(g) Answers

to Interrogatories. Firstar Bank of Illinois v. Peirce, No. 1-98-2579 (1st Dist. 1999).

RULE 213 REQUIREMENTS SET A HIGHER STANDARD FOR DISCLOSURE THAN

RULE 220 AND CREATES A BRIGHT LINE RULE WHICH MUST BE FOLLOWED:

The trial court erred when it failed to sustain Rule 213 objection to defendant’s medical expert’s

evidence deposition. There have been numerous opinions rendered which were not adequately

disclosed in discovery. Rule 213, as amended, sets a higher standard for disclosure than former

Rule 220 and creates a bright line rule which must be followed. The opinions disclosed were

substantial and require reversal and a new trial. Seef v. Ingall’s Memorial Hospital, No. 1-98-

1220 (1st Dist. 1999).

ATTORNEY’S SECRETARY CANNOT VIDEO TAPE DEPOSITION BECAUSE

FINANCIALLY INTERESTED: Trial court correctly ruled that secretary of attorney of one of

the parties could not video tape deposition because employee of attorney is financially

interested@ in the outcome of the litigation and is therefore disqualified from videotaping

deposition pursuant to the provisions of Supreme Court Rule 205(d). In re: Marriage of

Zuberbrier, No. 2-99-0143 (2nd

Dist. 1999).

PRIOR DEPOSITION TESTIMONY OF EXPERT ALLOWED FOR IMPEACHMENT

PURPOSES DESPITE NOT BEING DISCLOSED DURING DISCOVERY: Trial court did

not err when it allowed counsel to use undisclosed deposition given shortly before trial to

impeach plaintiff’s expert where plaintiff’s expert refused to answer questions with regards to

other products about which he was acting as consultant and where both sides claimed ambush on

the part of the other with regards to expert testimony. Trial court did not limit testimony of

defendant’s experts and plaintiff had opened door, and trial court did the best it could and has

broad discretion. Further, court properly gave assumption of risk instruction with regards to

ATV where there was written warning on vehicle itself and plaintiff’s decedent had been

specifically warned about risk of turnover when on incline. Boland v. Kawasaki Motors

Manufacturing Corp., No. 4-98-0911 (4th

Dist. 2000).

PLAINTIFF’S OBJECTION TO DEFENDANT’S FAILURE TO COMPLY WITH RULE

213 WAIVED ON BASIS THAT IN TRIAL COURT OBJECTED ON BASIS OF RULE

220: In this case, the defendant failed to disclose himself as an opinion witness pursuant to Rule

213. However, in the trial court, plaintiff objected to the failure to disclose pursuant to Rule 220.

The trial court overruled plaintiff’s objections on the basis of Rule 220. The Supreme Court held

that Rule 213, not Rule 220 applied. However, since plaintiff failed to object on the basis of

Rule 213 and only objected on the basis of Rule 220, the plaintiff induced the trial court to make

the error and waived any error on appeal. In other words, because of her previous inconsistent

42

position, the plaintiff is foreclosed from arguing that defendant’s testimony was erroneously

admitted under Rule 213. After inviting the trial court to rule on the admissibility of the

evidence based on Rule 220, the plaintiff is precluded from complaining now that the Circuit

Court’s ruling was erroneous based on some other evidentiary rule, i.e., Rule 213. McMath v.

Katholi, No. 87795 (Il. S. Ct. 2000).

DEFENDANT’S EXPERT ALLOWED TO TESTIFY REGARDING ALL OPINIONS

EVEN THOUGH ONLY GIST OF OPINIONS DISCLOSED PURSUANT TO CASE

MANAGEMENT ORDER: Defendant’s expert witness gave the gist of his opinion pursuant to

case management order and not pursuant to Supreme Court Rule 213(g). Trial court was correct

in not precluding the expert witness from disclosing his full opinion. The case management

order required the parties to disclose the gist of their opinion witness testimony. The case

management order also provided for disclosure of opinion witnesses and completion of discovery

pursuant to 218(c). Both parties were faulted for what happened in this situation. Defendant

should have initially provided detailed opinion witness disclosures despite the fact that they were

only required to disclose the gist of those opinions pursuant to the case management order. On

the other hand, plaintiff determined that the defendant’s initial disclosure was not sufficient to

permit a thorough deposition of defendant’s experts, plaintiff should have required defendants to

provide more detailed disclosure before proceeding with the deposition. Plaintiff opted to take a

brief deposition without exhausting the bases for the doctor’s ultimate opinion that defendants

complied with the standard of care when treating the plaintiff. It should also be noted that the

plaintiff was given the opportunity to redepose the doctor but she declined. Schuler v. Mid-

Central Cardiology, 729 N.E.2d 536 (4th

Dist. 2000).

EXPERT WITNESS MAY BASE TESTIMONY ON ALITERATURE@ WITHOUT

IDENTIFYING IT ON DIRECT EXAMINATION: It was proper for patient’s medical expert

witnesses to base their testimony on literature without identifying it on direct examination in

patient’s medical negligence action against physician. Expert witnesses were permitted to testify

based on inadmissible literature and physician was not precluded from cross examining expert

witnesses, and patient’s experts relied on bases other than anecdotal case reports to support their

causation theory that physician’s prescription of steroidal medication to patient caused patient to

develop a bone disease. Expert witness’ testimony was that physician’s dosage of a steroidal

medication to patient had been reported to be sufficient to cause particular bone disease that

patient developed. This testimony did not violate provision in rule imposing disclosure

requirements for opinion witness’ testimony at trial that would be limited to opinions expressed

in his deposition. Expert answered questions in his deposition as to whether he believed

physician’s dosage of medication caused patient’s bone disease and expert identified himself as

an expert regarding causal relation between specific doses of medication and bone disease,

basing his expertise on literature. Becht v. Palac, 740 N.E.2d 1131 (1st Dist. 2000).

43

DISCOVERY DEPOSITION OF MEDICAL EXPERT WAS NOT RECOVERABLE

COST: The discovery deposition of a medical expert was not a recoverable cost where the

deposition was not used at trial. In order for the deposition cost to be taxed, the deposition must

have been necessary. Hesson v. Leichsenring, 748 N.E.2d 795 (4th Dist. 2001).

DEPOSITION TRANSCRIPT OF TREATING PHYSICIAN SATISFIES 2-622

REQUIREMENT IN MEDICAL MALPRACTICE CASE: Moyer v. Southern Illinois

Hospital Service Corp., 764 N.E.2d 155 (5th

Dist. 2002).

RULE 213 VIOLATED WHERE PARTY FAILED TO DISCLOSE THROUGH

SUPPLEMENTING EXPERT DEPOSITION BY ANSWERS REVEALING THAT PART

OF BASES FOR EXPERT’S TRIAL TESTIMONY WOULD BE NEW INFORMATION

LEARNED THROUGH READING OF DEPOSITION OF OTHER EXPERTS AFTER

EXPERT’S DEPOSITION EVEN THOUGH ADDITIONAL MATERIAL DID NOT

CHANGE EXPERT’S OPINION OR BROADEN BASES FOR THAT OPINION:

Coleman v. Abella, 752 N.E.2d 1150 (1st Dist. 2001).

Pre-trial disclosure of experts' opinions:

An excerpt from a recent First District case, Foley v Fletcher , 361 Ill.App. 3d 39, 836 N.E.2d

667 (1st Dist., 2005), offers a fair summary of the law on the question of adequacy of pre-trial

disclosures of experts' opinions:

The purpose of discovery rules, governing the Atimely disclosure of expert witnesses, their

opinions, and the bases for those opinions is to avoid surprise and to discourage strategic

gamesmanship.@ Thomas v. Johnson Controls, Inc., 344 Ill.App.3d 1026, 1032, 801 N.E.2d 90

(2003). Supreme Court Rule 213 disclosures are mandatory and strict compliance is required.

Sullivan, 209 Ill.2d at 109. Rule 213(f)(3) requires parties to furnish, among other things, the

subject matter, conclusions and opinions of controlled expert witnesses who will testify at trial.

Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213(f)(3), eff. July 1, 2002. Rule

213(g) limits expert opinions at trial to A[t]he information disclosed in answer to a Rule 213(f)

interrogatory, or at deposition.@ Official Reports Advance Sheet No. 8 (April 17, 2002), R.

213(g), eff. July 1, 2002. A witness may elaborate on a disclosed opinion as long as the

testimony states logical corollaries to the opinion, rather than new reasons for it. Barton v.

Chicago & North Western Transportation Co., 325 Ill.App.3d 1005, 1039, 757 N.E.2d 533

(2001). The testimony at trial must be encompassed by the original opinion. Prairie v. Snow

Valley Health Resources, Inc., 324 Ill.App.3d 568, 576, 755 N.E.2d 1021 (2001). A party’s Rule

213 disclosures must Adrop down to specifics.@ Sullivan, 209 Ill.2d at 109. While it is improper

for a trial court to allow previously undisclosed opinions that advance a new negligence theory

(Clayton v. County of Cook, 346 Ill.App.3d 367, 805 N.E.2d 222 (2003)), testimony is not a new

44

opinion merely because it refers to a more precise time than appeared in the expert’s Rule 213

disclosure (Seef v. Ingalls Memorial Hospital, 311 Ill.App.3d 7, 23, 724 N.E.2d 115 (1999)).

Evidence deposition is not "property" of party who takes it and any portion of evidence

deposition may be offered by either side. Prince v. Hutchinson, App. 2 Dist.1977, 8 Ill.Dec. 311,

49 Ill.App.3d 990, 365 N.E.2d 549. Pretrial Procedure K 203 Where one party takes a deposition

unless he obtains leave before the trial and withdraws it, if he fails or refuses to read it, the other

party may introduce it. All depositions so long as they are on file in the clerk's office when

properly taken and containing evidence pertinent to the issue may properly be used on the trial.

Simpson Fruit Co. v. Atchison, T. & S. F. Ry. Co., 1912, 161 Ill.App. 406.

Can a witness elaborate on a prior opinion without violating Rule 213?

It depends. One must be very careful in eliciting testimony at trial since there is often a fine line

between what constitutes a new opinion versus what constitutes an elaboration or explanation of

a previously disclosed opinion. A new undisclosed opinion will likely be barred and may lead to

sanctions against the party attempting to introduce it. An elaboration or explanation of a

previously disclosed opinion will probably be admissible, but a great deal will depend on how

broadly or narrowly the trial court interprets the scope of the previously disclosed opinion. The

Illinois Supreme Court has addressed this issue under former Rule 213(g) involving experts in

two cases with different results.

In Schultz v. Northeast Illinois Regional Commuter Railroad Corp., 201 III.2d 260, 775 N.E.2d

964, 266 III.Dec. 892 (III. 2002), the Supreme Court heard an appeal based on a jury verdict for

the plaintiff in a case brought under the Federal Employers' Liability Act (FELA). The Court

addressed the defendant's argument that the trial court erred in allowing plaintiff's expert witness,

a structural engineer, to testify that various governmental regulations were evidences of the

standard of care. Defendant argued that plaintiff's expert's opinion was not properly disclosed by

plaintiff under former Rule 213(g). The Supreme Court disagreed. The Supreme Court concluded

that, while plaintiff's expert "never explicitly stated in his deposition or report that the safety

standards promulgated by various organizations were evidences of a standard of care," it was

"implicit" in his disclosed opinions. 755 N.E.2d at 985, 266 III. Dec. at 913. The Supreme Court

further found that the defendant was not surprised by the plaintiff's expert's testimony, and thus,

there was no prejudice to the defense.

The Supreme Court again addressed the admissibility of testimony from an expert under former

Rule 213(g) in Sullivan v. Edward Hospital, 209 III.2d 100, 806 N.E.2d 645, 282 III.Dec. 348

(2004), a medical malpractice action. Plaintiff appealed a directed verdict in favor of defendant

hospital. Plaintiff argued that the trial court had erred in striking her retained expert's opinion at

trial that the hospital nurse deviated from the standard of care. Plaintiff conceded that the specific

opinion at issue was not contained in plaintiff's Rule 213 disclosure. The Supreme Court rejected

45

plaintiff's argument that the "gist" of her expert's specific opinion at trial was merely an

"elaboration" or "logical corollary" of, or "effectively" implicated in plaintiff's Rule 213 disclo-

sure. 806 N.E.2d at 652, 282 III.Dec. at 355. The court agreed with the trial court that Rule 213

requires that "you have to drop down to specifics." Id. The court stressed that Rule 213 permits

litigants to rely on the disclosed opinions of the opposing party's experts in order to construct

their trial strategy.

In Foley v. Fletcher, 361 III. App. 3d 39, 836 N.E.2d 667, 296 III.Dec. 916 (1st Dist. 2005), a

medical malpractice action, the appellate court noted that a witness is allowed to elaborate on a

disclosed opinion as long as the testimony states logical corollaries to the opinion and does not

set forth new reasons for it. The testimony at trial must be encompassed by the original opinion.

Rule 213 disclosures must include specifics. While it would be improper for a trial court to allow

previously undisclosed opinions that advance a new negligence theory, testimony is not a new

opinion merely because it refers to a more precise time than appeared in the expert's Rule 213

disclosure. 836 N.E.2d at 674, 296 III.Dec. at 923.

In Brax v. Kennedy, 363 III.App. 3d 343, 841 N.E.2d 137, 298 III.Dec. 994 (1st Dist. 2005), the

First District found in a medical malpractice case that, while the opinion expressed by the

defendant physician at trial was not specifically asked of him during his deposition, the subject

matter was raised during defendant's deposition. Thus, the court found that the particular

question and answer complained of at trial were permissible as an elaboration on, or a logical

corollary to, the originally revealed opinion. 841 N.E.2d at 148, 298 III.Dec. at 1005. (This case

appears to adopt an analysis that was employed under old Rule 220).