The Illinois Supreme Court Rules on disclosure of expert witnesses contain a mandatory procedure that places the burden of full and complete disclosure on the proponent of the witness. Specifically, Ill. S. Ct. R. 213(f)(3) provides that:
Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.
The clear, mandatory language is intended to satisfy the purpose of the rule, which is “to avoid surprise and to discourage tactical gamesmanship.” The Illinois Supreme Court affirmed that rule 213 requires strict compliance when it quoted the Fourth District Appellate Court’s decision in DOT v. Crull stating that “[t]rial courts should be more reluctant under Rule 213 . . . to permit [] parties [from] deviat[ing] from the strict disclosure requirements.” In a recent Fourth District decision, Enbridge Pipeline (Ill.), LLC v. Hoke, the appellate court reaffirmed the mandatory requirements of Rule 213 and declined to follow a more lenient approach taken by the Fifth District Appellate Court.
Fifth District – Brdar v. Cottrell, Inc.
Notwithstanding the plain mandatory language of the rule, the Fifth District in Brdar v. Cottrell, Inc. upheld a trial court’s decision to allow a witness to testify where the disclosures made violated rule 213(f)(3). In Brdar, the Plaintiff repeatedly violated case management orders, providing untimely and inadequate disclosures of expert witnesses. Defendants made no attempt to compel the plaintiff to fully comply with the trial court’s deadlines. Defendants also failed to object when the Plaintiffs sought leave of court to make the untimely 213 disclosures. Nor did the defendants demand the full and complete disclosure of opinions required by Rule 213 prior to trial. Instead, Defendants waited until the time of trial to object to the plaintiff’s expert witness disclosures. Breaking from Fourth District and Supreme Court precedent, the Fifth District affirmed the trial court’s decision to not enforce the mandatory language of Rule 213(f) and held that the defendants waited until the last-minute to object to the plaintiff’s expert witness disclosures and further made no attempt whatsoever to compel compliance with the trial court’s orders. Thus in Brdar, the Fifth District allowed the trial court to shift the burden of discovering the Plaintiff’s expert’s opinions to the defendant.
Fourth District – DOT v. Crull
The approach in Brdar was completely contrary to the Fourth District’s opinion in DOT v. Crull (subsequently cited with approval by the Illinois Supreme Court in Sullivan v. Edward Hosp.), which emphatically enforced strict compliance with the mandatory language of Rule 213(f). In Crull, an eminent domain case, the trial court allowed the defendant landowner’s expert witness to offer opinions on the fair market value of the remainder property without proper disclosure under Rule 213 because it was “in the best interest of justice to allow the testimony.” Adhering to the policy considerations behind Rule 213 and citing its mandatory language, the Fourth District reversed the trial court stating that “[t]o allow either side to ignore Rule 213’s plain language defeats its purpose and encourages tactical gamesmanship.” As for the burden of disclosing expert opinions and the time for raising inadequate disclosures, the appellate court stated:
We decline to impose upon counsel any legal, moral, or professional obligation of any kind to inform her opponent of weaknesses in the opponent’s case, witnesses, or proposed evidence. Neither Illinois law nor professional ethics require an attorney to advise his or her opponent of such deficiencies or how best to present his or her case.
Thus, the court held that failure to disclose the expert’s opinions and their bases prohibited defendants from introducing those opinions at trial.
Enbridge Pipeline (Ill.), LLC v. Hoke
In July 2017, the Fourth District expressly declined to follow the Fifth District’s holding in Brdar, noting that its holding was contrary to the express and mandatory language of Rule 213. Hoke was an eminent domain case where the defendants disclosed value and damages opinions of a licensed real estate appraiser pursuant to Rule 213. While the Defendants’ disclosures claimed that their expert appraiser relied on comparable sales, no such sales were identified prior to trial. In addition, a pre-trial supplemental Rule 213 disclosure of the expert consisted of a 7000-page work file containing discernable manner of identifying the specific comparable sales used by the expert for the properties at issue. In barring defendants’ expert from testifying, the trial court stated that it would require “telepathy” to determine the comparable sales used in each respective case. The defendants appealed and relying on Brdar argued that the plaintiff’s failure to depose defendants’ expert on the supplemental disclosure to elicit information about the comparable sales was “against the spirit of the discovery rules.” The Fourth District disagreed and reaffirmed its prior conclusion that Rule 213 imposes no “legal, moral, or professional obligation of any kind [upon counsel] to inform her opponent of weaknesses in the opponent’s case, witness, or proposed evidence.” According to the appellate court in Hoke, imposing an obligation upon the party opposing an expert witness would “encourage the type of tactical gamesmanship that occurred in this case.” The Fourth District found that the expert appraiser was properly barred and again held, consistent with the express language of Rule 213, that it is squarely the obligation of the proponent of the expert witness to disclose “expert opinions and the bases therefor.”
Conclusion
The prudent practitioner would be well-advised to provide timely and full disclosure of expert “opinions and the bases therefor” consistent with the express language of Rule 213(f) and the well-reasoned Fourth District Appellate Court decisions. If anything, the Fifth District’s decision in Brdar is likely to be limited to the unique circumstances of the case and attributable solely to the great deference to the trial court’s exercise of discretion in enforcing its discovery orders. Reliance on the Brdar rationale as an excuse for inadequate Rule 213 disclosures is risky, at best, and most likely a recipe for disaster.
