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Copeland v. Stebco Products Corp.9/29/2000
lmonte, 302 Ill. App. 3d 17 (1998). Litigants have an obligation, under Supreme Court Rule 213(i), to disclose the testimony of their experts, even when that testimony responds to the theories of opposing experts. 166 Ill. 2d R. 213(i); Boland, 309 Ill. App. 3d at 652.
With these considerations in mind, we determine whether plaintiff's failure to disclose the new tests her expert witness conducted after his deposition, the conclusions from those tests and the new measurements violated Rule 213. Defense counsel's theory for trial based on the information disclosed by plaintiff prior to trial, including Brickman's deposition was that Brickman could not verify that the accident occurred in the manner described by plaintiff. It was critical to the defense of this case that Brickman had not determined at what angle the cord had to be pulled to achieve release of the hook from the bottom of the cart and that Brickman had not achieved escape geometry when the cord was pulled in a manner consistent with the testimony of the plaintiff. Brickman gave his deposition in May 1998 during which defense counsel specifically questioned him about whether he could determine the angle of the bungee cord in order to achieve escape geometry. Brickman answered: "I don't recall specifically undertaking that assignment."
Further referencing the manner in which plaintiff described her actions at the time of the accident, defense counsel during the deposition then asked Brickman if he had demonstrated the movement of the cord or the pull on the cord while the cord was within the confines of the two vertical members that support the handles. Brickman again stated that he had not performed such a demonstration. Defense counsel next asked Brickman whether he achieved escape geometry by pulling the cord straight up when it was attached to the lower center portion of the bar. Brickman replied that he did not. He also testified that he had no plans to do any further work and that he had not recommended that any further work be done. Based on Brickman's deposition testimony, defense counsel prepared for trial believing that Brickman had not achieved escape geometry by pulling the bungee cord in the manner consistent with the plaintiff's testimony. Therefore, defense counsel's theory for trial was that Brickman could not verify that the accident occurred in the way that plaintiff said it did.
At trial, however, during cross-examination Brickman changed the facts that defense counsel relied upon for his theory of defense. He disclosed for the first time, a test or demonstration he performed following his deposition, that verified the accident could occur in the way described by the plaintiff. The following exchanged occurred between Brickman and defense counsel:
"DEFENSE COUNSEL: Q. Am I correct in order to demonstrate that with this tilted up, you have to pull it away from what would be vertical?
BRICKMAN: A. To some degree, not to the extent you were just demonstrating.
DEFENSE COUNSEL: Q. Well, if you started in the middle, if you started with it [the hook] more or less in the middle like Ms. Copeland testified to, am I correct that if you stayed within the boundaries of this handle in the back, if you stayed within those boundaries, started it more or less in the middle and had it tilted back, that you would never get release geometry?
BRICKMAN: A. That is absolutely incorrect.
DEFENSE COUNSEL: Q. How would you get it?
BRICKMAN: A. You can get the same exact release geometry around the corner while the hook which is in our hand is still within the vertical uprights of the handle.
DEFENSE COUNSEL: Q. By placing and
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