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Copeland v. Stebco Products Corp.9/29/2000
ngee cord as it was pulled upwards. Plaintiff does not contest that Brickman made new measurements off the videotape. Plaintiff does not contest that the measurements and the new videotape were never disclosed to defense counsel. Plaintiff contends, however, that Brickman never changed his opinion after the deposition and that his undisclosed tests and measurements confirmed his previously disclosed opinions about the unsafe condition of the luggage carrier. According to plaintiff, during Brickman's deposition and at trial, Brickman consistently stated that the luggage cart in this case was unreasonably dangerous because of the open-ended hook that could be attached to the bottom bar. Plaintiff claims that because her expert's opinion about the design defect in the luggage cart did not change following the undisclosed tests and measurements, there was no violation of Rule 213.
Plaintiff 's argument misinterprets the strict disclosure requirements of Rule 213. A party must disclose not only the specific opinion of his expert but the bases of that opinion. Crull, 294 Ill. App. 3d at 538-39. Plaintiff further argues that the additional tests and measurements done by Brickman after the deposition were in response to the criticism Brickman received from defendant's expert witness. Defendant's expert witness criticized Brickman on the issue of whether Brickman had successfully achieved a release of the bungee cord while keeping the cord within the vertical confines of the handle. Plaintiff argues that in anticipation of defendant's expert testimony at trial, Brickman did additional testing to see whether he could achieve escape geometry in that manner. He made a videotape of his efforts and also made additional measurements. However, the death of defendant's expert witness made the "rebuttal" testimony by Brickman unnecessary. Plaintiff argues that because Brickman's additional tests and measurements were only relevant to rebut defendant's expert, once defendant decided not to call an expert witness, she was not required to disclose this new evidence.
The court in Boland rejected a similar argument. The court held that litigants have an affirmative obligation under Rule 213 to disclose testimony that responds to theories of opposing experts. Boland, 309 Ill. App. 3d at 652. While the appellate court in Boland determined that the trial court had not abused its discretion in allowing into evidence previously undisclosed opinions, the court reached that conclusion based on the facts that both parties engaged in gamesmanship, sought to obtain unfair tactical advantage, and violated Rule 213. The court found that the trial court's remedy was appropriate for the circumstances of that case. Boland, 309 Ill. App. 3d at 647. However, consistent with the mandatory disclosure requirements of Rule 213, Boland makes it clear that, even if a party believes that some of the bases of his expert's opinion are only relevant to rebut an opposing expert's opinion, the party still must disclose these bases before trial. Boland, 309 Ill. App. 3d at 652.
Plaintiff further points out that, although she never supplemented the interrogatories, she never sought admission of the new information either. She argues that the information came out due to the cross-examination by defense counsel. Plaintiff fails to cite to any authority to support the proposition that her failure to supplement the interrogatories with the new tests and information is excused, because the information was elicited during cross-examination. The error here was caused by the plaintiff's failure to disclose her expert's post-deposition tests and measurements, not by the questions posed by defense counsel. Defense counsel based his cross-examination
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