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Copeland v. Stebco Products Corp.9/29/2000
on information previously disclosed. The duty to supplement any new or additional opinion or bases that subsequently become known to a party is mandatory regardless of whether opposing counsel intends to cross-examine on the new information. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 21-22 (1999). Defense counsel prepared his case, prepared cross-examination, conducted cross-examination and presented a theory of defense relying on the disclosures made by plaintiff. In doing so he specifically relied on the previous sworn testimony of plaintiff's expert, including the fact that plaintiff's expert had not been able to achieve escape geometry by pulling the bungee cord in a manner consistent with plaintiff's testimony and therefore could not verify that the accident occurred in the way that plaintiff described.
Plaintiff argues that Conners v. Poticha, 293 Ill. App. 3d 944 (1997), supports her contention that she did not violate Rule 213. We find Conners distinguishable. In Conners, the defendant's expert witness, when questioned on cross-examination, offered additional reasons and examples, not previously disclosed, to explain his theory on causation. Applying former Rule 220 (134 Ill. 2d R. 220), the appellate court determined that the record indicated that the defendant's expert's opinions rendered in pretrial interrogatories and depositions were consistent with his opinions offered at trial. Conners, 293 Ill. App. 3d at 951. The court pointed out that the expert at trial expressed his theories in more "precise terms," and his testimony represented "an elaboration or refinement" of the expert's well-established theory on causation. Conners, 293 Ill. App. 3d at 950. The court also found that the expert's examples and reasons not previously disclosed were within the "fair scope" of facts known and opinions disclosed before trial. Conners, 293 Ill. App. 3d at 951.
Here, unlike Conners, the undisclosed bases for Brickman's opinion at trial concerning the escape geometry were not within the scope of the original bases given during the deposition.
In fact, according to Brickman's deposition he had not achieved escape geometry by pulling the bungee cord in a manner similar to that described by plaintiff, but by trial the exact opposite was true. As the result of additional tests after his deposition, he was able to achieve escape geometry consistent with the manner described by plaintiff. Brickman reached a conclusion based upon tests, measurements and demonstrations conducted after his deposition and never disclosed to defendant before trial. While in Conners the expert witness elaborated on opinions that were already disclosed during discovery when questioned on cross-examination, in this case, Brickman did more than elaborate on previous opinions. Unlike Conners where the expert's pretrial deposition was consistent with his trial testimony, here Brickman's trial testimony contradicted his deposition testimony. Based on information disclosed during the discovery process, defense counsel was not expecting Brickman to testify that he was able to achieve escape geometry by "pulling straight up." The defendant's theory was that the accident did not happen in the manner described by plaintiff. Significant to that theory was the testimony of the plaintiff's own expert which defense counsel relied upon that he had not actually ever achieved release of the hook under some of the conditions described by the plaintiff and that such a release would require an element such as a "rollout" of which there was no evidence in this case.
Defense counsel cross-examined Brickman consistent with this theory of defense based on the information disclosed by plaintiff and based on Brickm
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