 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Copeland v. Stebco Products Corp.9/29/2000
an's sworn deposition testimony. That information and that testimony indicated that Brickman had not actually achieved escape geometry by pulling straight up. To have the expert witness testify that he affirmatively achieved escape geometry in a manner consistent with the plaintiff's testimony was not an elaboration of his previous testimony but rather a critical change in testimony which corroborated the plaintiff's testimony. Plaintiff's failure to disclose the subsequent tests, measurements, and conclusions of its expert witness was a clear violation of the disclosure requirements of Rule 213. We find the case of Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999), instructive. In that case, the appellate court reversed a jury verdict in favor of the defendant physician in a medical malpractice action and ordered a new trial due to the effect of the erroneous admission of the undisclosed opinions of the defendant's expert. Seef, 311 Ill. App. 3d at 24. The appellate court quoted, with approval, the language contained in Department of Transportation v. Crull, that "'Rule 213 establishes more exacting standards regarding disclosure than did Supreme Court Rule 220, * * * which formerly governed expert witnesses. * * * Indeed, we believe one of the reasons for new Rule 213 was the need to require stricter adherence to disclosure requirements.'" Seef, 311 Ill. App. 3d at 22, quoting Crull, 294 Ill. App. 3d at 538-39.
We note that in this case the trial court acknowledged that the plaintiff violated the requirements of Rule 213 in failing to disclose the expert's additional tests and his conclusions. The trial court stated:
"A party has a duty to reasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party. It seems to me that this falls under that paragraph. * * * This doesn't say except when it is going to be by legitimate rebuttal response. * * * If he just did additional testing and he didn't come up with any new opinions or anything like that, then it wouldn't make any difference, but here he has got changes. * * * Technically, you haven't complied with the first paragraph of [Rule] 213."
The trial court, however, denied defendant's motion for a mistrial and instead struck the portion of Brickman's testimony relating to the new testing but not to the measurements. The court further concluded that the expert could give an answer that escape geometry could be achieved by pulling the cord through the handle, but not that he did further tests. For the reasons previously discussed, we conclude that plaintiff violated Rule 213 by failing to disclose the new tests, measurements and conclusions. We next address whether the trial court's ruling was the appropriate remedy for the Rule 213 violations.
II. Did Striking Portions of Expert's Testimony Remedy the Rule 213 Violation?
Whether to declare a mistrial rests within the sound discretion of the trial judge and will not be reversed on appeal unless that decision is a clear abuse of discretion. Van Hattem v. K mart Corp., 308 Ill. App. 3d 121, 129 (1999). The standard we use to determine if a party's discovery violation warrants a mistrial is whether the violation is of such character and magnitude as to deprive a party of a fair trial and the party seeking the mistrial demonstrates actual prejudice as a result. Bianchi v Mikhail, 266 Ill. App. 3d 767, 777 (1994). This court has listed the following factors as relevant to an assessment of prejudice: (1) the strength of the undisclosed evidence; (2) the likelihood that prior notice could have helped the defense discredit the evidence; (3) the feasibility of a continuance; and (4
Page 1 2 3 4 5 6 7 8 9 10 11 12 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|