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Copeland v. Stebco Products Corp.9/29/2000
) the willfulness of the party in failing to disclose. Sobczak v. Flaska, 302 Ill. App. 3d 916, 926 (1998).
We find that plaintiff's failure to disclose Brickman's additional measurements, tests and conclusions as to the release geometry substantially prejudiced defendant and denied defendant a fair trial. A critical issue in this case was whether release geometry could occur consistent with plaintiff's testimony. In direct contradiction to his deposition testimony, Brickman's trial testimony concluded that the bungee cord hook could become detached from the bottom rung of the cart while a person pulled the bungee cord "straight up within the boundaries of the handle" and that Brickman had successfully achieved release geometry in that manner. Plaintiff testified that as she pulled the bungee cord upwards the portion of the cord hooked on the bottom came off and hit her in the eye. Therefore, the undisclosed evidence substantially strengthened plaintiff''s case. It not only fortified Brickman's opinion about the defect of the luggage cart but corroborated plaintiff's testimony about how the accident occurred. Plaintiff's failure to disclose the additional tests and result of these tests conducted by her expert undermined the cross-examination of defendant, which was based on the previous disclosed opinion, tests and measurements of plaintiff's expert. Defendant prepared his case, chose a theory of defense and conducted his cross-examination of Brickman relying on the belief that Brickman had not successfully achieved release geometry in the manner described by plaintiff as the result of Brickman's previously sworn deposition testimony.
Defendant did not receive notice of the fact that Brickman had achieved release geometry in the manner consistent with plaintiff's testimony until cross-examining plaintiff's expert during trial. As a result, he had no opportunity to challenge the viability of Brickman's new conclusions or to cross-examine them in a meaningful adversarial manner. Brickman's trial testimony was in direct contradiction to his earlier deposition testimony in a critical area. It is clear that such testimony came as a complete surprise to the defense. This surprise testimony unfairly undermined the defense strategy and undercut the cross-examination. The defense strategy was to persuade the jury that the accident did not happen in the manner theorized by the plaintiff. Critical to that defense strategy was the testimony of plaintiff's own expert that he had not actually ever achieved release of the hook under some of the conditions described by plaintiff. The plaintiff undermined defendant's trial strategy regarding cross-examination of Brickman and discredited defendant's theory of the case when Brickman testified he had achieved escape geometry in the manner consistent with plaintiff's testimony.
Moreover, because defendant was unprepared for the surprise testimony defendant was denied a fair opportunity to cross-examine Brickman on his new tests and measurements.
Prior notice would have at least given the defendant an opportunity to discredit Brickman's new tests and measurements. The defense was deprived of any opportunity to review or analyze the tests and measurements before they were revealed for the first time as the result of cross-examination. This is precisely the outcome that Rule 213 seeks to avoid. Rule 213 is designed to give those involved in the trial process a degree of certainty and predictability that furthers the administration of justice and eliminates trial by "ambush." Firstar Bank v. Peirce, 306 Ill. App. 3d 525 (1999).
In Bianchi v. Mikhail, 266 Ill. App. 3d at 770, defense counsel cross-examined the plaintiff's expert by
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