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Clayton v. County of Cook12/11/2003
o tell the truth, the whole truth and nothing but the truth when you have a new definition of the whole truth?"
Here, the circuit court directed plaintiff's counsel to retract the error numerous times, but counsel failed to follow the order. The court attempted to remedy the violation by posing the following question to Dr. Kahana in the presence of the jury, "At the time you disclosed your opinions and gave your deposition, you had no criticism of Cook County Hospital for its failure to supervise its residents on May 3rd from the time of admission until 12:00 o'clock the next day." This question solidified rather than remedied the Rule 213(g) violation, because it verified that Dr. Kahana presented new, undisclosed opinions. Significantly, Dr. Kahana's undisclosed opinions provided the jury with a new negligence theory, namely, that defendant's failure to recognize the escalation in Cork's symptoms due to a lack of proper supervision caused the difficulty that occurred during the intubation and the resulting injury . The court's failure to provide an adequate remedy to eliminate the resulting prejudice from Dr. Kahana's undisclosed opinions was an abuse of discretion. The present case involved complex testimony hinging on an explanation as to why defendant's doctors failed to intubate Cork properly. Dr. Kahana's new opinions offered the jury a reason to find that defendant was negligent. This is precisely the situation which Rule 213 was intended to address and no extenuating circumstances exist justifying the violation of the rule in this case. See Seef, 311 Ill. App. 3d at 23-24; Crull, 294 Ill. App. 3d at 537-38; Susnis, 317 Ill. App. 3d at 828-29; Copeland, 316 Ill. App. 3d at 938-46; Firstar Bank, 306 Ill. App. 3d at 532-36. Contrary to plaintiff's argument, Dr. Kahana's undisclosed opinions affected the outcome of the trial because defendant was surprised and prejudiced as a result.
Accordingly, the erroneous admission of Dr. Kahana's undisclosed opinions regarding supervision of defendant's doctors and the circuit court's subsequent failure to remedy properly plaintiff's Rule 213(g) violation warrants reversal of the jury's verdict and a remand for a new trial. In light of this finding, the remaining objections to Dr. Kahana's testimony need not be addressed here. Further, the parties are admonished strongly that surprise cannot be a component of a third trial in this case. We next will address issues that are likely to recur upon retrial.
II.
Defendant contends that the circuit court abused its discretion by allowing the jury to hear evidence that Dr. Bridges could not place an arterial blood line and denying its subsequent motion for a mistrial. Defendant had moved in limine to bar plaintiff from eliciting testimony regarding Dr. Bridges' failure to insert an arterial line overnight on May 3 because no expert witness testified that this was a deviation from the standard of care. The record is unclear as to whether the court granted the motion in limine. Nevertheless, defendant specifically points to admitted testimony from Drs. Kahana, Rodriguez, Bridges and Charles Bluestone, and the use of an exhibit recording Dr. Bridges' difficulties, as examples of the court's abuse of discretion.
Plaintiff responds that testimony regarding Dr. Bridges' failure to insert an arterial line was elicited to explain why ABG readings were unavailable as elements of proof in her case. Plaintiff contends the ABG readings were relevant to overcome the defense that Cork's condition waxed and waned throughout the night, which was inconsistent with stenosis. Plaintiff asserts that if she did not show why no ABG readings were taken overnight, jurors might have concluded th
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