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05/27/87 Wesley Lee, v. Hyster Company

May 27, 1987

WESLEY LEE, PLAINTIFF-APPELLANT

v.

HYSTER COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

509 N.E.2d 586, 156 Ill. App. 3d 214, 108 Ill. Dec. 890 1987.IL.684

Appeal from the Circuit Court of Cook County; the Hon. Lester Foreman, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE and FREEMAN,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff, Wesley Lee, appeals from an order of the trial court which required him to produce his out-of-State expert witness, John B. Sevart, for a discovery deposition to be conducted by defendant, Hyster Company, in Chicago, Illinois, with all of Sevart's fees to be paid by plaintiff. We affirm in part, reverse in part, and remand.

Plaintiff initiated this action by filing a complaint against defendant in the circuit court of Cook County. In his complaint, plaintiff alleges that he was injured when a forklift truck manufactured by defendant rolled over while plaintiff was operating it. Plaintiff is asserting a product liability claim against defendant.

During pretrial discovery, defendant served plaintiff with a notice for the deposition of "any and all experts [of plaintiff] who will testify as to the issue of liability in this case." The notice specified that the discovery depositions of any of plaintiff's expert witnesses would proceed in Chicago, Illinois. Plaintiff thereafter identified John B. Sevart, a mechanical engineer, as his expert witness on the issue of liability. Sevart both resides and is employed in Wichita, Kansas. No subpoena for the deposition of Sevart was issued by the clerk of the circuit court or served on Sevart by defendant.

As a result of a disagreement concerning the location of Sevart's discovery deposition, Wichita or Chicago, plaintiff filed a motion requesting the trial court to determine whether or not a party is required to present his out-of-State expert witness in the county where the action is pending for deposition testimony, and if so, who is to pay the fees incurred in such production. Pursuant to plaintiff's motion, the trial court ruled that the deposition of plaintiff's out-of-State expert witness, Sevart, should proceed in Chicago, with all of Sevart's expenses to be paid by plaintiff. However, the trial court wisely felt that there should be an appellate review of the matter, and certified the following question:

"Whether a trial court may require a party to present an out-of-state expert witness for a deposition in the county where the action is pending and require the party to pay all the fees incurred in the tendering of the witness for the deposition."

We granted plaintiff's application for an interlocutory appeal to review the certified question, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Plaintiff initially argues that the Illinois Supreme Court rules regarding discovery fail to provide a trial court with either the express or the discretionary authority to order a party to produce an out-of-State expert witness in the county where the action is pending for the purpose of a deposition. Defendant, however, contends that the Illinois Supreme Court rules governing discovery do not preclude a trial court from ordering a party to produce his out-of-State expert witness in the county in which the action is pending for deposition purposes because no rule specifically delineates the location in which the deposition of an expert witness may occur. Defendant further argues that a plaintiff's expert witness is under the plaintiff's control and, therefore, a trial court may properly order a plaintiff to produce his expert witness in the State where the action is pending for deposition purposes.

Essentially, the issue to be decided here is twofold. We must first determine where the discovery deposition of an out-of-State expert witness may occur. We must then decide which party is required to provide for the payment of the fees incurred in the taking of such a deposition.

We initially address the question of where the deposition of an out-of-State expert witness may occur. The starting point for an analysis of this issue must necessarily be the applicable supreme court rules . 107 Ill. 2d R. 201 et seq.

Clearly, before a court can compel an individual to appear for discovery purposes pursuant to another party's request, the court must be able to assert jurisdiction over the individual. In the case of a nonparty, such as an expert witness, Rule 204 gives the court the authority to compel discovery from such an individual through ...


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