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02/09/88 Gerald Voss, v. Lincoln Mall Management

February 9, 1988

GERALD VOSS, PLAINTIFF-APPELLANT

v.

LINCOLN MALL MANAGEMENT COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

519 N.E.2d 1056, 166 Ill. App. 3d 442, 116 Ill. Dec. 841 1988.IL.154

Appeal from the Circuit Court of Cook County; the Hon. Anton J. Valukas, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

This is a permissive interlocutory appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308) from an order of the circuit court of Cook County entered on May 19, 1987, denying plaintiff's motion to allow the testimony of an expert witness at the trial of plaintiff's personal injury action. Disclosure of the expert's identity had not been made until after the date specified in an earlier pretrial order for identification of experts and after a second pretrial order entered under Supreme Court Rules 218 and 220 (107 Ill. 2d Rules 218, 220) had barred plaintiff from offering any such expert testimony.

Application for leave to appeal was filed on May 29, 1987, and allowed on July 9, 1987. For the reasons hereinafter set forth, we vacate our order allowing leave to appeal as having been improvidently entered and dismiss this appeal.

In connection with reconsidering our allowance of plaintiff's application for leave to appeal, we have addressed the question whether allowance of the application might have materially advanced the ultimate termination of the litigation. We have concluded that it would not have done so.

Facts

The trial court has certified the following question for appeal:

"Whether the disclosure of experts by plaintiff was within the requirements of Supreme Court [Rule] 220, notwithstanding the June 28, 1985pretrial order limiting the testimony of expert witnesses."

At the time the order of May 19, 1987, was entered that denied plaintiff's motion to permit the trial testimony of his expert witness, the case was on the court's trial calendar for July 6, 1987, after having been restored to the trial call on or about February 6, 1987. Defendants contend that plaintiff's efforts to secure permission for his expert to testify came at the "eleventh hour."

The underlying lawsuit is for personal injuries allegedly sustained in December 1981 in a fall from a retaining wall. The first amended complaint to that effect was filed on May 7, 1986. Essentially, the complaint alleged negligent maintenance, negligent construction, and negligent failure to warn.

In certifying the question for appeal, the trial court found that an immediate appeal may materially advance the ultimate termination of the litigation. The record on ...


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