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02/10/88 Lucia Castro Et Al., v. South Chicago Community

February 10, 1988





519 N.E.2d 1069, 166 Ill. App. 3d 479, 116 Ill. Dec. 854 1988.IL.167

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.


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


Plaintiff Lucia Castro sought damages for injuries allegedly sustained as the result of the medical malpractice of defendants Dr. Jordan Daniels, South Chicago Community Hospital, Dr. Saroj Verma, and several other doctors who have been dismissed from the suit. Plaintiff's husband, Raymond Castro, filed a loss of consortium claim. The trial court entered an order barring the use of additional experts pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), and entered summary judgment in favor of Dr. Daniels. Plaintiffs appeal from both orders, contending that the trial court had no authority to bar the testimony and abused its discretion in barring other experts. The hospital and Dr. Verma are not parties to this appeal.

In May 1979, plaintiffs filed this action in regard to a 1977 hospitalization and surgery. Subsequently, plaintiffs failed to respond to, or comply with, defendants' requests to identify their expert and disclose his medical opinion. Plaintiffs also violated several court orders directing such disclosure and failed to respond to related motions filed by defendants.

In June 1986, after several court-imposed deadlines had passed, plaintiffs disclosed Dr. Joshua Fierer as their expert. In July 1986, however, Dr. Fierer testified at a deposition that in his opinion Dr. Daniels did not deviate from the standard of care and was not negligent. In November 1986, Dr. Daniels moved for enforcement of the 1981 court orders imposing deadlines for disclosure of experts and moved for summary judgment based on plaintiffs' lack of any expert opinion or other evidence showing Dr. Daniels' negligence. Plaintiffs failed to respond to the motions, even after the court gave them additional time. Finally, in February 1987, after the court-imposed deadlines had passed, plaintiffs disclosed Dr. Marc Pomerantz as a new intended expert witness, stating that they "believed" he would opine that Dr. Daniels had deviated from the relevant standard of care. In March 1987, the court denied plaintiffs' request for more time to respond to defendant's motions, and denied their request to use any expert, except their previously disclosed expert, Dr. Fierer. The court granted Dr. Daniels' motion to enforce, and his motion for summary judgment.

Plaintiffs contend on appeal that the trial court lacked the authority to bar the use of an additional expert witness under Rule 220 because at the time the court did not indicate it reasonably anticipated setting a trial date in the near future. They argue that "[nothing] in this Rule authorizes the court to establish deadlines requiring a party to obtain expert witnesses." On the contrary, the rule provides that "as to all expert witnesses not previously disclosed, the trial court, on its own motion . . . shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed." Moreover, the parties must act in good faith to ascertain the identity of expert witnesses they reasonably contemplate using and must obtain from them the opinions upon which they may be requested to testify. 107 Ill. 2d Rules 220(b)(1)(i), (b)(1)(ii).

Plaintiffs maintain that the rule's purpose is to insure "that discovery regarding expert witnesses will be completed no later than 60 days before the date on which the trial court reasonably anticipates the trial will commence." The language of the rule, however, presents no obstruction to the imposition of a disclosure schedule in a case which is not necessarily approaching the 60-day period before trial. (107 Ill. 2d R. 220(b)(1).) We find nothing in the rule's language restricting the time for barring a witness to the eve of trial. As part of the court's function in pretrial proceedings and in preparing all parties for a fair and efficient trial, Rule 220 authorizes the trial court to schedule disclosure prior to the eve of trial and to bar the testimony of any expert not disclosed under that schedule.

The trial court here had the authority to impose the disclosure schedule. It also had the authority to bar additional experts after finding that plaintiffs failed to act in good faith to reasonably ascertain the identity of an expert and obtain from him an opinion upon which he might be requested to testify.

In support of their argument that the court lacked the authority to bar their expert, plaintiffs also rely upon the Rule 220 provision that "the identity of an expert . . . must be disclosed by that party either within 90 days after the substance of the expert's opinion first becomes known to that party or his counsel or, if the substance of the expert's opinion is then known, at the first pretrial conference in the case, whichever is later." Plaintiffs' construction of the 90-day provision would permit litigants to purposely avoid learning the substance of the expert's opinion in order to extend the time in which they must identify the expert and his opinion.

Plaintiffs next contend that, even if the trial court had the proper authority, it abused its discretion in barring the testimony of Dr. Pomerantz. Rule 220 provides that "[failure] to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness." (107 Ill. 2d R. 220(b)(1).) A litigant's failure to comply with a court order imposing an affirmative obligation to disclose experts warrants the disqualification of the expert whose opinion is offered in opposition to a motion for summary judgment. ( James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531; see also Phelps v. O'Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974.) Moreover, the imposition of sanctions under Rule 219(c) for failure to comply with orders under Rule 220 is within the discretion of the trial court. (Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022.) Its judgment will not be disturbed on review absent a clear showing of abuse of discretion. James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531; see also Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 509 N.E.2d 1295.

Under the circumstances presented here, we find no abuse of discretion. While Rule 220 was not devised as a means of forcing litigants to use an expert witness, or as a means of blocking the parties' right to a trial, the ...

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