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09/22/88 Claudia Tzystuck, v. Chicago Transit Authority

September 22, 1988

CLAUDIA TZYSTUCK, APPELLANT

v.

CHICAGO TRANSIT AUTHORITY, APPELLEE. -- ELIZABETH DIMINSKIS, APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, APPELLANT



SUPREME COURT OF ILLINOIS

529 N.E.2d 525, 124 Ill. 2d 226, 124 Ill. Dec. 544 1988.IL.1416

No. 65112. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Lester D. Foreman, Judge, presiding. No. 65336. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Cornelius F. Dore, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The appeals in Nos. 65112 and 65336 were consolidated for purposes of oral argument and Disposition of the issue of whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Supreme Court Rule 220(b)(1) (107 Ill. 2d R. 220(b)(1)).

The plaintiff-appellee in case No. 65336, Elizabeth Diminskis, individually and as plenary guardian of the estate and person of Victor Diminskis, brought suit for personal injury against the defendants-appellants Chicago Transit Authority and Harold D. Clemons following an incident in which a CTA bus driven by Clemons struck and injured Victor Diminskis. The record reflects that, prior to trial, the defendants, pursuant to Supreme Court Rule 220(b)(1) (107 Ill. 2d R. 220(b)(1)), requested the plaintiff to identify all expert witnesses who would testify at trial. The plaintiff responded that treating physicians would testify at trial, but did not specifically name Dr. Kelvin Von Roenn, a neurosurgeon who treated Victor Diminskis at Rush-Presbyterian St. Luke's Hospital. The plaintiff had previously disclosed Dr. Von Roenn's name in response to an interrogatory propounded by the defendant and had provided the defendants with the physician's medical records of the plaintiff. After the case was set for trial, plaintiff's counsel informed the defendants that he intended to call Dr. Von Roenn to testify and the trial court granted the defendant leave to depose the physician. At trial, Dr. Von Roenn testified over the defendants' objection, and gave his opinion as to the extent of Diminskis' injuries and his prospect for recovery.

The jury returned a verdict in favor of the plaintiff and against Clemons and the CTA, awarding $400,000 to Diminskis and $400,000 to Mrs. Diminskis for loss of consortium. The defendants appealed, claiming, inter alia, that the trial court should have barred the plaintiff's treating physician from testifying at trial because the plaintiff failed to disclose, pursuant to the defendants' Rule 220(b)(1) request, that the physician would testify as an expert witness. The plaintiff responded that she was not required to list a treating physician as an expert witness under Rule 220(b)(1).

The appellate court affirmed. (155 Ill. App. 3d 585.) It, however, first held that a litigant must disclose, pursuant to a Rule 220(b)(1) request, the identity of a treating physician who will testify at trial, but that the CTA had not been prejudiced by the plaintiff's failure to comply with the rule. Upon rehearing, the court stated that treating physicians do not have to be disclosed as expert witnesses in response to a Rule 220(b)(1) interrogatory and that a party need not disclose an intention to call a treating physician to testify as an expert at trial. (155 Ill. App. 3d 585.) The appellate court also rejected the CTA's claim of several unrelated trial court errors. This court granted the defendants' petition for leave to appeal. 107 Ill. 2d R. 315.

The plaintiff-appellant in No. 65112, Claudia J. Tzystuck, individually and as the administrator of the estate of her deceased husband, Harry Tzystuck, brought a personal injury action for damages for injuries she sustained while attempting to board a bus owned and operated by the defendant-appellee CTA and driven by defendant-appellee Elanora Myadrecki. The trial court subsequently granted the CTA's motion to take a discovery deposition of Tzystuck's treating physician and ordered Tzystuck to pay the physician's deposition witness fees pursuant to Supreme Court Rule 220. The trial court then certified the following question to the appellate court, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308):

"Whether the plaintiff is responsible for the payment of fees to the plaintiff's treating physician pursuant to Supreme Court Rule 220 when a physician is subpoenaed by the defendant for the taking of his discovery deposition and the plaintiff intends to call this physician to testify at trial."

When the appellate court denied Tzystuck's petition to appeal, this court granted her petition for leave to appeal. 107 Ill. 2d R. 315.

Three questions arise in the combined appeals: (1) whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Rule 220(b)(1); (2) whether Rule 220(c)(6) obligates a plaintiff to pay the deposition witness fees of that party's treating physician, when the deposition is taken at the instance of the defendant; and (3) whether claimed errors by the trial court deprived the defendants in the Diminskis case of a fair trial. I

We first consider whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Supreme Court Rule 220(b)(1). That rule provides:

"In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party . . .." 107 Ill. 2d R. 220(b)(1).

The defendants in these consolidated appeals argue that a treating physician who will testify to a medical opinion at trial is an expert witness whose identity must be disclosed under Rule 220(b)(1). As support, they rely principally upon subsection (a)(1) of Rule 220, which defines an expert witness as:

"a person who . . . possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to ...


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