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08/25/89 Phillip Akers, v. the Atchison

August 25, 1989





543 N.E.2d 939, 187 Ill. App. 3d 950, 135 Ill. Dec. 371 1989.IL.1311

Appeal from the Circuit Court of Cook County; the Hon. Robert G. Mackey, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.


Plaintiff, Phillip Akers, appeals from a jury verdict finding defendant, The Atchison, Topeka and Santa Fe Railway Co., not liable for plaintiff's personal injuries. Plaintiff raises the following three issues on appeal: (1) whether an expert witness who was originally hired by plaintiff should have been barred from testifying for defendant at trial; (2) whether plaintiff was prejudiced when the jury learned that the expert was originally hired by plaintiff; and (3) whether defendant should have been required to pay plaintiff the fee plaintiff paid to the expert. For the following reasons, we affirm.

Plaintiff filed a third-amended complaint against defendant for negligence and strict liability. He alleged that on October 23, 1980, he was employed as a warehouseman by Meehan Seaway Service and was loading materials in a railroad car owned by defendant. As he was loading materials, the load divider of the car unhinged and struck plaintiff. Plaintiff suffered personal injuries.

After answering the complaint, defendant sent interrogatories to plaintiff which included a request for plaintiff to identify each expert witness he planned to call at trial. On November 25, 1981, plaintiff responded that he had not retained an expert at that time.

Subsequently, plaintiff identified Edward McLean as his engineering expert, although the date of the disclosure is not apparent from the record. Plaintiff admits in his appellate brief that McLean was his testifying expert at trial rather than his consulting expert.

When defendant deposed McLean, he testified, in part:

"Q. I think we discussed in the earlier deposition that when you read the deposition transcript of [plaintiff's] deposition, that he had stated he had got down and looked and saw the pins all the way into the tracks.

A. That's right.

Q. I think you also indicated that you've got no reason to disagree with that statement?

A. That's right.

Q. With all those facts in mind that you've discussed already, based on [plaintiff's] testimony, do you have an opinion as to how the door could have popped out of its track if the pins were all the way in place?

A. . . . It's hard for me to visualize just exactly what happened. If the pins were in place as he indicated and the pressure was as he indicated, it's awfully hard to determine to what extent the pins were engaged. He says they were engaged, so in taking his statement, I can't reason that the occurrence should have occurred."

On September 15, 1986, defendant sent plaintiff a letter stating it tentatively planned to call McLean as its expert but could not confirm until plaintiff answered interrogatories identifying his testifying expert witnesses.

Two weeks later, on September 30, 1986, in response to an interrogatory asking plaintiff to identify each of his testifying expert witnesses, plaintiff identified John Stilson as his engineering expert. Plaintiff did not identify McLean as one of his testifying expert witnesses.

On October 14, 1986, an order was entered which in part stated, "It is furthered [ sic ] ordered that plaintiff will not object to the disclosure of James Bennett and Ed McClean [ sic ] as experts."

On March 6, 1987, several weeks before trial, plaintiff again responded to interrogatories by identifying Stilson as his engineering expert at trial and not identifying McLean.

The jury trial began on March 25, 1987, with opening statements. In his opening statement, without objection from plaintiff, defense counsel stated:

"Ladies and gentlemen, in addition to Mr. Brown, and as one of our last pieces of the puzzle, we are going to call Ed McLean. Mr. McLean is our expert. . . .

Mr. McLean is going to tell you that he made tow inspections of an Evans Dual Air-Pak load divider door. He's also going to tell you that when he made those inspections he had been retained by and was being paid by the plaintiff in this case."

The next day, the parties' attorneys and the Judge had a conference in chambers. Plaintiff admitted he telephoned McLean the evening before and McLean agreed to meet with plaintiff that morning prior to going to court. Plaintiff was upset because rather than meeting with plaintiff, McLean met with defendant. Plaintiff argued that when he retained McLean, he gave McLean his "theory of the case . . . [and] opened up [his] file to him" and claimed that defendant persuaded McLean to tell him what McLean learned. Plaintiff asked that McLean be barred from testifying but the Judge denied the request because plaintiff had known defendant was planning to call McLean as a witness for a substantial period of time prior to trial. The Judge, however, allowed plaintiff to meet with McLean before he testified.

On April 1, 1987, the day McLean testified, plaintiff again moved to bar him from testifying but his motion was denied.

When McLean testified for defendant on direct examination, the following occurred:

"Q. Were you paid for your time when you gave your depositions?

A. Yes, Sir.

Q. Was [that] the opinion you rendered when you were testifying on ...

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