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01/26/94 ELIZABETH MALONE v. MICHAEL PAPESH

January 26, 1994

ELIZABETH MALONE, PLAINTIFF-APPELLEE,
v.
MICHAEL PAPESH, DEFENDANT-APPELLANT, MOSS & HILLISON, ATTORNEYS-APPELLANTS, AND ELIZABETH MALONE, PLAINTIFF-APPELLEE, V. CRAIG NEWBURG, DEFENDANT-APPELLANT, MOSS & HILLISON, ATTORNEYS-APPELLANTS.



Appeal from the Circuit Court of Will County. Nos. 91 LM 12666 and 12667. Honorable MICHAEL H. LYONS, Judge, Presiding.

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

On September 6, 1991, plaintiff, Elizabeth Malone, filed two complaints in Will County alleging personal injuries and property damages resulting from two separate automobile accidents -- one against Craig Newburg for an accident which allegedly occurred on October 7, 1990, and the other against Michael Papesh for an accident which allegedly occurred on December 29, 1990. Both defendants were represented by the law firm Moss & Hillison. In the Papesh case, Moss & Hillison filed an answer neither admitting nor denying the substantive elements of the complaint, but demanding strict proof thereof. In the Newburg case, Moss & Hillison demanded strict proof of paragraph 1, alleging the date of the accident, and denied all other substantive elements of the complaint.

Defense counsel filed discovery requests and demanded jury trials in both cases. Plaintiff was asked whether she had retained or contemplated calling at trial "an expert witness as defined in Paragraph (a)(1) of Supreme Court Rule 220." In both cases plaintiff responded in the negative. Pretrials were held. The Newburg case ultimately proceeded to trial on January 29, 1993, and the Papesh case on February 1, 1993. Trial counsel for both defendants was Attorney Linda Parrillo of Moss & Hillison. Neither defendant appeared at trial.

In both cases, plaintiff called a witness to testify concerning the damage to her car. In Newburg, the officer investigating the accident testified that defendant stated to him that when he entered the left lane he sideswiped plaintiff's car, but he did not see the vehicle until he hit it. Defendant offered no evidence. The trial court directed a verdict against defendant on the issue of liability at the close of plaintiff's evidence. In Papesh, defense counsel admitted liability before plaintiff presented her case-in-chief based on the fact that Papesh had rear-ended plaintiff's vehicle and was ticketed for DUI.

In both cases, defense counsel proposed a jury verdict form finding for the defendant. The court refused defendants' forms. In both cases the jury returned verdicts for the plaintiff. The trial court entered judgments accordingly against Newburg in the amount of $3,058.56 plus costs and against Papesh in the amount of $2,066.43 plus costs.

Defense counsel filed post trial motions in both cases. Plaintiff filed a post trial motion in the Papesh case, along with motions for sanctions in both cases. The parties' post trial motions were denied; however, the court imposed sanctions of $150.50 in each case against Moss & Hillison for "bad faith in failing to conduct a reasonable investigation of the facts and circumstances of the case, blanket denial of the allegations in plaintiff's complaint, needlessly increasing the costs of litigation, [and] needlessly wasting judicial time."

The defendants appeal from the underlying judgments and the denial of their post trial motions, and Moss and Hillison appeals from the orders entering sanctions. For reasons that follow, we affirm.

Defendants initially contend that the trial court erred in allowing plaintiffs to present testimony of Raymond Bergeson, who testified as to the damage to plaintiff's car as a result of each accident. Defendants claim that plaintiff was obligated to reveal Bergeson's identity in response to their Rule 220 discovery request (134 Ill. 2d R. 220). Plaintiff takes the position that Bergeson was not "retained" as an expert, but was the owner of Rendel's, the auto body repair shop whose damage reports were produced well in advance of trial pursuant to defendants' discovery requests. Thus, plaintiff argues, even if Bergeson were an expert for purposes of Rule 220, the trial court acted within its discretion in allowing him to testify at trial since defendants could not have been surprised or prejudiced by his testimony regarding the extent of damage to plaintiff's vehicle.

Supreme Court Rule 220 mandates disclosure of experts and defines an expert witness as "a person who, because of education, training or experience, 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 render an opinion within his expertise at trial. He may be an employee of a party, a party or an independent contractor." In our opinion, Bergeson clearly qualifies as an expert whose disclosure was required pursuant to the Rule. He was a person with specialized knowledge and experience in valuing vehicle damages in accident cases beyond the ken of the average person, and plaintiff anticipated that he would provide testimony in support of her claim for property damages at trial. Thus, plaintiff's failure to reveal Bergeson's identity and opinions about the value of the car as requested by defendants' Rule 220 interrogatories violated the Rule.

With respect to sanctions for discovery violations, the Rule 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." Although there is some difference of opinion within the Appellate Court (compare Oldenburg v. Hagemann (2nd Dist. 1991), 207 Ill. App. 3d 315, 565 N.E.2d 1021, with Byrnes v. Fiscella (1st Dist. 1991), 217 Ill. App. 3d 831, 578 N.E.2d 204), we believe that the trial court does have discretion with respect to the imposition of sanctions for Rule 220 violations. See, e.g., Fischer v. G & S Builders (3rd Dist. 1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022, 1025 ("The trial court may impose the sanction at its discretion, and the court's decision should not be interfered with on review absent a clear showing of abuse.").

As indicated by plaintiff, the relevant six factors to be considered in determining whether exclusion of a witness is required are: 1) surprise to the adverse party; 2) the prejudicial effect of the witness' testimony; 3) the nature of the witness' testimony; 4) the diligence of the adverse party; 5) whether objection to the witness' testimony was timely; and 6) good faith of the party calling the witness. Ashford v. Ziemann (1984), 99 Ill. 2d 353; Sohaey v. VanCura (2nd Dist. 1992), 240 Ill. App. 3d 266, 607 N.E.2d 253, 269.

In this case, Rendel's damage report of October 18, 1990, was timely disclosed to defendants, and shows damages to plaintiff's 1985 Renault in the amount of $1630.36. Another report from Supreme Radiator and Body Co., dated October 19, 1990, and timely disclosed to defendants, shows damages estimated in the amount of $1775.41. As plaintiff points out, it was apparent that these reports estimating the damages were obtained by plaintiff in anticipation of her insurance claim, and any further information about the losses or who prepared the reports could have been obtained by defendant upon diligent inquiry. Further, at the hearing on sanctions in the trial court, plaintiff's attorney explained that the parties had discussed during discovery and at the pretrial conference the fact that plaintiff's vehicle was only worth $2000 after the first accident and totalled after the second. Thus, the fact that Bergeson's testimony included his opinion that that the market value of plaintiff's car on the date of the second accident was $2000, was not a surprise to defendants and could ...


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