III. Undisclosed Opinion Finally, the plaintiff asserts that the trial court abused its discretion by allowing Dr. Kennedy to present evidence not disclosed in his Rule 213 responses, and relies on Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 752 N.E.2d 443 (2001). In Regala, an expert physician called by the defendant stated in his deposition and on cross-examination at trial that the plaintiffs son would have been born without neurological damage if delivery had occurred earlier.
As the Rules Committee explained in its comments to the most recent revision of the rule: "The party can count on full cooperation from [controlled expert] witnesses * * *, so the amended rule requires the party to provide all of the details required by the former rule." 210 Ill. 2d R. 213(f), Committee Comments; see also Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 585, 752 N.E.2d 443, 448 (2001) ("[e]xperts must be made aware by their attorney of the importance that their opinions at trial are consistent with their pretrial disclosures") (emphasis added); Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 938, 738 N.E.2d 199, 205 (2000) ("[ l] itigants have an obligation * * * to disclose the testimony of their experts") (emphasis added)). Yet, in spite of this knowledge, our supreme court still authorized the use of interrogatory answers for impeachment, without qualification for Rule 213(g) interrogatory answers, in section (h) of the rule.
The trial court here did not apply Rule 220 or another improper standard in assessing defendants' compliance with Rule 213. Plaintiff also relies on Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 752 N.E.2d 443 (2001), where an expert physician called by the defendant stated in his deposition and on cross-examination at trial that the plaintiff's son would have been born without neurological damage if the delivery had occurred earlier. On redirect examination, the expert stated that the neurological damage would have occurred even if the child had been delivered earlier, expressing that opinion for the first time.
See Wackrow, 231 Ill. 2d at 428 n. 4. See also Compton v. Ubilluz, 353 Ill. App. 3d 863, 872 (2004) (concluding that "[b]ecause defendant has failed to supply this court with an adequate record of his motion in limine or an order issued by the trial court on that motion, we resolve the issue against defendant"). ¶ 28 In any event, the legal support relied upon by Phillips is inapposite. Phillips cites cases wherein the appellate court concluded that the trial court abused its discretion in allowing an expert to testify with new opinions not previously disclosed pursuant to Illinois Supreme Court Rule 213. Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 584-85 (2001) (concluding that the erroneous admission of an expert's undisclosed opinions mandated reversal); Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 943-44 (2000) (providing that the plaintiff's failure to disclose her expert's post-deposition tests and measurements violated Rule 213); Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 24 (1999) (discussing the cumulative effect of the erroneous admission of an expert's undisclosed opinions). None of the foregoing cases, however, involved a retrial.
The plaintiff claimed that IPI Civil (2000) No. 105.01 improperly compelled the jury to only consider expert testimony in reaching a verdict and argued that the jury might disregard the testimony of the defendant doctor and nurses. The court, however, rejected that argument, citing Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 586 (2001), for the proposition that IPI Civil (2000) No. 105.01 properly stated the law where it instructed the jury that it must utilize the expert medical testimony to determine the standard of care and deviations therefrom. Bryant, 345 Ill. App. 3d at 577.
However, plaintiffs suffered no prejudice from this error because the "reasonably well-qualified" language used by the trial court was also an accurate statement of the law. Jinkins v. Lee, 209 Ill. 2d 320, 336 (2004); Purtill v. Hess, 111 Ill. 2d 229, 242 (1986); Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 586 (2001) (holding that IPI Civil 3d No. 105.01 "properly states the law"). In Loman, the same opinion in which our supreme court quoted with approval the "`ordinarily careful professional'" language from Advincula, our supreme court also quoted with approval the "`reasonably well-qualified physician'" language from its Purtill decision. Loman, 229 Ill. 2d at 119, quoting Purtill, 111 Ill. 2d at 242, and Advincula, 176 Ill. 2d at 23.
IPI Civil (2000) No. 105.01 "does not instruct the jury that it can only consider expert testimony in reaching a verdict." Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 586, 752 N.E.2d 443 (2001). Rather, that instruction, which was given here, expressly tells jurors that they can consider expert testimony or "evidence of professional standards or conduct presented at trial," in determining the standard of care and any deviation therefrom.
The appellate court has addressed the issue of which sanctions are appropriate in many cases. See Nassar v. County of Cook, 333 Ill. App. 3d 289, 303-04, 775 N.E.2d 154 (2002) (circuit court did not abuse its discretion by admitting challenged testimony because plaintiffs could not establish prejudice where the testimony was cumulative of previously introduced testimony); Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 574-77, 755 N.E.2d 1021 (2001) (affirming circuit court's decision to grant a new trial upon a determination that expert witness's testimony, which went to the heart of the case, deviated from that disclosed); Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 585, 752 N.E.2d 443 (2001) (redirect examination of expert witness went beyond the scope of cross-examination by eliciting new testimony previously undisclosed under Rule 213, warranting reversal and remand for a new trial); Susnis v. Radfar, 317 Ill. App. 3d 817, 829, 739 N.E.2d 960 (2000) ( Susnis) (refusal to allow undisclosed expert opinion on deviation from standard of care was not an abuse of discretion where plaintiff was allowed to elicit same testimony after rephrasing the question); Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 945-46, 738 N.E.2d 199 (2000) ( Copeland) (circuit court's failure to declare a mistrial was a clear abuse of discretion under totality of the circumstances, where surprise undisclosed testimony unfairly undermined the defense strategy and undercut defendant's cross-examination); Seef, 311 Ill. App. 3d at 24 (cumulative effect of erroneous admission of undisclosed opinions mandated reversal and remand to the circuit court for a new trial); Boland, 309 Ill. App. 3d at
Hakakha makes a series of other arguments in support of his contention that the trial court erred in ordering that the arbitration be held in Cook County. Based upon our disposition of this case, we need not address his remaining arguments in support of reversal. See Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 586 (2001). Accordingly, the judgment of the circuit court of Cook County is reversed.
Plaintiffs moved unsuccessfully in limine "[t]o bar and prohibit any and all conversations, recollections, observations, and opinions of defendants, that were not disclosed prior to the first trial of this case." Plaintiffs argue that Seef, Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 752 N.E.2d 443 (2001), and Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 738 N.E.2d 199 (2000), compel the conclusion that timely, formal adoption of objected-to trial testimony from a mistrial in the same case prior to a retrial is required by Rule 213. Each of those cases stands for the proposition that Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.