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I am a ferocious and tireless advocate on behalf of plaintiffs. Some of my toughest battles are in the medical malpractice arena. Juries have a hard time seeing past that benevolent white coat perched atop that white horse even when the victim is a badly injured child or a lost loved one who has been forever changed by a medical mistake. The battle can be a bloody one to be sure.

My work on behalf of victims of medical negligence begins long before the trial. I am a proponent of careful preparation and proactive motion practice to ensure that plaintiffs have every advantage at a fair trial of their claims. One of the major abuses I see is the tactical use of Illinois Supreme Court Rule 213(f)(3) regarding the disclosure of expert opinion. Illinois courts tout a “bright line rule” that if an expert opinion is important or material to the case then the bases for that opinion must be timely disclosed. Notwithstanding this rule I have seen many abuses that too often go unchecked at trial resulting in unfair surprise and prejudice, most often, to the plaintiff.

Some physician experts don’t do their homework during the course of answering interrogatories or in advance of a deposition. It is not the job of the deposing attorney to facilitate the development of the opposing expert’s theory or bases for the opinion—that work is supposed to be done before they are sworn in to testify. Yet I do not see enough judicial activism to hold the party proffering the new opinions or bases to the tenets of Rule 213.

It may seem like plaintiffs are more likely to abuse this rule, but I think the data is skewed. As we all know, the odds are stacked against medical malpractice plaintiffs. Many of the cases that go up on appeal on this issue are the rare plaintiff’s verdicts that are well-funded by the deep-pocket institutional defendants (see, e.g. Morrisroe v. Pantano, 2016 IL App (1st) 143605) while the plaintiffs who suffered a not guilty verdict have fewer resources to challenge the abuses of Rule 213 that potentially sabotaged their trial (however Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1st Dist. 1999) is a beacon of hope holding a defense expert’s feet to the fire).

The common loophole for opinions that violate Rule 213 is that the testimony states a “logical corollary” to the disclosed opinion rather than a new basis. If it sounds like a subjective phrase, it is. I have not seen courts define the term so this argument may carry the day; and with the admission of expert testimony being within the sound discretion of the trial court it becomes a Herculean task to overturn on appeal. Nevertheless, I recommend that plaintiff’s attorneys remain vigilant in both the full disclosure of their own experts’ opinions and bases, and aggressively holding defense experts to the content of their disclosures through motions in limine and tenacious objection forcing trial judges to reign in testimony that could turn the tide against plaintiffs.

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