UIC Law Review UIC Law Review

Volume 23 Issue 3 Article 4

Spring 1990

Disclosure of Testifying Expert Witnesses under Illinois Supreme Disclosure of Testifying Expert Witnesses under Illinois Supreme

Court Rule 220: The Continuing Struggle to Balance Adequate Court Rule 220: The Continuing Struggle to Balance Adequate

Trial Preparation and Fairness, 23 J. Marshall L. Rev. 363 (1990) Trial Preparation and Fairness, 23 J. Marshall L. Rev. 363 (1990)

Thomas G. Compall

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Recommended Citation Recommended Citation Thomas G. Compall, Disclosure of Testifying Expert Witnesses under Illinois Supreme Court Rule 220: The Continuing Struggle to Balance Adequate Trial Preparation and Fairness, 23 J. Marshall L. Rev. 363 (1990)

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COMMENTS

DISCLOSURE OF TESTIFYING EXPERTWITNESSES UNDER ILLINOIS SUPREME COURT

RULE 220: THE CONTINUING STRUGGLE TOBALANCE ADEQUATE TRIAL PREPARATION

AND FAIRNESS

Modern civil litigation has grown so complex1 that trial lawyers

1. Many areas of the law have become so complex that much of the testimonyat trial may be outside the realm of knowledge of the average juror. Belli, The ExpertWitness: Modifying Roles and Rules To Meet Today's Needs, 18 TRIAL 35, 35 (1982).In such cases, experts are needed, and sometimes required, to prepare and prove acase. Id. For instance, in medical malpractice cases, negligence on the part of thephysician by reason of his or her departure from the standard of practice must beestablished, as a rule of law, by expert medical testimony. See, e.g., Stevens v. Sadiq,176 Ill. App. 3d 333, 530 N.E.2d 1159 (1988) (stating the necessary elements in amedical malpractice action). But cf. Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279(1978) (stating the exception to the general rule that an expert is not needed whenthe negligence is so grossly apparent that a layman would have no difficulty recogniz-ing it).

In products liability, patent, and other complex areas of the law, the use of ex-pert witnesses will be allowed if the court determines that the expert possessesknowledge of a specialized nature that will help the jury in the determination of afactual matter. See Kionka, Evidence, 12 S. ILL. U. L. REV. 967 (1988) (discussing theuse of expert witnesses in Illinois in relation to the rules of evidence). See also Ryanv. E.A.I. Constr. Corp., 158 Ill. App. 3d 449, 461, 511 N.E.2d 1244, 1252 (1987) (reaf-firming the rule that Illinois favors the permissive use of expert testimony in all typesof cases where the jury would be aided in its understanding of the facts). The trend inthe law to allow expert testimony when it would be helpful to the jury evolved fromthe earlier practice in the 1930's and 40's which allowed expert testimony only incases of extreme need. Annotation, Pretrial Discovery of Facts Known and OpinionsHeld by Opponent's Experts Under Rule 26(b)(4) of Federal Rules of Civil Proce-dure, 33 A.L.R. FED. 403, 410 (1977) (emphasis added). See infra note 31 discussingvarious theories which early courts used to deny discovery of expert information.

Later, in the 1950's and 60's, the courts began to adopt a less restrictive attitudetoward the discovery of expert witnesses. Annotation, supra, at 411. See infra note 33and accompanying text discussing the liberalization of discovery of experts. Thistrend has manifested itself today in an avalanche in the US of expert witnesses. Inthis modern age, an "expert" can be found in almost any field. Belli, supra, at 35.There is a common attitude that, although the cost of employing an expert may behigh, the cost of not employing one may be even greater, because practitioners whochose not to do so may be exposing themselves to malpractice actions. Id.

Indeed, in the back of nearly every legal magazine imaginable the same eye

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have become dependent on the help of experts in both the prepara-tion of the case before trial as well as proof of the case during trial.The dilemma caused by the surprise testimony of a concealed expertwitness has plagued the court system for decades.2 The Illinois Su-preme Court attempted to cure this evil by adopting Illinois Su-preme Court Rule 220 (hereinafter "Rule 220").

Rule 220, which took effect in 1984, contains a sanction provi-sion which mandates that expert witnesses who are not disclosed incompliance with the strictures of the rule are to be disqualified aswitnesses." However, in 1985, the Illinois Supreme Court amendedsupreme court rule 219 to allow the trial courts to apply various dis-cretionary sanctions other than mandatory disqualification whenfaced with a Rule 220 violation.' These contradictory sanction provi-

catching classified ads appear. For instance, in one, under the heading "addictionolo-gist", a physician offered, for a fee, to provide expert testimony on alcohol and drugissues. N.Y. Times, July 5, 1987, at 1, col. 1. In others, specialists offered expert ad-vice or testimony on bicycle mishaps, battery or bottle explosions, hot-air balloonaccidents, and radiation incidents. Id.

The business of being an expert has become a cottage industry. Individuals withknowledge in scores of obscure fields have joined tens of thousands of doctors, univer-sity professors and engineers in the expert witness industry. Id. They can be hired tobring their learning into court by nearly anyone willing to pay their rates, which canrange from $50 an hour for a law-enforcement expert, to more than $10,000 a day fora plastic surgeon. Id.

The Technical Advisory Service for Attorneys, established in 1961, is one of theoldest and largest of such enterprises. Id. at 13, col. 1. The service has developed anationwide list of about 10,000 experts, grouped into 4000 categories. Id.

2. See, e.g., Kaye, Discovery Brought Up To Date, 54 ILL. B. J. 396 (1966) (dis-cussing the problems of the undisclosed witness in the 1960's). See generally Annota-tion, Propriety of Allowing State Court Civil Litigant to Call Expert Witness WhoseName or Address Was Not Disclosed During Pretrial Discovery Proceedings, 58A.L.R. 4TH 653 (1987) (chronicalling the history of the undisclosed expert witnessproblem as experienced in the state court system).

3. ILL. REV. STAT. ch. 110A, 220 (1987). See infra notes 46-76 for the text ofthe rule and how the rule operates.

4. ILL. REV. STAT. ch. ll0A, 220(b)(1) (1987). The sanction was to bemandatory and exclusionary against parties who did not comply with the disclosurerequirements of the rule. ILL. ANN. STAT. ch. 110A, 1 220, Committee Comments at440 (Smith-Hurd 1985 & Supp. 1989).

5. Rule 219 is a discovery rule which allows the trial court to enforce the discov-ery rules and discovery orders through the use of broad sanctions. ILL. ANN. STAT. ch.ll0A, 219, Historical and Practice Notes at 386 (Smith-Hurd 1985 & Supp. 1989).The 1985 amendment to rule 219 was intended to make its sanction provisions appli-cable to the recently added discovery Rules 220 and 222. ILL. ANN. STAT. ch. 110A,219, Committee Comments at 89 (Smith-Hurd 1985 & Supp. 1989). It was also in-tended to apply to all future discovery rules which may be adopted, thereby eliminat-ing the need for further amendments. Id.

Included in the list of possible sanctions which the court may use to enforce thediscovery rules is the sanction of barring a witness from testifying. ILL. REV. STAT. ch.ll0A, 219(c)(iv) (1987). Unlike the sanction in Rule 220, however, the sanctions inrule 219 are not mandatory and are to be applied at the discretion of the trial judge.ILL. ANN. STAT. ch. 110A, 219, Committee Comments at 89 (Smith-Hurd 1985 &Supp. 1989). It is interesting to note that the amendment to rule 219 was not madeuntil one year after the adoption of Rule 220. At the time Rule 220 was adopted in

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sions provide conflicting guidelines for trial court judges who striveto balance adequate trial preparation with procedural fairness.' Thishas resulted in a split in the appellate courts as to whether amandatory or a discretionary sanction should apply against disclos-ure violations." This, in turn, has created uncertainty for litigatorswho are unable to predict with any degree of certainty how a judgewill rule when faced with the issue of an undisclosed expert witness.This comment offers an analysis of Rule 220 in relation to the prob-lem it was intended to cure. Specifically, it proposes that amandatory sanction provision would provide a better standard fortrial court judges who would be able to achieve more consistent re-sults when faced with undisclosed expert witnesses. First, Part I willprovide a historical overview of Rule 220. Part II will then present adetailed analysis of Rule 220 and survey various issues that havearisen under the rule. Next, Part III will examine the current splitin the appellate courts over the proper sanction to be applied inRule 220 and how these inconsistent rulings have been a poor guidefor litigators to follow. Finally, Part IV will suggest that amandatory sanction provision would result in more consistency andenhance the predictability of using Rule 220.

I. HISTORICAL DEVELOPMENT OF RULE 220

On June 29, 1984, the Illinois Supreme Court adopted Rule 220,which became effective October 1, 1984.8 The rule, which was with-out precedent in Illinois,9 gave express recognition to the numerous

1984, no corresponding amendment was made to rule 219. ILL. ANN. STAT. ch. 110A,219, Historical and Practice Notes at 386 (Smith-Hurd 1985 & Supp. 1989). The his-torical and practice notes accompanying rule 219 seem to imply that this was inten-tional, because Rule 220 contained its own sanction provision. See id. Thus, it is notaltogether clear whether the Illinois Supreme Court originally intended the Rule 220sanctions to govern exclusively, but then later decided otherwise by intentionallyamending rule 219 to include Rule 220, or whether the amendment to rule 219 in-cluded Rule 220 by oversight, by making rule 219 applicable to all newly added dis-covery rules (such as Rules 220 and 222), as well as any new discovery rules that maybe adopted in the future.

6. See generally Sloan and Adams, Illinois Supreme Court Rule 220: The Win-ning Edge in the Battle of Experts, 77 ILL. B. J. 642 (Aug. 1989) (discussing theinconsistency with which Rule 220 has been applied in Illinois and the problems thishas created).

7. See infra notes 77-103 and accompanying text for a discussion of the split inthe appellate courts.

8. ILL. REV. STAT. ch. 110A, 220 (1987). Rule 220 was determined to be a pro-cedural rule in nature, and, therefore, applicable retroactively to pending cases.Jarmon v. Jinks, 165 Il. App. 3d 855, 863, 520 N.E.2d 783, 787 (1987) (quotingMaiter v. Chicago Bd. of Ed., 82 Ill. 2d 373, 391, 415 N.E.2d 1034, 1042 (1980)). It wasalso held to be applicable to cases which were originally filed before the rule wentinto effect, for which a new trial was granted. Rittenhouse v. Tabor Grain Co., No. 4-86-0486, slip. op. 609 (4th Dist. Aug. 24, 1987) (WESTLAW, Illinois Cases Library).

9. The adoption of Rule 220 elicited hope from practitioners throughout Illinoiswho saw Rule 220 as a realistic cure for the ever-present undisclosed expert witness

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problems regarding the scope and limits of discovery which the useof expert witnesses had posed for a civil trial.'0

The express purpose of Rule 220 was to "facilitate trial prepara-tion and the evaluation of claims by eliminating the last-minute dis-closure of experts on the courthouse steps or during the course oftrial."'" The drafters of Rule.220 recognized the need for a specificrule addressing expert witnesses due to the ineffectiveness of section2-1003(C) of the Illinois Code of Civil Procedure, and the IllinoisSupreme Court Rules regulating discovery.' 2 A discussion of these

problem. O'Brien, Rule 220 A Cure For Late Disclosure?, Chicago Daily L. Bull., Jan.9, 1985, at 2, col. 2. Although Rule 220 was the first rule in Illinois to detail a frame-work for the timely revelation of an expert's identity and opinions, there were generalprovisions in the rules prior to Rule 220 which were used to address the issue. ILL.ANN. STAT. ch. 110A, 220, Historical and Practice Notes at 441 (Smith-Hurd 1985 &Supp. 1989).

Both section 2-1003(c) of the Illinois Code of Civil Procedure and Illinois Su-preme Court Rule 201(b)(1) were used prior to Rule 220 to discover the identity andopinion of an expert. Id. However, these rules were very general compared to Rule220, which addresses the issue in detail. See infra notes 13-19 for a discussion of howthese rules were used.

10. ILL. ANN. STAT. ch. 110A, $ 220, Historical and Practice Notes at 441 (Smith-Hurd 1985 & Supp. 1989).

11. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 438 (Smith-Hurd1985 & Supp. 1989).

12. The drafters of Rule 220 were an ad hoc Committee on Discovery that wasappointed by the Illinois Supreme Court to investigate various alleged problems andabuses of discovery. Burleigh, Court Considers Changing Rule on Identity of ExpertWitnesses, Chicago Daily L. Bull., May 21, 1984, at 1, col. 2. The committee, consist-ing of members of the Illinois State bar associations and four judges, had determinedthat the process of disclosing the identity of a litigant's expert witness in a timelyfashion was the most urgent problem plaguing the discovery process at that time. Id.The committee's recommendations were adopted by the Illinois Supreme Court ohJune 29, 1984. ILL. REV. STAT. ch. 110A, 220 (1987).

The Illinois Supreme Court derives its responsibility to promulgate proceduralrules, such as Rule 220, under the authority of the Illinois Constitution, the commonlaw, and the Civil Practice Act. Comment, The Constitutionality of Special Interrog-atories Under the Illinois Civil Practice Act, 14 J. MARSHALL L. REV. 761, 769 (1981).This power to promulgate procedural rules, however, can be concurrent between theIllinois Supreme Court and the Illinois Legislature in certain instances. O'Connell v.St. Francis Hosp., 112 Ill. 2d 273, 281, 492 N.E.2d 1322, 1326 (1986). For a furtherdiscussion of the rule making authority of the Illinois Supreme Court, see Trumbull,Judicial Responsibility for Regulating Practice and Procedure in Illinois, 47 Nw.U.L. REV. 443 (1952); Comment, The Bounds of Power: Judicial Rule-Making in Illi-nois, 10 Loy. U. CHI. L.J. 100 (1978).

In designing Rule 220, the drafters relied heavily upon the federal expert witnessrule, Federal Rule 26(b)(4), as well as the procedural common law and the practicerules of other jurisdictions. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at439 (Smith-Hurd 1985 & Supp. 1989). Because the federal rule was used as a guide,Rule 220 is substantially similar in many aspects, although not identical, to FederalRule 26(b)(4). See R. JOHNSTON AND K. KANDARAS, DISCOVERY IN ILLINOIS 84-91 (1985)(discussing the similarities and differences between Rule 220 and Federal Rule26(b)(4)). For a thorough discussion of Federal Rule 26(b)(4), see FED. R. CIv. P.26(b)(4), Notes of Advisory Committee on Rules at 83-84; Long, Discovery and Ex-perts under the Federal Rules of Civil Procedure, 38 F.R.D. 111 (1965); Graham,Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure:Part One, An Analytical Study, 1976 U. ILL. L. F. 895 (1976); Special Project, Rule

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rules is necessary in order to understand the evolution of Rule 220.

Section 2-1003 was originally enacted by the Illinois Legislatureas section 58 of the Civil Practice Act of 1933.1' Section 58(3), asamended in 1955, provided that, "[a] party shall not be required tofurnish the names or addresses of his witness" that he intends to useat trial in response to an interrogatory." The amendment to section58(3) created an apparent conflict with supreme court rule 19-4,15the predecessor to current Illinois Supreme Court Rule 201(b)(1),"6

26(b)(4) of the Federal Rules of Civil Procedure: Discovery of Expert Information,42 U. MIAMI L. REV. 1101 (1988) (authored by James L. Hayes and Paul T. Ryder,Jr.); McLaughlin, Discovery and Admissibility of Expert Testimony, 63 NOTRE DAMEL. REV. 769 (1988); Note, Eliasen v. Hamilton: Expanding the Scope of DiscoveryUnder Federal Rule of Civil Procedure 26(b)(4), 33 S.D.L. REV. 319 (1988); Note,Dennis v. BASF Wyandotte Corporation: "Further Discovery" of Testimonial Ex-perts Under Federal Rule of Civil Procedure 26(b)(4)(A)(ii), 33 S.D.L. REV. 331(1988); Note, Healy v. Counts: Discovering Informally Consulted Experts UnderFederal Rule of Civil Procedure 26(b)(4)(B), 33 S.D.L. REV. 340 (1988); Note, Kusterv. Harner: A New Interpretation of Federal Rule of Civil Procedure 26(b)(4)(B), 33S.D.L. REV. 352 (1988).

13. ILL. REV. STAT. ch. 110A, 182, s 58 (1933) (amended in 1955 and 1976 withcurrent version at ILL. REV. STAT. ch. 110, 2-1003 (1987)). Section 58 was enacted bythe Illinois General Assembly to broaden the scope of available discovery. ILL. ANN.STAT. ch. 110, 2-1003, Joint Committee Comments at 187 (Smith-Hurd 1985). Sec-tion 58 was intended to preserve the discovery which was previously obtainable bychancery proceedings and to make that relief obtainable by motion. Id. at 186. It wasalso intended to lay the statutory basis for court rules relating to the discovery ofdocuments, requests for admissions, interrogatories and depositions. Id. at 187.

Section 58 was enacted as part of the Civil Practice Act of 1933 which replacedthe Practice Act of 1907 and the procedural provisions of the Chancery Act of 1872.ILL. ANN. STAT. ch. 110, Historical Foreward at XII (Smith-Hurd 1985). The 1907 acthad been a limited concession to the procedural reform which was sweeping the na-tion. Id. Although the provisions of the 1907 act were preserved in the 1933 act, the1933 act represented a comprehensive modernization of the Illinois civil proceduralrules. Id. at XI. Prior to the enactment of the 1933 act, and except for the limitedeffect of the 1907 act, Illinois practice had basically consisted of the common law. Id.

In 1933, supreme court rules were adopted as a supplement to the Civil PracticeAct. Id. The 1933 act and supreme court rules provided Illinois with a modern set ofpractice rules. Id. These rules were extensively revised in 1955 in order to keep pacewith the advances made in other jurisdictions. Id.

In 1967, the Supreme Court of Illinois adopted and revised the supreme courtrules. Id. These rules governed trial and appellate procedure in both criminal andcivil proceedings. Id. In 1982, the supreme court rules, as amended, and the CivilPractice Act were incorporated into the Code of Civil Procedure. Id. As part of thischange, section 58 was retained in whole and renumbered as section 2-1003 of theCode of Civil Procedure. See Act of July 1, 1982, PUB. ACT 82-280, 1982 Ill. Laws 1381(codified as amended at ILL. REV. STAT. ch. 110, 2-1003 (1987) (effective July 1,1982). These changes have helped Illinois remain at the forefront of procedural inno-vation. ILL. ANN. STAT. ch. 110, Historical Foreword at XII (Smith - Hurd 1985).

14. ILL. REV. STAT. ch. 110, 1 58(3) (1955) (amended in 1976 and current versionat ILL. REV. STAT. ch. 110, 2-1003 (1987)). Subsection (3) was not contained in sec-tion 58 as originally enacted in 1933, but was added by a senate amendment whichwas concurred by the house. ILL. ANN. STAT. ch. 110, 2-1003, Historical and PracticeNotes at 187 (Smith-Hurd 1985)).

15. ILL. REV. STAT. ch. 110, 101.19-4 (1955) (current version, as amended, atILL. REV. STAT. ch. 110A, 201(b)(1) (1987)).

16. ILL. REV. STAT. ch. 1l0A, 201(b)(1) (1987) (formerly rule 19-4). Rule 201 is

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which stated that, "[u]pon a discovery deposition, the deponent maybe examined regarding any matter in litigation ... including ... theidentity and location of persons having knowledge of relevantfacts". 7

The Illinois Supreme Court determined that the two rules werenot inconsistent by interpreting the term "witness" in rule 19-4 tomean persons having personal knowledge of the matter in issue,rather than in the technical sense of those who will testify at trial."8

Thus, these two rules did not require a party to disclose personsthat the party intended to call as witnesses at trial. Rather, the rulesonly required that a party could not refuse to disclose the names ofpersons having knowledge of relevant facts merely because they mayalso be persons the party intended to call as witnesses."

However, neither section 58(3) nor rule 19-4 contained anysanction provisions which addressed the non-compliance of a re-quest for the identification and address of a person with knowledgeof discoverable information. Thus, litigants relied on rule 19-12,"°

the predecessor to current Illinois Supreme Court Rule 219,21 whichauthorized the trial court to enforce the discovery rules and orders.

Rule 19-12 provided an extensive list of sanctions which thetrial courts could apply.2 2 However, the sanction of barring an un-

a general discovery provision which states the scope of discovery and establishes thestandards applicable to all the discovery rules. ILL. ANN. STAT. ch. 110A, 201, Histor-ical and Practice Notes at 229 (Smith-Hurd 1985). Paragraph (b)(1) united the provi-sions regarding the scope of discovery which were formerly contained in the rule onthe scope of discovery depositions (former rule 19-4), and the provision dealing with"matters privileged against discovery" (former rule 19-5(1)). Id.

17. ILL. REV. STAT. ch. 110, 101.19-4 (1955) (current version, as amended, atILL. REV. STAT. ch. 110A, 201(b)(1) (1987)) (emphasis added).

18. Hruby v. Chicago Transit Auth., 11 Ill. 2d 255, 258, 142 N.E.2d 81, 83(1957). In reaching this holding, the Hruby court relied on the statements it hadmade in an earlier case which was decided under the statute and rules as they hadexisted prior to the 1955 revision. See Krupp v. Chicago Transit Auth., 8 Ill. 2d 37,132 N.E.2d 532 (1956). In so doing, the Hruby court decided that the statutory provi-sion (section 58(3)) was not in conflict with the supreme court rule (19-4). Hruby, 11Ill. 2d at 258, 142 N.E.2d at 83. The Hruby court stated that section 58(3) protected aparty from being compelled to identify the witnesses they intended to use at trial(i.e., "witnesses" in the technical sense), but that Rule 19-4 did not preclude discov-ery regarding "occurrence witnesses" (i.e., persons having knowledge ,of relevantfacts). Id. Thus, the provisions were not in conflict with each other. Id.

19. ILL. ANN. STAT. ch. 110, T 2-1003, Historical and Practice Notes at 187(Smith-Hurd 1985).

20. ILL. REV. STAT. ch. 110, 101.19-12(3) (1963) (current version, as amended,at ILL. REV. STAT. ch. 110A, 219(c) (1987)).

21. ILL. REV. STAT. ch. 110A, 219(c) (1987) (formerly rule 19-12(3)).22. Rule 19-12(3) provided, in relevant part:

(3) [Tihe court may, on motion, in addition to remedies elsewhere specificallyprovided, order one or more of the following, as may be appropriate: that theparty be nonsuited; that his complaint be dismissed; that all or any part of hispleadings be stricken . . . ; that he be barred from maintaining any particularclaim . . . or defense respecting which discovery is sought; or that further pro-

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disclosed witness was not included.23 Therefore, a split developed inthe Illinois Appellate Courts over the question of whether a trialjudge had the authority to exclude an undisclosed witness.24 The Il-linois Supreme Court finally resolved this issue in the 1963 decision,Dempski v. Dempski,26 where the court held that a trial judge hadthe authority, under rule 19-12, to exclude an undisclosed witnessfrom testifying. 2

Since the Dempski decision, courts have considered several fac-tors in determining whether to permit or exclude an undisclosedwitness from testifying. These factors include the surprise to the ad-verse party, the harm that has been done to the adverse party's case,the nature of the witness's testimony, the timeliness of the objec-tion, and whether the omission was intentional or inadvertent.27

ceedings be stayed pending compliance.ILL. REV. STAT. ch. 110, 101.19-12 (1963) (current version, as amended, at ILL. REV,STAT. ch. 110A, 219(c) (1987)).

23. The specific sanction of barring an undisclosed witness was not specificallyprovided for until it was added by amendment in 1967. ILL. ANN. STAT. ch. l10A,219, Historical and Practice Notes at 386 (Smith-Hurd 1985 & Supp. 1989). In thatyear, the supreme court rules were re-numbered and transferred to chapter 110A ofthe Illinois Revised Statutes. Id. As part of that reorganization, rule 19-12 becamerule 219, and was amended as described above.

24. The Appellate Court for the Fourth District held that because rule 19-12(3)did not expressly provide for the sanction of barring an undisclosed witness fromtestifying, the trial court had no authority to impose such a sanction. Hansel v.Friemann, 38 Ill. App. 2d 259, 265, 187 N.E.2d 97, 100 (1962). To the contrary werecases in the first district which held that the exclusion of a witness, although notspecifically provided for in rule 19-12(3), was properly within the discretion of thetrial court. See, e.g., Roberts v. Hyland Builders Corp., 34 Ill. App. 2d 276, 181N.E.2d 197 (1962); Reske v. Klein, 33 Ill. App. 2d 302, 179 N.E.2d 415 (1962); Batter-shell v. Bowman Dairy Co., 37 Ill. App. 2d 193, 185 N.E.2d 340 (1961); Perez v. Balti-more & Ohio R.R. Co., 24 Ill. App. 2d 204, 164 N.E.2d 209 (1960); Granger v. Turley,20 Il. App. 2d 488, 156 N.E.2d 610 (1959).

25. 27 11. 2d 69, 187 N.E.2d 734 (1963).26. Dempski, 27 Ill. 2d at 77, 187 N.E.2d at 738. The trial court had, upon

objection, refused to allow witnesses to testify because their names had not beengiven in the answer to an interrogatory which had requested them. Id. In affirmingthe action of the trial court, and without citation of any authority, the supreme courtrecognized the power of the trial judge to impose such a sanction. Id.

27. R. JOHNSTON AND K. KANDARAS, supra note 12, at 146. The trial judges haddeveloped these factors to guide them in making the discretionary ruling of whetherto bar or permit an undisclosed witness from testifying. Id. Although the Illinois Su-preme Court had determined in Dempski that the trial judge had the discretion toexclude an undisclosed witness under rule 19-12, the rule was subsequently amendedin 1967 to specifically provide for such a sanction. See supra note 23 discussing the1967 amendment. Whether the sanction was applicable in any given case, however,was left to the discretion of the trial judges who applied the several factors to thefacts in the case. R. JOHNSTON AND K. KANDARAS, supra note 12, at 146-47. See, e.g.,Strope v. Chicago Transit Auth., 71 Ill. App. 3d 987, 389 N.E.2d 1374 (1979) (courtexcluded undisclosed witness after considering the several factors); Brezezinski v.Gajada, 5 Ill. App. 3d 977, 284 N.E.2d 383 (1972) (court allowed undisclosed witnessto testify due to lack of surprise to the adverse party); O'Brien v. Stefaniak, 130 I1.App. 2d 398, 264 N.E.2d 781 (1970) (court barred testimony of undisclosed witnessafter considering all the factors); Rosales v. Marquez, 55 Ill. App. 2d 203, 204 N.E.2d

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However, even accounting for the discretionary right accorded to thejudges, the result was unpredictability, with some courts allowing2"the witness to testify and other courts barring the testimony of thewitness."

Unlike the development of these discovery rules which ad-dressed the problem of the undisclosed witness, there were no simi-lar rules regarding the discovery of an expert witness. This was dueto the fact that, historically, Illinois courts had been reluctant toallow discovery of expert opinions in litigation.s It was generallyperceived as unfair that one litigant, who was free to obtain an ex-pert's assistance, should be able to benefit from an opponent's ex-pert by discovering the methods and conclusions of that expert."'

829 (1965) (court barred testimony of undisclosed witness because content was notcumulative and would have created unfair surprise to adverse party).

28. See, e.g., Rubright v. Codman & Shurtleff, 86 Ill. App. 3d 94, 407 N.E.2d681 (1980) (court permitted undisclosed witness to testify after allowing opposingparty an opportunity to depose the witness); Thorsen v. City of Chicago, 74 Il. App.3d 98, 392 N.E.2d 716 (1979) (court allowed undisclosed witness to testify and merelyscolded faulty party for violating the spirit of the rules); Mason v. Mundelein Lanes,72 Ill. App. 3d 990, 391 N.E.2d 151 (1979) (court held it was an error to excludeundisclosed witness from testifying); Acosta v. Chicago Transit Auth., 39 Ill. App. 3d80, 349 N.E.2d 613 (1976) (court allowed undisclosed witness to testify because ele-ment of surprise was not great enough); Smith v. Realcoa Constr. Co., 13 Ill. App. 3d254, 300 N.E.2d 855 (1973) (trial court acted improperly in admitting undisclosedwitness's testimony but did not constitute reversible error); Ocasio-Morales v. FultonMach. Co., 10 Ill. App. 3d 719, 295 N.E.2d 329 (1973) (court allowed undisclosedwitness to testify because opposing party should not have been surprised by it);Brezezinski v. Gajada, 5 Ill. App. 3d 977, 284 N.E.2d 383 (1972) (undisclosed witnessallowed to testify because opposing party was not surprised and testimony was notcumulative).

29. See, e.g., Jensen v. Chicago & W. Ind. R.R., 94 Ill. App. 3d 915, 419 N.E.2d578 (1981) (no error for trial court to exclude undisclosed expert from testifying);Garcia v. Chicago & N.W. Ry., 79 Ill. App. 3d 757, 398 N.E.2d 1029 (1979) (no errorfor trial court to bar undisclosed witness because testimony would only have beencumulative and not crucial to the case); Strope v. Chicago Transit Auth., 71 Ill. App.3d 989, 389 N.E.2d 1374 (1979) (trial court excluded witness after considering all thefactors); Ferenbach v. DeSyllas, 45 Ill. App. 3d 599, 359 N.E.2d 1214 (1977) (trialcourt barred undisclosed witness to protect opposing party from unfairness); Finrockv. Eaton Asphalt Co., 41 Ill. App. 3d 1020, 355 N.E.2d 214 (1976) (trial court consid-ered all the factors and barred undisclosed witness from testifying); Mason v. Villageof Bellwood, 37 Ill. App. 3d 543, 346 N.E.2d 175 (1976) (trial court's exclusion ofundisclosed witness was proper even though exclusion should be imposed only whennoncompliance is unreasonable); O'Brien v. Stefaniak, 130 Ill. App. 2d 398, 264N.E.2d 781 (1970) .(not error for trial court to exclude undisclosed witness after con-sidering all the factors); Rosales v. Marquez, 55 Ill. App. 2d 203, 204 N.E.2d 829(1965) (court barred undisclosed witness because testimony was not cumulative andwould have created unfair surprise to opposing party).

30. ILL. ANN. STAT., ch. 110A, 220, Historical and Practice Notes at 441(Smith-Hurd 1985 & Supp. 1989).

31. Id. This early attitude in Illinois courts against the discovery of experts andtheir opinions paralleled that which was prevalent on a national scale. The federalexpert rule, Federal Rule 26(b)(4), was not enacted until 1970, and most pre-1970cases either denied discovery of experts entirely, or limited it to narrow areas. Smithv. Ford Motor Co., 626 F.2d 784, 792 (10th Cir. 1980).

Judicial restrictions on the discovery of experts took many forms. For instance,

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Thus, it was not until 1966 and the Illinois Supreme Court's deci-

earlier cases considered experts as agents of the attorney under the attorney-clientprivilege and denied discovery on those grounds. Id. See, e.g., Schuyler v. UnitedAirlines, Inc., 10 F.R.D. 111 (M.D. Pa. 1950) (expert's information not discoverabledue to attorney-client privilege); American Oil Co. v. Pennsylvania Petroleum Prods.Co., 23 F.R.D. 680 (D.R.I. 1959) (expert's conclusions and opinions not discoverableper attorney-client privilege); Cold Metal Process Co. v. Aluminum Co., 7 F.R.D. 684(D. Mass. 1947) (attorney-client privilege applied to expert's information); City ofChicago v. Harrison-Halsted Bldg. Corp., 11 Ill. 2d 431, 143 N.E.2d 40 (1957) (infor-mation of real estate experts in eminent domain proceeding was not discoverable dueto attorney-client privilege); City of Chicago v. Shayne, 46 Ill. App. 2d 33, 196 N.E.2d521 (1964) (appraisal of expert in condemnation proceeding was not discoverable dueto the attorney-client privilege). See also Friedenthal, Discovery of an AdverseParty's Expert Information, 14 STAN. L. REV. 455, 455-69 (1962) (discussing the useof the attorney-client privilege as it related to experts). See generally R. JOHNSTONAND K. KANDARAS, supra note 12, at 34-43 (discussing the use of the attorney-clientprivilege in modern times); Sutherland and Deitrick, The Attorney-Client Privilegeand Work Product Doctrine in Federal and Illinois Courts, 73 ILL. B. J. 448 (April1985) (discussing the current scope of the attorney-client privilege). Some courts con-cluded that the opinion of an opposing party's expert was protected from discoveryunder the attorney's "work product" doctrine. See, e.g., United States v. 284, 392 Sq.Ft. of Floor Space, 203 F. Supp. 75 (E.D. N.Y. 1962) (opinions and conclusions ofexpert not discoverable due to work product doctrine); Korman v. Shull, 184 F. Supp.928 (W.D. Mich. 1960) (work product doctrine encompasses expert's information);Carpenter-Trant Drilling Co. v. Magnolia Petroleum Corp., 23 F.R.D. 257 (D. Neb.1959) (expert retained to advise attorney is entitled to protection under work productdoctrine); Colden v. R.J. Schofield Motors, 14 F.R.D. 521 (N.D. Ohio 1952) (expert'sinformation not discoverable per work product doctrine); City of Chicago v. Harrison-Halsted Bldg. Corp., 11 Ill. 2d 431, 143 N.E.2d 40 (1957) (real estate appraisal ofexpert not discoverable per work product doctrine); Kemeny v. Skorch, 22 Ill. App.2d 160, 159 N.E.2d 489 (1959) (medical expert's report not discoverable under workproduct doctrine). See also Friedenthal, supra, at 469-79 (discussing the use of thework product doctrine as related to experts); Note, Discovery and the Work ProductDoctrine, 11 Loy. U. CHi. L.J. 863, 889 (1980) (discussing the work product doctrine asa bar to expert information). See infra note 33 for further discussion of the workproduct doctrine in federal and Illinois courts.

Another justification espoused by the courts to deny discovery of expert informa-tion was the doctrine of unfairness. The underlying premise of this theory was thatunlimited discovery would encourage a party to wait until the opponent had hiredexperts and then build their own case through the discovery process using the morediligent litigant's expert. Friedenthal, supra, at 479. Permitting a litigant to preparehis case in this manner was considered unfair and encouraged laziness. Id. See, e.g.,Maginnis v. Westinghouse Elec. Corp., 207 F. Supp. 739 (E.D. La. 1962) (opinionsand conclusions of expert were not discoverable because to allow so would be unfair);Schuyler v. United Airlines, Inc., 10 F.R.D. 111 (M.D. Pa. 1950) (court noted thatrules of civil procedure were designed to permit liberal discovery, but not intended tobe used as a vehicle through which one litigant could make use of the other's prepara-tion); Lewis v. United Airlines Transp. Corp., 32 F. Supp. 21 (W.D. Pa. 1940) (engi-neering expert witness not required to disclose reports or opinions because this infor-mation was obtained at great expense and it would be unfair to allow opposing partyto obtain it). See also Friedenthal, supra, at 479-88 (discussing the doctrine of unfair-ness); Haynes and Ryder, Rule 26(b)(4) of the Federal Rules of Civil Procedure: Dis-covery of Expert Information, 42 U. MIAMI L. REV. 1101, 1101-15 (1988) (discussingthe unfairness doctrine); Annotation, Pretrial Discovery of Facts Known and Opin-ions Held by Opponent's Experts Under Rule 26(b)(4) of the Federal Rules of CivilProcedure, 33 A.L.R. FED. 403, 410 (1977) (discussing the consideration of fairness inthe use of experts).

The above uncertainties as to the appropriateness of allowing discovery of expertinformation were further complicated by the fact that an expert witness was not a

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sion in Monier v. Chamberlain3 2 that the reluctance to allow discov-ery of expert opinions started to recede.

The Monier decision opened the door to more liberal discoverythan was previously available by narrowly construing the work prod-uct doctrine. 3 The Monier court suggested that the work product

party to the action and that there seemed to be no appropriate way for the court tomandate when an expert had to be hired or when he had to have his testimony pre-pared. ILL. ANN. STAT. ch. ll0A, 220, Historical and Practice Notes at 441-42(Smith-Hurd 1985 & Supp. 1989).

Eventually, a more liberal attitude toward the discovery of expert opinions devel-oped, with the courts reasoning that the potential benefits of discovery were suffi-ciently desirable to offset any resulting unfairness. Annotation, supra, at 411. Seeinfra note 33 discussing the liberalization of discovery in Illinois. The arguments infavor of broader discovery focused on the fact that justice required cases to be de-cided on their merits. See Hickman v. Taylor, 329 U.S. 495, 507 (1947) (ultimatepurpose of discovery is to obtain a fair decision on the merits of the litigation). It wasemphasized that broader discovery furthers this principal by narrowing the issues tobe contested at trial, and by allowing each party to make adequate preparation tocontest them. Comment, Discovery of Expert Information After Monier v. Chamber-lain, 62 Nw. U.L. REV. 624, 625 (1967). Furthermore, it was argued that cases involv-ing complex issues necessitated the use of experts, therefore, discovery was needed toallow each side to prepare adequately. Id. See generally Friedenthal, supra, at 455(discussing the pros and cons of the use of experts); Mclaughlin, Discoverability andAdmissibility of Expert Testimony, 63 NOTRE DAME L. REV. 760 (1988) (discussingthe conflict over the discoverability of expert witnesses).

32. 35 Ill. 2d 351, 221 N.E.2d 410 (1966).33. Monier v. Chamberlain, 35 Il1. 2d 351, 359-60, 221 N.E.2d 410, 417 (1966).

The work product doctrine is provided for in both the federal and Illinois rules. SeeFED. R. Civ. P. 26(b)(3); ILL. REV. STAT..ch. l0A, 201(b)(2) (1987). The work prod-uct exemption against the disclosure of otherwise discoverable material was ad-dressed in Hickman v. Taylor. 329 U.S. 495 (1947). In Hickman, the plaintiff soughtdiscovery of oral and written statements of witnesses who had been personally ob-tained by the defendant's attorney in preparation of litigation. Id. at 498-99. TheUnited States Supreme Court rejected the contention that the material involved con-fidential communication between the attorney and client, and was thereby privileged.Id. at 508. The Court did hold, however, that the statements were exempt from dis-covery because they constituted the attorney's work product. Id. at 511.

Thus, under Hickman, and Rule 26(b)(3), the application of the work productexemption operates in the following manner. Any work product that would reveal theopinions or mental impressions of the attorney are absolutely barred from discovery.Johnston, Discovery In Illinois and Federal Courts, 15 J. MARSHALL L. REV. 1, 24(1982). As for materials which are not absolutely barred, a number of requirementsexist. First, the material must be relevant. Fed. R. Civ. P. 26(b). Furthermore, if dis-covery involves a mental or physical examination of persons, then an additional"good cause" requirement must be satisfied. Id. at 35. If the material meets theserequirements, and is not otherwise privileged, then it is examined to determine itswork product status. Johnston, supra, at 24. If the material has been collected by anadverse party's counsel in the course of preparation for possible litigation, then it iswork product and entitled to a qualified exemption. Hickman, 329 U.S. at 510-11.Discovery may still be obtained if necessity for securing the work product can beshown. Id. at 511.

Although not direct authority in state courts, the Hickman rule has influencedstate discovery rules. The Illinois Supreme Court, in Monier, declared a narrowerwork product rule than the federal rule. Johnston, supra, at 25. Like the federal rule,the Illinois rule exempts work product that reveals the opinions or mental impres-sions of the attorney. Id. Unlike the federal rule, however, the Illinois rule does notrequire a showing of necessity to discover other work product materials. Id. at 26.

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doctrine should be limited to materials actually prepared by an at-torney and not an absolute work product bar to the discovery ofexpert information."' Despite this trend toward more liberal discov-ery, litigants were still without a specific rule addressing the use ofexpert witnesses. Thus, the nondisclosure of expert witnesses contin-ued to result in inconsistent court rulings."

The Illinois legislature attempted to cure these inconsistenciesin 1976 by amending section 58(3) of the Civil Practice Act to add aprovision concerning disclosure of the identity of expert witnesses. 6

The legislature's goal was to facilitate trial preparation and the eval-uation of claims by eliminating the surprise expert witness.3 7 Section58(3) required, "that upon the motion of any party, disclosure of theidentity of expert witnesses shall be made to all parties and thecourt in sufficient time in advance of trial so as to insure a fair andequitable preparation of the case by all parties."3 8 However, becausethe rule did not specifically provide any sanctions for noncompli-ance, the trial judges were in the same predicament as they wereunder the old section 58(3) and rule 19-12. Thus, as they did before,they used their discretion under rule 219 (formerly rule 19-12) indetermining whether to allow or exclude the testimony of an undis-

Thus, the Illinois rule defines a narrower category of work product which is abso-lutely exempt, regardless of necessity. Id. Consequently, it allows for more liberaldiscovery than the federal rule. See generally R. JOHNSTON AND K. KANDARAS, supranote 12, at 66-84 (discussing the work product doctrine in the Illinois and federalcourts); Sutherland and Deitrick, supra note 31, at 456-58 (discussing the Illinois andfederal work product rules); Kleczek, Monier v. Chamberlain: Work Product- Fur-ther Erosion of the Work Product Sanctuary, 1 J. MARSHALL J. PRAC. & PROC. 146(1967) (discussing the impact of the Monier decision); Comment, supra note 31, at624 (discussing the liberalization of discovery in Illinois after Monier).

34. Monier, 35 Ill. 2d at 359-60, 221 N.E.2d at 416-17.35. See, e.g., Plost v. Louis A. Weiss Memorial Hosp., 62 Ill. App. 3d 248, 378

N.E.2d 1176 (1981) (trial court abused its discretion by dismissing medical malprac-tice action in which plaintiff's disclosed experts were unable to testify as planned, andby refusing to allow plaintiff a continuance to obtain replacement experts); Simpsonv. Johnson, 45 Il. App. 3d 789, 360 N.E.2d 144 (1977) (court held there is no ruleprohibiting either party from first engaging an expert after trial has commenced thus,trial court did not abuse its discretion by allowing undisclosed medical expert to tes-tify even though disclosure was not made until seven days after the commencementof trial); Burns v. West Chemical Prods. Inc., 12 Ill. App. 3d 947, 299 N.E.2d 455(1973) (trial court did not abuse its discretion by allowing testimony of expert witnesswho was not disclosed until after commencement of trial).

36. Act of Sept. 19, 1976, PuB. ACT 79-1434, 1976 Ill. Laws 1349 (codified asamended at ILL. REV. STAT. ch. 110, 2-1003 (1987) (effective Sept. 19, 1976).

37. ILL. ANN. STAT. ch. 110A, 1 220, Committee Comments at 438 (Smith-Hurd1985 & Supp. 1989). The obvious intent of the legislature, in enacting section 58(3),was to create a procedure whereby the trial court could enter an order requiring thelitigants to disclose their expert witnesses within a sufficient time in advance of trialso that an opponent would be able to obtain and evaluate that expert's opinions.Foreman and Mueller, Timely Disclosure of Expert Witnesses - Analysis of SupremeCourt Rule 220, 74 ILL. B. J. 540, 540 (July 1986).

38. ILL. REV. STAT. ch. 110, 58(3) (1977) (current version at ILL. REV. STAT. ch.110, 2-1003(c) (1987)).

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closed expert witness.39 The result was a continuation of the incon-sistencies which amended section 58(3) was intended to eliminate."

Recognizing the failure of section 58(3) (renumbered as section2-1003(c) in 1982), the Illinois Supreme Court adopted Rule 220 in1984." ' This rule was designed to provide more guidance to trialcourts dealing with expert witnesses. Rule 220 contains its own sanc-tion which specifically mandates the disqualification of experts whoare not disclosed in compliance with the rule.42 However, in 1985 the

39. R. JOHNSTON AND K. KANDARAS, supra note 12, at 146. See supra notes 21-26and accompanying text discussing the use of discretion by trial courts in applyingrule 19-12 (currently rule 219). Although section 58(3) did not address the use ofexpert witnesses in great detail, there was some support for the notion that Illinois'historical case application of section 58(3) was parallel to the federal expert witnessrule, 26(b)(4). Johnston, supra note 33, at 30. See also, Nieukirk v. Board of Fire &Police Comm'rs, 98 Ill. App. 3d 109, 113, 423 N.E.2d 1259, 1262 (1981) (cases inter-preting Rule 26(b)(4) are appropriate for interpreting section 58(3)).

40. The valiant intentions of the legislature to curb the expert witness dilemmawere never realized. Many attorneys abused section 58(3) by not retaining an expertuntil the last minute; not disclosing their expert's opinions; or, disclosing an opinionother than the opinion relied on at trial. Foreman and Mueller, Timely Disclosure ofExpert Witnesses - Analysis of Supreme Court Rule 220, 74 ILL. B. J. 540, 540 (July1986).

The lack of adequate guidelines in section 58(3) led to a multitude of inconsis-tent and confusing decisions. Id. Some courts allowed the expert's late or surprisetestimony to the opponent's prejudice. See, e.g., Walski v. Tiesenga, 72 Ill. 2d 249,381 N.E.2d 279 (1978); Borowski v. Von Solbrig, 60 11. 2d 418, 328 N.E.2d 310 (1975);Curry v. Summer, 136 Ill. App. 3d 468, 483 N.E.2d 711 (1985); Ford v. City of Chi-cago, 132 Ill. App. 3d 408, 476 N.E.2d 1232 (1985); Lindley v. St. Mary's Hosp., 85 Ill.App. 3d 559, 406 N.E.2d 952 (1980); Brumley v. Federal Barge Lines, Inc., 78 Ill. App.3d 799, 396 N.E.2d 1333 (1979). Some courts refused to allow the opinions of theexpert to the detriment of the litigant offering them. See, e.g., Romano v. Bittner, 157Ill. App. 3d 15, 510 N.E.2d 924 (1987); Renfro v. Allied Indus. Equip. Corp., 155 11.App. 3d 140, 507 N.E.2d 1213 (1987); Fultz v. Peart, 144 Ill. App. 3d 364, 494 N.E.2d212 (1986); Northern Trust Co. v. Louis A. Weiss Memorial Hosp., 143 Ill. App. 3d479, 493 N.E.2d 6 (1986); Appelgren v. Walsh, 136 Ill. App. 3d 700, 483 N.E.2d 686(1985); Harris Trust & Sav. Bank v. Ali, 100 Ill. App. 3d 1, 425 N.E.2d 1359 (1981). Insome cases, trials were continued due to the late disclosure of the expert. See, e.g.,Beasley v. Huffman Mfg. Co., 97 Ill. App. 3d 1, 422 N.E.2d 241 (1981); Plost v. LouisA. Weiss Memorial Hosp., 62 Ill. App. 3d 248, 378 N.E.2d 1176 (1978). Worse still,many cases required new trials due to the erroneous allowance or denial of the experttestimony. See, e.g., Ashford v. Ziemann, 99 Ill. 2d 353, 459 N.E.2d 940 (1984);Vazirzadeh V. Kaminski, 157 Ill. App. 3d 638, 510 N.E.2d 1096 (1987); Brown v.Highland Park Hosp., 69 Ill. App. 3d 769, 387 N.E.2d 1041 (1979); Mendelson v. Fein-gold, 69 I1. App. 3d 227, 387 N.E.2d 363 (1979).

41. ILL. REV. STAT. ch. ll0A, 220 (1987). See supra note 12 discussing theIllinois Supreme Court's adoption of Rule 220. Section 2-1003 of the Illinois Code ofCivil Procedure, standing alone, was insufficient to prevent the late or surprise testi-mony of expert witnesses, which often resulted in disruptive or unfair trials. R. JOHN-STON AND K. KANDARAS, supra note 12, at 85. The Illinois Supreme Court adoptedrule 220 to prevent or minimize these evils by providing a more detailed frameworkfor the timely disclosure of experts. This would supplement section 2-1003, and serveas a better guide for the trial courts. Id. See also Phelps v. O'Malley, 159 Ill. App. 3d214, 223, 511 N.E.2d 974, 979-80 (1987) (Rule 220 was intended to complement statu-tory section 2-1003 by establishing uniform guidelines).

42. See infra note 51 for the text of section (b)(1) of Rule 220 containing themandatory sanction provision. See also supra note 4 and accompanying text discuss-

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Illinois Supreme Court amended Illinois Supreme Court Rule 219,making all the sanctions it provides also applicable to Rule 220." s

Faced with conflicting sanction provisions, trial judges in Illinoishave been deprived of a consistent guideline with which they canapply Rule 220."' This has prevented Rule 220 from achieving itsgoal of eliminating the undisclosed expert witness problem.

II. ANALYSIS OF RULE 220

Because the use of expert witnesses has become so prevalent intoday's litigious society,4 5 litigators practicing in Illinois must be fa-miliar with Rule 220. The following section provides an explanationof the rule and addresses some of the issues that have arisen underit.

A. Definitions

Rule 220(a)46 embodies the common law by defining an expertwitness as a person who possesses knowledge in a specialized areabeyond the realm of the average person and whose opinion wouldaid the jury in deciding a factual matter.47 Once qualified as an ex-

ing the mandatory sanction.43. ILL. ANN. STAT. ch. 110A, 219, Committee Comments at 89 (Smith-Hurd

1985 & Supp. 1989). The Illinois Supreme Court amended rule 219 on July 1, 1985,which took effect on August 1, 1985. Id.

44. See infra notes 77-103 and accompanying text discussing the inconsistentapplication of Rule 220.

45. See supra note 1 discussing the evolution of the experts' role in modernlitigation.

46. Section (a) of Rule 220 provides:(a)(1) Definition of expert witness. An expert is a person who, because of edu-cation, training or experience, possesses knowledge of a specialized nature be-yond that of the average person on a factual matter material to a claim ordefense in pending litigation and who may be expected to render an opinionwithin his expertise at trial. He may be an employee of a party, a party or anindependent contractor.(2) Consulting expert. A consulting expert is a person who posseses the samequalifications as an expert witness and who has been retained or specially em-ployed in anticipation of litigation or preparation for trial but who is not to becalled at trial to render opinions within his area of expertise.

ILL. REV. STAT. ch. 110A, 220(a) (1987).47. Id. See also City of Chicago v. McNally, 227 Ill. 14, 18, 81 N.E. 23, 25 (1907)

(stating the common law definition of an expert witness). Although Rule 220 wasprimarily intended to address discovery issues concerning expert witness testimony,the rule also operates as a rule of evidence. Kionka, Evidence, 12 S. ILL. U. L. REV.967, 983 (1988). Many of the issues formed by discovery under Rule 220 will eventu-ally overlap with the rules of evidence, such as the scope of the expert's testimony.See generally Kionka, supra, at 967 (discussing the use of expert witnesses in Illinoisin relation to the rules of evidence).

The requisite knowledge that is needed to qualify as an expert under Rule 220need not be derived from academic or educational qualifications. Kionka, supra, at968. It may be derived from education, practical experience, or both. Id. See, e.g.,

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pert under this definition, the rule differentiates between testifyingexperts and consulting experts. A testifying expert is expected torender an opinion within his or her expertise at trial.4 s A consultingexpert is an expert whom an attorney has retained in anticipation oflitigation or preparation for trial, but whom the attorney will notcall upon at trial to render an opinion."9 The determination ofwhether a witness is a testifying expert as opposed to an ordinarywitness rests within the discretion of the trial judge and will not bereversed absent a clear abuse of discretion. °

Schaffner v. Chicago & Northwestern Transp. Co., 161 Ill. App. 3d 742, 758-59, 515N.E.2d 298, 307-08 (1987) (state highway engineer whose experience was based pri-marily on practical experience was qualified as an expert).

It is also important to note that the Medical Malpractice Act provides additionalexpert witness standards, apart from those in Rule 220, in all cases in which the stan-dard of care given by a medical professional is at issue. See ILL. REV. STAT. ch. 110,8-2501 (West Supp. 1989).

48. ILL. REV. STAT. ch. l10A, 220(a)(1) (1987). This section of the rule encom-passes testifying experts who may be expected to testify on a matter within theirexpertise at trial, regardless of their relationship to the case. Thus, this section ap-plies equally to independent experts who are retained for the purposes of evaluationand testimony, employees of a party, and even the party. Id. See supra note 46 forthe text of section (a)(1) of Rule 220. For a discussion of the disclosure requirementsof testifying experts, see infra notes 51-62.

49. ILL. REV. STAT. ch. 110A, 220(a)(2) (1987). The nature of the consultationmust be examined in order to determine the status of a nontestifying expert who hasbeen consulted in anticipation of litigation. R. JOHNSTON AND K. KANDARAS, supranote 12, at 87. This determination is important because the disclosure requirementsvary depending upon the type of consultant an expert is determined to be.

A consulting expert as defined in section (a)(2) is distinguished from an infor-mally consulted expert. An informally consulted expert is an expert who has beeninitially contacted by a party to discuss the possible retention of the expert as a con-sultant, but who, for some reason, is not eventually retained by the contacting partyas a consultant or expert. See Agers v. Jane C. Stormont Hosp., 622 F.2d 496, 501-04(10th Cir. 1980) (discussing the determination of when an expert is considered infor-mally consulted). See infra note 52 discussing the disclosure requirements of infor-mally consulted and consulting experts.

On the other hand, a nontestifying expert retained or specially employed in an-ticipation of litigation, but whose information was not acquired in preparation oftrial, is treated as an ordinary witness. R. JOHNSTON AND K. KANDARAS, supra note 12,at 87. Consequently, if an expert's information was acquired as an actor or viewer ofevents which gave rise to the lawsuit, then it is fully discoverable. Id. See also Grin-nell Corp. v. Hackett, 70 F.R.D. 326, 332 (S.D.N.Y. 1976) (nontestifying expert re-tained in anticipation of litigation but whose information was not acquired in prepa-ration of litigation, was discoverable).

50. See, e.g., Bloomgren v. Fire Ins. Exchange, 162 Ill. App. 3d 594, 599, 517N.E.2d 290, 293-94 (1987) (court determined that a fireman was not qualified as anexpert on the causes or origins of fires).

The trial court judge also has the discretion to hold a pretrial conference to coor-dinate the conduct of an impending trial. Conover v. Smith, 20 Ill. App. 3d 258, 260,314 N.E.2d 638, 640 (1974). Illinois Supreme Court Rule 218 allows the court to holda pretrial conference to (1) simplify the issues; (2) amend the pleadings; (3) obtainadmissions of fact and of documents; (4) limit the number of expert witnesses; and,(5) discuss remaining matters that may aid in the disposition of the case. ILL. REV.STAT. ch. I10A, 218(a). (1987) (emphasis added). Although it may be a better prac-tice for a trial court to grant a motion for a pretrial conference specifically for thepurpose of limiting the number of expert witnesses, it is within the court's discretion

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B. Disclosure of Expert's Identity

The disclosure obligations under Rule 220(b)"1 depend onwhether the expert has been classified as a testifying expert or aconsulting expert. A party retaining a consulting expert does nothave the burden of disclosing the expert's identity.2 There is, how-

to deny such a motion. Department of Transp. v. Prombo, 63 Ill. App. 3d 407, 411,379 N.E.2d 953, 956 (1978). In cases in which the court does hold a pretrial confer-ence, the order of the court will be controlling as to the subsequent cause of theaction, unless it is modified otherwise. ILL. REV. STAT. ch. 110A, 218(b) (1987). Seegenerally Fultz v. Peart, 144 Ill. App. 3d 364, 494 N.E.2d 212, (1986) (court has powerto limit the number of expert witnesses); Curry v. Summer, 136 Ill. App. 3d 468, 483N.E.2d 711 (1988) (court properly limited undisclosed expert witness testimony tothat of an occurrence witness).

51. Section (b) of Rule 220 provides:(b) DISCLOSURE(1) Expert witness. Where the testimony of experts is reasonably contem-plated, the parties will act in good faith to seasonably:(i) ascertain the identity of such witnesses, and(ii) obtain from them the opinions upon which they may be requested to tes-tify. In order to insure fair and equitable preparation for trial by all parties theidentity of an expert who is retained to render an opinion at trial on behalf ofa party must be disclosed by that party either within 90 days after the sub-stance of the expert's opinion first becomes known to that party or his counselor if the substance of the expert's opinion is then known, at the first pretrialconference in the case, whichever is later. In any event, as to all expert wit-nesses not previously disclosed, the trial court, on its own motion, or on themotion of any party after the first pretrial conference, shall enter an orderscheduling the dates upon which all expert witnesses, including rebuttal ex-perts, shall be disclosed. The schedule established by the trial court will se-quence the disclosure of expert witnesses in accordance with the complexitiesof the issues involved and the burdens of proof of the respective parties as tothose issues. All dates set by the trial court shall be chosen to insure that dis-covery regarding such expert witnesses will be completed not later than 60days before the date on which the trial court reasonably anticipates the trialwill commence. Upon disclosure, the expert's opinion may be the subject ofdiscovery as provided in paragraph (c) hereof. Failure to make the disclosurerequired by this rule or to comply with the discovery contemplated herein willresult in disqualification of the expert as a witness.(2) Consulting expert. Except as provided in paragraph (c)(5) hereof, a partyneed not disclose the identity of a consulting expert.

ILL. REV. STAT. ch. 110A, 220(b) (1987) (emphasis added).52. ILL. REV. STAT. ch. 110A, 220(b)(2) (1987). If the expert is a consultant

whose opinions are used in formulating a claim or defense, but who will not testify attrial, then the expert's identity need not be disclosed, absent a showing of exceptionalcircumstances. Id. This provision. protecting the contributions of consulting expertswas added to Rule 220 out of the recognition that litigation remains an adversarialprocess, and to provide fairness. ILL. ANN. STAT. ch. ll0A, 220, Historical and Prac-tice Notes at 442 (Smith-Hurd 1985 & Supp. 1989).

On the other hand, the rule avoids any language that would permit a party to usea consulting expert as a shield for protecting documents or objects which would oth-erwise be discoverable. Id. Thus, under Illinois Supreme Court Rule 214, an opposingparty may request documents, objects and tangible things which are in the possessionof the consulting expert and which do not contain opinions. Id. For instance, parts ofan allegedly defective product, photographs from an accident scene, or "smokinggun" documents in the possession of a consulting expert would be discoverable underrule 214. Foreman and Mueller, supra note 40, at 541.

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ever, one exception. The consultant's identity (as well as the workproduct and opinion) are discoverable upon a "showing of excep-tional circumstances under which it is impracticable for the partyseeking discovery to obtain facts or opinions on the same subject byother means." '

On the other hand, a party must disclose the identity of a testi-fying expert in every case.5 4 This obligation does not depend upon arequest from the opposing party. 5 A party intending to use a testi-fying expert must disclose the expert's identity within ninety daysafter the substance of the expert's opinion becomes known or at thefirst pretrial conference, whichever is later.6" In any event, the trial

If, instead, the expert is an informally consulted expert, then the discovery of theidentity of the expert, and the facts and opinions acquired in anticipation of litiga-tion, is precluded. R. JOHNSTON AND K. KANDARAS, supra note 12, at 87. See generallyT. DEMETRIO, ILLINOIS CIVIL DISCOVERY PRACTICE § 1.13 (Illinois Institute For Contin-uing Legal Education 1987) (discussing nontestifying experts under Rule 220); R.JOHNSTON AND K. KANDARAS, supra note 12, at 86-89 (discussing the requirements ofnontestifying experts per Rule 220(a)).

53. ILL. REV. STAT. ch. 110A, 220(c)(5) (1987). See infra note 63 for the text ofsection (c)(5) of Rule 220. In this sense the rule closely parallels Federal Rule26(b)(4)(B). ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 440 (Smith-Hurd 1985 & Supp. 1989). The burden of showing exceptional circumstances is ini-tially borne by the party asserting the exception to show facts that would justifyexcluding the relevant data from disclosure. R. JOHNSTON AND K. KANDARAS, supranote 12, at 86. The burden then shifts to the party seeking disclosure to show excep-tional circumstances under which it would be impracticable to obtain such informa-tion by other means. Id. Most courts have been reluctant to allow this exception.Compare United States v. Hooker Chemicals, 112 F.R.D. 333 (W.D.N.Y. 1986) (ex-ceptional circumstances not found therefore expert's opinions not discoverable);Grindell v. American Motor Corp., 108 F.R.D. 94 (W.D.N.Y. 1985) (exceptional cir-cumstances not found); Perry v. W.S. Parley & Co., 54 F.R.D. 278 (E.D. Wisc. 1971)(neither name of expert nor his opinions discoverable) with Delecastor, Inc. v. VailAssociates, Inc., 108 F.R.D. 405 (D. Co. 1985) (experts opinion discoverable due toexceptional circumstances); Dixon v. Cappellini, 88 F.R.D. 1 (M.D. Pa. 1980) (excep-tional circumstances found). See generally R. JOHNSTON AND K. KANDARAS, supranote 12, at 86-91 (discussing the discoverability of consulting experts).

54. ILL. REV. STAT. ch. 110A, T 220(b)(1) (1987) (emphasis added). See also Klin-gler Farms, Inc. v. Effingham Equity, Inc., 171 Ill. App. 3d 567, 571, 525 N.E.2d 1172,1175 (5th Dist. 1988) (disclosure of testifying expert is mandatory); Jarmon v. Jinks,165 Ill. App. 3d 855, 520 N.E.2d 783 (1st Dist. 1987) (rejecting the argument thatabsent a demand for disclosure, there is no duty to disclose an expert witness). Butsee Illini Aviation, Inc. v. Walden, 161 Ill. App. 3d 345, 514 N.E.2d 551 (4th Dist.1987) (although Rule 220 mandates that the trial court set a schedule for disclosureof expert witnesses, where no such order is issued, there can be no violation of Rule220). This section of the rule contemplates good faith on the part of all litigants toretain their experts and their expert's opinions well in advance of trial. ILL. ANN.STAT. ch. 110A, 220, Committee Comments at 439 (Smith-Hurd 1985 & Supp. 1989).

55. Phelps v. O'Malley, 159 Ill. App. 3d 214, 225, 511 N.E.2d 974, 981 (1987).56. ILL. REV. STAT. ch. 110A, 220(b)(1) (1987). Under this section of the rule,

experts who are to testify must be disclosed within ninety days from the date onwhich their opinions are first divulged. Id. The substance of the opinion then be-comes discoverable pursuant to subsection (c). Id. The rule provides alternativeguidelines in cases in which the parties delay the determination of whether an expertis going to testify. In this instance, when experts have not been previously identified,disclosure is to be made at the first pretrial conference. Id. See supra note 51 for the

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court, on its own motion or on the motion of any party after the firstpretrial conference, must enter an order scheduling the dates uponwhich all expert witnesses will be disclosed."7 The object is to com-plete discovery sixty days before the date of trial." The rule specifi-cally mandates the disqualification of experts who are not disclosedin compliance with the above requirements. 9

text of section (b)(1) of Rule 220.57. ILL. REV. STAT. ch. 110A, 220(b)(1) (1987). There is currently a split in the

appellate courts over the issue of whether or not an order must be entered by thetrial court under section (b)(1) in order to preserve the application of Rule 220. Thefourth district holds that where no pretrial order requiring disclosure has been madeby the trial court, there can be no violation of Rule 220. Illini Aviation, 161 Ill. App.3d at 347, 514 N.E.2d at 552. The remaining districts, however, hold that disclosureof expert witnesses under Rule 220 is mandatory, regardless of whether a demand fordisclosure is made or whether an order requiring disclosure is entered. See KlinglerFarms, 171 Ill. App. 3d at 517, N.E.2d at 1172; Jarmon v. Jinks, 165 Ill. App. 3d 855,520 N.E.2d 783 (1st Dist. 1987); Fischer v. G & S Builders, 147 Ill. App. 3d 168, 497N.E.2d 1022 (3d Dist. 1986).

58. ILL. REV. STAT. ch. 110A, 220(b)(1) (1987). All dates set by the trial courtunder this order are to insure that discovery of such expert witnesses will be com-pleted no later than sixty days before the date on which the trial court reasonablyanticipates the trial will begin. Id. The drafters of Rule 220 felt that the (b)(1) dis-closure guidelines should, in the majority of cases, cause the identity of expert wit-nesses to be revealed within ninety days following the first pretrial conference. ILL.ANN. STAT. ch. ll0A, 220, Committee Comments at 439 (Smith-Hurd 1985 & Supp.1989). In the event this was not the case, the drafters provided in the rule that thetrial court shall establish a schedule under which all experts must be disclosed toinsure that all discovery relating to such experts be concluded not later than sixtydays before trial. Id. The drafters felt that this provided litigants with ample time todecide whether they wanted to use the person expressing the opinions as a witness.Id. at 440.

59. ILL. REV. STAT. ch. 110A, 220(b)(1) (1987). The drafters of Rule 220 feltthat because the disclosure guidelines provided ample time for litigants to decidewhether they would use an expert's opinion, a mandatory and exclusionary cutoff wasjustified in instances where opinions were not disclosed by a party until after thedisclosure period. ILL. ANN. STAT. ch. 110A, 1 220, Committee Comments at 339-40(Smith-Hurd 1,985 & Supp. 1989).

The imposition of sanctions under Rule 220 may be significantly impacted by arecent decision of the Illinois Supreme Court. In Gibellina v. Handley, the supremecourt held that if a party refuses to comply with orders entered by the trial courtpursuant to Rule 220 for the disclosure of experts, the trial court may entertain theopponent's motion for summary judgment and preclude the violating party from es-caping the motion for summary judgment by taking a voluntary dismissal under sec-tion 2-1009 of the Illinois Code of Civil Procedure. Gibellina, 127 Ill. 2d 122, 137-38,535 N.E.2d 858, 866 (1989). This decision gives the trial court the discretion to enter-tain the dispository motion before the motion for a voluntary dismissal if the trialcourt believes that there has been an abuse of the judicial process by the plaintiff. Id.Furthermore, the ruling is prospective only after February 22, 1989. Id.

Prior to Gibellina, when a defendant moved for summary judgment, or a dismis-sal for plaintiff's failure to comply with discovery pursuant to Rule 220 or 219, theplaintiff could escape a dismissal on the merits by taking a voluntary nonsuit undersection 2-1009. See Johnston, The Voluntary Dismissal In Illinois - A Sword or aShield?, 21 J. MARSHALL L. REV. 537 (1988) (discussing the use of the voluntary dis-missal in Illinois prior to Gibellina).

Finally, one other consideration of import is that the failure to specifically objectat trial when an opponent puts an undisclosed expert witness on the stand, waivesthe issue for appeal. See, e.g., Puskar v. Hughes, 179 Ill. App. 3d 552, 533 N.E.2d 962

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As previously noted, disclosure under Rule 220 is necessary onlyfor experts expected to render an opinion at trial. Therefore, thedetermination of whether a person is a testifying or consulting ex-pert is a crucial one. For instance, in a very controversial decision,the Illinois Supreme Court recently held that treating physicians arenot experts under Rule 220.60 The court likened treating physiciansto occurrence witnesses who may testify because they participated inor witnessed the events that are part of the subject matter of thelitigation." Consequently, they are exempt from Rule 220 and may

(1989) (litigant waived Rule 220 issue by failing to object at trial); Tokar v. Crest-wood Imports, Inc., 177 Il. App. 3d 422, 532 N.E.2d 382 (1988) (litigant waived anyerror in undisclosed expert's testimony by calling the expert as a witness in his casein chief rather than waiting for opponent to call the expert and then objecting);Oakleaf v. Oakleaf & Assoc., 173 Ill. App. 3d 637, 527 N.E.2d 926 (1988) (litigantwaived claim that admission of testimony by undisclosed expert was error by failingto object at trial).

60. Tzystuck v. Chicago Transit Auth., 124 Ill. 2d 226, 238, 529 N.E.2d 525, 529(1988).

61. Id. at 238, 529 N.E.2d at 528-29. The Tzystuck court stated that treatingphysicians are not retained by litigants in the expectation that they might developand give a particular opinion on a disputed issue at trial, therefore, they are exemptfrom Rule 220. Id. at 234-35, 529 N.E.2d at 529. The significance of this decision is ofimportance, not only for disclosure purposes, but also because it may determinewhich party will bear the expense of the discovery fees charged by the witness. Forexample, Rule 220 provides that each party shall bear the expense of all discoveryfees charged by their experts. ILL. REV. STAT. ch. 110A, 220(c)(6) (1987). See alsoinfra notes 67-69 and accompanying text for further discussion of expert's fees underRule 220. Rule 204, on the other hand, places the burden of bearing discovery fees onthe party seeking the discovery, in instances where the physician is not an expert perRule 220. ILL. REV. STAT. ch. ll0A, 204(c) (1987). Thus, the Tzystuck decision hashad a significant. economic effect upon personal injury litigation because substantialdiscovery costs will not have to be borne by plaintiffs, should defendants wish to seekdiscovery of their treating physicians. Not surprisingly, defense attorneys throughoutIllinois have expressed concern over the Tzystuck decision. See Lavin, Rule 220Questions Remain After Recent Rulings, Chicago Daily L. Bull., June 20, 1989, at 2,col. 3 (discussing the impact of the Tzystuck decision on defense attorneys).

The Tzystuck decision was later broadened in Wilson v. Chicago Transit Au-thority. 126 I1. 2d 171, 533 N.E.2d 894 (1988). In a four to three decision, the IllinoisSupreme Court held that a plaintiffs treating physician would not be barred fromrendering an expert opinion, not withstanding the fact that the treating doctor ex-amined the plaintiff during the course of the trial, after not having treated the plain-tiff in several years, and even though the doctor was never listed as a Rule 220 expert.Id. at 174-76, 533 N.E.2d at 896-97 (emphasis added). The Wilson court, noting theTzystuck decision, held that the length of time between the treating physician'streatment of the plaintiff and his examination of plaintiff on the last day of trial, didnot make the treating physician an expert witness subject to Rule 220. Id. at 176-77,533 N.E.2d at 897.

Additional recent decisions have resulted in.the extension of the Tzystuck deci-sion to occurrence witnesses who are not treating doctors. For instance, the fourthdistrict permitted a project manager, who was an employee of the defendant, torender an opinion at trial despite the fact that he had not been disclosed as an expertper Rule 220. Smith v. Central Illinois Pub. Serv. Co., 176 Ill. App. 3d 482, 494-95,531 N.E.2d 51, 59 (1988). The Smith court reasoned that, consistent with Tzystuck,the fact that an employee of a party, who is also an occurrence witness and intimatelyinvolved in the subject matter of the litigation, testifies poses no surprise to the op-posing party. Id. See also Voyles v. Sanford, 183 Ill. App. 3d 833, 539 N.E.2d 801 (3d

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testify without prior disclosure. s2

C. Discovery of Expert's Opinions

Although the disclosure of a testifying expert's identity ismandatory under Rule 220(b), their opinions and reports may beobtained only through the process of discovery. Rule 220(c)(1) 3

Dist. 1989) (former employee of the defendant, a truck driver, was allowed to give anexpert opinion about the trailer's brake system even though he was never disclosedper Rule 220); Puskar v. Hughes, 179 Ill. App. 3d 522, 533 N.E.2d 962 (2d Dist. 1989)(party to an action is not subject to the disclosure requirements of Rule 220); Hill v.Ben Franklin Say. & Loan Assoc., 177 Ill. App. 3d 51, 531 N.E.2d 1089 (2d Dist. 1988)(court held that a party can give lay opinion testimony of the value of his land and,even if he were an expert per Rule 220, his identity need not be disclosed because hewas not retained to render an opinion at trial, but merely participated in the suit).But see Nolan v. Elliot, 179 Ill. App. 3d 1077, 535 N.E.2d 1053 (2d Dist. 1989) (courtrefused to allow an eyewitness ambulance driver to testify to the standard of care ofambulance drivers because he was not disclosed as an expert per Rule 220); Meyer v.Caterpillar Tractor Co., 179 Ill. App. 3d 268, 533 N.E.2d 386 (1st Dist. 1988) (courtrefused to extend the Tzystuck doctrine and reversed the trial court's decision toallow five co-workers to give opinion testimony without prior disclosure under Rule220), rev'd on other grounds, No. 68240 (Ill. Jan. 17, 1990) (WESTLAW, IllinoisCases Library).

Another important issue in this area is whether a defense attorney may engage inex parte conferences with the plaintiff's treating physician. The first district heldthat defense attorneys are precluded from such conferences because they are againstpublic policy and because defense attorneys can obtain all the appropriate informa-tion through proper discovery practices. Petrillo v. Syntex Laboratories, Inc., 148 Il1.App. 3d 581, 588, 499 N.E.2d 952, 961-62 (1986).

However, in a recent first district decision, an expert witness was allowed to tes-tify for a defendant at trial, despite the fact that the expert had been originally hiredas the plaintiff's expert in the same case. See Akers v. Atkinson, Topeka & Santa FeRy. Co., 187 Ill. App. 3d 950; 543 N.E.2d 939 (1st Dist. 1989).

62. Tzystuck, 124 Ill. 2d at 238, 529 N.E.2d at 529. Although a treating physi-cian's identity and opinions are not discoverable under Rule 220, they are discovera-ble under Illinois Supreme Court Rules 201(b)(1), 204(c), 214, and 215, as are consult-ing experts and other persons with knowledge of the facts. Id. at 238, 529 N.E.2d at530.

63. Section (c)(1) of Rule 220 provides:(c) Discovery(1) Upon interrogatory propounded for that purpose, the party retaining oremploying an expert witness shall be required to state:(i) the subject matter on which the expert is expected to testify;(ii) his conclusions and opinions and the bases therefore; and(iii) his qualifications.(2) The party answering such interrogatories may respond by submitting thesigned report of the expert containing the required information.(3) A party shall be required to seasonably supplement his answers to interrog-atories propounded under this rule as additional information becomes knownto the party or his counsel.(4) The provisions of paragraphs (c) and (d) hereof also apply to a party or anemployee of a party who will render an opinion within his expertise at the timeof trial. However, the provisions of paragraphs (c) and (d) do not apply toparties or employees of entities whose professional acts or omissions are thesubject of the litigation. The opinions of these latter persons may be the sub-ject of disclosure by deposition only.(5) The identity, opinions and work product of consulting experts are discover-

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places the burden of seeking such information on the opposingparty. The opposing party may request, by way of interrogatory, thesubject matter on which the expert will testify, the conclusions andopinions of the expert, and the expert's qualifications."

The answering party may respond to an interrogatory requestby submitting answers or by submitting the expert's signed reportwhich contains the requested information. 5 However, once the an-swering party responds to the interrogatory request, it is under anobligation to continuously keep abreast of the opinions of its expertsand to advise the opposing party of any changes.6

Rule 220 also addresses the long standing controversy of who isresponsible for the payment of the expert's fees.6 7 Subsection (c)(6)states that payment of the expert's fees is the responsibility of theparty who retains the expert."' Thus, each party will bear the cost ofits own experts. It is important to note that this provision does notapply to consulting experts or treating physicians who are not expertwitnesses as defined under Rule 220(a).6 9 In these instances, the

able only upon a showing of exceptional circumstances under which it is im-practicable for the party seeking discovery to obtain facts or opinions on thesame subject matter by other means. However, documents, objects and tangi-ble things as defined in Rule 214 which are in the possession of a consultingexpert and which do not contain his opinions may be obtained by a request forthat purpose served upon the party retaining him.(6) Unless manifest injustice would result, each party shall bear the expense ofall fees charged by his expert witness or witnesses.

ILL. REV. STAT. ch. ll0A, 220(c) (1987). See supra notes 52-53 and accompanyingtext for a discussion of the discovery of a consulting expert's identity and opinions.

64. ILL. REV. STAT. ch. 110A, 220(c)(1) (1987). The opposing party may, with-out leave of court, also use other modes of discovery, as provided by the supremecourt rules, including the taking of depositions. ILL. ANN. STAT. ch. 110A, 220, Com-mittee Comments at 440 (Smith-Hurd 1985 & Supp. 1989). See generally R. JOHN-STON AND K. KANDARAS, supra note 12, at 85-86, 103-04 (discussing the use of deposi-tions in relation to expert witnesses).

65. ILL. REV. STAT. ch. ll0A, 220(c)(1) (1987).66. Id. The answering party may keep the opposing party up to date of any

changes in its expert's opinions by seasonably supplementing answers to the interro-gatory or, where a report is provided in lieu of answers, by providing supplementalwritten changes. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 440(Smith-Hurd 1985 & Supp. 1989).

67. See supra note 63 for the text of section (c)(6) of Rule 220. The rule re-solves the intense controversy over the proper apportionment of discovery costs re-garding expert witnesses by setting the fees impartially. Foreman and Mueller, supranote 40, at 543-44. Prior to Rule 220, economic factors often played a considerablerole in pre-trial strategy. Id. at 543. Litigants frequently attempted to discouragetheir opponents from eliciting their expert's opinions by designating a large numberof witnesses who lived out of state. Id. The magnitude of the expenses involved oftenserved to deter the opponents from seeking such discovery. Id.

68. ILL. REV. STAT. ch. 110A, 220(c)(6) (1987). The rule does allow the court touse this section in the nature of a sanction in instances where manifest injusticewould result if each party were to bear its own expense. ILL. ANN. STAT. ch. l1OA,220, Historical and Practice Notes at 442 (Smith-Hurd 1985 & Supp. 1989). Suchdiscovery, however, will rarely be unfair. Id.

69. See supra note 61 for a discussion of discovery fees in relation to consulting

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party seeking the discovery information bears the expense.7"

D. Scope of Expert's Testimony

Rule 220(d)71 regulates the scope of the expert witness's testi-mony. An expert is not allowed to testify at trial to opinions whichwere not previously disclosed in response to a discovery request.72

The purpose of this subsection is to permit the litigants to ascertainand rely on the opinions of their adversary's experts.13

There are, however, a few exceptions to this general rule. Forinstance, if the discovering party fails to ask the expert about all ofhis or her opinions, the objection may be waived, since the burden ison the discovering party to uncover all the expert's purported opin-ions."" Also, experts may be permitted to "update" their opinion aslong as they do not shift their theory, belief, or methodology.7

experts and treating physicians.70. Id.71. Section (d) of Rule 220 provides:

(d) SCOPE OF TESTIMONY.To the extent that the facts known or opinions held by an expert have beendeveloped in discovery proceedings through interrogatories, deposition or re-quests to produce, his direct testimony at trial may not be inconsistent withnor go beyond the fair scope of the facts known or opinions disclosed in suchdiscovery proceedings. However, he shall not be prevented from testifying as tofacts or opinions on matters regarding which inquiry was not made in the dis-covery proceedings.

ILL. REV. STAT. ch. 110A, 220(d) (1987).72. Id. See, e.g., Ramos v. Pyati, 179 Ill. App. 3d 214, 534 N.E.2d 472 (1989)

(court limited expert's opinion to his deposition testimony); Greene v. Rogers, 147 Il.App. 3d 1009, 498 N.E.2d 867 (1986) (court limited pathologist's testimony to thatgiven in his autopsy report and excluded testimony on the standard of care which wasnot contained in the report). But see infra note 74 and accompanying text discussingthe discovering party's duty to inquire into all of the expert's opinions.

73. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 440'(Smith-Hurd1985 & Supp. 1989). It is also a necessary supplement to the sanction of disqualifica-tion provided for in subsection (b)(1) in that the court can limit the scope of testi-mony which is not disclosed in compliance with the rule. ILL. ANN. STAT. ch. 110A,220, Historical and Practice Notes at 442 (Smith-Hurd 1985 & Supp. 1989).

74. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 440 (Smith-Hurd1985 & Supp. 1989). A party who fails to ask an opposing expert about all the opin-ions and bases for them may be penalized when the trial court grants the expertwitness freedom to testify broadly at trial. For instance, in Fogarty v. Parichy Roof-ing Co., the court allowed an expert to testify to an undisclosed medical opinion be-cause the opposing party failed to inquire in a deposition about any additional opin-ions the expert might have with respect to the plaintiff's medical condition. 175 Ill.App. 3d 530, 541, 529 N.E.2d 1055, 1063 (1988).

75. Sloan and Adams, Illinois Supreme Court Rule 220: The Winning Edge inthe Battle of Experts, 77 ILL. B. J. 642, 646 (Aug. 1989). See, e.g., Singh v. Air Illinois,Inc., 165 Ill. App. 3d 923, 520 N.E.2d 852 (1988) (court allowed expert to testify onmaterial contained in revisions to his report which were made just prior to trial be-cause they were merely an update of the original methodology and not a shift intheory or belief); Georgacopoulos v. University of Chicago, 152 Ill. App. 3d 596, 504N.E.2d 830 (1987) (court allowed expert to testify beyond matters covered in his dep-osition because the additional testimony did not form the basis for his opinion);

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These exceptions should have only limited application, however, be-cause of a party's continuing duty to seasonably supplement discov-ery concerning the expert witness's opinions.7"

III. APPLICATION IN ILLINOIS

As with any new statutory provision, Rule 220 contains manyissues regarding the interpretation and application of the rule whichthe courts must resolve. However, few problems have troubled thecivil trial court system with the magnitude and frequency as the is-sue concerning the appropriate sanctions to be imposed when an ex-pert witness has not been disclosed in compliance with Rule 220."

As previously stated, the adoption of Rule 220 in 1984 wasunique because it provided, for the first time, a specific sanction tobe applied against undisclosed testifying experts.7 The language inRule 220 clearly mandates that noncompliance with the rule will re-sult in disqualification of the expert as a witness.7" However, in1985, the Illinois Supreme Court amended Rule 219 which made itssanction provisions also applicable to Rule 220 violations."' Thesanctions provided in Rule 219(c) are to be applied at the trialcourt's discretion; a discretion which was not provided for in Rule220. Consequently, there are two contradictory sanction provisionsbeing applied in Illinois, with the case law reflecting these inconsis-tent messages.

For instance, the third district provided the earliest appellatecourt interpretation of Rule 220 in Fischer v. G & S Builders.1 InFischer, the plaintiffs first disclosed their intent to use an expert

Mazur v. Lutheran Gen. Hosp., 143 Ill. App. 3d 528, 493 N.E.2d 62 (1986) (courtallowed defendant's counsel to question his medical expert on matters beyond thosecovered in his deposition through the use of a hypothetical question).

76. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 440 (Smith-Hurd1985 & Supp. 1989). The drafters of Rule 220 recognized that, because the rule im-poses a duty on the party retaining an expert to keep an opposing party abreast ofchanges in the opinions of its experts, there should be only limited instances in whichan opposing party would not be aware of any changes in the expert's opinions, thusnullifying the utility of the exceptions.

77. See, e.g., Foreman and Mueller, supra note 40, at 540 (discussing the dis-closure problem under Rule 220); Sloan and Adams, supra note 75, at 642 (discussingthe problems that the inconsistent application of the disclosure sanction has created);O'Brien, Rule 220 A Cure For Late Disclosure?, Chicago Daily L. Bull., Jan. 9, 1985,at 2, col. 2 (discussing practicioners' optimistic view of Rule 220 as a cure for the everpresent undisclosed expert problem).

78. See supra note 9 and accompanying text describing Rule 220 as a rule with-out precedent in Illinois.

79. ILL. REV. STAT. ch. l10A, V 220(b)(1) (1987). See supra note 51 for the textof section (b)(1) of Rule 220.

80. See supra note 5 and accompanying text discussing the 1985 amendment torule 219.

81. 147 I1. App. 3d 168, 497 N.E.2d 1022 (3d Dist. 1986).

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witness three days before trial.2 The defendant motioned the courtto exclude the expert's opinion in accordance with Rule 220.83 TheFischer court decided that, because trial courts had the discretion toimpose sanctions prior to Rule 220 under rules 219 and 2-1003(c),they should have a similar discretion over Rule 220.84 Consequently,the Fischer court held that the trial court had not abused its discre-tion in allowing the expert to testify in a limited capacity concerningmatters of his personal knowledge. 5

The reasoning of the third district was subsequently followed bythe first district in Jarmon v. Jinks,s6 and Dietrich v. Jones.8 7 InJarmon, the defendants did not disclose the identity of their expertwitness until one and one-half days after the start of the trial.8 TheJarmon court held that although it was proper for the trial court tobar the tardily disclosed expert from testifying, the sanction underRule 220 rests within the trial court's discretion. 9 The Dietrich caseinvolved an expert whom the plaintiffs did not disclose until duringthe course of the trial.90 The Dietrich court rejected the defendant'sclaim that Rule 220 mandated an inflexible sanction of disqualifica-tion for noncompliance." The court stated that the trial court didnot abuse its discretion in allowing the plaintiff's undisclosed expertto testify since the plaintiff had offered to allow the defendant tocontinue the trial and depose the expert.9 2 The court further statedthat by not accepting such an offer, the defendant waived an oppor-tunity to cure the alleged discovery defect, and the trial court wasjustified in not excluding the undisclosed expert. 3

Similarly, other districts followed this line of reasoning. Thefourth district, in James v. Yasunaga,9" and the fifth district, in

82. Fischer, 147 I1. App. 3d at 171, 497 N.E.2d at 1024.83. Id.84. Id. at 172, 497 N.E.2d at 1024-25. In support of its holding, the Fischer

court cited to cases decided under rule 219 and section 58(c) of the old Civil PracticeAct (now section 2-1003(c) of the Illinois Code of Civil Procedure), both rules whichallow the trial judges to use discretion. Id. at 172, 497 N.E.2d at 1025.

85. Id.86. 165 Ill. App. 3d 855, 520 N.E.2d 783 (1st Dist. 1987).87. 172 Ill. App. 3d 201, 526 N.E.2d 450 (1st Dist. 1988).88. Jarmon, 165 Ill. App. 3d at 864, 520 N.E.2d at 788.89. Id. at 863, 520 N.E.2d at 787 (citing Fischer v. G & S Builders, 147 Ill. App.

3d 168, 172, 497 N.E.2d 1022, 1025 (3d Dist. 1986)). See also Dixon v. Univ. of Chi-cago Hosps. & Clinics, 546 N.E.2d 774, 190 Il. App. 3d 369 (1st Dist. 1989) (reaffirm-ing the Jarmon court's ruling).

90. Dietrich, 172 Ill. App. 3d at 204, 526 N.E.2d at 452.91. Id. at 205, 526 N.E.2d at 453. The Dietrich court cited the third district's

decision in Fischer v. G & S Builders in support of its holding. Id.92. Id.93. Id.94. 157 Ill. App. 3d 450, 457, 510 N.E.2d 531, 536 (4th Dist. 1987). In Yasunaga,

the trial court entered an order pursuant to Rule 220 which set a schedule for thedisclosure of expert witnesses. Id. at 453, 510 N.E.2d at 534. Under the schedule, the

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Klinger Farms, Inc. v. Effingham Equity, Inc.9 5 both cited theFischer decision in holding that the sanctions applicable to Rule 220violations were within the court's discretion. Unfortunately, due tothe nature of the discretionary standard employed in these districts,the courts have been less than consistent in determining whether tobar or permit the testimony of an undisclosed expert witness.96

Conversely, the second district chose not to follow Fischer inthe case of Phelps v. O'Malley 7 In Phelps, the plaintiffs retainedan expert witness fourteen months prior to trial, but did not disclosehis identity until the trial."' The trial court denied the defendant'sattempt to bar the expert and permitted the expert to testify afterallowing the defendants an opportunity to depose the expert.9 Onappeal, the Phelps court held that the trial court had erred in al-lowing the undisclosed expert to testify. 0 0 The Phelps court notedthat, unlike rule 219, Rule 220 did not provide a list of sanctionsand thus, the court's discretion was severely limited by themandatory language in the rule.'0 ' The court also pointed out that,

plaintiffs were given 60 days to disclose their expert witnesses. Id. Subsequent to the60 day deadline, the plaintiffs attempted to use the deposition of an undisclosed ex-pert to challenge the defendant's motion for summary judgment. Id. In disqualifyingthe expert's report, the Yasunaga court relied on Fischer in support of a discrection-ary sanction. Id. at 457, 510 N.E.2d at 536.

95. 171 Ill. App. 3d 567, 570, 525 N.E.2d 1172, 1174 (5th Dist. 1988). In KlingerFarms, the trial court held a pretrial conference in which it set a date for trial andestablished a discovery cut-off date. Id. at 569, 525 N.E.2d at 1173. The KlingerFarms court, citing the Fischer decision, held that the trial court had not abused itsdiscretion in refusing to permitt the defendant to add a new expert witness after thediscovery cut-off date. Id. at 571-72, 525 N.E.2d at 1174-75.

96. Some courts have held that excluding an undisclosed expert witness was notan abuse of discretion under Rules 220 or 219. See, e.g., Scheibel v. Groeteka, 183 Ill.App. 3d 120, 538 N.E.2d 1236, 1251-52 (5th Dist. 1989); Castro v. South ChicagoCommunity Hosp., 166 Ill. App. 3d 479, 519 N.E.2d 1069 (1st Dist. 1988); Levin v.Welsh Bros. Motor Serv., Inc., 164 Ill. App. 3d 640, 518 N.E.2d 205, 211-12 (1st Dist.1987). In some cases, courts have held that the trial court's erroneous allowance ofexpert testimony required a new trial. See, e.g., Meyer v. Caterpillar Tractor Co., 179Ill. App. 3d 268, 533 N.E.2d 386 (1st Dist. 1988), rev'd on other grounds, No. 68240(Ill. Jan. 17, 1990) (WESTLAW, Illinois Cases Library). Payne v. Nicholas, 156 Ill.App. 3d 768, 509 N.E.2d 555 (1st Dist. 1987); Illini Aviation, Inc. v. Walden, 161 Ill.App. 3d 345, 514 N.E.2d 551 (4th Dist. 1987). And finally, other courts have exerciseddiscretion to allow the expert to testify, regardless of the apparent Rule 220 violation.See, e.g., Kubian v. Labinsky, 178 Ill. App. 3d 191, 533 N.E.2d 22 (1st Dist. 1988)(noncompliance did not rise to the level of deliberate, contumacious disregard for thecourt's authority and less harsh alternatives were available under rule 219); Cometo v.Foster McGraw Hosp., 167 Ill. App. 3d 1023, 522 N.E.2d 117 (1st Dist. 1988) (surprisecan be cured by a continuance of trial to allow opposing party to depose an undis-closed witness); Payne v. Nicholas, 156 11. App. 3d 768, 509 N.E.2d 547, 554-55 (1stDist. 1987) (opposing party was offered and refused to depose undisclosed expert inadvance of trial).

97. 159 Ill. App. 3d 214, 511 N.E.2d 974 (2d Dist. 1987).98. Id. at 223, 511 N.E.2d at 979.99. Id.100. Id. at 224, 511 N.E.2d at 980.101. Id. at 224, 511 N.E.2d at 981. The Phelps court noted the failure of section

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if every trial judge were to exercise discretion when dealing with un-disclosed expert witnesses, the uncertainties that Rule 220 was in-tended to erase would remain. °2

Consequently, the result of this split among the districts on theappropriate sanctions to be levied under Rule 220, as well as thedegree of inconsistency within the districts in applying the discre-tionary privilege, has created unpredictability and confusion for liti-gators using Rule 220.1"'

IV. NEED FOR A CONSISTENT STANDARD

In civil litigation, "proceduraf certainty" is often times a loftygoal. Nevertheless, there are various reasons why the courts shouldstrive for consistency in the application of procedural rules. Mostimportantly, consistency in application fosters predictability andpromotes fairness for those using the rule. The inconsistency withwhich trial courts in Illinois have been applying the sanction provi-sions under Rules 220 and 219,14 therefore, necessitates immediateaction to rectify the situation.

There are various approaches which may be considered to cor-rect this dilemma. The easiest solution, albeit the least expedient, isto simply do nothing. That is, given the split that has developedbetween the second district and the remaining districts on the issueof what sanctions should apply under Rule 220, one could simplyopt for a "wait and see" approach, hoping that the Illinois SupremeCourt will eventually decide the issue." 5 Should the Illinois Su-

2-1003(c) and its discretionary sanctions in dealing with the expert witness problem,and that Rule 220 was adopted to remedy this failure. Id. at 222-23, 511 N.E.2d at979. The Phelps court further noted that Rule 220 provided its own mandatory sanc-tion to be applied when the identity of an expert is not properly disclosed. Id. at 224,511 N.E.2d at 980.

102. Id. at 224, 511 N.E.2d at 981. The Phelps court focused on the need forstrict sanctions as a general deterrent to provide a strong incentive for all litigants tocomply fully with the discovery rules. Id. at 224, 511 N.E.2d at 980. Given the gravityof the consequences of nondisclosure of an expert, plus the explicit sanction set forthin the rule, the Phelps court held that Rule 220 mandated disqualification, unless todo so would create a manifest injustice. Id. Accord Nolan v. Elliot, 179 11. App. 3d1077, 535 N.E.2d 1053 (2nd Dist. 1989) (Rule 220 specifically provides for excludingany experts not disclosed in accordance with the rule). See also McDonald's Corp. v.Butler Co., 158 Ill. App. 3d 902, 511 N.E.2d 912 (2d Dist. 1987) (trial court erred innot barring undisclosed expert witness but error was not reversible). But cf. Mitchellv. Wayne Corp., 180 Ill. App. 3d 796, 536 N.E.2d 241 (2d Dist. 1989) (court barredundisclosed witness stating that undisclosed experts should be barred unless to do sowould create manifest injustice but the decision is within the trial court's discretion).

103. See supra note 77 and accompanying text noting the severity of thisdilemma.

104. See supra notes 77-103 and accompanying text discussing the inconsistentapplication of Rule 220 among the districts.

105. However, as of the date of this writing, this issue has not come before theIllinois Supreme Court.

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preme Court decide to hear this issue, there are two important rea-sons why the court should adopt the mandatory sanction provisionurged by the second district in Phelps v. O'Malley.'

First, the use of a mandatory disqualification sanction wouldmore effectively accomplish the Illinois Supreme Court's expressgoal and purpose for adopting Rule 220. As stated earlier, Rule 220was intended to eliminate the problem of the undisclosed expertwitness."0 7 Rule 220 attempted to cure this evil by establishing aflexible framework for the disclosure of expert witnesses and theiropinions.101 In adopting Rule 220, it appeared that the Illinois Su-preme Court had established a mandatory disqualification standardwhich the trial courts could use in dealing with expert witnesses. °

The rule mandated that noncompliance within this flexible frame-work ' was to result in the disqualification of the expert.' 0

However, this standard was subordinated by the amendment toRule 219, which effectively created a second standard of discretionwhich the courts could use."' Due to these alternative sanctions,Rule 220 never had an opportunity to operate under its own exclu-sive sanction.' Instead, Illinois courts were confused because they

106. See supra notes 97-102 and accompanying text discussing the Phelpsdecision.

107. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 438 (Smith-Hurd1985 & Supp. 1989).

108. Id. at 439. Compare ILL. REV. STAT. ch. 110, 2-1003(c) (1987) (expert wit-ness provision very brief with little detail) with ILL. REV. STAT. ch. l10A, 220 (1987)(providing a more detailed expert witness provision than section 2-1003(c)).

109. The drafters of Rule 220 specifically noted the failure of section 2-1003(c)and its discretionary sanctions in curbing the undisclosed expert problem. ILL. ANN.STAT. ch. 110A, 220, Committee Comments at 438 (Smith-Hurd 1985 & Supp. 1989).See supra note 40 and accompanying text discussing the inadequacy of section 2-1003(c) (formerly section 58(3)). Rule 220 was intended to eliminate this problem byestablishing uniform guidelines, which if not complied with, would result in disquali-fication. ILL. ANN. STAT. ch. ll0A, 220, Committee Comments at 439-40 (Smith-Hurd 1985 & Supp. 1989). See supra notes 4 and 41 discussing the mandatorysanction.

110. ILL. REV. STAT. ch. 110A, 220(b)(1) (1987).111. See supra note 5 and accompanying text discussing the 1985 amendment.112. It is also possible that the early appellate districts which first decided that

sanctions for Rule 220 violations were discretionary, may have reached the same con-clusion regardless of the 1985 amendment to rule 219. This is because, prior to Rule220 and the amendment to rule 219, the courts were accustomed to using discretionin applying sanctions under rule 219 and section 2-1003(c). See supra notes 36-40 andaccompanying text discussing the use of discretion under section 2-1003(c). This wasevident in the third district's decision, Fischer v. G & S Builders, which was the firstdistrict faced with the issue. 147 Ill. App. 3d 168, 497 N.E.2d 1022. In Fischer, thecourt held that disqualification for Rule 220 disclosure violations was not mandatoryand that the sanctions to be applied were within the discretion of the trial court. Id.at 172, 497 N.E.2d at 1025. As authority, the Fischer court cited cases decided undersection 2-1003(c) in holding that the same discretionary standard should apply toRule 220. Id. Furthermore, the Fischer court never mentioned the 1985 amendmentto rule 219. The court seemed to place more emphasis on the authority of trial courtsto use discretion under the prior rules, and seemed to ignore the sanction provided

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were faced with seemingly contradictory sanction provisions, andRule 220 was prevented from achieving its intended goal.11

A second reason why a mandatory sanction is preferable to adiscretionary sanction is because history has already shown that thediscretionary standard is ineffective in dealing with undisclosed ex-perts. The failure of section 2-1003(c) is testimony to the ineffective-ness of a discretionary sanction in dealing with this problem." 4 Thefailure of section 2-1003(c) was the reason why the Illinois SupremeCourt felt it necessary to adopt Rule 220 which contained its ownsanction provision. 115 It seems unlikely that the Illinois SupremeCourt intended to allow trial judgep discretion under Rule 220 whenthis very standard failed so miserably under section 2-1003(c).'"

In any event, should the Illinois Supreme Court decide not tohear this issue, there is an alternative method by which the supremecourt can adopt the mandatory sanction provision. The Illinois Su-preme Court should amend rule 219 to make its discretionary sanc-tion provisions inapplicable to Rule 220 violations, thereby allowingthe mandatory sanction provision contained in Rule 220 to governexclusively.1 1 7 This should be done regardless of whether the amend-ment to rule 219 was intentional or oversight."" As noted above, this

for in Rule 220. More importantly, the court failed to examine the intention andpurpose behind Rule 220. Thus, it appears that the same result may have beenreached by the Fischer court regardless of the 1985 amendment to rule 219.

Nevertheless, the 1985 amendment did send out a message concerning sanctionswhich was clearly at odds with that provided for in Rule 220. Furthermore, becausemany of the later decisions in support of a discretionary standard either cited orreferred to rule 219 cases, the 1985 amendment was expressly and implicitly used insupport of the discretionary sanction. See, e.g., Kubian v. Labinsky, 178 Ill. App. 3d191, 533 N.E.2d 22 (1st Dist. 1988) (sanctions should be discretionary because thesanctions provided for in rule 219(c) were made applicable to Rule 220 violations);James v. Yasunaga, 157 Ill. App. 450, 510 N.E.2d 531 (4th Dist. 1987) (citing rule 219cases for the proposition that sanctions should be within the discretion of the trialcourt).

113. See supra notes 77-103 and accompanying text discussing the inconsistentapplication of Rule 220.

114. See supra notes 36-40 and accompanying text discussing the inadequacy ofsection 2-1003(c) (formerly 58(3)) to curb this problem.

115. ILL. ANN. STAT. ch. 110A, 220, Committee Comments at 438 (Smith-Hurd1985 & Supp. 1989).

116. See Phelps v. O'Malley, 159 Ill. App. 3d 214, 222-23, 511 N.E.2d 974, 979-80 (2d Dist. 1987) (implying that the mandatory sanction in Rule 220 was intendedby the Illinois Supreme Court, because Rule 220 was adopted to correct the insuffi-ciency of section 2-1003(c)).

117. The Illinois Supreme Court should amend rule 219, leaving its sanctionprovisions applicable to all current and future discovery rules, with an exception inthe case of Rule 220 disclosure violations. The committee comments accompanyingthis amendment should make explicitly clear that Rule 220 disclosure violations re-quire the mandatory exclusion of the undisclosed expert, as specifically provided forin the rule, and that the sanction for such a violation is not discretionary.

118. See supra note 5 discussing the possibility that the 1985 amendment torule 219, incorporating Rule 220, may have been an oversight.

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standard would serve as a better guide for the courts which wouldno longer have to struggle with conflicting sanction provisions.Mandatory disqualification would provide a more consistent stan-dard than a discretionary standard under which judges are free toact as they choose when confronted with undisclosed expertwitnesses.11

Under either of the above approaches, although the mandatorysanction provision may seem like a harsh standard which could re-sult in the loss of a case by a non-complying party, the imposition ofsuch a sanction will guarantee future compliance by that party's at-torney."' It seems more justifiable to shift any possible unfairnessto parties not complying with the rule then to continually allow un-disclosed experts to testify under a discretionary standard, which isunfair to those who comply with the rule. Such a standard does notfoster compliance nor does it create any incentives for "fair play".

And finally, when both sides of a dispute lay all their cards onthe table, there may be more incentive for the parties to reach asettlement. This, in turn, could contribute to a reduction in costlyand lengthy trials which have notoriously clogged the courts' docket

119. As was pointed out in Phelps v. O'Malley, a mandatory sanction for non-disclosure under Rule 220 is necessary because if every such violation is treateduniquely by allowing the trial court to exercise discretion in applying sanctions, thelitigants and the trial courts will be faced with the same uncertainties and inconsis-tencies that existed under section 2-1003(c). Phelps, 159 I1. App. 3d 214, 224, 511N.E.2d 974, 981 (2d Dist. 1987). A mandatory sanction would remove the uncertainty.Id.

120. A mandatory standard would be reasonable in light of the severity of theundisclosed expert problem and would seem fitting in light of the statement by theIllinois Supreme Court that:

Our discovery procedures are meaningless unless a violation entails a penaltyproportionate to the gravity of the violation. Discovery for all parties will notbe effective unless trial courts do not countenance violations, and unhesitat-ingly impose sanctions proportionate to the circumstances .... Disclosure isthe object of all discovery procedures. It is the opinion of this court that trialcourts should make disclosure a reality.

Buehler v. Whalen, 70 Ill. 2d 51, 67, 374 N.E.2d 460, 467 (1977).Furthermore, a mandatory sanction is justified because the mechanics of disclos-

ure under Rule 220 are hinged on the good faith of the litigants in retaining theirexperts well in advance of trial. See supra note 54 discussing the element of goodfaith which is inherent in Rule 220. In an adversarial system in which gaining anadvantage over an opponent is desirable, litigants will be more apt to comply with thedisclosure requirements when they know that failure to do so will result in the dis-qualification of the expert,

Finally, in extremely unusual circumstances, such as those in which a party'sdisclosed expert has died or refuses to testify after the discovery period is closed, thecourt may utilize other discovery rules to ensure that an injustice does not result. Inthe above example, the trial court could order a continuance of trial in order to allowthe retaining party time to obtain a replacement expert. See ILL. REV. STAT. ch. ll0A,

201(f) (1987) (trial of a case may not be delayed to permit discovery unless duediligence is shown). Thus, neither party would be prejudiced by the unusual circum-stances. The retaining party would not be denied expert assistance, and the opposingparty would be able to depose the newly attained expert.

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in this state. At a minimum, a mandatory sanction will foster pre-dictability and fairness for those using expert witnesses under Rule220.

CONCLUSION

The nondisclosure of expert witnesses in violation of Rule 220should result in the mandatory sanction of disqualification of theexpert. The Illinois Supreme Court can adopt this provision by ei-ther resolving the split in the appellate districts in favor of themandatory sanction or by amending rule 219 so that trial courts areno longer able to justify the use of discretion in applying sanctionprovisions for Rule 220 violations.

The trial courts' strict adherence to this rule and the swift im-position of sanctions will encourage compliance and eliminate theincentives for bypassing the disclosure requirements. The disclosureof expert witnesses will itself promote efficient trial presentation, al-low adequate preparation, encourage settlements, and insure fair-ness to all litigants.

Tim Compall

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