Violations of Opinion Witness Disclosures Grounds for Mistrial

In Clayton v. County of Cook, No. 1-02-1009, 805 N.E.2d 222, 281 Ill.Dec. 854 (1st Dist. 2004), the Illinois Appellate Court, First District, recently reversed a judgment in the amount of $5.3 million due to plaintiff's violation of opinion witness disclosures. During the medical malpractice trial, plaintiff's medical expert provided several opinions that were not previously disclosed at the expert's deposition or in plaintiff's opinion witness disclosures. The opinions were given by plaintiff's expert during examination by plaintiff's counsel in the presence of the jury. Defendant objected based on Supreme Court Rule 213 and moved for a mistrial. The trial court sustained the objection but denied the motion for a mistrial. The trial court attempted to remedy the violation by asking the expert to confirm to the jury that at the time she gave her deposition in the matter she did not have the criticisms of defendant that she was making at trial.

The appellate court concluded that the presentation of plaintiff's expert's new opinions in violation of Rule 213 prejudiced defendant and required a new trial. 805 N.E.2d at 235. The court found that the trial court's questioning of the expert solidified rather than remedied the Rule 213 violation, because it verified that the expert presented new, undisclosed opinions. Id.

The appellate court recognized that when a violation of Rule 213 occurs, the formulation of a remedy should reflect the underlying purpose of Rule 213 by preventing unfair prejudice or the deprivation of a party's ability to prepare adequately his case through no fault of his own. Id. at 232. In the event that the trial court finds that a party has violated Rule 213 disclosure requirements and depending on the severity of the violation, the opposing party has the option of moving to: (1) strike only the portion of the testimony that violates the rule; (2) strike the witness's entire testimony and bar the witness from testifying further; and (3) have a mistrial declared. Id. The trial court has the discretion to determine the appropriate remedy. Id. The trial court must ensure that the applicable sanction allows for a fair trial rather than punish the party that committed the violation. Id. A mistrial is warranted when the Rule 213 violation "is of such character and magnitude as to deprive a party of a fair trial and the party seeking the mistrial demonstrates actual prejudice." Id. at 234. The following factors are relevant to assess prejudice: "(1) the strength of the undisclosed evidence, (2) the likelihood that prior notice could have helped the defense discredit the evidence, (3) the feasibility of a continuance, and (4) the willfulness of the party in failing to disclose." Id.