Judicial Rulings                                         

The Illinois Supreme Court decided to rehear a controversial decision involving the death penalty for murder. On May 28 it scheduled oral arguments for June in People v Cruz (Docket No. 70407). Its previous decision, filed December 4 (see Illinois Issues, March 1993, p. 28) had been a close 4-3. The case attracted wide attention and calls for reconsideration because another person had admitted to the murder but in a manner that seemingly made it impossible to prosecute. The majority had held that guilt had been established beyond reasonable doubt, while the dissenting justices questioned this as well as matters in the conduct of the trial.

At a time when the effect of large medical malpractice awards is causing national concern the Illinois Supreme Court affirmed a $5.1 million jury verdict. At issue was testimony by the physician who treated the plaintiff. In this case an emergency room doctor diagnosed flu and gave the classic direction: Take two aspirin and see your doctor in the morning. Two days later a CAT scan revealed hemorrhage in the brain. An angiogram revealed interim development of a condition that precluded surgery. A severe stroke was inevitable, causing paralysis and loss of speech. The patient sued the emergency room doctor and the hospital.

Under court rules (134 Ill. 2d R. 201) the defendant requested names of physicians who treated the patient. A neurologist subsequently began treating the patient, but plaintiffs lawyers did not list him when responding to the defendant's request three weeks later. He was also omitted from the list of expert witnesses for the plaintiff furnished before trial under court rules (Ill. 2d R. 220). He was mentioned in depositions taken from medical professionals by defense attorneys but omitted from two lists of witnesses made near the beginning of the trial. The defense attorney saw him in court, learned that he would be a witness and moved to exclude his testimony since he had not been previously identified as a witness. The trial judge ruled that the neurologist was a treating physician not subject to disclosure as an expert witness under Rule 220(b)(l). His testimony was permitted, after deposition by the defense.

Decisions on failure to list witnesses are within the discretion of the trial court and reversible only for "a clear abuse of discretion or an application of impermissible legal criteria." The court observed that "there exists no duty obligating parties to disclose the names of witnesses whom they intend to use at trial." Under Rule 220(b)(l) "the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party." This protects the defense against nasty surprises, but the Illinois Supreme Court "has steadfastly maintained the position that treating physicians are not subject to Rule 220(b)(1)."

The court observed that this "exception to Rule 220(b)(l) ... has come to mean many different things to many different people, often with unfortunately surprising results." The problem is that "the line between treatment-associated opinions and litigation-associated opinions is often ambiguous and may well be indiscernible." Here the court found that the treating physician necessarily formed an opinion about the emergency room treatment through his own involvement with the patient before any possibility of his testimony arose. The court warned, however, "We strenuously disapprove of strategies which are purposefully designed to circumvent our discovery rules, resulting in unfair surprises to litigants."

Justice Charles E. Freeman wrote the May 20 opinion in Boatment's National Bank v Martin (Docket No. 73328). Justice Moses W. Harrison II did not participate, and Chief Justice Benjamin K. Miller wrote a special concurrence emphasizing the court's deference to the discretion of the trial judge.

The Illinois Supreme Court has revised the makeup of the Judicial Conference in an attempt to make it fulfill its prescribed function. The Illinois Constitution requires the conference of judges to meet annually on the work of the courts and to submit to the General Assembly a written report recommending improvements. According to Chief Justice Benjamin K. Miller the new plan addresses two difficulties of the old arrangement: unwieldy size that largely limited its functions to educational seminars, and exclusion of associate judges, whose functions are now almost equivalent to those of elected circuit judges. Associate judges have had a separate, similar conference.

The newly designed conference now has 70 members: 30 from Cook County (including 10 associate judges) and 10 (including three associate judges) from each of the downstate appellate districts. It also includes the seven Supreme Court justices and the presiding justices of the appellate districts. Members will be assigned to 11 committees, each with a specific concern, that will meet throughout the year. These will report to a 14-member executive committee, which will place the reports on the agenda for the annual meeting of the full body. The chief justice chairs both the conference and its executive committee.

F. Mark Siebert

July 1993/Illinois Issues/37