Associate Leighanne Root Analyzes a Recent Appellate Decision Regarding Rule 213(f)(3) Disclosures and Defendant Testimony

November 2020

The First District Appellate Court recently ruled that defendant physicians can be confronted at trial with the substance of their Rule 213(f)(3) disclosures just as retained experts are.

In Perez v. St. Alexius Medical Center, the plaintiff brought a wrongful death action against multiple defendants alleging the failure to diagnose and treat metastatic pelvic abdominal cancer. A defendant physician filed a Rule 213(f) disclosure prior to trial regarding his own anticipated trial testimony, outlining his typical customs and practice. At trial, the doctor offered testimony inconsistent with that disclosure. The trial court barred the plaintiff from using the defendant’s disclosure as an evidentiary admission or as a means of impeachment, citing concerns regarding the attorney-client privilege.

The appellate court vacated the ruling and found the trial court’s concern over attorney-client privilege was “earnest but excessive,” underscoring the lack of distinction in Rule 213(f) between a party controlled expert and nonparty controlled experts.

Read more on Leighanne’s analysis here.

Leighanne concentrates her practice in civil litigation with an emphasis on medical malpractice defense, representing physicians, nurses and hospitals in complex litigation. She has experience handling all aspects of litigation, from pre-suit negotiations to jury trials and mediations.