Tzystuck v. Chicago Transit Authority

• Decision Date: 22 September 1988
• Docket Number: 65336,Nos. 65112,s. 65112
• Citation: 124 Ill.Dec. 544,529 N.E.2d 525,124 Ill.2d 226
• Parties: , 124 Ill.Dec. 544 Claudia TZYSTUCK, Appellant, v. CHICAGO TRANSIT AUTHORITY, Appellee. Elizabeth DIMINSKIS, Appellee, v. CHICAGO TRANSIT AUTHORITY, Appellant.
• Court: Illinois Supreme Court

Page 525

529 N.E.2d 525

124 Ill.2d 226, 124 Ill.Dec. 544

Claudia TZYSTUCK, Appellant, v. CHICAGO TRANSIT AUTHORITY, Appellee.

Elizabeth DIMINSKIS, Appellee, v. CHICAGO TRANSIT AUTHORITY, Appellant.

Nos. 65112, 65336.

Supreme Court of Illinois.

Sept. 22, 1988.

Hoffman, Burke and Bozick, Chicago, for Chicago Transit Authority, Harold D. Clemons, Elanora Myadrecki; Gary W. Bozick, Edmund J. Burke, Eileen M. Walsh, Denise A. Perry, of counsel.

Hofeld and Schaffner, Chicago, for Elizabeth Diminskis; Albert F. Hofeld, Howard Schaffner, of counsel.

A.J. Hardiman, Ltd., Chicago, for Claudia J. Tzystuck; A.J. Hardiman, Eugene C. Hardiman, of counsel.

Justice WARD delivered the opinion of the court:

The appeals in Nos. 65112 and 65336 were consolidated for purposes of oral argument and disposition of the issue of whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Supreme Court Rule 220(b)(1) (107 Ill.2d R. 220(b)(1)).

The plaintiff-appellee in case No. 65336, Elizabeth Diminskis, individually and as plenary guardian of the estate and person of Victor Diminskis, brought suit for personal injury against the defendants-appellants Chicago Transit Authority (CTA) and Harold D. Clemons following an incident in which a CTA bus driven by Clemons struck and injured Victor Diminskis. The record reflects that, prior to trial, the defendants, pursuant to Supreme Court Rule 220(b)(1) (107 Ill.2d R. 220(b)(1)), requested the plaintiff to identify all expert witnesses who would testify at trial. The plaintiff responded that treating physicians would testify at trial, but did not specifically name Dr. Kelvin Von Roenn, a neurosurgeon who treated Victor Diminskis at Rush-Presbyterian St. Luke's Hospital. The plaintiff had previously disclosed Dr. Von Roenn's name in response to an interrogatory propounded by the defendant and had provided the defendants with the physician's medical records of the plaintiff. After the case was set for trial, plaintiff's counsel informed the defendants that he intended to call Dr. Von Roenn to testify and the trial court granted the defendant leave to depose the physician. At trial, Dr. Von Roenn testified over the defendants' objection, and gave his opinion as to the extent of Diminskis' injuries and his prospect for recovery.

The jury returned a verdict in favor of the plaintiff and against Clemons and the CTA, awarding $400,000 to Diminskis and $400,000 to Mrs. Diminskis for loss of consortium. The defendants appealed, claiming, inter alia, that the trial court should have barred the plaintiff's treating physician from testifying at trial because the plaintiff failed to disclose, pursuant to the defendants' Rule 220(b)(1) request, that the physician would testify as an expert witness. The plaintiff responded that she was not required to list a treating physician as an expert witness under Rule 220(b)(1).

The appellate court affirmed. (155 Ill.App.3d 585, 108 Ill.Dec. 54, 508 N.E.2d 215.) It, however, first held that a litigant must disclose, pursuant to a Rule 220(b)(1) request, the identity of a treating physician who will testify at trial, but that the CTA had not been prejudiced by the plaintiff's failure to comply with the rule. Upon rehearing, the court stated that treating physicians do not have to be disclosed as expert witnesses in response to a Rule 220(b)(1) interrogatory and that a party need not disclose an intention to call a treating physician to testify as an expert at trial. (155 Ill.App.3d 585, 108 Ill.Dec. 54, 508 N.E.2d 215.) The appellate court also rejected the CTA's claim of several unrelated trial court errors. This court granted the defendants' petition for leave to appeal. 107 Ill.2d R. 315.

The plaintiff-appellant in No. 65112, Claudia J. Tzystuck, individually and as the administrator of the estate of her deceased husband, Harry Tzystuck, brought a personal injury action for damages for injuries she sustained while attempting to board a bus owned and operated by the defendant-appellee CTA and driven by defendant-appellee Elanora Myadrecki. The trial court subsequently granted the CTA's motion to take a discovery deposition of Tzystuck's treating physician and ordered Tzystuck to pay the physician's deposition witness fees pursuant to Supreme Court Rule 220. The trial court then certified the following question to the appellate court, pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308):

"Whether the plaintiff is responsible for the payment of fees to the plaintiff's treating physician pursuant to Supreme Court Rule 220 when a physician is subpoenaed by the defendant for the taking of his discovery deposition and the plaintiff intends to call this physician to testify at trial."

When the appellate court denied Tzystuck's petition to appeal, this court granted her petition for leave to appeal. 107 Ill.2d R. 315.

Three questions arise in the combined appeals: (1) whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Rule 220(b)(1); (2) whether Rule 220(c)(6) obligates a plaintiff to pay the deposition witness fees of that party's treating physician, when the deposition is taken at the instance of the defendant; and (3) whether claimed errors by the trial court deprived the defendants in the Diminskis case of a fair trial.

I

We first consider whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Supreme Court Rule 220(b)(1). That rule provides:

"In order to insure fair and equitable preparation for trial by all parties 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 * * *." 107 Ill.2d R. 220(b)(1).

The defendants in these consolidated appeals argue that a treating physician who will testify to a medical opinion at trial is an expert witness whose identity must be disclosed under Rule 220(b)(1). As support, they rely principally upon subsection (a)(1) of Rule 220, which defines an expert witness as:

"a person who * * * possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion at trial." (107 Ill.2d R. 220(a)(1).)

They assert that Rule 220(a)(1) does not distinguish among experts who reached an opinion through treating a patient and those who did so by other means, and accordingly, a treating physician who will give an opinion at trial is, they say, an expert witness whose identity must be disclosed in response to a Rule 220(b)(1) interrogatory.

It is true that Rule 220(a)(1) does not distinguish among expert witnesses based on how they form opinions, but appears to encompass all witnesses who might testify to an opinion at trial based on knowledge superior to that of the average person. Subsection (a)(1), however, does not pertain to disclosure of expert witnesses or discovery of expert opinions, it simply defines the qualifications for an expert witness. The specific language in subsections (b) and (c) of Rule 220, which govern disclosure and discovery of expert witnesses, makes clear that treating physicians are not expert witnesses within the meaning of Rule 220(b)(1).

Subsection (b)(1) of Rule 220 requires disclosure of only "the identity of an expert who is retained to render an opinion at trial," and subsection (c) requires "the party retaining or employing an expert witness" to comply with the rules governing discovery of such expert's opinions. (Emphasis added.) 107 Ill.2d Rules 220(b)(1), (c).

Although the defendants argue that "retained" in Rules 220(b)(1) and (c) refers broadly to witnesses who are "requested" to give an opinion within their field of expertise, we consider it obliges litigants to disclose the identity and opinions only of those witnesses who are engaged for the purpose of giving an expert opinion at trial. It may be said that the connection between a medical expert who is "retained to render an opinion at trial" and the party to the suit may be litigation-related, rather than treatment-related. Treating physicians, on the other hand, typically are not "retained to render an opinion at trial" but are consulted, whether or not litigation is pending or contemplated, to treat a patient's physical or mental problem. While treating physicians may give opinions at trial, those opinions are developed in the course of treating the patient and are completely apart from any litigation. Such an opinion is not formed in anticipation of a trial, but is simply the product of a physician's observations while treating the patient, which coincidentally may have value as evidence at a trial. In this respect, the opinions of treating physicians are similar to those of occurrence witnesses who testify, not because they were retained in the expectation they might develop and give a particular opinion on a disputed issue at trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation.

We would note that our conclusion that treating physicians are not to be regarded as experts within the meaning of Rule 220(b)(1) is consistent with the committee comments to that rule. The comments indicate that the committee relied heavily upon certain of the Federal Rules of Civil Procedure in drafting Rule 220. (107 Ill.2d R. 220, Committee Comments, at 355.) Rule 26(b)(4), the Federal counterpart to our Rule 220, relates to the discovery of the identity and the opinions of expert witnesses. That rule allows discovery of "facts known and opinions held by experts * * * acquired or developed in anticipation of litigation or trial" only to the extent specified in that rule. Federal Rule 26(b)(4), like subsections (b) and (c) of our Rule 220, states that a party may, through...