2019 IL App (5th) 170403
Ill. App. Ct.2019Background
- Linda Batson sued defendants for injuries from an elevator incident and placed her physical condition in controversy. Defendants obtained a Rule 215(a) order for a medical exam by Dr. Mitchell Rotman.
- Dr. Rotman examined Batson on August 15, 2016; he faxed his report to defendants’ counsel on August 31, 2016 but did not mail or deliver it to Batson’s counsel within 21 days as required by Rule 215(c).
- At a September 13, 2016 deposition of a treating physician, plaintiff’s counsel advised he had not received Dr. Rotman’s report, moved to bar Rotman’s testimony under Rule 215(c), but proceeded with the deposition because the witness was present.
- Plaintiff moved to bar Rotman’s testimony; defendants produced the report to plaintiff’s counsel only after the issue was raised and argued the trial court had discretion and there was no prejudice.
- The trial court denied the motion to bar after weighing prejudice and timing; plaintiff sought interlocutory review. The certified question asked whether the trial court has discretion to permit a Rule 215 examiner to testify when the party examined’s attorney was not served the examiner’s report within Rule 215(c)’s time.
- The appellate court construed Rule 215(c) and held the rule’s exclusionary sanction is mandatory where the examiner’s report is not delivered within 21 days (or any court-granted extension), except at the instance of the party examined.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court has discretion to allow a Rule 215 examiner to testify when the examiner’s report was not delivered to the attorney for the party examined within Rule 215(c)’s 21 days | Rule 215(c) mandates exclusion of the examiner’s report and testimony for untimely delivery; no prejudice showing required | Rule 215(c) is subject to trial-court discretion; exclusion should require a showing of actual prejudice or be governed by case management orders | The court held exclusion is mandatory under Rule 215(c) for failure to deliver the report within 21 days (or any court-ordered extension); trial court has no discretion to admit such testimony except at the instance of the party examined. |
Key Cases Cited
- Robidoux v. Oliphant, 201 Ill. 2d 324 (construction of supreme court rules follows statutory interpretation principles)
- Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297 (court will not read exceptions into rule language)
- Bright v. Dicke, 166 Ill. 2d 204 (party seeking extension under Rule 183 must show good cause)
- Linn v. Damilano, 303 Ill. App. 3d 600 (appellate court narrowed late supplemental-expert testimony by limiting topics to original report)
- Lilegdon v. Hanuska, 85 Ill. App. 2d 262 (trial court applied discretion under facts where schedule and case events explained delay)
- Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d 6 (discussing mandatory nature of report production and exclusionary remedy)
- Harris v. Minardi, 74 Ill. App. 2d 262 (interpretation that furnishing exam report is mandatory and penalty is exclusion)