Question: You represent the plaintiff in a case in which the trial court has entered a scheduling order requiring you to disclose your experts by a certain date. You do so, in addition to sending the other side a report. However, the report fails to include all the expert's opinions. Assuming the defendant never filed a Rule 213 expert interrogatory, what is going to happen to those extra, undisclosed opinions at trial? Will they be excluded, or not?
Answer: In Heriford v. Dawson, the Fourth District Appellate Court ruled that the undisclosed opinions can come in. Reversing the trial court, the Fourth District stated as follows--
[W]e find that an interrogatory is the trigger for a plaintiff’s duty to disclose the nature and extent of her expert’s opinion. The decision of the trial court, to bar evidence of damages without engaging in the application of its discretionary authority and thereafter award a directed verdict in favor of Moore, is in error. We, therefore, reverse the judgment awarded to Moore.
Heriford v. Dawson is also discussed in this month's Trial Briefs, the newsletter of the ISBA's Section on Civil Practice and Procedure. See "'Tactical gamesmanship' and trial practice: Can it be good advocacy?" by Patrick M. Kinally (ISBA section members only). While critical of the Heriford ruling, Kinally calls it "a must read for anyone trying civil cases."
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