DISCLOSURE OF LAY OPINION TESTIMONY INADEQUATE UNDER AMENDED RULE

August 19, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Interpreting the new version of Supreme Court Rule 213(f), the Illinois Appellate Court decided that a letter disclosing during discovery that the plaintiff in a breach-of-warranty case will testify "about the matters alleged in plaintiff's complaint" does not adequately reveal that the plaintiff intends to provide lay opinion testimony on the value of the defective vehicle. Kim v. Mercedes-Benz U.S.A. Inc., 2004 WL 1366050 (1st Dist., 4th Div., June 17).

The Appellate Court also reviewed the current approach used by the Illinois Supreme Court for determining the adequacy of offers of proof.

The trial judge ruled that the plaintiff could not give opinion testimony about the value of a defective vehicle. The Appellate Court's analysis of that issue was discussed in Wednesday's Trial Notebook, the second of three articles on back-to-back rulings that reached different conclusions on what foundation is required for lay opinion testimony on the value of a defective product. Tuesday's Trial Notebook looked at the court's analysis of this question in Razor v. Hyundai Motors, 2004 Ill.App. LEXIS 703 (1st Dist., 3d Div., June 16).

An initial issue in Kim was whether plaintiff Jung Kim made a proper offer of proof about his proposed testimony involving the allegedly defective 1999 Mercedes-Benz ML 320 that he bought.
As Justice Patrick J. Quinn explained (with various omissions not noted in the quoted text):

"A party claiming he has not been given the opportunity to prove his case must provide a reviewing court with an adequate offer of proof as to what the excluded evidence would have been. An adequate offer of proof apprises the circuit court of what the offered evidence is or what the expected testimony will be, by whom it will be presented and its purpose.

"Pertinent to this case, the purpose of an offer of proof is to disclose to the circuit court and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether the exclusion of the evidence was proper.

"Our Supreme Court has set forth the basic principles regarding the adequacy of offers of proof, stating: 'An offer of proof that merely summarizes the witness' testimony in a conclusory manner is inadequate. Neither will the unsupported speculation of counsel as to what the witness would say suffice. Rather, in making the offer of proof, counsel must explicitly state what the excluded testimony would reveal and may not merely allude to what might be divulged by the testimony. The offer serves no purpose if it does not demonstrate, both to the [circuit] court and to reviewing courts, the admissibility of the testimony which was foreclosed by the sustained objection.' People v. Andrews, 146 Ill.2d 413, 421 (1992).

"The failure to make an offer of proof results in a waiver of review of whether the evidence was excluded improperly."

Based on the circumstances of the case, Quinn decided that the offer of proof was inadequate under the Supreme Court's standard.
In any event, Quinn continued, the trial judge properly excluded the plaintiff's testimony on the value of the defective vehicle because this opinion testimony was not properly disclosed during discovery.
A letter sent to defense counsel during discovery stated that plaintiff Jung Kim would testify at trial "about the matters alleged in plaintiff's complaint."

Based on this letter, Quinn noted, "Plaintiff maintains that he put defendant on notice by identifying himself as a witness and including the subject matter of his expected testimony.

"The newly amended version of Supreme Court Rule 213(f) defines a 'lay witness' as 'a person giving only fact or lay opinion testimony.' Official Reports Advance Sheet No. 8 (April 17, 2002), Rule 213(f), effective July 1, 2002.

"Rule 213(f) also states, 'For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.'

"The committee comments for Rule 213(f) note that a lay witness, for example, includes a person such as an eyewitness to a car accident. According to the committee comments, an answer to a written interrogatory 'must describe the subjects sufficiently to give "reasonable notice" of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics.'
"The committee comments also state that an interrogatory answer would not be proper if it said only that the witness will testify about 'the accident.'

"Illinois Supreme Court rules on discovery are mandatory rules of procedure subject to strict compliance by the parties. A party has a duty to supplement seasonably or amend prior answers or responses whenever new or additional information becomes known to that party. To allow either side to ignore the plain language of Rule 213 defeats its purpose and encourages tactical gamesmanship.

"Here, plaintiff seasonably supplemented additional information by notifying defendant in the July 10, 2001, letter that he would testify at trial regarding the matters set forth in his complaint [about a defective gas gauge in a Mercedes-Benz]. Plaintiff's complaint states that he experienced various alleged defects that 'impair[ed] the use, value and/or safety of the ML 320.' Plaintiff prayed for judgment against defendant for diminution of the value of the vehicle.

"Although detailed disclosure for lay witnesses is no longer required under the newly amended version of Rule 213, plaintiff's notice that he would testify as to matters set forth in his complaint is a generalized statement akin to the committee comments' example noting that merely testifying about an 'accident' is improper disclosure. The committee comments to Rule 213(f) state that the purpose of this rule is 'to prevent unfair surprise at trial, without creating an undue burden on the parties before trial.'

"Here, regardless of the complaint's numerous allegations of the diminished value of the vehicle, plaintiff's generalized statement as to his proposed testimony created an unfair surprise with respect to the attempt to introduce testimony as to the diminished value of the ML 320.

"To allow plaintiff to disclose that he would testify as to matters set forth in the complaint would create an undue burden on defendant, especially given the limitation on plaintiff's personal knowledge upon which he was to rely for his proposed opinion regarding what he would have paid for the vehicle based on the alleged defects.

"A more detailed disclosure describing the specific nature of plaintiff's testimony would have allowed defense counsel to decide whether to depose plaintiff or whether to provide an opposing expert witness on the issue of diminished value.

"Because plaintiff provided only a generalized statement describing his lay witness testimony, he failed to provide reasonable notice of the proposed testimony [which] therefore was not disclosed properly pursuant to Rule 213(f). Accordingly, the Circuit Court did not abuse its discretion and the proposed testimony was excluded properly."

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