{ "id": 5732114, "name": "PAMELA SPURGEON, Indiv. and as Special Adm'r of the Estate of Jenna Spurgeon, Deceased, et al., Plaintiffs-Appellants, v. RICHARD MRUZ et al., Defendants-Appellees", "name_abbreviation": "Spurgeon v. Mruz", "decision_date": "2005-06-28", "docket_number": "No. 1-04-1931", "first_page": "358", "last_page": "362", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 358" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "710 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 260", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564618 ], "year": 1999, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0260-01" ] }, { "cite": "614 N.E.2d 1194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "155 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810354 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "314" }, { "page": "315-16" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0305-01" ] }, { "cite": "690 N.E.2d 143", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35353 ], "year": 1998, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0531-01" ] }, { "cite": "724 N.E.2d 115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415306 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "21" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0007-01" ] }, { "cite": "776 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 846", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487037 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "855-56" }, { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0846-01" ] }, { "cite": "758 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570055 ], "year": 2001, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0458-01" ] } ], "analysis": { "cardinality": 535, "char_count": 10022, "ocr_confidence": 0.746, "pagerank": { "raw": 7.158996141603422e-08, "percentile": 0.4287973932070943 }, "sha256": "1d15f7d9400a8c34dc741c47e1863a528da49613d73566401d0df96ac85c245e", "simhash": "1:a031357e760248c1", "word_count": 1653 }, "last_updated": "2023-07-14T22:37:08.387494+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PAMELA SPURGEON, Indiv. and as Special Adm\u2019r of the Estate of Jenna Spurgeon, Deceased, et al., Plaintiffs-Appellants, v. RICHARD MRUZ et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nFollowing a jury trial of the plaintiffs\u2019 medical malpractice action, the jury found in favor of defendant Richard Mruz, M.D. The plaintiffs appeal the trial court\u2019s denial of their motion to bar the defendant\u2019s expert witness from testifying. They contend the court abused its discretion in allowing the witness to testify where the witness was not produced for a deposition until trial had commenced. We affirm.\nFACTS\nThe plaintiffs filed their complaint on August 4, 2000, alleging defendants failed to properly treat and diagnose Pamela Spurgeon, resulting in the death of 24-week-old Jenna Spurgeon shortly after delivery.\nThe cause was set for trial June 6, 2003. On May 20, 2003, defendant filed a motion to continue the trial date based on a conflict in his attorney\u2019s trial schedule. The trial was continued to August 15, 2003.\nOn August 1, 2003, the defendant filed an agreed motion to continue the trial date based on the parties\u2019 inability to coordinate expert discovery of the defendant and the fact that plaintiffs\u2019 counsel\u2019s wife was due to deliver a baby on the date of trial. A new trial date was set for December 12, 2003.\nOn October 24, 2003, defendant first disclosed his Rule 213 expert witness, Fred DuBoe, M.D. 210 Ill. 2d R. 213. In the disclosure, defendant described the opinions he expected Dr. DuBoe to express in his testimony. He attached Dr. DuBoe\u2019s curriculum vitae. A deposition of Dr. DuBoe was scheduled for November 26, 2003, but defendant cancelled the deposition on November 25.\nOn November 18, 2003, defendant filed a motion to continue the trial date based on defendant\u2019s counsel\u2019s conflicts with two other cases set for trial. The case was set for trial on February 10, 2003. The order was marked \u201cfinal trial date,\u201d and defendant\u2019s expert witness was ordered to be deposed by January 20, 2004.\nPlaintiffs\u2019 counsel informed defendant he would be out of the country from January 6, 2004, until January 15, 2004, and demanded a date for the deposition of Dr. DuBoe to accommodate his absence. Defense counsel informed plaintiffs\u2019 counsel the only date Dr. DuBoe was available for a deposition was on January 16, 2004. On January 15 or 16, 2004, defendant\u2019s counsel cancelled the deposition without giving an explanation.\nDefense counsel scheduled the deposition of Dr. DuBoe for Sunday evening, February 8, 2004. Plaintiffs\u2019 counsel informed defense counsel he would not be taking the deposition on that date and would seek to bar Dr. Duboe from testifying. Plaintiffs\u2019 counsel declined defense counsel\u2019s offer to schedule the deposition on February 9, 2004, one day prior to trial.\nOn February 10, 2004, plaintiffs filed a motion to bar Dr. DuBoe. The court denied the motion. During a hearing on the motion, the trial judge offered to schedule the deposition at any time convenient to the plaintiffs at defendant\u2019s expense. The first witnesses in the case were due to be called on February 13, 2004, following jury selection. Plaintiffs\u2019 counsel declined the offer, telling the judge it would compromise his case because he needed time to prepare for trial. The judge then suggested plaintiffs\u2019 counsel make a list of information he needed for his cross-examination of Dr. Duboe, and defendant would supply the answers in writing. Plaintiffs\u2019 counsel told the court he would make the list and give it to defense counsel, but he did not do so.\nAt trial, Dr. DuBoe testified as an expert witness for the defendant. Plaintiffs\u2019 counsel did not renew his objection when Dr. DuBoe was called to testify. He cross-examined Dr. DuBoe regarding his affiliation with the defendant, evident from his curriculum vitae. Counsel did not cross-examine Dr. DuBoe on any of his substantive testimony. In his closing argument, defense counsel argued plaintiffs\u2019 counsel must have agreed with Dr. DuBoe\u2019s testimony because there was no cross-examination on the substance of his testimony. The jury returned a verdict for the defendant.\nPlaintiffs filed a posttrial motion, contending they were prejudiced by not having an opportunity to depose Dr. DuBoe before trial and the court abused its discretion by refusing to bar his testimony. The court denied the motion. Plaintiffs appeal.\nDECISION\nThe issue in this case is whether the defendant\u2019s expert witness should have been allowed to testify. At the outset, the plaintiffs waived the issue by failing to renew their objection when Dr. DuBoe was called to testify. A party must make a timely objection to preserve an issue for appellate review. Timeliness requires that objections to evidence be made at the time the evidence is offered or as soon as grounds for the objection become apparent. Sinclair v. Berlin, 325 Ill. App. 3d 458, 467, 758 N.E.2d 442 (2001). A party who, prior to trial, unsuccessfully moves to bar certain evidence, must object again to the evidence when it is offered. Scassifero v. Glaser, 333 Ill. App. 3d 846, 855-56, 776 N.E.2d 859 (2002). Although the plaintiffs filed a motion in limine to bar Dr. DuBoe\u2019s testimony, they did not renew their objection when he was called to the stand to testify. The plaintiffs made several Rule 213 objections to specific portions of the witness\u2019s testimony, but they failed to object to the witness testifying at all. Therefore, plaintiffs have waived consideration of this issue on appeal.\nEven if the issue were not waived, the court did not abuse its discretion by refusing to bar the expert\u2019s testimony. Plaintiffs contend the defendant violated Rule 213 and contend the court erred in failing to impose the sanction of barring the witness\u2019s testimony.\nRule 213 requires a party, in response to written interrogatory, to disclose the identity of the party\u2019s retained expert witness, as well as: (1) the subject matter of his or her testimony, (2) any opinions or conclusions and their bases, (3) the witness\u2019s qualifications, and (4) any reports prepared by the witness. 210 Ill. 2d R. 213(f)(3). Information disclosed in response to a Rule 213(f) interrogatory, or at deposition, limits the testimony that can be given by a witness on direct examination. 210 Ill. 2d R. 213(g).\nThe Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 21, 724 N.E.2d 115 (1999). The admission of such evidence is within the trial court\u2019s discretion and will not be reversed absent an abuse of that discretion. Scassifero, 333 Ill. App. 3d at 855.\nIn support of their contention, plaintiffs rely on cases in which the trial court erroneously allowed witnesses to testify with new opinions not previously disclosed pursuant to Supreme Court Rule 213, resulting in reversal and remand. Seef, 311 Ill. App. 3d at 21; Department of Transportation v. Crull, 294 Ill. App. 3d 531, 534, 690 N.E.2d 143 (1998). They also cite cases in which a party failed to disclose an expert witness in response to interrogatories under Supreme Court Rule 201 (166 Ill. 2d R. 201) (Boatmen\u2019s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194 (1993)), or failed to disclose an expert witness until 11 days before trial (Warrender v. Millsop, 304 Ill. App. 3d 260, 266, 710 N.E.2d 512 (1999)). None of these situations is present in this case.\nThe defendant disclosed Dr. DuBoe as an expert witness more than three months prior to trial. Plaintiffs chose to proceed with trial and did not request a continuance in order to depose the witness. Furthermore, the trial court offered to schedule the deposition at any time and place convenient to the plaintiffs, at defendant\u2019s expense. Plaintiffs refused the offer. Plaintiffs also refused the trial court\u2019s suggestion of submitting to the defendant a list of information needed for cross-examination.\nPlaintiffs refer to Dr. DuBoe\u2019s testimony as \u201cnew opinion testimony\u201d which \u201chad never been disclosed nor tested during deposition.\u201d Nowhere do they contend, however, that Dr. DuBoe testified to opinions that were not previously disclosed in the Rule 213(f) disclosure filed three months prior to trial. Plaintiffs make no showing of surprise or prejudice. See Boatmen\u2019s, 155 Ill. 2d at 315-16. They offer no specific example of trial testimony that was not included in Dr. DuBoe\u2019s Rule 213(f) responses.\nIn their reply brief, the plaintiffs point us to the language of Illinois Supreme Court Rule 218(c): \u201cand the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence.\u201d 166 Ill. 2d R. 218(c). Plaintiffs made no such argument in their opening brief. Further, Rule 218(c) refers to the contents of a case management order, \u201cunless modified.\u201d It has nothing to do with the requirements of Rule 213. This last-minute contention has no merit.\nThe plaintiffs have cited no authority holding that the unavailability of a witness for a deposition violates Supreme Court Rule 213. The trial court did not abuse its discretion in refusing to bar testimony of Dr. DuBoe where there was no showing of a violation of supreme court rules.\nWe affirm the rulings and judgment of the trial court.\nAffirmed.\nBURKE, PJ., and GARCIA, J., concur.\ndefendant Timothy Albion, M.D., was granted summary judgment on March 7, 2001, and is not a party to this appeal.\nPlaintiffs also sought to bar defense expert Robin Steinhorn, M.D. Defendant later withdrew Dr. Steinhorn as a witness.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Paul M. McMahon and Jessica M. Scheller, both of Costello, McMahon & Burke, Ltd., of Chicago, for appellants.", "Robert Marc Chemers, Timothy A. Weaver, Scott L. Howie, and Christine J. Iversen, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellees." ], "corrections": "", "head_matter": "PAMELA SPURGEON, Indiv. and as Special Adm\u2019r of the Estate of Jenna Spurgeon, Deceased, et al., Plaintiffs-Appellants, v. RICHARD MRUZ et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201404\u20141931\nOpinion filed June 28, 2005.\nPaul M. McMahon and Jessica M. Scheller, both of Costello, McMahon & Burke, Ltd., of Chicago, for appellants.\nRobert Marc Chemers, Timothy A. Weaver, Scott L. Howie, and Christine J. Iversen, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellees." }, "file_name": "0358-01", "first_page_order": 376, "last_page_order": 380 }