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June 8, 2001

No. 1-99-0711

JUSTICE REID delivered the modified opinion of the court⁽¹⁾:

This is an appeal from a final judgment entered on the verdict of a jury and the denial of aposttrial motion seeking a new trial. At issue is Supreme Court Rule 213(g)(ii) (177 Ill. 2d R.213(g)(ii)), which requires parties on written interrogatories to disclose the conclusions andopinions of their expert witnesses, along with the bases for those opinions. The trial court struckone of the plaintiff's experts, which the plaintiff claims is reversible error.

Dorothy Coleman (Coleman) died on December 6, 1990. During 1989, Coleman hadbeen admitted to the Alexian Brothers Medical Center complaining of difficulty breathing and aswollen tongue. Her attending physician was Dr. Dennis Abella, D.O. (Abella). During her stayat the hospital, Coleman's breathing gradually worsened, culminating in respiratory arrestrequiring a stay in the intensive care unit and the use of a mechanical ventilator. Once she couldbreathe on her own, Coleman was transferred out of intensive care and monitored by hospitalstaff every few hours. On October 16, 1989, a blood gas test was performed which showed anabove-normal level of carbon dioxide and a below-normal level of oxygen. The test wasrepeated on October 17, 1989, showing some improvement. At that time, Coleman's results werecarbon dioxide on the high level of normal and a below-normal level of oxygen.

Coleman was observed sleeping at 6:45 a.m. on October 19, 1989. At 7:25 a.m., a nursefound an unresponsive Coleman not breathing and with no pulse. The hospital staff resuscitatedColeman, but the lack of oxygen to her brain left her in a coma in which she remained until herdeath.

In 1991, action was commenced on Coleman's behalf for damages against multipledefendants, including Dr. Abella. On December 18, 1995, the defendants took the deposition ofDr. Marianne Legato (Legato), one of plaintiff's opinion witnesses. The lawsuit was voluntarilydismissed before trial. On March 12, 1997, a new complaint was filed against Dr. Abella andothers. By agreement of the parties, the prior discovery was allowed to stand. Following asettlement with most of the defendants, the case continued against Abella alone. Trial was heldon August 24, 1998, at which plaintiff called two opinion witnesses.

Dr. Morris Papernik (Papernik) testified that he is a board-certified physician of internalmedicine. He attended two years of medical school at the University of Autonomy deGuadalajara in Mexico then completed his medical education at Rush Medical College (Rush). After a one-year family practice internship, Papernik transferred to the internal medical programat Rush. Following his residency, Papernik began a fellowship in hematology and oncology,which he quit to find a better-paying job to support his family. Papernik, who has been in privatepractice in internal medicine since 1984, is also an associate attending physician and associateprofessor at Rush.

In preparing to render an opinion in Coleman's case, Papernik reviewed Coleman'smedical chart and other doctors' depositions. Papernik considered his review of those materialsgave him an adequate foundation for his opinions, claiming that a reasonably qualified internistshould be able to get all the information he needed from the charts. Papernik testified that anattending physician must be aware of everything going on with a patient and must be proactiveon that patient's behalf in terms of his or her welfare. He also testified that, as an attendingphysician, he must make sure that what needs to be done for a patient gets done. This gives anattending physician an active role is making a treatment plan. Papernik opined that Abellabreached the applicable standard of care in four ways while treating Coleman. According toPapernik, Coleman should have had a tracheostomy to ensure better airway protection, whichcould have prevented her second arrest. She also should have been better monitored after shewas released from intensive care. Once the blood gas test results showed a high level of carbondioxide and a low level of oxygen, Papernik felt Abella needed to have acted on them moreappropriately. Finally, Abella should have had another blood gas test for Coleman on October18, 1989, the day before her second respiratory arrest.

Papernik concluded that a reasonably well-qualified internist should have considered thehigh levels of carbon dioxide and low levels of oxygen in Coleman's blood to be red flags thatsomething was wrong. Another test showing continued oxygenation difficulty would haveindicated to a reasonably well-qualified internist the necessity for mechanical ventilation orairway protection. Papernik concluded that the second arrest was caused by the same obstructedprocess that caused the first arrest. Fatigue, malnutrition and pneumonia may have contributed toColeman's underlying illness, but Papernik was completely convinced that an obstruction was theimmediate cause of the full-blown respiratory arrest, a situation that should have been recognizedon or before October 16, 1989, and corrected.

Also called as an opinion witness was Dr. Marianne Legato (Legato), who was referred toas the primary opinion witness. She testified that she was a graduate of the New York UniversityCollege of Medicine in 1962 and that she completed one year of internship and two years ofresidency. Legato next completed a three-year fellowship at Columbia Presbyterian MedicalCenter and its affiliated hospital, St. Luke's Roosevelt Hospital. Legato then received a ResearchCareer Development Award, which involves five years of special training. She is also a fellow ofthe American College of Physicians. After completion of the fellowship, Legato went intoacademic medicine at St. Luke's Roosevelt Hospital, where she spent her career teaching, doingresearch and clinical care. Dr. Legato founded and supervises The Partnership for Women'sHealth at Columbia Presbyterian, which includes both clinical and laboratory research. As anacademic physician, Legato taught and supervised the care of patients in hospitals and clinics. She also directly cared for patients in clinics. Legato stated that she has continued to teachmedicine, has written several books for both lay persons and medical professionals, and iscurrently a professor of clinical medicine at Columbia University College of Physicians andSurgeons.

Dr. Legato gave her deposition on December 18, 1995. At trial, Legato testified that shehad never before testified as an expert witness in a medical malpractice case. In anticipation ofrendering an opinion, she stated she reviewed Coleman's complete medical chart from the time ofher admission through October 19, 1989, some depositions of lay witnesses and the deposition ofDr. Abella.

Legato gave the opinion that Abella failed to meet the standard of care in treatingColeman. She felt that Abella failed to definitively articulate Coleman's underlying diagnosisand the reasons for her illness. He also was wrong in not returning her to intensive care after shecomplained of her inability to swallow, to breath and her fear of dying. Even if the decision wasmade not to return her to intensive care, the applicable standard of care should have requiredAbella to order close monitoring of Colman's cardiac rhythm and her respiratory status. Legatofurther claimed that Abella deviated from the applicable standard of care in failing to do anexhaustive work-up on Coleman's tongue, including a biopsy. Legato concluded that Abella'sdeviations contributed to Coleman's respiratory arrest and subsequent coma.

On cross-examination, Legato was asked whether she ever reviewed the deposition of Dr.Grossman. When Legato indicated that she had reviewed the deposition, counsel for thedefendant objected on the basis that the witness had been supplied with additional material afterher deposition had been taken and that defense counsel had not received a supplementaldisclosure revealing the additional materials that were supplied to her. According to Abella'scounsel, the failure to notify him that Dr. Legato received and reviewed additional materials afterher deposition was a "clear violation of Supreme Court Rule 213."

The trial court addressed the objection to Legato's testimony outside the presence of thejury. Legato admitted to reviewing 13 discovery depositions, nine of which she received shortlybefore trial. The trial court asked Legato if she could "separate out" her testimony and render anopinion based only upon the materials she reviewed before her December 18, 1995, discoverydeposition. Legato indicated that she could not, an answer in which she persisted, even afterattempts to rehabilitate her so that she could disregard the materials she reviewed after herdeposition was taken.

The trial court entertained argument from the parties, ultimately deciding to bar Dr.Legato's testimony in its entirety as a discovery sanction. The trial court based this decision onLegato's testimony that she could not "separate out" her testimony. The jury was then instructedthat Legato's testimony would not remain in evidence and should be disregarded. Trialcontinued, culminating in a jury verdict in favor of defendant, Dr. Abella.

Plaintiff filed a posttrial motion seeking a new trial based on claims that the discoverysanction imposed was both unwarranted and unreasonable. The trial court denied the posttrialmotion, issuing a written order outlining the reasons for the sanction. This appeal followed.

Plaintiff argues that the trial court erred in striking Dr. Legato's testimony because thedecision not to apprise the defendant that Legato reviewed additional depositions does not violateSupreme Court Rule 213, which provides, in relevant part:

"Rule 213. Written Interrogatories of Parties.

(f) Identity and Testimony of Witnesses. Upon written interrogatory, aparty must furnish the identity and location of witnesses who will testify at trial,together with the subject of their testimony.

(g) Opinion Witness. An opinion witness is a person who will offer anyopinion testimony. Upon written interrogatory, the party must state:

(i) the subject matter on which the opinion witness isexpected to testify;

(ii) the conclusions and opinions of the opinion witnessand the bases therefor; and

(iii) the qualifications of the opinion witness;

and provide all reports of the opinion witness.

(i) Duty to Supplement. A party has a duty to seasonably supplement or amendany prior answer or response whenever new or additional information subsequentlybecomes known to that party.

If a deposition of an opinion witness is taken, the witness' testimony attrial will be limited to the opinion expressed therein, in addition to those opinionsidentified in answers to Rule 213(g) interrogatories.

The opinions expressed in a deposition need not be later specificallyidentified in Rule 213(g) answers but, upon objection at trial, the burden is on theproponent of the witness to prove the opinions were provided in deposition orRule 213(g) interrogatory." (Emphasis added)  177 Ill. 2d R. 213.

Plaintiff argues that there is no duty to supplement a deposition when the opinion witnesshas not changed his or her opinion. Supreme Court Rule 213 requires not only that a party"seasonably" supplement disclosures regarding new or different opinions held by an opinionwitness, but also requires that the "bases" for any opinion be updated as well. Therefore, evenwhen the bases for the opinion expressed at trial is not broadened by the supplementary materialand the opinion itself remains unchanged from that expressed at the deposition, an obligationremains on counsel to update answers to Rule 213 interrogatories so the newly supplied materialis disclosed to the opposing side.

Dr. Legato was provided with the depositions in question in an effort to better prepare herfor trial. If Legato had read the depositions and informed the plaintiff's counsel that theircontents had no bearing on the opinions she stated in her deposition and still wished to express attrial, it is understandable that plaintiff's counsel elected not to make a supplemental disclosure. Conners v. Poticha, 293 Ill. App. 3d 944, 951 (1997). In Conners, the court determined that anexpert offered at trial whose testimony is merely an elaboration or refinement of depositiontestimony that remains within the "fair scope" of facts known and opinions disclosed before trialrequires no supplemental disclosure. In this case, the depositions reviewed by Dr. Legato merelycontributed to the qualitative bases for her expert opinion, particularly on the issue of arterialblood gases.

Plaintiff next argues that, even if Rule 213 had been violated, the sanction of striking theentire testimony is too harsh since the violation was minor and the testimony was so important tothe plaintiff's case.

Pursuant to Supreme Court Rule 219(c), trial judges have the authority to enter a widerange of orders when a party unreasonably fails to comply with discovery rules and orders. 134Ill. 2d R. 219(c). The supreme court rules on discovery are mandatory rules of procedure thatcourts and counsel must follow. Discovery rules permit litigants to ascertain and rely upon theopinions of experts relied upon by their adversaries. Department of Transportation v. Crull, 294Ill. App. 3d 531, 537 (1998). The supreme court rules represent the court's best efforts to managethe complex and important process of discovery. Crull, 294 Ill. App. 3d at 537. The committeecomments to Rule 213 plainly state that one of the purposes of Rule 213 is to avoid surprise. 166Ill. 2d R. 213(g), Committee Comments. To allow either side to ignore Rule 213's plainlanguage defeats its purpose and encourages tactical gamesmanship. Crull, 294 Ill. App. 3d at537, citing Chicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial Park, Inc., 225 Ill. App.3d 653, 658 (1992). The committee comments also state that "`the subject matter of all opinionsmust be disclosed * * * and that no new or additional opinions will be allowed unless theinterests of justice require otherwise.'" Crull, 294 Ill. App. 3d at 536-37, quoting 166 Ill. 2d R.213 (g) Committee Comments, at lxxviii.

Barring a witness from testifying is one of the sanctions available to a trial judge for adiscovery rule violation under Supreme Court Rule 219(c). Harris Trust & Savings Bank v. OtisElevator Co., 297 Ill. App. 3d 383, 395 (1998). Decisions made by the trial court in fashioningsuch a remedy are not disturbed absent a clear showing of an abuse of discretion. Parker v.Illinois Masonic Warren Barr Pavilion, 299 Ill. App. 3d 495 (1998). Factors a trial court mustconsider in determining whether exclusion of a witness is an appropriate sanction are (1) surpriseto the adverse party; (2) the prejudicial effect of the witness' testimony; (3) the nature of thewitness' testimony; (4) the diligence of the adverse party; (5) whether the objection to thetestimony was timely; and (6) the good faith of the party calling the witness. Boatman' sNational Bank v. Martin, 155 Ill. 2d 305, 314 (1993); Warrender v. Millsop, 304 Ill. App. 3d 260(1999).

When the trial court admonished the jury to disregard the testimony of Dr. Legato, thecase, for all intents and purposes, was over. Although she was one of the leading researchers andacademics in the field, she had never before testified in court. The absence of her testimony hasa crippling effect on Coleman's case. When the supreme court promulgated Rule 213 in 1995, itwas clear that it desired to change the dynamics of the rules that previously had governed thetreatment of expert witnesses. The thrust of this new rule was to allow less deviation from strictdisclosure and to impose meaningful sanctions to insure that the conduct complained of was notlikely to be repeated. Crull, 294 Ill. App. 3d 531.

Where an expert conducted additional tests after the taking of the discovery deposition,and subsequently changed the basis of the testimony at trial, a mistrial would have been anappropriate sanction. Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932 (2000). In thecase at bar, Legato gave her deposition in which she identified three failures of Abella's care ofColeman. While she did receive nine depositions just prior to trial to examine, there is noevidence that there was any variation from the opinion expressed in her deposition testimony tothat given at trial. The essence of Legato's testimony during voir dire was that the laterdepositions may have "influenced [her] testimony on the arterial blood" and "deepened [her]understanding of what [she] wanted to say about arterial bloods, because [she] went back andrethought that." This admission is hardly the change in methodology in Crull, the additionaltesting with a change in the basis of the expert's testimony as in Copeland, or the disclosure ofcompletely new material as in Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999). Nordoes Legato's testimony here provide a measure of causation at trial which was not exploredduring the discovery deposition as provided in Susnis v. Radfar, 317 Ill. App. 3d 817 (2000). Because the prior deposition taken by the defense of Dr. Legato contained the same opinions thatshe gave at trial, it was an abuse of discretion to strike her entire testimony.

Unless we are prepared to put expert witnesses in space or the deep freeze during theperiod between the deposition and the testimony at trial, deepening of a witness' understanding ofsome of the issues that were the subject of the deposition testimony must be a common matter fora doctor who writes articles, sees patients, attends conferences and interacts with the medicalcommunity at large after having given her discovery deposition. Because the supreme court hasmandated strict compliance with Supreme Court Rule 213 in order to afford the parties tolitigation full disclosure, courts should not be afraid, pursuant to their Supreme Court Rule 219powers, to impose reasonable sanctions where appropriate. The decision whether to impose asanction for failure to comply with a discovery order and, if so, what type of sanction to imposeare decisions largely within the sound discretion of the trial court. Peterson v. Ress Enterprises,Inc., 292 Ill. App. 3d 566, 579 (1997). The trial court in the matter at bar had other options thanstriking the expert's testimony in toto, effectively killing the plaintiff's case. It could haveprovided for the taking of an additional examination of the witness or punished the erring lawyerin a more traditional fashion. The court also could have limited the answers of the expert witnesson cross-examination to only those matters she had read prior to her deposition. While this courtdoes not excuse or condone the lax manner by which the plaintiff's counsel handled the matter,we feel the punishment should fit the crime. Under these particular facts and circumstances,because Dr. Legato's opinion given at her deposition was the same at trial and the only effect ofthe undisclosed new depositions which were read by her prior to trial was to make her moresecure in her previously disclosed opinion, and take away some of the defense counsel's points oncross-examination regarding the narrow basis for the same opinion Dr. Legato held at the time ofthe deposition, the sanction selected by the trial court was an abuse of discretion. In light of theforegoing, the decision of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

GREIMAN, J., concurs.

QUINN, P.J., dissents.

PRESIDING JUSTICE QUINN, dissenting:

I dissent. The most important function of a court of review is to provide direction to thetrial courts as to how to address issues which arise at trial. We do this by uniformly applyingestablished legal principles to the facts of the cases we review, and it is upon this uniform bodyof precedent that trial courts must rely when reaching their decisions. The majority's decision inthe instant case is in direct conflict with this principle.

The majority holds that "[i]f Legato had read the depositions and informed the plaintiff'scounsel that their contents had no bearing on the opinions she stated in her deposition and stillwished to express at trial, it is understandable that plaintiff's counsel elected not to make asupplemental disclosure. Conners v. Poticha, 293 Ill. App. 3d 944, 951 (1997)." Slip op. at 8-9.There are two significant problems with this holding. First, Dr. Legato did not inform plaintiff'scounsel that the contents of the nine depositions, which she reviewed at that attorney's request,had no bearing on her opinions. Quite the contrary, Dr. Legato testified that the depositionsconcerning the blood gas levels influenced the testimony she had already given and that shecould not say that those depositions would not influence her further testimony, even though shewas instructed by the court to "separate out" the information from those depositions. Secondly,Conners interpreted Supreme Court Rule 220, the predecessor to Supreme Court Rule 213.

The significance of this distinction cannot be overstated. "Trial courts should be morereluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties todeviate from the strict disclosure requirements, or (2) not to impose severe sanctions when suchdeviations occur. Indeed, we believe one of the reasons for new Rule 213 was the need to requirestricter adherence to disclosure requirements." Department of Transportation v. Crull, 294 Ill.App. 3d 531, 535-39 (1998). The majority attempts to distinguish Crull, Seef v. IngallsMemorial Hospital, 311 Ill. App. 3d 7 (1999), and Susnis v. Radfar, 317 Ill. App. 3d 817 (2000). The proposition that Supreme Court Rule 213 imposes stricter disclosure requirements thanSupreme Court Rule 220 and trial courts should impose severe sanctions when Rule 213 isviolated has been espoused in numerous other cases: Copeland v. Stebco Products Corp., 316 Ill.App. 3d 932 (2000); LoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684 (1999); McMath v.Katholi, 304 Ill. App. 3d 369 (1999); Spain v. Owens Corning Fiberglass Corp., 304 Ill. App. 3d356 (1999); Warrender v. Millsop, 304 Ill. App. 3d 260 (1999); and Adami v. Belmonte, 302 Ill.App. 3d 17 (1998).

The majority correctly recites the factors that a trial court must consider in determiningwhether exclusion of a witness is an appropriate sanction: (1) surprise to the adverse party; (2)the prejudicial effect of the witness' testimony; (3) the nature of the witness' testimony; (4) thediligence of the adverse party; (5) whether the objection to the testimony was timely; and (6) thegood faith of the party calling the witness. Boatman's National Bank v. Martin, 155 Ill. 2d 305,314 (1993); Warrender v. Millsop, 304 Ill. App. 3d 260 (1999). However, the majority's opiniondoes not apply these factors to the facts of this case.

The trial court conducted a lengthy voir dire of the witness out of the presence of the jury,heard arguments and made specific findings. The trial court explained its findings in a six-pagewritten order denying the motion for new trial. The trial court carefully went through each of thefactors set out in Boatman's National Bank prior to rendering its decision to strike Dr. Legato'stestimony. First, the court determined that the defense was surprised by the disclosure. It wasnot until a day into Dr. Legato's testimony that it was revealed that Dr. Legato had reviewedadditional depositions in preparing her opinion for trial.

Second and third, the trial court noted that the jury would have heard the same criticismsof Dr. Abella from Dr. Legato as it heard from Dr. Papernik and therefore concluded that Dr.Legato's testimony was cumulative. Although plaintiff argued that Dr. Legato was the "primary"opinion witness and that Dr. Abella's credentials were not as impressive as those of Dr. Legato,the trial court rejected these claims.

Fourth, the trial court noted that the defense had been diligent in requesting supplementalinterrogatories. Plaintiff's claim that supplemental interrogatories were not required because thediscovery request for them had occurred in the initial case, not the suit that was refiled, wasproperly rejected by the trial court in light of plaintiff's agreement to allow the prior discovery to"stand," and in light of supplemental interrogatories filed under Rule 213 by defendant onJanuary 22, 1996, and March 6, 1996, which specifically requested that plaintiff identify thebases of the plaintiff's opinion witnesses' testimony. The court also noted that motion in limineNo. 7 had requested that the parties be barred from offering testimony concerning additionalmaterials relied upon or additional bases for expert opinions that were not disclosed at the expertwitnesses' depositions. Plaintiff did not object to this motion and it was granted pretrial.

Fifth, the defense made prompt objection to Dr. Legato's testimony as soon as it becameclear that there had been a Rule 213 violation.

Sixth, and most damning to the plaintiff's claims, the court made an express finding thatplaintiff acted with a lack of good faith in failing to disclose the additional information to thedefense.

The majority writes that unless expert witnesses are put into "space or the deep freeze"after their depositions, it is to be expected that such witnesses will gain a deeper understanding ofthe issues in a case. Slip op. at 11. The majority says this is to be expected of "a doctor whowrites articles, sees patients, attends conferences and interacts with the medical community atlarge after having given her deposition testimony." Slip op. at 12. While I do not argue with thissupposition, it simply does not apply in this case. Here, shortly before trial commenced,plaintiff's counsel mailed nine depositions of witnesses to his retained expert witness. Themajority concedes that this was done for the purpose of better preparing Dr. Legato for trial. Plaintiff's counsel then purposely failed to inform opposing counsel of this action in spite ofreceiving supplemental interrogatories before trial. Plaintiff's counsel's actions also violated amotion in limine filed immediately prior to trial. Plaintiff's counsel did not handle the pretrialdiscovery in this case in a "lax manner" as the majority concludes. Plaintiff's counsel purposelyviolated Supreme Court Rule 213, purposely failed to truthfully answer pretrial specialinterrogatories, and purposely violated a motion in limine.

The majority holds that the sanction imposed by the trial court was so severe itconstituted an abuse of discretion. The alternative solutions suggested by the majority are whollyinadequate. The majority suggests that the trial court "could have limited the answers on cross-examination to only those matters she had read prior to her deposition." Slip op. at 12. This isexactly what the trial court attempted to do in its attempts to rehabilitate the witness. A fairreading of the record in this case shows that the trial court went to great extremes to have thewitness say that she could testify in a manner which did not violate the motion in limine andsupplemental interrogatory requests. The expert witness testified that the depositions she hadbeen sent had influenced her testimony on direct and she could not say that those depositionswould not influence the remainder of her testimony. For this same reason, it is clear that the"taking of an additional examination of the witness" (slip op. at 12) would also not solve theproblem created by plaintiff's counsel's discovery violations.

The majority holds the trial court could have "punished the erring lawyer in a moretraditional fashion." Slip op. at 12. While the majority does not explicitly say so, I take this tomean the trial court could have held plaintiff's counsel in contempt. The majority does notexplain how this action would solve the problem in this case. Appellate court holdings thatencourage trial courts to hold lawyers in contempt often do so without giving adequateconsideration to the consequences that result from such holdings. Lawyers who are found incontempt must report such findings to many prospective employers and, as a practical matter,even one contempt finding will often result in disqualifying that lawyer from appointment to thejudiciary. Bar associations that review judges running for retention or for higher office oftenview holding lawyers in contempt to be evidence of "bad temperament" on the part of the judge. More importantly, the appellate court often reverses such findings. I would suggest that anyappellate court judge who finds a trial court to be in error for not holding a lawyer in contemptshould himself or herself feel duty bound to refer that lawyer to the Attorney Registration andDisciplinary Commission.

The majority also suggests that the trial court could have granted a mistrial as a sanction. Granting a mistrial in the instant case would punish both parties for the purposeful misconduct ofone of the lawyers. Awarding costs in addition to granting the mistrial is also unrealistic asdefense counsel conceivably should be compensated for hundreds of hours of work.

While the majority writes that "the punishment should fit the crime," it has rewardedplaintiff's counsel with a new trial after a jury rejected his case. In doing so, the majority sends amessage to attorneys that the appellate court will reverse a trial court if two members of a panelwould have handled the situation in a different manner. That is not the standard we are to apply.

A decision to impose a particular discovery sanction is not to be reversed absent a clear abuse ofdiscretion. Shimanovsky v. General Motors Corp. , 181 Ill. 2d 112, 123 (1998). As the IllinoisSupreme Court recently pointed out, this standard has been recognized as "'the most deferentialstandard of review available with the exception of no review at all. [Citation.]'" People v.Coleman, 183 Ill. 2d 366, 387 (1998).

The rules on discovery are mandatory rules of procedure. Department of Transportationv. Crull, 294 Ill. App. 3d at 537. To allow either party to ignore Rule 213's plain languagedefeats its purpose and encourages tactical gamesmanship. Spain v. Owens Corning FiberglassCorp., 304 Ill. App. 3d at 368. The trial court's action in excluding the witness in this case wasnot only within the broad range of permissible sanctions, its action was correct. Indeed, theextremely thorough and even-handed manner in which the trial court handled the situation waslaudable. The trial court correctly applied the law, even though in doing so, the very sympatheticplaintiff's case was damaged. We expect our trial courts to make this type of tough decision, andwhen those decisions are made correctly, they should be affirmed.

1. Justice Reid has succeeded Justice Morton Zwick. The court has granted a petition forrehearing and withdrawn the court's previously filed opinion (filed November 13, 2000). Though Justice Reid did not participate in the oral argument, he has reviewed the record, theparties' briefs and a tape recording of the argument in this case.