4 Investigation and Discovery mary beth o’brien lindsay and Rappaport, llc waukegan I.  1] Scope of Chapter icon

4 Investigation and Discovery mary beth o’brien lindsay and Rappaport, llc waukegan I.  1] Scope of Chapter


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4

Investigation and Discovery


MARY BETH O’BRIEN

Lindsay and Rappaport, LLC

Waukegan

I. [4.1] Scope of Chapter


II. [4.2] Reference to the Statute


III. [4.3] Necessary Elements of the Cause of Action


A. [4.4] Defendant Sold or Gave Alcoholic Liquor to Inebriate

B. [4.5] The Liquor Caused or Materially and Substantially Contributed To Cause Intoxication

1. [4.6] Use of Blood Alcohol Tests

2. Opinion Testimony Regarding Intoxication

a. [4.7] Lay Opinions

b. [4.8] Opinion Witnesses

c. [4.9] Experiments

d. [4.10] Preservation of Evidence

C. The Intoxication Proximately Caused Injury

1. [4.11] In General

2. [4.12] Compensable Injuries and Damages


IV. [4.13] Available Defenses


A. [4.14] Complicity

B. [4.15] Provocation


V. [4.16] Contribution and Setoffs


VI. Informal Discovery Procedures


A. [4.17] Client Conference

B. [4.18] Police Report

C. [4.19] Witness Statements

D. [4.20] Scene Inspection


VII. [4.21] Formal Discovery Procedures


A. [4.22] Written Interrogatories

1. [4.23] Plaintiff’s Interrogatories

2. [4.24] Defendant’s Interrogatories

3. [4.25] Death or Loss of Means of Support/Loss of Society Interrogatories

4. [4.26] Supreme Court Rule 213 Interrogatories

B. [4.27] Preparing Answers to Written Interrogatories

C. [4.28] Depositions

D. Production Requests

1. [4.29] In General

2. [4.30] Suggested Production Request

E. [4.31] Obtaining Records and Other Data by Subpoena


^ I. [4.1] SCOPE OF CHAPTER


This chapter is designed to discuss the investigation and workup of a dramshop case. It is not all-inclusive but rather provides the practitioner with suggestions that can be used, expanded on, or otherwise tailored to each individual case.


Whether the case is ultimately resolved through settlement or by trial, proper preparation necessitates use of the vast array of discovery tools available through the Code of Civil Procedure (CCP), 735 ILCS 5/1-101, et seq., as well as various informal methods of investigation. However, the practitioner should have a clear idea of the necessary elements of each claim or defense before and during discovery in order to focus the discovery efforts in the best possible way.


^ II. [4.2] REFERENCE TO THE STATUTE


Whether the lawyer is making a claim pursuant to the Dramshop Act, 235 ILCS 5/6-21, or defending against one, the language of the statute should be reviewed before extensive discovery procedures are commenced. Since the Dramshop Act creates a cause of action foreign to the common law and is penal in nature in that liability lies without need of establishing fault or negligence (Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708 (1949)), Illinois courts require that it be strictly construed without expansion beyond its express language. Gora v. 7-11 Food Stores, 109 Ill.App.3d 109, 440 N.E.2d 279, 64 Ill.Dec. 727 (1st Dist. 1982). Defendants under the Dramshop Act cannot seek contribution from other parties since such liability under the Act is exclusive, penal in nature, hence, non-tort. Johnson v. Mers, 279 Ill.App.3d 372, 664 N.E.2d 668, 216 Ill.Dec. 31 (2d Dist. 1996).


Generally, the Illinois courts have resisted expansion of the application of and remedies available pursuant to the Dramshop Act, stating that these arguments should be addressed by the legislature. ^ Stevens v. Lou’s Lemon Tree, Ltd., 187 Ill.App.3d 458, 543 N.E.2d 293, 135 Ill.Dec. 58 (1st Dist. 1989); Matusak v. Chicago Transit Authority, 165 Ill.App.3d 1032, 520 N.E.2d 925, 117 Ill.Dec. 574 (1st Dist. 1988); Holtz v. Amax Zinc Co., 165 Ill.App.3d 578, 519 N.E.2d 54, 116 Ill.Dec. 464 (5th Dist. 1988). Therefore, a careful examination of the statute should ensure that the claimant has met the basic elements required in a dram case or should enable the dram defendant to challenge the suit before extensive discovery is begun.


^ III. [4.3] NECESSARY ELEMENTS OF THE CAUSE OF ACTION


Causes of action brought pursuant to the Dramshop Act must be filed on or before one year from the date of accrual. This one-year period for filing is jurisdictional; i.e., it constitutes a condition precedent to the right to file suit. Neither equitable nor public policy considerations can be used to toll the time period. Bradford v. Soto, 159 Ill.App.3d 668, 512 N.E.2d 765, 111 Ill.Dec. 376 (2d Dist. 1987). Further, and more specifically, the Dramshop Act does not provide tolling for generally recognized disabilities such as minority or incompetency. Demchuk v. Duplancich, 92 Ill.2d 1, 440 N.E.2d 112, 64 Ill.Dec. 560 (1982).


In order to state a prima facie cause of action pursuant to the Dramshop Act, the plaintiff must establish (a) that the defendant dramshop sold, gave, or otherwise provided alcoholic liquor to the inebriate; (b) that the alcoholic liquor caused or materially or substantially contributed to cause intoxication; and (c) that the intoxication proximately caused injury. Mohr v. Jilg, 223 Ill.App.3d 217, 586 N.E.2d 807, 166 Ill.Dec. 849 (4th Dist. 1992); Bass v. Rothschild Liquor Stores, Inc., 88 Ill.App.2d 411, 232 N.E.2d 19 (1st Dist. 1967). Each element must be proved by a preponderance of the evidence. Woods v. Dailey, 211 Ill. 495, 71 N.E. 1068 (1904).


^ A. [4.4] Defendant Sold or Gave Alcoholic Liquor to Inebriate


Since the purpose of the Dramshop Act is to protect innocent persons by placing the burden of the evils of the liquor trade on those who profit from it, the proper dram defendant must generally be a commercial vendor or supplier of alcohol. Peterson v. Jack Donelson Sales Co., 4 Ill.App.3d 792, 281 N.E.2d 753 (2d Dist. 1972); Tezak v. Cooper, 24 Ill.App.2d 356, 164 N.E.2d 493 (2d Dist. 1960). Noncommercial suppliers, including social hosts and even those who arguably receive a small charge or other consideration for the alcohol, have traditionally not been held liable under the Dramshop Act. Flory v. Weaver, 196 Ill.App.3d 149, 553 N.E.2d 105, 142 Ill.Dec. 755 (4th Dist. 1990); Holtz v. Amax Zinc Co., 165 Ill.App.3d 578, 519 N.E.2d 54, 116 Ill.Dec. 464 (5th Dist. 1988); Heldt v. Brei, 118 Ill.App.3d 798, 455 N.E.2d 842, 74 Ill.Dec. 413 (1st Dist. 1983); Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300 (5th Dist. 1964).


Thus, Illinois courts have generally insisted on a sale or gift and have drawn a sharp distinction “between those engaged in the liquor business for profit and those who hold social gatherings where liquor is dispensed.” Fabian v. Polish American Veterans Association of America, 126 Ill.App.3d 80, 466 N.E.2d 1239, 1241, 81 Ill.Dec. 437 (1st Dist. 1984). While acknowledging the social and public policy arguments to the contrary, these courts have refused to impose liability on a social host who provides alcohol. Reasoning that the Dramshop Act is the exclusive remedy for injuries resulting from the supply of alcohol and is limited to commercial suppliers, these courts have held that any expansion to noncommercial entities is best left to the legislature or Supreme Court. Estate of Ritchie v. Farrell, 213 Ill.App.3d 846, 572 N.E.2d 367, 157 Ill.Dec. 298 (3d Dist. 1991); Puckett v. Mr. Lucky’s Ltd., 175 Ill.App.3d 355, 529 N.E.2d 1169, 125 Ill.Dec. 93 (4th Dist. 1988).


No cause of action exists against social hosts who provide alcoholic beverages to another person, even if that individual is an underage minor. ^ Charles v. Seigfried, 165 Ill.2d 482, 651 N.E.2d 154, 209 Ill.Dec. 226 (1995). There have been, however, certain decisions that have imposed social host liability, albeit by finding an “exception” or some “special consideration” to remove the fact situation from the realm of the typical dram action. Thus, a college student has successfully stated a cause of action in negligence against the fraternity that required his drinking to intoxication in initiation in derogation of the Hazing Act, 720 ILCS 120/0.01, et seq. Haben v. Anderson, 232 Ill.App.3d 260, 597 N.E.2d 655, 173 Ill.Dec. 681 (3d Dist. 1992); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill.App.3d 231, 507 N.E.2d 1193, 107 Ill.Dec. 824 (4th Dist. 1987).


In the employment setting, because there had been no sale or gift of the alcohol, the courts refused to impose dramshop liability on an employer who allegedly knew of and allowed an employee to imbibe on the job when the employee subsequently caused injury to another. Richardson v. Ansco, Inc., 75 Ill.App.3d 731, 394 N.E.2d 801, 31 Ill.Dec. 599 (3d Dist. 1979). Likewise, there has been no liability found even when the employer actually provided the liquor to an employee while on work premises. Martin v. Palazzolo Produce Co., 146 Ill.App.3d 1084, 497 N.E.2d 881, 100 Ill.Dec. 703 (5th Dist. 1986).


The Dramshop Act does allow for recovery against two categories of persons who are not necessarily direct suppliers of alcohol to the inebriate but who nonetheless directly profit from the liquor trade and who have knowledge that the inebriate will eventually consume the liquor. Under the Dramshop Act, the fact that one is not the holder of a liquor license for the premises is not a defense to liability. Liability will lie against a person who owns, rents, or leases premises and who knows of or permits the sale from the premises of alcohol that leads to intoxication and injury. Liability imposed by the Dramshop Act on such an owner who has knowledge that alcohol is sold on the premises will not attach unless the person holding the ownership interest has a meaningful degree of control over the premises or involvement of the selling of alcohol there. Kulikowski v. Larson, 305 Ill.App.3d 110, 710 N.E.2d 1275, 238 Ill.Dec. 173 (3d Dist. 1999). In addition, liability will lie against any person at least 21 years of age who rents a hotel or motel facility knowing that it will be used for alcohol consumption by any person under 21 years of age when such consumption leads to injury-producing intoxication. These “exceptions” should be kept in mind during the course of discovery.


Contract vendors, land trustees, and other persons or entities that may own certain property but who have no interest, management, or control over the liquor business conducted thereon are not liable under the Dramshop Act. Linson v. Crow, 33 Ill.App.3d 377, 342 N.E.2d 350 (5th Dist. 1975); Robinson v. Walker, 63 Ill.App.2d 204, 211 N.E.2d 488 (1st Dist. 1965). It should be noted, however, that a person who materially benefits from the profits of a business, particularly when based in part on a liquor license on which he is identified, may not escape liability by placing some other person or entity in the management of the business. Woodward v. Pro Del Corp., 64 Ill.App.3d 684, 381 N.E.2d 847, 21 Ill.Dec. 520 (5th Dist. 1978).


Based on the above, one discovery goal must be to establish or refute that the dram defendant was sufficiently engaged in the alcohol trade so as to warrant imposition of liability. If the fact situation involves a social host, discovery should be focused on whether the relatively recent and narrow exceptions to the Dramshop Act’s preemption and exclusivity apply.


Therefore, proper investigation and discovery in a dram case should include inquiry as to the status of each defendant. While multiple persons who are potentially liable under the Dramshop Act may have been initially named as defendants, the plaintiff should use the discovery process to seek out any additional dram defendants to be added as parties. A plaintiff will generally be allowed to amend pleadings, even beyond the limitations period, to name a proper party, correct a party’s name, or add additional allegations under the Dramshop Act if both pleadings are sufficiently similar and appear to arise out of the same occurrence. Simmons v. Hendricks, 32 Ill.2d 489, 207 N.E.2d 440 (1965); Hix v. Amato, 50 Ill.App.3d 761, 365 N.E.2d 1148, 8 Ill.Dec. 762 (3d Dist. 1977); McCullough v. Tomaich, 20 Ill.App.3d 262, 314 N.E.2d 643 (3d Dist. 1974).


The defense attorney should commence investigation by determining whether the client is directly and regularly involved in the liquor trade as a commercial vendor, such as the owner of a business that dispenses alcoholic liquor or the owner of the premises on which such a business is conducted. If the client was merely a “social host” or otherwise did not sell or dispense liquor for profit so as to be involved sufficiently in the alcohol trade, a motion to dismiss for failure to state a cognizable cause of action should be considered. The property owner or land trustee who can submit an affidavit attesting to no control or management in the business is subject to dismissal. Likewise, the defendant who owns, rents, or leases a premises but does not directly dispense alcohol to the inebriate or know or have reason to know that the inebriate will ultimately consume the liquor should support a motion to dismiss with an affidavit to this effect.


In responding to a motion to dismiss, the plaintiff should inquire fully as to the nature of the occasion and the location at which the alcohol was furnished. Investigation should include the various interests in the property, the structure, and the business. Written interrogatories should require identification and location of any and all witnesses and/or persons present on the premises and any and all documentation relating to the ownership, rental, management, and control of the dramshop as well as the premises on which it is located. Specific inquiry can be made regarding deeds of ownership; property tax documents; contracts or other memorializations for property maintenance or management; leases, including any addenda, revisions, riders, and exhibits; and, when appropriate, land trust documentation, including any papers of the sale, assignment, rental, or transfer of any interest in the trust as well as the names and addresses of all trust beneficiaries. Each business entity involved as a dram defendant should be requested to identify and produce all documentation regarding its formation; its bylaws, rules, and regulations; its tax returns and other financial records; and the identities and addresses of its board members, officers, or directors. The plaintiff should require information concerning the liquor license, the license application, and the names and addresses of all persons named thereon. Hix, supra. Finally, the dram defendant should produce all documentation concerning the booking for and accounting of the event, if any, at which the alleged intoxication occurred.


If the defendant did not directly supply the alcohol to the inebriate but had an interest in the premises and/or sold or dispensed the liquor with knowledge that the inebriate would ultimately imbibe, inquiry should be made as to all details of the sale or gift and the surrounding circumstances or event. It is insufficient for the plaintiff to establish merely that the defendant had some general idea that unspecified persons, even minors, would be drinking. Rather, investigation and discovery must show actual or constructive knowledge that particular individuals would be consuming the alcohol sold or dispensed. Taylor v. Village Commons Plaza, Inc., 164 Ill.App.3d 460, 517 N.E.2d 1164, 115 Ill.Dec. 478 (2d Dist. 1987); Welch v. Convenient Food Mart No. 550, 106 Ill.App.3d 131, 435 N.E.2d 894, 62 Ill.Dec. 96 (4th Dist. 1982); Tate v. Coonce, 97 Ill.App.3d 145, 421 N.E.2d 1385, 52 Ill.Dec. 313 (3d Dist. 1981).


Deposition questions as well as written interrogatories can be used to learn the circumstances surrounding the sale or dispensing of the liquor (e.g., wedding reception, company picnic, or purchase from a fast-food mart), the identities and experience of the individuals dispensing the liquor, any and all precautions or guidelines followed in dispensing the liquor (e.g., whether and how identification was checked), whether the dispenser knew the individual purchasing or receiving the alcohol, and whether there was anything unusual about the transaction (e.g., a single individual buying or requesting a large quantity of liquor, such as a pitcher with several glasses).


^ B. [4.5] The Liquor Caused or Materially and Substantially Contributed To Cause Intoxication


“Intoxication,” as used in the Dramshop Act, is defined as “an impairment of [the] mental or physical faculties [with resulting] diminution of [the] ability to think and act with ordinary care.” ^ Bass v. Rothschild Liquor Stores, Inc., 88 Ill.App.2d 411, 232 N.E.2d 19, 21 (1st Dist. 1967). Evidence of the sale or gift of a negligible amount of alcohol is insufficient to establish liability under the Dramshop Act as is mere evidence that the alleged intoxicant drank on the defendant’s premises. Hartness v. Ruzich, 155 Ill.App.3d 878, 508 N.E.2d 1071, 108 Ill.Dec. 494 (5th Dist. 1987); Felker v. Bartelme, 124 Ill.App.2d 43, 260 N.E.2d 74 (1st Dist. 1970). Rather, the plaintiff must establish that the liquor from any one dram defendant caused or materially and substantially contributed to cause the intoxication. Circumstantial evidence may be used to establish intoxication caused, in whole or in substantial part, by the defendant dram. Hartness, supra.


Both the plaintiff and the defendant dramshop have an interest in investigating whether and when the inebriate obtained liquor from other sources. Inquiry should be made regarding the type and amount of alcohol, where it was obtained and consumed, and over what period of time. Efforts should also be made to learn the identities, addresses, and recollections of all persons who were present or witnessed the consumption, including all dram employees working on the premises.


The plaintiff will want to show as much imbibing as possible and, as long as there is evidence of sufficient consumption at each location, can rely on the fact that there is joint and several liability as to all who materially and substantially contributed to the consumption. Thompson v. Tranberg, 45 Ill.App.3d 809, 360 N.E.2d 108, 4 Ill.Dec. 361 (2d Dist. 1977). The defendant dramshop will want to establish that it supplied none of the liquor or, at most, only a negligible amount and that drinking at other locations caused the alleged intoxication. It should be noted, however, that, while evidence of the inebriate’s drinking elsewhere may be relevant, its admission at trial has been held to be error when there was a long lapse of time between the episodes of drinking and especially when the inebriate ate or slept between consumptions. Foster v. Lanciault, 70 Ill.App.3d 962, 388 N.E.2d 1140, 27 Ill.Dec. 177 (3d Dist. 1979); Pellico v. Jackson, 70 Ill.App.2d 313, 217 N.E.2d 281 (1st Dist. 1966).


Finally, while evidence of a minimal amount of alcohol served to a sober person may be insufficient to establish liability, that same amount served to an individual already under the influence may be sufficient to raise at least a factual question against the dram defendant. Knief v. Sotos, 181 Ill.App.3d 959, 537 N.E.2d 832, 130 Ill.Dec. 503 (2d Dist. 1989); Henry v. Bloomington Third Ward Community Club, 89 Ill.App.3d 106, 411 N.E.2d 540, 44 Ill.Dec. 418 (4th Dist. 1980).


The plaintiff can then go on to establish “intoxication” either by producing evidence of the consumption coupled with evidence of unusual or abnormal behavior or by presenting opinion testimony of intoxication. ^ Nakis v. Amabile, 103 Ill.App.3d 840, 431 N.E.2d 1255, 59 Ill.Dec. 498 (1st Dist. 1981); Weeks v. Witek, 33 Ill.App.3d 916, 339 N.E.2d 43 (3d Dist. 1975).


In Illinois, what constitutes “intoxication” is a legal question that must be determined by the court. Grant v. Paluch, 61 Ill.App.2d 247, 210 N.E.2d 35 (1st Dist. 1965). Therefore, a plaintiff’s failure to present sufficient competent evidence of intoxication can serve as the basis of a dismissal or of a summary judgment for the defendant. Kaplan v. Disera, 199 Ill.App.3d 1093, 557 N.E.2d 924, 145 Ill.Dec. 945 (3d Dist. 1990). However, once affirmative evidence of intoxication has been brought forth, whether a particular dramshop materially contributed to cause the intoxication is generally a fact question for the jury. Judy v. Day, 68 Ill.App.3d 156, 385 N.E.2d 891, 24 Ill.Dec. 750 (3d Dist. 1979).


^ 1. [4.6] Use of Blood Alcohol Tests


Blood alcohol test results are admissible as evidence in a dramshop action. This is true even if the inebriate fails to consent or is not arrested as a result of the occurrence or if the technician and hospital are not certified for such testing by the Department of Public Health. Mulhern v. Talk of the Town, 138 Ill.App.3d 829, 486 N.E.2d 383, 93 Ill.Dec. 282 (2d Dist. 1985); Weaver v. Lovell, 128 Ill.App.2d 338, 262 N.E.2d 113 (4th Dist. 1970).


Therefore, written discovery requests should inquire as to all such tests administered, the time and place, the identities of the administrators, and the whereabouts of the documentation or reports resulting from the tests. Further, if the alleged intoxicant was examined or treated at the scene by paramedics or conveyed to a medical institution, inquiry should be made as to the names of the involved personnel and institutions and the nature of any examinations, tests, or treatments. Complete files and medical records, which may contain observations and opinions concerning the inebriate’s appearance and condition and/or results of lab work, can then be subpoenaed. In addition, these records may reveal trauma, such as head injuries, whose symptoms can be mistaken by a witness for signs of intoxication (e.g., stumbling gait, incoherent speech, dazed expression).


^ 2. Opinion Testimony Regarding Intoxication


a. [4.7] Lay Opinions


Illinois law clearly holds that a layperson’s opinion is sufficient to establish intoxication even if this opinion is rendered only by the plaintiff himself. Henry v. Bloomington Third Ward Community Club, 89 Ill.App.3d 106, 411 N.E.2d 540, 44 Ill.Dec. 418 (4th Dist. 1980). Proper bases for a lay opinion on intoxication include the presence or absence of the odor of alcohol, the appearance and demeanor of the alleged intoxicant, the condition of the alleged intoxicant’s eyes, the alleged intoxicant’s speech, the alleged intoxicant’s gait, indications of judgment and concentration, alertness or fatigue, and even the witness’ observation of previous occurrences of intoxication when used as foundation for the situation in question. Woodard v. Mainer, 167 Ill.App.3d 488, 521 N.E.2d 303, 118 Ill.Dec. 235 (5th Dist. 1988); Tate v. Coonce, 97 Ill.App.3d 145, 421 N.E.2d 1385, 52 Ill.Dec. 313 (3d Dist. 1981); Hagopian v. First Venture, Ltd., 90 Ill.App.3d 951, 414 N.E.2d 85, 46 Ill.Dec. 363 (1st Dist. 1980); Suppe v. Sako, 311 Ill.App. 459, 36 N.E.2d 603 (2d Dist. 1941).


For obvious reasons, therefore, both the plaintiff and the defendant should make a complete inquiry as to the names and addresses of the dram employees and patrons as well as all other individuals who may have observed the inebriate or who have knowledge of the inebriate’s whereabouts, activities, and condition before or after the particular consumption in question. Each of these persons should be questioned and/or deposed regarding recollections of the inebriate’s appearance (i.e., height, weight, coloring, appearance of eyes, and stability of gait), dress, speech, manner, and activities over the time period in question. The witness’ familiarity or association with the inebriate, personal knowledge and experience regarding alcohol, and own consumption of alcohol at the time in question should be fully investigated. (It should be noted, however, that inquiry of witnesses at trial as to their mere consumption of alcohol at the time in question, without evidence of actual intoxication, may be deemed irrelevant and result in error. Gilman v. Kessler, 192 Ill.App.3d 630, 548 N.E.2d 1371, 139 Ill.Dec. 657 (2d Dist. 1989).)


Further, it is important when taking the statement or deposition of a layperson who is opining on intoxication or otherwise testifying regarding an alleged intoxicant that he be questioned generally regarding his overall opinions of alcohol use, his knowledge of and reaction to the relatively recent public awareness concerning alcohol use, and any personal experience regarding an “alcohol problem.” Since it is unlikely that a lay witness will know the legal definition of “intoxication,” he should be questioned as to the definition he is using in expressing his opinions. In addition, the witness can be asked to acknowledge that individuals react to and tolerate liquor differently, even to the point that the effects on any one individual can vary greatly depending on circumstances such as his general physical and mental condition or whether he has eaten or taken any medications. Finally, the witness’ personal background should be explored for any experience or training in fields such as medicine, law enforcement, or the restaurant and tavern business or for any affiliation with a religion, organization, or cause that takes a stand on the use of alcohol.


b. [4.8] Opinion Witnesses


S.Ct. Rule 213, particularly subsections (f) and (g), requires that a party must furnish the identity and location of all witnesses who will testify at trial together with the subject of their testimony. An opinion witness, under S.Ct. Rule 213(g), is more particularly a witness who will offer any opinion testimony. This would include any opinions on intoxication. Upon written interrogatory, each party must state the subject matter on which the opinion witness is expected to testify, the conclusions and opinions of the opinion witness and the basis therefor, and the qualifications of the opinion witness and provide all reports of the opinion witness. There is an on-going duty under S.Ct. Rule 213(i) to supplement and amend any previous answer or response whenever new or additional information subsequently becomes known to that party. As set forth in S.Ct. Rule 218, all dates set for the disclosure of opinion witnesses and the completion of discovery shall be chosen to insure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence.


c. [4.9] Experiments


If the investigation of the opinion witness and testimony will include testing or some experiment on any object or the scene in question, care should be taken that it is performed under conditions that are substantially similar to the actual circumstances at the time of the accident. Ford v. City of Chicago, 132 Ill.App.3d 408, 476 N.E.2d 1232, 87 Ill.Dec. 240 (1st Dist. 1985). Admissibility of such experiments is then discretionary with the trial court. Kent v. Knox Motor Service, Inc., 95 Ill.App.3d 223, 419 N.E.2d 1253, 50 Ill.Dec. 804 (3d Dist. 1981).


d. [4.10] Preservation of Evidence


Preservation of the vehicles or other involved objects before their repair, demolition, or disappearance so that they may be fully examined and analyzed may require a petition to the court for an injunction before the lawsuit or thereafter for a protective order. CCP §11-101, et seq.; S.Ct. Rule 201(c).


If testing will involve destruction or disposal of evidence, the court’s leave should be sought, and the opponent should be given prior notice and the opportunity to be present. ^ Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 501 N.E.2d 1312, 103 Ill.Dec. 774 (1st Dist. 1986); Walker v. Maxwell City, Inc., 117 Ill.App.3d 571, 453 N.E.2d 917, 73 Ill.Dec. 92 (1st Dist. 1983).





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