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                                  Appellate Court                           Date: 2019.03.26
                                                                            14:01:46 -05'00'



         Batson v. Township Village Associates, LP, 2019 IL App (5th) 170403



Appellate Court       LINDA BATSON, Plaintiff-Appellant, v. TOWNSHIP VILLAGE
Caption               ASSOCIATES, LP; SUGAR CREEK REALTY, LLC; and
                      SCHINDLER   ELEVATOR        CORPORATION,      Defendants-
                      Appellees.



District & No.        Fifth District
                      Docket No. 5-17-0403



Filed                 January 7, 2019



Decision Under        Appeal from the Circuit Court of Madison County, No. 13-L-1181;
Review                the Hon. William A. Mudge, Judge, presiding.



Judgment              Certified question modified and answered; cause remanded.


Counsel on            Roy C. Dripps, Charles W. Armbruster III, and Michael T.
Appeal                Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC,
                      of Maryville, for appellant.

                      Donald J. Ohl and Jessica A. Brasel, of Knapp, Ohl & Green, of
                      Edwardsville, and Dan H. Ball, Randy J. Soriano, R. Bruce Duffield,
                      and Ambika Behal, of Bryan Cave LLP, of St. Louis, Missouri, for
                      appellees.
     Panel                    JUSTICE CATES delivered the judgment of the court, with opinion.
                              Justice Chapman concurred in the judgment and opinion.
                              Justice Welch specially concurred, with opinion.


                                               OPINION

¶1         The plaintiff, Linda Batson, filed a complaint alleging that she was injured while riding in
       an elevator that was owned or controlled by defendants, Township Village Associates, LP,
       and Sugar Creek Realty, LLC, and maintained by defendant, Schindler Elevator Corporation
       (Schindler). The plaintiff moved to bar the testimony of defendants’ examining physician
       because neither the examining physician nor the defendants provided a copy of the
       examiner’s report to plaintiff’s counsel within the time required under Illinois Supreme Court
       Rule 215(c) (eff. Mar. 28, 2011). The trial court denied the plaintiff’s motion to bar but later
       granted a motion by the plaintiff to certify the following question of law for interlocutory
       review: “Does the trial court have discretion to permit a Rule 215 medical examiner to testify
       when the attorney for the party examined has not been served with the examiner’s report
       within the time specified by Rule 215(c)?” This court granted the plaintiff’s petition for
       interlocutory review pursuant to Illinois Supreme Court Rule 308(a) (eff. July 1, 2017) to
       consider the certified question.

¶2                                   PROCEDURAL BACKGROUND
¶3         The plaintiff filed this action seeking damages for personal injuries and thereby placed
       her physical condition at issue. During the discovery process, Schindler, along with the other
       defendants, filed a motion pursuant to Illinois Supreme Court Rule 215(a) (eff. Mar. 28,
       2011), requesting that the trial court order the plaintiff to submit to a medical examination by
       their chosen physician, Dr. Mitchell Rotman. The court granted the motion without objection.
       On July 13, 2016, the parties reached an agreement that the medical examination would take
       place on August 15, 2016.
¶4         On August 15, 2016, Dr. Rotman examined the plaintiff and dictated the report of his
       examination. On August 31, 2016, Dr. Rotman faxed a copy of his report to Schindler’s
       counsel. Dr. Rotman did not, however, fax, mail, or otherwise deliver a copy of his report to
       plaintiff’s counsel.
¶5         On September 13, 2016, counsel for all parties appeared for the video evidence
       deposition of Dr. Steven Baak, one of the plaintiff’s treating physicians. This deposition had
       been previously noticed by plaintiff’s counsel on August 3, 2016. Before questioning began,
       plaintiff’s counsel indicated that he wished to make a record. Plaintiff’s counsel stated that he
       had not received a copy of Dr. Rotman’s report and that, under Rule 215(c), a duplicate copy
       of the examiner’s report should have been delivered to him within 21 days of the
       examination. Counsel further stated that he intentionally scheduled this evidence deposition 7
       days after the 21-day time limit so that he would have the report prior to Dr. Baak’s evidence
       deposition. Counsel advised that he had filed a motion to bar Dr. Rotman’s testimony and his
       report, and that copies of the motion had been mailed to defendants. Counsel stated that he
       would proceed with the video evidence deposition because Dr. Baak was present, and the
       plaintiff had to have this testimony for trial.

                                                   -2-
¶6        After plaintiff’s counsel made his record, there was a lengthy back and forth discussion
     between Schindler’s counsel and plaintiff’s counsel. In summary, Schindler’s counsel
     initially indicated that he did not agree that the plaintiff had been prejudiced by not having
     Dr. Rotman’s report in time for Dr. Baak’s deposition. Schindler’s counsel stated that based
     on the case management order, he thought he “was not required” to produce the report of his
     expert at that time. Schindler’s counsel also asserted that this was the first time the plaintiff
     had made a request for the report and that he would give plaintiff’s counsel a copy of the
     report, thereby ameliorating any alleged prejudice. Schindler’s counsel then handed a copy of
     the report to plaintiff’s counsel and offered to reschedule or delay the start of Dr. Baak’s
     deposition.
¶7        In response, plaintiff’s counsel suggested that the fact that Schindler’s counsel had a copy
     of the report and plaintiff did not and that Schindler’s counsel did not produce the report to
     the plaintiff within the 21-day time limit set forth in Rule 215(c) showed that this was a
     serious violation of Rule 215. Plaintiff’s counsel noted that the offer to provide the report just
     before the evidence deposition did not alleviate the prejudice because he had prepared for the
     deposition of Dr. Baak without the benefit of the report. Plaintiff’s counsel also noted that the
     report had been addressed only to Schindler’s counsel and that it had been faxed to
     Schindler’s counsel on August 30, 2016. Plaintiff’s counsel again indicated that he would
     proceed with the evidence deposition because the doctor was present, and a postponement
     would be prejudicial. The evidence deposition of Dr. Baak was taken that day.
¶8        The plaintiff’s motion to bar Dr. Rotman’s testimony was filed on September 13, 2016.
     Plaintiff’s motion alleged that Dr. Rotman examined the plaintiff on August 15, 2016, and
     that Dr. Rotman failed to provide a copy of his report of the examination to plaintiff’s
     counsel. The plaintiff further alleged that the defendants had not requested, and the court had
     not granted, any extension of time to provide a copy of the report to the plaintiff. The
     plaintiff asserted that under Rule 215(c), the failure to provide a copy of the examiner’s
     report within 21 days of the examination should result in exclusion of the examiner’s
     testimony, opinions, findings, and results, as set forth in the report. The plaintiff argued that
     the exclusion provision was mandatory and that the plaintiff was not required to show
     prejudice.
¶9        On October 24, 2016, Schindler filed a memorandum in opposition to the plaintiff’s
     motion to bar. Schindler noted that plaintiff’s motion to bar was based on a Rule 215(c)
     medical report that was “provided to Plaintiff’s counsel seven (7) days ‘late’ per that Rule’s
     21-day disclosure section.” Schindler acknowledged that its counsel had received a copy of
     Dr. Rotman’s report by fax on August 30, 2016, but asserted that its counsel “was not made
     aware” that the report had not been sent to plaintiff’s counsel. In a footnote, Schindler
     admitted that “[t]he 21 day portion of Rule 215(c) was not specifically discussed by counsel
     with Dr. Rotman.” Schindler argued that the exclusion provision in Rule 215(c) was
     discretionary with the trial court and that under the case law there must be actual prejudice
     before a motion to bar the examiner’s testimony and report is granted. Schindler also asserted
     that the plaintiff could not establish prejudice because the scheduling order had been recently
     amended and under the amended schedule, the period for discovery would not close until
     March 17, 2017, and the trial date was more than a year away. Schindler also asserted the
     plaintiff could have decided, unilaterally, to postpone the deposition of Dr. Baak to cure any
     prejudice that she allegedly suffered. Alternatively, Schindler argued that the time


                                                 -3-
       requirements of Rule 215(c) were inapplicable because the amended case management order,
       entered September 6, 2016, set the time for the disclosure of the defendants’ expert
       witnesses, and thereby modified the time requirements under Rule 215(c).
¶ 10        On October 26, 2016, the trial court heard arguments on the plaintiff’s motion to bar Dr.
       Rotman’s testimony but delayed a ruling to allow supplemental briefing. On January 12,
       2017, the trial court issued a written order denying the plaintiff’s motion to bar. In its order,
       the court found that it was undisputed that “Dr. Rotman did not ‘mail or deliver’ to the
       attorneys for ‘the party examined’ his ‘written report of the examination’ within 21 days, nor
       did Schindler’s counsel.” The court specifically found that no “extensions or modifications”
       had been granted by the court. The court agreed the supreme court rules are not aspirational
       but then stated that “it must weigh various factors when ruling on discovery violations,
       including surprise, the prejudicial effect, the nature of the testimony, the diligence of the
       adverse party, timely objection to the testimony, and the good faith of the party calling the
       witness.” Given those factors, the court determined that the plaintiff had ample time to
       construct trial strategy, as the trial was seven months away. The court denied the plaintiff’s
       motion to bar the testimony of Dr. Rotman, concluding that it had discretion to permit the
       examiner to testify despite the time violation and that the plaintiff was not unduly prejudiced.
¶ 11        On September 6, 2017, the plaintiff filed a motion to reconsider the ruling on the
       plaintiff’s motion to bar Dr. Rotman’s testimony and also asked the court to strike the
       defendants’ cross-examination of Dr. Baak as a sanction for the discovery violation. On
       September 13, 2017, Schindler filed a response in opposition to the motion to reconsider. On
       September 16, 2017, the court issued an order denying the motion to reconsider its ruling on
       the motion to bar Dr. Rotman’s testimony. The court took the request to strike the
       cross-examination of Dr. Baak under submission pending review of the deposition transcript.
¶ 12        During a final pretrial conference on September 20, 2017, the plaintiff requested that the
       trial court certify a question for interlocutory appeal under Rule 308(a). The certified
       question involved the interpretation of Rule 215(c). After considering the arguments of
       counsel, the court granted the plaintiff’s request. The court ultimately certified the following
       question: “Does the trial court have discretion to permit a Rule 215 medical examiner to
       testify when the attorney for the party examined has not been served with the examiner’s
       report within the time specified by Rule 215(c)?”

¶ 13                                             ANALYSIS
¶ 14       This court granted the plaintiff’s petition for interlocutory appeal under Illinois Supreme
       Court Rule 308 (eff. July 1, 2017) to consider the certified question. The certified question
       involves the construction of Illinois Supreme Court Rule 215(c) (eff. Mar. 28, 2011). Our
       supreme court rules are construed according to the same principles that govern the
       construction of statutes. Ill. S. Ct. R. 2 (eff. July 1, 2017); 5 ILCS 70/1.01 (West 2016);
       Robidoux v. Oliphant, 201 Ill. 2d 324, 332, 775 N.E.2d 987, 992 (2002). Our primary task is
       to ascertain and give effect to the intent of the drafters, which is best indicated by the plain
       and ordinary meaning of the language in the rule. Robidoux, 201 Ill. 2d at 332. We will
       interpret a rule so that no part of it is rendered meaningless or superfluous, and we will not
       depart from the rule’s plain language by reading into it exceptions, limitations, or conditions
       that conflict with the drafter’s expressed intent. Ferris, Thompson & Zweig, Ltd. v. Esposito,
       2017 IL 121297, ¶ 22, 90 N.E.3d 400. If the language of a rule is ambiguous or susceptible to

                                                   -4-
       more than one reasonable interpretation, we may consider the committee comments, the
       reason, necessity, and purpose for the rule. Friedman v. Thorson, 303 Ill. App. 3d 131, 135,
       707 N.E.2d 624, 626 (1999). The construction of a supreme court rule presents a question of
       law which is reviewed de novo. Robidoux, 201 Ill. 2d at 332.
¶ 15       Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011) is a rule of discovery, the purpose
       of which is to provide an orderly procedure for the examination of civil litigants whose
       physical or mental condition is in controversy. Ill. S. Ct. R. 215, Committee Comments (rev.
       June 1, 1995). The requirements for preparation and delivery of the examiner’s report are set
       forth in Rule 215(c) and provide as follows:
                    “(c) Examiner’s Report. Within 21 days after the completion of the examination,
                the examiner shall prepare and mail or deliver to the attorneys for the party requesting
                the examination and the party examined duplicate originals of a written report of the
                examination, setting out the examiner’s findings, results of all tests made, and the
                examiner’s diagnosis and conclusions. The court may enforce compliance with this
                requirement. If the report is not delivered or mailed to the attorney for the party
                examined within the time herein specified or within any extensions or modifications
                thereof granted by the court, neither the examiner’s report, the examiner’s testimony,
                the examiner’s findings, X-ray films, nor the results of any tests the examiner has
                made may be received in evidence except at the instance of the party examined or
                who produced the person examined. No examiner under this rule shall be considered
                a consultant.” Ill. S. Ct. R. 215(c) (eff. Mar. 28, 2011).
¶ 16       The first sentence in Rule 215(c) clearly directs that within 21 days after the completion
       of the examination, the examining physician shall prepare and mail or deliver to the party
       requesting the examination and the party examined duplicate copies of the report. The first
       sentence also identifies the specific contents of the examiner’s report and directs examining
       physicians to set forth their findings, test results, diagnoses, and conclusions.
¶ 17       The second sentence in Rule 215(c) states that the trial court may enforce compliance
       with the requirements in the first sentence. This sentence recognizes that under our supreme
       court rules, generally, the circuit court is vested with discretionary authority to impose
       sanctions for noncompliance with its discovery orders. See Ill. S. Ct. R. 219 (eff. July 1,
       2002). Rule 219(c) provides, in pertinent part, that when a party, or a person at the instance
       of a party, unreasonably fails to comply with any order entered under the supreme court rules
       on discovery, the circuit court may, upon motion, enter, “in addition to remedies elsewhere
       specifically provided,” such orders as are just, including sanctions. (Emphasis added.) Ill. S.
       Ct. R. 219(c) (eff. July 1, 2002).
¶ 18       The third sentence in Rule 215(c) provides a specific remedy if the report is not delivered
       to the attorney for the party examined within 21 days after the examination or any extension
       granted by the trial court. That remedy is to prohibit the party who requested the examination
       from offering the examiner’s testimony and report at trial. The very specific remedy in the
       third sentence is triggered by the failure to furnish the report within the time frame provided,
       or any extension or modification thereof granted by the trial court, and this remedy, by its
       plain language, is mandatory. See Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d 6, 572
       N.E.2d 320 (1991); Harris v. Minardi, 74 Ill. App. 2d 262, 268, 220 N.E.2d 39, 41-42 (1966)
       (“clear language of the Rule makes the furnishing of the report mandatory and provides the
       penalty that the doctor’s testimony is not admissible unless made in compliance with the

                                                   -5-
       Rule”). Further, the third sentence contains no requirement that the party seeking the remedy
       must establish prejudice, and we will not depart from the plain language by reading such a
       condition into it.
¶ 19       Based on its plain language, Rule 215(c) mandates a specific remedy for failure to
       provide the examiner’s medical report within 21 days of the examination or any extension
       granted by the trial court and also recognizes and preserves the circuit court’s discretionary
       authority to impose additional sanctions for noncompliance with its discovery orders. Our
       interpretation of Rule 215(c) is in keeping with the principles of construction directing us to
       consider the plain and ordinary meaning of the language in the rule and to give each
       provision meaning. Robidoux, 201 Ill. 2d at 332. Our interpretation is also supported by the
       committee comments to Rule 215, which provide, in part, that “the failure to provide the
       attorney for the party who was examined with a copy of the examiner’s report within the
       21-day period specified by paragraph (c) will result in exclusion of the examiner’s testimony,
       opinions, and the results of any tests or X-rays that were performed.” Ill. S. Ct. R. 215,
       Committee Comments (rev. June 1, 1995).
¶ 20       The defendants have cited two cases, Linn v. Damilano, 303 Ill. App. 3d 600, 708 N.E.2d
       533 (1999), and Lilegdon v. Hanuska, 85 Ill. App. 2d 262, 229 N.E.2d 314 (1967), in support
       of their argument that Rule 215(c) vests the trial court with discretion to refuse to bar the
       examiner’s testimony or report for an undisputed violation of Rule 215(c). We have reviewed
       these cases, and find that neither addresses the specific question presented in this appeal.
¶ 21       In Linn, the parties, by agreement, continued to take depositions and conduct discovery
       well after the discovery deadline, and the defendant’s examining physician reviewed medical
       records and deposition testimony of plaintiff’s treating physicians, which came to light after
       the plaintiff’s examination. The examining physician wrote supplemental reports based upon
       the additional medical information. The defendant provided the supplemental reports to the
       plaintiff a few days before the discovery and evidence depositions of the examining
       physician. The plaintiff moved to bar the evidence deposition of the defendant’s examining
       physician in its entirety because the defendant failed to timely disclose one supplemental
       report. The trial court granted the plaintiff’s motion in part, barring the testimony with
       respect to the material not contained in the examining physician’s original reports.
       Thereafter, the plaintiff appealed the award of damages. On appeal, the plaintiff argued that
       the defendant’s failure to timely disclose the supplemental reports of its examining physician
       violated Illinois Supreme Court Rules 213, 215, and 218 (eff. Jan. 1, 1996), as well as the
       amended scheduling order, and that the trial court erred in denying the motion to bar the
       examining physician’s testimony in its entirety. The plaintiff further argued the trial court’s
       error resulted in prejudice requiring a new trial on damages. Linn, 303 Ill. App. 3d at 604.
       The appellate court found that the parties, by agreement, continued to take depositions after
       the date set for completion of discovery and that both parties ignored the trial court’s efforts
       to provide an orderly discovery process. The appellate court concluded that the trial court
       properly dealt with the situation by permitting the examining physician to testify but limiting
       his testimony to the matters and opinions discussed in his original reports. Linn, 303 Ill. App.
       3d at 605-06. The appellate court also determined that plaintiff failed to show that the trial
       court’s alleged error in the admission of evidence resulted in an inadequate award of
       damages. Linn, 303 Ill. App. 3d at 606.



                                                  -6-
¶ 22        In Linn, the complained-of discovery violation involved the late production of a
       supplemental report by the examining physician, and the issue was whether the trial court
       erred in refusing to bar the entirety of the examining physician’s deposition testimony based
       on that discovery violation. It appears that the appellate court considered the impact of Rules
       213, 215, and 218 but proceeded to analyze the discovery violation under Rule 213. Linn,
       303 Ill. App. 3d at 605-06. In any event, the court in Linn did not address the question
       presented here.
¶ 23        In Lilegdon, the plaintiff claimed that the trial court committed prejudicial error in
       permitting the defendant’s examining physician to testify where the examining physician’s
       report had not been furnished to plaintiff within the time required by Illinois Supreme Court
       Rule 17-1 (eff. Oct. 21, 1957). Lilegdon, 85 Ill. App. 2d at 271. At that time, Rule 17-1
       provided that the examining physician shall deliver an original report to the attorney for the
       party examined within 20 days after the completion of the examination, and in no event later
       than 10 days before trial. Ill. Rev. Stat. 1965, ch. 110, § 101.17-1. The facts show that on
       February 23, 1966, Judge Schultz entered an order directing the plaintiff to submit to an
       examination by defendant’s examining physician within 20 days. Pursuant to the order, the
       plaintiff was scheduled to appear for an examination on March 14, 1966. On March 4, 1966,
       another judge in the circuit dismissed the case for want of prosecution. On March 14, 1966,
       the plaintiff moved to vacate the order of dismissal, and therein noted that on March 7, 1966,
       she requested a 10-day delay in the examination, which was agreed to by defendant’s
       examining physician. The dismissal order was vacated. The case was moved to the active
       trial calendar and subsequently called for trial on April 13, 1966. Meanwhile, the plaintiff
       submitted to the examination on March 24, 1966, and the defendant delivered a copy of the
       physician’s report to the plaintiff’s counsel on April 12, 1966. Thus, the report was furnished
       to the plaintiff’s counsel within 20 days of completion of the examination but less than 10
       days before trial. When the defendant called its examining physician as a witness at trial, the
       plaintiff objected on the ground that the report had not been provided 10 days prior to trial as
       required. After considering the arguments of counsel, including the mandatory or
       discretionary character of the rule, the dismissal of the case and subsequent reinstatement,
       and the lack of surprise to the plaintiff, the trial court permitted the examining physician to
       testify. Lilegdon, 85 Ill. App. 2d at 272. The jury returned a verdict for the defendant, and the
       plaintiff appealed.
¶ 24        In Lilegdon, the appellate court did not engage in an analysis of the character of Rule
       17-1, and made no specific finding that the specific penalty in the rule was mandatory or
       discretionary. The appellate court determined that “the sequence of the facts presented to the
       court justified the use of sound discretion by the court in determining whether the penalty for
       failure to comply with the time requirement should be applied.” Lilegdon, 85 Ill. App. 2d at
       272. Upholding the trial court’s ruling based on the “sequence of the facts presented”
       suggests that the appellate court concluded that the delay in furnishing the report was
       attributable to the plaintiff’s request to postpone the medical examination and the plaintiff’s
       apparent lack of diligence in prosecuting the case, and therefore there was either no violation
       by defendant or the plaintiff was estopped from asserting a violation. Lilegdon is clearly
       distinguishable, and again, the court did not address the question before us.
¶ 25        The defendants have argued, in the alternative, that the amended case management orders
       entered by the trial court governed the time for disclosure of retained expert witnesses and


                                                   -7-
       thereby modified the time requirements of Rule 215(c). After reviewing the record, we find
       that this argument is without merit. We have reviewed the two amended case management
       orders in the record. Neither order addresses or makes reference to the Rule 215 examination.
       Nothing within these case management orders indicates that the trial court extended or
       modified the 21-day time requirement in Rule 215(c). Moreover, in the order of January 12,
       2017, the trial court specifically found that Dr. Rotman’s report had not been delivered to
       plaintiff’s counsel within 21 days of the examination and that no extensions or modifications
       had been granted by the court.
¶ 26        In this case, there is no indication that the defendants requested an extension of time to
       deliver Dr. Rotman’s report to the plaintiff pursuant to Rule 215(c) or Illinois Supreme Court
       Rule 183 (eff. Feb. 16, 2011). Under Rule 183, a trial court has discretion to extend the
       21-day time limit, but the defendant must move for the extension and must show good cause
       for the extension. Bright v. Dicke, 166 Ill. 2d 204, 209, 652 N.E.2d 275, 277 (1995). Even
       after the plaintiff filed the motion to bar the examiner’s report, the defendants did not request
       leave to tender the report out of time, and they did not assert there was good cause for the late
       tender of the report. Instead the defendants argued that the plaintiff did not establish
       prejudice as a result of the defendants’ failure to comply with the time requirements of Rule
       215(c). The defendants further argued that they provided a copy of the report as soon as the
       plaintiff’s counsel raised the issue of noncompliance and that plaintiff could have avoided the
       prejudice complained of by accepting Schindler’s offer to postpone the evidence deposition
       of Dr. Baak. In advancing these arguments, the defendants, rather than establishing good
       cause for their noncompliance, are improperly placing the onus on the plaintiff to show
       prejudice. Under Rule 183, the moving party bears the burden to show some independent
       ground of good cause for the failure to provide the report to the party examined within the
       time required. Bright, 166 Ill. 2d at 209-10. To hold otherwise would be tantamount to
       granting litigants a license to disregard the supreme court rules so long as the opposing
       parties could not show harm. Bright, 166 Ill. 2d at 210. The supreme court rules are not mere
       suggestions; they have the “force of law,” and “the presumption must be that they will be
       obeyed and enforced as written.” Bright, 166 Ill. 2d at 210.
¶ 27        Rule 215 is a tool of discovery. Strict enforcement of the specific time limits set forth in
       Rule 215(c) promotes the orderly, timely, and complete disclosure of medical information
       and discourages gamesmanship and tactical deception. The time limits also allow all parties
       to rely, with some certainty, on the timely production of the examiner’s report in order that
       all litigants can fairly conduct discovery and prepare for trial.

¶ 28                                          CONCLUSION
¶ 29       We conclude that the failure to deliver a copy of the examiner’s report to the attorney for
       the party examined within the time specified by Rule 215(c) or within any extension or
       modification thereof granted by the trial court will result in the exclusion of the examiner’s
       testimony, opinions, and the results of any tests or X-rays that were performed, except at the
       instance of the party examined. The plain language of the rule mandates the enforcement of a
       specific penalty for failing to furnish the report of the examiner within the time specified or
       within any extension or modification thereof granted by the trial court.
¶ 30       Turning again to the certified question on appeal, though we find that it is inartfully
       worded and incomplete, it essentially asks whether the trial court has discretion to permit an

                                                   -8-
       examining physician to testify where the examiner’s report has not been mailed or delivered
       to the attorney for the party examined within the 21 days after completion of the examination
       or within any extensions or modifications granted by the court. Accordingly, our answer to
       the certified question, as modified, is in the negative.
¶ 31       Finally, we note that prior to the oral arguments, the plaintiff filed a motion for leave to
       cite as additional authority a recent case from this court, and the defendants filed a response
       in opposition. The motion was taken with the case and is hereby granted.

¶ 32      Certified question modified and answered; cause remanded.

¶ 33       JUSTICE WELCH, specially concurring:
¶ 34       I concur with the majority’s decision to reverse and remanding the judgment of the
       Madison County circuit court. The function of a jury is to be the fact finder. The duty of a
       jury is to truthfully find all facts. The purpose of the Illinois Supreme Court rules is to give a
       structure for attorneys to follow so that the facts can be presented to the jury. Illinois
       Supreme Court Rule 215(c) (eff. Mar. 28, 2011), the subject of this appeal, is unlike the other
       supreme court rules in that it governs the conduct of nonattorneys. The language of Rule
       215(c) directs the examiner, not the lawyer, to furnish their reports and opinions to counsel.
       The supreme court rules are written to instruct attorneys on proper procedure and lay people
       should not be expected to know these rules or be forced to comply with them.
¶ 35       Additionally, as the function of the trial court is to marshal the attorneys and the evidence
       so that the jury can fairly find all the facts, trial judges use their knowledge and experience in
       carrying out this function. In this case, the physician examined the plaintiff on August 15,
       2016, and faxed the report to Schindler’s counsel on August 31, 2016, well within 21 days as
       required by Rule 215(c). However, the physician failed to furnish the report to the plaintiff.
       The plaintiff’s counsel received the report from Schindler’s counsel, not the physician, on
       September 13, 2016, 28 days after the physician’s examination, in violation of Rule 215(c).
       At the time the plaintiff received the report, the trial date was approximately one year away.
       The trial judge, in his discretion, ruled that the expert would be allowed to testify. Though
       the decision of trial judges in discovery orders is normally given discretion, the standard of
       review here is de novo as this is an issue of rule interpretation. The trial court stated in its
       order that no extension or modification of the discovery order was made. Thus, under the
       plain language of the rule, the expert should be barred from testifying. Had the procedure
       contained within the rule regarding extensions or modification of the discovery order been
       followed, the court would have been correct in allowing the testimony and report of the
       expert to be used at trial.




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