Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This blog is written by Karen Munoz.
The case of Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, will be further discussed in this week’s blog entry due to the range of issues in the Appeals Court opinion.
The defendant’s appeal contended that the trial court had erred in not allowing the defendant to call a coworker as a witness. The plaintiff took the evidence depositions of two of her coworkers who were present when the accident occurred. But one of these witnesses did not see the accident actually occur.
After the defendant admitted liability, the plaintiff withdrew the colleague who had not witnessed the incident. The defendant then asked if she could call the withdrawn witness in the event that the plaintiff did not. Her request was denied.
The defendant argued that the trial court erred in making this decision as this witness’ testimony was key to defendant’s case as she had information as to whether the plaintiff was thrown in the air, where she landed and if she lost consciousness.
The trial court noted in some detail that the defendant had no legal basis to call this witness as the defendant had not disclosed her in her Rule 213(f) disclosures.
In examining the trial court’s decision not to allow this witness to be called, the court considered factors such as surprise to the opposing party, the prejudicial effect of the witness’ testimony, the nature of the testimony, the diligence of the adverse party, the timeliness of the objection and the good faith of the party offering the testimony. The Appeals Court ultimately rested its decision to uphold the trial court’s ruling on the fact that because defendant had not disclosed the plaintiff’s coworker as a Rule 213(f) witness, she could now call her as a witness.
The defendant also claimed that the trial court had erred in not granting the defendant’s motion to bar the plaintiff’s friend and coworker, Carol Heerema. Heerema knew the plaintiff as a high-functioning, intelligent and confident person. When Heerema met the plaintiff at a conference 10 days after the accident, she noted that plaintiff was confused, having trouble mentally and was not “acting like herself.” In later meetings, Heerema noted that plaintiff was slower to respond, made mistakes, had memory difficulties and lacked confidence.
The defendant attempted to bar this evidence on the basis that Heerema was unqualified to express an opinion as to the plaintiff’s mental status. The Appeals Court ruled that a lay witness can express an opinion on an issue as long as the opinion is based on the witness’ personal observations, is one that a person is generally capable of making, and is helpful to a clear understanding of an issue at hand.
The Appeals Court found that Heerema’s testimony was based solely on her observations as someone who had known plaintiff for 25 years.
The judgment of Court of Appeals in Klingelhoets provides us with a useful roadmap on how to prepare for a trial.