Illinois Appellate Court Finds That Decedent’s Discovery Deposition Should Be Used as Evidence at Trial Pursuant to Supreme Court Rule 212(a)(5)

This was a negligence lawsuit in which the defendant died two years after his discovery deposition. In this case, the Illinois Appellate Court was unanimous on the dispute about the Illinois Dead-Man’s Act, 735 ILCS 5/8-201. However, justices of the 5th District, Judy L. Cates and David K. Overstreet, disagreed on whether the trial judge misconstrued Illinois Supreme Court Rule 212(a)(5), which was amended in 2011 to permit use of discovery depositions as substantive evidence at trial.

Illinois Supreme Court Rule 212(a)(5) says that a discovery deposition may be used “upon reasonable notice to all parties, as evidence at trial or hearing against the party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is not a controlled expert witness, the deponent’s evidence deposition has not been taken and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.”

Kevin Eyster sued Kenneth Conrad for allegedly causing an auto crash. The administrator of Conrad’s estate requested summary judgment, arguing the Dead-Man’s Act blocked Eyster from testifying about the incident.

Although the administrator included the entire transcript of the discovery deposition as an exhibit, he argued Eyster couldn’t satisfy Rule 212(a)(5)’s requirements.

Quoting comments from the Supreme Court’s Rules Committee that discussed Berry v. American Standard, 382 Ill.App.3d 895 (2008), the administrator argued that Rule 212(a)(5) should be interpreted as only applying “rare, but compelling circumstances.”

The trial court granted the motion with an order that said that the Illinois Dead-Man’s Act “precluded” Eyster’s testimony. The order added, “Plaintiff knew of defendant’s age and had over two years to take defendant’s evidence deposition but failed to do so.”

Eyster was an elderly man.

In reversing, the 5th District unanimously ruled that the administrator for the deceased defendant waived the Dead-Man’s Act by attaching the transcript of the discovery deposition as an exhibit.

On the second issue, Justice Cates, joined by Justice Thomas M. Welch, concluded that the trial court “erred in refusing to consider decedent’s deposition as substantive evidence of decedent’s (defendant’s) negligence.” In concurring, Justice Overstreet disagreed “with the majority’s conclusion that the circuit court misconstrued” Rule 212(a)(5). Justice Overstreet’s opinion stated that he disagreed with the majority’s conclusion that the circuit court misconstrued Rule 212(a)(5) in declining to permit decedent’s discovery deposition to be used as substantive evidence.

The circuit court entered summary judgment based on application of the Dead-Man’s Act. It did not determine in its order whether the decedent’s discovery deposition may be used as substantive evidence pursuant to Rule 212(a)(5).

In Illinois, there remains a sharp distinction between depositions taken for the purpose of discovery and those taken for use as evidence at trial.

“Discovery depositions are used primarily to obtain information, to commit witnesses to particular stories and to obtain admissions from opposing parties.” Slatten v. City of Chicago, 12 Ill.App.3d 808 (1973). “In contrast, an evidentiary deposition is generally used for the purpose of preserving testimony for trial and questioning is therefore limited by the rules of evidence.” Estate of Rennick, 181 Ill.2d 395 (1998).

In this case, Conrad’s (the decedent and defendant) discovery deposition was taken on May 7, 2015, over two years before he died on May 22, 2017. The plaintiff’s counsel delayed taking his evidentiary deposition despite knowing that Conrad was 90 at the time of the discovery deposition.

Moreover, unlike the case of Berry v. American Standard, 381 Ill.App.3d 895 (2008), defense counsel in no way interfered with the taking of Conrad’s evidentiary deposition, and the record indicates that Conrad was available for an evidence deposition during the 2-year period.

Because Rule 212(a)(5) clearly provides that a circuit court exercise its sound discretion to determine whether the discovery deposition may be used as substantive evidence, Justice Overstreet stated that he would remand this case for the circuit court to do so.  Accordingly, he would reverse and remand for the circuit court to exercise its sound discretion to determine whether Conrad’s discovery deposition may be used as evidence pursuant to Rule 212(a)(5).

However, the majority opinion written by Justice Cates concluded that defendant had not demonstrated any unfair prejudice.  Under these circumstances, the use of decedent’s discovery deposition as substantive evidence was required to obtain substantial justice between the parties. In conclusion, the majority stated that after reviewing the record, we conclude that the trial court misconstrued Rule 212(a)(5) and thereby erred in refusing to consider the decedent’s deposition as substantive evidence of decedent’s negligence.

Eyster v. Conrad, 2020 IL App (5th) 10261 (Jan. 9, 2020).

Kreisman Law Offices has been handling automobile accident lawsuits, product liability cases, nursing home negligence lawsuits, motorcycle accident cases, bicycle accident lawsuits, truck accident lawsuits and pharmaceutical negligence lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Wood Dale, Bloomingdale, Lake Zurich, Deerfield, Northbrook, Northfield, Glenview, Glencoe, Mundelein, North Chicago, Lake Bluff, LaGrange, Westmont, Willowbrook, Burbank, Hickory Hills, Plainfield, Lockport, North Aurora, Warrenville, Wheaton, Hinsdale, West Chicago, Downers Grove, Plainfield, Frankfort, Mokena, Orland Hills, Monee, Glenwood, Sauk Village, Chicago Heights, Blue Island, Chicago (Washington Heights, Pullman, Rosemont, Calumet Heights, Bronzeville, Oakland, North Kenwood, Prairie Shores, Chinatown, Heart of Chicago, Lower West Side, Printer’s Row, West Loop, Ukrainian Village, Wicker Park, Rush and Division, River North, Fulton River District, Sheffield Neighbors, Roscoe Village, Irving Park West, Mayfair, Kimball, Ravenswood Manor, Sauganash, Norwood Park East, Edison Park), Park Ridge, Barrington Hills, Streamwood, Hanover Park, Roselle and Addison, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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