Illinois Personal Injury Lawyer Blog
The Fifth District Appellate Court issued a recent decision in Eyster v. Conrad finding that a deceased defendant’s discovery deposition could be introduced as substantive evidence at trial in a personal injury suit. At issue in Eyster was the lower court’s finding that the introduction of the discovery deposition would not do substantial justice between the parties and therefore could not be used as evidence. The Fifth District reversed and held that the trial court misapplied the discovery rule.
As Illinois is the only state that differentiates between discovery and evidence depositions, the ability to use a discovery deposition as evidence at trial is a unique issue faced by Illinois practitioners. The limited purposes for which a discovery deposition may be used as evidence are enumerated in Rule 212(a). Under Rule 212(a)(5), a discovery deposition may be used as evidence at trial “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.” A court must also find that the evidence sought to be introduced would do substantial justice between the parties.
In Eyster, the plaintiff commenced a personal injury suit in 2014 against the defendant alleging that the defendant’s negligent operation of his vehicle caused an accident between the parties and resulted in injuries to the plaintiff. In May of 2015, the plaintiff took the discovery deposition of the defendant. During the deposition, the defendant provided testimony that reflected he may have been negligent while driving his car. Two years later, the defendant died, and the trial court appointed a representative for the defendant to defend the suit. An evidence deposition of the defendant never took place.