If you have read this then here is the other side of the coin: why was it published?

This was a medical malpractice case. Both sides played disclosure close to the vest. At trial, Defendant used that against Plaintiff, objecting several times to undisclosed evidence. Then came Defendant’s turn; his testimony basically blew Plaintiff’s case out of the water. So, Plaintiff objected that his opinions hadn’t been disclosed. The trial court agreed, declared a mistrial, and awarded Plaintiff substantial fees.

On appeal, the majority explains why it agrees that Defendant hadn’t made proper disclosure and why the sanction was appropriate. The dissent, after a couple of pages of thoroughly commonplace observations (except the part about how disclosure is unfair to the poor, put-upon trial judges) about the disclosure rules, points out that Plaintiff’s counsel took Defendant’s deposition and chose not to ask about matters clearly at issue but agrees that there was one point about which Defendant should have made disclosure anyway. The dissent wouldn’t have declared a mistrial for this but Defendant hadn’t appealed that issue so the sanctions should be affirmed.

And what does one learn from reading the details? A few things about pulmonary embolism – but hardly enough to make much of a dent toward your M.D. degree. That discovery and trial were probably uncomfortable, unfriendly, and combative – but reading some of the names of counsel could have told you that. That disclosing that your defendant doctor will testify, “consistent” with his records, that he “complied with the applicable standard of care” can be dangerous – but if you don’t know that then what in the world are you doing handling professional-liability cases?

Apparently, the court feels that its contribution to the law is to say that the doctor-defendant is held to the same disclosure standard as an expert witness. If that’s a surprise, please see the last question above. It may be that too many have forgotten – or never knew about – the days when we had to fight about whether the doctor could even give opinion testimony on his own behalf.

These thirty pages say nothing, and teach nothing, to anyone outside this case.

Often enough, we wonder why an opinion was published. Once in a while, we wonder why one wasn’t.

Plaintiffs served Requests for Admissions asking Defendant to admit negligence and causation in a motor-vehicle case. Defendant denied both. When Plaintiffs won at trial they therefore moved that the judgment include sanctions. The trial court denied them and entered judgment. Plaintiffs moved for reconsideration of the sanctions about a month later; the court granted the motion and awarded costs and fees.

See the problem? Neither did the the trial court or the parties, which is why this deserves to be published.

Not until appellate oral argument did somebody (apparently the court) think to ask how a motion for reconsideration can modify a final judgment. The court ordered supplemental briefing before issuing this opinion to say that the answer is “it can’t.” A trial court can modify a final judgment under four rules – 50, 52, 59, and 60. Three of them – 50, 52, and 59 – extend the time for appeal. A motion for reconsideration can’t be used in place of any of them, as the rule itself (7.1) specifically says. Reconsideration applies to “rulings,” not ‘judgments.”

An opinion is supposed to be published if it “calls attention to a rule of law which appears to have been generally overlooked,” Supreme Court Rule 111. By not publishing, the court suggests that the issue isn’t overlooked “generally” but merely by dummies in this particular case. Maybe so, but in that case why bother with supplemental briefing?