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Don't Crash Your Expert! How Judicial Admissions Can

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Don't Crash Your Expert! How Judicial Admissions Can By Debbie Berman and Michael Cebula How Judicial Admissions Can Limit or Preclude Expert Witness Testimony DonDon’t’t CrCrashash YourYour ExpertExpert 26 JANUARY 2014 Caution! Potential crash ahead! unfortunately, those warnings are not very visible in the case law concerning judicial admissions and expert testimony, perhaps because the relevant Illinois authority is sparse. As a result, many attorneys may not realize how significantly a party’s judicial admissions can affect the testimony of its expert witnesses, including precluding expert witness testimony in its entirety. udicial admissions sometimes arE describeD AS by his judicial admission” regarding the position of his hands “the highest and best type of evidence,” but they are even more at the time of the accident. The First District accepted without Jpowerful than that. Burns v. Michelotti, 237 Ill. App. 3d 923, comment the premise that the plaintiff’s expert witness was bound 932, 604 N.E.2d 1144, 1151 (2d Dist. 1992). Judicial admissions by the plaintiff’s judicial admission regarding the position of his “withdraw a fact from issue” and thus, unlike evidentiary admis- hands at the time of the accident and confined itself to deciding sions, may not be contradicted by the party or its witnesses. Knau- whether the change to the expert’s testimony violated the rule that erhaze v. Nelson, 361 Ill. App. 3d 538, 557-58, 836 N.E.2d 640, an expert may not offer trial testimony inconsistent with his or 658 (1st Dist. 2005); Van’s Material Co. v. Dep’t of Revenue, 131 Ill. her deposition testimony. 2d 196, 212-13, 545 N.E.2d 695, 703 (1989). Therefore, when a court holds that a party’s prior statement is a judicial admission Be Alert: How to Spot a Judicial Admission rather than an evidentiary admission, that decision can foreclose The first step to determine whether expert testimony can and the party’s ability to rely on expert testimony that is based on facts should be stricken due to a party’s contradictory admission is to contrary to that prior statement. As one Illinois Appellate Court ascertain whether the party’s statement actually is a judicial admis- has held, a “party may contradict a judicial admission neither with sion. A statement qualifies as a party admission only where the his own contrary testimony nor that of other occurrence witnesses declarant is the party, the party’s employee, or the party’s agent, and or experts.” Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 671, 601 the agent or employee is speaking (1) about a matter over which N.E.2d 1347, 1355 (2d Dist. 1992). he or she had actual or apparent authority and (2) by virtue of that authority. E.g., Jenkins v. Dominick’s Finer Foods, 288 Ill. App. Key Authority: Caponi and Doyle 3d 827, 834, 681 N.E.2d 129, 134 (1st Dist. 1997). Whether a Both Caponi v. Larry’s 66 and Doyle v. White Metal Rolling & party’s admission is a judicial admission “must be decided under Stamping Corp. illustrate the effect that a party’s judicial admis- the circumstances in each case” and “must be given a meaning sion can have on its ability to rely upon expert witness testimony. consistent with the context in which it was found… [including] Caponi, 236 Ill. App. 3d at 671, 601 N.E.2d at 1355; Doyle v. the other testimony and evidence presented.” Serrano v. Rotman, White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 618 406 Ill. App. 3d 900, 907, 943 N.E.2d 1179, 1187 (1st Dist. N.E.2d 909 (1st Dist. 1993). 2011) (citations omitted). In Caponi, the defendant was test-driving a customer’s car when Judicial admissions must be (1) regarding a concrete fact, (2) he crossed the double-yellow lines into oncoming traffic, causing deliberate, (3) clear, (4) unequivocal, and (5) within the personal a fatal accident. During his discovery deposition, the defendant knowledge of the person making the statement. E.g., In re Estate testified that he had crossed the double-yellow lines when the car of Rennick, 181 Ill. 2d 395, 406, 692 N.E.2d 1150, 1156 (1998). stalled, making the brake pedals “high and hard” and the steering A statement cannot be a judicial admission if it is either (1) an unresponsive. The trial court treated that statement as a judicial opinion, estimate, or inference or (2) the product of uncertain admission and, therefore, struck the opinion of the defendants’ memory or some other “confusion or an honest mistake.” Herman expert witness that the accident occurred due to catastrophic v. Power Maint. & Constructors, LLC, 388 Ill. App. 3d 352, 361, brake failure–because a catastrophic brake failure occurs only 903 N.E.2d 852, 860 (4th Dist. 2009); see also Smith v. Pavlovich, when the brake pedals go all the way to the floor of the car. The 394 Ill. App. 3d 458, 468, 914 N.E.2d 1258, 1267 (5th Dist. Second District agreed, holding that the trial court “was correct 2009); Caponi, 236 Ill. App. 3d at 671, 601 N.E.2d at 1355. Those in finding as a matter of law” that the defendant’s testimony was less certain statements may be evidentiary admissions, which either a judicial admission and therefore also was correct in “striking the party can controvert or explain at trial, but they are not judicial opinion of defendants’ expert, who had expressly disregarded and admissions that remove the issue from dispute and therefore do contradicted that judicial admission.” not preclude contrary expert testimony. Rennick, 181 Ill. 2d at Similarly, during trial in Doyle, the plaintiff’s expert “alter[ed] 406, 692 N.E.2d at 1156. his testimony regarding the position of plaintiff’s hands in order to conform with the [trial] court’s ruling that plaintiff was bound CBA RECORD 27 at 211-13, 545 N.E.2d at 702-703. The court treated the defendant’s denial as a judicial admission because the admission did not go to what the truck’s primary use actually was (which would have been a conclusion from facts, including disputed facts) but rather to what the defendant claimed it was (a fact). Deliberate. For a party’s statement to be a judicial admission, it must be deliberately made–an honest mistake will not give rise to a judicial admission. Such mistakes include demonstrably accidental slips of the tongue (e.g., omitting a “not” when the context makes clear that one intended to include it) because “the doctrine of judicial admissions requires…that justice not be done on the strength of a chance statement made by a nervous party.” Smith, 394 Ill. App. 3d at 468, 914 N.E.2d at 1268. A statement is unlikely to qualify as a deliber- ate statement if: (1) it is incorrect due to “mistake or inadvertence,” (2) correcting the error will “not shift the entire basis of [the mistaken party’s] cause of action,” and (3) the error is “not of such magnitude that [the mistaken party] ‘most certainly would have known’” it was not true when he or she made the statement. Crittenden v. Cook Cnty. Comm’n on Human Rights, 2012 IL App (1st) 112437, ¶ 52, 973 N.E.2d 408, 425 (2012), aff’d, 2013 IL 114876, 990 N.E. 2d 1161 (2013). For example, in Caponi the Second District held that Concretely Factual. For the purposes of judi- held, for example, that a driver’s statement the mechanic’s repeated statements that cial admissions, “concrete facts” typically about her distance from the intersection the brakes were high and hard just before involve specific responses to straightfor- when she activated her turn signal was “at the accident strongly indicated deliberate- ward questions such as whether a party best an educated guess,” and thus not a ness. Caponi, 236 Ill. App. 3d at 671, 601 received payment for services or whether judicial admission, because she based the N.E.2d at 1355. Because the statements there was gravel on a staircase. Fountaine statement only on her sense of the distance were central to the dispute and because the v. Hadlock, 132 Ill. App. 2d 343, 347-48, rather than on some more accurate mea- court saw nothing in the record suggesting 270 N.E.2d 222, 225 (1st Dist. 1971); surement. Misch v. Meadows Mennonite that the defendant had made a mistake or Chmielewski v. Kahlfeldt, 237 Ill. App. 3d Home, 114 Ill. App. 3d 792, 801-02, 449 even that the statements were about events 129, 133-35, 606 N.E.2d 641, 643-45 N.E.2d 1358, 1364-65 (4th Dist. 1983). that occurred in “a situation in which (2d Dist. 1992). Here it is important to However, whether a party believes or mistake was likely,” the Second District distinguish between a fact and an opinion, contends something–as distinguished affirmed the trial court’s decision to treat estimate, or inference about that fact. For from whether that belief is actually true the mechanic’s statements as deliberately example, although a measurable quantity or accurate–can be a concrete fact. For made. In contrast, a court held that a single such distance can be a concrete fact, it example, the Van’s Material defendant misstatement about the date on which a does not become one until someone has answered “No!” to an interrogatory asking particular event occurred was not grounds measured it with an appropriately accurate whether it contended that a redi-mix truck for judicial admission because the declarant instrument. Caponi, 236 Ill.
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