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. App. 3d at was not used primarily in the process of gave a reasonable explanation for how she 672-73, 601 N.E.2d at 1356. One court manufacturing. Van’s Material, 131 Ill. 2d had gotten confused about the date. Crit-

28 JANUARY 2014 tenden, 2012 IL App (1st) 112437, ¶ 52, that it be within the party’s “knowledge.” 973 N.E.2d at 425. Eidson, 251 Ill. App. 3d at 196, 621 N.E.2d at 923; Smith, 394 Ill. App. 3d at 468, 914 Clear & Unequivocal. Illinois courts tend to N.E.2d at 1267. If “peculiar” means “exclu- consider the overlapping concepts of clar- sive,” those standards differ meaningfully. ity and equivocalness jointly and to devote But at least one Illinois Appellate Court has more attention to equivocalness while said that “the proper construction of the doing so. Qualifiers, such as “probably” or term ‘peculiar’ when referring to judicial “I expect,” that indicate that a statement admissions is that the information must is uncertain, tentative, or based on belief be without question within the realm of make that statement unclear or equivocal. information actually known to the witness Augenstein v. Pulley, 191 Ill. App. 3d 664, although not exclusively known to him.” 671, 547 N.E.2d 1345, 1350 (5th Dist. Eidson, 251 Ill. App. 3d at 196, 621 N.E.2d 1989). Even unqualified statements must at 923 (emphasis added). be incapable of supporting any plausible Even so, judges likely will feel more interpretation except the one offered by comfortable treating a statement as a the party asking the court to hold the state- judicial admission if it is within the party’s ment a judicial admission. Saying “No!” exclusive knowledge. Because judicial in response to a straightforward written admissions are not intended to bind a party question calling for a yes-or-no answer was to confused or mistaken statements, judges found to be clear and unequivocal because are less likely to treat a statement as a judi- there is no qualification and no plausible cial admission where potentially available alternative interpretation of either the evidence could correct or contradict it. For question or the answer. Van’s Material, 131 example, in Caponi, the Second District Ill. 2d at 212-13, 545 N.E.2d at 702-04. affirmed the circuit court’s determina- But the bar for plausibility can be quite tion that the condition of the brake pedal low. For example, in a case where one of was “an observed fact solely within [the the parties answered “no” when asked mechanic’s] knowledge.” Caponi, 236 Ill. whether he had driven the car in ques- App. 3d at 671, 601 N.E.2d at 1355. tion on the night of an accident, the Fifth District declined to treat that response as Potential Ways to Avoid (or Cause) the Crash unequivocal. Eidson v. Audrey’s C T L, 251 Based upon the case law, below are practical Ill. App. 3d 193, 194-96, 621 N.E.2d 921, suggestions to try to avoid a crash between 922-24 (5th Dist. 1993). The Fifth District your client’s testimony and that of your expert held that the context established that the witness and also how possibly to set up a crash party was testifying only as to his intention between the opposing party and its expert. not to drive that night. Further, the party First, if expert testimony will be useful also testified that he had fallen asleep in to your case, consult with experts at the the passenger seat before the accident and outset of the litigation to identify the fac- did not remember anything else until after tual information upon which your expert’s the accident, which meant that he could testimony may hinge. Early consultation not unequivocally state that he was still a with potential experts will help you prepare passenger at the time of the accident. That your witnesses to be appropriately precise is a very small quantum of equivocalness in their pretrial statements and thereby because, as the dissent pointed out, the to avoid, for example, sounding more majority’s analysis makes sense “only if we unequivocal than the facts merit. Such accept the possibility that, while asleep, preparation may prevent an inappropri- [the party] took control of the car.” ate judicial admission or at least prevent back-and-forth over whether a statement Within the Party’s Knowledge. Illinois courts constitutes a judicial admission. For the often say that the fact in question must be same reasons, it will help to ask prospec- within the party’s “peculiar knowledge” in tive experts before fact discovery begins order to constitute a judicial admission, to identify facts that are good and bad for while other Illinois courts require only your opponent so that you can develop an

CBA RECORD 29 ISBA_Mutual_1/3_Vert_Ad_x4.indd 1 5/23/13 3:46 PM appropriate set of questions for deposi- 3d at 385, 618 N.E.2d at 921. Moreover, tions and interrogatories (and, of course, because a judicial admission removes an requests for admissions). issue from dispute, the court considered the Second, periodically review the record question of the plaintiff’s hand placement to see whether either party has made any settled and therefore refused to allow the admissions on key points that may con- defendant to impeach the plaintiff’s expert tradict expert testimony. In addition to by contrasting his deposition testimony answers to requests for admission, pretrial with his trial testimony on that issue. judicial admissions by a party can come Therefore, if the contradiction guts the from affidavits, verified pleadings, unveri- opposing expert’s opinion, you should fied pleadings signed by an attorney and consider moving to exclude that testimony not subsequently amended, depositions, in its entirety. On the other hand, if the and answers to interrogatories. E.g., Capital contradiction only weakens the expert’s One Bank, N.A. v. Czekala, 379 Ill. App. 3d opinion, you should consider using that 737, 744, 884 N.E.2d 1205, 1212-13 (3d inconsistency to impeach the expert at trial Dist. 2008); Knauerhaze, 361 Ill. App. 3d instead of asking the court to find that the at 557-558, 836 N.E.2d at 658; Albright statement is a judicial admission. v. Parr, 126 Ill. App. 3d 464, 468, 467 N.E.2d 348, 351 (5th Dist. 1984); Van’s Conclusion Material, 131 Ill. 2d at 211, 545 N.E.2d What a party says before trial can deter- at 703. If a statement might be a judicial mine what its expert witnesses are permit- admission, consider whether you want to ted to say at trial or whether those experts ask the judge to hold the opposing party’s may testify at all. During discovery, lawyers statements to be judicial admission or how should prospectively and retrospectively you will respond if the opposing party seeks keep watch for instances when a party to do so with your client’s statements. arguably makes a deliberate, clear, and Third, even if you believe that the unequivocal statement about a concrete opposing expert’s opinion is based on a fact fact within his or her personal knowledge contrary to a statement of the opposing that the party’s expert contradicts. Having party that arguably is a judicial admission, the opposing party’s statement treated as it may not always be the best strategy to ask a judicial admission may limit or prohibit the judge to treat your opponent’s admis- an expert’s testimony and could cause your sion as a judicial admission and to strike opponent’s case to crash and burn. your opponent’s expert testimony. Simply because a statement is a judicial admission Debbie Berman is a litigator and Co- does not necessarily preclude all expert Chair of Jenner & Block’s Media and First testimony that contains a contradictory Amendment Practice, and Michael Cebula allegation, and having a statement held is a Partner in Jenner & Block’s Professional a judicial admission may interfere with Responsibility Practice Group. your attack on the surviving testimony. For example, the defendant in Doyle convinced the court to treat the plaintiff’s statement regarding his hand placement at the time of the accident as a judicial admission, which obliged the plaintiff’s expert to testify about the hand placement at trial in a way that contradicted the expert’s deposition testimony. But that contradiction did not altogether preclude the expert from testify- ing at trial because the trial court decided that the changed fact did not alter the expert’s ultimate conclusion regarding the cause of the accident. Doyle, 249 Ill. App.

CBA RECORD 31 ISBA_Mutual_1/3_Vert_Ad_x4.indd 2 5/23/13 3:46 PM