NO. 5-06-0316 NOTICE
Decision filed 05/17/07. The text of IN THE this decision may be changed or
corrected prior to the filing of a APPELLATE COURT OF ILLINOIS Peti tion for Rehearing or th e
disposition of the same. FIFTH DISTRICT ________________________________________________________________________
JEAN LONGSTREET, Individually and ) Appeal from the Special Administrator of the Estate of ) Circuit Court of James Longstreet, ) Madison County. ) Plaintiff-Appellant, ) ) v. ) No. 03-L-35 ) COTTRELL, INC., LISA SHASHEK, ) CASSENS & SONS, INC., CASSENS ) CORPORATION, GENERAL MOTORS) CORPORATION, and Unknown ) Defendants, ) Honorable ) A. A. Matoesian, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
We granted the plaintiff's Supreme Court Rule 308 (155 Ill. 2d R. 308) application
for leave to appeal on July 28, 2006. The basis of that application was the trial court's June
16, 2006, order granting Cottrell, Inc.'s motion to bar the use of James Longstreet's discovery
deposition as evidence at a trial. All the defendants joined in this motion. We affirm.
James Longstreet was employed as a truck driver hauling cars for a Missouri-based
employer. At the time of his alleged injuries, he was operating a rig1 believed to have been
manufactured by Cottrell, Inc. (Cottrell). James Longstreet alleged that on several dates
extending from 2001 through 2003, he had sustained bodily injuries as a result of incidents
1 We use the term "rig," which is used by the plaintiff in her complaint. The plaintiff
does not seem to distinguish it from a tractor or a trailer, but she uses the term "rig" in place
of any combination of the individual terms, tractor and/or trailer.
1 with the rig's ratchet system in which chains broke. He also claimed that during the same
time frame, he slipped on the rigs while performing his job duties, sustaining alleged injuries.
According to the Longstreets' complaint, all the defendants maintained some relationship to
the rigs in question on the dates of the alleged accidents. Jean Longstreet filed claims against
all the defendants for a loss of consortium.
Discovery in this case began. On October 27, 2004, James Longstreet gave his
discovery deposition. James Longstreet developed cancer. The date on which he and his
attorneys became aware of the cancer is not indicated in the record. On May 26, 2005,
James Longstreet succumbed to the cancer and died. Thereafter, his attorneys filed a
suggestion of death and sought to have Jean Longstreet substituted as the plaintiff in her
capacity as the administrator of her deceased husband's estate.
Approximately one year later, Cottrell filed its motion to bar the use of James
Longstreet's discovery deposition. In the motion Cottrell's attorney stated that it was
"believed that Plaintiff will attempt to use the discovery deposition of Mr. Longstreet as an
evidence deposition in this litigation." After a lengthy hearing on this motion, the trial court
concluded on June 16, 2006, that the motion should be granted. At the request of counsel
for Jean Longstreet, the trial court certified the question pursuant to Supreme Court Rule 308
as involving a question of law about which there is a substantial basis for a difference of
opinion.
Upon application to this court, on July 28, 2006, we granted Jean Longstreet's request
for leave to appeal pursuant to Supreme Court Rule 308. The certified question is as follows:
"Whether the Estate of a deceased party can introduce the discovery deposition
of the deceased party as evidence at trial as an exception to the hearsay rule under
Illinois S. Ct. Rule 212(a)(3) in light of the language in Illinois Supreme Court Rule
212(a)(5)."
2 We are asked to review and interpret a supreme court rule, and thus our review is de
novo (In re Estate of Rennick, 181 Ill. 2d 395, 401, 692 N.E.2d 1150, 1154 (1998)). On
appeal, the goal of the court is to interpret the rule by ascertaining and giving effect to the
drafter's intentions. In re Estate of Rennick, 181 Ill. 2d at 404-05, 692 N.E.2d at 1155.
Although a supreme court rule is not a statute enacted by the Illinois legislature, the
interpretation of a rule should follow the same guidelines as statutory interpretation (In re
Estate of Rennick, 181 Ill. 2d at 404, 692 N.E.2d at 1155), in that each section must be
construed consistently with the other sections and subsections (Bonaguro v. County Officers
Electoral Board, 158 Ill. 2d 391, 397, 634 N.E.2d 712, 714 (1994)).
Furthermore, the words utilized by the Illinois Supreme Court should be given their
plain, ordinary, and popularly understood meanings, as are the words utilized in statutory
sections. See Nix v. Whitehead, 368 Ill. App. 3d 1, 5, 856 N.E.2d 1111, 1115 (2006).
Supreme Court Rule 212(a)(5) provides:
"(a) *** Discovery depositions taken under the provision of this rule may be
used only:
***
(5) upon reasonable notice to all parties, as evidence at trial or hearing
against a party who appeared at the deposition or was given proper notice
thereof, if the court finds that the deponent is neither a controlled expert
witness nor a party, 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." 210 Ill.
2d R. 212(a)(5).
Neither side disputes that this portion of Supreme Court Rule 212 would absolutely bar the
3 use of James Longstreet's discovery deposition, because he was a party to the case.
Jean Longstreet contends that each subparagraph of Supreme Court Rule 212(a) can
be read in isolation, and not conjunctively. Utilizing this theory, Jean argues that Supreme
Court Rule 212(a)(3) (210 Ill. 2d R. 212(a)(3)) would allow the use of her husband's
discovery deposition testimony. Rule 212(a)(3) states as follows:
"(a) *** Discovery depositions taken under the provision of this rule may be
(3) if otherwise admissible as an exception to the hearsay rule[.]" 210
Ill. 2d R. 212(a)(3).
The grammatical conjunction connecting the five subparagraphs of Supreme Court
Rule 212(a) is the word "or," and the use of that word could theoretically support Jean
Longstreet's contention that each subparagraph operates independently so that if the
deposition was admissible under subparagraph (3), the prohibition of subparagraph (5) would
be irrelevant.
Jean Longstreet specifically contends that her husband's discovery deposition would
qualify as former testimony. She correctly states that Illinois has adopted the former-
testimony exception to the hearsay rule. See Wilkerson v. Pittsburgh Corning Corp., 276 Ill.
App. 3d 1023, 659 N.E.2d 979 (1995). Generally speaking, under this hearsay exception,
earlier testimony can be admitted into evidence if the proponent of that testimony can show
that the witness is unavailable and the witness was the subject of competent cross-
examination in that prior testimony. See Wilkerson, 276 Ill. App. 3d at 1035, 659 N.E.2d
at 987. Arguing that her husband's death naturally establishes his unavailability and that, in
taking his deposition, the defendants competently cross-examined him, she contends that the
use of his discovery deposition at the trial would meet the exception's requirements.
4 Jean Longstreet further contends that the supreme court prohibition against the use
of a deceased party's discovery deposition in Rule 212(a)(5) would not be rendered pointless
by an application of the former-testimony hearsay exception in this case. She argues that the
former-testimony exception mandates a finding that the cross-examination of the decedent
was competent. She essentially claims that the former-testimony exception to the hearsay
rule is not independent of Rule 212(a)(5). In other words, Jean contends that Rule 212(a)(5)
only prohibits the use of a deceased party's discovery deposition if it can be shown that the
opponents did not have the opportunity to competently cross-examine the decedent during
that deposition. Although this language is not expressly contained within Rule 212(a)(5),
Jean urges us to conclude that so long as the defendants satisfied this unwritten "competent
cross-examination" rule, the prohibition as stated in the rule would not operate to bar this
deposition testimony.
While we follow this argument, we remain unconvinced that the Illinois Supreme
Court contemplated this exception to the prohibition of the use of a deceased party's
discovery deposition. As said previously, the most reliable indicator of the intent of the court
is found in the wording used in the rule with its ordinary meaning. Nix, 368 Ill. App. 3d at
5, 856 N.E.2d at 1115. Supreme Court Rule 212(a)(5) very clearly, and without
qualification, excludes the use of a deceased party's discovery deposition.
We find further support for the prohibition of Rule 212(a)(5) in Supreme Court Rule
212(b)(1) (210 Ill. 2d R. 212(b)(1)), which provides a means by which a deceased party's
evidence deposition can be introduced into evidence. That rule states, "All or any part of ***
evidence depositions may be used for any purpose for which a discovery deposition may be
used, and may be used by any party for any purpose if the court finds that at the time of the
trial *** the deponent is dead ***." 210 Ill. 2d R. 212(b)(1). An inference raised by this
rule is that only the evidence deposition of a party is allowable in the situation arising from
5 the party's death. In dicta, the Fourth District of the Illinois Appellate Court concluded that
this was correct, declining to recognize any possibility that Supreme Court Rule 212(a)(3)
would sanction the use of a deceased party's discovery deposition. Overcast v. Bodart, 266
Ill. App. 3d 428, 433, 639 N.E.2d 984, 987 (1994). 2
In support of her position, Jean Longstreet cites numerous cases. None of these cases
are on point for the theory she advances. See People v. Hansen, 352 Ill. App. 3d 40, 815
N.E.2d 848 (2004) (involving former testimony given at an evidentiary hearing on the
defendant's postconviction petition–not a discovery deposition); Rizzo v. Board of Fire &
Police Commissioners of the Village of Franklin Park, Cook County, 33 Ill. App. 3d 420, 337
N.E.2d 735 (1975) (involving the sworn testimony of witnesses–not the testimony of a
party–provided in an earlier proceeding); People v. Sutton, 260 Ill. App. 3d 949, 631 N.E.2d
1326 (1994) (involving evidentiary testimony provided by a police officer in a preliminary
hearing in court); Wilkerson v. Pittsburgh Corning Corp., 276 Ill. App. 3d 1023, 659 N.E.2d
979 (1996) (allowing a nonparty coworker's deposition from a prior trial, but it is not clear
from the opinion whether the deposition was classified as discovery or evidentiary);
O'Bryant v. Starkman, 53 Ill. App. 3d 991, 369 N.E.2d 215 (1977) (relying on a discovery
deposition of a physician in ruling on a motion to dismiss–not as former testimony); United
States v. Mann, 161 F.3d 840, 860-61 (5th Cir. 1998) (interpreting Fed. R. Evid.
804(b)(1)–not Supreme Court Rule 212).
Jean Longstreet additionally argues that the supreme court impliedly adopted Rule
804 of the Federal Rules of Evidence in People v. Johnson, 118 Ill. 2d 501, 509, 517 N.E.2d
1070, 1074 (1987). From this perceived adoption of Rule 804 of the Federal Rules of
Evidence, Jean Longstreet's argument continues that, in so doing, the supreme court
authorized the use of her deceased husband's discovery deposition testimony.
2 Overcast v. Bodart was decided prior to the adoption of Rule 212(a)(5).
6 Rule 804(b)(1) of the Federal R ules of Evidence allows the use of a discovery
deposition at the trial if the witness is unavailable and if the opposing party has had an
opportunity or motive to develop that witness's testimony by direct, cross-, or redirect
examination. Rule 804(a) provides the definition of unavailability and includes death as a
rationale. Fed. R. Evid. 804(a).
People v. Johnson involved a defendant charged with aggravated indecent liberties
with a child and the defendant's right to confront his five-year-old accuser. Johnson, 118 Ill.
2d at 502, 517 N.E.2d at 1071. The Illinois Supreme Court held that the defendant's
conviction must be reversed because the videotaped deposition of the child conducted out
of the defendant's presence (but while the defendant was watching on camera) was
inappropriate. Johnson, 118 Ill. 2d at 509-10, 517 N.E.2d at 1074. The use of this evidence
deposition was inappropriate because the situation did not qualify as one involving an
"unavailable" witness. Johnson, 118 Ill. 2d at 509-10, 517 N.E.2d at 1074. The child's
unwillingness to testify did not qualify as making the witness unavailable. Johnson, 118 Ill.
2d at 509, 517 N.E.2d at 1074. Supreme Court Rule 414 (134 Ill. 2d R. 414), which deals
with the use of evidence depositions in a criminal case, does not define the term
"unavailable." The unavailability of the witness in a criminal case forms the foundation for
the use of an evidence deposition. In People v. Johnson, the supreme court turned to Rule
804(a) of the Federal Rules of Evidence for guidance, because the term "unavailability" is
extensively defined there:
"While we do not necessarily adopt Rule 804 as an exhaustive definition of
'unavailable' under Illinois law, we do embrace the general principles reflected
therein. The general thrust of the rule makes clear that 'unavailability' is a narrow
concept, subject to a rigorous standard." Johnson, 118 Ill. 2d at 509, 517 N.E.2d at
1074.
7 While the supreme court borrowed the definition of "unavailability," contrary to Jean's
argument the supreme court stopped short of an outright adoption of Rule 804 of the Federal
Rules of Evidence–explicitly or by implication.
The outright adoption of this type of federal rule, which, by way of a hearsay
exception, would authorize the use of a deceased party's deposition, would conflict with
Illinois procedural law distinguishing discovery and evidence depositions. Illinois is unique
in distinguishing between discovery and evidence depositions. See M . McNabola, It's Time
to Move Beyond Separate Discovery and Evidence Depositions in Illinois, 92 Ill. B.J. 344
(1966). Illinois is currently the only state promoting these separate deposition uses.
The distinction between federal law and Illinois law relative to the use of a discovery
deposition stems from the long-standing history in Illinois of the use of separate discovery
and evidence depositions.
Prior to the legislature's enactment of the procedural reforms of the Civil Practice Act,
effective January 1, 1934 (1933 Ill. Laws 784), and the Illinois Supreme Court's adoption of
"Rules of Practice and Procedure," also effective January 1, 1934 (355 Ill. R. 1 et seq.),
Illinois generally followed English procedure–a practice abandoned earlier by a majority of
the states that had already adopted procedural rules. See G. Ragland, Jr., Edson R.
Sunderland's Contribution to the Reform of Civil Procedure in Illinois, 58 Mich. L. Rev. 27
(1959). Supreme Court Rule 19 dealt with discovery methods, including depositions, and
made no distinction between the discovery and evidentiary formats utilized today. 355 Ill.
R. 19.
On September 19, 1955, the Illinois Supreme Court adopted revised "Rules of Practice
and Procedure." 7 Ill. 2d R. 1 et seq. These rules, which took effect on January 1, 1956,
contained numerous changes from the previous rules, including several completely new rules
relative to depositions. Supreme Court Rule 19-10 set forth the distinction between
8 discovery and evidence depositions. Regarding discovery depositions, the rule stated as
follows:
"Discovery depositions may be used only (a) for the purpose of impeaching the
testimony of deponent as a witness in the same manner and to the same extent as any
inconsistent statement made by a witness; or (b) as an admission made by a party or
by an officer or agent of a party in the same manner and to the same extent as any
other admission made by that person; or (c) if otherwise admissible as an exception
to the hearsay rule." 7 Ill. 2d R. 19-10(2).
The rule contains no mention of the use of discovery depositions of a party. The portion of
Rule 19-10 dealing with evidence depositions does make reference to a party's deposition and
provides, "All or any part of an evidence deposition, whether or not the deponent is a party,
may be used by any party for any purpose if the court finds that at the time of the trial[] (i)
the deponent is dead[.]" 7 Ill. 2d R. 19-10(3)(b)(i).
With various amendments over the past 50 years, the supreme court has kept the
difference between discovery and evidence depositions intact. Supreme Court Rule 202
explains that the deposition notice or order must specify the type of deposition intended, and
in the absence of that specification, the deposition would be treated solely as a discovery
deposition. 166 Ill. 2d R. 202. The distinction is meaningful to practicing attorneys, because
the discovery format provides a great deal of exploratory freedom. The trade-off for that
freedom is the supreme court's limitations on the use of discovery depositions at a trial. M.
McNabola, It's Time to Move Beyond Separate Discovery and Evidence Depositions in
Illinois, 92 Ill. B.J. 344, 345 (1966) (citing J. Kinsler, J. Grenig, & L. Nale, 10 Ill. Prac.,
Civil Discovery §2.11 (2000)).
The subparagraph at issue, Supreme Court Rule 212(a)(5), "was added in 2001 to
permit a discovery deposition to be introduced in evidence at trial or hearing under specified
9 circumstances." 210 Ill. 2d R. 212, Committee Comments, at lxxx. The "specified
circumstances," which do include the death of a witness, expressly and unambiguously
exclude the deposition of a party.
The policy in Illinois, as established by the Illinois Supreme Court, specifically
disallows the interpretation advanced by Jean Longstreet. Given the express prohibition of
the use of a deceased party's discovery deposition in Rule 212(a)(5), we are not able to
interpret Rule 212(a)(3) to let in portions or the entirety of such a deposition as former
testimony. There is no Illinois case law or treatise language directly on point supporting Jean
Longstreet's theory throughout the 50-plus years that Illinois has recognized the two types
of depositions.
Jean Longstreet argues that her theory must be correct because Rule 212(a)(3) must
stand for "something." The rule does have applications other than the former-testimony
exception she proposes. Certainly, if James Longstreet's discovery deposition contains any
sort of judicial admission beneficial to the proof of his case, then that judicial admission
would be admissible, even though contained within a discovery deposition. See In re Estate
of Rennick, 181 Ill. 2d at 405-06, 692 N.E.2d at 1155-56.
In light of the clear and unambiguous wording of Supreme Court Rule 212(a)(5), we
find that the trial court's ruling, granting the motion to bar Jean Longstreet's use of her
husband's discovery deposition at a trial, was correct. For the reasons stated in this order,
we conclude that the judgment of the circuit court of Madison County is hereby affirmed.
Certified question answered; judgment affirmed.
WELCH, P.J., and GOLDENHERSH, J., concur.
10 NO. 5-06-0316
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ___________________________________________________________________________________
JEAN LONGSTREET, Individually and ) Appeal from the Special Administrator of the Estate of ) Circuit Court of James Longstreet, ) Madison County. ) Plaintiff-Appellant, ) ) v. ) No. 03-L-35 ) COTTRELL, INC., LISA SHASHEK, ) CASSENS & SONS, INC., CASSENS ) CORPORATION, GENERAL MOTORS) CORPORATION, and Unknown ) Defendants, ) Honorable ) A. A. Matoesian, Defendants-Appellees. ) Judge, presiding. ___________________________________________________________________________________
Opinion Filed: May 17, 2007 ___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Thomas M. Welch, P.J., and Honorable Richard P. Goldenhersh, J., Concur ___________________________________________________________________________________
Attorney Thomas G. M aag, Wendler Law, P.C., 900 Hillsboro, Suite 10, Edwardsville, IL for 62025 Appellant ___________________________________________________________________________________
Attorneys Karen L. Kendall, 124 SW Adams Street, Suite 600, Peoria, IL 61602 (attorney for for Cottrell, Inc.) Appellees Maureen A. M cGlynn, McGlynn & Luther, 500 North Broadway, Suite 1515, St. Louis, MO 63102 (attorney for Daimlerchrysler Corp.) ___________________________________________________________________________________