This is good news! Illinois Rule 212 has been changed to allow use of a party’s discovery deposition as evidence at trial if the party is “unable to attend due to death or infirmity” and the court finds it will do substantial justice.
I had a situation just like this come up this year. An insurance company had filed a dec action against my client, its insureds and others. I was defending on behalf of my client. We were ready for trial, and one of the insureds was diagnosed with cancer. The insurance company wouldn’t dismiss her as a party and wouldn’t agree to use her discovery deposition in lieu of testimony at trial. The old Rule 212 prevented me from being able to force them to do that. We ended up delaying the trial for a few months until she was healthy enough to give an evidence deposition – and I question whether she was even healthy enough to do that.
We won the trial, but several months of delay and the unfortunate situation of having to take an evidence deposition of a cancer patient in between chemotherapy treatments could have been avoided if this rule change had been adopted earlier.
(Howard Zimmerle is a lawyer in the Quad City area. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)