The Berry v. American Standard case is tough to read. Howard Berry was diagnosed with terminal mesothelioma in 2003. In 2004 he filed suit against 47 different defendants, alleging that he was exposed to asbestos at their jobsites. Because of Berry’s failing health, his attorney sought to preserve his testimony by taking Berry’s evidence deposition[where a person’s testimony is recorded for use at trial at a later date]. The defendants all objected, insisting that they were entitled to get the Berry’s discovery deposition prior to any evidence deposition. A series of unfortunate delays occurred and the discovery deposition wasn’t completed for 5 months. At that point, Berry was in very poor health and died shortly thereafter. His evidence deposition was never completed. At that time, Supreme Court Rule 212 prohibited the use of a party’s discovery deposition as evidence at trial. The defendants moved for summary judgment, which was granted. The Appellate Court upheld the decision of the trial court. Justice Chapman, a member of the Fifth District Appellate Court filed a concurring opinion, where he frankly acknowledged that the legal system had failed Howard Berry.
Recently, Illinois Supeme Court Rule 212 was amended, and the Berry case was a significant factor leading to the amendment. As of January 1, 2011, a trial judge has discretion to permit the use of any discovery deposition[with the exception of a controlled expert]as evidence at trial, against any party who was at the deposition or given notice of the deposition, if: 1) the deponent is unable to testify at trial due to death or illness and 2) the deponent’s deposition has not been taken. Additionally, amended Supreme Rule 212 requires the Court to find that permitting the use of the discovery deposition as evidence will do substantial justice between the parties. Unfortunately, this amendment comes far too late for Mr. Berry, but will preclude any similar injustice in the future.

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