Copeland v. Stebco Products Corp.
Case Date: 09/29/2000
Court: 1st District Appellate
Docket No: 1-99-3940 Rel
|
FIRST DIVISION September 29, 2000 No. 1-99-3940
JUSTICE O'MARA FROSSARD delivered the opinion of the court: Plaintiff, Catherine Jo Copeland, brought this action against defendant, Stebco ProductsCorporation (Stebco), for an eye injury she sustained while using a portable luggage carrier. Plaintiff's second amended complaint alleged causes of action for negligence and product liabilityagainst Stebco. Just before trial, the plaintiff voluntarily dismissed her negligence claim andconsolidated the remaining two counts of her complaint into a single product liability count. Stebcodenied the allegations and asserted the affirmative defense of assumption of the risk. Stebco alsofiled a third-party complaint against Jiun Long Metal & Industrial Co. (Jiun Long). Jiun Long filedan answer to the third-party complaint but did not appear or participate in the trial. The jury foundfor the plaintiff and awarded the plaintiff $3,023,000. On appeal, defendant contends that: (1) plaintiff violated Supreme Court Rule 213 (166 Ill. 2d R. 213) in failing to disclose all of its expert's previously performed tests and measurements onthe alleged defective product and a new trial is warranted; (2) plaintiff's counsel made improper andprejudicial comments during closing argument; (3) the trial court erred in directing a verdict for theplaintiff as to the affirmative defense of assumption of risk; (4) the cumulative errors warrant a newtrial; and (5) defendant is entitled to a judgment notwithstanding the verdict or, in the alternative,a new trial on its third-party complaint seeking contribution against Jiun Long. We reverse andremand for a new trial. TRIAL TESTIMONY At trial, Catherine Copeland demonstrated for the jury how she placed her suitcase on the luggage carrier and put her briefcase on top. She hooked the bungee cord on the bottomhorizontal tube of the carrier and was pulling up on the cord, trying to hook it on the middle baron the carrier. As she was leaning over the carrier and pulling the bungee cord upwards, theportion of the bungee cord she had hooked on the bottom of the carrier came off and hit her inher eye. At the time of her injury she was working on her doctorate in education and had abachelor's degree in elementary education, a master's degree in curriculum instruction, and areading specialist degree. She taught children ranging from kindergarten to sixth grade. Shereturned to the classroom but had difficulty, and after trying for six years, she left teaching. As aresult of the injury she wears many different types of glasses for reading, driving, watchingtelevision and for double vision. Also, her pupil is enlarged, her eyelid droops and her iris is adifferent color. Edward Stein, president of Stebco, testified that the luggage carriers were purchased byStebco from Jiun Long. No instructions or warnings are provided with the luggage carriers, andStebco does not make any recommendations regarding safe or unsafe ways to use the carrier. Stein stated that the manner in which Catherine Copeland hooked the bungee cord was properand safe. He reviewed the quality and reputation of Jiun Long products and selected the luggagecarrier as one of the products from Jiun Long that Stebco put on the market. Stebco's expert died before his evidence deposition could be taken, and as a result, Stebcoproduced no expert witness testimony at trial. Dr. Holecamp, plaintiff's treating physician, described her injuries as a severe cornealabrasion and contusion injury to the cornea accompanied by severe hemorrhage in the anteriorportion of the eye called a hyphema. Plaintiff has had limited success with several surgicalprocedures and she experiences a permanent loss of depth perception and field of vision, and thevision in her injured eye corrected is only 20/200. Dennis Brickman, a mechanical engineer, was plaintiff's expert witness. At trialBrickman testified that the luggage carrier is unreasonably dangerous because the bungee cordcan achieve a release geometry, which can contact or strike the user in the face. He testified thathe had performed tests or experiments to demonstrate the release geometry where the bungeecord hook could release from the bottom of the cart and have a rebound path up toward the user. In August 1995, Brickman made a videotape after plaintiff demonstrated how she usedthe luggage cart at the time that she was injured. Despite not recalling all the details of theaccident, plaintiff indicated that she was pulling the bungee cord upwards when the hook on the bottom came off and struck her in the eye. The purpose of Brickman's video was to demonstratethe various ways that release or escape geometry could occur involving the bottom hook. Theescape geometry, in turn, helped Brickman explain how the hook could separate from the bottomportion of the luggage cart, project into the air, and strike a user. The video contained eightdemonstrations of escape geometry illustrating the different ways the bungee cord hook couldseparate from the bottom rung of the cart. Brickman gave his discovery deposition in May 1998, during which defense counselquestioned Brickman about his videotaped demonstrations. At trial on cross-examinationBrickman testified as to work that he did after his deposition, including additional tests andmeasurements that were not disclosed to the defendant before Brickman's trial testimony. Defense counsel objected to Brickman's answers to his cross-examination because the answersrevealed that Brickman had undertaken additional testing and measurements as well as produceda videotape since his deposition, none of which had been disclosed to defense counsel. Thedefense made a motion for mistrial. Counsel for plaintiff explained that Brickman had performed additional tests andmeasurements and made an additional videotape after Stebco's expert's deposition. Theadditional testing and measurements by Brickman were undertaken because Stebco's expertcriticized Brickman on the issue of whether Brickman had successfully achieved a release of thebungee cord while keeping the cord within the vertical confines of the handle. However, sinceStebco's expert died before giving an evidence deposition, counsel for plaintiff did not questionBrickman during direct examination regarding the additional demonstration, measurements, testsand videotape. The court ruled that the testimony regarding subsequent testing would be stricken withrespect to pulling the cord up. The court refused to strike the testimony regarding the new anglemeasurements, but barred any use of the undisclosed videotape. The court concluded that theexpert could testify that escape geometry could be achieved by pulling the cord through thehandle, but not that he did further tests. The court stated that Brickman would be prevented fromstating any other opinions based upon the undisclosed additional testing and from using the tape. The defense motion for mistrial was denied. At the close of the evidence, the trial court directed a verdict in favor of the plaintiff andagainst the defendant on the affirmative defense of assumption of risk. The trial court also ruledthat defendant had no duty to warn. The jury was instructed solely on the theory of strict liabilityfor the defective design of the luggage cart. During closing arguments, plaintiff's attorneyreferred to the Rachel Barton case. The trial court sustained defendant's objection to counsel'sreference to the Rachel Barton case. However, defendant moved for a mistrial which was denied.The jury returned a verdict of $3,023,000 in favor of plaintiff and apportioned fault on the third-party claim of contribution with 60% to Stebco and 40% to Jiun Long. I. Did Plaintiff's Failure to Disclose Violate Supreme Court Rule 213? Defendant argues that plaintiff's violation of Rule 213 denied defendant a fair trial and thetrial court should have declared a mistrial after Brickman testified to the jury about undisclosedtests on the luggage carrier. Plaintiff claims there was no Rule 213 violation because her expert'sopinion did not change following the undisclosed tests and measurements. Admission ofevidence pursuant to Rule 213 is within the trial court's discretion and the court's ruling will notbe reversed absent an abuse of discretion. Department of Transportation v. Crull, 294 Ill. App.3d 531, 537 (1998). We begin with the basic premise that the goal of the discovery process in Illinois is fulldisclosure. Buehler v. Whalen, 70 Ill. 2d 51, 67 (1977). Supreme court rules on discovery aremandatory rules of procedure that courts and counsel must follow. Warrender v. Millsop, 304 Ill.App. 3d 260, 265 (1999). "Discovery is not a tactical game; rather, it is intended to be amechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement ora fair trial." Boland v. Kawasaki Motors Manufacturing Corp., USA, 309 Ill. App. 3d 645, 651(2000). More specifically, the purpose of the discovery rules requiring timely disclosure ofexpert witnesses and their opinions is to avoid surprise and to discourage strategicgamesmanship. Warrender, 304 Ill. App. 3d at 269. Supreme Court Rule 213 requires that, upon written interrogatory, a party must disclosethe subject matter, conclusions, opinions, bases for the opinions, qualifications, and all reports ofa witness who will offer any opinion testimony and seasonably supplement any previous answerswhen additional information becomes known. 166 Ill. 2d R. 213; McGrew v. Pearlman, 304 Ill.App. 3d 697, 705 (1999). Subsections (g) and (i) provide as follows: "(g) Opinion Witness. An opinion witness is a person whowill offer any opinion testimony. Upon written interrogatory, theparty must state: (i) the subject matter on which the opinion witnessis expected to testify; (ii) the conclusions and opinions of the opinion witness and the bases therefor; and (iii) the qualifications of the opinion witness; and provide all reports of the opinion witness. * * * (i) Duty to Supplement. A party has a duty to seasonablysupplement or amend any prior answer or response whenever newor additional information subsequently becomes known to thatparty." 166 Ill. 2d Rs. 213(g),(i). The committee comments to Rule 213 state that one of the purposes of Rule 213 is toavoid surprise: "It is the Committee's belief that in order to avoid surprise, the subject matter ofall opinions must be disclosed pursuant to this rule and Supreme Court Rule 218, and that nonew or additional opinions will be allowed unless the interests of justice require otherwise." 166Ill. 2d R. 213(g), Committee Comments. The express language of Rule 213 additionally imposesan obligation on a party to supplement discovery whenever new or additional informationbecomes known to that party. 166 Ill. 2d R. 213(i). Therefore, Rule 213 is mandatory and strictcompliance is required. Crull, 294 Ill. App. 3d at 537; Adami v. Belmonte, 302 Ill. App. 3d 17(1998). Litigants have an obligation, under Supreme Court Rule 213(i), to disclose the testimonyof their experts, even when that testimony responds to the theories of opposing experts. 166 Ill.2d R. 213(i); Boland, 309 Ill. App. 3d at 652. With these considerations in mind, we determine whether plaintiff's failure to disclose thenew tests her expert witness conducted after his deposition, the conclusions from those tests andthe new measurements violated Rule 213. Defense counsel's theory for trial based on theinformation disclosed by plaintiff prior to trial, including Brickman's deposition was thatBrickman could not verify that the accident occurred in the manner described by plaintiff. It wascritical to the defense of this case that Brickman had not determined at what angle the cord had tobe pulled to achieve release of the hook from the bottom of the cart and that Brickman had notachieved escape geometry when the cord was pulled in a manner consistent with the testimony ofthe plaintiff. Brickman gave his deposition in May 1998 during which defense counselspecifically questioned him about whether he could determine the angle of the bungee cord inorder to achieve escape geometry. Brickman answered: "I don't recall specifically undertakingthat assignment." Further referencing the manner in which plaintiff described her actions at the time of theaccident, defense counsel during the deposition then asked Brickman if he had demonstrated themovement of the cord or the pull on the cord while the cord was within the confines of the twovertical members that support the handles. Brickman again stated that he had not performed sucha demonstration. Defense counsel next asked Brickman whether he achieved escape geometry bypulling the cord straight up when it was attached to the lower center portion of the bar. Brickmanreplied that he did not. He also testified that he had no plans to do any further work and that hehad not recommended that any further work be done. Based on Brickman's deposition testimony,defense counsel prepared for trial believing that Brickman had not achieved escape geometry bypulling the bungee cord in the manner consistent with the plaintiff's testimony. Therefore,defense counsel's theory for trial was that Brickman could not verify that the accident occurred inthe way that plaintiff said it did. At trial, however, during cross-examination Brickman changed the facts that defensecounsel relied upon for his theory of defense. He disclosed for the first time, a test ordemonstration he performed following his deposition, that verified the accident could occur inthe way described by the plaintiff. The following exchanged occurred between Brickman anddefense counsel: "DEFENSE COUNSEL: Q. Am I correct in order todemonstrate that with this tilted up, you have to pull it away fromwhat would be vertical? BRICKMAN: A. To some degree, not to the extent youwere just demonstrating. DEFENSE COUNSEL: Q. Well, if you started in themiddle, if you started with it [the hook] more or less in the middlelike Ms. Copeland testified to, am I correct that if you stayedwithin the boundaries of this handle in the back, if you stayedwithin those boundaries, started it more or less in the middle andhad it tilted back, that you would never get release geometry? BRICKMAN: A. That is absolutely incorrect. DEFENSE COUNSEL: Q. How would you get it? BRICKMAN: A. You can get the same exact releasegeometry around the corner while the hook which is in our hand isstill within the vertical uprights of the handle. DEFENSE COUNSEL: Q. By placing and starting it in themiddle? BRICKMAN: A. Yes. DEFENSE COUNSEL: Q. What would be the force pullingit to the side? BRICKMAN: A. It would be a hand. DEFENSE COUNSEL: Q. A hand? BRICKMAN: A. Yes, like your right hand, just like he isdemonstrating in the video there. DEFENSE COUNSEL: Q. Well, I can get it to do it, I canget it to come off, but I can't,...can you come down here anddemonstrate? BRICKMAN: A. No, but I have done the demonstration. * * * DEFENSE COUNSEL: Q. I think I might have passed itby. This is the first series 1,2,3. My point is that each time thisangle here is off just about the corner just about here, right? BRICKMAN: A. Approximately. DEFENSE COUNSEL: Q. And that's when it is placedright at the corner, and you are saying that you could develop oneso that you could pull it here, it would come off even stayingwithin the bounds of this hand? BRICKMAN: A. Yes. DEFENSE COUNSEL: Q. The angles in terms of thismovement off to the side were never measured or indicated or arethey anywhere in your records? BRICKMAN: A. I measured them off the videotape. DEFENSE COUNSEL: Q. You actually havemeasurements of them? BRICKMAN: A. Yes. DEFENSE COUNSEL: Q. The last series? BRICKMAN: A. Yes. DEFENSE COUNSEL: Q. Off of the perpendiculars? BRICKMAN: A. Yes. DEFENSE COUNSEL: Q. What are those angles? BRICKMAN: A. It's approximately between 2 and 8degrees. DEFENSE COUNSEL: Q. 2 and 8 degrees away from? BRICKMAN: A. Vertical. * * * DEFENSE COUNSEL: Q. I will just revisit one point withyou. We were talking about it before. I think I understand youranswer, but attaching this cord on the LC2 to the middle of the bar,am I correct that you have told us that or am I correct that younever actually achieved escape velocity or escape geometry pullingstraight up within the boundaries of the handle of the LC2? BRICKMAN: A. I have achieved escape geometry in themethod that you described." As the result of Brickman testifying to the fact that he had performed additionalmeasurements and achieved escape geometry which was in direct contradiction to the previouslysworn testimony given in his deposition, defense counsel impeached him with his previousdeposition testimony as follows: "DEFENSE COUNSEL: Q. Let me refer you to thedeposition then, Mr. Brickman. This is on page 63 if you want torefer to it...this was the question and answer. Am I correct that youwere not - you never achieved any escape geometry by simplypulling the cord straight up when it is pulling straight up parallelwith the lines of the cart over the luggage to the handle on top? There was an objection by counsel, and then your answerwas: With respect to this cart, I believe that would be correct. Is that your answer? BRICKMAN: A. That was my answer at that time. I havedone work since that time since my deposition." The defendant objected to the testimony regarding these undisclosed measurements andtests and requested a mistrial which was denied. Plaintiff does not dispute the fact that Brickmancontinued his work on the case after his deposition and conducted new tests. Plaintiff also doesnot dispute that these new tests and the conclusions Brickman reached based on these tests werenever disclosed to defense counsel. Plaintiff does not contest the fact that since his depositionBrickman measured angles in terms of the vertical movement of the bungee cord as it was pulledupwards. Plaintiff does not contest that Brickman made new measurements off the videotape. Plaintiff does not contest that the measurements and the new videotape were never disclosed todefense counsel. Plaintiff contends, however, that Brickman never changed his opinion after thedeposition and that his undisclosed tests and measurements confirmed his previously disclosedopinions about the unsafe condition of the luggage carrier. According to plaintiff, duringBrickman's deposition and at trial, Brickman consistently stated that the luggage cart in this casewas unreasonably dangerous because of the open-ended hook that could be attached to thebottom bar. Plaintiff claims that because her expert's opinion about the design defect in theluggage cart did not change following the undisclosed tests and measurements, there was noviolation of Rule 213. Plaintiff 's argument misinterprets the strict disclosure requirements of Rule 213. A partymust disclose not only the specific opinion of his expert but the bases of that opinion. Crull, 294Ill. App. 3d at 538-39. Plaintiff further argues that the additional tests and measurements doneby Brickman after the deposition were in response to the criticism Brickman received fromdefendant's expert witness. Defendant's expert witness criticized Brickman on the issue ofwhether Brickman had successfully achieved a release of the bungee cord while keeping the cordwithin the vertical confines of the handle. Plaintiff argues that in anticipation of defendant'sexpert testimony at trial, Brickman did additional testing to see whether he could achieve escapegeometry in that manner. He made a videotape of his efforts and also made additionalmeasurements. However, the death of defendant's expert witness made the "rebuttal" testimonyby Brickman unnecessary. Plaintiff argues that because Brickman's additional tests andmeasurements were only relevant to rebut defendant's expert, once defendant decided not to callan expert witness, she was not required to disclose this new evidence. The court in Boland rejected a similar argument. The court held that litigants have anaffirmative obligation under Rule 213 to disclose testimony that responds to theories of opposingexperts. Boland, 309 Ill. App. 3d at 652. While the appellate court in Boland determined thatthe trial court had not abused its discretion in allowing into evidence previously undisclosedopinions, the court reached that conclusion based on the facts that both parties engaged ingamesmanship, sought to obtain unfair tactical advantage, and violated Rule 213. The courtfound that the trial court's remedy was appropriate for the circumstances of that case. Boland,309 Ill. App. 3d at 647. However, consistent with the mandatory disclosure requirements of Rule213, Boland makes it clear that, even if a party believes that some of the bases of his expert'sopinion are only relevant to rebut an opposing expert's opinion, the party still must disclose thesebases before trial. Boland, 309 Ill. App. 3d at 652. Plaintiff further points out that, although she never supplemented the interrogatories, shenever sought admission of the new information either. She argues that the information came outdue to the cross-examination by defense counsel. Plaintiff fails to cite to any authority to supportthe proposition that her failure to supplement the interrogatories with the new tests andinformation is excused, because the information was elicited during cross-examination. Theerror here was caused by the plaintiff's failure to disclose her expert's post-deposition tests andmeasurements, not by the questions posed by defense counsel. Defense counsel based his cross-examination on information previously disclosed. The duty to supplement any new or additionalopinion or bases that subsequently become known to a party is mandatory regardless of whetheropposing counsel intends to cross-examine on the new information. Seef v. Ingalls MemorialHospital, 311 Ill. App. 3d 7, 21-22 (1999). Defense counsel prepared his case, prepared cross-examination, conducted cross-examination and presented a theory of defense relying on thedisclosures made by plaintiff. In doing so he specifically relied on the previous sworn testimonyof plaintiff's expert, including the fact that plaintiff's expert had not been able to achieve escapegeometry by pulling the bungee cord in a manner consistent with plaintiff's testimony andtherefore could not verify that the accident occurred in the way that plaintiff described. Plaintiff argues that Conners v. Poticha, 293 Ill. App. 3d 944 (1997), supports hercontention that she did not violate Rule 213. We find Conners distinguishable. In Conners, thedefendant's expert witness, when questioned on cross-examination, offered additional reasonsand examples, not previously disclosed, to explain his theory on causation. Applying formerRule 220 (134 Ill. 2d R. 220), the appellate court determined that the record indicated that thedefendant's expert's opinions rendered in pretrial interrogatories and depositions were consistentwith his opinions offered at trial. Conners, 293 Ill. App. 3d at 951. The court pointed out thatthe expert at trial expressed his theories in more "precise terms," and his testimony represented"an elaboration or refinement" of the expert's well-established theory on causation. Conners, 293Ill. App. 3d at 950. The court also found that the expert's examples and reasons not previouslydisclosed were within the "fair scope" of facts known and opinions disclosed before trial. Conners, 293 Ill. App. 3d at 951. Here, unlike Conners, the undisclosed bases for Brickman's opinion at trial concerningthe escape geometry were not within the scope of the original bases given during the deposition. In fact, according to Brickman's deposition he had not achieved escape geometry by pulling thebungee cord in a manner similar to that described by plaintiff, but by trial the exact opposite wastrue. As the result of additional tests after his deposition, he was able to achieve escape geometryconsistent with the manner described by plaintiff. Brickman reached a conclusion based upontests, measurements and demonstrations conducted after his deposition and never disclosed todefendant before trial. While in Conners the expert witness elaborated on opinions that werealready disclosed during discovery when questioned on cross-examination, in this case,Brickman did more than elaborate on previous opinions. Unlike Conners where the expert'spretrial deposition was consistent with his trial testimony, here Brickman's trial testimonycontradicted his deposition testimony. Based on information disclosed during the discoveryprocess, defense counsel was not expecting Brickman to testify that he was able to achieveescape geometry by "pulling straight up." The defendant's theory was that the accident did nothappen in the manner described by plaintiff. Significant to that theory was the testimony of theplaintiff's own expert which defense counsel relied upon that he had not actually ever achievedrelease of the hook under some of the conditions described by the plaintiff and that such a releasewould require an element such as a "rollout" of which there was no evidence in this case. Defense counsel cross-examined Brickman consistent with this theory of defense basedon the information disclosed by plaintiff and based on Brickman's sworn deposition testimony. That information and that testimony indicated that Brickman had not actually achieved escape geometry by pulling straight up. To have the expert witness testify that he affirmatively achievedescape geometry in a manner consistent with the plaintiff's testimony was not an elaboration ofhis previous testimony but rather a critical change in testimony which corroborated the plaintiff'stestimony. Plaintiff's failure to disclose the subsequent tests, measurements, and conclusions ofits expert witness was a clear violation of the disclosure requirements of Rule 213. Wefind the case of Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999), instructive. In thatcase, the appellate court reversed a jury verdict in favor of the defendant physician in a medicalmalpractice action and ordered a new trial due to the effect of the erroneous admission of theundisclosed opinions of the defendant's expert. Seef, 311 Ill. App. 3d at 24. The appellate courtquoted, with approval, the language contained in Department of Transportation v. Crull, that"'Rule 213 establishes more exacting standards regarding disclosure than did Supreme CourtRule 220, * * * which formerly governed expert witnesses. * * * Indeed, we believe one of thereasons for new Rule 213 was the need to require stricter adherence to disclosure requirements.'" Seef, 311 Ill. App. 3d at 22, quoting Crull, 294 Ill. App. 3d at 538-39. We note that in this case the trial court acknowledged that the plaintiff violated therequirements of Rule 213 in failing to disclose the expert's additional tests and his conclusions. The trial court stated: "A party has a duty to reasonably supplement or amend any prioranswer or response whenever new or additional informationsubsequently becomes known to that party. It seems to me that thisfalls under that paragraph. * * * This doesn't say except when it isgoing to be by legitimate rebuttal response. * * * If he just didadditional testing and he didn't come up with any new opinions oranything like that, then it wouldn't make any difference, but herehe has got changes. * * * Technically, you haven't complied withthe first paragraph of [Rule] 213." The trial court, however, denied defendant's motion for a mistrial and instead struck the portionof Brickman's testimony relating to the new testing but not to the measurements. The courtfurther concluded that the expert could give an answer that escape geometry could be achievedby pulling the cord through the handle, but not that he did further tests. For the reasonspreviously discussed, we conclude that plaintiff violated Rule 213 by failing to disclose the newtests, measurements and conclusions. We next address whether the trial court's ruling was theappropriate remedy for the Rule 213 violations. II. Did Striking Portions of Expert's Testimony Remedy the Rule 213 Violation? Whether to declare a mistrial rests within the sound discretion of the trial judge and willnot be reversed on appeal unless that decision is a clear abuse of discretion. Van Hattem v. K mart Corp., 308 Ill. App. 3d 121, 129 (1999). The standard we use to determine if a party'sdiscovery violation warrants a mistrial is whether the violation is of such character andmagnitude as to deprive a party of a fair trial and the party seeking the mistrial demonstratesactual prejudice as a result. Bianchi v Mikhail, 266 Ill. App. 3d 767, 777 (1994). This court haslisted the following factors as relevant to an assessment of prejudice: (1) the strength of theundisclosed evidence; (2) the likelihood that prior notice could have helped the defense discreditthe evidence; (3) the feasibility of a continuance; and (4) the willfulness of the party in failing todisclose. Sobczak v. Flaska, 302 Ill. App. 3d 916, 926 (1998). We find that plaintiff's failure to disclose Brickman's additional measurements, tests andconclusions as to the release geometry substantially prejudiced defendant and denied defendant afair trial. A critical issue in this case was whether release geometry could occur consistent withplaintiff's testimony. In direct contradiction to his deposition testimony, Brickman's trialtestimony concluded that the bungee cord hook could become detached from the bottom rung ofthe cart while a person pulled the bungee cord "straight up within the boundaries of the handle"and that Brickman had successfully achieved release geometry in that manner. Plaintiff testifiedthat as she pulled the bungee cord upwards the portion of the cord hooked on the bottom cameoff and hit her in the eye. Therefore, the undisclosed evidence substantially strengthenedplaintiff''s case. It not only fortified Brickman's opinion about the defect of the luggage cart butcorroborated plaintiff's testimony about how the accident occurred. Plaintiff's failure to disclosethe additional tests and result of these tests conducted by her expert undermined the cross-examination of defendant, which was based on the previous disclosed opinion, tests andmeasurements of plaintiff's expert. Defendant prepared his case, chose a theory of defense andconducted his cross-examination of Brickman relying on the belief that Brickman had notsuccessfully achieved release geometry in the manner described by plaintiff as the result ofBrickman's previously sworn deposition testimony. Defendant did not receive notice of the fact that Brickman had achieved release geometryin the manner consistent with plaintiff's testimony until cross-examining plaintiff's expert duringtrial. As a result, he had no opportunity to challenge the viability of Brickman's new conclusionsor to cross-examine them in a meaningful adversarial manner. Brickman's trial testimony was indirect contradiction to his earlier deposition testimony in a critical area. It is clear that suchtestimony came as a complete surprise to the defense. This surprise testimony unfairlyundermined the defense strategy and undercut the cross-examination. The defense strategy wasto persuade the jury that the accident did not happen in the manner theorized by the plaintiff. Critical to that defense strategy was the testimony of plaintiff's own expert that he had notactually ever achieved release of the hook under some of the conditions described by plaintiff. The plaintiff undermined defendant's trial strategy regarding cross-examination of Brickman anddiscredited defendant's theory of the case when Brickman testified he had achieved escapegeometry in the manner consistent with plaintiff's testimony. Moreover, because defendant was unprepared for the surprise testimony defendant wasdenied a fair opportunity to cross-examine Brickman on his new tests and measurements. Prior notice would have at least given the defendant an opportunity to discredit Brickman's newtests and measurements. The defense was deprived of any opportunity to review or analyze thetests and measurements before they were revealed for the first time as the result of cross-examination. This is precisely the outcome that Rule 213 seeks to avoid. Rule 213 is designedto give those involved in the trial process a degree of certainty and predictability that furthers theadministration of justice and eliminates trial by "ambush." Firstar Bank v. Peirce, 306 Ill. App.3d 525 (1999). In Bianchi v. Mikhail, 266 Ill. App. 3d at 770, defense counsel cross-examined theplaintiff's expert by use of a manual that had not been disclosed. Plaintiff's counsel failed toobject but did move for a mistrial the next day. The trail court denied the motion as untimely. The appellate court found the denial of the mistrial to be an abuse of discretion. The court foundthat a contemporaneous objection would not have been sufficient to cure the prejudice, even ifone had been made. Moreover, a recess would have been an insufficient opportunity for theplaintiff to review a document that consisted of several hundred pages. Bianchi, 266 Ill. App 3dat 776. Here a recess would have been an insufficient opportunity for defendant to review oranalyze the new tests and measurements. In this case the trial judge's efforts to remedy the violation of Rule 213, by striking theportion of the testimony regarding the new tests, did not eliminate the unfair prejudice thatresulted. Moreover, the court allowed testimony that escape geometry could be achieved bypulling the cord through the handle, which corroborated the plaintiff's testimony. The failure todisclose Brickman's new test, measurements, findings and conclusions gave plaintiff an unfairtactical advantage and allowed for the type of ambush at trial that Rule 213 is intended toprevent. Once Brickman testified about his undisclosed tests, measurements, findings andconclusions which corroborated plaintiff's testimony, defendant could no longer receive a fairtrial. Defendant was deprived of the fundamental right to prepare and defend this case. Underthe totality of circumstances the trial court's failure to declare a mistrial was a clear abuse ofdiscretion. Accordingly, plaintiff's Rule 213 violation requires us to reverse the jury verdict andremand for a new trial. III. Was Reference to the Rachel Barton Case Error? Defendant next argues that references by plaintiff's counsel to the Rachel Barton caseduring voir dire and closing argument substantially prejudiced defendant. Although attorneys aregenerally permitted wide latitude in closing argument, this latitude is not without qualifications. Lauman v. Vandalia Bus Lines, Inc., 288 Ill. App. 3d 1063, 1071 (1997). A judgment will bereversed only when the challenged remarks prevent a party from receiving a fair trial. Decker v.Domino's Pizza, Inc., 268 Ill. App. 3d 521 (1994). In determining whether an improper closingargument has denied a party a fair trial, we are mindful that the reviewing court gives"considerable deference to the trial court as it is in a superior position to assess the accuracy andeffect of the counsel's statements." Decker, 268 Ill. App. 3d at 522. We note the $29.6 million verdict in the Rachel Barton case was returned on March 1,1999 and trial in this case began on April 28, 1999. Plaintiff's counsel with no objection fromdefense, questioned prospective jurors as to whether they were prejudiced as to either party bythe media coverage of the Rachel Barton case. All prospective jurors answered that they werenot biased, prejudiced or predisposed to either party. During voir dire plaintiff's counsel referredto the Rachel Barton case or the violinist case, six times; referred to the $30 million verdict inthat case twice; and referred to the leg injury in that case once. In light of the close proximity ofthe trial in this case to the verdict in the Rachel Barton case, together with the extensive mediacoverage of the Rachel Barton case, questions to prospective jurors regarding possible prejudiceas the result of the Rachel Barton case were appropriate. However, plaintiff's reference to theRachel Barton case in closing argument is more problematic. The issue is whether the trial court abused its discretion in denying defendant's request fora mistrial or new trial after finding that sustaining defendant's objections to plaintiff's argumentcured any prejudice to defendant. Comments on the evidence during closing argument are properonly if proven by direct evidence or if based on a reasonable inference from the facts. Elliott v.Koch, 200 Ill. App. 3d 1, 19 (1990). Here, despite no evidence introduced during trial aboutRachel Barton's case, plaintiff's counsel referred to the case in closing arguments as follows: "PLAINTIFF'S COUNSEL: Is that a substantial amount ofmoney? It absolutely is a substantial amount of money. And underthe circumstances of the injury, I don't think that it will take a lot ofjustification for you to find that to be an appropriate amount ofmoney. As recently as two or three months ago this communityspoke about what a violinist - DEFENSE COUNSEL: Objection, your Honor. THE COURT: All right. I'll sustain objection. DEFENSE COUNSEL: Thank you. PLAINTIFF'S COUNSEL: I'll tell you one thing, ladies andgentlemen. The musician who plays the violin at least can get upevery morning and still go play the violin. DEFENSE COUNSEL: Objection, your Honor. We're stilltalking about a totally different case, a totally different situation. THE COURT: I'll sustain the objection. PLAINTIFF'S COUNSEL: I'll change the analogy to aflutist who can still get up every morning without a leg and go dowhat she loves to do, and that's play the flute. [sic] An elementary reading teacher who teaches small childrenevery day and has great demands on her to read, to write, to keeptrack of the demands that go on in a classroom of second and thirdand fourth graders running around all over cannot continue herloved profession any more than the flutist could if she lost her armor her hand or her fingers." As the record reflects, after the trial court sustained two objections during this portion of theclosing argument, counsel persisted in comparisons not based on the evidence. Such remarks areimproper as they are based on neither evidence nor reasonable inference from the evidence. Therepetition of the argument after the trial court repeatedly sustained objections served toundermine the fairness of the trial process. Kilakowski v. Voris, 94 Ill. App. 3d 404 (1981). Such comment should not be repeated on retrial. The purpose of argument is to draw reasonableinferences from the evidence and assist the jury in fairly arriving at a verdict based on the lawand the evidence. It is error for counsel to appeal to the passions of the jury. Hansel v. ChicagoTransit Authority, 132 Ill. App. 2d, 402 (1971). Counsel must confine closing arguments tomatters that are in evidence and to reasonable inferences drawn from the evidence. The improperappeal to the passions of the jury through repeated reference directly or indirectly to the RachelBarton case, even after objections were sustained, together with plaintiff's failure to disclose thenew tests, measurements, findings and conclusions of plaintiff's expert witness was prejudicialand denied defendant a fair trial. IV. Defendant's Remaining Issues Defendant's last two issues on appeal challenge: (1) the trial court's decision to grant adirected verdict on defendant's affirmative defense of assumption of risk; and (2) the jury verdictin the third-party action. These issues will ultimately be resolved based upon the factsestablished by the evidence upon retrial. CONCLUSION For the reasons stated above, the judgment of the circuit court is reversed and remandedfor a new trial consistent with this opinion. Reversed and remanded. TULLY and GALLAGHER, JJ., concur. |
||||