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FOURTH DIVISION
October 21, 2004

JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Jung Kim, brought this breach of warranty actionagainst defendant, Mercedes-Benz, USA, Inc. (Mercedes-Benz), torevoke acceptance of a 1999 model-year Mercedes-Benz ML 320 (ML320) sport-utility vehicle that he purchased from a dealership onOctober 29, 1998. The circuit court granted defendant's directedverdict motion, from which judgment plaintiff appeals.

Plaintiff purchased the subject ML 320 from Mark Motors, Inc.,a Mercedes-Benz dealership, for an amount totaling $45,327. Defendant's written "Basic Warranty" for the ML 320 providedcoverage for either a 4-year period or 50,000 miles of service, inwhich the dealer would "repair any defective parts in accordancewith the terms of such warranties within the stated limits." Defendant's limited warranty states:

"Mercedes-Benz of North America, Inc. (MBNA) warrants tothe original and each subsequent owner of a new Mercedes-Benz truck that any authorized Mercedes-Benz truck dealerwill make any repairs or replacements necessary, tocorrect defects in material or workmanship. Thiswarranty includes any accessory or equipment thereonmanufactured or supplied by Daimler-Benz A.G., Mercedes-Benz U.S. International, Inc. (MBUSI), Mercedes-BenzServices International, Inc. (MBSI), or MBNA."

Defendant's warranty documents also provide that "[t]he impliedwarranties of merchantability and fitness for a particular purposeare limited to 48 months or 50,000 miles from the date of initialoperation, whichever event shall first occur."

On October 11, 2000, plaintiff filed a three-count complaintin which he alleged that, as a result of the ineffective repairattempts made by defendant and Mark Motors, the ML 320 could not beutilized for personal, family and household use as intended byplaintiff at the time of acquisition. Plaintiff alleged that, afterhe took possession of the vehicle on December 18, 1998, he began toexperience various defects that substantially impaired the use,value and/or safety of the ML 320. Specifically, plaintiff averredthat Mark Motors and/or an authorized Mercedes-Benz service dealerfailed on five attempts to repair a fuel gauge that did not registerthe correct amount of gas in the vehicle's fuel tank. According toplaintiff, these defects and others violated the implied warrantyof merchantability and the express written warranties issued bydefendant for the ML 320, as alleged in counts I and II of thecomplaint. Plaintiff alleged revocation of the acceptance of theML 320 in count III.

On December 22, 2000, plaintiff responded to defendant'sopinion witness interrogatories, in which he stated, "[p]laintiffhas not yet retained the services of an opinion witness, butreserves the right to do so in the future." On January 16, 2001,plaintiff answered defendant's first set of interrogatories, whereinhe did not list himself as a fact or opinion witness.⁽¹⁾ A July 10,2001, letter addressed to defense counsel from plaintiff's attorneystated that "Plaintiff will testify at arbitration and/or trialabout the matters alleged in Plaintiff's complaint and all documentsproduced to Defendant by Plaintiff during the course of discovery."

At the commencement of trial on April 28, 2003, defendant movedin limine to bar plaintiff from calling any fact or opinion witnessnot properly disclosed pursuant to Supreme Court Rule 213 (177 Ill.2d R. 213). Defendant argued that it would be prejudiced severelyif plaintiff were allowed to present undisclosed fact or opinionwitness testimony because defendant did not have an opportunity torespond to the testimony of any witnesses other than those properlydisclosed by plaintiff. The circuit court granted defendant's motionin limine without objection.

Plaintiff testified on direct examination at trial that, priorto purchasing the vehicle, he test-drove it and noticed no problems. Plaintiff bought the ML 320 because, at that time, it was beingadvertised heavily as an excellent vehicle and Mercedes-Benz had thebest reputation as an automobile manufacturer.

Plaintiff testified that Mrs. Kim was the primary driver of theML 320 and that she utilized the vehicle to commute to work, driving100 miles per day. Although plaintiff did not remember the exactdate problems began to occur, he stated that four to five monthsafter he purchased the ML 320, Mrs. Kim informed him that when shefilled up the vehicle's fuel tank, the fuel gauge would not registerthe correct amount of fuel. Plaintiff noticed that the fuel gaugedid not move after it reached the one-quarter gauge mark, eventhough the vehicle was filled completely with fuel. Plaintiff tookthe ML 320 to Mark Motors to fix the problem, but it reoccurredseveral months later. Plaintiff testified that he experienced theproblem five or six times.

Plaintiff also described additional problems regardingdifferent parts of the vehicle that required repair. He statedthat, during the winter, the window would not roll up and that therewas excess noise from the shifter. The window was out of orderthree times, the seat belt malfunctioned and the electric chargerwas not working. Plaintiff stated that either he or his wifebrought the vehicle to Mark Motors for routine maintenance, such asoil changes, and that he bought the highest grade-level fuel.

Previously, plaintiff purchased three new cars and two usedcars from dealerships. Before buying the cars, plaintiff researchedprices to determine a fair price. Plaintiff's counsel theninquired, "[B]ased upon the problems you've experienced with the ML-320, what would you have agreed to pay for this vehicle had youknown the problems?" Defense counsel objected to this line ofquestioning, upon which a sidebar was held outside the presence ofthe jury.

Defense counsel argued that plaintiff "at no time during thecourse of discovery disclosed that [he] would be providing valuationtestimony to this court or to this jury" and that the valuationtestimony amounted to an opinion. Defense counsel reminded thecircuit court that it granted a motion in limine to exclude evidenceof damages not disclosed. Defense counsel also asserted thatplaintiff failed to lay a proper foundation that would allow him totestify "that this vehicle at the time he bought it back in 1998 hada value of X dollars." Defense counsel noted there was no evidenceto show that, based upon the fact plaintiff tried to obtain adiscount when he purchased the vehicle, he could testify that thevehicle was worth less than what he paid for it.

Plaintiff's attorney responded that Illinois authority supportsthat an owner of a product is competent to testify about thediminished value of a vehicle pursuant to the Magnuson-MossWarranty-Federal Trade Commission Improvement Act (15 U.S.C.