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FOURTH DIVISION

Filed: 10/22/98

No. 1-97-2666

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff appeals from an order of the circuit court directing a verdict in favor of bothdefendants as a sanction for the plaintiff's attorney having revealed the substance of the trialtestimony of two witnesses to the plaintiff's expert witness. For the reasons which follow, wereverse and remand this cause for a new trial.

A detailed recitation of the facts giving rise to this litigation can be found in Smithv. City ofChicago, No. 1-93-2875 (1995) (unpublished order under Supreme Court Rule 23),disposing ofthe plaintiff's prior appeal from a summary judgment entered in this case. For purposes of thisappeal, it is sufficient to note that the plaintiff, Melba N. Smith, Individually and as Executor ofthe Estate of Arthur E. Smith (Smith), deceased, filed the instant action against the City ofChicago (City), Fed & Son Construction Company (Fed), and others, seeking damages forthedefendants' alleged negligence in the performance of a road construction project on KostnerAvenue in Chicago. The plaintiff alleged, inter alia, that the manner in which thedefendantsmaintained the roadway adjacent to the excavated portion of Kostner Avenue and their failure toproperly erect barricades caused Smith to drive his vehicle into the excavation, resulting in hisinjury and subsequent death.

On March 12, 1997, in response to a motion filed by Fed, the circuit court entered anorderlimiting the opinion testimony of the plaintiff's expert witness to those opinions contained in hisdiscovery deposition. Thereafter, and in advance of trial, the parties filed a number of pretrialmotions, including motions in limine. However, none of the parties filed a motionto excludewitnesses from the courtroom during trial, nor was any such order ever entered. After juryselection, the trial commenced against the City and Fed, the only remaining defendants.

The first five witnesses called by the plaintiff were: Barbara Meyer, a neighbor of theplaintiff,who observed Smith's car in the excavated area of the roadway; Thomas Kwiatkowski, whoobserved Smith and his vehicle immediately following the accident; Walter Jedynak, whoremoved Smith's car from the excavated area on the date of the occurrence and who had alsoobserved the area on the day before; Dr. Leslie Schaefer, a medical witness, whose testimonywaspresented by means of a video-taped evidence deposition; and Douglas Gary, the City's residentengineer for the road construction project called as an adverse witness (see 735 ILCS 5/2-1102(West 1996)), who observed the scene of the occurrence on the morning before Smith's accidentand who returned to the site shortly after the accident. Upon completion of their testimony, thetrial judge instructed Meyer, Kwiatkowski and Gary not to discuss their testimony "with anyother witness." No such admonition was given to Jedynak.

The plaintiff's expert witness, John Baerwald, a registered engineer, was called to testifyafterGary. Baerwald testified that he had no way of knowing when the roadway in the area of Smith'saccident had been excavated. He stated that it was his understanding that one witness, Jedynak,testified that the area had already been excavated on the evening before the accident. In contrast,Gary testified that on the morning of the occurrence he observed that the site had not yet beenexcavated. The issue appears to be of some significance to the question of whether, at the timeofSmith's accident, the City was on notice that the roadway had been excavated.

When it became apparent that Baerwald was aware of Jedynak's and Gary's trialtestimony, thecourt excused the jury and conducted an examination of the witness. Baerwald acknowledgedthat the plaintiff's attorney informed him that Gary testified at trial consistent with his discoverydeposition and Jedynak testified that he observed that the area had already been excavated on theevening before Smith's accident. Although Baerwald stated that he had not relied upon Jedynak'strial testimony in formulating his opinions, the trial court, nonetheless, sua spontedirected averdict in favor of the defendants as a sanction for the plaintiff's attorney having informedBaerwald of the trial testimony of Jedynak and Gary. Thereafter, the trial court entered an orderwhich provides in its entirety as follows:

"The above captioned case having been assigned to me for trial on June 30,1997, - a juryselected and after three days of testimony:

IT IS HEREBY ORDERED that after the court's, on the record, questioningof theplaintiff's expert, it was told to me that the plaintiffs had told the expert what two priorwitnesses have testified to in open court. The court felt that this was in total violation ofthe rules and the lawyers should be sanctioned for their actions. Therefore, the courtdirected a verdict in favor of both defendants and against the plaintiff, as the court felt thatthe sanction was proper under the circumstances.

THIS ORDER IS FINAL AND APPEALABLE."

The following day, the plaintiff filed her timely notice of appeal.

In urging reversal of the trial court's order, the plaintiff argues that entering any sanctionunderthe circumstances of this case was error and, even if the court had discretion to impose somesanction, directing a verdict in favor of the defendants was an abuse of that discretion. The Cityargues that directing a verdict against the plaintiff was not a clear abuse of discretion for tworeasons: first, the plaintiff's attorney informed a witness of the trial testimony of two priorwitnesses in contravention of the court's instructions; and second, the plaintiff's expert witnessrendered an opinion at trial contrary to his deposition testimony in violation of the pre-trial orderentered on March 12, 1997. In addition to echoing the City's arguments, Fed also contends thatthe directed verdict should be affirmed as an examination of the record reveals that the evidenceintroduced at trial, even when viewed in its light most favorable to the plaintiff, sooverwhelmingly favors Fed that no contrary verdict could ever stand.

Before addressing the propriety of the trial court having directed a verdict in favor of thedefendants as a sanction for the plaintiff's attorney having informed Baerwald of the trialtestimony of Jedynak and Gary, we will dispose of the other arguments made by the defendantsin support of affirmance.

Our examination of the record in this case fails to reveal any indication that the trial courtsanctioned the plaintiff by reason of her expert witness having testified to opinions not containedin his discovery deposition. Further, neither of the defendants requested any such relief. Although we have no quarrel with the general proposition that a trial court's judgment may beaffirmed upon any ground apparent from the record (see Material Service Corporation v.Department of Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983)), we know of no casewherethat proposition has been applied to affirm a sanction. The imposition of a sanction for a party'sviolation of a pre-trial discovery order is a matter committed to the sound discretion of the trialcourt which will not be disturbed on review absent an abuse of that discretion. Kubian v.Labinsky, 178 Ill. App. 3d 191, 196, 533 N.E.2d 22 (1988). In determining the proprietyof anyparticular sanction, a reviewing court must look to the same factors upon which the trial court isto rely in fashioning an appropriate sanction under the unique factual circumstances of any givencase. See Ashford v. Ziemann, 99 Ill. 2d 353, 369-72, 459 N.E.2d 940 (1984). Thedeterminationof an appropriate sanction is circumstance specific. Consequently, the review of such an ordermust necessarily focus upon the particular behavior of the offending party which gave rise to thesanction and the effects that behavior had upon the adverse party. We cannot, therefore, affirmthe imposition of a sanction for any behavior other than that relied upon by the trial court. SeePeople v. Miller, 51 Ill. 2d 76, 78, 281 N.E.2d 292 (1972). Since the trial court didnot sanctionthe plaintiff for eliciting opinions from her expert witness that were not contained in hisdiscovery deposition, we cannot consider that circumstance in reviewing the propriety of thedirected verdict entered in this case.

Fed also contends that, even if the directed verdict against the plaintiff should not havebeenentered as a sanction, the entire record reveals that judgment in its favor is nonethelessappropriate as no contrary verdict could ever stand. We, however, find no merit in thisargument.

"[V]erdicts ought to be directed *** only in those cases in which all of theevidence, whenviewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that nocontrary verdict based on that evidence could ever stand." [Emphasis added.] Pedrick v.Peoria& Eastern R.R. Co, 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). Since the earliestpossible pointin time at which a trial court could possibly examine all of the evidence presentedin support ofany given claim is the close of the plaintiff's case, any directed verdict entered in favor of adefendant prior to the plaintiff having rested is premature. Fair Automotive Repair, Inc. v.Car-XService Systems, Inc., 128 Ill. App. 3d 763, 767, 471 N.E.2d 554 (1984). The record inthis caseclearly establishes that the plaintiff had not rested when the trial court directed a verdict againsther. Consequently, Fed's reliance upon the Pedrick standard in support of the trialcourt's orderin this case is misplaced.

The sole issue remaining is whether the trial court erred in directing a verdict in favor ofthedefendants as a sanction for the plaintiff's attorney having informed Baerwald of the trialtestimony of two prior witnesses.

There is no statute or rule of the supreme court which mandates that witnesses beexcludedfrom the courtroom during the course of a trial or that they refrain from discussing theirtestimony with other witnesses. However, it has long been recognized that trial judges have thediscretion to exclude witnesses in a civil trial. Errissman v. Errissman, 25 Ill. 136,137 (1860). The court's power to enter such an order is derived from its inherent power to afford a fair trial toall parties. The purpose of an order excluding non-party witnesses from the courtroom "is toprevent the shaping of testimony by one witness to match that of another and discouragefabrication." Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374,390, 502 N.E.2d826 (1986). A trial court may also, in appropriate circumstances, order the exclusion of expertwitnesses (see Friedman, 151 Ill. App. 3d at 390), although the reasons for doing soare far lesscompelling than in the case of fact witnesses.

If a trial court possesses the inherent authority to exclude witnesses from a courtroom inaneffort to prevent fabrication, it necessarily follows that the court also possesses the power toinstruct witnesses not to discuss their testimony with other witnesses. Implicit within such aninstruction to a witness is also a prohibition against a party or her attorney from informing asubsequent witness of an admonished witness's trial testimony. See Gatto v.Curtis, 6 Ill. App.3d 714, 736, 286 N.E.2d 541 (1972). It would be pure sophistry to contend that, although awitness has been ordered to refrain from discussing his testimony with any other witness, aparty's attorney would be free to do so.

When a court determines, in the administration of a trial, that it is necessary to prohibitconductwhich is not otherwise proscribed by a statute or rule, it is imperative that the court's order beclear and that all parties concerned have an accurate understanding of its limitations. SeeReidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545, 550, 416 N.E.2d 268(1981). If a trialcourt's orders are unclear, any sanction entered for their perceived violation is an abuse ofdiscretion and subject to reversal on appeal. See Reidelberger, 83 Ill. 2d at 550;People v.Heitland, 253 Ill. App. 3d 836, 843, 625 N.E.2d 1160 (1993).

As noted earlier, no order excluding witnesses from the courtroom was ever requested orentered in this case and, although the trial judge ordered Meyer, Kwiatkowski, and Gary not todiscuss their testimony with any other witnesses, no such order was directed to Jedynak. Whileitmight be argued that the plaintiff's attorney should have understood that informing Baerwald ofthe substance of Gary's testimony violated the court's admonition to that witness, the samecannotbe said of his comments concerning the testimony of Jedynak. Nonetheless, the trial courtdirected a verdict in this case as a sanction for the plaintiff's attorney having impartedinformation to Baerwald concerning the testimony of both Gary and Jedynak. Directing a verdictin this case as a sanction for the behavior of counsel which, in significant part, violated no clearand concise order constituted an abuse of discretion and must be reversed.

Assuming, for the sake of further analysis, that the trial court had clearly ordered bothGaryand Jedynak to refrain from discussing their testimony with other witnesses and in the face ofthat admonition the plaintiff's attorney had revealed the substance of their testimony to Baerwald,we would still be compelled to reverse the directed verdict entered in this case.

Trial courts possess the inherent authority to enter sanctions for a party's failure to obeyvalidorders. Fair Automotive Repair, Inc., 128 Ill. App. 3d at 772. In reviewing thepropriety of anysanction, we give great deference to the broad discretion vested in the trial court. However, thisdiscretion is not absolute. Sanctions, be they for the violation of a statute, rule, or order, must bereasonable in light of the attendant facts and circumstances of the case.

The underlying spirit of our system of civil justice is that controversies should bedeterminedaccording to the substantive rights of the parties. This notion is not only intuitive--it is thearticulated public policy of the State. See 735 ILCS 5/1-106 (West 1996). Dismissal of anaction or the entry of an order of default may be an appropriate sanction for a party's refusal toobey a valid court order. However, such a drastic sanction, being the antithesis of adetermination of a cause on its merits, should be employed only as a last resort after all otherenforcement powers at the court's disposal fail. When, as in this case, sanctions are visited upona party as vicarious punishment for the acts of her counsel, care must be taken in fashioning asanction which both adequately addresses the offending conduct and, to the extent possible,preserves the right of the party to be heard on the merits of her case.

The violation of an order excluding witnesses has often been met with remedial measuressuchas barring the testimony of a witness. See People v. Bridgeforth, 51 Ill. 2d 52, 281N.E.2d 617(1972). Yet, the violation of an exclusion order does not mandate the automatic disqualificationof the witness. People v. Farnsley, 53 Ill. 2d 537, 544, 293 N.E.2d 600 (1973);Skelton v.Chicago Transit Authority, 214 Ill. App. 3d 554, 584, 573 N.E.2d 1315 (1991). Thematter isone committed to the sound discretion of the court. People v. Nelson, 33 Ill. 2d 48,53, 210N.E.2d 212 (1965). We will even go so far as to hold that if the violation of an order excludingwitnesses or one prohibiting a witness from discussing his testimony with a subsequent witnessresults in such prejudice that a party is deprived of his right to a fair trial, a court would be wellwithin its discretion to declare a mistrial. See People v. Redd, 135 Ill. 2d 252, 323,553 N.E.2d316 (1990). Our research, however, has failed to uncover any reported decision where a trialcourt has directed a verdict or entered an order of default as a sanction for the violation of anorder excluding witnesses or for a party's attorney having revealed the substance of a witness'stestimony to a subsequent witness in violation of an order prohibiting such disclosure. While weare not prepared to say that such a drastic measure would never be appropriate even incircumstances where a party's conduct exhibited a calculated intention to embarrass, hinder orobstruct a court in its administration of justice (but see Day v. Schoreck, 31 Ill.App. 3d 851, 852,334 N.E.2d 864 (1975)), we are prepared to say on the strength of the record before us that this isnot such a case.

Accordingly, we reverse the directed verdict entered by the trial court in this case, andremandthis cause to the circuit court for a new trial.

Reversed and remanded.

SOUTH, P.J., and McNAMARA, J., concur.