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SIXTH DIVISION
November 21, 2003

No. 1-01-4056

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiff Dennis Thomas sued defendant Johnson Controls, Inc., alleging that he sufferedinjuries when he slipped and fell on oil that had accumulated on the floor of defendant's premises. Following a trial, the jury returned a general verdict in favor of plaintiff and against defendant for$343,810.09. On appeal, defendant contends that the following circumstances amounted tocumulative error, thereby denying it a fair trial: (1) the trial court erred in refusing to submit to thejury any of the eight special interrogatories it proposed; (2) the trial court erred in failing to followa discovery sanction entered by a coordinate judge; (3) the trial court erred in barring defendant fromintroducing medical evidence that refuted the causal nexus claimed by plaintiff; (4) the trial courterred in prohibiting defendant from introducing evidence concerning its safety programs andindependent inspections of its facilities; and (5) during closing arguments, plaintiff's counsel madeunfounded accusations against defendant and improperly referred to defendant's alleged wealth andsize. Due to the prejudice caused by the trial judge's failure to follow an earlier order barring certaintestimony, we reverse and remand for a new trial.

On September 29, 1995, plaintiff, a truck driver, delivered a load of lead to a battery plantowned by defendant. According to plaintiff, while he was walking along the loading dock, he slippedon a puddle of oil and fell on his knees, landing face-down on the concrete floor. Plaintiff filed acomplaint against defendant in 1997. In the course of discovery, defendant requested that plaintiffproduce, among other things, "all x-rays of any part of the body of plaintiff in the possession of eitherplaintiff or his attorneys, insofar as the same pertain to the subject matter of this litigation." In hiscomplaint, plaintiff asserted that under the Premises Liability Act (740 ILCS 130/1 et seq. (West1998)), defendant was liable to him for the injuries he suffered when he fell on the loading dock. Defendant answered the complaint, denying liability and alleging contributory negligence. The casewas set for a jury trial to begin August 13, 2001.

On April 18, 2001, plaintiff filed his answers to defendant's Supreme Court Rules 213(f) and(g) interrogatories. 177 Ill. 2d Rs. 213(f), (g). Therein, plaintiff disclosed witness Dr. Paul J.Gruszka, an orthopedic surgeon who performed a total right knee arthroplasty on plaintiff on October9, 2000, and indicated that Dr. Gruszka's testimony would be based upon, among other things, his"review of records and files." Plaintiff scheduled Dr. Gruszka's deposition for August 8, 2001.

On July 30, 2001, plaintiff sent nine X rays to a messenger service with instructions to copythem and forward the copies to defendant's counsel. Defense counsel received these X rays for thefirst time on August 1, 2001. On August 2, 2001, defendant filed a supplemental answer to plaintiff'sSupreme Court Rules 213(f) and (g) interrogatories (177 Ill. 2d Rs. 213(f), (g)), disclosing Dr.William Dobozi, an orthopedic surgeon, as a witness. Defendant stated that Dr. Dobozi "may becalled to testify as to the issues of damages and causation based upon the x-rays produced by theplaintiff on August 1, 2001, and other medical records supplied by plaintiff." Defendant indicated thatDr. Dobozi would testify that plaintiff "suffered from a degenerative condition in his knees prior tothe accident complained of in this lawsuit, and that knee replacement was likely to be inevitable forthis plaintiff irrespective of his accident on September 29, 1995." Defendant noticed Dr. Dobozi'sdeposition for August 9, 2001.

On August 3, 2001, plaintiff filed an emergency motion to quash the notice of Dr. Dobozi'sdeposition and bar his testimony, asserting that the late disclosure of this witness was extremelyprejudicial and violated Rule 213. On August 6, 2001, defendant filed an emergency motion to barand quash notice of Dr. Gruszka's deposition, in which defendant asserted, "Plaintiff's disclosure ofmedical information upon which his medical witness intends to rely comes for the first time less thantwo weeks before trial and is extremely prejudicial to the defendant. Moreover, plaintiff seeks todepose Dr. Gruszka a mere five days before trial, again relying on x-rays that defendant received forthe first time on August 1, 2001." On August 7, 2001, the motion judge entered an order grantingplaintiff's motion to bar Dr. Dobozi. The motion judge also granted defendant's motion in part,allowing Dr. Gruszka as a witness but specifying that "x-rays of plaintiff's knee, produced on August1, 2001, are barred at trial and may not be the subject of or form the basis of any opinion profferedby Dr. Gruszka at deposition or trial."

Dr. Gruszka's evidence deposition was taken as scheduled on August 8, 2001. After relatingthe details of his examination of plaintiff's knees, Dr. Gruszka testified as follows:

"Q. [Plaintiff's counsel:] And based on that examination, didyou arrive at a diagnosis at that time?

A. Along with the x-rays, yes. Based on the examinationonly, no.

Q. Okay. And what was your diagnosis?

A. The diagnosis was osteoarthritis of the right knee and leftknee."

The case proceeded to trial. Prior to opening statements, defendant's counsel alerted the trialjudge both to the motion judge's order barring reference to the X rays of plaintiff's knee and to Dr.Gruszka's deposition testimony, where he stated that he relied upon those X rays in making hisdiagnosis. After the attorneys argued at length as to the meaning and context of the order, the trialjudge commented, "I never saw anything like this." He then stated, "All right. So is there any wayto even figure out a compromise? I don't think so. Maybe you better start thinking is there any wayto compromise." When the attorneys indicated willingness to talk, the court went off the record. Later, just before the videotape of Dr. Gruszka's testimony was to be shown to the jury, at a pointwhen the court reporter was not present, defendant presented a motion in limine to bar Dr. Gruszka'stestimony. The trial judge denied the motion.

We begin our analysis with defendant's contention that the trial judge erred in permitting Dr.Gruszka to testify based on X rays of plaintiff's knees. Defendant argues that no compellingcircumstances justified the departure of the trial judge from the motion judge's earlier order that theX rays would be barred at trial and could not form the basis of Dr. Gruszka's opinions. Defendantalso asserts that the late production of the X rays, just 12 days before trial, unduly prejudiced itsability to refute Dr. Gruszka's testimony through the testimony of a rebuttal expert.

In a variety of contexts, interlocutory orders may be reviewed, modified, or vacated bysuccessor judges at any time before final judgment. Balciunas v. Duff, 94 Ill. 2d 176, 185 (1983). However, if the order involves an exercise of discretion, "that ruling should not be reversed byanother member of the court simply because there is disagreement on the manner in which thatdiscretion was exercised." Balciunas, 94 Ill. 2d at 188. A successor judge should not reverse ormodify a prior judge's discretionary discovery ruling unless there is a change of circumstances oradditional facts that warrant such action. Balciunas, 94 Ill. 2d at 188; Marcy v. Markiewicz, 233 Ill.App. 3d 801, 808 (1992); In re Marriage of Falstad, 152 Ill. App. 3d 648, 655 (1987). Successorjudges must give careful consideration to modifying or vacating any prior interlocutory rulings andalso should exercise "considerable restraint" in modifying or reversing previous discovery rulings. Balciunas, 94 Ill. 2d at 187-88.

Here, plaintiff did not present the trial judge with any change of circumstances or additionalfacts that would have allowed the modification, vacation, or reversal of the motion judge's discoveryorder. In this case, the trial judge effectively vacated the prior discovery order by ignoring it. Themotion judge's discovery order clearly stated that "x-rays of plaintiff's knee, produced on August 1,2001, are barred at trial and may not be the subject of or form the basis of any opinion proffered byDr. Gruszka at deposition or trial." When defendant brought this order to the attention of the trialjudge, he disregarded its plain language and instead directed the attorneys to work out a compromiseconcerning Dr. Gruszka's testimony. No compromise was reached, the trial proceeded, and Dr.Gruszka was allowed to offer his opinion based on X rays of plaintiff's knee.

The trial judge's decision to ignore the portion of the motion judge's order that barred Dr.Gruszka from testifying based on the X rays, while at the same time to enforce the portion of themotion judge's order that barred defendant from presenting a rebuttal expert on the issue of the causeof plaintiff's injuries, unfairly prejudiced defendant. Such action, absent a change in circumstancesor the presentation of additional facts, was improper. Balciunas, 94 Ill. 2d at 188. Essentially thetrial judge's order permitted plaintiff to use the X rays that were produced on the eve of trial and atthe same time barred defendant from presenting a rebuttal expert regarding that evidence. Thepurpose of discovery rules requiring timely disclosure of expert witnesses, their opinions, and thebases for those opinions is to avoid surprise and to discourage strategic gamesmanship. Copelandv. Stebco Products Corp., 316 Ill. App. 3d 932, 937 (2000). "A defendant has the right not only torebut evidence tending to show that defendant's acts are negligent and the proximate cause of claimedinjuries, but also has the right to endeavor to establish by competent evidence that the conduct of athird person, or some other causative factor, is the sole proximate cause of plaintiff's injuries." Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101 (1995).

The decision whether to admit expert testimony is within the sound discretion of the trialcourt. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). After reviewing the record, we conclude that themotion judge did not abuse his discretion in entering an order simultaneously barring Dr. Gruszkafrom testifying based on the X rays and barring Dr. Dobozi from testifying in rebuttal. The trial judgeimproperly modified the motion judge's discovery order and, in doing so, caused defendant unfairprejudice. Accordingly, we reverse and remand for a new trial.

Having determined that a new trial is necessary, we need not consider defendant's otherarguments on appeal. Nevertheless, because the issues may arise on retrial, we turn our attention todefendant's remaining contentions.

First, defendant contends that the trial court erred in refusing to submit to the jury any of theeight special interrogatories it proposed. Special interrogatories are governed by section 2-1108 ofthe Code of Civil Procedure, which provides as follows:

"