White v. Garlock Sealing Technologies, LLC. ( 2007 )

NO. 4-06-0688 Filed 5/2/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ROSE WHITE, Individually and as ) Appeal from
Administratrix of the Estate of DON ) Circuit Court of
R. WHITE, Deceased, ) McLean County
Plaintiff-Appellee, ) No. 02L136
v. )
GARLOCK SEALING TECHNOLOGIES, LLC, ) Honorable
Defendant-Appellant. ) James E. Souk,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In August 2002, plaintiff, Rose White, sued defendant
Garlock Sealing Technologies, LLC, and several other defendants
for the wrongful death of her husband, Don R. White, decedent.
White alleged that decedent developed asbestosis and died as a
result of occupational exposure to defendants' asbestos-contain-
ing products.
Following a November and December 2005 jury trial, the
jury returned a verdict for Garlock. White filed a timely
posttrial motion, alleging that Garlock violated numerous trial
court orders and rulings. In July 2006, the trial court granted
White's motion for a new trial, upon finding that Garlock vio-
lated Supreme Court Rule 213(i) (210 Ill. 2d R. 213(i)). In
addition, the court ordered that on retrial, the testimony of one
of Garlock's expert witnesses would be limited.
In August 2006, Garlock petitioned this court for leave
to appeal, pursuant to Supreme Court Rule 306(a)(1) (210 Ill. 2d
R. 306(a)(1)). In September 2006, we granted Garlock's petition,
and we now affirm.
I. BACKGROUND
Because the record in this case is lengthy, we discuss
it only to the extent necessary to review the narrow issues
before us: (1) Did Garlock violate Rule 213(i), which provides
that a party has a duty to seasonably supplement or amend any
prior answer or response to an interrogatory whenever new or
additional information subsequently becomes known to that party,
and (2) if so, did the trial court's remedial action constitute
an abuse of its discretion?
A. The Factual Context of White's Lawsuit
The evidence at the jury trial showed that decedent
worked for 40 years at the Havana, Illinois, power plant in
various capacities, including boiler operator and pipefitter.
Garlock asbestos-containing packing and gaskets were used at the
plant throughout his career. White presented evidence that when
these gaskets were "applied and removed," they gave off asbestos
dust that traveled throughout the plant. Decedent's family
physician testified that decedent developed asbestosis, which was
the cause of his death, as a result of the total and cumulative
effect of all the asbestos he inhaled.
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Garlock presented evidence that because the asbestos
fibers incorporated into its gasket and packing products were
encapsulated--that is, coated in rubber, elastic, and other
polymers--the products did not emit respirable asbestos fibers at
levels sufficient to cause asbestosis. Garlock also presented
evidence that testing on its gaskets and packing products showed
that under actual-use conditions, they produced extremely low-
level asbestos exposure--that is, exposure at levels similar to
or below ambient levels in most metropolitan areas. Garlock also
presented epidemiological studies to further show that exposure
to asbestos at levels found in the ambient air did not result in
an increased incidence of asbestos-related disease.
B. Garlock's Pretrial Disclosures Regarding Its
Controlled Expert Witness, Dr. Steven R. Smith
In answer to White's interrogatories, Garlock identi-
fied several expert witnesses, including Steven R. Smith, M.D.,
director of occupational and environmental health and medicine
for the Community Health Network and community hospitals in
Indianapolis, Indiana. Garlock provided White with Dr. Smith's
detailed, 21-page, single-spaced report in which he analyzed
decedent's occupational and medical histories, made observations
about the findings and conclusions reached by his treating
physicians, questioned whether the medical evidence showed that
decedent suffered from asbestosis, and noted the presence of
clinical findings of pulmonary aspergillosis, which is a fungal
- 3 -
infection in the lungs. In pertinent part, Dr. Smith's report
contained the following conclusions:
(1) On the basis of the materials that
had been provided to him, the evidence was
insufficient to support a determination to a
reasonable degree of medical certainty that
decedent suffered from asbestosis or any
other asbestos-related disease or disorder.
(2) Even if decedent did suffer from
asbestosis "(and possibly died as a result
thereof)," any asbestos exposure resulting
from working with or around Garlock gasket-
and packing materials was pathogenically
insignificant. Decedent's level of gasket
and packing-derived cumulative occupational
asbestos exposure would clearly be de minimis
and incapable of causing or substantially
contributing to the causation of asbestosis.
(3) If decedent did have any clinically
significant degree of asbestosis "(and he may
well have)," it was caused by his exposure to
insulation materials, not by his exposure to
gaskets and packing.
(4) "It is not possible for me to state,
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to a reasonable degree of medical certainty,
that [decedent] either did have or did not
have bona fide asbestosis."
(5) "The finding of ostensible
Aspergillus mold/fungal organisms within the
cavitary lesion within the resected upper
lobe of decedent's right lung deserves com-
ment. The exact significance of this finding
is unclear."
White did not depose Dr. Smith. Shortly before the
November 2005 jury trial, Garlock's counsel faxed to White's
counsel a letter, identifying it "as [its] supplement 213(f)(3)
[disclosure] regarding the opinions and report of Dr. Steven
Smith," stating that Dr. Smith had an opportunity to review many
documents pertaining to the case (which the letter identified)
since he had prepared his initial report. The letter concluded
as follows:
"The review of the above material does not
change Dr. Smith's opinions as set forth from
his earlier report. Dr. Smith is still of
the opinion that Garlock gaskets and packing
materials did not cause or contribute to the
causation of [decedent's] alleged asbestosis.
Further, Dr. Smith is of the opinion that
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Garlock sealing products did not contribute
in any manner to [decedent's] supposed
asbestosis-related death as set out in his
earlier report."
C. Dr. Smith's Trial Testimony
The jury trial lasted almost four weeks. After White
rested her case, Garlock presented its evidence, which included
Dr. Smith's testimony. He testified on direct examination
substantially consistently with the discovery materials that
Garlock had furnished White. When Garlock asked Dr. Smith
whether he had indicated in his report that he did not rule out
the possibility of asbestosis, Dr. Smith responded, that "it was
plausible, yes."
On cross-examination, White suggested that Dr. Smith
was "sort of like the Monday morning quarterback," in that he was
pointing out the errors made by other Illinois doctors. Dr.
Smith responded in part, as follows: "I'm not casting stones at
any physicians. I'm just saying that [decedent] did not have
asbestosis[,] and to the extent that he did, gaskets and packing
materials did not cause or contribute to it." White questioned
Dr. Smith about this statement, and he responded, "I don't
believe that [decedent] had asbestosis." Later during his cross-
examination, Dr. Smith further stated that "the scientific and
medical evidence in this case would indicate that [decedent]
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didn't have asbestosis as a cause of his lung problem[,] and it
was aspergillosis that caused it."
White cross-examined Dr. Smith extensively until the
trial court took a recess. When court reconvened out of the
jury’s presence, White made a motion to strike Dr. Smith's
testimony on the ground that the opinions Dr. Smith testified to
on cross-examination--namely, that decedent did not have
asbestosis--had not previously been disclosed in Garlock's Rule
213 disclosure. Garlock objected and claimed that the opinion
had been disclosed. When the court asked Garlock to point to
where Garlock had disclosed that opinion of Dr. Smith, Garlock
did so, and the court expressed doubt. The court noted that the
document Garlock referred to quoted Dr. Smith as saying that "it
is not possible for me to state to a reasonable degree of medical
certainty that [decedent] either did have or did not have bona
fide asbestosis." The court pointed out that Dr. Smith had given
an opinion in court that differed from that report because he had
just testified that the decedent did not have asbestosis. The
court again pointed out that Dr. Smith's disclosed opinions were
that "he saw things which were not consistent with asbestosis.
But, his final *** conclusion is it's not possible to state the
required standard whether the [decedent] did or didn't have
asbestosis." The court noted that Dr. Smith had just testified
definitively that the decedent did not have asbestosis and added
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that, "I hardly need to point out [that whether the decedent had
asbestosis] is something of a major issue in this case."
Garlock then argued that Dr. Smith never testified to
that effect on direct examination. The trial court responded as
follows: "Well[,] tell me what difference it makes. On cross-
examination, doesn't the plaintiff have the right to expect that
the doctor's answers on cross-examination are going to be consis-
tent with his disclosures?"
The trial court took the matter under advisement to
read the transcripts of Dr. Smith's direct and cross-examination.
After reconvening, the court granted White's motion to strike,
explaining as follows:
"THE COURT: Well, I think [White] is
correct on this issue. This goes beyond the
[Rule] 213 disclosure, and I might add,
again, this is not on a minor issue in this
case. *** Clearly[,] the claims of [White]
for the last three years have been that [de-
cedent] had asbestosis and it was the cause
of his death, and if an expert that [Garlock]
was going to put on the stand is going to
state an opinion, direct, cross, redirect,
recross, or anywhere, that it was this wit-
ness' opinion, however plausible or possible
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it might be that somebody else might have a
different opinion, that [decedent did not
have] asbestosis, to not put that as [a]
clear, unequivocal statement of his opinion
in the [Rule] 213 disclosure is--well, it's
certainly surprising that we would be dis-
cussing this issue at this point in this
trial."
The court also noted that White's question of Dr. Smith that
brought his first response that decedent did not have asbestosis
did not "really have anything to do with asbestosis specifically,
and it was really a volunteered, nonresponsive answer by the
doctor."
In fashioning its remedy, the trial court explained
that because Garlock's disclosures regarding Dr. Smith's testi-
mony contained "many signs" that asbestosis was not likely in
this case, the court considered it a sufficient remedy to strike
Dr. Smith's opinion testimony that decedent did not have asbesto-
sis. In so ruling, the court also noted that none of Garlock's
disclosures regarding Dr. Smith contained an indication that he
believed aspergillosis was the cause of decedent's death. Thus,
the court ordered that in addition to prohibiting Dr. Smith from
giving any further opinions that he believed decedent did not
have asbestosis, he was not to give any further opinions "either
- 9 -
directly or impliedly that the cause of death was aspergillosis."
White continued to press the trial court to strike all
of Dr. Smith's testimony, but the court declined and instructed
the jury that Dr. Smith's testimony regarding (1) whether dece-
dent had asbestosis and (2) the cause of his death would be
stricken and was to be disregarded. The court further explained
to the jury that the court took this action because Garlock had
failed to disclose this testimony to White in advance of trial,
as Garlock was required to do.
D. The Jury's Verdict and White's Posttrial Motions
When plaintiff first filed this lawsuit, she was suing
several different defendants. By the time of trial, only Garlock
and Sprinkmann Sons Corporation were still defendants in the
case. Following the presentation of evidence and arguments, the
jury returned verdicts in favor of Garlock and Sprinkmann and
against White. The jury was also given three special interroga-
tories, to which they provided the following answers: (1) First
Interrogatory: "Did you find that the evidence presented in this
case established that asbestosis from Owens Corning Kaylo was a
proximate cause of the injury to and death of [the decedent]?"
The jury answered yes. (2) Second interrogatory: "Did you find
that the evidence presented in this case established that prod-
ucts from Garlock was a proximate cause of the injury to and
death of [the decedent]?" The jury answered no. (3) "Did you
- 10 -
find that Sprinkmann's intentional destruction was the proximate
cause of [White's] inability to prove products from Garlock was
the proximate cause of the injury to and death of [the dece-
dent]?" The jury answered no.
In February 2006, White filed a posttrial motion,
alleging, in pertinent part, that the trial court erred by not
striking Dr. Smith's testimony because it violated Rule 213(i).
E. The Hearings on White's Posttrial Motion
At the April 2006 hearing on White's posttrial motion,
White argued again that Garlock failed to comply with the re-
quirements of Rule 213(i), which imposed a duty on Garlock to
seasonably supplement or amend any prior answer or response to an
interrogatory whenever new or additional information subsequently
becomes known to that party. Garlock acknowledged at this
hearing that on the Saturday night before Dr. Smith testified,
Dr. Smith phoned Garlock's counsel and said, "I think this guy
ha[d] aspergillosis, if you really want to know." Garlock's
counsel told the court that he informed Dr. Smith "that's not
where we are going in this case, and that's not our theory. ***
We're not going to talk about that, and this case is not about
aspergillosis."
Garlock's counsel also explained to the trial court
that he had understood that "a number of days before trial is far
too late for [Dr. Smith's new] opinion to be elicited at trial."
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Thus, he advised Dr. Smith that he could not offer those opinions
at trial.
The trial court then asked Garlock to respond to
White's position that the issue was not whether Garlock would
have been allowed to use the new opinion, because it was still
obligated to disclose it prior to trial. Garlock responded that
"the reality of asbestosis litigation is that experts constantly
develop new opinions all the time after disclosure deadlines in a
case." Garlock asserted that it had imposed upon itself the
relief that White would have requested--namely, it did not elicit
Dr. Smith's new opinions on direct examination.
The trial court noted that it viewed the shift in Dr.
Smith's opinion as significant, noting that (1) whether the
deceased even had asbestosis and (2) the cause of death were
critical issues. The court indicated that White was entitled to
know about Dr. Smith's new opinion for cross-examination purposes
even if Garlock would not be able to use the information itself.
The court further stated as follows:
"Regardless of what you might be allowed to
use because of the timeliness problems,
aren't you required to update opinions, and
in this case you not only didn't update the
opinion, but when you filed your last disclo-
sure immediately before trial, you indicated
- 12 -
the review of these further materials does
not change [Dr. Smith's] opinion in any way."
At the conclusion of the April 2006 hearing, the trial
court took White's posttrial motion under advisement. A few
weeks later, the court stated that it wanted to hear further
evidence and directed Garlock to produce Dr. Smith to testify at
the next hearing on White's posttrial motion.
In July 2006, the trial court renewed the hearing on
White's posttrial motion and called Dr. Smith as a court's
witness. Dr. Smith testified that he did not make up his mind
about his new opinions until a few days before he testified.
Earlier that day, Dr. Smith had gone to the medical library to
consult some "rather esoteric articles" that helped him reach
these new opinions. He called Garlock's counsel that day and
discussed the matter with him. Dr. Smith explained that he had
not finalized his preparation until that date because he thought
he would be giving a discovery deposition, but that never hap-
pened. He also explained that this was the first case in which
he had worked with any of the attorneys representing Garlock.
The night before Dr. Smith testified, he had dinner
with Garlock's attorney and discussed the case. Dr. Smith
explained that his recollection was not totally clear, but he
recalled most of his preparation with Garlock's attorney dealt
with whether Garlock gaskets and packing materials could have
- 13 -
caused or substantially contributed to decedent's asbestosis, if
decedent indeed had had asbestosis. Dr. Smith had a vague
recollection that the attorney indicated that he
"probably would not be discussing with me in
any degree of intensity anything about my
opinion as to the actual cause of death or
those sorts of things. And I told him I
thought it would be hard to discuss the mat-
ter without talking about that a little bit.
As a scientist and physician, you know, you
also want to talk about the cause of death,
but he said, well, you know, you probably
will not be able to discuss those matters."
Dr. Smith testified that he was concerned that the
White family was never going to hear about the potentially
genetic disorder that predisposed them to aspergillosis.
Garlock's attorney told him that he probably would not be able to
discuss that during his testimony, "but we'll see if something
can't be done about that after you testify."
Dr. Smith was asked whether anyone from Garlock's
lawyers' firm advised him that he could not offer his opinion
regarding aspergillosis at trial, and he responded as follows:
"No, I don't believe that I was advised that I explicitly could
not mention the opinion about aspergillosis at trial. As I've
- 14 -
mentioned, I was advised that that was not going to be the main
thrust of my testimony." Dr. Smith was also asked whether
Garlock's attorneys ever warned him that any particular opinion
was not to come out at trial, and he responded as follows: "I
don't recall [Garlock's] attorneys, any of them, telling me that
I couldn't offer my honest opinions about any matter if it was
appropriate to do so."
After Dr. Smith testified, Garlock conceded during
argument on the motion that it knew disclosure of Dr. Smith's new
opinions was patently late. Garlock explained its counsel's
conduct, as follows:
"He knew that the appropriate relief to be
imposed upon Garlock was that Dr. Smith would
not be allowed to offer [those opinions.] We
basically elected to impose that relief upon
ourselves and instructed Dr. Smith that we
weren't going to go down that route in his
examination and left that issue out of the
trial essentially. Obviously, if that door
were opened on cross-examination, that was
beyond our control, and [if] Dr. Smith felt
that it had been opened, we could not in-
struct him not to offer that opinion if it
came up on cross-examination[,] of course."
- 15 -
The trial court pointed out that it had been laboring
at trial under the assumption that the volunteered modified
opinion that Dr. Smith offered on cross-examination was news to
everyone, including Garlock, and that Garlock did not know about
the new opinion prior to his offering it. The court added, "I'm
having a hard time understanding *** why Garlock did not make
clear to the court at that point in time that Garlock knew about
this and what efforts it had taken, if any, prior to trial to
keep [Dr. Smith] from stating undisclosed opinions." Garlock's
first response was, "With all due respect, I don't know how the
court reached that conclusion." The court retorted, "Well, I
reached that conclusion because Garlock didn't tell me that they
knew about it." Garlock then responded that it argued at the
time its belief that the opinion had been adequately disclosed in
Dr. Smith's February 2005 report. The court responded:
"True enough, and I think I told you in the
nicest and politest terms that a judge can
use that that position was total nonsense
since, of course, the newly proffered opinion
on cross-examination in this case was a sig-
nificant departure from [Dr. Smith’s] prior
opinion. *** [T]o say otherwise is just
silly in my opinion."
Garlock also argued that the trial court needed to ask
- 16 -
itself what error occurred here and what could have been done to
remedy the situation, adding, "No one could have told Dr. Smith
that he could not offer [his opinions.]" The court responded as
follows:
"[I]f this matter had been raised prior to
[Dr. Smith’s] testimony, if you had disclosed
it to [White's counsel] and they raised this
by motion, then the matter could have been
resolved prior to [Dr. Smith's] testimony
because the court could have instructed him
what he could or could not get into in his
testimony[,] and he would have to abide by
that."
At the conclusion of the hearing, the trial court
granted White's motion for a new trial, explaining, in part, as
follows:
"[T]he [c]ourt believes that it is crystal
clear beyond any question that an egregious
[Rule] 213 violation occurred in this matter.
And it's just beyond me as to how that would
not be the case. *** [W]e'll give [Dr. Smith]
the benefit of the doubt and say yes he ex-
pressed the opinion [in his February report]
that [the deceased] had aspergillosis. ***
- 17 -
[However,] there's a whole lot of difference
between saying he had aspergillosis and say-
ing that he had aspergillosis and that was
the cause of his death. There's a whole lot
of difference between saying, as he did in
his February report, I can't--I'm casting
doubt on the asbestosis diagnosis, but I
can't say to a reasonable degree of medical
certainty one way or another whether he had
it or he didn't have it. And turning around
in [his] testimony and saying he did not have
asbestosis and therefore obviously that's not
the cause of his death. Aspergillosis is the
cause of his death.
*** [Dr. Smith] didn't finalize his
opinion until the very end right before he
was about to testify. Once he did that,
whether Garlock intended to use it, he was
going to avoid it altogether[,] or whatever,
Garlock was under an immediate obligation to
update its [Rule] 213 disclosure Monday morn-
ing or Sunday evening to [White's counsel]
indicating what the doctor's opinion was that
was different than what was in his report.
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The simple expedient of doing that would
have avoided this entire problem in the first
place. ***
Garlock made a conscious decision to
simply give some sort of warning to the doc-
tor, which obviously was not effective, be-
cause in cross[-]examination he basically
volunteered this information. It was a
nonresponsive answer. Certainly was not--was
not called for, and then at that point the
[c]ourt dealt with it.
Well, Garlock's position now is that the
way the [c]ourt dealt with the matter at the
time was appropriate and was, if you will, a
middle of the road moderate sanction but one
that effectively dealt with it with the jury
in effect being instructed to disregard some-
thing [it] had already heard.
That position ignores the fact *** it is
likely that the [c]ourt would have looked at
this matter significantly different[ly] had I
known at that point in time that Garlock knew
about the updated opinion. The matter was
not directly discussed, but the [c]ourt be-
- 19 -
lieves it was incumbent on Garlock to inform
the [c]ourt that it knew about it and what
steps it had taken to make sure the [d]octor
didn't disclose something that was not in his
report. And the [c]ourt was not informed of
that, and I was laboring under the assumption
that Garlock was surprised by all this as the
rest of us were, and I--I just see no excuse
for not disclosing in the first place and no
excuse for not informing the [c]ourt what the
situation was. In that event, the [c]ourt
may well have taken a different approach.
The [c]ourt might have barred the doctor's
testimony altogether. The [c]ourt might have
granted a mistrial. I don't know. But it's
likely I would have taken more severe action
had I known that Garlock had known about this
matter before--before it came up.
***
The real question is to me not whether a
violation occurred or that things should have
been done a lot different, but whether the
violation merits a new trial, whether there
was a fundamental denial here to Mrs. White
- 20 -
of a fair hearing, and how important was the
matter involved here? *** [C]oming into this
trial it would have appeared I think to
[White] based on the evidence they had ***
that whether [decedent] had asbestosis and
whether that was the cause of his death was
not the issue in the case. That the issue in
the case is whether Garlock products were at
his workplace and whether they could conceiv-
ably have produced enough exposure that
Garlock could be found liable for his disease
and death.
The *** newfound opinion of [Dr. Smith]
introduced before the jury a question on an
extremely important issue in this case,
whether he even had asbestosis in the first
place and whether it could have caused his
death. The [c]ourt, based on what it knew at
the time, took appropriate action to try to
correct an error without declaring a mistrial
or taking some more drastic action.
The [c]ourt would note for the record
*** Dr. Smith in my view is an extremely able
and effective expert witness and one who is
- 21 -
not only very articulate in terms of being
able to convey things to laypeople but [who
also has a] very likeable personality, and he
was an important witness in this trial.
And the [c]ourt has agonized over this
matter greatly. I think it goes without
saying that this judge and no other judge
lightly considers granting a new trial in any
matter much less an extensive matter which
requires great preparation and lengthy trial
and many expert witnesses. But in this cir-
cumstance the [c]ourt believes that the im-
portance of the issue involved here, the
egregiousness of the violation and the fail-
ure to make the appropriate disclosures that
we've discussed, is sufficient that [the
m]otion for [n]ew [t]rial *** will be
granted."
F. The Trial Court's Order Restricting Dr. Smith's
Testimony Upon Retrial
After the trial court granted the motion for a new
trial, the court also imposed restrictions upon Dr. Smith's
testimony at the new trial, explaining as follows:
"[T]he manner in which this [situation was]
handled makes it very difficult and problem-
- 22 -
atic to allow [White] to fairly cross[-]
examine [Dr. Smith] at future trials, [so]
the [c]ourt will bar his testimony at future
trial related to the issue of [the
decedent's] medical condition and the cause
of [the decedent's] death.
The [c]ourt will leave open the option
but entertain argument as to whether the
problems created by all this should bar his
testimony [on] the other issue that he testi-
fied on, which is whether Garlock products
could have conceivably produced enough asbes-
tos to--to have created any problem here.
But as to that part of his testimony related
to [the deceased] and his medical diagnosis
and treatment and cause of his death, Dr.
Smith will be barred on that side of the
issue."
The trial court further clarified its ruling by indi-
cating that it was not yet definitively ruling out any testimony
by Dr. Smith at the new trial regarding, generally, "what it
takes to have exposure and here's what [the decedent] had from
the records I have[,] and therefore he didn't get enough exposure
[from Garlock's products]" to cause decedent's illness.
- 23 -
G. Garlock's Motion To Reconsider the Grant of a New Trial
In August 2006, Garlock filed a motion to reconsider
the trial court's grant of White's motion for a new trial,
asserting the following: (1) even if a Rule 213 violation
occurred, the jury's special findings conclusively established
that it did not unfairly prejudice White or affect the outcome at
trial; (2) White forfeited her right to seek a new trial based on
Dr. Smith's purportedly improper opinions because she failed to
promptly object or seek other relief; (3) White cannot object to
testimony she elicited; and (4) if the new trial order is af-
firmed, Dr. Smith's testimony should not be limited upon retrial.
In September 2006, the trial court conducted a hearing
on the motion to reconsider and denied it. During that hearing,
the court asked Garlock, "Doesn't [White’s] attorney have the
expectation upon cross-examination *** that he is not going to
hear a different answer [from Garlock's expert witness] than
what's in the disclosure [Garlock provided regarding that ex-
pert's opinions]?" Garlock responded: "Pursuant to [s]upreme
[c]ourt [r]ule, he has an expectation, and that's why most people
will depose the expert to kind of make sure they don't walk into
something like that." Garlock further implied that had White
bothered to depose Dr. Smith, the problems pertaining to his
testimony might have been avoided.
The trial court reiterated that in the report Dr. Smith
- 24 -
prepared prior to trial, he stated that he could not determine to
a reasonable degree of medical certainty if the decedent did or
did not have asbestosis and certainly gave no opinion that
aspergillosis was the cause of his death. The court noted that
Garlock argued at trial that "somehow this was not a change of
opinion, which the court didn't understand at the time and
certainly doesn't understand now. The doctor changed his opin-
ion." The court added the following:
"[White] had an absolute right, in my
view, to expect, once [the condition of the
decedent's health] was testified about on
direct [examination], that if [White] asked
any questions that related to the health of
[the decedent], that they would get exactly
the opinions that were disclosed [in advance
of trial by Dr. Smith], and they asked ques-
tions[,] and they did not get exactly the
opinions that were disclosed."
The trial court explained that it deemed the Rule 213
violation serious because there are "only a couple of issues that
are really important in an asbestos case, *** and one of them is
did the person have some asbestos-related disease?" Given the
nature of the case White presented, the court thought that she
would have believed that whether decedent's death was caused by
- 25 -
asbestos-related disease "was a nonissue," at least until Dr.
Smith's cross-examination testimony. The court reaffirmed that,
in its judgment, that testimony--namely, that the decedent did
not have asbestosis in Dr. Smith's opinion--resulted from
nonresponsive answers. The court also reaffirmed its view that
Garlock's counsel "absolutely had the obligation" to inform the
court that he knew in advance of Dr. Smith's change of opinion
and, further, to have made an immediate disclosure of the change
at the earliest possible time.
The trial court emphasized again that a factor in its
decision to grant White's motion for a new trial was that Dr.
Smith "was an extremely effective witness, *** one of the finest
expert witnesses I have ever seen on the witness stand in 30
years." The court was concerned that some of the jurors may have
answered the special interrogatory the way they did because they
were thinking, based in part upon Dr. Smith's testimony, "I'm not
even sure that the guy had asbestosis, but I'll go ahead and vote
this way."
As earlier stated, Garlock filed a petition for this
court to review the trial court's grant of White's motion for a
new trial, and in September 2006, this court granted Garlock's
petition.
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II. ANALYSIS
A. Supreme Court Rule 213
Garlock first argues that the trial court erred by
finding that a Rule 213(i) violation occurred. Garlock further
argues that, even if such a violation did occur, (1) White
forfeited this issue by not making a timely objection at trial
and (2) White elicited the allegedly improper testimony herself.
For the reasons that follow, we disagree.
1. Standard of Review
In Sullivan v. Edward Hospital, 209 Ill. 2d 100, 108-
09, 806 N.E.2d 645, 651 (2004), the supreme court reviewed the
trial court's decision to strike certain testimony of the plain-
tiff's expert witness because of a violation of Rule 213 in a
medical-malpractice case. In so doing, the court wrote as
follows: "The admission of evidence pursuant to Rule 213 is
within the sound discretion of the trial court, and the court's
ruling will not be disturbed absent an abuse of that discretion."
Sullivan, 209 Ill. 2d at 109, 806 N.E.2d at 651.
In this case, the trial court granted White's motion
for a new trial because it found that Garlock violated Rule
213(i). Although this ruling was not, as in Sullivan, made
during the course of trial, we conclude that the abuse-of-discre-
tion standard is appropriate when reviewing a trial court's grant
of a new trial based upon a Rule 213 violation.
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2. Rule 213 and the Policy Underlying the Rule
Supreme Court Rule 213, entitled "Written Interrogato-
ries to Parties," governs discovery by interrogatories, as well
as disclosure of the identity of witnesses who will testify at
trial. 210 Ill. 2d R. 213. Rule 213(f) requires a party, in
response to a written interrogatory (as occurred in this case),
to furnish information about three different categories of
witnesses the party may call to testify at trial: (1) lay
witnesses, (2) independent expert witnesses, and (3) controlled
expert witnesses. Rule 213(f)(3) defines a "controlled expert
witness" as follows:
"A 'controlled expert witness' is a
person giving expert testimony who is the
party, the party's current employee, or the
party's retained expert. For each controlled
expert witness, the party must identify: (i)
the subject matter on which the witness will
testify; (ii) the conclusions and opinions of
the witness and the bases therefor; (iii) the
qualifications of the witness; and (iv) any
reports prepared by the witness about the
case." 210 Ill. 2d R. 213(f)(3).
The importance of a party's compliance with Rule
213(f)(3) is shown by Rule 213(g), which provides, in pertinent
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part, as follows: "The information disclosed in answer to a Rule
213(f) interrogatory *** limits the testimony that can be given
by a witness on direct examination." 210 Ill. 2d R. 213(g).
Rule 213(i), which is at issue in this case, reads as
follows:
"(i) Duty to Supplement. A party has a
duty to seasonably supplement or amend any
prior answer or response whenever new or
additional information subsequently becomes
known to that party." 210 Ill. 2d R. 213(i).
The Committee Comments to Rule 213 provide insight into
what the Supreme Court of Illinois sought to achieve by promul-
gating the rule. Committee Comments pertinent to this case
discuss paragraph (i), as follows:
"With regard to paragraph (i), the new
rule imposes a ’seasonable’ duty to supple-
ment or amend prior answers when new or addi-
tional information becomes known to that
party. This is a change from previous dis-
covery requirements and thus eliminates the
need for supplemental interrogatories unless
different information is sought. The Commit-
tee believes that the definition of ’season-
able’ varies by the facts of each case and by
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the type of case, but in no event should it
allow a party or an attorney to fail to com-
ply with the spirit of this rule by either
negligent or wilful noncompliance." 210 Ill.
2d R. 213(i), Committee Comments, at lxxxv.
In deciding whether the trial court erred by finding
Garlock violated Rule 213, it is helpful to consider the underly-
ing policy of that rule. The Sullivan case is particularly
instructive, where the supreme court stated that Rule 213(g)
"requires that, upon written interrogatory, a
party must disclose the subject matter, con-
clusions, opinions, qualifications, and all
reports of a witness who will offer any opin-
ion testimony. [Citation.] Further, Supreme
Court Rule 213(i) imposes on each party a
continuing duty to inform the opponent of new
or additional information whenever such in-
formation becomes known to the party." (Em-
phasis in original.) Sullivan, 209 Ill. 2d
at 109, 806 N.E.2d at 651.
The Sullivan court then explained that its rules represented the
court's best efforts to manage the complex and important process
of discovery. Of particular significance to this case, the
supreme court added the following:
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"Rule 213 permits litigants to rely on the
disclosed opinions of opposing experts and to
construct their trial strategy accordingly.
[Citation.] *** One of the purposes of Rule
213 is to avoid surprise. [Citation.] To
allow either side to ignore Rule 213's lan-
guage defeats its purpose and encourages
tactical gamesmanship." Sullivan, 209 Ill.
2d at 109-10, 806 N.E.2d at 652.
In Department of Transportation v. Crull, 294 Ill. App.
3d 531, 538-39, 690 N.E.2d 143, 148 (1998), this court addressed
the then-newly revised version of Rule 213 and wrote the follow-
ing:
"Rule 213 establishes more exacting standards
regarding disclosure than did Supreme Court
Rule 220 [citation], ***, which formerly
governed expert witnesses. Trial courts
should be more reluctant under Rule 213 than
they were under former Rule 220 (1) to permit
the parties to deviate from the strict dis-
closure requirements, or (2) not to impose
severe sanctions when such deviations occur.
Indeed, we believe one of the reasons for new
Rule 213 was the need to require stricter
- 31 -
adherence to disclosure requirements."
In Sullivan, the supreme court quoted this portion of our deci-
sion in Crull and wrote, "We agree." Sullivan, 209 Ill. 2d at
110, 806 N.E.2d at 652.
We acknowledge that Rule 213 was amended, effective
July 1, 2002, and that both this court in Crull and the supreme
court in Sullivan were addressing the preamended version of that
rule. Nonetheless, we do not believe the amendment to Rule 213
undermines the previously stated policy underlying Rule 213. We
find support for this holding in the scholarly opinion of Justice
Quinn in Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d
444, 454, 818 N.E.2d 713, 721 (2004), where the First District
addressed a postamendment Rule 213 violation and cited Sullivan
(citing Crull) for the proposition that "[t]o allow either side
to ignore the plain language of Rule 213 defeats its purpose and
encourages tactical gamesmanship." See also Foley v. Fletcher,
361 Ill. App. 3d 39, 47, 836 N.E.2d 667, 674 (2005) (addressing
the 2002 amended version of Rule 213 and citing the policy
discussions of Sullivan as authoritative).
3. The Trial Court's Finding That Garlock Violated Rule 213(i)
The record is clear that Dr. Smith was a controlled
expert witness under Rule 213(f)(3). That status required
Garlock, in response to White's interrogatories, to not only
identify Dr. Smith as one of the witnesses Garlock expected to
- 32 -
testify at trial, but also to identify "the conclusions and
opinions of [Dr. Smith] and the bases therefor." 210 Ill. 2d R.
213(f)(3)(ii).
The trial court determined that Garlock violated Rule
213(i) because Garlock did not "seasonably supplement or amend
any prior answer or response" by Dr. Smith in response to White's
interrogatory when new information subsequently became known to
Garlock.
Garlock first argues that the trial court erred by
finding it violated Rule 213(i). Specifically, Garlock contends
that because its direct examination of Dr. Smith did not deviate
from its Rule 213 disclosures regarding his testimony, no viola-
tion of Rule 213(i) occurred. We disagree.
At the hearing on the motion to reconsider the trial
court's grant of White's motion for a new trial, the court stated
well the fundamental issue in this case:
"Doesn't [White’s] attorney have the [right
to an] expectation upon cross-examination ***
that he is not going to hear a different
answer [from Garlock's expert witness] than
what's in the disclosure [Garlock provided
regarding that expert's opinions]?"
Consistent with the earlier-discussed policy underlying Rule 213,
we agree with the trial court that the answer to this question is
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an emphatic "yes."
The plain language of Rule 213 compels this conclusion.
First, Rule 213(f)(3) states, in pertinent part, that a party
must identify the "conclusions and opinions" of that party's
"controlled expert witnesses," and contains no language limiting
the disclosure to "conclusions and opinions" that the party
expects to elicit on direct examination. Second, Rule 213(i)
similarly speaks of a party's "duty to seasonably supplement or
amend" any prior answer or response to an interrogatory whenever
new or additional information subsequently becomes known to that
party. 210 Ill. 2d R. 213(i). Rule 213(i) contains no language
limiting the duty to supplement discovery to material that the
party expects to elicit on direct examination. To limit Rule
213's applicability in this way would be inconsistent with the
supreme court's intent in promulgating Rule 213 and would encour-
age the sort of "tactical gamesmanship" that the rule was in-
tended to prevent.
We agree with the sentiments expressed in Clayton v.
County of Cook, 346 Ill. App. 3d 367, 381, 805 N.E.2d 222, 235
(2003): "'Rule 213 is designed to give those involved in the
trial process a degree of certainty and predictability that
furthers the administration of justice and eliminates trial by
"ambush".' [Citations.]" In this case, Garlock knew of the
change in Dr. Smith's opinion (concerning one of the most funda-
- 34 -
mental issues in the case) and violated Rule 213(i) by failing to
reveal this change to White. Instead, Garlock mutely stood by as
White conducted a vigorous cross-examination during which Dr.
Smith's new opinions came out. This is precisely the sort of
ambush that Rule 213 was designed to prevent. The bottom line is
that White had an absolute right to conduct her cross-examination
of Dr. Smith with confidence that she knew all of his pertinent
opinions because Garlock had disclosed them in response to her
written interrogatories.
4. Garlock's Claim That White Forfeited Her Rule 213(i)
Argument Because She Did Not Timely Object
Garlock also argues that White forfeited at trial the
issue of any Rule 213(i) violation by failing to timely object or
seek a new trial based on the alleged violation. Specifically,
Garlock contends that after Dr. Smith revealed his new opinions,
White proceeded to pose additional questions to Dr. Smith instead
of objecting, and these questions served "not only to underscore,
but to expand the scope" of the opinions Dr. Smith was then
presenting. We are unpersuaded.
Garlock is correct that, generally, to be effective in
preserving an error, an objection must be timely, meaning contem-
poraneous with the objectionable conduct. York v. El-Ganzouri,
353 Ill. App. 3d 1, 17, 817 N.E.2d 1179, 1194 (2004). In People
v. Stewart, 343 Ill. App. 3d 963, 979, 799 N.E.2d 1011, 1024
(2003), the appellate court explained that this forfeiture rule
- 35 -
serves an important purpose because a timely objection will allow
the trial court to correct any errors. However, like most rules
dealing with the admissibility of evidence, the issue of the
timeliness of a party's objection is left to the sound discretion
of the trial court. Here, White raised the alleged Rule 213(i)
violation at her first opportunity to do so out of the presence
of the jury when the court ordered a recess in normal course.
When considered in context, the trial court was not troubled by
any delay in White's raising the issue at that time. Neither are
we.
5. Garlock's Claim That White Cannot Object
to Testimony She Elicited
Garlock next argues that "[a] fundamental flaw in the
rationale underlying the trial court's decision to grant [White]
a new trial" is that White elicited the opinions of Dr. Smith
that allegedly violated Rule 213. Garlock contends that because
White elicited this purportedly improper opinion testimony, she
cannot complain about its admission.
We reject this argument for two reasons. First, we
agree with the trial court that the new opinions expressed by Dr.
Smith on cross-examination were volunteered and not responsive
answers to questions asked by White. Accordingly, it cannot be
said that White "elicited" Dr. Smith's new opinions.
Second, even if White had done so, it would not have
mattered. As we explained earlier, White had an absolute right
- 36 -
to conduct her cross-examination of Dr. Smith in the confidence
that she knew all of his pertinent opinions regarding the case.
Garlock had the duty under Rule 213(i) to make that right a
reality.
In support of its argument, Garlock cites Nassar v.
County of Cook, 333 Ill. App. 3d 289, 303-04, 775 N.E.2d 154, 166
(2002), in which the plaintiff in a medical-malpractice action
argued that the defendant's expert witness testified improperly,
but the appellate court held "Plaintiffs cannot object where they
first elicited the testimony during their examination of [defen-
dant's expert]." However, Garlock does not mention the very next
sentence that reads as follows: "Moreover, [defendant's ex-
pert's] testimony did not involve new opinions ***." Nassar, 333
Ill. App. 3d at 304, 775 N.E.2d at 166-67.
B. The Remedy for Garlock's Rule 213(i) Violation
1. The Grant of a New Trial
Garlock next argues that even if a Rule 213(i) viola-
tion occurred, the trial court erred by ordering a new trial as a
remedy. Specifically, Garlock contends that "the jury's special
findings conclusively demonstrate that [the violation] did not
affect the trial's outcome, prejudice [White], or deny her a fair
trial." Accordingly, Garlock claims that the court's grant of a
new trial constituted an abuse of discretion. We disagree.
We first note that in reviewing the issues of (1)
- 37 -
whether a Rule 213(i) violation occurred and, (2) if so, what
remedy should be imposed, we are struck by the obvious care and
consideration the trial court gave to both of these issues. In
particular, we commend the trial court for its extensive discus-
sion with trial counsel during which the court sought to learn as
much as it could about what really happened. Too frequently,
courts of review are left with uncertainties when discovery
issues are argued on appeal because the trial court did not make
a complete record. We are fortunate that did not occur in this
case.
We also commend the trial court for taking the unusual
step of calling Dr. Smith as a court's witness to make clear (1)
the context in which his new opinions were developed, (2) his
discussions with Garlock's counsel, and (3) how he happened to
testify about his new opinions at trial. Calling Dr. Smith as a
court's witness was an unusual step, but the court was confronted
with an extraordinary situation, and it acted appropriately.
The record also reveals that the trial court carefully
considered all pertinent matters before granting White's motion
for a new trial. The court explained at length the circumstances
as it found them and why it felt compelled to take that action.
We earlier explained that this decision was a matter left to the
court's sound discretion, and we reject Garlock's argument that
the court abused its discretion by ordering a new trial.
- 38 -
In so concluding, we also reject Garlock's argument
that the jury's special findings conclusively established that
the Rule 213(i) violation did not unfairly prejudice White or
affect the trial's outcome. Garlock bases this argument upon its
contention that the special findings
"conclusively establish that the jury did not
base its decision in whole or in part on the
testimony found to violate Rule 213. First,
the jury found that [the] decedent's exposure
to Owens Corning Kaylo, an asbestos-contain-
ing thermal insulation product, was a proxi-
mate cause of his injury and death. That is,
the jury found that decedent suffered from
asbestosis. Second, the jury found that
Garlock's products were not a proximate cause
of [the] decedent's asbestosis and death.
The jury's special findings support only two
possible conclusions: the jury rejected Dr.
Smith's opinion that aspergillosis caused
[the] decedent's death, or it heeded the
court's instruction to disregard it."
We disagree with Garlock's analysis. Instead, we agree
with the trial court's determination that Dr. Smith's new opin-
ions, which constituted the Rule 213(i) violation and which came
- 39 -
forth during his cross-examination, were so potentially prejudi-
cial that granting White a new trial was entirely appropriate.
When, as here, a jury has heard improper evidence, a trial court
always possesses the authority to award a new trial to the
injured party, no matter what special findings the jury may have
made. The trial court is in the best position to determine to
what extent the improper evidence may have affected the decisions
of the jury, including any special findings. Garlock's argument
to the contrary is groundless, and the authority Garlock cites is
completely inapposite.
2. Restrictions on Dr. Smith's Testimony on Retrial
In granting White's motion for a new trial, the trial
court also restricted Dr. Smith from testifying at the new trial
"on the issues of the diagnosis of any medical condition from
which [decedent] suffered and the cause of [decedent's] death."
The court left open the question of whether Dr. Smith would be
permitted to render opinions on the ability of Garlock products
to cause asbestos disease in general.
Garlock argues that if this court affirms the trial
court's grant of White's motion for a new trial, then we should
lift the restrictions on Dr. Smith's testimony on retrial.
Garlock specifically contends that prohibiting Dr. Smith from
rendering opinions about decedent's medical condition and the
cause of his death will "prevent--rather than ensure--a trial on
- 40 -
the merits." Garlock further contends that the restrictions are
excessive and unnecessary because, at any retrial, White will
have "knowledge of the opinions and may seek to conduct addi-
tional discovery." We disagree.
Garlock is correct that Illinois recognizes a strong
public policy favoring trials on the merits whenever possible.
Here, the trial court's granting of a new trial was similar to
other actions courts have taken pursuant to Rule 219 (166 Ill. 2d
R. 219) when discovery violations occurred before or during
trial. The only difference is that this case was over, and the
jury had rendered its verdicts. Despite this difference, we look
to Rule 219 and the case law interpreting that rule for guidance
in reviewing the trial court's restrictions on Dr. Smith's
testimony on retrial. On this issue, in addition to the earlier
cases we have mentioned, we have also considered Shimanovsky v.
General Motors Corp., 181 Ill. 2d 112, 123, 692 N.E.2d 286, 291
(1998); Cirrincione v. Westminster Gardens Ltd. Partnership, 352
Ill. App. 3d 755, 765, 816 N.E.2d 730, 738 (2004); and Adams v.
Bath & Body Works, Inc., 358 Ill. App. 3d 387, 395, 830 N.E.2d
645, 653 (2005).
We have already ruled that the trial court was correct
to find Garlock violated Rule 213(i) by not timely disclosing Dr.
Smith's new opinions. The court's grant of White's motion for a
new trial certainly constitutes significant punishment for that
- 41 -
sin, given that White asked for $3 million in damages, and the
jury found in favor of Garlock and awarded White nothing. We are
also sensitive to the fact that this was a lengthy, complex, and
expensive trial the conclusion of which was aborted because of
Garlock's violation of Rule 213(i). After carefully considering
the competing interests pertaining to restrictions on Dr. Smith's
testimony on retrial, and being guided by the provisions of Rule
219 and the case law interpreting it, we conclude that the trial
court did not abuse its discretion by imposing those restric-
tions.
C. White's Claim That Garlock's Intentional Violations of
Rules 213(i) and 237(b) Require the Entry of Judgment
Against Garlock on Liability and Causation and a
New Trial on Damages Only
As earlier noted, this case is before us on appeal
pursuant to Rule 306, which permits a party to petition for leave
to appeal to this court from an order of the circuit court
granting a new trial. The last paragraph of Rule 306(a) provides
as follows: "If the petition for leave to appeal an order
granting a new trial is granted, all rulings of the trial court
on the posttrial motions are before the reviewing court without
the necessity of a cross-petition." 210 Ill. 2d R. 306(a).
Pursuant to that paragraph, White argues that Garlock not only
violated Rule 213(i) but also Rule 237(b) (210 Ill. 2d R.
237(b)), and that these intentional violations require the entry
of judgment against Garlock on liability and causation and a new
- 42 -
trial on damages only. We disagree.
One month before the November 2005 jury trial, White
served Garlock with a notice under Rule 237(b) requesting, among
other things, that Garlock produce Dr. David Carlson to testify
at trial. Garlock moved to quash the notice, arguing that Dr.
Carlson was not then and never had been an employee, officer, or
director of Garlock. The matter was extensively argued before
the trial court, which ultimately agreed with White that although
Dr. Carlson was not an employee, officer, or director of Garlock,
he was in a similar position because of his perceived economic
relationship with Garlock.
When Garlock did not produce Dr. Carlson to testify at
trial, the trial court instructed the jury at the close of
White's case in chief about that failure, explaining, in perti-
nent that: "Despite the [c]ourt's order, Garlock has failed to
produce Dr. Carlson and has failed to offer an explanation for
his absence acceptable to the court. You will receive further
instruction at the conclusion of the case related to this issue."
At the conclusion of the case, the trial court in-
structed the jury as follows:
"If a party to this case has failed to offer
evidence within its power to produce, you may
infer that the evidence would be adverse to
that party if you believe each of the follow-
- 43 -
ing elements:
1. The evidence was under control of
the party and could have been produced by
exercising reasonable diligence.
2. The evidence was not equally avail-
able to an adverse party.
3. A reasonably prudent person under
the same or similar circumstances would have
offered the evidence if it believed it to be
favorable.
4. No reasonable excuse for the failure
has been shown."
In White's posttrial motion, she raised the issue of
Garlock's failure to produce Dr. Carlson. The trial court
concluded that the sanction it entered against Garlock was
sufficient, noting that White did not take Dr. Carlson's deposi-
tion nor provide the court with information it could use to
determine that Dr. Carlson's testimony would have in fact been
important.
We earlier mentioned the obvious care and consideration
the trial court gave to the Rule 213(i) issue in this case, and
we are equally impressed regarding the court's handling of the
Rule 237(b) issue. Like other discovery issues, the appropriate-
ness of any sanction for a violation of Rule 237(b) is left to
- 44 -
the sound discretion of the trial court. We conclude that the
trial court did not abuse its discretion on this matter, and
accordingly, we decline to grant White the additional relief she
has requested on appeal.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
grant of White's motion for a new trial.
Affirmed.
MYERSCOUGH and COOK, JJ., concur.
- 45 -