APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Plaintiff, Linda Carlson, appeals from a directed verdict for defendant Irving Air Chute Company, Inc., (hereafter Irving) entered at the close of all the evidence and a jury verdict in favor of defendant General Motors Corporation (hereafter GM). This action arose out of an automobile accident on March 22, 1965, wherein plaintiff sustained permanent paralysis from her neck down to her feet and during subsequent treatment had her left leg amputated above the knee. The complaint against both defendants contained counts of negligence and strict product liability and sought damages in the amount of $2,000,000. In substance the complaint alleged that plaintiff's injuries were proximately caused by a negligently designed or an unreasonably dangerous defective seat belt which broke when her automobile left the highway and collided with certain objects, causing her to be thrown from the car rather than holding her securely and safely in the driver's seat. Irving was the manufacturer of the seat belt and GM was the manufacturer of plaintiff's 1965 Corvair in which the belt was installed.
The seat belt in question can be described as follows: The left half of the belt is connected to the floor of the car at a metal triangular anchor plate located at a point just behind the left edge of the driver's seat. The anchor plate has a slot through which the webbing of the belt is passed and sewn back onto itself in a loop, about four inches above the plate. A plastic piece, the sewing cover, *fn1 covers this looped area. After the sewing cover the remainder of the webbing runs to a metal fitting called a D ring because it is shaped like the letter D. The webbing passes through a slot in the D ring and is sewn back onto itself. The right half of the belt is the buckle half. It is attached to the floor in a fashion similar to the left half. The subject belt broke at a point three-quarters of an inch above the sewing cover on the left half of the belt.
Plaintiff's theory of the case was that the belt broke when the driver's seat slid toward the driver's door during the accident causing the belt to be pinched between the side-arm or side-bar (the metal piece shaped like a hockey stick on the left side of the driver's seat and a screwhead on the inboard side of the mud sill, a strip of metal running along the bottom of the door opening; that this pinch resulted in the belt breaking at a load force well below the limits required by law; that this damaging pinch would have been prevented had the belt been equipped with an inexpensive plastic piece covering the area of breakage called a "plastic boot."
GM's theory was that the belt broke at the webbing when it passed over the center pillar cover or windlace (a plastic strip located behind and extending upward from the center of the mud sill) while placed under a load force greater than that required by law; that the belt was not pinched between two metal pieces as contended by plaintiff; that plaintiff's paralytic injury was caused while she was safely secured by the seat belt.
On appeal plaintiff contends that (1) as to GM the verdict was against the manifest weight of the evidence; (2) the court erroneously excluded evidence of certain federal regulations and industry standards as to seat belts which plaintiff claims were "in force and effect" at the time the Carlson automobile was sold, while admitting "obsolete" standards from many years before; (3) the court erroneously admitted evidence of certain GM laboratory tests because they were not performed under similar conditions as those surrounding the occurrence; (4) the court erroneously admitted the opinion testimony of GM's medical expert as to the cause of injury because it was based upon a hypothetical state of facts not in evidence; (5) it was error for both the court and defense counsel to "continually orally instruct" the jury during voir dire examination that they must not be swayed by sympathy; (6) it was error for the court to admit certain GM laboratory tests, the results thereof and the testimony relating thereto because they were not produced for the plaintiff during discovery proceedings; (7) it was error for the court to allow two "testimonial" diagrams prepared by GM's reconstruction expert to be taken to the jury room during the jury's deliberations; (8) the court erroneously refused plaintiff's instruction that as a matter of law she was not guilty of contributory negligence nor did she assume the risk of injury; and (9) the court erroneously directed a verdict for the defendant Irving Air Chute at the close of all the evidence.
In view of the position we take as to point (6) supra, we will present only a summary of the facts contained in the 4500 page record. A detailed statement of facts regarding point (6) will be set forth thereafter.
On March 22, 1965, plaintiff, a 17 year old girl, and her girl friend of the same age, Marilyn Roadarmel, drove from Decatur, Illinois, to Charleston, Illinois, in plaintiff's 1965 Corvair purchased by her father on November 27, 1964. They began the return trip to Decatur at about 9:50 P.M. Both girls wore their seat belts. They traveled on Route 130 in a northerly direction; Route 130 is a two-lane highway, one lane in each direction. The car speed was approximately 50 to 55 miles per hour. There was a strong wind coming from the southwest which hit against the left side of the car. About a mile or two north of Charleston the car approached a moderate "S" curve. This area of Route 130 was not lighted nor was there any marking as to the curve. The car left the highway in an easterly direction and hit the east embankment of a ditch running parallel to the highway with the left front portion of the car. The car then began to rotate clockwise while moving in a northerly direction, but backwards. It proceeded to flip over onto its roof, pivoting on its left rear corner, and hit a small five inch by five inch road marker with the right railing of the roof. Then it flipped on its right side and the bottom of the car hit a telephone pole which was about five feet north of the road marker. When the car hit the pole, the front of the car was facing east and the driver's side was further in the air than the passenger side. The car sheared off the pole at a point about two and one-half feet above the ground. The car then came to a rest in an upright position about 50 feet past the pole, a total distance of 186 feet from where it left the highway. Marilyn Roadarmel's seat belt remained intact. She suffered minor injuries and was able to return to school within a week and one-half. Plaintiff's seat belt broke in the webbing about three-quarters of an inch above the sewing cover on the left side. She was thrown from the car in a northeasterly direction when it hit the pole or the moment before it hit the pole and landed about 25 feet from the pole.
Robert Smith, GM's reconstruction expert, testified that plaintiff's forward force against her belt at the point it broke was about 70% greater than the passenger's on her belt. William Mathews, plaintiff's expert witness, testified that the respective forward forces were almost alike.
Mathews further testified that there were matching deformations in the side-bar of the driver's seat and the rearmost screw on the mud sill indicating that these two metal pieces had come together during the accident. The left half of the driver's seat belt rises between the side-bar and the sill; the webbing at a point three-quarters of an inch above the sewing cover (where it broke) lies between the side-bar and the screw on the sill. Based upon tests he had run and observations of the Carlson car, Mathews was of the opinion that when the car rolled over from its roof to its side, the driver's seat was pulled toward the driver's door; that this force created a pinch on the webbing between the side-bar and the screw on the sill; that this pinch plus the pulling force on the belt caused by the ejection of plaintiff from the car were sufficient to break the belt at the webbing; that the pulling force at which the belt broke was below that which the law required the belt to withstand; that had a plastic boot covered the area of pinch, the belt would not have broken at that tension level; that the absence of the plastic boot was an improper design; and that its absence left the belt in an unsafe condition.
Dr. Eugene Lutterbeck, plaintiff's witness, testified that from x-rays taken of the plaintiff he determined that the fractures to her third lumbar vertebra and the fourth and fifth cervical vertebrae were compression type fractures caused by an extreme flexion, a compressing force such as a blow to the top of the head; that there was a narrowing of the fourth and fifth cervical vertebrae which resulted in the paralysis; that there was only a remote possibility (25% chance) that these fractures causing the paralysis were caused while she was still in the car.
Dr. Donald Miller was later called on rebuttal by plaintiff. He reviewed the x-rays and corroborated Dr. Lutterbeck's testimony that the vertebral fractures were caused by a compression of these bodies when plaintiff was thrown from the car.
Dr. William Schnute, a defense witness, testified that after reviewing x-rays, he concluded that the fractures to the vertebral bodies were avulsion fractures, i.e., ones caused by a snapping action such as when someone sitting in a car which is standing still is hit from behind by another car, or where a car turns over and the passenger remains stationary and the impact of the car throws the head back. He found no narrowing in the vertebral bodies which, if present, would have been evidence of compression fractures. It was his opinion that plaintiff's paralytic injuries occurred while she was safely secured by the seat belt. Dr. Schnute's testimony was presented before that of Robert Smith, GM's reconstruction expert. In answering the hypothetical question posed to him as to causation of the paralytic injuries, Dr. Schnute was asked to assume certain facts not yet in evidence. Plaintiff's counsel objected but Dr. Schnute was allowed to express his opinion when defense counsel promised that said facts would be forthcoming at a later time, i.e., during Smith's testimony.
Richard Studer, an engineer employed by GM, ran an extensive series of tests for GM. In summary, the more significant ones were designed to show that when plaintiff's belt broke in the webbing, the point of breakage could not have been located between the side-bar of the driver's seat and the screw on the mud sill; thus there was no pinch. Tests which pulled the left half of the seat belt alone, and other tests which pulled a body block (simulating a human) contained in a seat belt, at various pounds of pressure and angles, showed that when the seat (side-bar) contacted the mud sill, the area where the belt broke (the area of alleged pinch) was further to the outside of the car than plaintiff contended; it was over the center pillar cover or windlace as it is called. Studer was of the opinion that the belt broke in the webbing because it was against a hard surface (the windlace) with a pulling pressure in excess of 6000 pounds; in his deposition he stated the pulling pressure was 5000 to 7000 pounds.
In point (6) raised by plaintiff on appeal she contends that certain tests of GM should not have been admitted into evidence because they were not disclosed to plaintiff during extensive discovery proceedings. The related facts follow.
The subject accident occurred on March 22, 1965. The complaint was filed on December 9, 1966. GM filed an answer on January 13, 1967. Interrogatories were served on GM on January 25 asking for the names of any persons who had inspected plaintiff's car or seat belt and for any reports prepared pursuant thereto. Answers were returned on February 20 and March 29. A petition to advance the cause for trial was filed by plaintiff on May 1. Pursuant thereto an order was entered setting the cause for a pre-trial hearing on June 21. In June or on July 10 GM inspected plaintiff's car in Louisville, Kentucky. On October 27 plaintiff was ordered to turn over the seat belt first to Irving and then to GM for inspection and testing purposes. On November 8 plaintiff served further interrogatories on GM dealing with the design of the car frame around the driver's seat and the design of the mud sill just inside the driver's door. Answers were returned on December 12. GM examined the seat belt in Warren, Michigan, on January 26 and 27, 1968. On April 18, 1968, the cause was set for trial on September 16, 1968. On May 20 Irving moved for the production of various items including the following:
"2. [T]he names, addresses and affiliations of all investigators, * * * consultants, and others who have knowledge of the condition of the seat belt either at the time of the automobile crash or subsequent thereto.
3. [A]ll reports, * * * and exhibits made * * * by investigators, consultants, * * * relating to the condition of the seat belt at the time of the crash * * * or prior thereto.
4. [A]ll photographs, * * * drawings * * * of plaintiff's seat belt, her vehicle, the crash scene * * *."
An order was entered pursuant thereto (applicable to all parties) requiring the production of said items but limiting the data to that intended for use at trial, and the order was complied with. Plaintiff presented GM with a 15 page report prepared by William Mathews. A portion of the report stated that during the accident a side load had caused the driver's seat to move toward the door of the car; that the left side-bar of the front seat came in contact with the mud sill; that the webbing was pinched between the side-bar and mud sill; that this resulted in a reduction of the load carrying capacity of the belt webbing; that the belt did not perform its proper function; that the failure of the webbing at a low load force was further evidenced by the lack of damage at the hardware (buckle, anchor plate) since it would fail there before failing in the webbing. He stated his opinion that the failure would not have occurred had the pinch been protected by a plastic boot cover; that the failure to provide this cover was a dangerous defect. Photographs of plaintiff's car were also given to GM.
GM produced a three page report written by Richard Studer on May 17, 1968, describing the damaged belt in detail and describing the streak patterns that were prevalent on the inside of the belt (the portion facing the driver). Photographs accompanied the report.
On July 22 plaintiff moved for an order requiring the defendants on or before August 15 to list all names and addresses of any experts, engineers, investigators, etc., who:
"* * * have knowledge of the condition of the seat belt involved * * * either at the time that the automobile crashed and/or prior thereto, and/or subsequent thereto, and for the production of a written report of any expert, consultant or other person that the defendant or any of them intends to call at the trial * * * to render an opinion as to what might or could have caused the seat belt involved * * * to tear, shred, break or pull apart."
Plaintiff further moved for a protective order prohibiting GM from calling any expert, other than Richard Studer, from testifying as to an opinion of what caused the seat belt to break, and further asked that Studer's testimony be limited to the information and facts contained in his three page report of May 17 unless he provided plaintiff with a written report outlining in detail his opinions as to what "might or could have" caused the seat belt to break.
A lengthy hearing was held on July 22 pursuant to plaintiff's motion. GM claimed to have complied with the May 20th order since it produced the only report it had. Counsel for GM further stated that the order did not require GM to produce a report beyond the scope of relating to the condition of the belt, i.e., GM was not required to disclose its theory as to how the belt broke. Counsel for GM acknowledged that plaintiff's report did set forth her theory of the case but that this had not been required by the May 20th order. Plaintiff's counsel argued that he had revealed his litigation plans in the Mathews 15 page report; he felt GM was required to do the same. Counsel for GM informed the court that he planned to have an expert testify at trial as to facts and conclusions not contained in the three page report but that the expert testimony concerning the condition of the belt itself would be limited to that contained in the report. The motion judge stated that a protective order would be issued prohibiting Richard Studer from testifying as to anything pertaining to the condition of the belt not contained in the report. It was generally agreed that the May 20th order required the parties to produce only existing reports pertaining to the physical condition of the belt and not opinions as to why it broke. Plaintiff again requested that GM be required to produce test results regarding its theory as to the reason the belt broke. Plaintiff's counsel told the motion judge, "Well, the point is, * * * if they wait to conduct the tests [as to their theory of causation] until the day before trial, then what is plaintiff to do?" The judge responded that the trial judge would enter an appropriate sanction. The judge stated that GM would not be required to reduce the test results to writing and submit a report to plaintiff, but he suggested that if no report was forthcoming, plaintiff's concern could be obviated by taking Studer's deposition. The ...