JULY 25, 1975.
VICTOR E. BIEHLER ET AL., PLAINTIFFS-APPELLANTS,
WHITE METAL ROLLING & STAMPING CORPORATION ET AL., DEFENDANTS-APPELLEES.
APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 19, 1975.
Plaintiffs Victor and Marian Biehler brought this product liability action against defendants White Metal Rolling and Stamping Co. (hereafter called "White Metal") and Sears, Roebuck and Co. (hereafter called "Sears") to recover damages for personal injuries caused by the collapse of an allegedly defective aluminum combination ladder. After a jury trial, a verdict was returned for defendants upon which judgment was entered. Plaintiff's post-trial motion was denied. On appeal, plaintiffs contend they were denied a fair trial as a result of defendants' abuse of discovery and because of numerous errors which occurred during trial.
The record shows that plaintiffs purchased from Sears a 7-foot combination stepladder manufactured by White Metal. Plaintiffs had seldom used the ladder, and on April 3, 1969, while Victor Biehler was coming down from the third step, the stepladder collapsed and tipped to the right. As a result of the fall, plaintiff sustained multiple fractures of the bones in his left ankle, which caused the left leg to be shorter than the right with a 35-percent loss of use.
The parties presented conflicting expert testimony regarding the cause of the fall. Plaintiffs' witness, Dr. John McNabb, an engineering professor experienced in stress analysis, testified that, in his opinion, the collapse was caused by defective design in that the front side rails of the ladder were only one-twentieth of an inch thick, and the rails buckled because they were too thin to bear the weight placed on them.
Defendants' expert, Earl Records, was the White Metal engineer chiefly responsible for the design and manufacture of the ladder. He testified that the bottom portion of the front side was designed to move outward when weight was applied to the steps, and therefore it could not have spontaneously buckled inward as indicated by plaintiffs' witness. Defendants' expert further testified that in his opinion the distortion of the right front side rail was caused when the ladder tipped to the right and struck a planter at which time a sudden force was applied to the ladder.
In support of plaintiffs' primary contention, that they were denied a fair trial as a result of defendants' continuing abuse of discovery, reference is made to numerous delays and instances of noncompliance appearing in the record. In fact, defendants in their brief admit: "[I]t is patently obvious that the defendants were delinquent with respect to filing objections to interrogatories, answers to interrogatories and in complying with orders for the production of documents, etc."
During the 3 years after the complaint was filed and before trial, plaintiff served four sets of interrogatories on defendants and filed three motions to produce documents and photographs. These procedures can best be summarized by the following table:
Plaintiffs' Discovery Date Ordered Date of Actual Response _____________________ for Response Sears White
Inter. Nos. 1-30 3-12-71, 7-16-71 ---- 8-24-71 11-2-71 *fn1 12-9-71 11-23-71 *fn2
Inter. Nos. 31-50 5-21-71 *fn3, 7-16-71 ---- 8-24-71 11-2-71*fn1 12-9-71 11-23-71*fn2
Inter. Nos. 51-58 7-25-72 12-12-72 11-27-72
Not in Not in 1st Motion to Produce 9-7-72, 12-1-72 Record Record
Inter. Nos. 59-105 1-11-73, 3-12-73 Not in 5-11-73 5-23-73 *fn4, 6-7-73*fn4 Record
2nd Motion to Produce 3-2-73, 5-11-73 5-14-73 5-23-73 *fn5, 6-7-73 7-20-73 *fn6 7-16-73*fn6
3rd Motion to Produce 5-4-73, 5-23-73 ---- ---- 6-7-73, 7-24-73 7-20-73 7-24-73
Int. Nos. 106-115 5-23-73, 6-7-73 7-31-73 7-16-73 7-24-73*fn4