Appeal from the Circuit Court of Cook County; the Hon. Alfred
T. Walsh, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
On June 18, 1977, the plaintiff, Clifton Barnes, lost four fingers when he placed his hand in an electric lawn mower manufactured by the defendant, Black & Decker Manufacturing Co. Barnes charged in his product liability action against Black & Decker that the mower was defective. At the close of the evidence, the trial court struck Black & Decker's amended answer and entered a default judgment against Black & Decker on the issue of liability because the trial court believed that defense counsel had deliberately deceived the court in its production of a switch purporting to be "identical" to the type that was used on the lawn mower involved in the accident. The jury then returned a verdict of $150,000 on the issue of damages.
The trial was marked by acrimony between counsel and also between defense counsel and the court. The details of the various relationships are neither edifying, illuminating nor legally significant. The mere notation of the tenor of these relationships is sufficient to obtain the proper perspective to consider the first issue in the case at bar. On appeal, Black & Decker contends that the court erred in striking its amended answer as a sanction and that it erred in failing to give the jury instructions on the issue of comparative fault. Black & Decker further contends that there were numerous other trial errors. We believe the court was in error in striking Black & Decker's pleadings and in entering default judgment, and for that reason the cause will be reversed and remanded. We will also briefly address the issue of jury instructions regarding comparative fault. The remaining issues on trial error will probably not arise at a new trial, and consequently they will not be addressed.
The trial in this cause was scheduled to begin on September 7, 1982. On July 23, 1982, several weeks before trial, the trial court ordered Black & Decker to produce two switches; one switch "identical" to the one used in the lawn mower involved in the accident, and the second, identical to the switch on the Black & Decker lawn mower now being used. The hub of the controversy concerning the production order revolves around the production of the first switch, that is, the switch identical to the one used in the lawn mower involved in the accident. To understand the controversy, it is necessary to know the progression of the pleadings and discovery from the inception of the lawsuit until trial and also to know a little about the types of switches.
There are three different types of switches involved in this dispute. Type I switch is an "on/off" rocker switch, the switch that was on the mower used by the plaintiff. Type II switch is also an "on/off" rocker switch, but this type was designed after the plaintiff's mower was manufactured. It has the identical external features as the Type I switch, but has a different internal design. A third type of switch is referred to as a dead man's switch and is a style of switch that has replaced the rocker switch and at the time of trial was the switch currently used. This switch was produced as requested and thus is not an issue in this instant controversy.
When Barnes filed his original complaint against Black & Decker in October 1977, he alleged that Black & Decker had constructed the lawn mower "in a dangerous and unsafe manner, in that the blades thereon were not adequately shielded to prevent injury to the plaintiff * * * and failed to give warning of the existence of said dangerous and unsafe condition." The complaint sounded in negligence and was completely silent with regard to the design of the switch. Thereafter, in February 1979, Black & Decker took the plaintiff's discovery deposition. The plaintiff there testified that when he used Black & Decker's electric mower on the day of the accident he was not aware of any switch or control on the machine.
In April 1982, the plaintiff successfully petitioned for leave to file an appearance for new trial counsel and for an extension of time to complete discovery. The plaintiff then filed extensive supplemental interrogatories and requests to produce. Specifically, one of the requests to produce was the production of all written materials pertaining to the design of the "on/off" switch. In May 1982, with the lawsuit still proceeding as a negligence action, Black & Decker took the deposition of Dr. Malcolm Newman, the plaintiff's expert witness. Dr. Newman voiced eight specific criticisms of the type of Black & Decker electric lawn mower used in the plaintiff's accident. Of the eight criticisms, only two referred to characteristics of the switch and neither of those two addressed an internal characteristic of the switch. Also, the deposition of C. Lee Gough, Black & Decker's safety assurance manager, was taken. Gough testified that the lawn mower used by the plaintiff was manufactured during the 21st week of 1975, that is, approximately May 1975.
Then, sometime in June 1982, the plaintiff presented before the court a motion for leave to file an amended complaint. The amended complaint alleged that Black & Decker produced and marketed a defectively designed product. Specifically, only one of the plaintiff's allegations of design defect was particular with regard to the internal design of the switch. This allegation provided that Black & Decker "[f]ailed to equip said lawn mower with a switch that would not activate when turned to the off position." Black & Decker then submitted on July 6, 1982, a response to the plaintiff's motion. In its response, Black & Decker asserted that the plaintiff, on the eve of trial, was attempting to change the theory of the case from negligence to strict liability. On July 21, 1982, the trial court granted the plaintiff's motion. Thereafter, Black & Decker filed an answer to the amended complaint denying all allegations of design defect.
With regard to discovery, on June 2, 1982, the plaintiff filed an amended supplemental request to produce wherein he requested a switch used at the time of the accident and one that is currently being used. As the case continued through pretrial discovery, the plaintiff, on July 13, again requested from Black & Decker, this time in front of the court, the production of two switches; one "identical" to the switch that was on the mower used in the accident (Type I) and one identical to the switch used now. Plaintiff's counsel then reiterated this request, on July 20 and then again on July 21, the last time adding a certain emphasis wherein he stated to the court, "[T]he main part of [my] motion is to produce a switch identical to the one that is now being used."
During the course of these discovery requests, defense counsel displayed a certain reluctance to comply with the plaintiff's request. Counsel continued to inform the court that he would produce the switches, but he would then proceed to suggest that the plaintiff could just as easily get the dead man switch himself. Defense counsel did however indicate that he was having difficulty maintaining contact with the people who were to supply the requested Type I switch. He further indicated that while he thought Black & Decker did manufacture the switch, it had not been used in some time and thus was not easily obtainable. However, at a later date, defense counsel informed the court that Black & Decker did not manufacture the requested switch but rather it was manufactured by Lucerne Products. Nevertheless, between June and the beginning of September 1982, pursuant to the plaintiff's production requests and a court order, Black & Decker did provide the plaintiff with numerous discovery items. Specifically, in June, Black & Decker produced the engineering design drawing for the Type I switch. Then on August 27 Black & Decker, pursuant to the July 23 order, produced two switches. Finally, in early September, Black & Decker produced the engineering design drawing for the Type II switch.
At this stage, it is critical that we momentarily depart from relating the chronology of the events so that we can expand on the above discovery productions. When Black & Decker produced the two switches, it produced a Type II switch, i.e., one that appears to be identical to the one requested, not a Type I switch, i.e., the identical switch requested by the plaintiff. In addition, on the face of the engineering drawings was revealed the fact that the drawing for the Type I switch was first drawn in 1969 and last drawn in April 1975, while the drawing for the Type II switch was first drawn on January 9, 1976. Based on the deposition of Gough of Black & Decker, wherein he stated that the mower in question was manufactured in approximately May 1975, it is clear that the Type II drawing was drawn after the lawn mower which injured Barnes was manufactured.
On September 7, 1982, the scheduled date for the trial, Black & Decker informed the court that the plaintiff had retained the services of new experts. As a result the trial was continued until after the depositions of the new experts. These depositions were taken on Thursday, September 23 and the trial was set for the following Monday, September 27. The new experts testified that after testing the Type II switches produced by Black & Decker and the switches on lawn mowers previously tested by a Black & Decker expert, mowers similar to the one used by the plaintiff, they were of the opinion that the internal design of the rocker switch made the Black & Decker electric mower unreasonably dangerous. They indicated that these switches (Type II) had a false, intermediate position between the on and off positions which gave the impression that the mower was off, but which actually left the mower still activated. These depositions appear to be the first instance where Black & Decker became aware of the fact that the plaintiff was focusing his theory of the case on the internal design of the switch.
On September 28 the trial began. The plaintiff testified that as he was mowing the yard the mower stopped and he pushed the switch to what he thought was the off position. He put his left hand in the chute and pulled some grass out. He repeated the act, but then stated that after pulling his hand out the second time the mower started up. He then noticed that his fingers had been cut off. This testimony is significantly different from his deposition testimony, wherein he stated that he was not aware of any switch on the mower.
On September 29 and 30, the plaintiff's experts were called to testify, and their testimony mirrored that which they had given in deposition. Specifically, one of the experts, Robert Weskamp, related testimony regarding the internal design of the switch and its false, intermediate position through the use of a ...