Appeal from the Circuit Court of Cook County; the Hon. Brian
B. Duff, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
After suffering personal injuries in an automobile collision while allegedly wearing his seat belt, plaintiff brought a strict liability action against defendant automobile manufacturer and defendant seat belt manufacturer, alleging that manufacturing and design defects rendered the seat belt unreasonably dangerous. Defendants moved to preserve the seat belt assembly and to refrain from destructive testing, and the trial court entered two protective orders to such effect. Plaintiff's expert, in violation of these orders, disassembled the seat belt assembly and performed testing. As a result thereof, defendants moved the trial court to bar plaintiff from offering any testimony on the condition of the seat belt. The trial court entered the requested sanction, and, based thereupon, defendants moved to strike and dismiss or for summary judgment. The trial court granted defendants' motion, and plaintiff appealed.
We affirm the decision of the trial court.
While operating his Mercury Cougar on the John F. Kennedy Expressway in Chicago, plaintiff, Ronald Ralston, was involved in a collision with another automobile. Plaintiff sustained injuries to the head, chest and ribs while wearing his seat belt, and, consequently, brought an action in strict liability against defendant automobile manufacturer, Ford Motor Company (Ford), and defendant seat belt manufacturer, Allied Chemical Corporation (Allied), alleging that the seat belt, due to design and manufacturing defects and defendants' failure to warn, was unreasonably dangerous.
In an attempt to preserve the seat belt assembly involved in the occurrence, defendants moved individually for protective orders. Two such orders were issued by the court on December 30, 1980, and on August 17, 1981, requiring that the seat belt be preserved in its then present condition and location, that defendants be notified of any examinations or tests to be conducted on said belt by plaintiff, and that no destructive testing be performed without further order of the court.
Subsequent to the entry of these protective orders and concededly in violation thereof, plaintiff's expert, Herbert Thomiszer, without notice to defendants, proceeded to disassemble, examine, and test the seat belt assembly. In response to Thomiszer's actions, defendants filed motions to bar testimony, requesting that plaintiff be barred from offering any testimony at trial regarding the condition of the seat belt involved in the occurrence.
In order to determine whether to grant defendants' motions, the trial court ordered each party to submit the names of two experts, from which the court selected and appointed an independent expert, Frank Pepe of the United States Testing Company, to examine the seat belt at issue and report the effect, if any, of Thomiszer's tests upon it. The court also ordered that Thomiszer be redeposed as to the specific actions he performed during his examination of the seat belt assembly. Pepe's report indicated that although Thomiszer's disassembly had been carefully done, his testing had not been conducted in compliance with the applicable Federal Motor Vehicle Safety Standards for seat belt testing and could cause erroneous test results on any subsequent appropriate testing performed on the seat belt.
Based on Pepe's reports, Ford and Allied again moved to bar plaintiff from offering any evidence at trial regarding the condition of the seat belt. The motions to bar testimony were granted by the trial court on December 2, 1982, in an order that barred plaintiff "from presenting any testimony at the trial of this cause regarding the condition of the allegedly defective seat belt which is the subject of this action."
Plaintiff thereafter moved to vacate the sanction order and for reconsideration. On May 13, 1983, the court heard argument on plaintiff's motion to vacate and reconsider and ordered Pepe to appear for an evidentiary hearing to elaborate on his previously filed report. The evidentiary hearing was held on July 20, 1983. At this hearing, Pepe testified at length and in great detail as to the internal workings of the seat belt assembly, the findings of his prior report, and the possible effect of Thomiszer's testing of the seat belt on future tests which might be performed. Further argument on plaintiff's motion to vacate and for reconsideration was heard on July 27, 1983. At the conclusion of this hearing, the trial court found that plaintiff's expert had violated the protective orders and that the violative conduct, the unauthorized tampering, had "thoroughly and permanently compromised" the validity, credibility and possibility of accuracy of any future tests that could be performed on the seat belt assembly involved in the occurrence. Fully aware of the seriousness of the sanction that it had imposed, the trial court denied plaintiff's motion to vacate and for reconsideration.
Thereafter, defendants moved to dismiss or for summary judgment. Several hearings on these motions were held. At the first of these hearings, plaintiff requested a briefing schedule because he felt he needed to respond to defendants. The court scheduled the motion to be heard on September 30, 1983. Plaintiff failed to respond in writing and, at the scheduled hearing, presented the trial court with no written response. After noting how much time and effort had been spent on this case and the seriousness of the sanction that had been imposed, the trial court asked plaintiff why he had prepared no written response to defendants' motion. Plaintiff replied that he did not "feel it was necessary" and that he could respond orally. Finding that it was "absolutely ridiculous" to expect the court to absorb and rule on such a motion without having had any time to think about it, and despite plaintiff's protestation that he did not want more time and wanted to cover the matter that morning, the trial court granted plaintiff more time to file a written response.
A third hearing was held on November 2, 1983. At the outset of this hearing, the trial court denied defendants' motions to dismiss to the extent that it relied on Code of Civil Procedure section 2-615 (Ill. Rev. Stat. 1983, ch. 110, par. 2-615), finding that plaintiff's complaint was adequately pleaded, and considered defendants' motions on the basis of Code of Civil Procedure sections 2-619 and 2-1005. (Ill. Rev. Stat. 1983, ch. 110, pars. 2-619, 2-1005.) The court phrased the issue before it as whether "any evidence is or can be put in in any way or if this case is still sustainable on the issues of fact."
At this hearing, plaintiff asserted that he could prove a prima facie case of products liability without the use of expert testimony concerning the possibility of a specific defect in the allegedly defective seat belt. By way of evidence in support of this assertion, plaintiff submitted only his deposition testimony, in which he stated that he was involved in an automobile accident while wearing his seat belt and that he was thrown against the interior of the auto, sustaining injuries to his head and other parts of his body. From this evidence, plaintiff claimed that he had shown that in the absence of abnormal use or reasonable secondary causes, the seat belt failed to perform in the manner reasonably expected in light of its nature. Although plaintiff postulated that he could "possibly show perhaps that seat belts do not perform as a unit properly," no evidence other than ...