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05/03/94 M. OVETA PICKERING v. OWENS-CORNING

May 3, 1994

M. OVETA PICKERING, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ARVEL PICKERING, DECEASED, PLAINTIFF-APPELLEE,
v.
OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT. CHARLES ANDERSON, PLAINTIFF-APPELLEE, V. OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT. CARL OSTERMAN, PLAINTIFF-APPELLEE, V. OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT. DONALD DOSSETT, PLAINTIFF-APPELLEE, V. OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 90-L-1546, No. 91-L-621, No. 91-L-622, No. 91-L-623. Honorable George J. Moran, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1994.

Welch, Lewis, Goldenhersh

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

These four consolidated actions, one for wrongful death and survivorship brought by M. Oveta Pickering, as special administrator of the estate of Arvel Pickering, deceased, and three for personal injuries brought by Charles Anderson, Carl Osterman, and Donald Dossett, were brought to recover damages arising from injuries sustained by decedent and plaintiffs through employment-related exposure to asbestos-containing insulation products manufactured or distributed by defendant, Owens-Corning Fiberglas Corporation. The case was tried to a jury in the circuit court of Madison County, and the jury returned verdicts in favor of plaintiffs and against defendant, assessing both compensatory and punitive damages. Final judgment was entered April 13, 1992. Defendant's posttrial motion was denied September 15, 1992, and defendant's notice of appeal was filed October 14, 1992.

Defendant raises several issues on appeal. We will present only those facts necessary for our Disposition of those issues. The first issue relates to the consolidation of the four cases in the trial court. The cases were consolidated for trial over defendant's objection by order dated October 7, 1991, the court pointing out that all of the plaintiffs were allegedly exposed to asbestos while employed at the Clark Oil Refinery in Roxana, Illinois. Defendant moved to sever the wrongful death action from the personal injury actions, arguing that presentation of evidence and argument relating to punitive damages in the personal injury actions would be prejudicial to defendant in the wrongful death action, in which punitive damages are not allowed. (See Mattyasovszky v. West Towns Bus Co. (1974), 21 Ill. App. 3d 46, 52-53, 313 N.E.2d 496, 500-501, aff'd (1975), 61 Ill. 2d 31, 330 N.E.2d 509.) In response, plaintiffs proposed that any prejudice could be averted by allowing the jury to reach a verdict in the wrongful death action before presenting any evidence regarding defendant's net worth or argument concerning punitive damages.

By order entered March 6, 1992, the trial court denied defendant's motion to sever and adopted plaintiffs' proposed procedure. Specifically, the procedure was as follows: plaintiffs would not be allowed to mention punitive damages in opening statement; both parties would present all their evidence except that relating to defendant's net worth, which is relevant only to the issue of punitive damages; the parties would argue the wrongful death action, the jury would be instructed on that action, and that action would be submitted for verdict; and following a verdict in the wrongful death action, the parties would present evidence on defendant's net worth, and the personal injury cases would be argued and submitted to the jury.

On April 1, 1992, defendant filed an objection to the court's order of March 6, 1992, adopting this procedure. Defendant argued that the order violates Illinois's proscription against bifurcated trials (see Mason v. Dunn (1972), 6 Ill. App. 3d 448, 451, 285 N.E.2d 191, 193) and would be prejudicial to defendant. In this objection, defendant argued that the procedure would be prejudicial to defendant not only in the wrongful death action but also in the personal injury actions, as the jury would hear evidence of decedent Pickering's death by asbestosis, which evidence would not be admissible in the personal injury actions, and that the jury's deliberations in the wrongful death action would, in some inarticulated way, affect its deliberations in the personal injury actions to the prejudice of defendant.

On appeal, defendant abandons its argument that the trial procedure violates Illinois's proscription against bifurcated trials and argues only that the trial court abused its discretion in denying defendant's motion for severance because the consolidation prejudiced defendant.

The Illinois Code of Civil Procedure provides that an action may be severed, and actions may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right. (735 ILCS 5/2-1006 (West 1992).) A motion to sever is addressed to the sound discretion of the trial Judge, to be exercised in each case by an appraisal of administrative convenience and the possibility of prejudice to substantial rights of the litigants in the light of the particular problems which will arise in the course of the trial. ( Mount v. Dusing (1953), 414 Ill. 361, 367, 111 N.E.2d 502, 505.) Inherent in the power to consolidate is the authority to integrate evidence at a joint trial in the interest of convenience and economy. Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 683, 547 N.E.2d 1345, 1357, 138 Ill. Dec. 724.

Defendant argues that it was prejudiced by the consolidation in two ways: (1) the jury in the personal injury cases heard about Pickering's death from asbestosis even though the three living plaintiffs suffered only from mild to moderate asbestosis, and the jury based the personal injury plaintiffs' damages on those awarded in the wrongful death case; and (2) the jury in the wrongful death action heard argument and evidence related to punitive damages and defendant's wilful misconduct even though punitive damages were not recoverable in the wrongful death action.

Defendant argues that evidence of Pickering's death, introduced in the personal injury cases, "undoubtedly inflamed the jury and increased the compensatory damages awarded to the personal-injury plaintiffs." Defendant argues that plaintiffs' counsel continually attempted to link the living plaintiffs with decedent in his argument and comments to the jury and asked the jury to consider the damages it had already awarded in the Pickering case as a framework for damages in the personal injury actions. Defendant concludes that "it is inconceivable that this barrage of argument and testimony about Mr. Pickering's suffering, death and damages did not influence the jury's decisions about his three colleagues, who allegedly suffered only mild or moderate impairments". (Emphasis in original.)

While defendant insists that some prejudice must have resulted from the consolidation of the wrongful death and personal injury actions, it points to no objective indication of such prejudice. We note that it is particularly difficult for us to evaluate any possible prejudice as defendant/appellant has elected not to provide us with a report of proceedings, and we will not presume prejudice where there is no objective indication of it. (See O'Brien v. Walker (1977), 49 Ill. App. 3d 940, 947-48, 364 N.E.2d 533, 538, 7 Ill. Dec. 372 (the party asserting error must demonstrate prejudice and it will not be assumed by a court of review).) As this court pointed out in Schwartz v. Swan (1965), 63 Ill. App. 2d 148, 159, 211 N.E.2d 122, 127:

Juries try and determine fact issues in extremely complicated cases involving third party complaints, cross claims [sic], counterclaims, [and] multiple plaintiffs and defendants, with a high degree of perception. One of hundreds of examples is the case of Nelson v. Union Wire Rope Corporation [citation], in which the jury assessed damages in 18 separate verdicts, some involving injuries and some wrongful deaths, and distinguished between the defendants in a complicated case to the extent that one was exonerated. Properly instructed, there is no reason to anticipate confusion of the jury, or prejudice to the rights of any of the parties."

In the instant case, the jury was instructed in all four of the consolidated cases that the rights of each plaintiff were separate and distinct, that each plaintiff was entitled to a fair consideration of his own case, that each case was to be decided as if it were a separate lawsuit, and that each case must be governed by the instructions applicable to that case. The jury in the instant case awarded different amounts of compensatory damages to each of the plaintiffs, demonstrating that it had carefully and rationally considered the actual damages suffered by each. We see no indication of any prejudice to defendant as a result of the consolidation of the wrongful death action with the three actions for personal injuries.

Defendant argues that it was prejudiced in the wrongful death action because the jury was allowed to hear argument and evidence relating to punitive damages and defendant's wilful misconduct even though punitive damages are not recoverable in a wrongful death action. Defendant argues that this evidence "probably inflated" the compensatory damages award in the wrongful death action.

Initially, we find no error in the jury hearing evidence of defendant's wilful and wanton misconduct in the wrongful death action as the complaint in that cause includes a count alleging such wilful and wanton misconduct. Defendant does not argue that this count was improperly submitted to the jury, and in any event, it has been held that wilful and wanton misconduct is a ground for seeking recovery of pecuniary damages in a wrongful death action. Mattyasovszky v. West Towns Bus Co. (1974), 21 Ill. App. 3d 46, 55, 313 N.E.2d 496, 503.

Other than evidence of defendant's wilful and wanton misconduct, defendant fails to specify any argument or evidence relating to punitive damages which the jury heard in the wrongful death action. Under the procedure adopted by the trial court, evidence and argument regarding defendant's net worth, which pertains only to punitive damages, was not presented until after verdict in the wrongful death action. We find no prejudice to defendant in the wrongful death action as a result of the consolidation of that action with the three personal injury actions.

The record in the instant case demonstrates that the trial court carefully considered the propriety of consolidation of these four cases and that each party was given ample opportunity to present their respective positions on the issue. The consolidation resulted in no prejudice to any substantial right of defendant. The trial court did not abuse its discretion in denying defendant's motion to sever the trial of the wrongful death action from that of the personal injury actions.

Defendant's next claims of error relate to its failure to comply with notices to appear directed to officers and employees of defendant and the resulting sanctions imposed by the trial court, all pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)), and sanctions imposed pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) for defendant's failure to comply with certain discovery requests and orders.

On January 21, 1992, pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)), plaintiffs served on defendant a notice to appear directed to Paul V. Daverio, defendant's chief financial officer. On February 25, 1992, plaintiffs served on defendant a notice to appear directed to Glen H. Hiner, defendant's chairman and chief executive officer, C. Duane Callender, senior in-house counsel for defendant, and Robert A. McOmber, an in-house counsel for defendant.

On February 28, 1992, Daverio, Hiner, Callender, and McOmber filed a special and limited appearance and a motion for a protective order. This motion alleged that the Illinois court had no personal jurisdiction over these individuals and could not compel them to appear at trial.

On that same date, defendant filed a motion to quash the notices to appear. The motion to quash alleged facts to demonstrate that the Illinois courts had no personal jurisdiction over any of the individuals. The motion alleged that the court could not compel their appearances at trial and that any attempt to compel their appearances would violate their constitutional rights. The motion alleged alternatively that plaintiffs had failed to show good cause for requiring the appearance at trial of these individuals and that compelling their appearances would subject defendant to undue harassment, prejudice, and hardship.

On March 5, 1992, the trial court entered an order denying defendant's motion to quash the Rule 237(b) notices to appear. The court ordered defendant to produce Hiner and Daverio for purposes of determining defendant's net worth, financial status, and other issues relating to punitive damages and McOmber and Callender, who had previously answered interrogatories on behalf of defendant on substantive issues. The order recites as follows:

"Defendant * * * has lead [sic ] the Court to believe that none of the four individuals will appear before this Court. The Court orders that [defendant] provide the Court with a definitive answer at 12:00 noon on March 6, 1992, whether or not [defendant] will produce these gentlemen for trial purposes.

If [defendant] refuses to produce these individuals, the Court is placing [defendant] on notice that it may impose sanctions on [defendant] for its wilful and deliberate noncompliance with Supreme Court Rule 237."

In their memorandum in opposition to defendant's motion to quash the notices to appear, filed March 10, 1992, plaintiffs asserted that the need to secure evidence in support of plaintiffs' punitive damages claims constituted good cause to produce these individuals. The memorandum asserted that Daverio and Hiner were needed to testify as to facts going to defendant's net worth. Plaintiffs alleged that Callender and McOmber were needed to testify because they signed defendant's interrogatory answers and plaintiffs were entitled to examine them as to the accuracy and veracity of their ...


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