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November 18, 1994


Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 88-L-239. Honorable Scott A. Shore, Judge Presiding.

Released for Publication December 22, 1994. As Corrected January 26, 1995.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The plaintiff-appellant, Annette Costa, appeals from a judgment entered in favor of the defendants-appellees, A.P. Green Industries, Inc., Sprinkmann Sons Corporation of Illinois, E.D. Bullard Company, Dresser Industries, Inc., Magid Manufacturing Company and Fibreboard Corporation. This appeal (No. 3-93-0642) was consolidated for oral argument with appeals brought by Owens-Corning Fiberglas Corporation and Keystone Steel & Wire Company (Nos. 3-93-0621 and 3-93-0625) which are disposed of in a companion opinion.

The plaintiff brought an action contending her husband, Dominic Costa, an employee of Keystone from 1961 to 1987, died of mesothelioma as a result of exposure to asbestos-containing products manufactured, sold or used by the defendants. As more fully explained in the companion opinion, a judgment on liability was entered against Owens-Corning for failure to produce a corporate witness. Finding the decedent did not die of mesothelioma, the jury found for all defendants other than Owens Corning.

On appeal, the plaintiff contends statements made in opening argument by attorneys for Fibreboard and A.P. Green concerning notes written by the decedent prior to his death, which were subsequently not offered into evidence by the defendants, were so prejudicial as to require a new trial.

While counsel in opening statements may summarily outline what he expects the evidence admissible at trial will show, no statement may be made in opening statement which counsel does not intend to prove or cannot prove. ( Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 246 N.E.2d 269.) The general rule as to statements made by counsel in opening statement that certain evidence will be introduced is that such statements are not improper if made in good faith and with reasonable grounds to believe that the evidence is admissible. Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 360 N.E.2d 1324, 4 Ill. Dec. 891.

During opening arguments attorneys for A.P. Green and Fibreboard referred to notes written by the decedent or his daughter in which the decedent described the asbestos-containing products he used or was exposed to at work. According to the defendants, after the plaintiff had presented her case and some of the defenses' medical testimony had been presented to the jury, the defendants determined they did not need to offer the notes. Interestingly, we note the plaintiff herself attempted to offer these very same notes which the trial court ruled were inadmissible.

The plaintiff has made no showing that defendants acted in other than good faith at the time the statement was made. The plaintiff's actions illustrate that even she had a good faith belief the notes were admissible. The plaintiff also fails to show how she was prejudiced by these remarks. In fact, the plaintiff tried to use the non-production to her advantage by commenting on it in closing argument.

The plaintiff asserts the trial court erred in admitting the expert testimony of Dr. Hans Weill because of the defendants failure to comply with the requirements of Supreme Court Rule 220 (134 Ill. 2d R. 220).

The record shows that in August 1990, the plaintiff served interrogatories on defendant, E.D. Bullard Company. Interrogatory No. 10 asked for the identity of any expert witnesses who might testify at trial. The interrogatory also requested information along the lines found in Rule 220(c)(1) (134 Ill. 2d R. 220(c)(1)). Bullard responded that to date it had not retained any Rule 220 experts.

On May 1, 1992, Bullard disclosed the identity of three potential experts, including Weill. On June 12, 1992, in response to certain court rulings, Bullard voluntarily informed the plaintiff that Weill might be called to render opinions "regarding chrysotile fiber and there (sic) action as a causative agent of mesothelioma." Bullard indicated to plaintiff that in its view the plaintiff had never submitted interrogatories pursuant to Rule 220, and that it was under no obligation to supplement the interrogatories propounded in 1990.

In response, the plaintiff wrote to Bullard that Interrogatory No. 10 was a Rule 220 interrogatory and that Bullard was under a duty to supplement its answer to that interrogatory under Rule 220(c)(3) (134 Ill. 2d R. 220(c)(3)). Continuing to maintain that plaintiff had not propounded any interrogatories under Rule 220, Bullard further disclosed on June 30, 1992, that if called to testify, Weill would present testimony "regarding the carcinogenic differences of different types of asbestos fibers in relationship to cancers, particularly mesotheliomas."

Thereafter, the plaintiff moved to quash the evidence deposition of Dr. Weill noticed by Bullard. In denying the motion the trial court found that plaintiff had not submitted interrogatories pursuant to Rule 220. Weill was not deposed. During the trial, the plaintiff moved to quash the opinion testimony of Weill based on Bullard's failure to properly supplement the answer to interrogatory No. 10. The motion was denied. Dr. Weill testified that in his opinion the decedent's tumor was a bronchogenic carcinoma and not a mesothelioma.

In general, Rule 220 requires that the identity of expert witnesses be disclosed prior to trial. (See 134 Ill. 2d R. 220(b).) Upon disclosure, the expert's opinions may be the subject of discovery as provided in Rule 220(c). (134 Ill. 2d R. 220(c).) Rule 220(c)(3) requires a party to "seasonably" supplement answers to interrogatories submitted under Rule 220. 134 Ill. 2d R. 220(c)(3).

Rule 220 was adopted with the hopes of eliminating situations wherein either a trial must be continued, or an expert's late or surprise testimony is permitted to the opponent's prejudice or refused to the detriment of the offering party, resulting in reversible error and remand for a new trial. Sohaey v. Van Cura (1994), 158 Ill. 2d 375, 634 N.E.2d 707, 199 Ill. Dec. 654.

In the instant case, we find the trial court correctly allowed the expert testimony of Dr. Weill. Bullard identified Weill as a potential expert in May 1992, some 4 months prior to trial. For whatever reason, after disclosure the plaintiff refused to submit interrogatories pursuant to Rule 220(c)(1) and insisted that one of the interrogatories included with general interrogatories propounded under Rule 213 nearly two years before was a rule 220 interrogatory. The plaintiff maintained Bullard had a duty to supplement its answer to interrogatory No. 10. (There is no ongoing duty to supplement interrogatories submitted under Rule 213. (See 134 Ill. 2d R. 213(e).))

Despite the plaintiff's failure to serve Rule 220 interrogatories, Bullard disclosed a summary of Dr. Weill's qualifications and what he would testify to at trial. Bullard noticed up Weill's deposition which the plaintiff opposed. The plaintiff can in no way claim she was surprised or prejudiced by Weill's testimony. She was given every opportunity to discover the opinions of Weill prior to trial.

The plaintiff also argues that Weill was allowed to give opinions at trial beyond those previously disclosed. Under Rule 220(d) the testimony of an expert may not go beyond the facts and opinions disclosed in discovery. (134 Ill. 2d R. 220(d).) Again, the plaintiff had every opportunity to discover in depth the opinions of Dr. Weill. In addition, we note the plaintiff did not raise any objection to the scope of Weill's testimony at trial.

The plaintiff argues the trial court erred in preventing her from discovering the test results and opinions held by at least one consulting expert retained by the defendants.

The record shows that in August 1990, at the urging of the trial court, the defendants agreed to a joint testing of the tissue samples from the lungs of the decedent. The plaintiff had apparently raised objections that there was not enough material for each of the defendants to do separate testing. At the trial court's urging, it was agreed that General Refractories (a defendant at the time) and Keystone would each receive 5 grams of tissue to do testing on. Assumedly, the defendants would share the results of any testing done among themselves. There was apparently no move or request ...

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