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06/25/96 GEORGE L. JARKE v. JACKSON PRODUCTS

June 25, 1996

GEORGE L. JARKE, PLAINTIFF-APPELLEE,
v.
JACKSON PRODUCTS, INC., DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, COUNTY DEPARTMENT, LAW DIVISION. NO. 90 L 01501. THE HONORABLE ALLEN A. FREEMAN JUDGE PRESIDING.

Released for Publication August 13, 1996.

The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

This case has previously been before this court, on which occasion we reversed the trial court's improper granting of defendant's motion for summary judgment and remanded the case for trial on the issue of whether the allegedly defective design of the welding helmet worn by plaintiff more easily enabled welding slag to fall into his ear. See Jarke v. Jackson Products, 258 Ill. App. 3d 718, 724, 631 N.E.2d 233, 237, 197 Ill. Dec. 230 (1994).

Upon remand, a jury returned a verdict upholding plaintiff George L. Jarke in this product liability claim. Defendant Jackson Products, Inc., the manufacturer of the helmet, appeals, claiming that: (1) plaintiff's expert testified beyond the scope of his previously disclosed opinions in violation of Supreme Court Rule 220; (2) the jury should have been given defendant's proposed "cautionary instruction"; and (3) the verdict was against the manifest weight of the evidence.

Immediately prior to trial, defendant moved in limine to bar plaintiff's expert, Dr. Stanley Weiss, from testifying that he believed that the design of the helmet caused molten metal to travel in a channel above the visor and into plaintiff's ear, causing him severe injury. It claimed that this opinion had not been disclosed in any of his pre-trial discovery opinions, relying only upon the helmet's "contour" as the alleged design defect, and that it had learned of his reliance on his channel theory only "two or three days" before trial. The trial judge observed that the ridge above the visor was obvious, concluded that the defendant knew about it, and permitted Dr. Weiss to render his opinion at trial. On appeal, defendant complains that Dr. Weiss was permitted to give a previously undisclosed opinion in violation of Supreme Court Rule 220.

Plaintiff responds that defendant waived this issue because it did not object to Dr. Weiss's opinion when it was offered at trial. See Green v. Union Pacific R.R. Co., 269 Ill. App. 3d 1075, 1087, 647 N.E.2d 1092, 1100, 207 Ill. Dec. 599 (1995) (holding that "to preserve a claim of error in denying a motion in limine, counsel must also make a contemporaneous objection at the time the offending evidence is offered or statement is made"). However, defendant submits that his having made a motion in limine preserved the issue for appeal. See Exchange National Bank v. De Graff, 110 Ill. App. 3d 145, 441 N.E.2d 1197, 65 Ill. Dec. 683 (1982) (finding that plaintiff had not waived review of the trial court's admission of evidence because it had made a motion in limine to exclude that evidence).

These authorities are in obvious conflict regarding whether a party's failure to make an objection contemporaneously with the admission of testimony which had been the subject of a denied motion in limine, precludes him from appealing the denial of his motion. In any event, assuming, without deciding, that defendant should have objected to Dr. Weiss's testimony at the time it was offered, the record is clear that the court was well aware of defendant's objection to Dr. Weiss's testimony. Accordingly, we hold that defendant's written pre-trial motion in limine, and his belated objection (made during trial but after Dr. Weiss had concluded his testimony), were sufficient to preserve this issue for our review.

Supreme Court Rule 220 limits the scope of an expert witness's testimony as follows:

"To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings." S. Ct. Rule 220(d), 134 Ill. 2d R. 220(d).

The parties disagree as to whether the trial judge may exercise discretion in deciding whether to disqualify an expert witness in cases where this rule is violated. Defendant refers this court to Marshall v. Taylor-Wharton Co., wherein the court recognized that the cases have not been uniform on this issue. Marshall v. Taylor-Wharton Co., 234 Ill. App. 3d 596, 608, 599 N.E.2d 1015, 1021, 175 Ill. Dec. 1 (1992), appeal denied, 147 Ill. 2d 628, 606 N.E.2d 1228 (1992). The Marshall court adopted Justice Jiganti's view, as expressed in Kosinski v. Inland Steel Co., (192 Ill. App. 3d 1017, 1029, 549 N.E.2d 784, 140 Ill. Dec. 133 (Jiganti, P.J., specially concurring)), and concluded that a trial judge's discretion was "severely limited" by the wording of Rule 220, and that such discretion should be exercised only where the facts showed that disqualification of the expert would create "manifest injustice." Marshall, 234 Ill. App. 3d at 608, 599 N.E.2d at 1021.

Defendant urges that this court should follow Marshall. We disagree, for we believe the trial judge's discretion under Rule 220 to be "broad" and should not be disturbed absent "a clear showing of an abuse of that discretion". Zajac v. St. Mary of Nazareth Hospital Center, 212 Ill. App. 3d 779, 794, 571 N.E.2d 840, 849, 156 Ill. Dec. 860 (1991); Huelsmann v. Berkowitz, 210 Ill. App. 3d 806, 810, 568 N.E.2d 1373, 154 Ill. Dec. 924 (1991); Caruso v. Pine Manor Nursing Center, 182 Ill. App. 3d 879, 883, 538 N.E.2d 722, 131 Ill. Dec. 347 (1989). We shall proceed accordingly.

Next, plaintiff denies that Dr. Weiss's trial opinion violated S. Ct. Rule 220. We note that Dr. Weiss never mentioned "the ridge above the visor" in any of the pre-trial discovery proceedings conducted prior to the week immediately before trial. However, we are not persuaded by plaintiff's argument that defendant's deposition questions were insufficient to elicit Dr. Weiss's reliance on the channeling effect of the visor merely because the magic question "which contour?" was not asked. (See footnote 1 of this opinion.) During Dr. Weiss's deposition, defendant asked him to explain both the basis for his opinion that "the contour of the helmet directed the metal splash along the edge of the helmet or along the face of the helmet, to the very edge, and into the ear canal," and also how he determined that the helmet's contour would cause that to happen. "That's the way I ...


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