The opinion of the court was delivered by: Justice Hoffman
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY
HONORABLE RONALD J. BANKS, JUDGE PRESIDING.
The plaintiff appeals from an order of the circuit court directing a verdict in favor of both defendants as a sanction for the plaintiff's attorney having revealed the substance of the trial testimony of two witnesses to the plaintiff's expert witness. For the reasons which follow, we reverse and remand this cause for a new trial.
A detailed recitation of the facts giving rise to this litigation can be found in Smith v. City of Chicago, No. 1-93-2875 (1995) (unpublished order under Supreme Court Rule 23), disposing of the plaintiff's prior appeal from a summary judgment entered in this case. For purposes of this appeal, it is sufficient to note that the plaintiff, Melba N. Smith, Individually and as Executor of the Estate of Arthur E. Smith (Smith), deceased, filed the instant action against the City of Chicago (City), Fed & Son Construction Company (Fed), and others, seeking damages for the defendants' alleged negligence in the performance of a road construction project on Kostner Avenue in Chicago. The plaintiff alleged, inter alia, that the manner in which the defendants maintained the roadway adjacent to the excavated portion of Kostner Avenue and their failure to properly erect barricades caused Smith to drive his vehicle into the excavation, resulting in his injury and subsequent death.
On March 12, 1997, in response to a motion filed by Fed, the circuit court entered an order limiting the opinion testimony of the plaintiff's expert witness to those opinions contained in his discovery deposition. Thereafter, and in advance of trial, the parties filed a number of pretrial motions, including motions in limine. However, none of the parties filed a motion to exclude witnesses from the courtroom during trial, nor was any such order ever entered. After jury selection, the trial commenced against the City and Fed, the only remaining defendants.
The first five witnesses called by the plaintiff were: Barbara Meyer, a neighbor of the plaintiff, who observed Smith's car in the excavated area of the roadway; Thomas Kwiatkowski, who observed Smith and his vehicle immediately following the accident; Walter Jedynak, who removed Smith's car from the excavated area on the date of the occurrence and who had also observed the area on the day before; Dr. Leslie Schaefer, a medical witness, whose testimony was presented by means of a video-taped evidence deposition; and Douglas Gary, the City's resident engineer for the road construction project called as an adverse witness (see 735 ILCS 5/2-1102 (West 1996)), who observed the scene of the occurrence on the morning before Smith's accident and who returned to the site shortly after the accident. Upon completion of their testimony, the trial Judge instructed Meyer, Kwiatkowski and Gary not to discuss their testimony "with any other witness." No such admonition was given to Jedynak.
The plaintiff's expert witness, John Baerwald, a registered engineer, was called to testify after Gary. Baerwald testified that he had no way of knowing when the roadway in the area of Smith's accident had been excavated. He stated that it was his understanding that one witness, Jedynak, testified that the area had already been excavated on the evening before the accident. In contrast, Gary testified that on the morning of the occurrence he observed that the site had not yet been excavated. The issue appears to be of some significance to the question of whether, at the time of Smith's accident, the City was on notice that the roadway had been excavated.
When it became apparent that Baerwald was aware of Jedynak's and Gary's trial testimony, the court excused the jury and conducted an examination of the witness. Baerwald acknowledged that the plaintiff's attorney informed him that Gary testified at trial consistent with his discovery deposition and Jedynak testified that he observed that the area had already been excavated on the evening before Smith's accident. Although Baerwald stated that he had not relied upon Jedynak's trial testimony in formulating his opinions, the trial court, nonetheless, sua sponte directed a verdict in favor of the defendants as a sanction for the plaintiff's attorney having informed Baerwald of the trial testimony of Jedynak and Gary. Thereafter, the trial court entered an order which provides in its entirety as follows:
"The above captioned case having been assigned to me for trial on June 30, 1997, - a jury selected and after three days of testimony: IT IS HEREBY ORDERED that after the court's, on the record, questioning of the plaintiff's expert, it was told to me that the plaintiffs had told the expert what two prior witnesses have testified to in open court. The court felt that this was in total violation of the rules and the lawyers should be sanctioned for their actions. Therefore, the court directed a verdict in favor of both defendants and against the plaintiff, as the court felt that the sanction was proper under the circumstances.
THIS ORDER IS FINAL AND APPEALABLE."
The following day, the plaintiff filed her timely notice of appeal.
In urging reversal of the trial court's order, the plaintiff argues that entering any sanction under the circumstances of this case was error and, even if the court had discretion to impose some sanction, directing a verdict in favor of the defendants was an abuse of that discretion. The City argues that directing a verdict against the plaintiff was not a clear abuse of discretion for two reasons: first, the plaintiff's attorney informed a witness of the trial testimony of two prior witnesses in contravention of the court's instructions; and second, the plaintiff's expert witness rendered an opinion at trial contrary to his deposition testimony in violation of the pre-trial order entered on March 12, 1997. In addition to echoing the City's arguments, Fed also contends that the directed verdict should be affirmed as an examination of the record reveals that the evidence introduced at trial, even when viewed in its light most favorable to the plaintiff, so overwhelmingly favors Fed that no contrary verdict could ever stand.
Before addressing the propriety of the trial court having directed a verdict in favor of the defendants as a sanction for the plaintiff's attorney having informed Baerwald of the trial testimony of Jedynak and Gary, we will dispose of the other arguments made by the defendants in support of affirmance.
Our examination of the record in this case fails to reveal any indication that the trial court sanctioned the plaintiff by reason of her expert witness having testified to opinions not contained in his discovery deposition. Further, neither of the defendants requested any such relief. Although we have no quarrel with the general proposition that a trial court's judgment may be affirmed upon any ground apparent from the record (see Material Service Corporation v. Department of Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983)), we know of no case where that proposition has been applied to affirm a sanction. The imposition of a sanction for a party's violation of a pre-trial discovery order is a matter committed to the sound discretion of the trial court which will not be disturbed on review absent an abuse of that discretion. Kubian v. Labinsky, 178 Ill. App. 3d 191, 196, 533 N.E.2d 22 (1988). In determining the propriety of any particular sanction, a reviewing court must look to the same factors upon which the trial court is to rely in fashioning an appropriate sanction under the unique factual circumstances of any given case. See Ashford v. Ziemann, 99 Ill. 2d 353, 369-72, 459 N.E.2d 940 (1984). The determination of an appropriate sanction is circumstance specific. Consequently, the review of such an order must necessarily focus upon the particular behavior of the offending party which gave rise to the sanction and the effects that behavior had upon the adverse party. We cannot, therefore, affirm the imposition of a sanction ...