Appeal from Circuit Court of Champaign County No. 94L1684 Honorable John G. Townsend, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
Plaintiff, Robert Blakey, was injured October 10, 1989, when he fell while working on a severely pitched roof on the bio-tech laboratory at the University of Illinois. Blakey complained of severe pain in his left arm and a tingling sensation in the fingers of his left hand. He was ultimately diagnosed as having suffered a dislocated left shoulder and reflex sympathetic dystrophy in that shoulder. Blakey was employed by third-party defendant, Johnson Contracting Company, Inc. (Johnson). The construction manager on the project was defendant Gilbane Building Corporation (Gilbane).
Blakey filed a two-count complaint against Gilbane, alleging Gilbane failed to provide him a "safe, suitable and proper temporary support," in violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69), and that Gilbane was guilty of negligence. Gilbane then filed a third- party complaint against Johnson, alleging that if Gilbane were found liable, Gilbane was entitled to contribution from Johnson commensurate with Johnson's relative degree of fault under the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1996)). Blakey origi- nally filed suit in Cook County, but the case was transferred to Champaign County on account of forum non conveniens. Blakey v. Gilbane Building Co., 264 Ill. App. 3d 626, 637 N.E.2d 442 (1994).
Jury trial commenced October 7, 1996, and on October 16, 1996, the jury returned an itemized verdict finding Blakey's total damages to be $1,690,000, and attributing the percentage of negligence or fault 20% to Blakey, 40% to Gilbane, and 40% to Johnson. The jury was also given the following special interrogatory: "On the date of the accident and at the time and place of the accident in question, was the sole proximate cause of the injury to the plaintiff the conduct of some person or persons other than the defendant Gilbane?" The jury, inconsistent with its verdict, answered that interrogatory in the affirmative.
On November 1, 1996, the circuit court entered judgment on the special interrogatory in favor of defendants, resulting in a zero award for Blakey. Blakey then filed a posttrial motion, attaching the affidavit of a juror who stated that the jury had clearly concluded that "Gilbane was guilty" and should pay, along with Johnson, the percentage listed. Eventually a similar letter, signed by all the jurors (there were only 11), was filed. On January 24, 1997, the circuit court ordered a new trial, stating:
"I have concluded that the jury instructions as a whole, including the verdict form and special interrogatory were objectively not sufficiently clear and understandable to permit the judgment as entered to stand. The length, complexity, and interrelation- ship of the instructions and verdict forms do not render them sufficiently comprehensible."
Gilbane and Johnson petitioned for leave to appeal from the order granting a new trial, pursuant to Supreme Court Rule 306(a)(1) (166 Ill. 2d R. 306(a)(1)), but this court denied the petition (Nos. 4-97-0116, 4- 97-0121). That denial did not address the merits of the case and so does not foreclose Gilbane and Johnson from raising any issues con- cerning the decision to grant a new trial. See Koenig v. National Super Markets, Inc., 231 Ill. App. 3d 665, 667-69, 596 N.E.2d 1329, 1331-32 (1992).
On September 5, 1997, three days before the new trial was to begin, Gilbane filed a motion for sanctions, alleging that Blakey had failed to disclose, during his deposition and in answers to interrogatories, that he had been hospitalized between November 27 and December 2, 1984, at Memorial Medical Center in Springfield, with a complaint of injury to his left shoulder and back. Gilbane, in its brief, states that it learned of this information about three weeks before the new trial date, and "it was not until counsel for [d]efendant received an offer from an investigation company for a free investigation that information regarding the 1984 injury was discovered." Gilbane asked that the court bar all plaintiff's medical testimony and other evidence and for other sanctions as the court deemed appropriate.
The trial court allowed the parties to present evidence when the motion for sanctions was heard, three days after it was filed, but Blakey presented no evidence. On September 8, 1997, the trial court granted the motion for sanctions and dismissed the complaint, stating (1) it would be very costly and time consuming to redo the significant amount of work that had been done, to incorporate information regarding the 1984 injury; (2) what was involved here "is absolutely, plainly, clearly, unequivocally a false answer to an interrogatory answer"; (3) the information went to the heart of the claim for injury, which was a complicated claim, and "might just as easily have been a critical piece of information to experts of all varieties as to be as inconsequential as urged by plaintiff's counsel." On September 12, 1997, the circuit court entered a written order, stating:
"This Court hereby finds that the failure to disclose this information was material and for reasons stated for the record and after having considered all available possible sanc- tions, concludes that the only appropriate sanction is to dismiss the complaint with prejudice."
Blakey filed a motion to reconsider. Blakey also filed an affidavit stating that he had forgotten about the 1984 stay at Memorial Medical Center, his left shoulder was not injured in the 1984 accident, he did not consider the workers' compensation claim filed on his behalf in connection with the 1984 accident to be a personal injury "lawsuit," and he was not aware that his attorney had filed a third-party lawsuit separate and apart from his workers' compensation claim. Blakey also attached an affidavit from Dr. F. William Schroeder, who had treated him at Memorial in 1984, advising that Blakey had no significant injury to his left shoulder and was treated only for complaints related to his lower back. Dr. Joseph Schrodt, who had treated Blakey subsequent to 1987, stated in an affidavit that nothing concerning Blakey's 1984 hospitalization at Memorial would change his opinion regarding the injury to Blakey's left shoulder sustained on October 10, 1989. On March 20, 1998, the circuit court considered the affidavits, and reconsidered its ruling, but again determined that dismissal with prejudice was appropriate.
Blakey appeals the March 20, 1998, order dismissing the case with prejudice. Gilbane and Johnson cross-appeal the court's January 24, 1997, order granting a new trial.
I. THE SANCTION OF DISMISSAL
Supreme Court Rule 219(c) provides that the court may enter "such orders as are just," where a party "unreasonably fails to comply" with the discovery rules, or "fails to comply with any order entered under these rules," including an order that the offending party's action be dismissed with prejudice. 166 Ill.2d R. 219(c). The decision to impose a particular sanction is within the discretion of the trial court; only a clear abuse of discretion justifies reversal. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 120, 692 N.E.2d 286, 289 (1998) (a de- structive testing case). We do not defer, however, to a trial court's factual findings made on the basis of affidavits. Cf. Majca v. Beekil, 183 Ill. 2d 407, 701 N.E.2d 1084 (1998) (summary judgment). A just order of sanctions under Rule 219(c) is one which, to the degree possible, ensures both discovery and a trial on the merits. When impos- ing sanctions, the court's purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party. An order of dismissal with prejudice or a sanction that results in a default judgment is a drastic sanction to be invoked only in those cases where the party's actions show a deliberate, contumacious, or unwarranted disregard of the court's authority. Shimanovsky, 181 Ill. 2d at 123, 692 N.E.2d at 291.
To determine if the trial court abused its discretion, a reviewing court must look to the criteria upon which the trial court relied in making its determination of an appropriate sanction. Shimanovsky, 181 Ill. 2d at 123, 692 N.E.2d at 291. The factors a trial court is to use in determining what sanction, if any, to apply are (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party's objection to ...