The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable James S. Quinlan, Jr., Judge Presiding.
Plaintiff, Catherine Jo Copeland, brought this action against defendant, Stebco Products Corporation (Stebco), for an eye injury she sustained while using a portable luggage carrier. Plaintiff's second amended complaint alleged causes of action for negligence and product liability against Stebco. Just before trial, the plaintiff voluntarily dismissed her negligence claim and consolidated the remaining two counts of her complaint into a single product liability count. Stebco denied the allegations and asserted the affirmative defense of assumption of the risk. Stebco also filed a third-party complaint against Jiun Long Metal & Industrial Co. (Jiun Long). Jiun Long filed an answer to the third-party complaint but did not appear or participate in the trial. The jury found for the plaintiff and awarded the plaintiff $3,023,000.
On appeal, defendant contends that: (1) plaintiff violated Supreme Court Rule 213 (166 Ill. 2d R. 213) in failing to disclose all of its expert's previously performed tests and measurements on the alleged defective product and a new trial is warranted; (2) plaintiff's counsel made improper and prejudicial comments during closing argument; (3) the trial court erred in directing a verdict for the plaintiff as to the affirmative defense of assumption of risk; (4) the cumulative errors warrant a new trial; and (5) defendant is entitled to a judgment notwithstanding the verdict or, in the alternative, a new trial on its third-party complaint seeking contribution against Jiun Long. We reverse and remand for a new trial.
At trial, Catherine Copeland demonstrated for the jury how she placed her suitcase on the luggage carrier and put her briefcase on top. She hooked the bungee cord on the bottom horizontal tube of the carrier and was pulling up on the cord, trying to hook it on the middle bar on the carrier. As she was leaning over the carrier and pulling the bungee cord upwards, the portion of the bungee cord she had hooked on the bottom of the carrier came off and hit her in her eye.
At the time of her injury she was working on her doctorate in education and had a bachelor's degree in elementary education, a master's degree in curriculum instruction, and a reading specialist degree. She taught children ranging from kindergarten to sixth grade. She returned to the classroom but had difficulty, and after trying for six years, she left teaching. As a result of the injury she wears many different types of glasses for reading, driving, watching television and for double vision. Also, her pupil is enlarged, her eyelid droops and her iris is a different color.
Edward Stein, president of Stebco, testified that the luggage carriers were purchased by Stebco from Jiun Long. No instructions or warnings are provided with the luggage carriers, and Stebco does not make any recommendations regarding safe or unsafe ways to use the carrier. Stein stated that the manner in which Catherine Copeland hooked the bungee cord was proper and safe. He reviewed the quality and reputation of Jiun Long products and selected the luggage carrier as one of the products from Jiun Long that Stebco put on the market.
Stebco's expert died before his evidence deposition could be taken, and as a result, Stebco produced no expert witness testimony at trial.
Dr. Holecamp, plaintiff's treating physician, described her injuries as a severe corneal abrasion and contusion injury to the cornea accompanied by severe hemorrhage in the anterior portion of the eye called a hyphema. Plaintiff has had limited success with several surgical procedures and she experiences a permanent loss of depth perception and field of vision, and the vision in her injured eye corrected is only 20/200.
Dennis Brickman, a mechanical engineer, was plaintiff's expert witness. At trial Brickman testified that the luggage carrier is unreasonably dangerous because the bungee cord can achieve a release geometry, which can contact or strike the user in the face. He testified that he had performed tests or experiments to demonstrate the release geometry where the bungee cord hook could release from the bottom of the cart and have a rebound path up toward the user.
In August 1995, Brickman made a videotape after plaintiff demonstrated how she used the luggage cart at the time that she was injured. Despite not recalling all the details of the accident, plaintiff indicated that she was pulling the bungee cord upwards when the hook on the bottom came off and struck her in the eye. The purpose of Brickman's video was to demonstrate the various ways that release or escape geometry could occur involving the bottom hook. The escape geometry, in turn, helped Brickman explain how the hook could separate from the bottom portion of the luggage cart, project into the air, and strike a user. The video contained eight demonstrations of escape geometry illustrating the different ways the bungee cord hook could separate from the bottom rung of the cart.
Brickman gave his discovery deposition in May 1998, during which defense counsel questioned Brickman about his videotaped demonstrations. At trial on cross-examination Brickman testified as to work that he did after his deposition, including additional tests and measurements that were not disclosed to the defendant before Brickman's trial testimony. Defense counsel objected to Brickman's answers to his cross-examination because the answers revealed that Brickman had undertaken additional testing and measurements as well as produced a videotape since his deposition, none of which had been disclosed to defense counsel. The defense made a motion for mistrial.
Counsel for plaintiff explained that Brickman had performed additional tests and measurements and made an additional videotape after Stebco's expert's deposition. The additional testing and measurements by Brickman were undertaken because Stebco's expert criticized Brickman on the issue of whether Brickman had successfully achieved a release of the bungee cord while keeping the cord within the vertical confines of the handle. However, since Stebco's expert died before giving an evidence deposition, counsel for plaintiff did not question Brickman during direct examination regarding the additional demonstration, measurements, tests and videotape.
The court ruled that the testimony regarding subsequent testing would be stricken with respect to pulling the cord up. The court refused to strike the testimony regarding the new angle measurements, but barred any use of the undisclosed videotape. The court concluded that the expert could testify that escape geometry could be achieved by pulling the cord through the handle, but not that he did further tests. The court stated that Brickman would be prevented from stating any other opinions based upon the undisclosed additional testing and from using the tape. The defense motion for mistrial was denied.
At the close of the evidence, the trial court directed a verdict in favor of the plaintiff and against the defendant on the affirmative defense of assumption of risk. The trial court also ruled that defendant had no duty to warn. The jury was instructed solely on the theory of strict liability for the defective design of the luggage cart. During closing arguments, plaintiff's attorney referred to the Rachel Barton case. The trial court sustained defendant's objection to counsel's reference to the Rachel Barton case. However, defendant moved for a mistrial which was denied. The jury returned a verdict of $3,023,000 in favor of plaintiff and apportioned fault on the third-party claim of contribution with 60% to Stebco and 40% to Jiun Long.
I. Did Plaintiff's Failure to Disclose Violate Supreme Court Rule 213?
Defendant argues that plaintiff's violation of Rule 213 denied defendant a fair trial and the trial court should have declared a mistrial after Brickman testified to the jury about undisclosed tests on the luggage carrier. Plaintiff claims there was no Rule 213 violation because her expert's opinion did not change following the undisclosed tests and measurements. Admission of evidence pursuant to Rule 213 is within the trial court's discretion and the court's ruling will not be reversed absent an abuse of discretion. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537 (1998).
We begin with the basic premise that the goal of the discovery process in Illinois is full disclosure. Buehler v. Whalen, 70 Ill. 2d 51, 67 (1977). Supreme court rules on discovery are mandatory rules of procedure that courts and counsel must follow. Warrender v. Millsop, 304 Ill. App. 3d 260, 265 (1999). "Discovery is not a tactical game; rather, it is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial." Boland v. Kawasaki Motors Manufacturing Corp., USA, 309 Ill. App. 3d 645, 651 (2000). More specifically, the purpose of the discovery rules requiring timely disclosure of expert witnesses and their opinions is to avoid surprise and to discourage strategic gamesmanship. Warrender, 304 Ill. App. 3d at 269.
Supreme Court Rule 213 requires that, upon written interrogatory, a party must disclose the subject matter, conclusions, opinions, bases for the opinions, qualifications, and all reports of a witness who will offer any opinion testimony and seasonably supplement any previous answers when additional information becomes known. 166 Ill. 2d R. 213; McGrew v. Pearlman, 304 Ill. App. 3d 697, 705 (1999). Subsections (g) and (i) provide as follows:
"(g) Opinion Witness. An opinion witness is a person who will offer any opinion testimony. Upon written interrogatory, the party must state:
(i) the subject matter on which the opinion witness is expected to testify;
(ii) the conclusions and opinions of the opinion witness and the bases therefor; and
(iii) the qualifications of the opinion witness; and provide all reports of the opinion witness.
(i) Duty to Supplement. A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party." 166 Ill. 2d Rs. 213(g),(i).
The committee comments to Rule 213 state that one of the purposes of Rule 213 is to avoid surprise: "It is the Committee's belief that in order to avoid surprise, the subject matter of all opinions must be disclosed pursuant to this rule and Supreme Court Rule 218, and that no new or additional opinions will be allowed unless the interests of justice require otherwise." 166 Ill. 2d R. 213(g), Committee Comments. The express language of Rule 213 additionally imposes an obligation on a party to supplement discovery whenever new or additional information becomes known to that party. 166 Ill. 2d R. 213(i). Therefore, Rule 213 is mandatory and strict compliance is required. Crull, 294 Ill. App. 3d at 537; Adami v. Belmonte, 302 Ill. App. 3d 17 (1998). Litigants have an obligation, under Supreme Court Rule 213(i), to disclose the testimony of their experts, even when that testimony responds to the theories of opposing experts. 166 Ill. 2d R. 213(i); Boland, 309 Ill. App. 3d at 652.
With these considerations in mind, we determine whether plaintiff's failure to disclose the new tests her expert witness conducted after his deposition, the conclusions from those tests and the new measurements violated Rule 213. Defense counsel's theory for trial based on the information disclosed by plaintiff prior to trial, including Brickman's deposition was that Brickman could not verify that the accident occurred in the manner described by plaintiff. It was critical to the defense of this case that Brickman had not determined at what angle the cord had to be pulled to achieve release of the hook from the bottom of the cart and that Brickman had not achieved escape geometry when the cord was pulled in a manner consistent with the testimony of the plaintiff. Brickman gave his deposition in May 1998 during which defense counsel specifically questioned him about whether he could determine the angle of the bungee cord in order to achieve escape geometry. Brickman answered: "I don't recall specifically undertaking that assignment."
Further referencing the manner in which plaintiff described her actions at the time of the accident, defense counsel during the deposition then asked Brickman if he had demonstrated the movement of the cord or the pull on the cord while the cord was within the confines of the two vertical members that support the handles. Brickman again stated that he had not performed such a demonstration. Defense counsel next asked Brickman whether he achieved escape geometry by pulling the cord straight up when it was attached to the lower center portion of the bar. Brickman replied that he did not. He also testified that he had no plans to do any further work and that he had not recommended that any further work be done. Based on Brickman's deposition testimony, defense counsel prepared for trial believing that Brickman had not achieved escape geometry by pulling the bungee cord in the manner consistent with the plaintiff's testimony. Therefore, defense counsel's theory for trial was that Brickman could not verify that the accident occurred in the way that plaintiff said it did.
At trial, however, during cross-examination Brickman changed the facts that defense counsel relied upon for his theory of defense. He disclosed for the first time, a test or demonstration he performed following his deposition, that verified the accident could occur in the way described by the plaintiff. The following exchanged occurred between Brickman and defense counsel:
"DEFENSE COUNSEL: Q. Am I correct in order to demonstrate that with this tilted up, you have to pull it away ...