Appeal from the Circuit Court of Cook County Honorable Allen A. Freeman, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Plaintiff Dennis Thomas sued defendant Johnson Controls, Inc., alleging that he suffered injuries when he slipped and fell on oil that had accumulated on the floor of defendant's premises. Following a trial, the jury returned a general verdict in favor of plaintiff and against defendant for $343,810.09. On appeal, defendant contends that the following circumstances amounted to cumulative error, thereby denying it a fair trial: (1) the trial court erred in refusing to submit to the jury any of the eight special interrogatories it proposed; (2) the trial court erred in failing to follow a discovery sanction entered by a coordinate judge; (3) the trial court erred in barring defendant from introducing medical evidence that refuted the causal nexus claimed by plaintiff; (4) the trial court erred in prohibiting defendant from introducing evidence concerning its safety programs and independent inspections of its facilities; and (5) during closing arguments, plaintiff's counsel made unfounded accusations against defendant and improperly referred to defendant's alleged wealth and size. Due to the prejudice caused by the trial judge's failure to follow an earlier order barring certain testimony, we reverse and remand for a new trial.
On September 29, 1995, plaintiff, a truck driver, delivered a load of lead to a battery plant owned by defendant. According to plaintiff, while he was walking along the loading dock, he slipped on a puddle of oil and fell on his knees, landing face-down on the concrete floor. Plaintiff filed a complaint against defendant in 1997. In the course of discovery, defendant requested that plaintiff produce, among other things, "all x-rays of any part of the body of plaintiff in the possession of either plaintiff or his attorneys, insofar as the same pertain to the subject matter of this litigation." In his complaint, plaintiff asserted that under the Premises Liability Act (740 ILCS 130/1 et seq. (West 1998)), defendant was liable to him for the injuries he suffered when he fell on the loading dock. Defendant answered the complaint, denying liability and alleging contributory negligence. The case was set for a jury trial to begin August 13, 2001.
On April 18, 2001, plaintiff filed his answers to defendant's Supreme Court Rules 213(f) and (g) interrogatories. 177 Ill. 2d Rs. 213(f), (g). Therein, plaintiff disclosed witness Dr. Paul J. Gruszka, an orthopedic surgeon who performed a total right knee arthroplasty on plaintiff on October 9, 2000, and indicated that Dr. Gruszka's testimony would be based upon, among other things, his "review of records and files." Plaintiff scheduled Dr. Gruszka's deposition for August 8, 2001.
On July 30, 2001, plaintiff sent nine X rays to a messenger service with instructions to copy them and forward the copies to defendant's counsel. Defense counsel received these X rays for the first time on August 1, 2001. On August 2, 2001, defendant filed a supplemental answer to plaintiff's Supreme Court Rules 213(f) and (g) interrogatories (177 Ill. 2d Rs. 213(f), (g)), disclosing Dr. William Dobozi, an orthopedic surgeon, as a witness. Defendant stated that Dr. Dobozi "may be called to testify as to the issues of damages and causation based upon the x-rays produced by the plaintiff on August 1, 2001, and other medical records supplied by plaintiff." Defendant indicated that Dr. Dobozi would testify that plaintiff "suffered from a degenerative condition in his knees prior to the accident complained of in this lawsuit, and that knee replacement was likely to be inevitable for this plaintiff irrespective of his accident on September 29, 1995." Defendant noticed Dr. Dobozi's deposition for August 9, 2001.
On August 3, 2001, plaintiff filed an emergency motion to quash the notice of Dr. Dobozi's deposition and bar his testimony, asserting that the late disclosure of this witness was extremely prejudicial and violated Rule 213. On August 6, 2001, defendant filed an emergency motion to bar and quash notice of Dr. Gruszka's deposition, in which defendant asserted, "Plaintiff's disclosure of medical information upon which his medical witness intends to rely comes for the first time less than two weeks before trial and is extremely prejudicial to the defendant. Moreover, plaintiff seeks to depose Dr. Gruszka a mere five days before trial, again relying on x-rays that defendant received for the first time on August 1, 2001." On August 7, 2001, the motion judge entered an order granting plaintiff's motion to bar Dr. Dobozi. The motion judge also granted defendant's motion in part, allowing Dr. Gruszka as a witness but specifying that "x-rays of plaintiff's knee, produced on August 1, 2001, are barred at trial and may not be the subject of or form the basis of any opinion proffered by Dr. Gruszka at deposition or trial."
Dr. Gruszka's evidence deposition was taken as scheduled on August 8, 2001. After relating the details of his examination of plaintiff's knees, Dr. Gruszka testified as follows:
"Q. [Plaintiff's counsel:] And based on that
examination, did you arrive at a diagnosis at that
A. Along with the x-rays, yes. Based on the
examination only, no.
Q. Okay. And what was your diagnosis?
A. The diagnosis was osteoarthritis of the
right knee and left knee."
The case proceeded to trial. Prior to opening statements, defendant's counsel alerted the trial judge both to the motion judge's order barring reference to the X rays of plaintiff's knee and to Dr. Gruszka's deposition testimony, where he stated that he relied upon those X rays in making his diagnosis. After the attorneys argued at length as to the meaning and context of the order, the trial judge commented, "I never saw anything like this." He then stated, "All right. So is there any way to even figure out a compromise? I don't think so. Maybe you better start thinking is there any way to compromise." When the attorneys indicated willingness to talk, the court went off the record. Later, just before the videotape of Dr. Gruszka's testimony was to be shown to the jury, at a point when the court reporter was not present, defendant presented a motion in limine to bar Dr. Gruszka's testimony. The trial judge denied the motion.
I. Prior Order Entered by ...