Beasley v. Huffman Mfg. Co.

• Decision Date: 04 June 1981
• Docket Number: No. 80-586,80-586
• Parties: , 52 Ill.Dec. 560 Brad BEASLEY, a minor, by his father and next friend, Glen Beasley, Plaintiff- Appellant, v. HUFFMAN MANUFACTURING COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 241

422 N.E.2d 241

97 Ill.App.3d 1, 52 Ill.Dec. 560

Brad BEASLEY, a minor, by his father and next friend, Glen

Beasley, Plaintiff- Appellant, v. HUFFMAN MANUFACTURING COMPANY, Defendant-Appellee.

No. 80-586.

Appellate Court of Illinois, Third District.

June 4, 1981.

Joseph E. Duffy, Schenk, Andreano, Duffy, Quinn, McNamara & Phelan, Joliet, for plaintiff-appellant.

Richard G. French and Alfred C. Tisdahl, Jr., French & Rogers, Chicago, for defendant-appellee.

ALLOY, Justice:

This is an appeal by the plaintiff, Brad Beasley, by his father and next friend, Glen Beasley, from a verdict and judgment in favor of the defendant, Huffman Manufacturing Company, following a jury trial in the Circuit Court of Will County. The two issues presented for review are whether the circuit court properly permitted the defendant's expert witness to testify over the plaintiff's objection and whether defense counsel's closing argument violated the order in limine. We affirm.

In 1977, the plaintiff filed a products liability action alleging that on November 24, 1975, the minor, who was then 3 years old, was severely burned as a result of an explosion caused by the defendant's allegedly defective 5 gallon gasoline can. The minor was playing in his backyard near a 55 gallon oil drum used for burning refuse. His parents used gasoline to ignite the waste, but left the can, which had approximately 1/4 inch of gasoline, in the vicinity of the fire. Suddenly, an explosion occurred and Brad's mother found him engulfed in flames. The gasoline can, which was manufactured by the defendant, was found immediately next to the oil drum. The complaint sounded in three counts: (1) strict liability in tort, alleging a defective design of the defendant's gasoline can; (2) negligence; and (3) willful and wanton design.

On September 22, 1978, the plaintiff requested production of the names and addresses of the defendant's expert witnesses. A motion to compel compliance was presented by the plaintiff on December 7, 1978, but the defendant failed to reveal the names of its intended expert witnesses. The plaintiff again requested this information in supplemental interrogatories filed on January 7, 1980. On April 2, 1980, the plaintiff moved to compel answers to the interrogatories. On Saturday, April 12, just 2 days before the trial began, defense counsel orally informed the plaintiff of the names of its two experts. After jury selection on Monday, the plaintiff took the deposition of the defendant's expert and on Tuesday moved to bar his testimony. The court denied the motion, but allowed the plaintiff's request for a continuance for 1 day to confer with his expert and ascertain whether more time would be necessary.

Following the continuance, the plaintiff informed the court he was ready to proceed. The plaintiff adduced testimony of several experts who were of the opinion that the defendant's design failed to conform to the existing industry standards. The defendant's expert testified, saying that because the flames on Brad were so difficult to extinguish, the minor probably spilled the gasoline on himself, the gas caught fire, and then exploded in flames. The expert further believed that a different design would not have prevented Brad from spilling gasoline on himself. Subsequently, the jury returned a verdict in favor of the defendant.

The plaintiff first contends that the court erred in failing to bar the testimony of the defendant's expert because the defendant violated section 58(3) of the Civil Practice Act. That section provides as follows:

"A party shall not be required to furnish the names or addresses of his witnesses, except that upon motion of any party disclosure of the identity of expert witnesses shall be made to all parties and the court in sufficient time in advance of trial so as to insure a fair and equitable preparation of the case by all parties." (emphasis added) (Ill.Rev.Stat.1979, ch. 110, par. 58(3).)

The defendant responds, arguing that by orally informing the plaintiff on the Saturday preceding a Monday trial, it had complied with the dictates of section 58(3). We note that the section, which became applicable on September 19, 1976, substantially changed the prior rule which left the issue of discovery of an opposing party's experts to the discretion of the court. (See: Burns v. West Chemical Products, Inc. (1st Dist. 1973), 12 Ill.App.3d 947, 299 N.E.2d 455.) Now, upon demand, section 58(3) makes mandatory the disclosure of the identity of expert witnesses to all parties and the court, sufficiently in advance of trial to give an opposing party an opportunity to take discovery from that party's experts. Such rule is especially helpful in taking discovery from the opposing party's experts in product liability actions where the expert's testimony is frequently crucial. Given the facts of the instant case, we can confidently say that the defendant's disclosure was insufficient.

Nevertheless, we must determine whether the circuit court acted improperly by failing to bar the defendant's expert from testifying. The law in Illinois is well established that imposing sanctions against a party for noncompliance with the discovery rules is within the discretion of the trial judge. (Carlson v. General Motors Corp. (1st Dist. 1972), 9 Ill.App.3d 606, 289 N.E.2d 439.) Although barring the expert's testimony is clearly one means available to the court (see: Simpson v. Johnson (3d Dist. 1977), 45 Ill.App.3d 789, 4 Ill.Dec. 397, 360 N.E.2d 144), we find the court's response, of granting a continuance to allow the plaintiff to consult with his expert so as to determine whether more time would be necessary to compensate for any unfair prejudice caused by the defendant's noncompliance, to be proper in the case at bar. After spending one day conferring with his expert and examining the defendant's expert's deposition, the plaintiff declared he was ready to proceed and thus, declined any further continuances. In light of the purpose of section 58(3) to ensure fair and equitable preparation of the case, the court's response was eminently sound. Had the facts shown that the defendant's expert presented a novel theory to which the plaintiff could not sufficiently respond during a continuance, a motion to bar that expert's testimony would have been in order. However, upon an examination of the record in the instant case, the defendant's expert presented no such dilemma. Thus, the court properly denied the plaintiff's motion to bar the testimony.

The second issue is whether defense counsel's closing remarks contravened an order in limine. Before the trial commenced, the plaintiff moved to exclude "any testimony, remarks, questions or argument" which might suggest to the jury the 3-year-old plaintiff's possible contributory negligence or his parents' negligent supervision. The court granted the motion, but conditioned it upon an agreement that in the event that some elements of the plaintiff's case (i. e., proximate cause or foreseeability) were intermixed with possible contributory or imputed...