Brdar v. Cottrell, Inc.
| Decision Date | 27 March 2007 |
| Docket Number | No. 5-04-0415.,5-04-0415. |
| Citation | 867 N.E.2d 1085,372 Ill. App.3d 690 |
| Parties | Carl BRDAR and Vicky Brdar, Plaintiffs-Appellees and Cross-Appellants, v. COTTRELL, INC., Defendant-Appellant and Cross-Appellee (Cassens & Sons, Inc.; Cassens Corporation; Unknown Commercial Lessors in the Cassens Family; Unknown Chain and Ratchet Component Distributors and Manufacturers; Daimlerchrysler Corporation, f/k/a Chrysler Corporation; and General Motors Corporation, Defendants). Cottrell, Inc., Third-Party Plaintiff-Appellant, v. C.F. Bender and Vulcan Chain Corporation, Third-Party Defendants-Appellees (Cassens Transport Company, Third-Party Defendant). |
| Court | United States Appellate Court of Illinois |
Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria; Alan J. Dixon, Bryan, Cave, LLP, St. Louis, MO; Robert H. Shultz, Jr., Edwardsville, for Appellants.
Charles W. Armbruster III, The Lakin Law Firm, P.C., Wood River; Brian M. Wendler, Wendler Law, P.C., Edwardsville; Dawn Karnadulski O'Leary, Roth, Evans & Lading, P.C., Granite City; Martin M. Clay, Law Offices of Marc A. Lapp, Sunset Hills, MO, for Appellees.
The defendant cargo trailer manufacturer appeals a judgment in favor of the plaintiffs, a truck driver and his wife, for injuries the driver sustained when a chain broke while he was attempting to tie down an automobile to a cargo trailer. The defendant argues that the court erred and abused its discretion by (1) denying its motion to dismiss on grounds of forum non conveniens, (2) denying a motion to strike the plaintiffs' disclosure of an expert witness and allowing her to testify, (3) admitting certain documents into evidence, (4) refusing to give two of its proffered jury instructions, and (5) dismissing its third-party complaint seeking contribution from two potential chain distributors on the basis of the statute of limitations. The plaintiffs cross-appeal, arguing that (1) they are entitled to a new trial on loss-of-consortium and punitive damages and (2) the court abused its discretion in denying their motion for expert witness rebuttal costs. We affirm in part, reverse in part, and remand for further proceedings.
Defendant Cottrell, Inc. (Cottrell), manufactures cargo trailers that are used for hauling automobiles. Automobiles are tied down to the cargo trailers using a chain-and ratchet system attached to the trailers. One company that purchases cargo trailers from Cottrell is third-party defendant Cassens Transport Company (Cassens Transport). Plaintiff Carl Brdar began working as a truck driver hauling cars for Cassens Transport in 1995. He was based at the company's Smyrna, Tennessee, facility. On May 21, 1999, Carl Brdar was loading Dodge Durangos onto a Cottrell trailer in Newark, Delaware, when the chain broke. As a result, Brdar injured his neck and shoulder. A key issue in the resulting lawsuit was what caused the chain to break-specifically, at issue was whether the ratchet system created too much force for the type of chain used by Cottrell.
On March 1, 2000, Carl Brdar and his wife, Vicky, filed a complaint against Cottrell, General Motors Corp. (GM), Daimler-Chrysler Corp. (DaimlerChrysler), Cassens & Sons, Inc., and Cassens Corp. The complaint also named "unknown chain[-]and[-]ratchet component manufacturers and distributors." The complaint contained counts alleging both negligence and strict liability, one count seeking punitive damages, and one count seeking loss-of-consortium damages for Vicky Brdar. The prayer for punitive damages was later stricken without prejudice pursuant to section 2-604.1 of the Code of Civil Procedure (735 ILCS 5/2-604.1 (West 2000)).
In July and August 2000, Cottrell, DaimlerChrysler, Cassens & Sons, Inc., and Cassens Corp. filed motions to dismiss the action on the basis of forum non conveniens. They argued that the case should be filed in Tennessee, where Carl Brdar lived and worked. GM did not file a forum motion or join in any of the motions filed by the other defendants. The Cassens defendants (both of which are based in Madison County) later admitted that a Madison County trial would not be inconvenient for them. The trial court denied the forum motions.
On May 22, 2002, the court entered a case management order. The order provided, in relevant part, that the plaintiffs were to answer Supreme Court Rule 213 interrogatories (177 Ill.2d R. 213) by December 1, 2002, and that the trial was set for June 2, 2003.
On December 4, 2002, in response to an interrogatory propounded by Daimler-Chrysler, the Brdars disclosed their intention to call Linda Weseman and Jerry Micklow as witnesses. The disclosure indicated that each witness "may testify that the ratchet system is unreasonably dangerous and caused the plaintiff's injuries." It further indicated that neither witness had prepared any reports in connection with this litigation but that both had authored numerous reports in connection with previous litigation involving the same defendants and the same alleged defects. Those reports, the disclosure stated, were already in the hands of the attorneys for the defendants.
On December 12, 2002, the Brdars sought leave of the court to make these Rule 213 disclosures two days out of time, which the court granted without objection from Cottrell. (We note that December 1, the date set by the court for the disclosures, fell on a weekend; thus the December 4 disclosures were two days out of time, rather than three.) On February 28, 2003, the Brdars filed a supplementary disclosure regarding Linda Weseman's testimony. This disclosure indicated that she would testify, "The ratchet tie[-]down systems[,] as designed and as typically used by drivers[,] are unreasonably dangerous and defective[,] as such systems are prone to sudden releases, malfunctions, broken chains[,] and excessive force."
On April 21, 2003, the Brdars filed a motion to reinstate their claim for punitive damages. The court reserved its ruling on the motion until the trial.
On May 29, 2003, GM filed a motion to strike the disclosure of Weseman, arguing that the December 2002 disclosure was inadequate for failing to reference any reports prepared for this case. In its motion, GM also pointed out that Supreme Court Rule 213(f) (177 Ill.2d R. 213(f)) requires parties to disclose the opinions of expert witnesses; however, it did not specifically allege either that the motion failed to disclose Weseman's opinion or that the disclosure provided was inadequate. DaimlerChrysler filed a substantially identical motion, although the record is not clear on the exact timing of DaimlerChrysler's motion. When GM filed its May 29 motion, the trial was still set for June 2. Although Cottrell filed a motion to adopt the motions of GM and DaimlerChrysler, it did not do so prior to the June 2 trial setting.
On the eve of the trial, Cottrell learned that Cassens Transport had located the chain that had been involved in Carl Brdar's accident at its Smyrna, Tennessee, terminal. According to Cottrell, counsel for Cassens Transport had previously indicated in unrelated litigation that it had located only one broken chain and that was not the chain involved in Carl Brdar's accident. As a result of finding the broken chain at issue, Cottrell learned that it was not the chain originally attached to the cargo trailer when it was manufactured. At the time the trailer involved was manufactured, Cottrell purchased its chains exclusively from Columbus McKinnon, which stamped all the chains it manufactured with its initials, CM. The chain involved was not stamped with those initials. Thus, it had to have been purchased as a replacement by Cassens Transport. As a result of this discovery, the trial was continued until September to allow Cottrell to file third-party complaints.
On June 5, 2003, Cottrell filed a motion to apply Tennessee law to the case. On the same day, Cottrell filed a motion in limine to exclude certain industry reports about which it expected the Brdars' retained expert to testify. Cottrell argued that there was no showing that the products or accidents described in the various reports were similar to the Cottrell ratchet system at issue here or to Carl Brdar's accident.
During the first week in June, the Brdars reached a settlement with all named defendants except Cottrell. On June 9, the court entered an order finding that the settlements were in good faith and dismissing the claims against those defendants. The court also entered a written order resetting the trial for September 8 and denying a request by Cottrell to reopen discovery among the parties already in the lawsuit. On the same day, Cottrell filed a motion to adopt DaimlerChrysler's and GM's motions to strike the disclosure of Weseman.
On August 13, 2003, Cottrell filed a third-party complaint against Cassens Transport, Vulcan Chain Corp. (Vulcan Chain), and C.F. Bender. Vulcan Chain and C.F. Bender are chain distributors from whom Cassens Transport purchased replacement chains for its cargo trailers. Each of the three third-party defendants filed a motion to dismiss the third-party complaint on the ground that the statute of limitations on the claims had already run. On September 8, the court granted the third-party defendants' motions to dismiss, denied Cottrell's motion to apply Tennessee law, and reset the trial for February 2004.
The matter came to trial on February 2, 2004. The court denied the pending motions in limine to bar Weseman's testimony and exclude the industry reports and any testimony related to them, ruling that the industry reports would be admitted for the purpose of showing that Cottrell had notice of the problems with its ratchet system.
The Brdars called to the stand their retained expert, Linda Weseman. As she took the stand, Cottrell renewed its previous objections to...
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