Mitchell v. Wayne Corp.

• Decision Date: 20 March 1989
• Docket Number: No. 2-88-0443,2-88-0443
• Parties: , 129 Ill.Dec. 557 Sieanna MITCHELL, as Adm'r of the Estate of Brian Mitchell; Sieanna Mitchell, Indiv.; Tara Mitchell, a Minor, by her Mother and Next Friend, Sieanna Mitchell; and Eric Mitchell, a Minor, by his Mother and Next Friend, Sieanna Mitchell, Plaintiffs-Appellants, v. WAYNE CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 241

536 N.E.2d 241

180 Ill.App.3d 796, 129 Ill.Dec. 557

Sieanna MITCHELL, as Adm'r of the Estate of Brian Mitchell;

Sieanna Mitchell, Indiv.; Tara Mitchell, a Minor, by her

Mother and Next Friend, Sieanna Mitchell; and Eric

Mitchell, a Minor, by his Mother and Next Friend, Sieanna

Mitchell, Plaintiffs-Appellants, v. WAYNE CORPORATION, Defendant-Appellee.

No. 2-88-0443.

Appellate Court of Illinois,

Second District.

March 20, 1989.

Rehearing Denied April 21, 1989.

Edward F. Diedrich, Law Offices of Edward F. Diedrich, DeKalb, for Sieanna Mitchell, Tara Mitchell and Eric Mitchell.

David G. Mountcastle, Mountcastle & DeRosa, Wheaton, for Wayne Corp.

Justice NASH delivered the opinion of the court:

Brian Mitchell, age seven years, was struck and fatally injured by a car after exiting a school bus. Plaintiffs, Sieanna Mitchell, decedent's mother and administrator of his estate, and Tara and Eric Mitchell, decedent's sister and brother, appeal from a summary judgment entered in favor of defendant, Wayne Corporation, the manufacturer of the school bus in which Brian had been riding.

The decedent was fatally injured when he exited his school bus, which was stopped in the eastbound lane of the street, and walked in front of the bus into the westbound lane, where he was struck by an automobile traveling in that lane. Plaintiffs brought actions against the driver of the automobile which struck the decedent as well as the school bus owner, Board of Education of Community School District 427, in February 1984. (Mitchell v. Bush, No. 84 L 19, Circuit Court of DeKalb County, Ill.) In September 1985, plaintiffs commenced this separate action against defendants Ford Motor Company, Wayne Corporation, and Tallitsch Motors, Inc. Defendants Ford Motor Company and Tallitsch Motors, Inc., were granted summary judgment in July 1986, and plaintiffs have not appealed from those judgments. As the amended complaint stood at the time of the order from which this appeal is brought, it alleged actions sounding in both negligence and strict products liability against the remaining defendant, Wayne Corporation, relating to the manufacture and design of the warning devices on the school bus. The trial court granted the motion for summary judgment of this defendant on the grounds that plaintiffs failed to establish any facts showing that the bus was negligently manufactured or was manufactured in an unreasonably dangerous condition.

Plaintiffs appeal, contending that the trial court improperly barred plaintiffs from using an expert witness at trial and that material facts exist as to whether defendant failed to manufacture the bus in compliance with State safety standards, whether defendant knew or should have known that the warning system's design was imminently dangerous, and whether the warning system created an unreasonably dangerous condition.

We consider first whether the trial court abused its discretion when it barred plaintiffs from using an expert at trial.

The record reveals the following: On August 18, 1986, defendant served interrogatories on plaintiffs pursuant to Supreme Court Rule 220(c) to learn the identity of any expert witness plaintiff intended to call in trial. (107 Ill.2d R. 220(c).) Plaintiffs answered that they did not yet have an expert witness. On January 22, 1987, the trial court, on defendant's motion, ordered plaintiffs to disclose all expert witnesses within 30 days. In its motion, defendant noted that no pretrial hearing was scheduled and requested a schedule of dates for compliance with the discovery of experts, when disclosed, pursuant to Supreme Court Rule 220. Plaintiffs did not disclose experts but instead filed, but did not set for hearing, a motion to continue the question of disclosure of experts. Defendant then noticed plaintiffs' motion to continue disclosure for hearing, and on April 2, 1987, plaintiffs were ordered to disclose on or before June 1, 1987. Plaintiffs again failed to disclose any expert witnesses but on June 30, 1987, filed another motion for an extension of time to do so. Finally, on July 30, 1987, more than 22 months after plaintiffs' complaint had initially been filed, and six months after first being ordered to disclose their expert witnesses, defendant moved for sanctions, and the court barred plaintiffs from calling an expert at trial. In November 1987, defendant filed a motion for summary judgment alleging there was no genuine issue of material fact which, after hearing, was granted.

In support of plaintiffs' response to defendant's motion for summary judgment, plaintiffs offered the affidavit of Frank J. Gruber IV, an associate professor of technology at Northern Illinois University, who was an expert in the field of safety studies. The trial court found that because plaintiffs were barred from presenting expert witnesses at trial, an affidavit by an expert in opposition to summary judgment would also be barred. (See James v. Yasunaga (1987), 157 Ill.App.3d 450, 459, 109 Ill.Dec. 663, 510 N.E.2d 531 (where the court held that if use of an expert is barred from the trial, a party should not be able to circumvent the result under Rule 220 by offering the expert's report as a counteraffidavit in opposition to summary judgment because such affidavit must only contain facts which affiant could competently testify to at trial if sworn as a witness).) However, the trial court stated that, nevertheless, it had also read and considered the expert's opinion and found that it did not help the plaintiffs' case in opposing summary judgment.

We initially note that Supreme Court Rule 341(e)(4)(ii) now requires that an appellant's brief contain a statement of jurisdiction (122 Ill.2d R. 341(e)(4)(ii)), and that plaintiffs-appellants have not done so. Compliance will be expected in the future.

Supreme Court Rule 220(b)(1) provides in relevant part:

"[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert's opinion first becomes known to that party or his counsel or, if the substance of the expert's opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. * * * All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. * * * Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness." (107 Ill.2d R. 220(b).)

The committee comments state in relevant part:

"That provision should, in the vast majority of cases, cause the identity of expert witnesses to be revealed within 90 days following the first pretrial in the case. As a final precaution, however, in the event that the identity of the experts has not theretofore been disclosed, the rule provides that the trial court shall establish a specific schedule under which the experts for all parties must be disclosed, a schedule which insures that all discovery relating to such experts will be concluded not later than 60 days before the date on which the trial court reasonably anticipates that the case will go to trial." 107 Ill.2d R. 220(b), Committee Comments, at 355.

In the present case, the trial judge had not set a date for a pretrial conference, and neither party had requested one. At the time the judge issued the order which barred plaintiffs from using an expert at trial, no trial date had yet been set.

The purpose of Rule 220 is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. (Jarmon v. Jinks (1987), 165 Ill.App.3d 855, 863, 117 Ill.Dec. 432, 520 N.E.2d 783.) The reason for Rule 220 is that adequate trial preparation requires timely disclosure of expert witnesses. Time is needed prior to trial to investigate and discuss the substance of the testimony of an opponent's expert with one's own experts in order to prepare for cross-examination. (McDonald's Corp. v. Butler Co. (1987), 158 Ill.App.3d 902, 911, 110 Ill.Dec. 735, 511 N.E.2d 912.) Rule 220 was therefore adopted in an attempt to establish a uniform, but not inflexible, framework for the timely revelation of the identity of expert witnesses and the subject matter of their testimony. (Phelps v. O'Malley (1987), 159 Ill.App.3d 214, 223, 110 Ill.Dec. 797, 511 N.E.2d 974.) The rule authorizes the establishment of deadlines and requires that the parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using. 107 Ill.2d Rules 220(b)(1)(i), (b)(1)(ii); Castro v. South Chicago Community Hospital (1988), 166 Ill.App.3d 479, 481, 116 Ill.Dec. 854, 519 N.E.2d 1069.

In James v. Yasunaga (1987), 157 Ill.App.3d 450, 456-57, 109 Ill.Dec. 663, 510 N.E.2d 531, plaintiffs filed a report of an expert in opposition to defendant's motion for summary judgment on the same day hearing of the motion for summary judgment was held, but after a deadline for disclosure of expert witnesses set by the court at a pretrial conference. Although the court-ordered discovery cutoff date was still a month away, and the scheduled trial was set for three months away, the reviewing court rejected plaintiffs' contentions that a witness could be deposed within that time frame without undue prejudice or inconvenience, and without changing the trial date as irrelevant if a schedule for disclosure pursuant to Rule 220 is to have any force and effect.

In Castro v. South Chicago Community Hospital, ...