Filed 2/8/10 NO. 4-09-0036
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ROSE WHITE, Individually and as ) Appeal from Administratrix of the Estate of ) Circuit Court of DON R. WHITE, Deceased, ) McLean County Plaintiff-Appellee, ) No. 02L136 v. ) GARLOCK SEALING TECHNOLOGIES, LLC, ) Honorable Defendant-Appellant. ) G. Michael Prall, ) Judge Presiding. _________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
This case presents the question of whether Supreme
Court Rule 237(b) (210 Ill. 2d R. 237(b)), dealing with persons
whom a party may be required to produce at trial, includes not
only persons who are "officer[s], director[s], or employee[s,]"
but also those persons who are under a party's control. We hold
that it does not.
I. PROLOGUE
During an October 2008 wrongful-death jury trial based
upon asbestos exposure (which was the second jury trial in this
case), the trial court sanctioned defendant, Garlock Sealing
Technologies, LLC, pursuant to Rule 237(b) (210 Ill. 2d R.
237(b)) for failing to produce a witness. The court entered
judgment against Garlock on the issues of liability and causation
and ordered the case to proceed on the issue of damages only.
The jury subsequently awarded plaintiff, Rose White, $500,000 in
damages.
Garlock appeals, arguing that (1) the trial court erred by finding that Garlock violated Rule 237(b); (2) if this court
agrees and orders a new trial, Garlock should be allowed to
introduce evidence of decedent's exposure to other sources of
asbestos; and (3) if this court affirms the court's Rule 237(b)
finding, we should order remittitur. Because we agree with
Garlock that the court erred by finding that Garlock violated
Rule 237(b), we reverse and remand for a new trial.
II. BACKGROUND
A. The First Trial
1. White's Wrongful-Death Suit
In August 2002, White sued Garlock (and several other
defendants who are not parties to this appeal) for the wrongful
death of her husband, Don R. White. White asserted that Garlock
was responsible for her husband's death because, while employed
at a power plant, her husband's duties required him to perform
work that exposed him to asbestos-containing products that
Garlock had manufactured.
2. The Rule 237(b) Issue at the First Trial
a. Rule 237(b)
Because Rule 237(b) is the gravamen of Garlock's claim
on appeal, we will first discuss that rule. It reads, in perti-
nent part, as follows:
"The appearance at the trial or other
evidentiary hearing of a party or a person
who at the time of trial or other evidentiary
hearing is an officer, director, or employee
- 2 - of a party may be required by serving the
party with a notice designating the person
who is required to appear. *** Upon a failure
to comply with the notice, the court may
enter any order that is just, including any
sanction or remedy provided for in Rule
219(c) [(210 Ill. 2d R. 219(c))] that may be
appropriate." 210 Ill. 2d R. 237(b).
b. The Interrogatory That Gave Rise to White's Rule 237(b) Request
Prior to the first jury trial in this case that took
place in November and December 2005, White presented the trial
court with a response by Garlock to an interrogatory from another
asbestos-related case in which Garlock was a party. That inter-
rogatory stated as follows:
"Has [Garlock] ever had one or more
persons whose primary responsibility included
looking after or monitoring the health of
[Garlock's] employees, such as a medical
director? If so, state the following as to
each person who [ha]s held this position:
name, address, name of the position or title,
and dates during which he or she held the
position."
Garlock's response stated that Dr. David Carlson had done so
since "July/August 2002." The address listed under Dr. Carlson's
name read: "Garlock Sealing Technologies, LLC[,] 1666 Division
- 3 - Street[,] Palmyra, New York 14522."
c. The Rule 237(b) Arguments Presented to the Trial Court
In September 2005, White served Garlock with a Rule
237(b) request to produce Dr. Carlson. Garlock responded by
filing a motion to quash White's request, asserting that although
Dr. Carlson had examined and treated some Garlock employees, he
did so as an independent contractor, not an employee. As proof,
Garlock submitted an affidavit from its vice president of human
relations, Ramond Mathes, in which Mathes stated that (1) Dr.
Carlson was not and had never been an employee of Garlock; (2)
Dr. Carlson had never been paid a salary by Garlock; (3) Dr.
Carlson had never received employee benefits from Garlock; (4)
Dr. Carlson was the medical director of Healthworks, which was
part of the New York-based Thompson Medical Center; (5)
Healthworks had provided services to Garlock since June 2002; (6)
Healthworks provided medical services to approximately 120 other
businesses and organizations; and (7) Dr. Carlson had visited
Garlock plants and treated its employees in his capacity as an
independent contractor or employee of Healthworks. Following an
October 21, 2005, hearing, the trial court denied Garlock's
motion to quash.
On October 31, 2005, Garlock filed a motion to recon-
sider the trial court's October 21, 2005, ruling. At a November
2005 hearing on that motion to reconsider, Garlock engaged in the
following exchange with the court:
"[GARLOCK]: Clearly in this particular
- 4 - case, the [interrogatory from the other case]
counsel cites in no way indicates that Dr.
Carlson is an employee, officer[,] or direc-
tor. It has an address on there which has
unknown explanations as to what the particu-
lar address means. We have affidavits from
the supposed employer, the corporation, say-
ing Dr. Carlson works for this health company
who has been contracted to come and look at
people at our facility.
Dr. Carlson, the horse's mouth, has an
affidavit saying [he is] not an employee,
officer[,] or director of Garlock.
* * *
What [White] gives [the court] is a
document from a closed lawsuit where there is
nothing in [t]here to indicate that [Dr.
Carlson] is an officer, director[,] or em-
ployee. It has an address of Palmyra, New
York, and [White] wants [this court] to spec-
ulate that somehow *** this guy was a member
of the company. ***
THE COURT: Well, *** the confusing part
of this to this court is, if he is not now
and has never been an employee of Garlock,
why was this interrogatory answered in the
- 5 - way it was, giving Garlock as his address?
Maybe it is speculation, but that does lead
one to speculate or wonder about what's going
on.
The question is why would you answer
this interrogatory this way if [Dr. Carlson]
has never had an office at Garlock and never
been employed at Garlock and has always pro-
vided independent medical services? As [the
court] recall[s], [the court] didn't get a
really great answer before, and [it is] not
getting a really great answer today.
[GARLOCK]: I don't know[.] I can come
up with a bunch of plausible answers, but I
don't know. I don't know if there's a facil-
ity that he works out of to check people. I
don't know.
But I do have an affidavit saying he's
not in our control. We have an affidavit
from Garlock people saying he is not in our
control ***.
THE COURT: [A]ny reasonable person look-
ing at this response here would say on what-
ever date, September of 2003, that Dr. ***
Carlson was the medical director of Garlock.
- 6 - [T]hat's the only implication you can receive
from this. This business address is
Garlock['s] in Palmyra."
d. The Trial Court's Ruling
At a hearing later that month, the trial court further
mused about the Rule 237(b) issue, as follows:
"THE COURT: Let [the court] tell you
where [it is] on the Rule 237 thing. [The
court] did a little bit of research. [The
court] would like to do a little bit more.
[The court] did not find any particular case
that was any help in Illinois, and [the court
does not] know that there are any, but part
of [the court's] thinking here is, even when
you get away from the issue as to the inter-
rogatory and whether [Dr. Carlson] worked for
[Garlock] or whatever, assuming that the
doctor is what he says he is, which is an
independent contractor and the medical direc-
tor of some other outfit that provides health
services to Garlock employees, part of [the
court's] thinking here is what is the spirit
and the flavor, if you will, of Rule 237, and
is it to be read literally or is there room
for interpretation?
The gist of *** the control factor that
- 7 - would allow the [c]ourt to force a party to
produce someone who is an employee or an
officer or whatever, is that they have con-
trol. That's the gist of the control. They
have control and that control would generally
be like control of their position and their
livelihood. Does that disappear when a per-
son is an independent contractor?
Well, it's not as strong a factor, but
that factor is still there, and [the court]
suppose[s] one would have to know how much of
this doctor's business is related to Garlock
to know how strong that factor would be, but
there is still a control factor there. If
you don't come and testify when you're asked
to by the company, you won't be providing our
health services anymore, which is not really
much different than saying to an employee,
you better show up or you won't be our em-
ployee anymore. It seems to [this court]
that the same principle is involved, and
whether the [c]ourt should somewhat broaden
the interpretation of Rule 237 is what [the
court] is pondering."
At trial later that month, White called Garlock's
corporate representative, James Heffron, to testify. Heffron
- 8 - testified, in part, that he knew Dr. Carlson (1) had been
Garlock's company physician in the past and (2) was Garlock's
company physician at the time of trial. At the conclusion of the
proceedings that day, White explained to the trial court that
Heffron's testimony had just reaffirmed Garlock's interrogatory
that Dr. Carlson was Garlock's company doctor. Garlock responded
by engaging with the court as follows:
"[GARLOCK]: That's *** [an] inaccurate
statement of what the witness testified to.
THE COURT: What did he testify to[?]
[GARLOCK]: He testified *** that he does
medical work for the company, not that he ***
is an employee of the company at all. If you
notice there was never a question asked of
him 'Is Dr. Carlson an employee of the com-
pany?' If you look at the record, you'll see
that that question was never asked.
THE COURT: That's true, but that's not
what [White] said. [White] said he testified
the he was the company doctor.
[GARLOCK]: Just because somebody can
treat bumps and bruises and that's who [the
employee is] sent to, that doesn't mean he's
an employee of the company. And that's what
the relevant issue is.
THE COURT: [M]aybe [the court] didn't
- 9 - make an additional ruling when [it] made the
final reconsideration for this matter, but--
and the [a]ppellate [c]ourt [may] well decide
that my interpretation of this is wrong[--]as
with many areas of the law [this court] do[es
not] think [it] necessarily has to proceed on
the exact literal letter of what's in a stat-
ute, that it can proceed at times when it's
appropriate within the spirit of what's in-
tended. And based on the information that's
been made available to the [c]ourt today,
which is not in any way diminished by the
testimony of the company representative, that
this is the company's physician, [and that]
leads the [c]ourt to believe that Dr. Carlson
is in a position very similar to being an
employee. *** [The court] believe[s] [that]
does not place him outside the parameters of
what Rule 237 was intended to accomplish, and
*** Garlock, from what [the court] presently
know[s], is in a position to produce this
witness, and that remains the ruling of the
[c]ourt."
e. The Trial Court's Sanction
At the close of White's case in chief, the trial court
instructed the jury regarding Garlock's failure to produce Dr.
- 10 - Carlson, explaining, in pertinent part, as follows: "Despite the
[c]ourt's order, Garlock has failed to produce Dr. Carlson and
has failed to offer an explanation for his absence acceptable to
the court. You will receive further instruction at the conclu-
sion of the case related to this issue."
At the conclusion of the case, the trial court in-
structed the jury as follows:
"If a party to this case has failed to
offer evidence within its power to produce,
you may infer that the evidence would be
adverse to that party if you believe each of
the following elements:
1. The evidence was under control of the
party and could have been produced by exer-
cising reasonable diligence.
2. The evidence was not equally avail-
able to an adverse party.
3. A reasonably prudent person under the
same or similar circumstances would have
offered the evidence if it believed it to be
favorable.
4. No reasonable excuse for the failure
has been shown."
3. The Jury's Verdict and the Parties' Posttrial Motions
In December 2005, the jury returned a verdict for
Garlock. Shortly thereafter, White filed a posttrial motion,
- 11 - alleging that Garlock had violated several trial court orders and
rulings. In part, White asserted that Garlock had violated Rules
213(i) and 237(b) (210 Ill. 2d Rs. 213(i), 237(b)). In July
2006, the court granted White's motion and ordered a new trial
because it found that Garlock had violated Rule 213(i) (210 Ill.
2d R. 213(i)). Specifically, the court found that Garlock had
failed to supplement its written interrogatories after Garlock
discovered on the eve of trial that the answers initially pro-
vided by a doctor who was one of its expert witnesses had
changed.
B. The First Appeal
In September 2006, this court granted Garlock's peti-
tion under Supreme Court Rule 306(a)(1) (210 Ill. 2d R.
306(a)(1)) for leave to appeal the trial court's decision to
grant White's motion for a new trial. In that petition, Garlock
challenged only the trial court's rulings that (1) found Garlock
violated Rule 213(i) and (2) granted White a new trial based upon
that finding. Garlock made no mention in that petition of the
trial court's Rule 237(b) findings and sanctions, but White
raised the issue in her brief to this court.
1. The Rule 237(b) Issue on Appeal
With respect to Rule 237(b), the issue before this
court was, given the violation of Rule 237(b) as found by the
lower court, whether the court abused its discretion by imposing
an insufficient sanction. See White v. Garlock Sealing Technolo-
gies, LLC, 373 Ill. App. 3d 309, 869 N.E.2d 244 (2007) (hereinaf-
- 12 - ter, White I). As earlier noted, Garlock as appellant did not
contest the trial court's sanction (no doubt because Garlock won
at trial). Garlock's sole interest in bringing its appeal under
Rule 306(a) was to have this court reverse the trial court's
order granting White's motion for a new trial.
However, Rule 306(a) states that when a petition for
leave to appeal an order granting a new trial is granted, all
rulings on posttrial motions are before the reviewing court.
White had raised claims in her posttrial motion that (1) Garlock
violated Rule 213(i) and (2) the trial court's sanction for
Garlock's violation of Rule 237(b) was insufficient. White also
raised on appeal that latter issue, arguing that because Garlock
intentionally violated Rule 237(b), this court should enter
judgment against Garlock on the issues of liability and causation
and order a new trial on damages only. White I, 373 Ill. App. 3d
at 330, 869 N.E.2d at 260.
2. This Court's Decision
In June 2007, this court affirmed the trial court's
order granting White a new trial, concluding that (1) Garlock's
actions violated Rule 213(i) and (2) the court did not abuse its
discretion by ordering a new trial based upon Garlock's failure
to comply with that rule (White I, 373 Ill. App. 3d at 328-29,
869 N.E.2d at 259).
3. This Court's Discussion of Rule 237(b)
As part of our opinion, this court stated the follow-
ing, in pertinent part, with respect to White's Rule 237(b)
- 13 - request:
"One month before the November 2005 jury
trial, White served Garlock with a notice
under Rule 237(b) requesting, among other
things, that Garlock produce Dr. *** Carlson
to testify at trial. Garlock moved to quash
the notice, arguing that Dr. Carlson was not
then and never had been an employee, officer,
or director of Garlock. The matter was ex-
tensively argued before the trial court,
which ultimately agreed with White that al-
though Dr. Carlson was not an employee, offi-
cer, or director of Garlock, he was in a
similar position because of his perceived
economic relationship with Garlock.
When Garlock did not produce Dr. Carlson
to testify at trial, the trial court
instructed the jury [as noted earlier in this
opinion.]
In White's posttrial motion, she raised
the issue of Garlock's failure to produce Dr.
Carlson. The trial court concluded that the
sanction it entered against Garlock was suf-
ficient, noting that White did not take Dr.
Carlson's deposition or provide the court
- 14 - with information it could use to determine
that Dr. Carlson's testimony would have in
fact been important.
We earlier mentioned the obvious care
and consideration the trial court gave to the
Rule 213(i) issue in this case, and we are
equally impressed regarding the court's han-
dling of the Rule 237(b) issue. Like other
discovery issues, the appropriateness of any
sanction for a violation of Rule 237(b) is
left to the sound discretion of the trial
court." White I, 373 Ill. App. 3d at 330-31,
869 N.E.2d at 260-61.
C. White's Rule 237(b) Request Prior to the Second Trial
In June 2008, following this court's remand, White
filed a second Rule 237(b) request, in which she requested that
Garlock produce Dr. Carlson for the second trial. Garlock
responded by filing a motion to quash, again asserting that Dr.
Carlson was not, and had never been, one of its employees,
officers, or directors. Following an August 2008 hearing on
Garlock's motion, at which the trial court--although this time
the issue was before a different trial judge--heard essentially
the same arguments that the parties had made prior to the first
trial, the court found as follows:
"The trial judge in the previous *** trial
*** ruled that *** this particular witness
- 15 - [(Dr. Carlson)] fell within *** [Rule]
237[(b)] *** which [this court] assume[s]
came under the [']employee of a party[']
[phraseology]. [This court has not] read
[the previous court's] whole ruling *** but
[that judge] decided that the *** appropriate
remedy at that point in that trial was [to
give] an instruction to the jury on an ad-
verse inference from nonproduction of that
witness. And then the [a]ppellate [c]ourt
*** specifically discussed this [and] specif-
ically sa[id] that [it] approve[d of] the way
[the judge] handled it***. *** So [the ap-
pellate court] ha[s said] this is the way
[it] view[s] this particular issue***. ***
[W]hether [this court] like[s] it or not,
[the appellate court has] ruled on this issue
specifically and said it was okay the way it
was done, so [this court will] stick with
[the earlier judge's] ruling that [Rule]
237[(b)] applies to this particular
witness***."
D. The Second Trial
1. Garlock's Motion To Reconsider
On October 6, 2008, just before trial, Garlock moved
the trial court to reconsider its August 2008 ruling to enforce
- 16 - White's Rule 237(b) request as to Dr. Carlson. The court refused
to reconsider its prior ruling, but added that Garlock was free
to object to the issue "at the appropriate time."
On October 7, 2008, following jury selection, Garlock
again moved to quash White's Rule 237(b) request, at which point
White's counsel, among other things, posited that further discus-
sion of the matter should be deferred until White called Dr.
Carlson to testify. Garlock responded that it had produced
evidence to show that not only had it never employed Dr. Carlson,
but that it no longer had a business relationship with Dr.
Carlson's actual employer, Healthworks. Garlock explained that
Healthworks had forbidden Dr. Carlson from appearing at trial.
Thereafter, the court directed Garlock to file a motion or
affidavit outlining its efforts to produce Dr. Carlson.
On October 8, 2008, the trial commenced and White
called Dr. Carlson as her first witness. However, Dr. Carlson
did not appear. White then called Heffron to testify. Heffron
testified, in pertinent part, that Dr. Carlson was a physician
whom the company had contracted to handle certain medical issues
and was not a company employee. That same day, Garlock filed a
memorandum and exhibits, in which Garlock posited that (1) Dr.
Carlson was not an employee of Garlock, (2) no economic relation-
ship existed between Garlock and Healthworks, (3) Garlock had
attempted to produce Dr. Carlson for trial, and (4) Healthworks
refused to permit Dr. Carlson to testify.
- 17 - 2. White's Motion for Sanctions Pursuant to Rule 237(b)
On October 9, 2008, White moved for sanctions against
Garlock based on its failure to produce Dr. Carlson, tendering a
written motion in that pursuit. At that point, the trial court
adjourned the trial to allow Garlock an opportunity to review
White's motion and to prepare its response.
On October 10, 2008, Garlock provided White and the
trial court with its written response to White's motion for
sanctions. In that response, Garlock explained the steps that it
had taken to produce Dr. Carlson and the reasons why it should
not be sanctioned.
3. The Trial Court's Ruling
Following a hearing on sanctions, the trial court found
as follows:
"[This court] had to make a determina-
tion [as to whether] reasonable steps were
taken *** to secure the attendance of this
witness who [was], up until apparently almost
at the date of trial or was in a position--a
relationship[--]with [Garlock] of some na-
ture. [The court is] still unclear exactly
the nature of what that relationship was.
But[,] it's clear from the record [that] the
relationship was medical director at least at
one point [as he] was described as such by
[Garlock's] corporate representative[.] This
- 18 - is a gentleman who has been with the corpora-
tion since 1973 *** and has been involved in
the asbestos part of the litigation for a
number of years[.] Now he says he was mis-
taken.
Well, [the court] do[es not] know. All
[the court] know[s] is [that] back in 2005
when he testified[,] he said that's what [Dr.
Carlson] was."
That same day, the court entered its written order, in which, as
a sanction, the court entered judgment against Garlock on the
issues of liability and causation, with the trial to proceed only
on the issue of damages.
4. The Jury's Verdict
On October 15, 2009, the jury returned a verdict for
White in the amount of $500,000. The court later reduced the
judgment to $466,666.66 pursuant to a setoff.
This appeal followed.
III. ANALYSIS
A. Garlock's Claim That the Trial Court Erred by Finding That Garlock Violated Rule 237(b)
Garlock argues that the trial court erred by finding
that it violated Rule 237(b) (210 Ill. 2d R. 237(b)) for failing
to produce Dr. Carlson. Specifically, Garlock contends that the
court erroneously interpreted Rule 237(b) to include not only--as
the plain language of the rule states--"person[s] who at the time
of trial *** [are] officer[s], director[s], or employee[s] of a
- 19 - party," but also persons who were at some point under a party's
control.
White responds with various arguments, remaining
consistent in her position that the spirit of Rule 237(b) re-
quires a person under a party's control to be considered the
equivalent of an officer, director, or employee. In that regard,
she asserts the following:
"Rule 237(b) does not contain, nor has
Garlock suggested, a definition for any of
these terms[: officer, director, or
employee]. Each represents a type of agency
relationship. It is the agency relationship
that is the basis for the court's authority.
The authority of a court to order a
party to produce its agent as a witness pre-
dated the adoption of Rule 237(b). Rule
237(b) is not the source of the court's au-
thority, it is but one expression of that
authority."
We agree with Garlock and disagree with White's expansive reading
of Rule 237(b).
1. The Standard of Review
Because Garlock's argument involves the construction of
a supreme court rule, our review is de novo. See In re Estate of
Rennick, 181 Ill. 2d 395, 401, 692 N.E.2d 1150, 1154 (1998)
- 20 - (noting that the construction of a rule, like the construction of
a statute, is a question of law to be reviewed de novo). When
interpreting a supreme court rule, a reviewing court should apply
the same principles of construction that apply to a statute--that
is, the reviewing court should ascertain and give effect to the
intent of the supreme court in promulgating the rule. Berry v.
American Standard, Inc., 382 Ill. App. 3d 895, 899, 888 N.E.2d
740, 745 (2008). The most reliable indicator of that intent is
the specific language used in the rule. Berry, 382 Ill. App. 3d
at 899, 888 N.E.2d at 745. When the language of a supreme court
rule is clear and unambiguous, a reviewing court should apply the
language without reference to other interpretive aids. Berry,
382 Ill. App. 3d at 899, 888 N.E.2d at 745.
2. The Pertinent Language of Rule 237(b)
Rule 237(b) reads, in pertinent part, as follows:
of a party may be required by serving the
who is required to appear." (Emphases
added.) 210 Ill. 2d R. 237(b).
3. Rule 237(b) and This Case
The plain language of Rule 237(b) is clear and unambig-
uous. The supreme court's intent when it promulgated Rule 237(b)
- 21 - was to give trial courts the ability to force--through sanction
or other remedy--a party to produce a person who was then an
officer, director, or employee of that party. Here, Dr. Carlson
was not an officer, director, or employee of Garlock at the time
of trial. Indeed, in its October 10, 2008, findings, the trial
court expressed doubt that Garlock had ever employed Dr. Carlson,
noting that it was "still unclear exactly what the nature of the
relationship was." Accordingly, we conclude that the court erred
by finding that Garlock violated Rule 237(b).
In so concluding, we note that the supreme court is
perfectly capable of saying what it means and understands the
importance of using precise language. The supreme court, in Rule
237(b), did not use the term "agent" or the phrase "a person
under a party's control" but instead advisedly used the terms
"officer, director, or employee." We deem the use of the de-
scriptive words "officer, director, or employee" to be limited
and legal terms of art.
We find support for this conclusion in the language
used in Supreme Court Rule 213(f) (210 Ill. 2d R. 213(f)),
wherein the supreme court drew a distinction between "independent
expert witnesses," as defined in Rule 213(f)(2), and "controlled
expert witnesses," as defined in Rule 213(f)(3). "An 'independ-
ent expert witness' is a person giving expert testimony who is
not the party, the party's current employee, or the party's
retained expert." (Emphasis added.) 210 Ill. 2d R. 213(f)(2).
On the other hand, "[a] 'controlled expert witness' is a person
- 22 - giving expert testimony who is the party's current employee, or
the party's retained expert." (Emphasis added.) 210 Ill. 2d R.
213(f)(3). Rule 213 requires a party to provide substantially
greater information regarding a controlled expert witness who
will testify at trial than it does regarding an independent
expert witness. Thus, Rule 213--which had been in effect several
years before the trial court's fall 2005 ruling that Garlock had
violated Rule 237(b)--demonstrates the supreme court (1) appreci-
ates the difference between a witness who is an employee of a
party and a witness who is not and (2) utilizes the word "con-
trol" when it deems it appropriate to do so. Accordingly, if the
supreme court meant for Rule 237(b) to include circumstances
wherein a party has some control over persons who are not techni-
cally employees, the supreme court would have said so.
4. Clarification of Our Holding in White I
The trial court on remand from White I interpreted this
court's decision in that case to endorse the first trial judge's
determination that Garlock should be sanctioned under Rule 237(b)
because this court apparently agreed that Rule 237(b) included
persons under a party's control. That interpretation was in
error.
As earlier noted, White I was before us on appeal
pursuant to Rule 306(a), which permits a party to petition for
leave to appeal to this court from an order of the circuit court
granting a new trial. The last paragraph of Rule 306(a) provides
as follows: "If the petition for leave to appeal an order
- 23 - granting a new trial is granted, all rulings of the trial court
on the posttrial motions are before the reviewing court without
the necessity of a cross-petition." 210 Ill. 2d R. 306(a). In
White I, we cited that language and wrote the following: "Pursu-
ant to [Rule 306(a)], White argues that Garlock not only violated
Rule 213(i) but also Rule 237(b) (210 Ill. 2d R. 237(b)), and
that these intentional violations require the entry of judgment
against Garlock on liability and causation and a new trial on
damages only. We disagree." White I, 373 Ill. App. 3d at 330,
869 N.E.2d at 260.
This court's discussion in White I of White's claim
that Garlock violated Rule 237(b) was set forth as the last
portion of our opinion in that case, after we had already re-
solved that the trial court did not err by granting White a new
trial as the remedy for Garlock's Rule 213(i) violation. White
contended that Garlock's intentional violation of Rule 237(b)
required the entry of judgment against Garlock on liability and
causation and a new trial on damages only. We rejected White's
contention and concluded that the matter was addressed to the
trial court's sound discretion. We explained our rejection of
White's contention as follows:
"We earlier mentioned the obvious care
- 24 - discovery issues, the appropriateness of any
court. We conclude that the trial court did
not abuse its discretion on this matter, and
accordingly, we decline to grant White the
additional relief she has requested on ap-
peal." White I, 373 Ill. App. 3d at 331,
869 N.E.2d at 261.
As the previous quotation demonstrates, the question
before us in White I regarding Rule 237(b) was the following: Did
the trial court abuse its discretion by not entering judgment
against Garlock on liability and causation and ordering a new
trial on damages only? We answered that question no, finding no
abuse of the trial court's discretion. In doing so, we were not
first required to determine whether any Rule 237(b) violation
occurred, especially given the context of the case presented to
us on appeal.
As stated earlier, Garlock brought its appeal in
White I pursuant to Rule 306(a) to challenge the trial court's
order granting White's motion for a new trial because Garlock
violated Rule 213(i). Garlock contended both that no violation
occurred and that, if a Rule 213(i) violation did occur, the
court's sanction was too harsh. We rejected Garlock's positions
regarding the trial court's findings that a Rule 213(a) violation
had occurred and that the new trial sanction was appropriate.
- 25 - Although Garlock vigorously disputed at trial White's
claim that Garlock was required to produce Dr. Carlson under Rule
237(b), that ruling was not part of Garlock's Rule 306(a) appeal.
Given that the jury returned a verdict in Garlock's favor,
Garlock's position is entirely understandable. That is, although
Garlock believed the trial court erred in its Rule 237(b) rul-
ings, Garlock did not care about those rulings on appeal because
the trial court did not base its order granting White a new trial
on those rulings; instead, the court based its new-trial ruling
solely upon Garlock's violation of Rule 213(i).
These circumstances explain why Garlock, in its initial
brief before this court, made no mention at all of the trial
court's Rule 237(b) rulings. Only after White in her brief
raised the issue--namely, that the trial court's sanction against
Garlock for violating Rule 237(b) was insufficient and consti-
tuted an abuse of discretion--did Garlock even mention Rule
237(b). And even then, Garlock concluded its discussion of this
subject in its reply brief as follows: "The trial court correctly
concluded that Garlock's failure to produce Dr. Carlson to
testify at trial did not prejudice the plaintiff and, therefore,
did not provide a basis for granting plaintiff a new trial."
Regarding Rule 237(b), this court chose in White I to
address only whether the trial court abused its discretion by
imposing the sanction it did against Garlock based upon its
finding that Garlock violated that rule. In retrospect, we can
see how this court could have avoided the trial court's misinter-
- 26 - pretation of our decision in White I had we added the following
sentence to our decision: "In concluding that the trial court
did not abuse its discretion, this court takes no position as to
whether a Rule 237(b) violation occurred in the first place."
5. White's Ambiguous Interrogatory
As previously stated, the Rule 237(b) issue in this
case arose from Garlock's response to the following interroga-
tory:
each person who [has] held this position:
Garlock responded that Dr. Carlson had done so since "July/August
2002."
The question White asked is inherently ambiguous. A
party responding to this question could legitimately believe that
its scope would include (at least) all of the following:
(1) An employee of Garlock.
(2) An employee of a medical services
provider who contracted with Garlock to pro-
vide medical services for its employees.
- 27 - (3) A physician or health-care provider
who routinely saw Garlock employees upon
reference from Garlock, as well as other
patients, as part of that physician's medical
practice.
Obviously, in our judgment, only the first of these persons would
fit under the language of Rule 237(b) as being "an officer,
director, or employee" of Garlock.
6. White's Other Contentions Regarding the Trial Court's Rule 237(b) Ruling
In support of White's claim that the trial court
properly ruled that Garlock was required to produce Dr. Carlson
under Rule 237(b), White raises three additional claims: (1) the
affidavits submitted by Garlock are hearsay; (2) Garlock may not
contradict its sworn answers to a written interrogatory in order
to create an issue of fact; and (3) a "substantial relationship"
existed between Garlock and Dr. Carlson. We address each of
these contentions in turn.
a. White's Claim That the Affidavits Submitted by Garlock Are Hearsay
The trial court determined that Garlock violated Rule
237(b) by failing to produce Dr. Carlson. As a sanction for this
failure, the court entered judgment against Garlock on the issue
of liability and causation and ordered the case to proceed on the
issue of damages only. The question before this court is whether
the trial court was correct in its ruling that Garlock violated
Rule 237(b). In resolving that issue, this court will consider
- 28 - all of the materials the parties submitted to the trial court in
support of their respective positions thereon. Some of the
materials submitted by Garlock included affidavits (specifically,
of Dr. Carlson and Garlock corporate executive Ramond Mathes) to
the effect that Dr. Carlson was not then and had never been an
employee of Garlock. Regarding these affidavits, White makes the
following contention on appeal: "The affidavits submitted by
Garlock are hearsay, and are not admissible at trial on a con-
tested issue."
Because this contention provides neither analysis nor
citation of authority in support thereof, we could simply disre-
gard it as being in violation of Supreme Court Rule 341(i) (210
Ill. 2d R. 341(i)). However, we choose to address this conten-
tion on its merits.
Whether a party has violated Rule 237(b) is a matter
for resolution by the trial court, not by a jury. Thus, contrary
to White's contention, whether a Rule 237(b) violation has
occurred is not a "contested issue at trial," to be resolved by
the trier of fact. Nor do the formal rules of evidence apply
regarding what the trial court may consider when addressing a
Rule 237(b) issue. Instead, the trial court may consider affida-
vits on point and should look to Supreme Court Rule 191(a) (210
Ill. 2d R. 191(a)) for guidance regarding what those affidavits
should show.
For instance, in the present case, the affidavits
submitted by Garlock regarding the Rule 237(b) issue before the
- 29 - trial court were made on the personal knowledge of the affiants
and set forth with particularity the facts upon which the affida-
vits were based. Also, they did not consist of conclusions but
of facts admissible in evidence. They also affirmatively showed
that the affiants, if sworn as witnesses, could testify compe-
tently thereto. White's brief is bereft of any analysis as to
why the trial court should not have considered these affidavits,
and we conclude that they were properly before the trial court,
as well as this court on appeal.
b. White's Contention That Garlock May Not Contradict Its Sworn Answers to the Written Interrogatory
Regarding the consideration by the trial court and this
court of Garlock's affidavits, White writes the following: "When
Garlock asks the court system to ignore what it has said, through
the sworn testimony of its corporate representative, James
Heffron, and through its sworn answers to interrogatories ***,
Garlock is asking the court to permit it to do what a litigant is
barred from doing in summary judgment proceedings *** or at
trial." We disagree.
White is essentially arguing that Heffron's initial
testimony and Garlock's response to the interrogatory discussed
earlier constitute judicial admissions, which may not later be
controverted. However, "'[a] judicial admission is a deliberate,
clear, unequivocal statement of a party, about a concrete fact,
within the party's peculiar knowledge.' [Citation.]" Rath v.
Carbondale Nursing & Rehabilitation Center, Inc., 374 Ill. App.
3d 536, 538, 871 N.E.2d 122, 125 (2007). Heffron's initial
- 30 - testimony and Garlock's response to the interrogatory did not
constitute judicial admissions.
We earlier criticized White's interrogatory as patently
ambiguous, which in turn means that any response to it by Garlock
(including the one Garlock actually made) could not, by defini-
tion, constitute a judicial admission. Heffron's initial
testimony--that Dr. Carlson had been Garlock's company physician
--suffers from the same defect of patent ambiguity. Just as
someone might refer to Dr. Jones as his "family's doctor" (mean-
ing he takes care of everyone in the family) without meaning that
Dr. Jones is an "employee" of that family, so might Heffron refer
to Dr. Carlson as "Garlock's company physician" without meaning
that Dr. Carlson was an "employee" of Garlock. Indeed, Heffron
later testified that the latter was in fact Dr. Carlson's role.
That is, Dr. Carlson was a physician whom Garlock had contracted
to handle certain medical issues, but he was not an employee.
We note once again that White's counsel did not use the
word "employee"--the term actually used in Rule 237(a)--when he
called Heffron during the first trial and asked him whether Dr.
Carlson had been Garlock's company physician. Garlock, of
course, could have--and should have--sought clarification from
Heffron at that time regarding Dr. Carlson's nonemployee status.
However, Garlock overcame its initial failure in this regard by
calling Heffron to testify during the second trial. Thus, when
the trial court made its ruling at issue in this appeal--namely,
that Garlock had violated Rule 237(b)--the court had all the
- 31 - information it needed (including Heffron's clarification) to know
that Dr. Carlson was not Garlock's employee.
c. White's "Substantial-Relationship" Claim
White also asserts the following:
"[E]ven if this [c]ourt were to consider the
otherwise inadmissible materials provided by
Garlock and ignore the only admissible evi-
dence on the matter, the most that gains
Garlock is a diminution of the relationship.
Even under Garlock's materials, there is a
substantial relationship between Garlock and
Dr. Carlson." (Emphasis added.)
We quote this argument because this claimed "substan-
tial relationship" between Garlock and Dr. Carlson seems to be
the gist of White's position throughout this litigation. In
other words, White contends that Dr. Carlson is somehow under
Garlock's "control" and must be produced pursuant to Rule 237(b)
even though he is not, within the plain language of Rule 237(b),
an "employee, officer, or director" of Garlock. For the reasons
previously stated, we strongly disagree with this contention and
reiterate that Rule 237(b) means precisely what it says: "em-
ployee, officer, or director." "Substantial relationships" or
"degrees of control" are immaterial when determining whether Rule
237(b) applies. Instead, Rule 237(b) requires a specific
relationship--namely, that of an officer, director, or employee.
B. Garlock's Claim That It Should Be Allowed To Introduce Evi- dence of Decedent's Exposure to Other Sources of Asbestos
- 32 - Last, Garlock next argues that if this court remands
this case for a new trial, Garlock should be allowed to introduce
evidence of decedent's exposure to other sources of asbestos,
pursuant to the supreme court's recent decision in Nolan v. Weil-
McLain, 233 Ill. 2d 416, 444-45, 910 N.E.2d 549, 564 (2009)
(overturning contrary case law and holding that a defendant in an
asbestos-related injury case must be allowed to introduce evi-
dence of other asbestos exposure in support of its sole proximate
cause defense). Garlock contends that the court's prior rulings
prohibiting Garlock from introducing such evidence were based on
the cases that the Nolan decision overturned and, therefore, this
court should reverse those prior rulings and order that Garlock
be allowed to introduce such evidence on remand. Because,
generally we only review arguments presented to the trial court
(see People v. Hudson, 228 Ill. 2d 181, 190, 886 N.E.2d 964, 970
(2008) (noting that issues should be raised at the trial level so
that, when appropriate, the court may reconsider its own rul-
ing)), we decline Garlock's invitation to enter such an order.
Here, the trial court based its ruling as to whether
decedent's exposure to other sources of asbestos should be
admitted prior to the supreme court's decision in Nolan. Given
the unusual circumstances of this case, we conclude that
Garlock's argument about Nolan is best presented to the trial
court in the form of a motion to reconsider. Doing so will give
both parties the opportunity to fully brief and argue the issue.
Because we are remanding this case for a new trial, we
- 33 - need not address Garlock's alternative argument that this court
should order remittitur.
IV. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for a new trial.
Reversed and remanded for a new trial.
MYERSCOUGH, P.J., concurs.
APPLETON, J., specially concurs.
- 34 - JUSTICE APPLETON, specially concurring:
While I concur in the majority's result, I write
separately to take potential exception to the broad statement by
the majority that the duty to produce a witness pursuant to
Supreme Court Rule 237(b) is strictly limited to officers,
directors, or employees of a party.
Without disagreeing with the express language of the
rule, it is not beyond conception that a person could be employed
by "Corporation A" but, by his or her service to "Corporation B"
pursuant to a contractual agreement, by the determination of the
employee's income or by actual conduct (including the right to
direct by Corporation B) could be properly deemed in fact to be
an employee of Corporation B. There may be many purposes for
such contractual arrangements--one being the potential avoidance
of Rule 237(b) duties to produce.
As there is no evidence in this record of the contrac-
tual relationship between Dr. Carlson's employer and defendant
or, as importantly, any evidence of intent on the part of defen-
dant to thereby evade the strictures of Rule 237(b), I concur.
- 35 -