White v. Garlock Sealing Technologies, LLC.

Opinion

NO. 4-06-0688 Filed 5/2/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

ROSE WHITE, Individually and as ) Appeal from Administratrix of the Estate of DON ) Circuit Court of R. WHITE, Deceased, ) McLean County Plaintiff-Appellee, ) No. 02L136 v. ) GARLOCK SEALING TECHNOLOGIES, LLC, ) Honorable Defendant-Appellant. ) James E. Souk, ) Judge Presiding. _________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In August 2002, plaintiff, Rose White, sued defendant

Garlock Sealing Technologies, LLC, and several other defendants

for the wrongful death of her husband, Don R. White, decedent.

White alleged that decedent developed asbestosis and died as a

result of occupational exposure to defendants' asbestos-contain-

ing products.

Following a November and December 2005 jury trial, the

jury returned a verdict for Garlock. White filed a timely

posttrial motion, alleging that Garlock violated numerous trial

court orders and rulings. In July 2006, the trial court granted

White's motion for a new trial, upon finding that Garlock vio-

lated Supreme Court Rule 213(i) (210 Ill. 2d R. 213(i)). In

addition, the court ordered that on retrial, the testimony of one

of Garlock's expert witnesses would be limited. In August 2006, Garlock petitioned this court for leave

to appeal, pursuant to Supreme Court Rule 306(a)(1) (210 Ill. 2d

R. 306(a)(1)). In September 2006, we granted Garlock's petition,

and we now affirm.

I. BACKGROUND

Because the record in this case is lengthy, we discuss

it only to the extent necessary to review the narrow issues

before us: (1) Did Garlock violate Rule 213(i), which provides

that a party has a duty to seasonably supplement or amend any

prior answer or response to an interrogatory whenever new or

additional information subsequently becomes known to that party,

and (2) if so, did the trial court's remedial action constitute

an abuse of its discretion?

A. The Factual Context of White's Lawsuit

The evidence at the jury trial showed that decedent

worked for 40 years at the Havana, Illinois, power plant in

various capacities, including boiler operator and pipefitter.

Garlock asbestos-containing packing and gaskets were used at the

plant throughout his career. White presented evidence that when

these gaskets were "applied and removed," they gave off asbestos

dust that traveled throughout the plant. Decedent's family

physician testified that decedent developed asbestosis, which was

the cause of his death, as a result of the total and cumulative

effect of all the asbestos he inhaled.

- 2 - Garlock presented evidence that because the asbestos

fibers incorporated into its gasket and packing products were

encapsulated--that is, coated in rubber, elastic, and other

polymers--the products did not emit respirable asbestos fibers at

levels sufficient to cause asbestosis. Garlock also presented

evidence that testing on its gaskets and packing products showed

that under actual-use conditions, they produced extremely low-

level asbestos exposure--that is, exposure at levels similar to

or below ambient levels in most metropolitan areas. Garlock also

presented epidemiological studies to further show that exposure

to asbestos at levels found in the ambient air did not result in

an increased incidence of asbestos-related disease.

B. Garlock's Pretrial Disclosures Regarding Its Controlled Expert Witness, Dr. Steven R. Smith

In answer to White's interrogatories, Garlock identi-

fied several expert witnesses, including Steven R. Smith, M.D.,

director of occupational and environmental health and medicine

for the Community Health Network and community hospitals in

Indianapolis, Indiana. Garlock provided White with Dr. Smith's

detailed, 21-page, single-spaced report in which he analyzed

decedent's occupational and medical histories, made observations

about the findings and conclusions reached by his treating

physicians, questioned whether the medical evidence showed that

decedent suffered from asbestosis, and noted the presence of

clinical findings of pulmonary aspergillosis, which is a fungal

- 3 - infection in the lungs. In pertinent part, Dr. Smith's report

contained the following conclusions:

(1) On the basis of the materials that

had been provided to him, the evidence was

insufficient to support a determination to a

reasonable degree of medical certainty that

decedent suffered from asbestosis or any

other asbestos-related disease or disorder.

(2) Even if decedent did suffer from

asbestosis "(and possibly died as a result

thereof)," any asbestos exposure resulting

from working with or around Garlock gasket-

and packing materials was pathogenically

insignificant. Decedent's level of gasket

and packing-derived cumulative occupational

asbestos exposure would clearly be de minimis

and incapable of causing or substantially

contributing to the causation of asbestosis.

(3) If decedent did have any clinically

significant degree of asbestosis "(and he may

well have)," it was caused by his exposure to

insulation materials, not by his exposure to

gaskets and packing.

(4) "It is not possible for me to state,

- 4 - to a reasonable degree of medical certainty,

that [decedent] either did have or did not

have bona fide asbestosis."

(5) "The finding of ostensible

Aspergillus mold/fungal organisms within the

cavitary lesion within the resected upper

lobe of decedent's right lung deserves com-

ment. The exact significance of this finding

is unclear."

White did not depose Dr. Smith. Shortly before the

November 2005 jury trial, Garlock's counsel faxed to White's

counsel a letter, identifying it "as [its] supplement 213(f)(3)

[disclosure] regarding the opinions and report of Dr. Steven

Smith," stating that Dr. Smith had an opportunity to review many

documents pertaining to the case (which the letter identified)

since he had prepared his initial report. The letter concluded

as follows:

"The review of the above material does not

change Dr. Smith's opinions as set forth from

his earlier report. Dr. Smith is still of

the opinion that Garlock gaskets and packing

materials did not cause or contribute to the

causation of [decedent's] alleged asbestosis.

Further, Dr. Smith is of the opinion that

- 5 - Garlock sealing products did not contribute

in any manner to [decedent's] supposed

asbestosis-related death as set out in his

earlier report."

C. Dr. Smith's Trial Testimony

The jury trial lasted almost four weeks. After White

rested her case, Garlock presented its evidence, which included

Dr. Smith's testimony. He testified on direct examination

substantially consistently with the discovery materials that

Garlock had furnished White. When Garlock asked Dr. Smith

whether he had indicated in his report that he did not rule out

the possibility of asbestosis, Dr. Smith responded, that "it was

plausible, yes."

On cross-examination, White suggested that Dr. Smith

was "sort of like the Monday morning quarterback," in that he was

pointing out the errors made by other Illinois doctors. Dr.

Smith responded in part, as follows: "I'm not casting stones at

any physicians. I'm just saying that [decedent] did not have

asbestosis[,] and to the extent that he did, gaskets and packing

materials did not cause or contribute to it." White questioned

Dr. Smith about this statement, and he responded, "I don't

believe that [decedent] had asbestosis." Later during his cross-

examination, Dr. Smith further stated that "the scientific and

medical evidence in this case would indicate that [decedent]

- 6 - didn't have asbestosis as a cause of his lung problem[,] and it

was aspergillosis that caused it."

White cross-examined Dr. Smith extensively until the

trial court took a recess. When court reconvened out of the

jury’s presence, White made a motion to strike Dr. Smith's

testimony on the ground that the opinions Dr. Smith testified to

on cross-examination--namely, that decedent did not have

asbestosis--had not previously been disclosed in Garlock's Rule

213 disclosure. Garlock objected and claimed that the opinion

had been disclosed. When the court asked Garlock to point to

where Garlock had disclosed that opinion of Dr. Smith, Garlock

did so, and the court expressed doubt. The court noted that the

document Garlock referred to quoted Dr. Smith as saying that "it

is not possible for me to state to a reasonable degree of medical

certainty that [decedent] either did have or did not have bona

fide asbestosis." The court pointed out that Dr. Smith had given

an opinion in court that differed from that report because he had

just testified that the decedent did not have asbestosis. The

court again pointed out that Dr. Smith's disclosed opinions were

that "he saw things which were not consistent with asbestosis.

But, his final *** conclusion is it's not possible to state the

required standard whether the [decedent] did or didn't have

asbestosis." The court noted that Dr. Smith had just testified

definitively that the decedent did not have asbestosis and added

- 7 - that, "I hardly need to point out [that whether the decedent had

asbestosis] is something of a major issue in this case."

Garlock then argued that Dr. Smith never testified to

that effect on direct examination. The trial court responded as

follows: "Well[,] tell me what difference it makes. On cross-

examination, doesn't the plaintiff have the right to expect that

the doctor's answers on cross-examination are going to be consis-

tent with his disclosures?"

The trial court took the matter under advisement to

read the transcripts of Dr. Smith's direct and cross-examination.

After reconvening, the court granted White's motion to strike,

explaining as follows:

"THE COURT: Well, I think [White] is

correct on this issue. This goes beyond the

[Rule] 213 disclosure, and I might add,

again, this is not on a minor issue in this

case. *** Clearly[,] the claims of [White]

for the last three years have been that [de-

cedent] had asbestosis and it was the cause

of his death, and if an expert that [Garlock]

was going to put on the stand is going to

state an opinion, direct, cross, redirect,

recross, or anywhere, that it was this wit-

ness' opinion, however plausible or possible

- 8 - it might be that somebody else might have a

different opinion, that [decedent did not

have] asbestosis, to not put that as [a]

clear, unequivocal statement of his opinion

in the [Rule] 213 disclosure is--well, it's

certainly surprising that we would be dis-

cussing this issue at this point in this

trial."

The court also noted that White's question of Dr. Smith that

brought his first response that decedent did not have asbestosis

did not "really have anything to do with asbestosis specifically,

and it was really a volunteered, nonresponsive answer by the

doctor."

In fashioning its remedy, the trial court explained

that because Garlock's disclosures regarding Dr. Smith's testi-

mony contained "many signs" that asbestosis was not likely in

this case, the court considered it a sufficient remedy to strike

Dr. Smith's opinion testimony that decedent did not have asbesto-

sis. In so ruling, the court also noted that none of Garlock's

disclosures regarding Dr. Smith contained an indication that he

believed aspergillosis was the cause of decedent's death. Thus,

the court ordered that in addition to prohibiting Dr. Smith from

giving any further opinions that he believed decedent did not

have asbestosis, he was not to give any further opinions "either

- 9 - directly or impliedly that the cause of death was aspergillosis."

White continued to press the trial court to strike all

of Dr. Smith's testimony, but the court declined and instructed

the jury that Dr. Smith's testimony regarding (1) whether dece-

dent had asbestosis and (2) the cause of his death would be

stricken and was to be disregarded. The court further explained

to the jury that the court took this action because Garlock had

failed to disclose this testimony to White in advance of trial,

as Garlock was required to do.

D. The Jury's Verdict and White's Posttrial Motions

When plaintiff first filed this lawsuit, she was suing

several different defendants. By the time of trial, only Garlock

and Sprinkmann Sons Corporation were still defendants in the

case. Following the presentation of evidence and arguments, the

jury returned verdicts in favor of Garlock and Sprinkmann and

against White. The jury was also given three special interroga-

tories, to which they provided the following answers: (1) First

Interrogatory: "Did you find that the evidence presented in this

case established that asbestosis from Owens Corning Kaylo was a

proximate cause of the injury to and death of [the decedent]?"

The jury answered yes. (2) Second interrogatory: "Did you find

that the evidence presented in this case established that prod-

ucts from Garlock was a proximate cause of the injury to and

death of [the decedent]?" The jury answered no. (3) "Did you

- 10 - find that Sprinkmann's intentional destruction was the proximate

cause of [White's] inability to prove products from Garlock was

the proximate cause of the injury to and death of [the dece-

dent]?" The jury answered no.

In February 2006, White filed a posttrial motion,

alleging, in pertinent part, that the trial court erred by not

striking Dr. Smith's testimony because it violated Rule 213(i).

E. The Hearings on White's Posttrial Motion

At the April 2006 hearing on White's posttrial motion,

White argued again that Garlock failed to comply with the re-

quirements of Rule 213(i), which imposed a duty on Garlock to

seasonably supplement or amend any prior answer or response to an

interrogatory whenever new or additional information subsequently

becomes known to that party. Garlock acknowledged at this

hearing that on the Saturday night before Dr. Smith testified,

Dr. Smith phoned Garlock's counsel and said, "I think this guy

ha[d] aspergillosis, if you really want to know." Garlock's

counsel told the court that he informed Dr. Smith "that's not

where we are going in this case, and that's not our theory. ***

We're not going to talk about that, and this case is not about

aspergillosis."

Garlock's counsel also explained to the trial court

that he had understood that "a number of days before trial is far

too late for [Dr. Smith's new] opinion to be elicited at trial."

- 11 - Thus, he advised Dr. Smith that he could not offer those opinions

at trial.

The trial court then asked Garlock to respond to

White's position that the issue was not whether Garlock would

have been allowed to use the new opinion, because it was still

obligated to disclose it prior to trial. Garlock responded that

"the reality of asbestosis litigation is that experts constantly

develop new opinions all the time after disclosure deadlines in a

case." Garlock asserted that it had imposed upon itself the

relief that White would have requested--namely, it did not elicit

Dr. Smith's new opinions on direct examination.

The trial court noted that it viewed the shift in Dr.

Smith's opinion as significant, noting that (1) whether the

deceased even had asbestosis and (2) the cause of death were

critical issues. The court indicated that White was entitled to

know about Dr. Smith's new opinion for cross-examination purposes

even if Garlock would not be able to use the information itself.

The court further stated as follows:

"Regardless of what you might be allowed to

use because of the timeliness problems,

aren't you required to update opinions, and

in this case you not only didn't update the

opinion, but when you filed your last disclo-

sure immediately before trial, you indicated

- 12 - the review of these further materials does

not change [Dr. Smith's] opinion in any way."

At the conclusion of the April 2006 hearing, the trial

court took White's posttrial motion under advisement. A few

weeks later, the court stated that it wanted to hear further

evidence and directed Garlock to produce Dr. Smith to testify at

the next hearing on White's posttrial motion.

In July 2006, the trial court renewed the hearing on

White's posttrial motion and called Dr. Smith as a court's

witness. Dr. Smith testified that he did not make up his mind

about his new opinions until a few days before he testified.

Earlier that day, Dr. Smith had gone to the medical library to

consult some "rather esoteric articles" that helped him reach

these new opinions. He called Garlock's counsel that day and

discussed the matter with him. Dr. Smith explained that he had

not finalized his preparation until that date because he thought

he would be giving a discovery deposition, but that never hap-

pened. He also explained that this was the first case in which

he had worked with any of the attorneys representing Garlock.

The night before Dr. Smith testified, he had dinner

with Garlock's attorney and discussed the case. Dr. Smith

explained that his recollection was not totally clear, but he

recalled most of his preparation with Garlock's attorney dealt

with whether Garlock gaskets and packing materials could have

- 13 - caused or substantially contributed to decedent's asbestosis, if

decedent indeed had had asbestosis. Dr. Smith had a vague

recollection that the attorney indicated that he

"probably would not be discussing with me in

any degree of intensity anything about my

opinion as to the actual cause of death or

those sorts of things. And I told him I

thought it would be hard to discuss the mat-

ter without talking about that a little bit.

As a scientist and physician, you know, you

also want to talk about the cause of death,

but he said, well, you know, you probably

will not be able to discuss those matters."

Dr. Smith testified that he was concerned that the

White family was never going to hear about the potentially

genetic disorder that predisposed them to aspergillosis.

Garlock's attorney told him that he probably would not be able to

discuss that during his testimony, "but we'll see if something

can't be done about that after you testify."

Dr. Smith was asked whether anyone from Garlock's

lawyers' firm advised him that he could not offer his opinion

regarding aspergillosis at trial, and he responded as follows:

"No, I don't believe that I was advised that I explicitly could

not mention the opinion about aspergillosis at trial. As I've

- 14 - mentioned, I was advised that that was not going to be the main

thrust of my testimony." Dr. Smith was also asked whether

Garlock's attorneys ever warned him that any particular opinion

was not to come out at trial, and he responded as follows: "I

don't recall [Garlock's] attorneys, any of them, telling me that

I couldn't offer my honest opinions about any matter if it was

appropriate to do so."

After Dr. Smith testified, Garlock conceded during

argument on the motion that it knew disclosure of Dr. Smith's new

opinions was patently late. Garlock explained its counsel's

conduct, as follows:

"He knew that the appropriate relief to be

imposed upon Garlock was that Dr. Smith would

not be allowed to offer [those opinions.] We

basically elected to impose that relief upon

ourselves and instructed Dr. Smith that we

weren't going to go down that route in his

examination and left that issue out of the

trial essentially. Obviously, if that door

were opened on cross-examination, that was

beyond our control, and [if] Dr. Smith felt

that it had been opened, we could not in-

struct him not to offer that opinion if it

came up on cross-examination[,] of course."

- 15 - The trial court pointed out that it had been laboring

at trial under the assumption that the volunteered modified

opinion that Dr. Smith offered on cross-examination was news to

everyone, including Garlock, and that Garlock did not know about

the new opinion prior to his offering it. The court added, "I'm

having a hard time understanding *** why Garlock did not make

clear to the court at that point in time that Garlock knew about

this and what efforts it had taken, if any, prior to trial to

keep [Dr. Smith] from stating undisclosed opinions." Garlock's

first response was, "With all due respect, I don't know how the

court reached that conclusion." The court retorted, "Well, I

reached that conclusion because Garlock didn't tell me that they

knew about it." Garlock then responded that it argued at the

time its belief that the opinion had been adequately disclosed in

Dr. Smith's February 2005 report. The court responded:

"True enough, and I think I told you in the

nicest and politest terms that a judge can

use that that position was total nonsense

since, of course, the newly proffered opinion

on cross-examination in this case was a sig-

nificant departure from [Dr. Smith’s] prior

opinion. *** [T]o say otherwise is just

silly in my opinion."

Garlock also argued that the trial court needed to ask

- 16 - itself what error occurred here and what could have been done to

remedy the situation, adding, "No one could have told Dr. Smith

that he could not offer [his opinions.]" The court responded as

follows:

"[I]f this matter had been raised prior to

[Dr. Smith’s] testimony, if you had disclosed

it to [White's counsel] and they raised this

by motion, then the matter could have been

resolved prior to [Dr. Smith's] testimony

because the court could have instructed him

what he could or could not get into in his

testimony[,] and he would have to abide by

that."

At the conclusion of the hearing, the trial court

granted White's motion for a new trial, explaining, in part, as

"[T]he [c]ourt believes that it is crystal

clear beyond any question that an egregious

[Rule] 213 violation occurred in this matter.

And it's just beyond me as to how that would

not be the case. *** [W]e'll give [Dr. Smith]

the benefit of the doubt and say yes he ex-

pressed the opinion [in his February report]

that [the deceased] had aspergillosis. ***

- 17 - [However,] there's a whole lot of difference

between saying he had aspergillosis and say-

ing that he had aspergillosis and that was

the cause of his death. There's a whole lot

of difference between saying, as he did in

his February report, I can't--I'm casting

doubt on the asbestosis diagnosis, but I

can't say to a reasonable degree of medical

certainty one way or another whether he had

it or he didn't have it. And turning around

in [his] testimony and saying he did not have

asbestosis and therefore obviously that's not

the cause of his death. Aspergillosis is the

cause of his death.

*** [Dr. Smith] didn't finalize his

opinion until the very end right before he

was about to testify. Once he did that,

whether Garlock intended to use it, he was

going to avoid it altogether[,] or whatever,

Garlock was under an immediate obligation to

update its [Rule] 213 disclosure Monday morn-

ing or Sunday evening to [White's counsel]

indicating what the doctor's opinion was that

was different than what was in his report.

- 18 - The simple expedient of doing that would

have avoided this entire problem in the first

place. ***

Garlock made a conscious decision to

simply give some sort of warning to the doc-

tor, which obviously was not effective, be-

cause in cross[-]examination he basically

volunteered this information. It was a

nonresponsive answer. Certainly was not--was

not called for, and then at that point the

[c]ourt dealt with it.

Well, Garlock's position now is that the

way the [c]ourt dealt with the matter at the

time was appropriate and was, if you will, a

middle of the road moderate sanction but one

that effectively dealt with it with the jury

in effect being instructed to disregard some-

thing [it] had already heard.

That position ignores the fact *** it is

likely that the [c]ourt would have looked at

this matter significantly different[ly] had I

known at that point in time that Garlock knew

about the updated opinion. The matter was

not directly discussed, but the [c]ourt be-

- 19 - lieves it was incumbent on Garlock to inform

the [c]ourt that it knew about it and what

steps it had taken to make sure the [d]octor

didn't disclose something that was not in his

report. And the [c]ourt was not informed of

that, and I was laboring under the assumption

that Garlock was surprised by all this as the

rest of us were, and I--I just see no excuse

for not disclosing in the first place and no

excuse for not informing the [c]ourt what the

situation was. In that event, the [c]ourt

may well have taken a different approach.

The [c]ourt might have barred the doctor's

testimony altogether. The [c]ourt might have

granted a mistrial. I don't know. But it's

likely I would have taken more severe action

had I known that Garlock had known about this

matter before--before it came up.

***

The real question is to me not whether a

violation occurred or that things should have

been done a lot different, but whether the

violation merits a new trial, whether there

was a fundamental denial here to Mrs. White

- 20 - of a fair hearing, and how important was the

matter involved here? *** [C]oming into this

trial it would have appeared I think to

[White] based on the evidence they had ***

that whether [decedent] had asbestosis and

whether that was the cause of his death was

not the issue in the case. That the issue in

the case is whether Garlock products were at

his workplace and whether they could conceiv-

ably have produced enough exposure that

Garlock could be found liable for his disease

and death.

The *** newfound opinion of [Dr. Smith]

introduced before the jury a question on an

extremely important issue in this case,

whether he even had asbestosis in the first

place and whether it could have caused his

death. The [c]ourt, based on what it knew at

the time, took appropriate action to try to

correct an error without declaring a mistrial

or taking some more drastic action.

The [c]ourt would note for the record

*** Dr. Smith in my view is an extremely able

and effective expert witness and one who is

- 21 - not only very articulate in terms of being

able to convey things to laypeople but [who

also has a] very likeable personality, and he

was an important witness in this trial.

And the [c]ourt has agonized over this

matter greatly. I think it goes without

saying that this judge and no other judge

lightly considers granting a new trial in any

matter much less an extensive matter which

requires great preparation and lengthy trial

and many expert witnesses. But in this cir-

cumstance the [c]ourt believes that the im-

portance of the issue involved here, the

egregiousness of the violation and the fail-

ure to make the appropriate disclosures that

we've discussed, is sufficient that [the

m]otion for [n]ew [t]rial *** will be

granted."

F. The Trial Court's Order Restricting Dr. Smith's Testimony Upon Retrial

After the trial court granted the motion for a new

trial, the court also imposed restrictions upon Dr. Smith's

testimony at the new trial, explaining as follows:

"[T]he manner in which this [situation was]

handled makes it very difficult and problem-

- 22 - atic to allow [White] to fairly cross[-]

examine [Dr. Smith] at future trials, [so]

the [c]ourt will bar his testimony at future

trial related to the issue of [the

decedent's] medical condition and the cause

of [the decedent's] death.

The [c]ourt will leave open the option

but entertain argument as to whether the

problems created by all this should bar his

testimony [on] the other issue that he testi-

fied on, which is whether Garlock products

could have conceivably produced enough asbes-

tos to--to have created any problem here.

But as to that part of his testimony related

to [the deceased] and his medical diagnosis

and treatment and cause of his death, Dr.

Smith will be barred on that side of the

issue."

The trial court further clarified its ruling by indi-

cating that it was not yet definitively ruling out any testimony

by Dr. Smith at the new trial regarding, generally, "what it

takes to have exposure and here's what [the decedent] had from

the records I have[,] and therefore he didn't get enough exposure

[from Garlock's products]" to cause decedent's illness.

- 23 - G. Garlock's Motion To Reconsider the Grant of a New Trial

In August 2006, Garlock filed a motion to reconsider

the trial court's grant of White's motion for a new trial,

asserting the following: (1) even if a Rule 213 violation

occurred, the jury's special findings conclusively established

that it did not unfairly prejudice White or affect the outcome at

trial; (2) White forfeited her right to seek a new trial based on

Dr. Smith's purportedly improper opinions because she failed to

promptly object or seek other relief; (3) White cannot object to

testimony she elicited; and (4) if the new trial order is af-

firmed, Dr. Smith's testimony should not be limited upon retrial.

In September 2006, the trial court conducted a hearing

on the motion to reconsider and denied it. During that hearing,

the court asked Garlock, "Doesn't [White’s] attorney have the

expectation upon cross-examination *** that he is not going to

hear a different answer [from Garlock's expert witness] than

what's in the disclosure [Garlock provided regarding that ex-

pert's opinions]?" Garlock responded: "Pursuant to [s]upreme

[c]ourt [r]ule, he has an expectation, and that's why most people

will depose the expert to kind of make sure they don't walk into

something like that." Garlock further implied that had White

bothered to depose Dr. Smith, the problems pertaining to his

testimony might have been avoided.

The trial court reiterated that in the report Dr. Smith

- 24 - prepared prior to trial, he stated that he could not determine to

a reasonable degree of medical certainty if the decedent did or

did not have asbestosis and certainly gave no opinion that

aspergillosis was the cause of his death. The court noted that

Garlock argued at trial that "somehow this was not a change of

opinion, which the court didn't understand at the time and

certainly doesn't understand now. The doctor changed his opin-

ion." The court added the following:

"[White] had an absolute right, in my

view, to expect, once [the condition of the

decedent's health] was testified about on

direct [examination], that if [White] asked

any questions that related to the health of

[the decedent], that they would get exactly

the opinions that were disclosed [in advance

of trial by Dr. Smith], and they asked ques-

tions[,] and they did not get exactly the

opinions that were disclosed."

The trial court explained that it deemed the Rule 213

violation serious because there are "only a couple of issues that

are really important in an asbestos case, *** and one of them is

did the person have some asbestos-related disease?" Given the

nature of the case White presented, the court thought that she

would have believed that whether decedent's death was caused by

- 25 - asbestos-related disease "was a nonissue," at least until Dr.

Smith's cross-examination testimony. The court reaffirmed that,

in its judgment, that testimony--namely, that the decedent did

not have asbestosis in Dr. Smith's opinion--resulted from

nonresponsive answers. The court also reaffirmed its view that

Garlock's counsel "absolutely had the obligation" to inform the

court that he knew in advance of Dr. Smith's change of opinion

and, further, to have made an immediate disclosure of the change

at the earliest possible time.

The trial court emphasized again that a factor in its

decision to grant White's motion for a new trial was that Dr.

Smith "was an extremely effective witness, *** one of the finest

expert witnesses I have ever seen on the witness stand in 30

years." The court was concerned that some of the jurors may have

answered the special interrogatory the way they did because they

were thinking, based in part upon Dr. Smith's testimony, "I'm not

even sure that the guy had asbestosis, but I'll go ahead and vote

this way."

As earlier stated, Garlock filed a petition for this

court to review the trial court's grant of White's motion for a

new trial, and in September 2006, this court granted Garlock's

petition.

- 26 - II. ANALYSIS

A. Supreme Court Rule 213

Garlock first argues that the trial court erred by

finding that a Rule 213(i) violation occurred. Garlock further

argues that, even if such a violation did occur, (1) White

forfeited this issue by not making a timely objection at trial

and (2) White elicited the allegedly improper testimony herself.

For the reasons that follow, we disagree.

1. Standard of Review

In Sullivan v. Edward Hospital, 209 Ill. 2d 100, 108-

09, 806 N.E.2d 645, 651 (2004), the supreme court reviewed the

trial court's decision to strike certain testimony of the plain-

tiff's expert witness because of a violation of Rule 213 in a

medical-malpractice case. In so doing, the court wrote as

follows: "The admission of evidence pursuant to Rule 213 is

within the sound discretion of the trial court, and the court's

ruling will not be disturbed absent an abuse of that discretion."

Sullivan, 209 Ill. 2d at 109, 806 N.E.2d at 651.

In this case, the trial court granted White's motion

for a new trial because it found that Garlock violated Rule

213(i). Although this ruling was not, as in Sullivan, made

during the course of trial, we conclude that the abuse-of-discre-

tion standard is appropriate when reviewing a trial court's grant

of a new trial based upon a Rule 213 violation.

- 27 - 2. Rule 213 and the Policy Underlying the Rule

Supreme Court Rule 213, entitled "Written Interrogato-

ries to Parties," governs discovery by interrogatories, as well

as disclosure of the identity of witnesses who will testify at

trial. 210 Ill. 2d R. 213. Rule 213(f) requires a party, in

response to a written interrogatory (as occurred in this case),

to furnish information about three different categories of

witnesses the party may call to testify at trial: (1) lay

witnesses, (2) independent expert witnesses, and (3) controlled

expert witnesses. Rule 213(f)(3) defines a "controlled expert

witness" as follows:

"A 'controlled expert witness' is a

person giving expert testimony who is the

party, the party's current employee, or the

party's retained expert. For each controlled

expert witness, the party must identify: (i)

the subject matter on which the witness will

testify; (ii) the conclusions and opinions of

the witness and the bases therefor; (iii) the

qualifications of the witness; and (iv) any

reports prepared by the witness about the

case." 210 Ill. 2d R. 213(f)(3).

The importance of a party's compliance with Rule

213(f)(3) is shown by Rule 213(g), which provides, in pertinent

- 28 - part, as follows: "The information disclosed in answer to a Rule

213(f) interrogatory *** limits the testimony that can be given

by a witness on direct examination." 210 Ill. 2d R. 213(g).

Rule 213(i), which is at issue in this case, reads as

"(i) Duty to Supplement. A party has a

duty to seasonably supplement or amend any

prior answer or response whenever new or

additional information subsequently becomes

known to that party." 210 Ill. 2d R. 213(i).

The Committee Comments to Rule 213 provide insight into

what the Supreme Court of Illinois sought to achieve by promul-

gating the rule. Committee Comments pertinent to this case

discuss paragraph (i), as follows:

"With regard to paragraph (i), the new

rule imposes a ’seasonable’ duty to supple-

ment or amend prior answers when new or addi-

tional information becomes known to that

party. This is a change from previous dis-

covery requirements and thus eliminates the

need for supplemental interrogatories unless

different information is sought. The Commit-

tee believes that the definition of ’season-

able’ varies by the facts of each case and by

- 29 - the type of case, but in no event should it

allow a party or an attorney to fail to com-

ply with the spirit of this rule by either

negligent or wilful noncompliance." 210 Ill.

2d R. 213(i), Committee Comments, at lxxxv.

In deciding whether the trial court erred by finding

Garlock violated Rule 213, it is helpful to consider the underly-

ing policy of that rule. The Sullivan case is particularly

instructive, where the supreme court stated that Rule 213(g)

"requires that, upon written interrogatory, a

party must disclose the subject matter, con-

clusions, opinions, qualifications, and all

reports of a witness who will offer any opin-

ion testimony. [Citation.] Further, Supreme

Court Rule 213(i) imposes on each party a

continuing duty to inform the opponent of new

or additional information whenever such in-

formation becomes known to the party." (Em-

phasis in original.) Sullivan, 209 Ill. 2d

at 109, 806 N.E.2d at 651.

The Sullivan court then explained that its rules represented the

court's best efforts to manage the complex and important process

of discovery. Of particular significance to this case, the

supreme court added the following:

- 30 - "Rule 213 permits litigants to rely on the

disclosed opinions of opposing experts and to

construct their trial strategy accordingly.

[Citation.] *** One of the purposes of Rule

213 is to avoid surprise. [Citation.] To

allow either side to ignore Rule 213's lan-

guage defeats its purpose and encourages

tactical gamesmanship." Sullivan, 209 Ill.

2d at 109-10, 806 N.E.2d at 652.

In Department of Transportation v. Crull, 294 Ill. App.

3d 531, 538-39, 690 N.E.2d 143, 148 (1998), this court addressed

the then-newly revised version of Rule 213 and wrote the follow-

ing:

"Rule 213 establishes more exacting standards

regarding disclosure than did Supreme Court

Rule 220 [citation], ***, which formerly

governed expert witnesses. Trial courts

should be more reluctant under Rule 213 than

they were under former Rule 220 (1) to permit

the parties to deviate from the strict dis-

closure requirements, or (2) not to impose

severe sanctions when such deviations occur.

Indeed, we believe one of the reasons for new

Rule 213 was the need to require stricter

- 31 - adherence to disclosure requirements."

In Sullivan, the supreme court quoted this portion of our deci-

sion in Crull and wrote, "We agree." Sullivan, 209 Ill. 2d at

110, 806 N.E.2d at 652.

We acknowledge that Rule 213 was amended, effective

July 1, 2002, and that both this court in Crull and the supreme

court in Sullivan were addressing the preamended version of that

rule. Nonetheless, we do not believe the amendment to Rule 213

undermines the previously stated policy underlying Rule 213. We

find support for this holding in the scholarly opinion of Justice

Quinn in Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d

444, 454, 818 N.E.2d 713, 721 (2004), where the First District

addressed a postamendment Rule 213 violation and cited Sullivan

(citing Crull) for the proposition that "[t]o allow either side

to ignore the plain language of Rule 213 defeats its purpose and

encourages tactical gamesmanship." See also Foley v. Fletcher,

361 Ill. App. 3d 39, 47, 836 N.E.2d 667, 674 (2005) (addressing

the 2002 amended version of Rule 213 and citing the policy

discussions of Sullivan as authoritative).

3. The Trial Court's Finding That Garlock Violated Rule 213(i)

The record is clear that Dr. Smith was a controlled

expert witness under Rule 213(f)(3). That status required

Garlock, in response to White's interrogatories, to not only

identify Dr. Smith as one of the witnesses Garlock expected to

- 32 - testify at trial, but also to identify "the conclusions and

opinions of [Dr. Smith] and the bases therefor." 210 Ill. 2d R.

213(f)(3)(ii).

The trial court determined that Garlock violated Rule

213(i) because Garlock did not "seasonably supplement or amend

any prior answer or response" by Dr. Smith in response to White's

interrogatory when new information subsequently became known to

Garlock.

finding it violated Rule 213(i). Specifically, Garlock contends

that because its direct examination of Dr. Smith did not deviate

from its Rule 213 disclosures regarding his testimony, no viola-

tion of Rule 213(i) occurred. We disagree.

At the hearing on the motion to reconsider the trial

court's grant of White's motion for a new trial, the court stated

well the fundamental issue in this case:

"Doesn't [White’s] attorney have the [right

to an] expectation upon cross-examination ***

that he is not going to hear a different

answer [from Garlock's expert witness] than

what's in the disclosure [Garlock provided

regarding that expert's opinions]?"

Consistent with the earlier-discussed policy underlying Rule 213,

we agree with the trial court that the answer to this question is

- 33 - an emphatic "yes."

The plain language of Rule 213 compels this conclusion.

First, Rule 213(f)(3) states, in pertinent part, that a party

must identify the "conclusions and opinions" of that party's

"controlled expert witnesses," and contains no language limiting

the disclosure to "conclusions and opinions" that the party

expects to elicit on direct examination. Second, Rule 213(i)

similarly speaks of a party's "duty to seasonably supplement or

amend" any prior answer or response to an interrogatory whenever

new or additional information subsequently becomes known to that

party. 210 Ill. 2d R. 213(i). Rule 213(i) contains no language

limiting the duty to supplement discovery to material that the

party expects to elicit on direct examination. To limit Rule

213's applicability in this way would be inconsistent with the

supreme court's intent in promulgating Rule 213 and would encour-

age the sort of "tactical gamesmanship" that the rule was in-

tended to prevent.

We agree with the sentiments expressed in Clayton v.

County of Cook, 346 Ill. App. 3d 367, 381, 805 N.E.2d 222, 235

(2003): "'Rule 213 is designed to give those involved in the

trial process a degree of certainty and predictability that

furthers the administration of justice and eliminates trial by

"ambush".' [Citations.]" In this case, Garlock knew of the

change in Dr. Smith's opinion (concerning one of the most funda-

- 34 - mental issues in the case) and violated Rule 213(i) by failing to

reveal this change to White. Instead, Garlock mutely stood by as

White conducted a vigorous cross-examination during which Dr.

Smith's new opinions came out. This is precisely the sort of

ambush that Rule 213 was designed to prevent. The bottom line is

that White had an absolute right to conduct her cross-examination

of Dr. Smith with confidence that she knew all of his pertinent

opinions because Garlock had disclosed them in response to her

written interrogatories.

4. Garlock's Claim That White Forfeited Her Rule 213(i) Argument Because She Did Not Timely Object

Garlock also argues that White forfeited at trial the

issue of any Rule 213(i) violation by failing to timely object or

seek a new trial based on the alleged violation. Specifically,

Garlock contends that after Dr. Smith revealed his new opinions,

White proceeded to pose additional questions to Dr. Smith instead

of objecting, and these questions served "not only to underscore,

but to expand the scope" of the opinions Dr. Smith was then

presenting. We are unpersuaded.

Garlock is correct that, generally, to be effective in

preserving an error, an objection must be timely, meaning contem-

poraneous with the objectionable conduct. York v. El-Ganzouri,

353 Ill. App. 3d 1, 17, 817 N.E.2d 1179, 1194 (2004). In People

v. Stewart, 343 Ill. App. 3d 963, 979, 799 N.E.2d 1011, 1024

(2003), the appellate court explained that this forfeiture rule

- 35 - serves an important purpose because a timely objection will allow

the trial court to correct any errors. However, like most rules

dealing with the admissibility of evidence, the issue of the

timeliness of a party's objection is left to the sound discretion

of the trial court. Here, White raised the alleged Rule 213(i)

violation at her first opportunity to do so out of the presence

of the jury when the court ordered a recess in normal course.

When considered in context, the trial court was not troubled by

any delay in White's raising the issue at that time. Neither are

we.

5. Garlock's Claim That White Cannot Object to Testimony She Elicited

Garlock next argues that "[a] fundamental flaw in the

rationale underlying the trial court's decision to grant [White]

a new trial" is that White elicited the opinions of Dr. Smith

that allegedly violated Rule 213. Garlock contends that because

White elicited this purportedly improper opinion testimony, she

cannot complain about its admission.

We reject this argument for two reasons. First, we

agree with the trial court that the new opinions expressed by Dr.

Smith on cross-examination were volunteered and not responsive

answers to questions asked by White. Accordingly, it cannot be

said that White "elicited" Dr. Smith's new opinions.

Second, even if White had done so, it would not have

mattered. As we explained earlier, White had an absolute right

- 36 - to conduct her cross-examination of Dr. Smith in the confidence

that she knew all of his pertinent opinions regarding the case.

Garlock had the duty under Rule 213(i) to make that right a

reality.

In support of its argument, Garlock cites Nassar v.

County of Cook, 333 Ill. App. 3d 289, 303-04, 775 N.E.2d 154, 166

(2002), in which the plaintiff in a medical-malpractice action

argued that the defendant's expert witness testified improperly,

but the appellate court held "Plaintiffs cannot object where they

first elicited the testimony during their examination of [defen-

dant's expert]." However, Garlock does not mention the very next

sentence that reads as follows: "Moreover, [defendant's ex-

pert's] testimony did not involve new opinions ***." Nassar, 333

Ill. App. 3d at 304, 775 N.E.2d at 166-67.

B. The Remedy for Garlock's Rule 213(i) Violation

1. The Grant of a New Trial

Garlock next argues that even if a Rule 213(i) viola-

tion occurred, the trial court erred by ordering a new trial as a

remedy. Specifically, Garlock contends that "the jury's special

findings conclusively demonstrate that [the violation] did not

affect the trial's outcome, prejudice [White], or deny her a fair

trial." Accordingly, Garlock claims that the court's grant of a

new trial constituted an abuse of discretion. We disagree.

We first note that in reviewing the issues of (1)

- 37 - whether a Rule 213(i) violation occurred and, (2) if so, what

remedy should be imposed, we are struck by the obvious care and

consideration the trial court gave to both of these issues. In

particular, we commend the trial court for its extensive discus-

sion with trial counsel during which the court sought to learn as

much as it could about what really happened. Too frequently,

courts of review are left with uncertainties when discovery

issues are argued on appeal because the trial court did not make

a complete record. We are fortunate that did not occur in this

case.

We also commend the trial court for taking the unusual

step of calling Dr. Smith as a court's witness to make clear (1)

the context in which his new opinions were developed, (2) his

discussions with Garlock's counsel, and (3) how he happened to

testify about his new opinions at trial. Calling Dr. Smith as a

court's witness was an unusual step, but the court was confronted

with an extraordinary situation, and it acted appropriately.

The record also reveals that the trial court carefully

considered all pertinent matters before granting White's motion

for a new trial. The court explained at length the circumstances

as it found them and why it felt compelled to take that action.

We earlier explained that this decision was a matter left to the

court's sound discretion, and we reject Garlock's argument that

the court abused its discretion by ordering a new trial.

- 38 - In so concluding, we also reject Garlock's argument

that the jury's special findings conclusively established that

the Rule 213(i) violation did not unfairly prejudice White or

affect the trial's outcome. Garlock bases this argument upon its

contention that the special findings

"conclusively establish that the jury did not

base its decision in whole or in part on the

testimony found to violate Rule 213. First,

the jury found that [the] decedent's exposure

to Owens Corning Kaylo, an asbestos-contain-

ing thermal insulation product, was a proxi-

mate cause of his injury and death. That is,

the jury found that decedent suffered from

asbestosis. Second, the jury found that

Garlock's products were not a proximate cause

of [the] decedent's asbestosis and death.

The jury's special findings support only two

possible conclusions: the jury rejected Dr.

Smith's opinion that aspergillosis caused

[the] decedent's death, or it heeded the

court's instruction to disregard it."

We disagree with Garlock's analysis. Instead, we agree

with the trial court's determination that Dr. Smith's new opin-

ions, which constituted the Rule 213(i) violation and which came

- 39 - forth during his cross-examination, were so potentially prejudi-

cial that granting White a new trial was entirely appropriate.

When, as here, a jury has heard improper evidence, a trial court

always possesses the authority to award a new trial to the

injured party, no matter what special findings the jury may have

made. The trial court is in the best position to determine to

what extent the improper evidence may have affected the decisions

of the jury, including any special findings. Garlock's argument

to the contrary is groundless, and the authority Garlock cites is

completely inapposite.

2. Restrictions on Dr. Smith's Testimony on Retrial

In granting White's motion for a new trial, the trial

court also restricted Dr. Smith from testifying at the new trial

"on the issues of the diagnosis of any medical condition from

which [decedent] suffered and the cause of [decedent's] death."

The court left open the question of whether Dr. Smith would be

permitted to render opinions on the ability of Garlock products

to cause asbestos disease in general.

Garlock argues that if this court affirms the trial

court's grant of White's motion for a new trial, then we should

lift the restrictions on Dr. Smith's testimony on retrial.

Garlock specifically contends that prohibiting Dr. Smith from

rendering opinions about decedent's medical condition and the

cause of his death will "prevent--rather than ensure--a trial on

- 40 - the merits." Garlock further contends that the restrictions are

excessive and unnecessary because, at any retrial, White will

have "knowledge of the opinions and may seek to conduct addi-

tional discovery." We disagree.

Garlock is correct that Illinois recognizes a strong

public policy favoring trials on the merits whenever possible.

Here, the trial court's granting of a new trial was similar to

other actions courts have taken pursuant to Rule 219 (166 Ill. 2d

R. 219) when discovery violations occurred before or during

trial. The only difference is that this case was over, and the

jury had rendered its verdicts. Despite this difference, we look

to Rule 219 and the case law interpreting that rule for guidance

in reviewing the trial court's restrictions on Dr. Smith's

testimony on retrial. On this issue, in addition to the earlier

cases we have mentioned, we have also considered Shimanovsky v.

General Motors Corp., 181 Ill. 2d 112, 123, 692 N.E.2d 286, 291

(1998); Cirrincione v. Westminster Gardens Ltd. Partnership, 352

Ill. App. 3d 755, 765, 816 N.E.2d 730, 738 (2004); and Adams v.

Bath & Body Works, Inc., 358 Ill. App. 3d 387, 395, 830 N.E.2d

645, 653 (2005).

We have already ruled that the trial court was correct

to find Garlock violated Rule 213(i) by not timely disclosing Dr.

Smith's new opinions. The court's grant of White's motion for a

new trial certainly constitutes significant punishment for that

- 41 - sin, given that White asked for $3 million in damages, and the

jury found in favor of Garlock and awarded White nothing. We are

also sensitive to the fact that this was a lengthy, complex, and

expensive trial the conclusion of which was aborted because of

Garlock's violation of Rule 213(i). After carefully considering

the competing interests pertaining to restrictions on Dr. Smith's

testimony on retrial, and being guided by the provisions of Rule

219 and the case law interpreting it, we conclude that the trial

court did not abuse its discretion by imposing those restric-

tions.

C. White's Claim That Garlock's Intentional Violations of Rules 213(i) and 237(b) Require the Entry of Judgment Against Garlock on Liability and Causation and a New Trial on Damages Only

As earlier noted, this case is before us on appeal

pursuant to Rule 306, 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

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).

Pursuant to that paragraph, 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

- 42 - trial on damages only. We disagree.

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. David 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 extensively argued before

the trial court, which ultimately agreed with White that although

Dr. Carlson was not an employee, officer, 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 at the close of

White's case in chief about that failure, explaining, in perti-

nent that: "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 conclusion 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 follow-

- 43 - ing elements:

1. The evidence was under control of

the party and could have been produced by

exercising 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."

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

sufficient, noting that White did not take Dr. Carlson's deposi-

tion nor provide the court 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 handling of the

Rule 237(b) issue. Like other discovery issues, the appropriate-

ness of any sanction for a violation of Rule 237(b) is left to

- 44 - the sound discretion of the trial 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 appeal.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

grant of White's motion for a new trial.

Affirmed.

MYERSCOUGH and COOK, JJ., concur.

- 45 -