SIXTH DIVISION		

									November 21, 2003

No. 1-01-4056

DENNIS THOMAS,

		Plaintiff-Appellee,		

	v.

JOHNSON CONTROLS, INC.,

		Defendant-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Allen A. Freeman,

Judge Presiding.

	PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

	Plaintiff Dennis Thomas sued defendant Johnson Controls, Inc., alleging that he suffered

injuries when he slipped and fell on oil that had accumulated on the floor of defendant’s premises. 

Following a trial, the jury returned a general verdict in favor of plaintiff and against defendant for

$343,810.09.  On appeal, defendant contends that the following circumstances amounted to

cumulative error, thereby denying it a fair trial: (1) the trial court erred in refusing to submit to the

jury any of the eight special interrogatories it proposed; (2) the trial court erred in failing to follow

a discovery sanction entered by a coordinate judge; (3) the trial court erred in barring defendant from

introducing medical evidence that refuted the causal nexus claimed by plaintiff; (4) the trial court

erred in prohibiting defendant from introducing evidence concerning its safety programs and

independent inspections of its facilities; and (5) during closing arguments, plaintiff’s counsel made

unfounded accusations against defendant and improperly referred to defendant’s alleged wealth and size.  Due to the prejudice caused by the trial judge’s failure to follow an earlier order barring certain

testimony, we reverse and remand for a new trial.

	BACKGROUND

	On September 29, 1995, plaintiff, a truck driver, delivered a load of lead to a battery plant

owned by defendant.  According to plaintiff, while he was walking along the loading dock, he slipped

on a puddle of oil and fell on his knees, landing face-down on the concrete floor.  Plaintiff filed a

complaint against defendant in 1997.  In the course of discovery, defendant requested that plaintiff

produce, among other things, “all x-rays of any part of the body of plaintiff in the possession of either

plaintiff or his attorneys, insofar as the same pertain to the subject matter of this litigation.”  In his

complaint, plaintiff asserted that under the Premises Liability Act (740 ILCS 130/1 et seq. (West 1998)), defendant was liable to him for the injuries he suffered when he fell on the loading dock. 

Defendant answered the complaint, denying liability and alleging contributory negligence.  The case

was set for a jury trial to begin August 13, 2001.

	On April 18, 2001, plaintiff filed his answers to defendant’s Supreme Court Rules 213(f) and

(g) interrogatories.  177 Ill. 2d Rs. 213(f), (g).  Therein, plaintiff disclosed witness Dr. Paul J.

Gruszka, an orthopedic surgeon who performed a total right knee arthroplasty on plaintiff on October

9, 2000, and indicated that Dr. Gruszka’s testimony would be based upon, among other things, his

“review of records and files.”  Plaintiff scheduled Dr. Gruszka’s deposition for August 8, 2001.

	On July 30, 2001, plaintiff sent nine X rays to a messenger service with instructions to copy

them and forward the copies to defendant’s counsel.  Defense counsel received these X rays for the

first time on August 1, 2001.  On August 2, 2001, defendant filed a supplemental answer to plaintiff’s Supreme Court Rules 213(f) and (g) interrogatories (177 Ill. 2d Rs. 213(f), (g)), disclosing Dr.

William Dobozi, an orthopedic surgeon, as a witness.  Defendant stated that Dr. Dobozi “may be

called to testify as to the issues of damages and causation based upon the x-rays produced by the

plaintiff on August 1, 2001, and other medical records supplied by plaintiff.”  Defendant indicated that

Dr. Dobozi would testify that plaintiff “suffered from a degenerative condition in his knees prior to

the accident complained of in this lawsuit, and that knee replacement was likely to be inevitable for

this plaintiff irrespective of his accident on September 29, 1995.”  Defendant noticed Dr. Dobozi’s

deposition for August 9, 2001.

	On August 3, 2001, plaintiff filed an emergency motion to quash the notice of Dr. Dobozi’s

deposition and bar his testimony, asserting that the late disclosure of this witness was extremely

prejudicial and violated Rule 213.  On August 6, 2001, defendant filed an emergency motion to bar

and quash notice of Dr. Gruszka’s deposition, in which defendant asserted, “Plaintiff’s disclosure of

medical information upon which his medical witness intends to rely comes for the first time less than

two weeks before trial and is extremely prejudicial to the defendant.  Moreover, plaintiff seeks to

depose Dr. Gruszka a mere five days before trial, again relying on x-rays that defendant received for

the first time on August 1, 2001.”  On August 7, 2001, the motion judge entered an order granting

plaintiff’s motion to bar Dr. Dobozi.  The motion judge also granted defendant’s motion in part,

allowing Dr. Gruszka as a witness but specifying that “x-rays of plaintiff’s knee, produced on August

1, 2001, are barred at trial and may not be the subject of or form the basis of any opinion proffered

by Dr. Gruszka at deposition or trial.”

	Dr. Gruszka’s evidence deposition was taken as scheduled on August 8, 2001.  After relating the details of his examination of plaintiff’s knees, Dr. Gruszka testified as follows:

			“Q.  [Plaintiff’s counsel:] And based on that examination, did

you arrive at a diagnosis at that time?

			A.  Along with the x-rays, yes.  Based on the examination

only, no.

			Q.  Okay.  And what was your diagnosis?

			A.  The diagnosis was osteoarthritis of the right knee and left

knee.”

	The case proceeded to trial.  Prior to opening statements, defendant’s counsel alerted the trial

judge both to the motion judge’s order barring reference to the X rays of plaintiff’s knee and to Dr.

Gruszka’s deposition testimony, where he stated that he relied upon those X rays in making his

diagnosis.  After the attorneys argued at length as to the meaning and context of the order, the trial

judge commented, “I never saw anything like this.”  He then stated, “All right.  So is there any way

to even figure out a compromise?  I don’t think so.  Maybe you better start thinking is there any way

to compromise.” When the attorneys indicated willingness to talk, the court went off the record. 

Later, just before the videotape of Dr. Gruszka’s testimony was to be shown to the jury, at a point

when the court reporter was not present, defendant presented a motion in limine to bar Dr. Gruszka’s testimony.  The trial judge denied the motion.

	ANALYSIS

	I.  Prior Order Entered by Coordinate Judge

	We begin our analysis with defendant’s contention that the trial judge erred in permitting Dr. Gruszka to testify based on X rays of plaintiff’s knees.  Defendant argues that no compelling

circumstances justified the departure of the trial judge from the motion judge’s earlier order that the

X rays would be barred at trial and could not form the basis of Dr. Gruszka’s opinions.  Defendant

also asserts that the late production of the X rays, just 12 days before trial, unduly prejudiced its

ability to refute Dr. Gruszka’s testimony through the testimony of a rebuttal expert.

	In a variety of contexts, interlocutory orders may be reviewed, modified, or vacated by

successor judges at any time before final judgment.  Balciunas v. Duff, 94 Ill. 2d 176, 185 (1983).  However, if the order involves an exercise of discretion, “that ruling should not be reversed by

another member of the court simply because there is disagreement on the manner in which that

discretion was exercised.”  Balciunas, 94 Ill. 2d at 188.  A successor judge should not reverse or modify a prior judge’s discretionary discovery ruling unless there is a change of circumstances or

additional facts that warrant such action.  Balciunas, 94 Ill. 2d at 188; Marcy v. Markiewicz, 233 Ill. App. 3d 801, 808 (1992); In re Marriage of Falstad, 152 Ill. App. 3d 648, 655 (1987).  Successor judges must give careful consideration to modifying or vacating any prior interlocutory rulings, and

also should exercise “considerable restraint” in modifying or reversing previous discovery rulings.  Balciunas, 94 Ill. 2d at 187-88.

	Here, plaintiff did not present the trial judge with any change of circumstances or additional

facts that would have allowed the modification, vacation, or reversal of the motion judge’s discovery

order.  In this case, the trial judge effectively vacated the prior discovery order by ignoring it.  The

motion judge’s discovery order clearly stated that “x-rays of plaintiff’s knee, produced on August 1,

2001, are barred at trial and may not be the subject of or form the basis of any opinion proffered by

Dr. Gruszka at deposition or trial.”  When defendant brought this order to the attention of the trial judge, he  disregarded its plain language and instead directed the attorneys to work out a compromise

concerning Dr. Gruszka’s testimony.  No compromise was reached, the trial proceeded, and Dr.

Gruszka was allowed to offer his opinion based on X rays of plaintiff’s knee.

	The trial judge’s decision to ignore the portion of the motion judge’s order that barred Dr.

Gruszka from testifying based on the X rays, while at the same time to enforce the portion of the

motion judge’s order that barred defendant from presenting a rebuttal expert on the issue of the cause

of plaintiff’s injuries, unfairly prejudiced defendant.  Such action, absent a change in circumstances

or the presentation of additional facts, was improper.  Balciunas, 94 Ill. 2d at 188.  Essentially the trial judge’s order permitted plaintiff to use the X rays that were produced on the eve of trial and at

the same time barred defendant from presenting a rebuttal expert regarding that evidence.  The

purpose of discovery rules requiring timely disclosure of expert witnesses, their opinions, and the

bases for those opinions is to avoid surprise and to discourage strategic gamesmanship.  Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 937 (2000).  “A defendant has the right not only to rebut evidence tending to show that defendant’s acts are negligent and the proximate cause of claimed

injuries, but also has the right to endeavor to establish by competent evidence that the conduct of a

third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries.” 

Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101 (1995).

	The decision whether to admit expert testimony is within the sound discretion of the trial

court.  Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).  After reviewing the record, we conclude that the motion judge did not abuse his discretion in entering an order simultaneously barring Dr. Gruszka

from testifying based on the X rays and barring Dr. Dobozi from testifying in rebuttal.  The trial judge

improperly modified the motion judge’s discovery order and, in doing so, caused defendant unfair prejudice.  Accordingly, we reverse and remand for a new trial. 

	Having determined that a new trial is necessary, we need not consider defendant’s other

arguments on appeal.  Nevertheless, because the issues may arise on retrial, we turn our attention to

defendant’s remaining contentions.

	II.  Special Interrogatories

	First, defendant contends that the trial court erred in refusing to submit to the jury any of the

eight special interrogatories it proposed.  Special interrogatories are governed by section 2-1108 of

the Code of Civil Procedure, which provides as follows: 

	“§ 2-1108.  Verdict–Special interrogatories.  Unless the nature

of the case requires otherwise, the jury shall render a general verdict. 

The jury may be required by the court, and must be required on

request of any party, to find specially upon any material question or

questions of fact submitted to the jury in writing.  Special

interrogatories shall be tendered, objected to, ruled upon and

submitted to the jury as in the case of instructions.  Submitting or

refusing to submit a question of fact to the jury may be reviewed on

appeal, as a ruling on a question of law.  When the special finding of

fact is inconsistent with the general verdict, the former controls the

latter and the court may enter judgment accordingly.”  735 ILCS

5/2-1108 (West 2002).  

Under the plain language of section 2-1108, a trial court has no discretion to reject a special

interrogatory that is proper in form.  McGovern v. Kaneshiro, 337 Ill. App. 3d 24, 30 (2003).  Refusal to submit a proper special interrogatory to the jury is reversible error where the error is not

harmless.  McGovern, 337 Ill. App. 3d at 30, citing Snyder v. Curran Township, 281 Ill. App. 3d 56, 63-64 (1996).

	A special interrogatory is in proper form when “(1) it relates to an ultimate issue of fact upon

which the rights of the parties depend, and (2) an answer responsive thereto is inconsistent with some

general verdict that might be returned.”  Simmons v. Garces, 198 Ill. 2d 541, 563 (2002).  The special interrogatory should be a single question, stated in terms that are simple, unambiguous, and

understandable, and should not be repetitive, confusing, or misleading.  Simmons, 198 Ill. 2d at 563.  In addition, it should use the same language that the instructions contain.  Curatola v. Village of Niles, 324 Ill. App. 3d 954, 960 (2001); Niewold v. Fry, 306 Ill. App. 3d 735, 746 (1999).  On retrial, defendant should be sure that any proposed special interrogatories are in proper form, stating a single

question in simple terms.  735 ILCS 5/2-1108 (West 2002).

	III.  Testimony Regarding Preexisting Degenerative Condition 

	Next, defendant contends that the trial court erred in redacting a key portion of the deposition

testimony of Dr. Wasylenko, one of plaintiff’s treating physicians, concerning the causal relationship

between a prior degenerative condition in plaintiff’s knees and his need for surgical treatment.  The

redacted questions and answers at issue were as follows:

			“Q.  [Defendant’s counsel:]  So the poor prognosis for Mr.

Thomas’ right knee is directly related to the degenerative changes,

degenerative narrowing of the bone spacing relating to the articular

cartilage that covers the head of the tibia in the right knee?

			A.  Yes, yes.

			Q.   And the thinning of that articular cartilage, again, is not

trauma induced?

			A.  It’s not trauma induced.”

	Defendant argues that redaction of this testimony was prejudicial in that it prevented the jury

from hearing crucial opinion evidence as to the cause of plaintiff’s injuries.  Defendant also asserts

that plaintiff waived any objection to this testimony by failing to object to it at the time of the

deposition.  Plaintiff responds that there is no dispute as to Dr. Wasylenko’s opinion that the

degenerative changes to plaintiff’s right knee were not trauma induced and that, in fact, Dr.

Wasylenko voiced this opinion in nonredacted portions of his deposition.  Plaintiff asserts that

therefore, defendant was not prejudiced by the redaction of this testimony.

	On appeal, plaintiff offers no argument or authority to support the redaction of these portions

of  Dr. Wasylenko’s testimony.  At trial, plaintiff argued that the trial court was required to redact

Dr. Wasylenko’s statements regarding plaintiff’s prognosis under the holding of Henricks v. Nyberg, Inc., 41 Ill. App. 3d 25 (1976), and the trial court seems to have relied upon that case when redacting the testimony at issue.  In Henricks, the court considered whether a physician’s testimony regarding the plaintiff’s prognosis was admissible when the last time the physician had examined the plaintiff

was three years before trial.  Henricks, 41 Ill. App. 3d at 28.  The court held that because expert opinion testimony must be founded upon facts and not conjecture, an opinion at trial based upon an

examination conducted three years prior would be unreliable and improper. Henricks, 41 Ill. App. 3d at 28.  The court found that “plainly,” the physician’s testimony concerning the prognosis he made

three years prior could not represent an opinion that he held at the time of trial.  Henricks, 41 Ill. App. 3d at 28.

	If asked by plaintiff to consider this issue on retrial, the trial court should, together with the Henricks case, also be mindful of Decker v. Libell, 193 Ill. 2d 250 (2000), regarding what circumstances are relevant in determining the admissibility of opinion testimony about the prognosis for a patient’s injuries or condition:

		“As a number of the cases illustrate, the calendar alone does not

determine whether the evidence should be admitted or excluded. 

Courts will consider the nature of the plaintiff’s injury or condition,

the type of treatment administered to the plaintiff, the length of time

the plaintiff was receiving the treatment, the number and frequency of

the plaintiff’s visits, the length of time between the plaintiff’s last

treatment and the witness’ formation of his or her opinion, the length

of time between the formation of the opinion and the trial, and any

other circumstances that bear on the relevance and reliability of the

proposed testimony.  See Soto [v. Gaytan], 313 Ill. App. 3d [137,] 147-48 [(2000)] (listing relevant circumstances; specifically discussing

nature of injury, length and nature of treatment, and interval between

treatment and time of trial); Housh [v. Bowers], 271 Ill. App. 3d [1004,] 1008 [(1995)] (length and nature of treatment); Marchese [v. Vincelette], 261 Ill. App. 3d [520,] 526 [(1994)] (interval between examination and deposition; length of treatment).”  Decker, 193 Ill. 2d at 254-55.

		IV.  Evidence of Safety Programs and Independent Inspections

	Defendant contends that the trial court erred in prohibiting it from introducing evidence

concerning its safety programs and independent inspections of its facilities.  Defendant asserts that

plaintiff initiated the introduction of evidence concerning the battery plant’s condition and compliance

with safety procedures, and thus opened the door to rebuttal evidence regarding its safety programs. 

In particular, defendant challenges the trial court’s prohibition of Donna Brucher’s rebuttal testimony

regarding defendant’s “various safety measures, controls, practices and procedures” at the battery

plant.

	The record reveals that Brucher was a human resources manager for defendant.  She

described her department as responsible for safety health services, employment, labor relations, and

overall employee relations.  With respect to safety issues, she explained her department’s

responsibilities as follows:

			“Safety is under the function of human resources with a safety

coordinator reporting to me.  We ensure that the plant employees in

our facilities meet requirements, either OSHA [(Occupational Safety

and Health Administration)] requirements, company requirements,

industry standards, and we support the operations personnel, that

would be the plant manager, superintendent, supervisors, [and]

employees in accomplishing all of those objectives.  ***  Safety

encompasses routine safety, machine safety, just anything that a

normal employee would encounter working for [defendant] at our

facility.”

	When defense counsel asked Brucher whether OSHA had ever inspected defendant’s facility,

plaintiff’s counsel objected as to relevancy.  After hearing the objection, the trial court asked, “[N]ow,

OSHA may be material, could be, but do[] OSHA standards cover this particular accident?”  When

defense counsel replied affirmatively, plaintiff’s counsel objected on the grounds that Brucher’s

answer would be an undisclosed opinion under Supreme Court Rule 213 (177 Ill. 2d R. 213), stating,

“There’s nothing in any 213 answer that these defendants have ever filed that says anything that she’s

going to come here and say there’s an OSHA standard that particularly relates to any issue in this

case.”  Defense counsel replied as follows:

			“Your Honor, at this time -- there’s no opinion going to be

offered.  You won’t be surprised.  I will be surprised if an opinion is

offered because we’re not going to offer an opinion.  What’s going on

here, your Honor, is the foundation is being laid.  [Plaintiff’s counsel]

in this suit has called into question whether or not [defendant] uses

ordinary care to maintain their facilities.

			Ms. Brucher is testifying that [defendant] has OSHA people

inspect their care for their facilities, the union safety people.  Where

she was going with that, not with the unions, but that there are

requirements that the union people impose on them to maintain safety

in the interest of their employees, that safety is a concern of

[defendant].  That there is a safety program, and that there are a

number of reasons why there is a safety program.  That’s all, no

opinions.  We’re not going to say what union it is.  We’re not going to say that there’s an OSHA -- opinion on the OSHA standard, simply

to show that there is a program in place, something that’s been called

[in]to question.”

Plaintiff’s counsel countered that to allow testimony regarding OSHA would be prejudicial to

plaintiff, as an OSHA inspection implied a “seal of approval” and it was too late for plaintiff to retain

a safety expert of his own.  Plaintiff also presented the text of defendant’s Rule 213 answer regarding

Brucher: “Donna Brucher *** may be called to testify to [defendant’s] policy and procedures

regarding safety and employee training at the *** facility.”

	Following lengthy arguments, the trial court ruled that Brucher could not use the term

“OSHA,” but that defense counsel could ask her whether, in 1995, inspection of the loading dock in

question took place by people who were not employees of defendant.  Thereafter, defense counsel

asked Brucher whether the loading dock was ever inspected by persons other than defendant’s

employees, and Brucher answered affirmatively.

	The record does not support defendant’s contention that the trial court barred it from offering

evidence “which would have identified facts about [defendant’s] various safety measures, controls,

practices, and procedures” at the battery plant at the time of plaintiff’s accident.  Instead, the record

indicates that the trial court simply ruled that Brucher could not use the term “OSHA” when

discussing inspection of the premises.  

	V.  Closing Arguments

	Finally, defendant contends that during closing arguments, plaintiff’s counsel made unfounded

accusations that defendant hired investigators to look into plaintiff’s health history and improperly

referred to defendant’s alleged wealth and size.  We note that closing argument which is not supported by facts in evidence is improper (Bodkin v. 5401 S.P., Inc., 329 Ill. App. 3d 620, 635 (2002)), and that reference to the parties’ financial condition is impermissible (LID Associates v. Dolan, 324 Ill. App. 3d 1047, 1064 (2001)).  Upon retrial, improper and impermissible comments in closing argument should be avoided.

	CONCLUSION

	For the reasons explained above, we reverse the judgment of the circuit court and remand for

a new trial consistent with this opinion.

	Reversed and remanded.

	GALLAGHER and SMITH, JJ., concurring.