*1 APPLEGATE, HOWARDN. Plaintiff-Appellant, L. v. GILBERT SEABORN al., (General et Defendants Corp., Defendant-Appellee). Motors
Fourth District No. 4 — 84—0717 10,1985. filed WEBBER, J., dissenting in part. Butler, P.C.,
Law Offices of Kanoski & (Scott Butler, of Rushville J. counsel), appellant. McConnell, Quinn Johnston, Chartered,
Law Offices Kennedy, & (R. Henderson, Steele, Peoria Michael Harris, Karen J. Patricia S. and Ju- Zakens, dith counsel), A. appellee.
JUSTICE TRAPP delivered the of the court: opinion This action arises a two-vehicle collision in an automo- bile plaintiff, driven Applegate, Howard was met head-on aby truck traveling opposite direction. Plaintiff filed negligence truck, counts against Seaborn, driver of the and the Gilbert owner truck, Patrick Seaborn. He also filed a count products liability and a negligence count alleging negligent design and manufacture the maker of the General Motors Plaintiff’s the- Corp. ory counts General Motors pleaded against was that defects the front differential of the truck housing go caused the vehicle to out of control and collidewith plaintiff’s automobile. trial,
Prior to an order barring testi- witness, of an mony expert listed as a as a sanc- *2 tion. made Having ruling, this the court that plaintiff determined would have no other substantive and judgment entered for defendants were voluntarily General Motors. The other dismissed. in favor of General Motors on Plaintiff the appeals judgment under the cir- that the not warranted grounds discovery sanction was cumstances. a metal- response
Plaintiff’s initial in this cause included discovery the lurgical analysis relating assembly to the front differential of truck involved in the collision. This Marvin D. report, prepared by VanEtten, concluded that a manufactured differential defectively in the Motors re- housing casting had been installed truck. General of the which had been the sub- quested production components vehicle that, the knowledge, parts of the to his ject report. replied Plaintiff a had been of Mr. General Motors filed motion disposed by VanEtten. that, motion, for sanctions. In the the trial court found al- granting though neither to for the loss plaintiff attorneys nor his were blame evidence, the loss the of General Motors to impeded ability the present a defense. As a sanction court barred VanEtten discovery matter; finding in the that no substantive testifying from evi- case, court entered for judgment in the the General dence remained Motors. Supreme to pursuant sanctions
The imposition the the discretion of in (87 219) largely R. rests Court Rule 219 Ill. 2d that discretion on review unless not disturbed trial court and will be 1050.) 129 Ill. 3d App. v. Casanova (Ralston had been abused. however, noncompli party’s not unless a imposed, Sanctions should be (White v. or orders is unreasonable. ance with rules 24.) 398 N.E.2d Hospital Corp. (1979), Henrotin no ade court, we can find record this presented On the basis of the the sanction challenged discovery the for quate imposing basis plaintiff. or VanEtten, plaintiff rather than
It is that undisputed the appeal, in issue. On components the vehicle attorneys, disposed expert; as plaintiff’s characterize VanEtten repeatedly defendants more com- is somewhat however, role VanEtten’s by a defec- caused that the collision was alleged complaint plex. truck. Seaborn’s Seaborn’s in Patrick assembly tive front differential to examined the truck insurer, Casualty, Fire and caused Economy examining components, After the truck engineer, the VanEtten. probable expla- The record discloses a disposed parts. VanEtten the legend work order included nation that VanEtten’s “[e]vidence to hold.” billing, of 60 unless notified disposed days will be 26, 1982, 1980. On VanEtten’s was dated June report It is apparent witness. listed VanEtten as a potential first this latter date. long before parts disposed that the vehicle were concluding that There is no basis record he or that ever had parts had control over the vehicle contrary, parts, the motion to To with remained in the apparently were of the Seaborn components of the defendants until their do disposal by VanEtten. We possession VanEtten listing of a plaintiff’s subsequent possi- not how as perceive Moreover, alter these basic facts. it is true although would ble witness none of the for the loss of responsibility that Motors shares General in preparing a de- difficulty and component parts, may experience not justify do fense in the absence of those these observations parts, an order of improper otherwise sanctions.
Since it is not undisputed responsible was evidence, the loss of the and there is no indication that plain because *3 tiff had the we request, with the con it prohibited clude that abused its discretion when presenting of VanEtten as a testimony sanction. we reverse and remand the cause for further Accordingly, on pleadings.
Reversed and remanded.
GREEN, P.J., concurs. WEBBER, dissenting part:
JUSTICE major- I the conclusion reached disagree with respectfully ity. innocent typical are faced with a situation which one of two
We
In
the one. It
my opinion
must suffer.
should be
is
parties
to file a
has the burden of
that one who intends
lawsuit
elementary
preserving
majority
suit will rest.
the defendant’s characterization of VanEtten as
disparages
plaintiff’s
Indeed,
at a time
expert
he was
and was retained
expert.
knew,
known,
com-
when
or should have
that the vehicle’s
ponents had been destroyed. To allow testimony under
those circum
stances is to open
gate
wide the
for the
possibility
abuse. While prod
ucts liability cases are generally tried as a duel of the experts,
there is
no requirement
that expert
testimony
presented. The plaintiff’s case
may be presented by circumstantial
evidence in the absence of the cor
pus delicti. This court so
Main,
South
held. Compare
Inc. v. Magic
Fingers, Inc.
I would affirm the trial court in debarring VanEtten from testifying but would reverse its wholesale dismissal of the action and remand for trial with what other evidence plaintiff may be able to MID-CITY COMPANY, INDUSTRIAL SUPPLY Plaintiff-Appellant, v. HORWITZ,
DONALD Defendant-Appellee. (1st Division) 83—2325, First District Nos. 3 28 cons. 84— 1985. filed March