*1 1988, and their the Hashmans submitted plans development subject subdivision for property City of the pursuant City’s for review to land subdivision On each ordinance. occasion, Hashmans were advised the Planning Commission (1) their property subdividing suitable for because the property directly Creek, drained into Sugar which in turn into feeds Springfield, Lake having the soils were rated as moderate to severe septic limitations for seepage fields, tank of ef probability drainage Sugar fluent great. into Creek was The Springfield city council denied requests the Hashmans’ reconsideration Planning Commission’s The trial recommendations. court is directed enjoin developing subject Hashmans from property without receiving approval by City of plan. a subdivision above,
For the reasons stated judg- we reverse trial court’s ment remand with directions.
Reversed and remanded with directions. STEIGMANN, JJ.,
KNECHT and concur. BACHMAN, L. Legal DEBRA as Mother and Guardian of the Estate Bachman, Person, al., Person Danielle L. a Disabled et Plaintiffs- Appellants, al., v. GENERAL MOTORS et CORPORATION Defendants-
Appellees. Fourth District No. 4—01—0237 Argued April Opinion July filed 2002. 2002. *5 (argued) McCabe, Rockford, William T. Cacciatore and Eileen J. both appellants. for Heilbron, Hinman, Monty Agarwal, David M. Frank M. and Christina M.
Wheeler, McCutchen, Enersen, Doyle, L.L.E, Francisco, all of Brown & of San California, Joseph (argued), Jr., Grey, and E. O’Neil Francis J. and Jennifer M. Brooks, Lavin, O’Neil, Coleman, Ricci, all Gray, Philadelphia, Finarelli & Pennsylvania, appellees. opinion
JUSTICE STEIGMANN delivered the of the court: plaintiffs, December Debra L. Bachman and Danielle L. Bachman, a complaint against defendants, filed third-amended General (General Motors), Motors Corporation Uftring Chevrolet-Oldsmobile, Inc. (Uftring), Delphi Systems Automotive (Delphi), Delco Systems (Delco), Electronic seeking injuries to recover for Danielle her sustained when collided Chevrolet Cavalier oncom- van). ing delivery alleged Ford one-ton van (step Plaintiffs (air supplemental restraint system bag) Cavalier’s inflatable collision, inadvertently deployed causing prior thus the colli- trial, same month, following jury sion. Later that a returned jury verdict in and against plaintiffs. favor defendants (a) appeal,
Plaintiffs trial court arguing erred al- lowing from regarding evidence data downloaded sens- Cavalier’s SDM-R) (the (SDM sensor) ing diagnostic module air-bag crash (b) admitting opinion related testimony, striking the causation (c) plaintiffs’ witnesses, opinion expert of one of limiting testimony (d) occurrences, of certain witnesses in allegedly involved similar al- lowing evidence regarding data downloaded from the of the SDMs (e) witnesses, vehicles that were driven the “similar occurrence” denying plaintiffs’ motion to bar defendants’ witnesses based (f) alleged discovery violations, jury to view permitting chief, damaged (g) during Danielle’s Cavalier defendants’ case al- dangerousness lowing testify one of defendants’ witnesses to about the (h) occurred, allowing of the Danielle’s evidence curve where collision her seat regarding Danielle’s seat belt use and the condition of belt (i) collision, special following submitting interrogatory (j) complaint to amend their jury, denying motion punitive damages prayer, pursuant add a section 2—604.1 (735 (Code) (West 1996)); Code of Civil Procedure ILCS 5/2—604.1 evidence; weight jury’s against verdict was manifest trial. the trial court’s cumulative errors denied a fair We affirm.
I. BACKGROUND 1996, In late a new 1996 Cavalier purchased October Danielle 6, Uftring. morning 1996, On Danielle from of November was County. Nofsinger her on Road in At driving Cavalier north Woodford a.m., car around 7:45 Danielle lost control of the and collided an collision, oncoming step very a result of sustained van. As Danielle permanently disabling injuries. serious and (as In June sued defendants well as other entities plaintiffs action) injuries longer are no to this for Danielle sustained parties that 2000, plaintiffs in collision. In filed a third-amended December (1) Cavalier, bag in complaint, alleging as follows: the air Danielle’s dealer, through sold its authorized by which was General Motors inadvertently its Uftring, deployed was in that it because defective Delco) (which by and designed Delphi SDM and manufactured striking objects to road and “hypersensitive” surfaces (2) Motors, pan; through floor General alone and and Cavalier’s bags in 1996 Uftring, failed to warn consumers about defective air (3) Cavaliers; Uftring; General and negligence part on the Motors (4) to the defective air Delphi and Delco failed warn consumers about (5) Cavaliers; Delphi on bags negligence part in 1996 Delco. Hearing
A. Frye
limine,
seeking
motion
to
September
filed a
in
downloaded
presenting
regarding
evidence
data
bar defendants from
filed
In October
defendants
from the SDM Danielle’s Cavalier.
motion,
Frye
a
hear-
requesting
to
supplemental response
a
1923))
(D.C.
(see
States,
to
systems SDMs, developing designing responsible he was May sens- Crash Cavalier. installed in Danielle’s SDM including type the automo- throughout commonly used are the SDM ing devices like has microprocessor, by a SDM, is controlled The which industry. bile has oc- enough impact if a severe it determines multiple functions: the air it monitors bag; of the air deployment curred to warrant information. records permanently it bag’s components; and longitudinal deceleration analyzes the SDM contains software event has occurred deployment whether a to determine a vehicle events determine what testing previously that was done “based the SDM senses bag.” by an air When require protection would enough severe (either that is not or an event deployment event event a event), that informa- is, near-deployment bag an air require —that electrically program- erasable microprocessor’s to the tion is recorded (EEPROM). (When deployed, the air read-only memory mable 51.”) explained Nunan the SDM records the event as “Code see, did the and look data, go a record to back recording “you have Although have had.” you should that came out match what result erased, the EEPROM could be stored in the diagnostic certain codes designed prevent” specifically in the Cavalier “was SDM installed or erased. being from altered air-bag deployment data type of SDM data, opined that Based on crash test Nunan reliably recorded data. accurately and installed Danielle’s Cavalier ordinarily format, it must stored in hexadecimal Because SDM data is (A analyzed. it can be to a decimal format before be converted characters; has 16 numbering system that system is a hexadecimal F, in through addition the letters A system employs *7 A system.) nine, used in the decimal through which are numbers zero using a basic read the data could convert and competent engineer mid-2000, publicly a Motors documents. calculator and General (Vetronix updated equipment) was tool crash data retrieval available to computer anyone with a software to allow Windows-based with new on Nunan’s format. Based easy-to-read download SDM data an Safety Highway Traffic the National experience, engineers manufacturing (NHTSA), automobile as well as Administration SDM-type by recorded and stored engineers, rely upon data that is by recorded event data and crash opined deployment devices. He by the reliable and accurate accepted as generally the SDM is industry and the NHTSA. automobile af- crash not during a would power stated that a loss
Nunan also Danielle’s Therefore, fact that recorded. previously fect data power during Cavalier lost electrical the collision did not affect the accuracy reliability or of the data recorded the SDM. Due to the power, Cavalier’s loss of electrical power external source was used to August Nunan, retrieve from According data the SDM in 1997. such procedure is normal does the accuracy not affect of the SDM’s equipment newly updated data. Nunan further stated Vetronix be used to Cavalier,
could retrieve data from Danielle’s that data would be originally identical data retrieved. He acknowledged that the SDM’s performance specifications not were public acknowledged He knowledge. also time at the of the colli- sion, crash data recorders in vehicles were not standardized.
Nunan further testified began receiving that General Motors reports indicating bags in 1996 that air in some Cavaliers and other inadvertently “J-cars” deployed objects specific when small road hit a area under the car and microprocessor incorrectly the SDM’s (J-cars interpreted deployment the incident as a event. included Sunfires.) investigation Cavaliers and Pontiac General Motors’ of those inadvertent, deployments non-crash reliability reconfirmed the of the data-recording capabilities. SDM’s Nunan explained that the eventual repairing by recalibrating recall involved the SDMs software higher air-bag However, create a for deployment. threshold that recali- bration did have anything data-recording to do with the SDM’s function reliability or the of its recorded also data. He stated that reported inadvertent, events, deployment non-crash the SDMs (delta-v change velocity recorded a small or delta-velocity) deceleration of the vehicles.
John Sprague, Delphi systems engineer worked who at General Warren, Motors in Michigan, through testified that from 1993 he application vehicles, was a sensing engineer including several development He testing Cavalier. conducted of the SDM and investigated field deployments. actual The SDM on the 1996 Cavalier designed longitudinal sense A deceleration vehicle. competent engineer knowledgeable could convert and read the using SDM data General basic Motors documents and a calculator. He acknowledged product 1996 Cavalier SDM’s definition docu- “generally ments were treated as confidential” General Motors. Sprague investigation stated also that he was involved in the inadvertent-deployment investigation cases. That included reading in the downloading and data from SDMs involved inadvert- replicate ent deployments SDMs in vehicles used to actual delta-v, relatively deployments. inadvertent That data showed a low per investigation ranging from one to three miles hour. The also pan particular hit in a man- showed that when vehicle’s floor *8 ner, high frequency it caused a interpreted resonance that the SDM as deployment microprocessor correctly event. The SDM’s measured performed calculations input signal, using deploy- with the logic ment algorithm, compared the SDM the calculated values to parameters programmed calibration into the SDM. The SDM ac- curately recorded the delta-v as microproces- calculated SDM’s However, sor. the SDM deploy made a decision to the air when it actually was not needed.
Sprague opined that neither the defect nor the recall anything had function, to do with the recording SDM’s the retrieval of data from SDM, or reliability of its recorded data. General Motors submit- ted regarding information the investigation NHTSA, which approve must proposed determination correction of an According automobile defect. Sprague, no one from NHTSA ever questioned reliability accuracy or being data downloaded from the 1996 J-cars. Based upon his development testing of the SDM and his investigation of events, the inadvertent-deployment Sprague opined that the recording SDM’s function was both reliable and ac- curate.
Sprague further testified that the data retrieved from Danielle’s Cavalier showed hour, a delta-v of 16.2 per miles which was above the air-bag deployment threshold and consistent with a crash event: He opined that the data retrieved from Danielle’s Cavalier was not consistent with data retrieved from the vehicles involved in the inadvertent-deployment events.
The trial court also considered several affidavits and documents submitted the parties. Floyd, Donald supervisor a former diagnostic software activities at Motors, General averred that he was responsible for releasing data to Vetronix for its use in developing a crash system retrieval for General Motors cars. The equip- Vetronix ment anyone allows computer with a equipped with 95 or Windows to download data recorded by SDMs on General Motors Floyd vehicles. participated in testing Vetronix, the Insurance Institute for Highway Safety, and enforcement, Canadian law in which the ac- curacy of downloaded SDM data was confirmed. Faust,
Daniel a General Motors staff development engineer, averred that the NHTSA and the National Transportation Safety (NTSB) Board have requested other downloaded SDM collision data from Schultz, General Motors. Keith a General Motors senior staff engineer, averred government that other agen- law enforcement cies also request and rely on SDM collision data downloaded by General engineers. Motors Schultz and representatives NHTSA coauthored an article entitled “Recording Automotive Crash Event power electrical
Data,” that the loss of they in which concluded of data reliability accuracy during a crash did not affect for the safety traffic uses suggested retrieved from the SDM and SDM data. *9 arguments, the trial considering the evidence and counsel’s
After limine, determining that the upon court denied motion opinions in Danielle’s Cavalier data downloaded from the SDM Frye the at trial under both regarding that data were admissible 1014); “Frye-plus-reliability” F. the (Frye, standard at Co., Cropmate this court in Harris standard set forth (1999). 368-75, 60-65 App. 3d B. The Trial trial, testified jury Danielle At the and December November Uftring. 28, 1996, a 1996 from purchased on October she Cavalier Danielle, tall, car, positioned her seat was 5 feet drove her who is When wheel, Around 7:15 a.m. upright position. in an steering close to the Wesley 6, 1996, she left her house and drove toward on November mile from Schalk’s Nofsinger Road. About one-half Schalk’s house on a curve. That morn- house, rough leading had section into the road a hour on that section driving per 35 and 40 miles ing, she was between bag unexpectedly deployed.” [her] road when “out of the blue head, wheel, hit her steering her hands off the bag The air knocked of her car. unconscious, her to lose control causing her and rendered else about the collision. anything did not remember She Uftring collision, neither prior to the Danielle also testified that air- greater risk of inadvertent Motors her that nor General warned acknowledged that dur- She deployment existed 1996 Cavaliers. bag bag the air that after discovery deposition, she testified ing her out of her car. jump her seat belt and she tried to unbuckle deployed, 6, 1996, he a.m. on November Reed testified that around 8 James Road, Nofsinger on step one-ton van south driving a 1984 Ford was Reed, no loose According to two-lane, chip road. tar and which is curve, Danielle’s driving around a the road. As he was gravel was on him. He acknowl- coming toward crossing the line” and car “started travel- Danielle was he testified that during deposition, his edged Reed, According to approaching. curve she was too fast for the ing hit the car] and gotten [her control of might like she have looked “[i]t brakes, on his put Reed sidewise.” [came] [him] then she dirt and the completely stopped when right, the and was almost toward steered car did Danielle’s step hit his van. of Danielle’s car driver’s side front did not see collision. Reed significantly prior not slow down him, did he nor coming toward car as it was inside Danielle’s smoke Following of the collision. her car at the time anything see collision, inside car Danielle’s entered side of passenger’s Reed deployed. driver’s-side air had noticed that the technician, Schneider, body auto testified Uftring Richard A. driving he behind Reed morning that on the of November surface road that blacktop is “a Nofsinger on Road. Road Nofsinger *** gradual time, a series for some has proceeds straight occurred.” in the where accident dip S-curves with a area however, scene; those the collision bumps road has south of several car ability control his when bumps affected had never Schneider’s hour. he first noticed driving per 35 and 50 miles When between car, Nofsinger around a curve traveling Danielle’s she was north “significantly going Danielle Road. Schneider estimated that speed posted 35-mile-per-hour more” limit. Schneider saw than left, crossing her car Danielle’s car fishtail with the back end of lane, right, the centerline into the then southbound back collision, again. then time of back to the left At the front pointing According Danielle’s car was in a northeastern direction. Schneider, portion collided step the left front of Reed’s van quarter panel “rear of left front fender” and left rear *10 during discovery deposition, Danielle’s He that his acknowledged car. right angle. he Reed’s hit at a At step testified that van Danielle’s car collision, the time of the Schneider did not see smoke inside Danielle’s bags deploy. approached following car or car the air As he Danielle’s collision, and deployed bags he smelled the odor of saw that deployed both air bags wearing had and Danielle was a seat belt. Law, sergeant, Daniel an Illinois State Police testified that at 6, 1996, around on he 7:50 a.m. November arrived at scene of Danielle, observing Flight, collision. After Law Life an requested Nofsinger He emergency helicopter. noted that the surface of Road dry morning. as an background was that Based on Law’s accident investigator scene, inspection and his of the he concluded that speed contributing Danielle’s was a cause of the collision. Law speed he did at the mo- acknowledged that not calculate Danielle’s ment of the collision. collision, Jr., Gray,
William testified that at the time of the he had Nofsinger eight years lived on Road had driven on the for about and site, road the collision many Approximately times. 300 feet south of he drove over that “wavy ripply.” [and] road’s surface was When road, section “a his vehicle bounced and vibrated little bit.” morning Nofsinger William that on the stated November Road damp. collision, Gray
Ricki testified time of she had lived that at the 772 Nofsinger years. Road for seven driving about her car around When road,
the curve near “rippled” gave section of the it “feel- her the ing [she] to lose want[ed] control.” physicians, including
Several Meyer, treating Dr. Ronald Danielle’s Goswami, physician, Dr. Panna a physician, rehabilitation Dr. Jai Kumar, a neurologist, testified about Danielle’s injuries various following their treatment of her the accident. Sonye, Jr.,
John product investigations General Motors’ director of America, for North testified as an participated adverse witness that he performance in field evaluations of products. General Motors He participated investigation in the into air-bag claims inadvertent (referred in deployments J-cars to as the “1241 investigation”). upon Based that investigation, General recali- Motors air-bag brated the higher air-bag software create a threshold for Sonye deployment. also stated that when SDM an commands air- bag deployment, it records the event a 51. In as Code some of the 1996 Sonye investigated, Cavaliers that the SDM showed Code although occurred, no crash had which meant that the air had inadvertently deployed.
Sonye then plaintiffs’ identified August exhibit No. an customers, recall letter from General Motors to its which stated that (1) “General Motors decided [had] [was] there a defect to mo- related safety vehicles”; tor vehicle in 1996 and some 1997 Chevrolet model (2) “[b]ecause bag’s computer, of certain calibrations in the air air[-]bag deployment [was] there an increased risk of an a low in object crash or speed pan.” acknowledged when an strikes the He floor letter, customers, the recall which was the sent to also notice customers reprogram advised that their Chevrolet dealers would their at no charge possibility deploy- SDMs to reduce the of inadvertent He also August ments. identified No. exhibit product bulletin, recall campaign which stated that General Motors had determined that a defect “related to vehicle safety” motor existed.
Sonye further investigation, testified the 1241 which was “infancy stage” 1996, ultimately its when November showed that pan the Cavalier’s floor hit manner with a force particular *11 hammer, air-bag to to equivalent a three- five-ounce it caused an instances, deployment. In those the data recorded the SDM showed per hour, miles the clearly a delta-v less than five which “was below Sonye stated deployed.” threshold at which it should have further to that the data from the SDMs reliable and used retrieved identify inadvertent-deployment problem. explained He data; however, incorrectly interpreted accurately SDM recorded it SDM, as a Once is recorded it cannot be altered data crash. data erased, power during previ- and a a crash not affect data loss would ously recorded. Delphi
Sprague designed testified as an adverse witness that manufactured the SDM that was installed in 1996 and 1997 Cavaliers. participated investigation, He which showed that air-bag following deployments inadvertent occurred short-duration “relatively [delta velocities] with events flat low little or no dam- age air-bag to the vehicles.” The delta-v in the deploy- inadvertent ranged from one to three miles hour. Based on the 1241 per ments investigation, investigators changed sensing the SDM’s calibration Sprague to increase the air-bag-deployment acknowledged threshold. and August that between October 1995 General Motors received approximately 200 complaints air-bag deployments. inadvertent complaints Around 24 filed prior were to 1996. November Everest, analyst, Brian a product General Motors testified as analyzed witness performance during adverse that he of air bags involving crashes participated General Motors vehicles. He in the August joint inspection visually Danielle’s Everest Cavalier. car, inspected Danielle’s he did inspect but not car’s undercar- riage. He also using downloaded data from the SDM an event data (EDRU) retrieval unit that interfaces either awith vehicle’s data link directly connector or to the SDM. acknowledged Everest that a person training must receive some to download data from an SDM. A copy provided the downloaded data was plaintiffs’ attorney and their engineering expert. bags The SDM detects a whether vehicle’s air deploy, should air bag’s permanently monitors the components, records only information. The download from Danielle’s SDM revealed data, 160 to 170 although milliseconds of the SDM was capable recording up to 300 milliseconds. power Everest stated that a loss likely caused the SDM to record milliseconds of data. He power did know what caused the loss in Danielle’s car. Schultz,
Keith staff engineer a senior for General product Motors’ investigations department, testified as an adverse witness that his department’s primary role is to govern- communicate with federal regarding problems products. ment with General Motors He stated that the tool that was used to from the download data SDM was not publicly time, available in At person 1996. would need certain However, General Motors to interpret documents the downloaded data. documents, once provided proper competent engineer with the could data from interpret provided downloaded the SDM. General Motors proper plaintiffs’ attorney experts documents to in this case. Sometime in data designed a crash retrieval tool that was interpret download and SDM data was public. made available *12 manager, McConnell, customer assistance a General Motors Dennis He identified investigation. in the 1241 that he assisted testified complaint customer August plaintiffs’ exhibit No. as impact.” “with no bag deployed air that had regarding a 1996 J-car’s No. 67 as an October plaintiffs’ identified exhibit McConnell also bag air that had regarding a 1996 Cavalier’s complaint customer complaints such customer impact. He stated that deployed without regular in the course of business. kept were expert engineer, testified as Douglas Page, a mechanical aerospace in the years’ experience he had almost 35 witness that developing fighter plane the F-5 industry, including work with Page Apollo space programs. certain devices for the Gemini and industry or in the automobile acknowledged that he had never worked Page experience did not have any type bag of air or SDM. designed retrieving crash like the one on the SDM or testing recording system a However, on his he stated that based from an automobile. event data principles industry, general he understood the aerospace work in the 4, 1997, Page joint conducted a August On air-bag deployment. Cavalier, Motors along with some General of Danielle’s inspection damage showed photographs, certain which inspectors. Page identified on the driver’s just behind the front wheel” to Danielle’s car “from inspection, the General Following left wheel. visual side to the rear its recorded SDM and downloaded removed the inspectors Motors data. formulating items that he reviewed several
Page also testified (1) of the downloaded following: printout a opinions, including the his (2) Cavalier; excerpts Danielle’s removed from data from the SDM its regarding manual manual and service owner’s from Cavalier’s (3) and Reed’s showing the accident scene videotape a air-bag system; (5) (4) van; between correspondence van; step of the photographs step (7) worksheet”; (6) copy file deployment “near Sonye; NHTSA and (9) (8) certain discovery depositions; several report; of the accident documents. Motors and NHTSA General the SDMs items, opined that Page those his review of Based on (1) defective because were some 1997 Cavaliers in 1996 and installed (2) had deployment increased risk of inadvertent they had an the air that opined He also in over 200 cases. inadvertently deployed due to deployed primarily “inadvertently in Danielle’s Cavalier bag (1) ac- “an that He system.” in the based design faults docu- Motors the General throughout information from cumulation bag inadvert- the air (2) testimony that ments”; deposition Danielle’s saw he never (3) testimony deposition ently deployed; Schneider’s he testimony that deposition Reed’s bag deploy; air Danielle’s also stated Page the collision. fishtailing prior to car saw Danielle’s bumpy, (specifically, Nofsinger Road the condition have caused could pebbles) and loose section “washboard” bag. of Danielle’s air deployment inadvertent bag in Danielle’s Cavalier that the air Page opined also his opinion on impact. He based designed deploy on a side manuals, deposi- and service owner’s review of Cavalier’s manual stated that the service Page explained testimony. tion in a “frontal involved when the car was designed deploy He further vehicle.” center[ ]line off the up degrees crash to 30 impact to Danielle’s side the collision involved a “t-bone” opined that *13 of her photographs review of the Cavalier, opinion that on his basing in this acknowledged that his Page following car the collision. expert, reconstruction plaintiffs’ accident regard was “at odds” with 43-degree car at a step van hit Danielle’s opined who that Reed’s angle. from the SDM additionally opined that the data downloaded
Page (1) code, which was confidential was in a hexadecimal Danielle’s car (2) Delco, was not Motors, Delphi, only to General known and formulas were algorithms He that the accurate or reliable. stated by him. subject not to examination proprietary to General Motors and Although lied to” its sensors. He also stated that the SDM “can be data, from printout the SDM can record 300 milliseconds only milliseconds of data. Danielle’s SDM contained exactly caused know what Page acknowledged that he did not he did not acknowledged He that bag deploy. Danielle’s air also Page further stated step or Reed’s van. inspect the site of the collision longitudinal recorded a the SDM from Danielle’s Cavalier The data incident. during deceleration the November per of over 16 miles SDM showed a delta-v downloaded from that designed to hour, bag which the air exceeded the level at which during the time event only deployment The recorded one deploy. SDM morning November driving the Cavalier on Danielle was data rely did not on the acknowledged that he additionally Page 1996. he never at- car because the SDM in Danielle’s downloaded from [him].” meaningless “[i]t the data and tempted interpret SDM with from Danielle’s the data downloaded compared Nor had he part of the that were the data from the Cavaliers downloaded SDM say not that he could investigation. Page also conceded was inaccurate. expert, Daele, reconstruction plaintiffs’ accident
Ronald L. Van at the [began] damage on the Cavalier testified that contact “[t]he rearward, well, [ed] wheel, and continue rear of the front left wheel including door, the driver’s the left side windshield, left side of roof, the rear quarter left panel and ending in the center of the rear left wheel well.” Daele opined Van that based on his reconstruc- accident, tion of the step Reed’s hit van 43-degree Danielle’s car at a angle. He stated that impact constituted a side impact, but not a “90-degree, pure t-bone side impact.” Van Daele also stated that the Cavalier’s initial instability was due bumpy road surface. He further stated that allegation “[t]he that the air bag inadvertently deployed causing [Danielle] to appears be stunned to be reasonable.” He opined that “[t]he appeared Cavalier to be driven person who could have stunned, been but not certainly control”; out of (2) he could think of no other cause for Danielle’s lack of reaction to the approaching hazard of Reed’s step van. Van Daele additionally opined if that Danielle had attempted negotiate just the curve south of the collision high scene at a speed, rate of she would have crashed nearby ravine, into a step Reed’s van. only role speed played in the collision itswas effect on the severity of the crash. acknowledged
Van Daele the data downloaded from the SDM in Danielle’s Cavalier showed a delta-v of over per 16 miles hour the Cavalier’s collision step with Reed’s van was the thing that could have change resulted such a in velocity.
Several witnesses testified they driving had been 1996 or 1997 J-cars when the bag driver’s side air inadvertently and unexpect- edly deployed. Those witnesses also testified that the air knocked their hands off steering wheel and created noise and smoke upon deployment.
Sharon Seckler testified for defendants that on the morning of *14 November she was in her house when she heard a crash. She walked down her driveway and saw that a step Cavalier and a van had collided. Seckler looked inside Danielle’s car and noticed that Danielle wearing was a seat belt the bag and air had deployed. Seckler stated that she had Nofsinger lived on eight years Road for almost and had frequently driven through the same curve through Danielle had driven just before the collision. Based on personal experience, Seckler’s if a person drives around the curve at more than 35 per hour, miles that person could lose control and cross the centerline. Thebert,
Alan analysis crash engineer, automotive testified as defendants’ accident expert reconstruction that when step Reed’s van finally collided car, with the left rear wheel Danielle’s “the force between the two vehicles purely was almost front to rear.” Thebert opined traveling that Danielle was approximately 55 to 60 per miles hour through as she drove the approaching curve the collision He site. opined also driving that Danielle was 45 to per 50 miles hour when
Ill (1) step that van opined further Reed’s occurred. the collision Thebert (2) as 45-degree angle; and at a 30- to collided with Danielle’s Cavalier longitudinal decelera- collision, experienced of the the Cavalier a result (1) steering was the that Danielle Cavalier additionally opined tion. He and of the collision up point she around the curve and to the as came (2) speed. was due to driver error and excessive the collision consultant, McKenna, litigation testified product
Edward as- April inspected that in he the driver’s seat belt defendants (1) had opined that Danielle sembly in Danielle’s Cavalier. McKenna (2) collision, the “the belt” during worn the seat belt marks on the left plate that Danielle moved forward and to the latch showed (3) collision, the during “[t]he restrain[ed] the seat belt forward being when the longitudinal experienced motion deceleration was the car.” function, accuracy testified the regarding purposes,
Nunan SDM, Frye the as he did at hearing. He also stated that based of a videotape downloading his review the SDM data from Cavalier, downloading properly. Danielle’s Nunan performed downloading that opined process no effect on data had downloaded from the The SDM. downloaded data showed that during delta-v for Danielle’s per Cavalier the collision was 16.2 miles hour, air-bag-deployment which was above the threshold miles of 14 per contrast, hour. the data investigation from the 1241 showed that the delta-v in the inadvertent-deployment cases was one to two per miles hour.
Nunan also testified separate SDM can record two events (measured started). ignition cycle the same each time vehicle is Nunan stated that if—as alleged Cavalier —Danielle’s experienced an deployment prior collision, inadvertent “there (1) would two present deploy- be records the SDM”: the inadvertent (2) ment; the 16.2-mile-per-hour delta-v. SDM recorded one 16.2-mile-per-hour during event—the the November delta-v — 1996, ignition cycle. also opined Nunan air-bag-deployment threshold was exceeded when Danielle’s collided Cavalier with Reed’s step van. He further opined power the loss to the Cavalier during SDM, the collision had effect no on the data recorded the data downloaded from the Cavalier was inconsistent with the data from investigation, downloaded cars involved in the 1241 inadvertently Danielle’s did not deploy. Cavalier Roger Nightingale, a biomedical testified engineer, regarding specific injuries. causes of Danielle’s He cause opined overall injuries the “oppressive” step Danielle’s intrusion of Reed’s *15 van into Cavalier.
778 evidence, of defendants jury
On this returned verdict favor against plaintiffs. jury also answered “no” defendants’ special interrogatory, inquired which as follows: “Did driver’s side inadvertently 6, appeal This deploy on November 1996?” fol- lowed.
II. ANALYSIS Regarding The Trial Court’s To Allow A. Decision Evidence SDM Data Cavalier’s argue by denying Plaintiffs first that the trial court erred their regarding motion in limine exclude evidence the data downloaded testimony. opinion from the SDM Danielle’s Cavalier related disagree. We case,
Initially prior argument we note to oral in this of in Donaldson Illinois Public Supreme Court Illinois v. Central (2002), Co., 63, 80-81, 314, Ill. 2d Service 199 767 N.E.2d 325-26 clari Illinois, Frye “Frye- not the fied that the standard is standard (see Harris, 368-75, plus-reliability” 302 at 706 standard 3d 60-65). court N.E.2d at We thus determine whether the trial abused testimony by admitting its discretion SDM data and related under the Frye standard. met the party Frye
“The determination of whether has discretion, reviewing lies within the court’s and a standard trial will not absent of that First Midwest reverse an abuse discretion.” 416, 1107, 1114 Rogers, Trust Co. v. 701 N.E.2d (1998). determining “In whether there has been an abuse discre tion, reviewing may judgment [its] not substitute [a court] court, or even trial court exercised its the trial determine whether the Garces, 198 763 wisely.” discretion Simmons v. Ill. 2d N.E.2d (2002); Ill. 2d People Illgen, see also (1991) (an only 515, 519 occurs where the N.E.2d abuse discretion fanciful, or arbitrary, decision is or unreasonable where trial court’s court). the trial adopted by no man would take the view reasonable 76-78, 323-24, Donaldson, Ill. 2d at testimony under the expert court discussed the admission supreme standard, stating Frye as follows: test for the admission unequivocal:
“Illinois law is
exclusive
expressed in
testimony
by the
first
expert
governed
is
standard
(D.C.
1923).
States,
[Citations.] The
Frye v.
“Computer general, in and it accepted recorded, mind[,] is not novel. It is an being in the court’s disks, [Z]ip drives used society. tape backups, floppy fact of We have capture data. and businesses alike to record individuals in in this case is used microprocessor used in the SDM-R many part is a standard used various products consumer controls, brakes, anti-lock systems, including engine vehicle control admissibility, under only the bags. controls and air It is suspension be, court’s test, could in the Frye of the SDM-R data which as novel.” opinion, conceived recording process agree the trial court
We technique a novel to constitute downloading appear SDM data does not Language English Heritage Dictionary or method. See American new, unusual, differ- “[s]trikingly (defining “novel” as ent”). production such as the SDM have been Crash sensors decade,
automobiles for over a
microprocessors
that run them
and record their data also run everyday appliances,
computers
such as
Harris,
televisions. See
Nonetheless, admissibility because the of SDM question data impression, first analyze we its admissibility under Frye standard —as did the trial court. In determining “[t]he method of downloading data, and utilization of data recorded the SDM” was generally accepted within the relevant community, scientific the court stated, in pertinent part, as follows:
“[T]he court refers to community the scientific or communities as being mechanical engineering physics. and/or *17 technique Is the generally or method accepted within that com- munity? The defendants have offered affidavits of General Motors engineers engineers, non[-General engineers Motors] albeit and/or employed by who are the defendants. any Have physicists, engineers[,] mechanical accident re- and/or
constructionist experts scrutinized that data [General outside Mo- According tors]? to the documents which have been submitted to court, [two individuals with NHTSA] coauthored an article [General with employees Motors] Tom Mercer and Keith Schultz ‘Recording entitled Automotive Crash Event Data’ in 1999 utiliz- ing data captured by [General Motors] vehicles within that article.
That suggested article the three uses for data stored on these [(]1) [(]2) improving devices[:] for air[-]bag sensing systems[;] [(]3) improving roadway design[; developing meaningful and] mo- regulations. tor vehicle essence,
In that data would be utilized for develop- research and ment purposes traffic[-]safety[-]related for purposes. and/or data,
The SDM from not this particular vehicle but other SDMs, is now available investigators to all researchers and via the system by created Corporation Vetronix of California. system,
Prior to the accuracy release of the Vetronix verified the by of the data recorded the SDM. system used, being per
The is now Floyd, the affidavit of Donald NHTSA, by Canada, Transport Highway Insurance Institute for Safety, police [and several departments], state in addition to independent researchers and accident reconstructionists. Faust,
Per the affidavit of Daniel an employee [General of Mo- tors], by Motors] SDMs [General the data recorded has been [NTSB], by requested
* * * determining purported The downloaded data utilized in how change prevent calibration in the SDM-R was used to [the] bags. of deployment inadvertent power during a crash event does not affect loss of electrical accuracy memory loss reliability prior of written to data power.
That the data from the SDM-R has been downloaded recorded compared independent grade instrument accelerometers to verify delta-velocityvalues and were accurate.
That recording separate the data function of the SDM-Ris from deployment function of SDM-R. The SDM data, addition, [*] is currently [*] subject peer review via the codeveloped [General Motors] with or software/hardware Corporation.” with Vetronix standards,
Reviewing the record
under
appropriate
before us
we
trial
not
conclude that the
court did
abuse its discretion
finding
process
recording
downloading
that the
is
SDM data
sufficiently
gained general acceptance
established to have
in the
thus,
community, and,
determining
Frye
relevant scientific
admissibility
process
simply
standard had been satisfied. This
is
undeservedly
sort method “new to science that
create[s]
certainty
when
perception
opinion
the basis
the evidence or
324).
actually
(Donaldson,
invalid”
court “erred in general acceptance its within scientific community” “proprietary because the SDM data is and confiden- *18 tial” and to subject any independent testing “not or verification (2) analysis,” uniformity in recording “no data or retrieval” exists (3) among manufacturers, automobile meetings and NHTSA to discuss public.” Contrary uniform standards are “closed to plaintiffs’ contentions, any the record competent engineer shows that could the interpret using produced SDM data documents General Motors in discovery Further, and a the workings calculator. whether kept competitors, General Motors SDM are “confidential” from standards, the pursuant whether SDM records data to uniform public meetings whether holds to pertinent NHTSA are not issues 782 downloading
determining process recording the SDM whether community. generally accepted is the relevant scientific data also that the trial court “erred reject We contention upon” Plaintiffs forfeited this relying defendants’ affidavits. have they to appeal by advising objection issue on the court that had no Kirk, 321 Ill. considering court’s defendants’ affidavits. See Kotvan v. (2001) (“ 1045, ‘Preservation of a App. 3d 747 N.E.2d objection for an in the court question requires appropriate review [citation], to Williams- object below and failure constitutes waiver.’ Associates, 474, 3d Village App. Ass’n v. 200 Ill. burg Owners’ Lauder (1990)”). 479, Further, 208[, conducting 210-11] N.E.2d “[i]n (as evidentiary hearing to hearing any determine admis Frye sibility opinion testimony), required strictly trial court is not may “testimony comply with rules of evidence” and consider af Harris, 376, at experts.” fidavits of Ill. 3d 706 N.E.2d 65. Testimony The B. Trial Court’s Decision To Strike Page’s on Causation striking argue Page’s Plaintiffs next that the trial court erred alleged opinion testimony deployment inadvertent her car crash into Reed’s bag caused Danielle to lose control of (causation they opinion). Specifically, contend that court’s step van striking Page’s testimony on “was tantamount to direct- causation deprived of a fair ing [p]laintiffs [defendants a verdict disagree. in this case.” trial We Miller, People
In 173 Ill. 2d 670 N.E.2d (1996), regarding supreme applicable court law discussed witnesses, stating as follows: expert subject particular is is a expert individual
“Whether an the trial court. generally matter reserved the sound discretion of expert if testify as an An individual will be allowed [Citation.] knowledge him which is experience qualifications his afford testimony aid such will laypersons, not common to and where expert An need reaching [Citation.] trier of fact in its conclusions. beyond average knowledge and that of experience have citizen.” Cassida, 165, 174, addition, Kleiss v. (1998), as follows: this stated expert wit- responsibility
“The has a as special trial court testimony, both expert nesses. decision whether to admit testimony will as- qualified and whether his expert whether the evidence, within the understanding the rests sist the fact in trier of sound of the trial court.” discretion Inc., 139, 146, 437 N.E.2d Riddell, App. 3d See also Galindo v. *19 (1982) (“In must shown expert, it be qualify as an order to of the special beyond skills ken expert proposed possesses forming in employed those skills average juror and that he opinion”). limine, to seeking filed a motion in
In October defendants (1) pos- not grounds Page that did preclude Page’s testimony on the (2) not “supported adequate opinions and his were qualifications, sess hearing, trial Following a November 2000 analysis.” reliable im- renewed their motion denied motion. Defendants court that testimony, Page Page’s arguing direct mediately prior to data, his opinions,” for had] three bases “ignore[d] [and SDM Schneider, court testimony Danielle, and Reed. The deposition objections and had made their noted for record that defendants its prior ruling. reaffirmed
During testimony, Page opined that the inadvertent his direct to lose deployment bag of the air in Danielle’s Cavalier caused her step into control the car crash Reed’s van. When stated, for he Page opinion, counsel asked basis his causation “Well, I have have again, go once back to the three witnesses that given deposition[s] in instance. And that Danielle particular this *** herself, Reed, Bachman and Mr. Mr. Schneider.” When counsel gleaned depositions, he Page then asked what he had from those stated, pertinent part, in follows: as
“Well, Danielle asserts that the air specifically, Bachman any and knockedher hands clear particular inflated without reason *** the steering wheel. was ‘freak- [sic] And then she also states that —her exact words ing trying get out.’ was automobile. She was moving She out of trying to unbuckle her seat belt. car
Then there is the other witnesses that state that the [sic] two fishtailing. was little, any,
This leads me believe had if control over all that she the automobile.”
Following Page’s testimony, sponte the trial court reconsidered sua to his preclude Page’s testimony respect defendants’ motion to (1) opinion. The found no Page causation had “indicated (2) engineering testimony”; opinion his causation was basis his (3) witnesses”; had “solely depositions Page based of the three testimony his deposition disavowed his causation documents; based, way, Motors unspecified some on General any shape any [General or form to testimony up way, “his did not tie lay documents”; essence, solely he Motors] “in what offered [Danielle] to opinion concerning whether or not driver error caused control”; reaching lose opinion, Page his causation “did employ knowledge application principles beyond of science ken average juror.” The court thus jury instructed the disregard Page’s opinion. causation The court further stated that the “may jury the six opinions will consider other that [Page] testified to,” including his opinion that the air bag in Danielle’s Cavalier inadvertently deployed.
We conclude that
trial
court did not abuse its
discretion
*20
determining
Page
that
“did not employ knowledge
application
of
of
principles
beyond
juror”
science
the ken of the average
reaching
in
opinion
his
that the alleged
deployment
inadvertent
of
air bag
the
caused Danielle to lose control of
car
her
and crash into
step
Reed’s
Page essentially
deposition
van.
recapitulated
testimony
the
of Danielle
(some
trial),
of which
repudiated
Reed,
she
jury
and Schneider. The
clearly
was
able to
testimony
assess and draw inferences from the
of
Page’s
those
expert testimony.
witnesses without
Simply put,
jury
a
expert testimony
does not need
to
it
help
decide whether an inadvert
deployed
ently
bag might
air
cause a driver to lose control
her
car.
Coyne
Associates, Inc.,
See
v. Robert H. Anderson &
215
App.
Ill.
3d
(1991)
112,
104,
863,
574 N.E.2d
868
(“Expert testimony
improper
is
when the inquiry regards an area
knowledge
within the common
average juror”);
the
see
Harvey
Co.,
also
&
Ry.
v.
Western
73
Norfolk
(1979) (if
74, 83,
Ill.
3d
App.
390 N.E.2d
jury
1390
the
is
issue,
to
competent
opinion
determine the facts at
then
expert
admitted).
special
of no
jury
assistance to the
and should not be
addition,
In
nothing
Page’s expertise
in the record shows that
determining
extended to
air-bag deployment
whether an inadvertent
caused Danielle to lose control of her Cavalier and crash into Reed’s
step
Page
engineer
van.
was a
with
years’ experi
mechanical
almost 35
However,
industry.
ence in the
he
aerospace
prior experience
had no
in
industry
bags,
expertise
automobile
or
air
and he professed
no
air-bag
accident reconstruction
on
deployments
effects
Page’s
drivers.
form
qualifications simply did not enable him to
opinion as to
See,
the cause of Danielle’s collision.
for example, People
(1986)
Perry,
272, 275,
App.
3d
498 N.E.2d
(forensic pathologist’s
did not
to
expertise
determining
extend
ability of the defendant
to
her
her
mother
feel
infant beneath
while
asleep, despite
“special
the fact
he had
interest”
child abuse
topic);
paper
Petroff,
and had coauthored a
on the
Grant v.
Ill.
795, 801,
(physician
1024-25
was
3d
N.E.2d
consent,
on
qualified
opine
the standard for informed
but not
informed).
plaintiff
actually
was
whether
Moreover,
plaintiffs’ contention that the trial court
accepting
even
causation,
striking Page’s testimony
erred
on
we conclude
by
grant
will
based
reviewing
such error was harmless. A
reversal
substantially
evidentiary rulings only
on
when the error was
it
prejudicial
Conversely,
and affected
outcome of the
trial.
where
trial,
appears that an error did not affect the
of the
or where
outcome
did
reviewing
court can see from the entire record that the error
will
prejudice,
judgment
not result
substantial
not be disturbed.
Simmons,
566-67,
is on
Plaintiffs claim the trial court’s exclusion “devastating” liability “only causation because he their However, expert.” Page’s the court did not strike addition, bag inadvertently in Danielle’s Cavalier deployed. Van Daele, plaintiffs’ opined accident expert, “[t]he reconstruction appeared Cavalier to be driven who been person could have air-bag stunned” an inadvertent deployment he “could no think of other cause for Danielle’s reaction approach lack of ing Further, hazard Reed’s van.” excluded evidence related deployment whether inadvertent bag of Danielle’s air her caused control lose step Cavalier collide with Reed’s van. However, the jury explicitly found that Danielle’s air did not *21 inadvertently deploy. Thus, the jury did not reach the issue of causa Accordingly, issue, tion. because the error to the related causation by which never the jury, reached that error was See harmless. Hansen, 505, 512, App. 939, Cairns v. 170 Ill. 3d N.E.2d 524 944 (concluding that the trial court’s evidentiary ruling erroneous reached). where jury harmless the error related to an issue the never The Trial Decision To the Testimony C. Court’s Limit of
Similar-Occurrence Witnesses argue Plaintiffs next the trial erred prohibiting court testifying similar-occurrence witnesses from the that when bags inadvertently driver’s-side air on their 1996 and 1997 J-cars deployed, bags and, cases, the air them struck in some caused them to disagree. lose control of their cars. We prior may
Evidence of if occurrences or accidents be admissible proponent’s prior relevant case. Generally, occurrence is to show particular danger relevant the existence of a or hazard (2) the defendant’s notice the ac generally hazardous nature of the A plaintiff required lay cident site. is a foundation substantial similarity prior present between the if of- plaintiff accidents the
786 danger. hazard or particular accident evidence show prior fers the 11, 22-23, Co., 726 App. 312 Ill. 3d Ry. & Western Mikus v. Norfolk (2000). prior occurrences 95, The determination whether 105 N.E.2d within to the one at issue lies substantially similar or accidents are Flaska, App. 3d 302 Ill. discretion. Sobczak the trial court’s sound (1998). 990, arguably if evidence is 916, 929, 1001 Even 706 N.E.2d if it would exclude the evidence relevant, may still trial jury. Demos v. Ferris-Shell confuse the issues or tend to mislead (2000). 9, 18 As the Seventh Co., 740 N.E.2d Oil Corp., v. Beech Appeals wrote Nachtsheim Circuit Court Aircraft 1988): (7th 1261, F.2d Cir. of the other accidentsbecome “As circumstances and conditions consideration, probative force accident under less similar to the time, danger that the At the same evidence decreases. of such *** addition, remains. unfairly prejudicial evidence will be and, prejudice time, possibly, distraction costs—in terms of —result admissibility.Ac may weigh against its from such evidencealso ing identity of the circumstances substantial cordingly,‘[e]venwhen the discretion admissibility of evidencelies within such proven, unfairness, confu dangers of weigh must judge the trial who issues time in the trial of collateral sion, expenditure of and undue Corp., admissibility.’McKinnon v. Skil favoring against the factors (1st 1981).” 270, 277 Cir. 638 F.2d Co., App. 3d 647- 291 Ill. Ry. v. Alton & See also Ficken Southern (1996) (the to exclude has discretion trial court N.E.2d if the of the case to the central issue directly related evidence not be would resulting from its admission of issues confusion trial). will not reverse in the We its usefulness compensated occurrence prior the admission regarding trial court’s decision Mikus, 3d at an abuse of discretion. evidence absent at 105. witnesses, including several case, trial court allowed In this Crabtree, Tanya Spencer, Patricia Mitchell, Armstrong, Robyn Russell driving 1996 or been testify they had Beverly Stephens, to inadvertently deployed, air the driver’s-side J-cars when creating noise steering wheel their hands off knocking concerning postdeploy- testimony However, excluded the court smoke. struck bags testimony that events, witnesses’ including some ment regard, In that their cars. control of them to lose or caused them *22 Mitch- proof. in testimony offers following presented the plaintiffs Mitchell did her vision. obscured in the face and bag hit her ell’s air her car. to lose control caused her deployment not state He did his vision. and blocked hit him in the face bag Armstrong’s air steering hands off his bag knocked the air remember whether slowly.” so going [he] matter because however, it “didn’t wheel; to lose cause her her, it did not but bag injured hit and air Crabtree’s her, she lose nor did not hit bag air did Spencer’s control of her car. her to her, causing injured hit and bag air Stephen’s of her car. control struck in her 1998 Cavalier bag Erin Dali’s air her car. lose control of her to caused deployment not state that in her face. Dali did her in the bag hit her Snyder’s air Finally, Leanna of her car. lose control However, she in a culvert.” up “ended arm, out and and she blacked other Unlike the in the head. bag hit her if the air did not recall high a data showed witnesses, Snyder’s SDM similar-occurrence deployment. inadvertent delta-v, with an inconsistent her in the air hit Danielle’s trial, claimed that At of the Cavalier. lose control out, caused her to face, her knocked that the testified witnesses contrast, of the similar-occurrence In none Mitchell, addition, In neither knocked them out. air-bag deployment him caused air-bag deployment testified that Armstrong, nor Dali actu- car, Spencer his or her and Crabtree or her to lose control of to lose control did not cause them ally deployment testified driving a 1998 Further, that Dali was the record showed their cars. Cavalier, under recall. year a that was not model witnesses, the testimony of the similar-occurrence limiting stated, as follows: pertinent part, trial court be a trial within into another area that could getting “[W]e are have, have, did, made should would trial as to whether or not it heads within witnesses’] [the contact with similar-occurrence go- that is I can’t see where occurrences.And so conte[x]t of their defendants]. or the anyone, plaintiffis] whether it be the ing help in this instance to what occurred jury needs to confine itself favorably unfavorably, as conclusions, either and not draw other occurrences. upon case based place what took this bag making area, far as the air meaning as general So that car, a similar individual, driving who was contact with fact in the trier of area, helps I think or assists their head don’t pertain issues that on the making this the determination case this case.” appropriate decision under
Reviewing the trial court’s its discre did not abuse review, conclude that the court standard of we testimony that witnesses’ by excluding tion the similar-occurrence cases, and, in them some bags struck inadvertently deployed their control of their cars. caused them to lose error, we testimony
Moreover, if the exclusion of that even discussed, reviewing harmless. As earlier conclude that it was *23 grant evidentiary will reversal based on rulings when the error substantially was prejudicial and affected the outcome of the trial. Conversely, appears it an where error did not affect the outcome trial, reviewing where the from can see the entire prejudice, record that the error did judg not result substantial the Simmons, 566-67, ment will not be disturbed. 198 Ill. 2d at at 736. The is on party seeking burden the reversal to establish Hallbeck, prejudice. 269 Ill. 3d at 647 N.E.2d at The 625. excluded evidence related deployment to whether the inadvertent bag Danielle’s air caused her to lose control of the Cavalier and collide Reed’s, step However, jury van. the found that explicitly Danielle’s bag deploy air did not inadvertently and did not reach the issue Accordingly, causation. because the error is related causation sue, which never by jury, reached that error was harmless. Cairns, See 3d at 944 (concluding N.E.2d at the trial evidentiary ruling court’s erroneous harmless where reached). error related to issue the never jury D. The Trial Court’s Decision To Allow Evidence Regarding SDM Data from the Downloaded Similar-Occurrence Witnesses’ Vehicles next argue
Plaintiffs that the trial court erred denying their motion in limine to exclude regarding evidence SDM data downloaded from similar-occurrence J-cars. Specifically, witnesses’ (1) they contend that offered defendants the evidence regarding “negate similar-occurrence witnesses’ delta-velocities to causation” despite the fact that such “was permitted causation evidence not case,” tiffs’ [p] within lain failed to defendants “establish witnesses, similar-occurrence foundation” for SDM data of the regarding evidence the similar-occurrence witnesses’ delta- probative.” disagree. velocities “was not We
1. the SDM Purpose Data Plaintiffs first contend that defendants offered the evidence regarding “negate the similar-occurrence witnesses’ to delta-velocities such evidence not despite causation” fact that causation “was permitted [plaintiffs’ disagree. within the case.” We contention,
Contrary plaintiffs’ the record shows that complained-of with the nothing delta-v evidence had to do causation evidence within the case”—that permitted [plaintiffs’ that “was is, struck inadvertently deployed bags whether the the similar- them to of their occurrence witnesses or caused lose control cars. Instead, theory support evidence was offered to defendants’ delta-v al- inadvertently deploy. did not trial court that Danielle’s air the similar- present showing lowed evidence bags inadvertently deployed, occurrence witnesses’ air and defendants present showing were evidence that the of those allowed delta-v’s (which deployments ranged inadvertent from per zero to three miles hour) were different just per Danielle’s delta-v of over 16 miles from plaintiffs ultimately brief, hour. As jury may “[t]he concede in their have easily inferred that ]bag inadvertently [Danielle’s] air[ did not deploy [Danielle’s] because delta-v in the range was not of 0 to 3 miles per hour.” The court did not abuse its by allowing discretion present defendants to evidence central to their directly defense and responsive Kelley evidence. See Corp., v. American Motors 130 App. (holding N.E.2d trial court erred allowing plaintiff to present accident reconstruction evidence but precluding the defendant presenting from evidence). such *24 2. Foundation the SDM Data
Plaintiffs next contend that defendants failed to “establish founda- tion” for the SDM data of the similar-occurrence witnesses. We disagree. exhibits,
The graphs, and PowerPoint demonstrations about which plaintiffs complain set forth data that were downloaded from the SDMs in the similar-occurrence witnesses’ J-cars. “Records directly generated by the computer itself generally are admissible as represent ing tangible result of the computer’s operations.” internal In re Marriage of DeLarco, 107, 114, 313 Ill. 3d App. 1278, 728 N.E.2d 1286 (2000). All that need be shown is recording that the device was ac curate and operating properly when generated. the evidence was People Houston, v. App. 90, 98, (1997). 288 Ill. 1244, 3d 679 N.E.2d 1249 accuracy of the recording SDM’s function was established during the Frye hearing in this case. Accordingly, we conclude that defendants satisfied the requirements foundational for the SDM-generated data from the similar-occurrence witnesses’ J-cars. agree
We also with defendants exhibits were admissible under the business exception records hearsay Supreme rule. 236(a) Court Rule requires only party tendering the record satisfy the requirement foundation by demonstrating that the record was made in the regular course of a business at or near the time of the transaction. 145 236(a); Ill. 2d R. Progress Printing Corp. v. Jane Byrne Committee, Political 235 App. 292, 305, Ill. 3d 601 N.E.2d “ (1992). ‘[A]ll other circumstances of the making of the writing record, or including lack personal knowledge by the entrant or maker, may be shown to weight, affect its but shall not affect its admis ” sibility.’ Miller, Lecroy 935-36, 3d 651 N.E.2d 236(a); also Raithel v. Dust- (1995), 145 Ill. 2d R. see quoting
cutter, Inc., (A up records of (Cook, J., concurring) prove business can specially those in its if it verified possession business which it has another records). case, he was familiar with General
In this Nunan testified that dur- reports generated procedures regarding records and Motors’ the SDM data was retrieved ing investigation, the 1241 2000, Delphi investigation. Up until kept in the normal course (for worked) Motors, and with General whom Nunan was affiliated General Motors. years alongside on the SDM for Nunan had worked inadvertent-deployment] [an that “[w]hen Nunan also stated obtain- it, part of that would be investigated came in we complaint conclusion about what occurred.” try the SDM data to to come to a ing inadvertent-deployment addition, that after an McConnell testified in, recorded “rather the information was complaint was called complaint A file on the regular in the course of business. promptly” day “within the same manager assistance would be sent to customer manager then send day.” The would no later than the next business [SDM] and “retrieve that manager investigate a district service circumstances, conclude that defendants these we information.” Under data of the SDM requirement for admission satisfied the threshold exception. records under the business the SDM Data
3. Probative Value of similar- regarding the Last, contend that the evidence because “the probative was not occurrence witnesses’ delta-velocities thereby af- velocity, and velocity longitudinal could affect the vertical Cavaliers.” of these 1996 and Chevrolet fect the delta-v by failing to raise argument appeal forfeited this Plaintiffs have *25 Harris, 304 McIntyre v. in the trial court. See specific objection (1999) (when is 982, objection 304, 309, 985 App. Ill. 3d 709 N.E.2d stated, and other must be court, specific grounds made in the trial appeal). forfeited on grounds not stated are To Bar Motion Denial of Plaintiffs’ E. The Trial Court’s Discovery Violations Alleged Witnesses Opinion Defendants’ denying their court erred that the trial argue Plaintiffs next for al- witnesses limine, opinion defendants’ seeking to bar motion in disagree. discovery violations. We leged Review 1. Standard of 219(c) party a that where provides Rule Supreme Court orders, the discovery rules or comply to unreasonably refuses
791 the situa remedy to just” orders may “such as are trial court enter 219(c). imposing sanctions purpose Ill. 2d R. The court’s tion. 166 sanction, weigh must fashioning the court In a punish party. a not a right to maintain offending party’s competing interests discovery and accomplish objectives against need lawsuit v. Dow Chemical flow of Sander promote unimpeded litigation. (1995). considering 48, 1071, Co., 68, 1081 166 Ill. 2d 651 N.E.2d court must consider particular sanction is a appropriate, whether a upon offending party effect of that conduct the conduct of the and the 1067, 1075, 753 P.A.C.E., App. 3d opposing party. 323 Smith (2001). is a entry judgment of a default “Dismissal or N.E.2d party’s in cases where the only severe sanction and be invoked should deliberate, contumacious, disregard or unwarranted actions exhibit court’s enforcement authority of the court’s and after all the other of Booher, In re powers litigation.” Marriage have failed to advance the (2000). The deci 1232-33 313 Ill. 3d N.E.2d trial any within the impose particular sion to sanction —if —lies discretion, only justifies a clear discretion reversal. court’s and abuse of Blakey Building Corp., v. Gilbane (1999).
1187, 1191 Timely 2. To File Alleged Failure Defendants’ Interrogatory Answers first their by denying Plaintiffs contend that trial court erred limine, seeking expert lay opinion motion in to bar defendants’ file inter timely witnesses based on defendants’ answers to failure “ rogatories. they introduced Specifically, [defendants contend that witnesses, testimony by including Doug numerous exhibits and Nu- its testimony, way 213(g) [Rule] nan’s that were never disclosed [(177 interrogatory 213(g))] surprise Ill. 2d R. prejudice [p]laintiffs.”
Initially, plaintiffs contemporane note that to make we failed objections during testimony ous on defendants’ ground this 16 of (The plaintiffs witnesses. record raised shows contemporaneous 213(g) objections during testimony of only Rule (which McKenna.) Sonye sustained), Law, Although trial objected plaintiffs during testimony regarding Nunan’s the delta- (which velocities of the J-cars is the similar-occurrence witnesses’ testimony complain appeal), about specifically which on objections grounds those on the were foundation relevance, 213(g). Rule Plaintiffs thus have forfeited this issue (which appeal, except as it relates to Law McKenna address we below). Osteopathic section II. H. Jones v. Chicago Hospital, See *26 792 (2000) (“Because App. 1121, 1132, 542,
Ill. 3d 738 N.E.2d an 552 always subject limine order remains by to reconsideration the court trial, during motion, granted denied, in limine whether not does review”); preserve Co., issues for Zook v. & Western Ry. Norfolk (1994) (“When 157, 162, 1348, Ill. a motion denied, object in limine is unsuccessful must specifically movant evidence by party trial”); when it is offered the other also see (a Ficken, 645, party 3d at at 8 state N.E.2d must specific grounds any objections, grounds for and other not are stated review). on waived
Moreover, agree we with the ruling trial court’s on the merits. The 25, 2000, record shows that April manage- on the court entered a case order, ment conference providing discovery “[a]ll that written [was 1, completed 2000,” to] be June defendants were to disclose opinion requirements witnesses in accordance with Supreme 213(g) August 6, Court Rule 2000, plaintiffs were complete depositions opinion by September of defendants’ witnesses July plaintiffs 2000. On purported served defendants with 213(g) interrogatories, Rule sought beyond which information that (For required by Rule 213(g). example, interrogatories each sought prior employment history description litiga- witness’s and a of other consulted.) August 2, 2000, tion which each had On defendants objected interrogatories untimely. that overbroad were Nonetheless, offered compliance defendants to disclose “full with 213(g)” April by plaintiffs’ August Rule and the court’s 2000 order 2000, deadline. The record shows that defendants submitted their interrogatory August 2000. answers Defendants listed witnesses, potential opinion set out qualifications, each witness’s subject testify, matter about which each would opinions witnesses’ therefor, attached reports. and bases the witnesses’ September 25, On defen- plaintiffs moved to bar all 19 of dants’ plaintiffs’ witnesses defendants’ failure answer interrogatories. Following hearing, an October 2000 at which interrogatories 213(g), that their the scope admitted exceeded of Rule motion, stating, in as pertinent part, the trial court denied follows: 213(g) [plaintiffs’] interrogatories [c]ourt [Rule]
“The notes that date, discovery past were the defendants cutoff upon served request beyond provided by Supreme discovery went those ignore [c]ounsel Court Rule 213 and for defense did not interrogatories provide compliance did with but substantial rule within their answers. addition, have either most witnesses been disclosed now, opinions deposed as based
along their well and/or ruling today, be upon earlier will not allowed to [c]ourt’s testify.” circumstances,
Under conclude that the trial court did these we motion clearly by denying plaintiffs’ its discretion to bar abuse *27 Indeed, plaintiffs do not on opinion defendants’ 19 witnesses. contest finding interrogatories “went appeal plaintiffs’ court’s that (177 beyond” 213(g) 213(g)). Rule Ill. 2d R. separate plaintiffs set
Although argument, out as a also by denying contend that the trial court erred their motion to bar expert lay defendants’ 19 because opinion “[i]t witnesses undisputed timely plaintiffs’ that defendants failed to to respond” 18, 1998, November document Plaintiffs have forfeited this request. appeal by failing issue on to it in the raise trial court. We will not argument reverse the trial court’s decision on an based trial court Ingalls 7, 23, heard. Hospital, App. never Memorial 311 Ill. 3d Seef (1999). 115, N.E.2d 724 127 Alleged 3. Failure Allow To Redepose To Defendants’ Plaintiffs
Certain Witnesses next by denying Plaintiffs contend that trial court erred Everest, Schultz, their Sonye, Mercer, Turner, motions to bar B.J. Gary Bahling testifying from on ground that defendants to refused plaintiffs redepose following allow to filing those witnesses of 213(g) defendants’ Rule Specifically, they answers. contend that “as witnesses, to [p]laintiffs redepose [defendants refused allow to these [p]laintiffs precluded determining were from opinions of these wit nesses, which may [p] have aided laintiffs in the trial.”
Plaintiffs have forfeited on appeal calling this issue as wit of only nesses four those six witnesses who testified at trial. See Cos. Corp., Insurance v. Outboard Marine 238 Chubb/Home (“A party 3d complain cannot out”). brought Further, evidence which he himself introduced we hearing motions, note that at the October defendants to plaintiffs redepose twice offered to allow those wit nesses, but plaintiffs failed to that opportunity. exercise
Moreover, accepting plaintiffs’ even contention trial court erred denying plaintiffs’ motions to bar those six witnesses from testifying, plaintiffs showing have failed meet to their burden of prejudice Hallbeck, that affected the outcome trial. See (the seeking 647 N.E.2d at the party burden is on prejudice). to reversal establish Plaintiffs’ bald assertion that the trial court’s “refusal these opinion to bar witnesses constituted reversible herein, severe tiffs as a matter of prejudice [pjlain
error and does not outcome of the prejudice affecting law” show substantial trial. Fewer
4. Disclosure Certain Documents Than Defendants’ Trial Days Before by denying Plaintiffs contend trial also that the court erred motion to their bar defendants’ witnesses based on defendants’ 13,000 approximately pages disclosure of of documents fewer than 60 days acknowledge before Plaintiffs the court sanctioned trial. by ordering plaintiffs any defendants themselves could use document; untimely produced plaintiffs if used such a use document could defendants the same document in their defense. However, they order insufficient and contend court’s “was prejudice surprise late disclosure.” inadequate cure the disagree. We August response plaintiffs’ request production,
In produced copy “crash and test” database for defendants its sled and 1997 those tests for plaintiffs J-cars invited select they video, set-up April reports, which wanted or test sheets. tests; the list of crash and sled defendants reminded *28 however, any crash plaintiffs apparently never selected of the tests for 31, 2000, produc- a production. May plaintiffs supplemental On served request, mid-September produced and in defendants 100- tion approximately the SDM and page software definition document for 3,600 pages crash test materials. September plaintiffs discovery in filed a for
Later motion (166 sanctions, 219), 2d R. pursuant Supreme to Rule Court (2) any to “bar seeking júdgment liability either on the issue of or evidence, relating and to the SDM. At the expert nonexpert” and all sanctions, motion for defendants September hearing plaintiffs’ on test would be informed the trial court that more crash documents forthcoming. produce to those documents The court told defendants subject also be parties and informed the that those documents would the court plaintiffs’ October to the court’s order on motion. in order, produced the documents finding entered a written that ordering that those September timely were disclosed at or on trial” [d]efendant[s] “shall not be used relied documents documents,” any and if “may use of the aforesaid plaintiffs but that or did, same” in their defense “any defendants could use they 1999, defendants had August found in rebuttal. The court also document substantially software definition timely produced a identical document). (Plaintiffs acknowledged (product definition for the SDM in September definition produced document that the software docu product in definition “duplicitous respects” lot of ment.) test the additional crash produced defendants
On October month, 10,000 pages). documents Later that (totaling approximately sanctions, alleging defendants motion for plaintiffs filed a second software crash and the untimely had disclosed the test documents on judgment either again seeking once definition document and evidence, expert to all liability any the issue of or “bar relating to the SDM. nonexpert” its trial court reaffirmed
Following hearing, a November 2000 In so prior ruling and denied second motion sanctions. stated, follows: doing, pertinent part, the court as sanctions, the regard motion for plaintiffis’] to second “With by the previously has held documents submitted untimely, year 14 of were September defendants on this any use those docu- although plaintiffs permitted would be to used trial, ments defendants not unless the could them first. j!: í¡í year
Any produced September 14 of this crash test that was after may plaintiffis] used plaintiff defendants to the not be unless direct defendants use[ ] them first. court did in fact subject to produce reports September those those conditions. new, essence, there is I thus nothing So which have dealt with upon prior far based the court’s order. regard sensing there is material in both algorithm, With *** product
documents the software definition document and pertains definition document that to this issue. ^ $ $ *** Further, testimony product [that] there was definition *** specifications provided prior were
document and the calibration September plaintiffis], materials being provided plaintiffis’] that that would have sufficient for information been experts contrary to or expert in order to render an will be opposition anticipated experts that defendants’ what testifying to in this matter.” *29 case, trial
Under the of this we conclude that the circumstances motion clearly by denying plaintiffs’ court did not abuse its discretion instead, to docu opinion witnesses, ordering bar defendants’ that 14, 2000, produced September ments on could not be used or after first v. defendants unless used them. See Martinez Pfizer 311, Division, 360, 373, 320 App. Laboratories 216 Ill. 576 3d N.E.2d 796
(1991) (“[A] 219(c) which, ‘just order’ under Rule to the degree one possible, discovery both the accomplishment ensures and a trial the merits”); Booher, 361, also Ill. at App. see 313 3d at 728 N.E.2d (“A 1234 reasonable sanction for failure to comply with an order for *** discovery providing when information much the information in already previous discovery, disclosed be one barring [the would from offending party] contradicting discovery the going beyond provided (emphasis materials on those original)). matters” in E The Court’s Permitting Jury Trial Decision the To View Damaged
Danielle’s
Cavalier
Plaintiffs next
the
argue
by permitting
trial court erred
jury
damaged
during
to view Danielle’s
Cavalier
defendants’ case
Specifically, they
jury’s
chief.
contend that
viewing of the
Cavalier
parties
constituted
abuse of discretion “since both
had
photographs accurately
truly
damage
hundreds of
portraying
vehicle.”
disagree.
[Danielle’s]
We
probative
Demonstrative evidence
no
has
value
itself but serves
as
jury
a visual aid to the
in comprehending witnesses’ verbal
testimony.
326,
v.
App.
Schuler Mid-Central
313 Ill.
3d
Cardiology,
337,
536,
(2000);
Nickels,
729
see
N.E.2d
545
v.
238 Ill.
Lundquist
(1992) (the
410, 427,
1373,
App.
jury’s
3d
605 N.E.2d
viewing
property
evidence,
litigation
involved
“does not constitute
but
is merely
jury’s understanding
a
applica
device
facilitate the
trial”).
presented
tion of the evidence to the issues
at
Courts look
evidence,
use
favorably upon
helps
of demonstrative
it
because
jury
Burrows,
at
People
understand
issues raised
trial.
v.
196, 252,
(1992);
2d
Schuler,
592 N.E.2d
at
Ill.
3d
determining
545. The considerations in
whether
fairness,
relevancy
demonstrative
allowed are
evidence should be
party
and the
whether
present
decision
to allow
demonstrative
Schuler,
evidence lies
313 App.
within
trial court’s discretion.
Ill.
Thus,
3d at
Plaintiffs’ own accident-reconstruction acknowl- Van accident, edged happened in “the to determine what best thing actually opposed look at the vehicle as to a two- would be photograph.” dimensional confusing. jury’s unfair or viewing
Nor was the Cavalier viewing, jury court admonished the jury’s Prior to the the trial
797 *** jurors] [the aid to viewing the was a “demonstrative assist by the understanding testimony ha[d] that been elicited witnesses *** the exhibits which received into evidence.” After ha[d] been viewing, explained jury videotape also to the had court that complete taken of the Cavalier to that a record of the been ensure viewing trial made. The proceedings jury’s of the Cavalier was simply explain step an aid used to between Reed’s van collision Cavalier, testify a topic and Danielle’s the witnesses would about with viewing. Indeed, during Thebert, without the cross-examination defendants’ expert, plaintiffs’ accident-reconstruction counsel stated plaintiffs jury that wanted the “to see this damage vehicle.” circumstances, Under these we conclude trial did not by allowing abuse its discretion jury view Danielle’s Cavalier. Although argument, not set out as a separate argue also they that “severely prejudiced” “expressly were when Thebert impliedly that viewing [Danielle’s] testified vehicle would facts, supported establish certain which his As testimony.” defendants (in correctly point out, plaintiffs object did testimony Thebert’s he suggested jury which that focus on particular parts of the Cavalier, including area, the left suspension car, rear the inside of the transfer). the paint Thus, plaintiffs have forfeited this issue on Kotvan, appeal. 750, See 321 Ill. 3d at N.E.2d App. at 1059 (“ question ‘Preservation requires of a appropriate objec review an in the [citation], object tion court below and failure to constitutes 211”). Williamsburg, 479, 200 App. waiver.’ Ill. at 3d 558 N.E.2d at G. The Trial Court’s Decision To Allowing Testify Seckler Regarding Dangerousness of the Curve Where Danielle’s
Collision Occurred argue Plaintiffs also the trial denying court erred limine plaintiffs’ seeking preclude motion in testifying Seckler from that based on personal experience, person her if a drives around the hour, at per person curve more than miles could lose control and cross the Specifically, they centerline. contend that Seckler’s testimony was “irrelevant prejudicial and immaterial” plaintiffs’ disagree. case. We
Generally, Peters, relevant evidence is admissible. Hiscott 324 Ill. (2001). 114, App. 124, 839, 3d 754 N.E.2d if “Evidence relevant it tends to either a fact in prove controversy or a matter in render is party sue more or less probable, may present and each evidence theory relevant to his opponent’s case or inconsistent theory.” Corp., 128, v. Beech Galowich Aircraft (1991). 568 N.E.2d The determination as to what is relevant discretion, we is a matter within the trial court’s sound
evidence will the trial determination absent an abuse of that not disturb court’s Schuler, 3d at at discretion. 729 N.E.2d 544. case, carefully parties’ argu In weighed this the trial court disputed ments be and determined that the evidence would admitted. record, Reviewing say we cannot that the court’s decision in this fanciful[,] regard “arbitrary, Illgen, or unreasonable.” 145 Ill. 2d standard). (discussing at 519 of discretion abuse we concluding, so note that contention Seckler’s testimony by plaintiffs’ was “irrelevant” and “immaterial” is belied testimony “gave concession in their brief that the credence to” and *31 “conveyed jury” theory the case—that the colli defendants’ of. by sion of deployment was not caused the inadvertent Danielle’s Sobczak, 929, bag, by App. Danielle’s See 302 Ill. 3d at speeding. but (“It is under N.E.2d at is well settled that evidence relevant tendency any it has to make the existence of fact any Illinois law when or less consequence that of to the determination of the action more evidence”). probable it would the than be without Moreover, that the trial court accepting plaintiffs’ even contention allowing testimony, erred our of the record shows by Seckler’s review danger testimony regarding that the error was Seckler’s the harmless. largely cumulative losing Nofsinger of control on the Road curve was Gray of of and Van plaintiffs’ several own witnesses. Both William dangerous, the Daele Daele testified that curve was and Van acknowl collision, edged inspected following he he saw that when the scene to go opposite they attempting cars into the of traffic as were lane negotiate speeds testified of 45 to 50 the curve. Schneider that hour, problem. In Nofsinger present miles a per bumps on Road addition, Gray driving when her car around Ricki testified that “feeling road, gave it her the “rippled” curve near the section of 314 Ill. People Sparks, See [she] want[ed] that lose control.” (2000) that in (concluding error jury “presented was was harmless when the admitting certain evidence any prejudicial ef independently version events of [the same] had”). may fect that the error have Regarding To Evidence
H. The Trial Court’s Decision Allow Belt Belt of Her Seat Seat Use and Condition Danielle’s Following Collision by granting erred argue next that the trial court Plaintiffs (1) testify that motion in limine to allow McKenna defendants’ collision; his wearing during the her seat belt Danielle was signs of physical belt showed inspection of her seat postcollision they Specifically, during the collision. movement Danielle’s forward 603.1(c) Illinois Code Vehicle section contend 12— (625 Code) (Vehicle a seat belt person used evidence that prohibits 603.1(c) (West 1996)) not ad did defendants ILCS 5/12— Court pursuant Supreme opinions, equately disclose McKenna’s (177 disagree. 213(g) 213(g)). 2d R. We Rule appeal this plaintiffs have forfeited issue Initially, we note wearing Danielle was testified that calling several witnesses who Cos., [Home See Chubb Insurance during her belt collision. seat (“A complain party at 430 cannot 3d at N.E.2d out”). himself brought introduced or evidence which he we appeal, issue on had not forfeited this assuming plaintiffs Even allowing its discretion conclude that the trial did not abuse testimony. McKenna’s seat-belt 603.1(c) Code
1. the Vehicle Section 12— should have excluded Plaintiffs first contend that the trial court during wearing her seat belt testimony McKenna’s that Danielle was (625 603.1(c) collision, of the Vehicle Code pursuant section 12— 603.1(c)(West 1996)). disagree. ILCS We 5/12— 603.1(c) pertinent provides, Section Code Vehicle 12— “[fjailure part, safety [sec- in violation of this to wear seat belt tion not be ILCS negligence.” shall considered evidence 5/12— 603.1(c) (West 1996). preclude That does not all seat-belt section evidence, determining but evidence of nonuse whether person failing system. negligent was to utilize the vehicle’s seat-belt rejecting testimony prohib- argument that McKenna’s 603.1(c), ited under which set forth in section 12— *32 limine, court fol- response to defendants’ motion in the trial stated as lows: concerning limine
“[Regarding t]he motion in to admit evidence belt, statutory provision, the seat the court finds that the relevant 603.1(c)[(West1996)], inapplicable.The statute 625 ILCS is 5/12— The purpose failure seat addresses the to wear belts. testimony sought nothing introduced in this case has that is to be minimizing] the dam- negligence [with] to do with or [Danielle’s] ages of the plaintifffs]. use relevant for the limited seat[-]belt
The evidence of is establishing not was involved a purpose [Danielle] of whether or side[-]impact frontal collision. [or] ought defendants[ ] and will allowed to contest be deployment.” claim of inadvertent did not
agreeWe with the trial court. thus conclude that court We by testify its McKenna to that Danielle was allowing abuse discretion 800 wearing during her seat belt City Quincy collision. See v. Co., 338, 343, 710,
Diamond Construction 327 Ill. 3d App. 762 N.E.2d (2002) (a 714 reviewing will court not reverse a trial court’s decision discretion). grant deny motion in limine absent clear abuse
2. Supreme 213(g) Court Rule Plaintiffs also that contend its trial abused discretion allowing testimony McKenna’s seat-belt because defendants did not adequately disclose opinions, pursuant his to Supreme Court Rule (177 213(g) 213(g)). Ill. 2d R. Specifically, they assert that the court (that by determining erred that testimony McKenna’s the marks on physical Danielle’s seat belt showed signs her forward movement collision) during the encompassed by was not original McKenna’s opinion set forth his interrogatory plastic answers that “some cariying parts other load clearly [of belt] seat were from marked occupant disagree. forces.” We
Supreme Court
213(g) requires
parties
Rule
disclose
subject matter, conclusions, opinions, qualifications,
all
reports
any opinion
a witness who will offer
testimony.
Berlin,
v.
325
Sinclair
458,
(2001).
469,
Ill. App.
442,
trial,
3d
758 N.E.2d
At
a witness
(Becht
may
on a properly
opinion
Palac,
elaborate
disclosed
317 Ill.
App.
1037,
1026,
1131,
3d
(2000)),
740 N.E.2d
and “[t]he fact
testimony
precise
trial
is more
than the
as
opinion
originally
(Prairie
necessarily
disclosed does not
result in a violation”
v. Snow
Resources, Inc.,
Valley
App.
Health
324 Ill.
755 N.E.2d
(2001)).
1021,
However,
testimony
the witness’s
be
must
encompassed by
Becht,
original opinion.
App.
317 Ill.
3d at
In rejecting plaintiffs’ argument testimony McKenna’s original fol- encompassed opinion, his trial court found as disclosed, lows: “All opinions [McKenna] those have been has been offering examined. There is no he is which new which would any surprise prejudice plaintiffs.” constitute or unfair Review- review, ing the trial under the appropriate court’s decision standard by determining did its we conclude that the court not abuse discretion original testimony opinion. that McKenna’s was an elaboration on his *33 Special Interrogatory Decision To Submit a The Trial Court’s I. to the Jury submitting by erred argue Plaintiffs next trial court “Did interrogatory jury: the driver’s side following special the they bag inadvertently Specifically, on November 1996?” deploy (1) “defective as it obvi special interrogatory contend that (2) verdict”; general could the trial court ously not control counsel for “informing “advocate[d]” for defendants defendants interrogatory, certain set forth in the court language that if (3) it”; accept jury be would inclined to was misled and interrogatory. disagree. confused We the Special Interrogatory
1. Form of special interrogatory Plaintiffs first contend that the was “obvi- ously defective.”
Initially, plaintiffs this appeal we note that have forfeited issue on by withdrawing objection special interrogatory. their to the form the of Bernstein, Ill. App. See Green v. 606 N.E.2d (“It specifically object is well settled that a failure to to a special interrogatory any objection will giving special waive in the of that interrogatory”).
Even assuming issue, had not forfeited this we special conclude that the interrogatory proper was in form. Section 2—1108 of the provides Code as follows: jury may
“The required by court, be on required and must be request any party, specially any find upon question material questions or jury of fact submitted to in writing. Special inter- rogatories tendered, objected shall to, upon[,] be ruled and submit- jury ted to the as in case of Submitting instructions. or refus- ing to submit a question jury may fact to the be reviewed appeal, ruling question as a on a special of law. finding When fact verdict, with the general inconsistent the former controls the latter may and the court judgment accordingly.” enter (West1996). ILCS 5/2—1108 Simmons, 734-35,
In 198 Ill. 2d at our supreme regarding court reviewed the form proper special law inter rogatories following: and wrote the interrogatory special proper
“[A] is in if form it relates to upon ultimate parties issue of fact which the rights depend, responsive an answer thereto is inconsistent with some general might addition, verdict that be returned. it [Citations.] single question, should be a stated in terms that are simple, unambiguous, understandable; repetitive, it should not be confusing, misleading. It need not contain all [Citation.] one element proper if it focuses on negligence and is
elements that is dispositive of the claim.” *34 the court
Further, special interrogatory, form of a assessing in the negative answer positive a and not determine whether both need “Rather, special a possible general verdicts. thereto could control all test some to could serve to proper response [it] is if some interrogatory Eaves v. (Emphasis original.) in by jury.” returned the general verdict (1993). 260, 266, 214, 218 Co., 614 N.E.2d 244 Ill. 3d Hyster special that defendants’ principles, we conclude Based on these single a interrogatory presented The proper form. interrogatory was understandable, and simple, question; direct its terms were negative repetitive; and a misleading it not or unambiguous; by the general verdict control an inconsistent response to it would jury plaintiffs’ favor. Special the Alleged Wording Court’s Assistance
2. The Trial Interrogatory “advocate[d]” contend that the trial Plaintiffs also if certain defendants that by “informing counsel for defendants inclined the court would be interrogatory, in the language was set forth that record will reflect According plaintiffs, “the accept it.” to interrogatory special unable to submit a may have been [defendants disagree. granted.” have We that the court would contention, clearly shows the record Contrary inter- court, suggested special the counsel, trial not the defendants’ conference, jury the instruction given. During rogatory that was provided then interrogatory, which special the defendants submitted of the by preponderance plaintiffs proven “Have the as follows: on inadvertently deployed ]bag air[ the driver’s side evidence that the form was objected, alleging 1996?” Plaintiffs November regarding language interrogatory improper included and the improper stated, in pertinent then Defendants’ counsel proof. the burden interroga- form, I think the to the do respect part, as follows: “With ‘preponderance using problem If have a tory proper. plaintiffs know, was, you changed to evidence,’ interrogatory could be the November inadvertently deploy on the driver’s side [‘]did out if that is language the 1996[?’, [‘]burden[’] would take which] language suggested accepted trial court unacceptable.” Indeed, plaintiffs’ jury. interrogatory the to submit agreed counsel, not that defendants’ for the record” “acknowledge^] counsel interrogatory given. special the court, suggested the trial the and Misled That the Was Jury Claim 3. Confused Plaintiffs’ Interrogatory Special misled jury was confused Last, contend initially answer not jury did special interrogatory because make verdict. Plaintiffs general it returned interrogatory when A authority record. or the citation either to assertion this bald without relevant by citation to point argued supported raised but not Rule Supreme Court satisfy requirements authority fails (188 341(e)(7)). Arana, 3d 341(e)(7) 322 Ill. R. Rivera 2d (2001). have Accordingly, plaintiffs 434, 440 appeal. forfeited this issue on
Moreover,
initially
general
returned a
jury
the mere fact that
special interroga
answering
without
verdict in defendants’ favor
parties’
jury’s part.
With the
tory does not manifest confusion
jury
interrogatory to the
agreement, the trial court resubmitted the
sign
the court clarified the
instructed it
answer and
it. Once
negative
procedure,
response
jury
returned
unanimous
part
Any
jury’s
its
“confusion” on the
general
consistent with
verdict.
question
regarded procedure,
posed.
generally
not the actual
See
Sim
mons,
(jury’s questions regarding
J. Plaintiffs’ Claim That the Verdict Was of the Evidence Weight argue jury against Plaintiffs verdict was also manifest weight of evidence. disagree. We reviewing
A set verdict if it was jury’s only court will aside a Rhodes v. Central against weight manifest the evidence. Illinois (1996). R.R., 213, 242, 1260, 172 Ill. 665 1274 Under 2d N.E.2d Gulf review, jury only this standard of we will verdict if it is reverse a evidence, unreasonable, arbitrary, and not based on or when opposite clearly apparent Family conclusion is O’Donnell v. Holy to us. (1997). 634, 643, 386, 289 Ill. Hospital, App. 3d 682 N.E.2d 393 Review may not ing courts should scrutinize the evidence but sit as a second jury reweigh credibility or of the wit the evidence reevaluate nesses, conflicting testimony especially where is introduced O’Donnell, App. 643, trial. Ill. 3d at N.E.2d at 393. 289 682 lay expert. This case a battle of witnesses—both Wit- involved their qualified opinions gave nesses in their fields their stated did not surprisingly, plaintiffs’ experts reasons for those Not opinions. job It agree experts. jury’s defense was the to listen judgment determine conflicting evidence in this case and its best use the truth jury where could be found. found favor of defendants against plaintiffs, this the function usurp court “should jury judgment fairly questions and substitute its on of fact 804
submitted, tried, and determined from the evidence which did not greatly preponderate way.” either Maple v. Gustafson, 445, 151 Ill. 2d 452-53, (1992). 508, 603 N.E.2d We therefore will not disturb the jury’s determination here.
K. The Trial Court’s Denial of Plaintiffs’ Motion for
Punitive Damages argue Plaintiffs next the trial court erred denying plaintiffs’ motion to amend complaint their punitive to add a damages prayer, (735 pursuant to section 2—604.1 of the Code ILCS 5/2—604.1 (West 1996))' In light jury’s verdict in favor of against defendants and (which plaintiffs we concluded was not against the weight manifest evidence), proved have not that they suffered damage. “ Punitive damages ‘are in addition to compensatory damages and ” cannot be allowed unless actual damage is shown.’ Hayman v. Auto Edens, Inc., haus on 315 Ill. App. 3d 1012, 734 N.E.2d (2000), quoting In re Application Busse, 433, 124 App. Ill. 3d 438, 651, 464 N.E.2d (1984); see also Florsheim v. Travelers Illinois, Indemnity Co. 3d 393 N.E.2d (1979) (“the plaintiff can be punitive damages awarded shown”). where actual damage is Accordingly, we need not address plaintiffs’ punitive damages argument.
Moreover, reviewing record, we conclude that the trial court did not err denying plaintiffs’ motion to complaint amend their prayer add a punitive for damages. See Stojkovich v. Monadnock Build ing, 733, 742-43, (appellate court reviews de novo a trial court’s denial of a section 2—604.1 mo amend). tion to Section 2—604.1 of the provides, Code in pertinent part, as follows: “In all actions bodily ***, on account of injury based on
negligence, where containing prayer product liability or any based theory doctrine, punitive damages permitted[,] are no complaint shall be filed seeking punitive However, relief damages. plaintiff may, pursuant pretrial to a hearing motion and after a *36 court, before the complaint amend the prayer to include a for relief seeking punitive damages. The court shall allow motion to complaint amend the if plaintiff hearing establishes at such reasonable likelihood of proving facts at trial support sufficient to (West 1996). punitive an award of damages.” 735 ILCS 5/2—604.1 In determining whether establishing met their burden proving reasonable likelihood of facts support at trial sufficient to punitive award of damages, guided by we are supreme what our Co., stated in Loitz Remington 404, 414-16, v. Arms 138 Ill. 2d (1990): N.E.2d 401-02 compensa-
“Punitive, exemplary, damages are not awarded as or to deter that tion, punish instead to the offender and but serve wrongdoing in committing similar acts of and others from party nature, penal punitive [Citations.] the future. Because of their Appropriately [Citations.] in the law. damages are not favored may punitive damages be enough, the initial decision whether normally in this State is a matter imposed particular in a case judge. [Citations.] to the trial reserved dam Describing punitive the circumstances which an award Motorola, Inc., Kelsay [74 this court in ages appropriate, is (1978),] stated: long punitive ‘It has established in this State that or been may exemplary damages be awarded when torts are committed fraud, malice, oppression, with actual deliberate violence or willfully, gross negligence when the defendant acts or with such disregard rights indicate a [cita- as to wanton of others tion], may assessed, they punitive damages be are al- Where punishment warning lowed in the nature of and as a example committing to deter the defendant and others from like [Citation.] offenses in the future. (Second) 908(2) (1979) (‘Punitive § also
See Restatement of Torts damages may outrageous, be awarded for conduct that is because of the defendant’s evil motive or his reckless indifference to the others’). rights of *** however, recognized, It must be ‘[n]egligence is not [citation], same wantonness’ ‘[p]unitive damages as and that are inadvertence, mistake, not awarded for mere judgment errors of [citation], like, ordinary and the negligence’ which constitute ‘Since purpose of punitive damages compensation plaintiff is not punishment deterrence, damages but of the defendant and these can be remedy appropri- awarded for conduct for which this say, involving ate —which is to conduct outrage some element of usually similar to that found in crime. The conduct must be outra- geous, either because the defendant’s acts are done with an evil they motive or because are done reckless indifference rights context, [Citation.] of others.’ In this willful and wanton ‘ “approaches degree misconduct of moral blame attached to harm, deliberately highly intentional since the defendant inflicts a upon disregard unreasonable risk of harm others in conscious ’ it.” [Citation.]” Judged standards, evidentiary accordance with these mate- rial before the trial court at the time it denied section 2—604.1 motion did part rising not establish conduct on defendants’ wrongdoing necessary justify to the level of punitive an award of *37 806 court, stated, in
damages. agree pertinent with the trial which We in part, denying plaintiffs’ as follows motion: “According to the uncontroverted evidence submitted defendant[s], 364,575 sold J-cars in the 1996 [General Motors] 268,585 95,990 year: model Cavaliers and Pontiac Sunfires. The 31 prior represent incidents of which notice [General Motors] received production the total 1996 approximately .008%of of Cavaliers Sunfires, 11,760 every Although or one accident for vehicles sold. court, analysis figures presented utilizing no were the same number of driven those vehicles prior incidents to miles same percentage. meager percent- would result in an infinitesimal Either age put have on notice that the 1996 [General Motors] could not and Pontiac Sunfires had a defect which would Chevrolet Cavaliers deployment cause the inadvertent vehicle’s circumstances similar to the incident of November 1996.” Loitz, 420, 430, (reversing 138 Ill. 2d at See N.E.2d punitive damages prior award of where 94 accidents reflected about percentage” (gun)); smaller of uses production 0.003% “even 967, 974-75, 979, Kopczick Corp., App. v. Hobart 308 Ill. 3d damages (reversing punitive award of where 30 prior roughly production incidents reflected 0.5% of and 0.0000007% (cuts meat)). Accordingly, of estimated number of uses we conclude 2—604.1 mo by denying plaintiffs’ that the court did not err section prayer punitive damages. complaint tion to amend their to add a L. Plaintiffs’ That the Trial Court’s Cumulative Errors Claim
Denied Them a Fair Trial Last, errors plaintiffs argue that the trial court’s cumulative denied them a fair trial. Given our resolution aforementioned errors, the cumulative error doctrine does alleged we conclude that 904- apply People Bradley, not to this case. See error OS, (holding the cumulative N.E.2d trial” [that] did the “few errors occurred at apply doctrine where defendant). prejudice did not
III. CONCLUSION stated, judgment. the trial court’s For the reasons we affirm Affirmed. J.,
APPLETON, concurs. and dis- concurring part MYERSCOUGH, specially JUSTICE senting part: evidence data into correctly allowed the court agree I However, I testimony. the related SDM and from the
downloaded the trial affirming opinion majority’s disagree with respectfully on causation. expert’s striking plaintiff’s sponte court’s sua “ application knowledge employ ‘did not Page found This court ” 332 Ill. juror’ average beyond the ken of science principles of testimony on causation therefore, Page’s and, struck 3d at 784 *38 on this majority affirmed it. The jury disregard to and instructed the expert need not jury that a does point on to out issue but went bag inadvertently deployed an it decide whether testimony help to reasoning is circular. This control of her car. a driver to lose caused not finding that defendant the trial court’s majority The affirms is not neces testimony on causation expert expert, an but then states control a driver to lose bag may cause sary whether an air to determine of her car. may persuasive this issue be
First, expert testimony on I believe understanding the evidence. certainly can assist the trier of fact experience in years engineer a mechanical Page was he everything on testimony was based aerospace industry. Page’s documents, previous case, including General Motors’ reviewed in this conditions, and witnesses’ report of road deployments, inadvertent and then deployment accounts, reach the conclusion of inadvertent reached without opinion cannot be causation. The causation isolated. opinions cannot be deployment opinion. These than this court’s certainly greater are Page’s qualifications cross- trial, defendants could in this case. At determine causation thereby discredit opinion on the bases for his Page examine lack of expert’s But, emphasize plaintiffs court to opinion. for the the most part, perhaps motion by striking on its own qualifications of discretion and is an abuse plaintiffs testimony part, crucial prejudicial to highly here was reversible error. The trial court’s action case. plaintiffs in October filed their motion in limine
Defendants had testimony. November trial, seeking Page’s to block prior months the middle of It was not until the trial court denied the motion. plaintiff testimony, surprising jury the court barred the trial that expert. leaving plaintiff without a causation did not jury harmless because majority finds this error did not causation, bag that the air deciding question reach the causation any plaintiff’s However, in the absence of deploy. deploy. did not find the air testimony, jury logically could Moreover, if expert testimony necessary causation, is not why defendants, cannot anyone matter, else for testify to their opinion on causation? This is testimony on the ultimate issue the case —was negligent? defendant Page should permit- have been —so ted to testify. Moreover, Page only expert who testified to causation. Plaintiffs reconstruction expert give did not opinion an regarding the air bag actually being deployed: “ ‘[t]he appeared Cavalier to be driven a person who could have stunned,
been
certainly
but not
control’;
out of
he could
think of no other cause for Danielle’s lack of
ap
reaction to the
proaching hazard
step
of Reed’s
van.”
THE ILLINOIS, PEOPLE OF THE Plaintiff-Appellee, STATE OF CAMPBELL, JR.,
RICHARD D. Defendant-Appellant. Fourth District No. 4—01—0551
Opinion July filed 2002.