Motion 11 - product liability motion to vacate - Part 2

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E. THE TRIAL COURT HAD A DUTY TO INTERPOSE. AND TO SEE THAT JUSTICE WAS DONE.

The Supreme Court of Illinois has stated that the duty of a judge is as follows, at page 247:

It is the judge's duty to see that justice is done, and, where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued, it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice, but in so doing he must not forget the function of the judge and assume that of the advocate. People v. Franceschini. 20 Ill. 2d 126, 169 N.E. 2d 244 (1960).

This duty of the trial court is well established in the law of the State of Illinois and the Fransceshini case has continued to be followed in other cases. People v. Kuntz, 239 Ill. App. 3d 587, 607 N.E. 2d 313, 180 Ill. Dec. 419 (3rd Dist. 1993). Also, the Fransceshini case has been cited in fifty-seven cases. Therefore, there can be no question that this is the duty of the trial court.

With all due respect to the Court, the failure of the Court to discharge its duty with respect to this particular opinion of Plaintiffs' expert, Doug Page, by the Court's own questioning or suggestion to counsel of an issue that troubled the court, effectively and summarily deprived plaintiffs of a fair and just trial.

III. THAT THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION IN LIMINE TO BAR AND PROHIBIT ANY TESTIMONY BY DEFENDANTS THAT THE DELTA V'S OF THE SIMITAR OCCURRENCE WITNESSES WERE DIFFERENT THAN PLAINTIFFS' DELTA V.

That Plaintiffs called to testify similar occurrence witnesses to establish the notice under products liability law that said defect was known to Defendants, which defect was the inadvertent deployment of air bags in these vehicles.

A. That Defendants failed to establish any foundation for such testimony but were permitted to introduce into evidence testimony and exhibits, which differentiated the 1241 witnesses' Delta V from Plaintiffs' Delta V, which was error.

B. That there was admitted into evidence that there were over 200 other cases of inadvertent deployment of air bags in the 1996 Chevrolet Cavaliers and other “J” cars, which admission into evidence of only five other Delta V's of the 1241 witnesses were not probative and constituted error.

C. That the admission into evidence of Defendants' own documents obtained in field investigations without testimony that these documents were kept as business records exception or some other exception to the hearsay rule, was hearsay and constituted error.

D. That the Defendants failure to ask any questions on cross-examination to any similar occurrence witness called by Plaintiffs nor adduce any personal knowledge of its witness, Doug Nunan, as to the documents relied upon, clearly demonstrates lack of foundation and constitutes error.

E. That Defendants failed to disclose the opinions, testimony and Power Point presentation charts and graphs of the comparisons between Plaintiff's Delta V and similar occurrence witnesses' Delta V's, pursuant to Supreme Court Rule 213(g) and 218(c), constituted error.

F. That the admission into evidence of testimony and Power Point presentation charts and graphs of the comparisons of the Delta V's of the similar occurrence witnesses with the Delta V of Plaintiff, was extremely prejudicial to Plaintiff and constituted error.

G. That the Plaintiffs were permitted to call 1241 witnesses for the purpose only of showing notice of the defect, but Plaintiffs were precluded from showing evidence of proximate cause through these witnesses. The Court specifically instructed Plaintiffs that no testimony of Plaintiffs' 1241 witnesses regarding those witnesses having been struck by the air bag, having been stunned or dazed, losing control of their vehicle of involved in a collision or accident would be permitted by the Court. See Plaintiffs offer of proof of these witnesses. However, Defendants were permitted, without ever having asked a question of any 1241 witness on cross examination, to offer into evidence as part of Defendants' case in chief, the Delta V's of these 1241 witnesses to negate proximate cause, when no testimony whatsoever as to foundation was required by the Court over Plaintiffs' Motion in Limine and continuing objections thereto, which constituted error.

H. That the Court permitted Defendants to include the Delta V of Beverly Stephens, another 1241 witness, in the testimony in Power Point presentation of Defendants, when the download of her SDM-R was all zeros and no Delta V was recorded. This evidence adduced by Defendants was misleading and confusing to the jury, as well as all other Delta V's of other 1241 witnesses, contained in Defendants' testimony and Power Point presentation. Again, Plaintiffs were precluded from adducing evidence, all be it circumstantial to support the element of proximate cause. However, Defendants were permitted to prove the absence of proximate cause, without any foundation whatsoever, by the admission into evidence of the Delta V's of these witnesses. Nothing could be more prejudicial to Plaintiffs and constituted reversible error.

IV. THAT THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION TO BAR AND PROHIBIT ANY OPINION TESTIMONY OF DEFENDANTS' EXPERTS FOR DEFENDANTS' FAILURE TO ANSWER INTERROGATORIES, PURSUANT TO SUPREME COURT RULE 213(g) AND FURTHER ERRED IN FAILING TO BAR AND PROHIBIT ANY OPINION TESTIMONY OF DEFENDANTS' EXPERTS FOR DEFENDANTS' INSUFFICIENT DISCLOSURE UNDER RULE 213(g) AND FAILURE TO ALLOW PLAINTIFFS TO REDEPOSE DEFENDANTS' OPINION WITNESSES AFTER 213(g) DISCLOSURE

A. THAT THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION TO BAR DEFENDANTS' 213(g) OPINION WITNESSES FOR FAILURE TO ANSWER 213(g) INTERROGATORIES.

1. That Plaintiff hereby incorporated by reference Plaintiffs' Motion to Bar Defendants' 213(g) Opinion Witnesses.

2. That Plaintiffs propounded 213(g) Interrogatories to Defendants, prior to the date Defendants were to disclose and identify their opinion witnesses, pursuant to Supreme Court Rule 213(g). (Attached hereto, made a part hereof, incorporated herein and marked as Exhibit “F” are Plaintiffs' 213(g) Interrogatories to Defendants).

3. That Defendants' failed and refused to answer Supreme Court Rule 213(g) Interrogatories, which is undisputed.

4. That the trial Court denied Plaintiffs' Motion to Bar on the grounds that Defendants failed to answer 213(g) Interrogatories.

5. That the trial Court erred in denying Plaintiffs' Motion to Bar, because Defendants introduced numerous exhibits and testimony by its witnesses, including Doug Nunan's testimony, that were never disclosed by way of 213(g) interrogatory.

6. That the testimony of Doug Nunan and exhibits of Defendant, including the testimony and Power Point presentation of charts and graphs of the Delta V of Plaintiffs' vehicle compared to the Delta V's of the similar occurrence witnesses was in violation of both Supreme Court Rule 213(g) and 218(c), all to the surprise and prejudice of Plaintiffs.

7. That the Court erred in that fact discovery under 213(f) and opinion discovery under 213(g) were the same cut-off dates, when opinion cut-off dates under 218 for disclosure of opinion witnesses were after written discovery for fact discovery. The trial court‘s failure to bar Defendants' expert or opinion witnesses is contrary to law and constitutes reversible error. In Department of Transp. v. Crull, 294 111. App. 3d 531, 690 N.E. 2d 143, 228 111. Dec. 834 (4th Dist. 1998), the Fourth District appellate court held that the express language of Rule 213(g) plainly provides that each party is required to disclose an opinion witness' proposed testimony, including conclusions and the basis of those conclusions. Numerous Illinois cases have held that disclosure under Supreme Court Rule 213 is mandatory, and a party must disclose the subject matter, conclusions, opinions, qualifications and all reports of the witnesses who will offer any opinion testimony; the court in Crull held that the trial court had abused its discretion in permitting a disclosed witness to testify beyond those matters disclosed. McMath v. Katholi. 304 111. App. 3d 369, 379, 711 N.E. 2d 1135, 1142 (4th Dist. 1999), reversed on other grounds, McMath v. Katholi, 191 111. 2d 251, 730 N.E. 2d 1, 246 111. Dec. 321 (2000). Two recent Illinois Bar Journal articles regarding opinion witness testimony and disclosures have addressed this issue. “The Dos and Don‘ts of Rule 213 Opinion Witness Discovery,” Illinois Bar Journal, January 2001, Vol. 89, page 22-27; “An Introduction to Opinion Testimony Disclosures in Illinois,” Illinois Bar Journal. January 2001, Vol. 89, page 18-21.

8. Defendants disclosed the following nineteen opinion witnesses in this cause and refused to answer Plaintiffs' Supreme Court Rule 213(g) Interrogatories for all of them:

Alan W. Thebert

Roger Nightingale

Edward R. McKenna

Dr. Murray Mackay

Mr. John Sprague

Mr. Douglas Nunan

Edward L. Workman

Brian J. Everest

Keith S. Schultz

Garry S. Bahling

Thomas Mercer

Frank C. Sonye, Jr.

Bruce J. Turner

James D. Reed

Richard Schneider

Sgt. Daniel Law

Wesley Schalk

Connie Brooks

John Longman

9. “Barring of opinion witness testimony is an appropriate and available sanction for a party's failure to adequately disclose those opinions.” Lococo v. XL Disposal Corp. 307 Ill.App.3d 684, 717 N.E.2d 823, 240 Ill.Dec. 474 (3rd Dist. 1999). The First District Appellate Court, in Seef v. Tngalls Memorial Hospital. 311 Ill.App.3d 7, 724 N.E.2d 115, 243 Ill.Dec. 806 (1999), citing the Fourth District's decision in dull, struck several portions of an expert's testimony in a medical malpractice action wherein the opinions or bases had not been disclosed, or not disclosed sufficiently, and stated that they “strongly urge practitioners that, if an opinion is an important to the theory of one's case, it is essential that it and the bases therefor be disclosed. This is a bright line rule and must be followed.”

10. In denying Plaintiffs' Motion to Bar, the trial court held that Plaintiffs' 213(g) Interrogatories were untimely filed, as fact discovery ended June 1, 2000. The court erred in this holding, as Defendants would have had no obligation to answer Plaintiffs' 213(g) Interrogatories prior to Defendants' court-ordered disclosure date. Plaintiffs' Interrogatories were filed prior to Defendants' disclosure date and Defendants should have been required to answer these Interrogatories under Supreme Court Rule 213(g) and Supreme Court Rule 218, and as Defendants refused to so answer Defendants opinion witnesses should have been barred. The trial court's refusal to bar these opinion witnesses constituted reversible error and severe prejudice to the Plaintiffs herein, as a matter of law.

B. THAT THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTIONS IN LIMINE AND MOTIONS TO BAR DEFENDANTS' OPINION WITNESSES FOR INSUFFICIENT 213(g) DISCLOSURES AND DEFENDANTS' REFUSAL TO ALLOW PLAINTIFFS TO REDEPOSE DEFENDANTS' 213(g) OPINION WITNESSES, AFTER DISCLOSURE OF 213(g) OPINION WITNESSES.

1. Plaintiffs filed motions in limine to prohibit and bar any testimony from Brian Everest, B.J. Turner, Keith Schultz, Gary Bahling, Frank Sonye and Tom Mercer on the basis that these defendants refused to allow Plaintiffs to redepose these witnesses after their disclosure by Defendants, as Supreme Court Rule 213(g) Opinion Witnesses, and further moved in limine to bar and prohibit any testimony of these witnesses for insufficient disclosures under Supreme Court Rule 213(g). Plaintiffs hereby incorporated by reference Motion in Limine No. 13 (Brian Everest), Motion in Limine No. 14 (B.J. Turner), Motion in Limine No. 15 (Keith Schultz), Motion in Limine No. 16 (Gary Bahling), Motion in Limine No. 17 (Frank Sonye), and Motion in Limine No. 18 (Tom Mercer).

2. That Plaintiffs had requested the depositions of all of the above witnesses pursuant to Supreme Court Rule 213(g), which requests were denied by the Defendants.

3. As Defendants 213(g) Disclosures of these witnesses, as fully set forth within each of Plaintiffs' Motions in Limine, were wholly insufficient under Supreme Court Rule 213(g) and the case law of the State of Illinois, and as Defendants refused to allow Plaintiffs to redepose these witnesses, Plaintiffs were precluded from determining the opinions of these witnesses, which may have aided Plaintiffs in the trial of this case, again to the extreme prejudice of the Plaintiffs.

4. The trial court's refusal to bar these opinion witnesses constituted reversible error and severe prejudice to the Plaintiffs herein, as a matter of law.

V. THAT THE TRTAL COURT ERRED TN DENYING PLAINTIFFS' MOTION TO STRIKE THE TESTIMONY OF DEFENDANTS' EXPERT, DOUG NUNAN, AT THE CONCLUSION OF HIS TESTIMONY, FOR HIS FAILURE TO HAVE REVIEWED APPROXIMATELY 18,000 DOCUMENTS, WHTCH WERE PRODUCED BY DEFENDANTS, ON THE GROUNDS THAT HIS TESTIMONY LACKED THE NECESSARY FOUNDATION TO TESTIFY TO THE MATTERS CONTAINED IN THOSE DOCUMENTS.

A. That Doug Nunan, Defendants' expert, testified that he did not review the documents, which totaled approximately 18,000 pages, prior to his testimony.

B. That the documents produced by Defendants under the Code of Civil Procedure, as required by law, contained all necessary and relevant material that pertained to the inadvertent deployment of the air bags of the 1996 Chevrolet Cavaliers, and other “J” cars, including the 1996 Chevrolet Cavalier of Plaintiff, Danielle L. Bachman, regarding the investigation of this particular defect, from approximately October of 1995 to August of 1998, when Defendant, General Motors Corporation, sent a letter to all consumers and owners of the 1996 Chevrolet Cavaliers, that there was an increased risk of inadvertent deployment of the air bags in those vehicles in a low speed collisions and when an object strikes the undercarriage.

C. That the inadvertent deployment of the driver's air bag in the 1996 Chevrolet Cavalier of Plaintiff, Danielle L. Bachman, only 8 days after the purchase of the vehicle, was the issue in this product liability case.

D. That the admission of Defendants' expert, Doug Nunan, that he did not review these documents, which totaled almost 18,000 pages, reveals that there was a lack of foundation, if not a total lack of foundation, for his opinion testimony, including the opinion that the driver's air bag of Plaintiff, Danielle L. Bachman, did not inadvertently deploy.

E. That the law in Illinois is clear that, notwithstanding the qualifications of a witness, a witness must have a foundational basis for the testimony proffered; if there is no foundational basis for such testimony, then such testimony should be barred or stricken. Foundation proof is necessary under rule 703 because the trial court must ensure that the admission of any scientific evidence, including expert scientific testimony based upon a testing device such as that use here, is both relevant and reliable. People v. Bynum. 257 111. App. 3d 502, 629 N.E. 2d 724, 196 111. Dec. 179 (1st Dist. 1994); Dauhert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579,113 S.Ct. 2786,125 L.Ed. 2d 469 (1993).

F. That the trial Court's failure to bar and strike the testimony of Defendants' expert, Doug Nunan, was extremely prejudicial to Plaintiff and constitutes reversible error.

VI. THAT THE TRTAL COURT ERRED IN PERMITTING THE JURY TO VISUALLY INSPECT PLAINTIFFS' DAMAGED AUTOMOBILE IN DEFENDANTS' CASE-IN-CHTEF OVER PLAINTIFFS' OBJECTION.

A. That the photographs of Plaintiffs' 1996 Chevrolet Cavalier were numerous, and both Plaintiffs and Defendants had said photographs marked as exhibits, including blow-ups of said photographs, which could have misled the jury into believing Plaintiffs' were concealing the actual viewing of the vehicle in Plaintiffs' case-in-chief.

B. That the viewing of Plaintiff s vehicle was inextricably connected to the testimony of Defendants' damage experts testimony to persuade the jury that this damage supported their testimony.

C. That the jury, on the Court's instruction, was told to put on their coats, follow the bailiff, and view the vehicle outside the courthouse, all of which gave extraordinary credence to the jury that the Court sanctioned this viewing, to the prejudice of Plaintiffs.

D. That a juror observed from a window on the third floor of the courthouse, the video recording of Plaintiff's vehicle, after the jury had been returned to the courthouse, which video recording was conducted in the presence of the judge and counsel for both Plaintiffs and Defendants. Clearly, the jury could have been misled and confused by the weight given to the viewing and video recording of Plaintiff's vehicle in the presence of the court.

E. That the viewing of Plaintiffs' severely damaged vehicle by the jury was an abuse of discretion by the trial Court since both parties had hundreds of photographs accurately and truly portraying the damage to Plaintiff's vehicle, which was stipulated to by the parties, and constituted extreme prejudice to Plaintiffs and error by the Court. Although the court had the discretion to grant or refuse Defendants' request to inspect Plaintiffs' vehicle, the actual viewing of Plaintiff ‘s vehicle at this stage of the trial and in Defendants' case in chief was an abuse of discretion because the vehicle was adequately portrayed in the aforesaid photographs. Lundquist v. Nickels. 238 111. App. 3d 410, 605 N.E. 2d 1373, 179 111. Dec. 150 (1st Dist. 1992).

F. That Defendants' expert, Alan Thebert, insinuated that the viewing of Plaintiff's vehicle would establish certain facts, which support his testimony. Illinois law specifically holds that no facts gained in a viewing can be considered as evidence, except in condemnation cases. Looft v. Missouri P.R. Co. 104 111. App. 3d 152, 432 N.E. 2d 1152, 60 111. Dec. 253 (5th Dist. 1982).

VII. THAT THE TRIAL COURT ERRED IN PREVENTING PLAINTIFFS FROM ADDUCING TESTIMONY FROM THE SIMILAR OCCURRENCE WITNESSES THAT THE DRIVER ATR RAGS ON THEIR VEHICLES STRUCK THEM AND CAUSED THEM TO LOSE CONTROL OF THEIR VEHICLES.

A. That this evidence was crucial to Plaintiffs' case, since the Third Amended Complaint predicated Plaintiffs' case upon an inadvertent deployment of Plaintiffs' driver air bag, but said deployment struck her in the face and head and caused her to lose control.

B. That the exclusion of this evidence, by the Court, together with the Courts' striking of the testimony of Doug Page, Plaintiffs' only engineer and liability expert, that the air bag caused Plaintiff to lose control of her vehicle and collide with a truck, effectively precluded Plaintiffs from proving proximate cause, even if the jury determined that Plaintiff's air bag inadvertently deployed.

C. That Plaintiffs' offer of proof of these witnesses is part of the record.

D. That the Court's ruling, along with other limitations imposed upon Plaintiffs, constituted error.

E. That this prejudice, together with the Court's ruling, over the objection of Plaintiff, precluded Plaintiffs' by direct, re-direct or rebuttal testimony, to refute by foundation or substance with the similar occurrence witnesses, the testimony of Doug Nunan, his video, graphs and other exhibits, which compared the Delta V's of the similar occurrence witnesses to Plaintiff's Delta V, which constituted reversible error.

VIII. THAT THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION IN LIMINE TO PRECLUDE DEFENDANTS' WITNESS, SHARON SECKLER. TO TESTIFY THAT SHE LOST CONTROL OF HER VEHICLE ON THE CURVE WHERE PLAINTIFF'S. DANIELLE L. BACHMAN, VEHICLE WENT OUT OF CONTROL, AFTER HER DRIVER'S AIR BAG STRUCK HER, AND THAT THIS CURVE IS “DANGEROUS.”

A. That this testimony of Defendants' witness, who, by her own admission, did not see this accident could only mislead the jury and prejudice Plaintiffs as to the facts and issues in the case at hand.

B. The this witness did not observe Plaintiff's vehicle, until after the collision occurred and vehicles came to rest, precluded her from testifying from what she noticed when she negotiated the curve in question because there was no foundation as to speed, weather conditions, road conditions, type of vehicle driven, time and place, and other facts related to the accident in question.

C. That the testimony of Sharon Seckler, explicitly or implicitly, conveyed to the jury that Plaintiff, Danielle L. Bachman, simply lost control of her vehicle on this curve.

D. That this testimony lacked foundation, relevancy and any probative value whatsoever, and said testimony was extremely prejudicial to Plaintiff.

E. That this testimony was without any basis in law or fact and constituted reversible error.

IX. THAT THE TRTAL COURT ERRED IN DENYING PLAINTIFFS' MOTIONS TO BAR DEFENDANTS' EXPERT WITNESSES ON THE GROUNDS THAT DEFENDANTS DISCLOSED APPROXIMATELY 13,000 DOCUMENTS, LESS THAN 60 DAYS PRIOR TO TRIAL AND IN VIOLATION OF SUPREME COURT RULE 218(c) AND 213(g) OF THE CODE OF CIVIL PROCEDURE.

A. That the Court's Order that Plaintiffs could use any document provided by Defendant in the late disclosure and, if Plaintiffs used any such document, Defendants could refute that evidence in their defense, did not and could not cure the late disclosure.

B. That, if Plaintiffs spent only one minute per page every day, for eight hours per day, reviewing these untimely disclosures by Defendants, it would take Plaintiffs approximately six weeks to perform a cursory review of these documents; if Plaintiffs were to spend two minutes in a cursory review of these documents, it would take Plaintiffs twelve weeks to perform such a cursory review.

C. That these documents produced by Defendants were directly related to the investigation by the Defendant, General Motors Corporation, to its investigation and tests of the inadvertent air bag deployment of the air bags of the 1996 Chevrolet Cavaliers, which included Plaintiff's 1996 Chevrolet, and other “J” cars, as requested by the national Highway Traffic Safety Administration (NHTSA), and directly relevant and material to the issues in this case.

D. That nothing could be more prejudicial to Plaintiff than the willful failure to disclose and produce these documents as required by the Court and the Code of Civil Procedure and Supreme Court Rules of the State of Illinois.

E. That Plaintiff could not review the aforesaid documents, copy same, forward to its expert, Doug Page, to review, evaluate, and advise Plaintiffs as to his opinions thereto, when such records were not produced and disclosed until less than 60 days to trial.

F. That, based upon the opinions of Plaintiffs' expert, Doug Page, further discovery may have to have been conducted.

G. That the untimely disclosure and production of the 13,000 documents, precluded Plaintiff from further discovery, and constituted reversible error because of surprise and prejudice.

X. THAT THE TRTAL COURT ERRED IN DENYING PLAINTIFFS' MOTTQN FOR PUNITIVE DAMAGES, PURSUANT TO 735 ILCS 5/2-604.1 .

That Plaintiffs produced approximately 24 prior occurrences of inadvertent air bag deployments of the 1996 Chevrolet Cavaliers and other “J” cars over a period of approximately one year prior to the sale of the 1996 Chevrolet Cavalier to Plaintiff, Danielle L. Bachman, and evidence of knowledge of these prior occurrences by the Defendants of this public safety defect, which might or could cause injuries or death to the occupants of these vehicles in the Punitive Damage Hearing. However, the court erred in the denial of Plaintiffs' Motion for Punitive Damages, based upon the finding of the court that there were insufficient numbers of occurrences to support a punitive damages count. Made a part hereof and incorporated herein by reference is Plaintiff's Motion for Punitive Damages which has been previously filed with the Court.

XI. THAT THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTIONS FOR SANCTIONSr INCLUDING JUDGMENT FOR PLAINTIFF ON THE ISSUE OF LIABILITY. OR. IN THE ALTERNATIVE, TO BAR ALL OF DEFENDANTS OPINION WTTNESS TESTIMONY, WHEN THE RECORD REVEALED THAT DEFENDANT ENGAGED IN A CONTINUOUS, DELIBERATE AND CONTUMACIOUS COURSE OF CONDUCT TN FAILING TO COMPLY WITH THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE, SUPREME COURT RULES OF THE STATE OF ILLINOIS AND ORDERS OF THE TRIAL COURT, REGARDING DISCOVERY, WHTCH REQUIRED PLAINTIFF TO FILE MOTIONS TO COMPEL AND MOTION FOR RULE TO SHOW CAUSE, IN THIS ACTION.

A. That counsel for Defendants, admitted pro hac vice, obtained an unfair advantage over Plaintiffs by engaging in a legal strategy to deprive Plaintiffs from engaging in fact and opinion discovery by late and untimely responses to production requests, as set forth in point DC, which is incorporated herein by reference, in producing approximately 13,000 documents to Plaintiff, less than six days prior to trial.

B. That this tactic by Defendants in their attempt to obtain an unfair advantage and frustrate Plaintiff, occurred through the discovery process in this action as set forth previously herein.

C. That orders of the trial Court failed to cure this advantage to Defendants, and only the entry of an order on the issue of liability, or, in the alternative, an order barring Defendants opinion witnesses, would be appropriate under the law.

D. That sanctions must be severe when the abuse of discovery is clear and unambiguous in demonstrating a trial strategy that has been continuous, deliberate and contumacious.

E. That the order of the trial Court that Plaintiffs could utilize any of the 13,000 documents was totally ineffective in light of the fact that Plaintiffs were confronted with the impossible task of attempting to review, evaluate and analyze said documents, forward to Plaintiffs' expert for review. Discovery, fact and opinion, had long been closed, which precluded Plaintiffs from engaging in further discovery, based upon these documents.

F. That counsel for Plaintiffs' review of case law in the State of Illinois reveals no case where there has been a greater abuse of the provisions of the Code of Civil procedure, Rules of the Supreme Court of Illinois and order of a trial Court.

XII. THAT THE TRIAL COURT ERRED IN OVERRULING PLAINTIFFS' OBJECTION TO DEFENDANTS' SPECIAL INTERROGATORY ON THE GROUNDS THAT SAID INTERROGATORY WAS DEFECTIVE IN FORM AND SUBSTANCE AND WOULD NOT CONTROL THE GENERAL VERDICT.

A. That the special interrogatory was as follows:

Did the driver's side air bag inadvertently deploy on November 6, 1996? Yes__________ No__________

B. That the jury returned a general verdict in open court; however, the court instructed the jury that they must answer the special interrogatory. Therefore, the jury was sent back to continue deliberations. However, there were no lines for the jurors to sign on said special interrogatory, and the court had to insert these lines prior to the jury continuing deliberations on the special interrogatory. After continued deliberations, the jury returned the special interrogatory by checking the line indicated “No.”

C. That the interrogatory was obviously defective in that if the jury had answered “Yes,” the special interrogatory might not have controlled the general verdict. The jury could have concluded that the driver's side air bag inadvertently deployed, but did not strike Plaintiff and cause her to lose control and collide with another vehicle. The purpose of the special interrogatory is to ask the jury some controlling question, which, if answered in the affirmative, would control the general verdict. Goodman v. Chicago, B. & O. R. Co. 289 lll. App. 320, 7 N.E. 2d 393 (1937). The court may properly refuse to give a special interrogatory, which, standing on its own, could not control the verdict. Hollis v. Terminal R. Asso. 72 111. App. 2d 13, 218 N.E. 2d 231 (5th Dist. 1966). Here, the special interrogatory was defective as it obviously could not control the general verdict.

D. That the court also erred in informing counsel for defendants that if certain language was set forth in the special interrogatory, the court would be inclined to accept it. Over objections of counsel for Plaintiffs, counsel for Defendants submitted the special interrogatory which went to the jury. The law in Illinois is clear that a judge cannot be an advocate, and the record will reflect that Defendants may have been unable to submit a special interrogatory that the court would have granted.

E. That the fact that the jury did not answer the special interrogatory at the time the jury returned the general verdict is clear evidence that the jury was confused and misled by the special interrogatory. Particularly, when the court had instructed the jury, prior to deliberations, that both the general verdict and special interrogatory must be answered by them.

F. That the defective special interrogatory that went to the jury was extremely prejudicial to Plaintiffs and constituted reversible error.

XIII. THAT THE CUMULATIVE ERRORS OF THE COURT IN THIS TRTAL RESULTED IN EXTREME PREJUDICE TO PLAINTIFFS. AND DENTED PLAINTIFFS THE RIGHT TO A FAIR TRIAL, WHICH CONSTITUTED REVERSIBLE ERROR.

The cumulative effect of the errors of the trial court in this cause constitute reversible error, even if some errors committed by the court did not constitute reversible error by themselves.

XIV. THAT THE VERDICT OF THE JURY IS THE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

A. That the Plaintiff, Danielle L. Bachman, testified that her driver's air bag inadvertently deployed, struck, stunned and dazed her, caused her to lose control of her vehicle and collide with a step van driven by James Reed.

B. That Richard Schneider, a witness to this accident, testified that he had a clear and unobstructed view of the 1996 Chevrolet Cavalier, driven by Plaintiff, Danielle L. Bachman, at the time of impact and collision, and he did not see the air bag deploy at that moment.

C. That James Reed, driver of the step van, stated that he did not see anything at the time of the impact and collision.

D. That, if the testimony of all of Defendants' opinion witnesses and exhibits were truly inadmissible in this trial, the manifest weight of evidence would be overwhelmingly in favor of Plaintiffs.

WHEREFORE, Plaintiffs, DEBRA L. BACHMAN, as Mother and Legal Guardian of the Estate and Person of DANIELLE L. BACHMAN, a disabled person, and DANIELLE L. BACHMAN, Individually, pray that this Court vacate the verdict and judgment for the Defendants in this cause and enter judgment for Plaintiffs, notwithstanding the verdict, or, in the alternative, grant Plaintiffs a new trial, for the reasons stated herein.

Debra L. Bachman, as Mother and Legal, Guardian of the Estate and Person of Danielle, L. Bachman, a disabled person, and Danielle L., Bachman, Individually, Plaintiffs,

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