Motion 11 - product liability motion to vacate

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Post Trial Motion

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, William T. Cacciatore, Attorney for Plaintiffs, 321 W. State St., Suite 900, Rockford,IL 61101, (815)965-7500

NOW COME the 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, and move this Court to vacate the verdict and judgment for the Defendants, GENERAL MOTORS CORPORATION, a foreign corporation, UFTRING CHEVROLET-OLDSMOBILE, INC., an Illinois corporation, DELCO ELECTRONICS CORPORATION, a foreign corporation, and DELPHI AUTOMOTIVE SYSTEMS, a foreign corporation, as to Counts I through Count V, Counts VI through X, and Counts XVIII through XXI of the Third Amended Complaint, respectively, in this cause and enter judgment for Plaintiffs, notwithstanding the verdict, or, in the alternative, grant Plaintiffs a new trial, on one or more of the following grounds:

I. THAT THE TRIAL COURT ERRED IN DENYTNG PLAINTIFFS' MOTION IN LIMTNE NO. 2, WHICH WAS TO BAR THE DOWNLOADED DATA FROM THE SENSING AND DIAGNOSTIC MODULE (SDM-R) OF PLAINTIFF'S 1996 CHEVROLET CAVALIER AND OPINION EVIDENCE EMANATING THEREFROM, AS THIS NOVEL SCIENTIFIC EVIDENCE CANNOT MEET THE “FRYE PLUS RELIABILITY” STANDARD FOR ADMISSIBILITY OF EVIDENCE.

The Plaintiffs' Motion in Limine No. 2 requested that the trial court prohibit and bar any testimony emanating from the download of the sensing and diagnostic module of the 1996 Chevrolet Cavalier, driven and owned by the Plaintiff, DANIELLE L. BACHMAN, on November 4, 1996, which vehicle was the subject of this litigation. Plaintiff's Motion in Limine No. 2, and Plaintiffs' Reply to Defendants' Brief in Opposition to Plaintiffs' Motion in Limine No.2 and Supplement to Plaintiffs' Motion in Limine No. 2 which have been previously filed with the court are made a part hereof and incorporated herein by reference. The admission into evidence of the download of the sensing and diagnostic module of Plaintiffs' 1996 Chevrolet, hereinafter referred to as the SDM-R, and the conversion of the hexadecimal code and data by the Defendant, GENERAL MOTORS CORPORATION, into opinions and conclusions of its experts, which negated the testimony of Plaintiff, DANIELLE L. BACHMAN, that the air bag inadvertently deployed, causing her to lose control of her 1996 Chevrolet Cavalier and collide with a truck, driven by James Reed, was highly prejudicial and inadmissible on the following grounds:

A. THE “FRYE PLUS RELIABILITY” STANDARD: THE COURT MUST DETERMINE THE SCIENTIFIC TEST IS RELIABLE.

Under this standard, the court must determine that the scientific test is reliable, and that its reliability is generally accepted in the particular field to which the test belongs. Harris v. Cropmate Co. 302 Ill. App. 3d 364, 235 Ill. Dec. 795, 706 N.E. 2d 55 (4th Dist. 1999).

Plaintiffs' alleged that the defect in their products liability action was the sensing and diagnostic module in Plaintiffs 1996 Chevrolet Cavalier, which inadvertently deployed, struck her and caused her to collide with a truck, driven by James Reed. This defect in the 1996 Chevrolet Cavaliers, including Plaintiff's Cavalier, was not in dispute. Defendants admitted that this very defect existed in these vehicles, and General Motors in its letters to owners of these vehicles recalled almost 800,000 of these Chevrolet Cavaliers because of this previous defect. (Made a part hereof and incorporated herein by reference is the recall letter from General Motors to consumers in August, 1998, which was admitted into evidence at this trial as Plaintiff's Exhibit 7). Nonetheless, the court found that the evidence presented by the Defendants at the Frye hearing, adduced from Defendants' employees only, showed that the tests were reliable. Once Defendants persuaded the court that the tests were reliable, then the court opened the door for Defendants to prove at trial that because the tests pertaining to Plaintiff's SDM-R were reliable, then Plaintiff's air bag did not inadvertently deploy and cause this accident and her tragic injuries. The court seriously erred by concluding that this defective product, the SDM-R, was reliable. The accuracy and reliability of scientific tests are irrelevant when the product is admittedly defective. Plaintiffs' Motion in Limine No. 2 should have been granted on this basis alone.

B. THE “FRYE PLUS RELIABILITY” STANDARD: THE COURT MUST DETERMINE THAT THE RELIABILITY OF THE SCIENTIFIC TEST IS GENERALLY ACCEPTED IN THE PARTICULAR SCIENTIFIC FIELD TO WHICH THE TEST BELONGS.

The SDM-R in the 1996 Chevrolet Cavaliers, including Plaintiffs vehicle, was designed, manufactured and installed by these Defendants; this information is proprietary and confidential to these Defendants. All tests pertaining to such design, manufacture and installation are also proprietary and confidential. Therefore, no tests performed or conducted by these Defendants was generally accepted in the automotive industry in 1996. Thus, any test results must be rejected as violative of the “Frye Plus Reliability” standard.

In addition, testimony at trial unequivocally established, by Defendants' own engineers and opinion witnesses, that the conclusions and opinions of test results could not be independently verified. This deprived Plaintiffs of their basic and fundamental right to cross-examination. Cross-examination of an adverse witness is a matter of right. People v. Del Prete. 364 Ill. 376, 4 N.E. 2d 484 (1936). The right to cross-examine is an intrinsic aspect of the right to due process. People ex rel. Bernat v. Bicek. 405 Ill. 510, 91 N.E. 2d 588 (1950).

The law of the State of Illinois is clear. A party to an action must have the ability and be permitted to conduct not only a cross-examination, but an effective cross-examination. Pursuant to the Fourteenth Amendment of the United States Constitution and Section 2 of Article II of the Illinois Constitution, a party shall be afforded due process of law. “Due process of law is served where there is a right to present evidence and argument in one's own behalf, the right to cross-examine adverse witnesses, and impartiality in rulings upon the evidence which is offered.” (Emphasis added). Aaron v. Hendrickson. 221 Ill. App. 3d 842, 582 N.E. 2d 759, 164 Ill. Dec. 196 (5th Dist. 1991) ; Nye v. Parkway Bank & Trust Company. 114 Ill. App. 3d 272, 448 N.E. 2d 918, 70 Ill. Dec. 40 (1st Dist. 1983). The principal safeguard against errant expert testimony is cross-examination. Sears v. Rutishauser. 102 Ill. 2d 402, 466 N.E. 2d 210, 80 Ill. Dec. 758 (1984).

In this case, there is no effective opportunity to cross-examine the downloaded data from the SDM-R of the 1996 Chevrolet Cavalier, or the witnesses called by either Plaintiff or Defendants regarding this data. Only General Motors has this information, and there is no independent way to verify either the results or the process. As such, this evidence is inherently unreliable and must be held inadmissible as not being subject to cross-examination. The trial court erred, and the Plaintiffs were denied procedural due process by the admission of this data, and the testimony emanating therefrom at the trial of this cause.

C. THE “FRYE PLUS RELIABILITY” STANDARD: INQUIRIES BY THE COURT IN APPLYING THIS STANDARD.

In Harris v. Cropmate, 302 Ill. App. 3d 364, 706 N.E. 2d 55, 235 Ill. Dec. 795 (1999), the Fourth District Appellate Court held that Illinois recognizes a “Frye plus reliability” standard for the admissibility of scientific evidence. The Harris court laid out a number of factors to be applied in performing a “Frye” analysis and for the reasons that follow, the Plaintiffs respectfully aver that the trial court erred in its application of these factors to this case.

The Harris Court, citing Professor Graham, stated that the Frye admissibility standard serves to:

(1) ensure that a minimal reserve of experts exist who can critically examine the validity of a scientific determination in a particular case, (2) promote a degree of uniformity of decision (3) avoid the interjection of a time consuming and often misleading determination of the reliability of a scientific technique into the litigation, (4) assure that scientific evidence introduced will be reliable, [citation], and thus relevant (5) provide a preliminary screening to protect against the natural inclination of the jury to assign significant weight to scientific techniques presented under circumstances where the trier of fact is in a poor position to place an accurate evaluation upon reliability, and (6) impose a threshold standard of reliability, in light of the fact that cross-examination by opposing counsel is unlikely to bring inaccuracies to the attention of the jury. HANDBOOK OF EVIDENCE, Section 702.4, at 562.

These fundamental bases and reasons for the “Frye plus reliability” standard of admissibility, clearly demonstrate that the SDM-R data of the 1996 Chevrolet Cavalier and the opinions emanating therefrom were erroneously admitted in this case, all to Plaintiff's prejudice.

As stated previously, due to the confidential and proprietary nature of the SDM-R and its data, plaintiffs were precluded from any effective cross-examination; the SDM-R, upon which the jury was allowed to rely in this case was the very defective product at issue, and hence, is inherently unreliable; and such evidence is not subject to a minimal reserve of experts who can “critically examine the validity of a scientific determination,” as the only individuals with the requisite information are employees of General Motors Corporation. Individuals must rely on General Motors Corporation's documentation and cannot independently verify the data or test results. This evidence was erroneously admitted by this court, and such evidence failed to meet the “Frye Plus Reliability” standard for its admission into evidence.

(1) WHAT EVIDENCE IS BEING PROFFERED.

Defendants proffered the download from the SDM-R of Plaintiff's 1996 Chevrolet Cavalier, which data was relied upon by its employees to prove that Plaintiff's driver's air bag did not inadvertently deploy.

(2) WHETHER THE PROFFERED TESTIMONY WILL ASSIST THE TRIER OF THE FACT TO UNDERSTAND THE EVIDENCE OR DETERMINE THE FACTS IN ISSUE.

Clearly, the testimony by Defendants that the Plaintiffs driver's air bag did not inadvertently deploy, but, deployed properly and as designed, was based upon the court admitting into evidence the download from the SDM-R and scientific tests pertaining thereto and opinions and conclusions of Defendants' experts, which were based upon inadmissible evidence and violative of the “Frye Plus Reliability” standard.

The admission of this evidence was highly prejudicial to Plaintiffs in that there was no way to contest or verify the proffered testimony and evidence of Defendants' experts.

(3) THE COURT MUST ASK IF THE EVIDENCE CONSTITUTES “SCIENTIFIC EVIDENCE.”

The Court found that the proffered testimony constituted scientific evidence based upon mechanical engineering, physics and perhaps mathematics.

(4) THE COURT MUST ASK IF THE SCIENTIFIC EVIDENCE IS NOVEL, OR, INSTEAD INVOLVES FIRMLY ESTABLISHED METHOD OR TECHNIQUE.

Here, the court stated in its findings that the only theory that appeared novel was that this was a case of first impression. However, the court implicitly or explicitly stated in its findings that this evidence involved a firmly established method or technique by specifically referring to computer data, microprocessors and recording devices as not being novel but an accepted fact of society. (Pages 272-273, Frye Hearing). However, as more clearly demonstrated at trial, the computer data, microprocessor and recording device of the SDM-R was not the reason for the inadvertent deployment of the air bags in the 1996 Chevrolet Cavaliers and other “J” cars: The defect was in the sensing component, which erroneously supplied incorrect information to the computer and microprocessors which was recorded by the SDM-R, because of a “resonance” caused to the circuit board when an object struck the undercarriage. Also, as testified to by Defendants' employees, this “resonance” could cause a false delta V. Thus, even though the download from the SDM-R recorded what information the computer was given, and accurately, the “resonance” caused false information to be transmitted to the SDM-R, which caused an inadvertent deployment of the air bags in these vehicles, resulting in a “Code 51,” designating “crash” when no such crash occurred. For these reasons, the download and data derived therefrom can never be considered accurate and reliable when the air bags on the 1996 Chevrolet Cavaliers and other “J” cars inadvertently deployed. This was the very issue in the case. The admission of such evidence by the court was contrary to the “Frye Plus Reliability” standard and constituted reversible error.

The Defendants introduced at the Frye Hearing numerous affidavits of their own employees to persuade the court that the SDM-R's are widely accepted and used in the U.S.A. by numerous law enforcement agencies and other organizations in crash investigations. The court in its findings referred extensively to these affidavits and their contents in making its decision to deny Plaintiffs' Motion in Limine No. 2. Affidavits constitute hearsay when offered into evidence for the truth of the matter asserted, despite the fact that the affidavits are made under oath. Affidavits deprive a litigant of two basic rights: the right to confront a witness and the right of cross-examination. This court was persuaded by the hearsay in these affidavits as submitted by the Defendants, and this court relied upon Defendants' affidavits in its decision to deny Plaintiffs' Motion in Limine No. 2, as clearly stated in the court's findings and decision. (Frye Hearing, pages 265-278).

735 ILCS 5/2-1103 (b) provides that while the practice of the court may allow affidavits, the court may require the evidence to be presented wholly or in part by oral examination, allowing the adverse party the right to cross-examination. The Second District Appellate court, in Marquette National Bank v. B.J. Dodge Fiat, Inc. 131 Ill. App. 3d 356, 475 N.E. 2d 1057, 86 Ill. Dec. 678 (2nd Dist. 1985) has held that while it is generally true that well alleged facts within an affidavit must be taken as true when they are not contradicted by counter-affidavit, that rule is typically applied, pursuant to Supreme Court Rule 191 (a), only to affidavits in proceedings under Sections 2-1005, 2-619 and 2-301(b) of the Code of Civil Procedure and does not apply to affidavits filed in conjunction with other types of civil proceedings. Further, the court held that a trial court is not required to accept as true conclusions in an affidavit unsupported by facts, which has been submitted as evidence. The Third District Appellate court, reversing a trial court's order, based, at least in part by affidavit, stated that affidavits are not competent evidence and should not have been considered by the court as a trier of fact. In the Matter of the Estate of Hartman. 65 Ill. App. 3d 380, 381 N.E. 2d 1221, 21 Ill. Dec. 677 (3rd Dist. 1978).

However, although the court is permitted to relax the rules of evidence in a Frye hearing, the court erred in relying upon these affidavits because such devices are not as widely accepted and used by these law enforcement agencies and other agencies as represented by Defendants. Unfortunately, since this court scheduled the Frye Hearing during trial, Plaintiffs had no opportunity to investigate and repair its response to Defendants' evidence. The record will reflect that Plaintiffs requested an early Frye Hearing, but the court refused to schedule the Frye Hearing in advance of trial because of Defendants unavailability. This was to the extreme prejudice of Plaintiffs, as the admission of this evidence comprised the entire defense of this case, to the extreme prejudice of Plaintiffs, and changed the outcome of the trial.

The trial court also relied upon numerous representations of Defendants as to the acceptance of the SDM-R in its field, such as Vetronix, which the Court found had equipment to download data from the 1996 Chevrolet Cavalier, which was now available to all researchers and investigators. (Page 274, Frye Hearing). This fact was testified to by Defendants' witnesses. However, a fax to Plaintiffs' counsel from Vetronix, dated December 27, 2000, consisting of five pages, does not list the 1996 Chevrolet Cavalier as a vehicle that can be downloaded. Further, the tool sold by Vetronix to download other vehicles did not become available until March of 2000, approximately 3 1/2 years after this accident. Thus, the finding by the Court that this tool was available in 1996 and prior to this trial is untrue, and further the finding of this court that this tool was accepted in the field and available to numerous law enforcement agencies and other entities is also untrue. Therefore, the court's findings thereto were based and predicated upon hearsay contained in those affidavits, which were only partly true and relevant, but certainly remote to this case, even if available today. (Attached hereto, marked as Exhibit “A,” made a part hereof and incorporated herein is the fax, dated December 27, 2000, from Vetronix).

The trial Court's findings included, pursuant to the affidavit of Donald Floyd, that NHTSA, Transport Canada, Insurance Institute for Highway Safety, the Illinois State Police, the Michigan State Police, the California Highway Patrol and the Massachusetts State Police all use this equipment. (Page 274-275, Frye hearing). The affidavit of Donald Floyd specifically states that the Vetronix Crash Data Retrieval (CDR) was not available until March 2, 2000. (Paragraph 8); since March of 2000, Donald Floyd states that the CDR became available to download older vehicles, including the 1996 Chevrolet Cavalier. (Paragraph 11). The trial Court erred in considering this information in the Frye hearing for two reasons: firstly, it was 3 1/2 years or more from the date of this accident, which was November 6, 1996, and irrelevant to the Frye hearing for remoteness; and, secondly, the affidavit of Donald Floyd does not state when after March of 2000 it became available. Clearly, the admission of such evidence at trial that these law enforcement agencies and entities used this device was extremely prejudicial to Plaintiffs. For obvious reasons, this evidence should not have been considered by the Court in its decision at the This testimony was repeated time and again at this trial, and also, should not have been considered by the Court in the Frye hearing, nor admitted into evidence at the trial.

Defendants also represented to the Court by the affidavit of Donald Floyd that various agencies purchased and used the equipment in law enforcement, governmental agencies such as NHTSA and other entities. (See page 5-6, Floyd affidavit). NHTSA did not purchase and use the tool for downloading, as represented to the court, but, from time to time, cooperated with General Motors in its investigation; further, the certified copies of the Committee Meeting Minutes clearly reveal that there was no general acceptance and the Working Committee could not even make recommendations to NHTSA, but only gather information. Made a part hereof and incorporated herein by reference are the five certified NHTSA Committee Meeting Minutes, copies of which are attached to Plaintiff's Reply to Defendant's Brief in Opposition to Plaintiff's Motion in Limine # 2 and Plaintiff's Supplemental Response which has been previously filed in the record in this case.

Again, the trial Court erred in considering the affidavit and information therein in its findings, as it is irrelevant and immaterial to the Frye hearing because of its remoteness to this accident. Further, Plaintiffs have been advised that the Illinois State Police have not purchase such a device as of January 9, 2001. (Attached hereto, marked as Exhibit “B,” made a part hereof and incorporated herein is a letter, dated January 9, 2001, from Daniel W. Kent, Deputy Director of the Illinois State Police). The affidavit that the Illinois State Police Department purchased such a device is untrue and false in this regard. Plaintiffs also were informed that the State of Massachusetts has one tool available to it at this time; therefore, representations that the State of Massachusetts routinely used such devices in its investigation of crashes and accidents are, at best, partly true. Plaintiffs have been unable to verify other representations in the affidavit of Donald Floyd at this time. But, clearly, it was error for the Court to consider and base any part of its decision in the Frye Hearing on this affidavit, for the reasons stated herein.

The admission into evidence of the download of the data of Plaintiffs' Sensing and Diagnostic Module (SDM), and opinions emanating therefrom by Defendants' witnesses changed the outcome of this lawsuit and constituted reversible error.

II. THAT THE TRIAL COURT ERRED IN STRIKING THE OPINION OF PLAINTIFFS' EXPERT. DOUG PAGE, THAT THE INADVERTENT DEPLOYMENT OF THE AIR BAG CAUSED THIS ACCIDENT, WITHOUT OBJECTION OF DEFENSE COUNSEL AND INSTRUCTING THE JURY TO DISREGARD THAT OPINION. WHICH WAS

TANTAMOUNT TO A DIRECTED FOR DEFENDANTS ON THE ISSUE OF LIABILITY.
A. THE TRIAL COURT CANNOT BE AN ADVOCATE FOR A PARTY.

The trial Court, sua sponte, after the direct examination and cross-examination of Plaintiffs' expert, Doug Page, had been concluded, and the jury having recessed, advised counsel, outside the presence of the jury, that the Court was going to strike the opinion of Plaintiffs' expert that the driver's air bag inadvertently deployed and struck Plaintiff and caused her to lose control and collide with a truck approaching in the opposite direction; the Court also advised counsel that the Court would instruct the jury, upon reconvening, that the jury was to disregard the aforesaid opinion, as that opinion was stricken.

Counsel for Plaintiffs objected, and also informed the Court that striking this opinion and advising the jury to disregard that crucial opinion was tantamount to directing a verdict for Defendant. Plaintiffs' objection was over-ruled, and the Court advised the jury that Doug Page's opinion as to causation was stricken and to disregard it.

The jury had to be as shocked by the ruling of the Court as Plaintiffs. The jury did not hear any objection from defense counsel. Therefore, the jury could have concluded that this was the judgment of the Court. A judge cannot be an advocate. Yetton v. Henderson, 190 Ill. App. 3d 973, 546 N.E. 2d 1000, 137 Ill. Dec. 887 (3rd Dist. 1989). The authority and power of the trial judge is incalculable. The jury may well have concluded the testimony of Plaintiff, Danielle L. Bachman, was not credible since Plaintiffs' expert, Doug Page, testified that he relied upon her testimony as one of the bases and reasons for his opinion that Plaintiff's automobile was caused to collide with the truck as a result of the driver's inadvertent air bag deployment. In any event, Doug Page was Plaintiffs' only witness on proximate cause of Plaintiffs' driver's air bag inadvertently deploying and causing this accident. Nothing Plaintiffs could do thereafter could persuade this jury to believe the testimony of Plaintiff, Danielle L. Bachman, or infer that the inadvertent deployment of her driver's air bag caused this accident.

B. PLAINTIFFS' EXPERT. DOUG PAGE, DID RELY UPON SCIENTIFIC EVIDENCE FOR THIS OPINION

The Court knew that Plaintiff's expert, Doug Page, relied upon scientific evidence, among the bases and reasons for such opinion, and previously stating on the record that this particular opinion, as well as others proffered by Doug Page, were predicated upon the “Bates” stamped documents. After the jury was dismissed for the day, the Court stated on the record that Plaintiff's expert, Doug Page, “disavowed” his previous testimony in his discovery deposition that he relied upon the “Bates” stamped documents. Therefore, the Court erroneously struck Doug Page's opinion number two for not mentioning that this particular opinion was based upon the “Bates” documents, as well as witness testimony, including the discovery deposition of Plaintiff, Danielle L. Bachman. Indeed, this opinion was not disavowed by Doug Page; he merely failed to mention it, although the record will show that he reviewed and relied upon all the “Bates” stamped documents, which documents were approximately 18,000 in number. Further, prior to obtaining the proffered opinion evidence of Plaintiffs' expert, Doug Page, Doug Page testified that he reviewed, among other documents, all of the “Bates” stamped documents; subsequent to proffering his opinions, Doug Page testified that all of his opinions were based upon a reasonable degree of engineering certainty. Clearly, the Court could have asked Mr. Page if there were any other bases and reasons he relied upon, or, alternatively, whether he relied upon the “Bates” stamped documents in the formation of this opinion. The Court chose not to ask Plaintiffs' only liability expert any of these questions or attempt to cure or give counsel for Plaintiffs an opportunity to cure any such defect when the Court knew full well that this witness previously testified that he did rely upon the “Bates” stamped documents.

The Court permitted Doug Page's opinion number one, which opinion was that the driver's air bag inadvertently deployed in this accident, which was based upon review of the “Bates” stamped documents. Merely because Doug Page's second opinion went on to say that the driver's air bag struck Plaintiff and caused her to lose control and collide, does not mean that this opinion is separate and distinct from opinion number one because his second opinion added the words that “the air bag struck her, caused her to loss control and strike another vehicle.” Consequently, even though the Court knew in denying Defendants' Motion to Bar Plaintiffs Expert that Doug Page relied upon the “Bates” stamped documents, Doug Page's second opinion really was part of opinion number one.

C. AN EXPERT IS PERMITTED TO TESTIFY AS TO REASONABLE INFERENCES DEDUCED FROM EXPERT OPINIONS.

While a witness may normally only testify as to facts within his personal knowledge, an exception is made for opinions of experts in which they may draw inferences from facts which jurors would not be competent to draw; the safeguard on the reliability of such expert testimony is that the experts opinions must be based upon facts adduced or to be adduced and not on “mere conjecture.” Forney v. Calvin. 35 Ill App. 3d 32, 340 N.E. 2d 603 (1st Dist. 1975). It is error to rule that testimony of an expert witness is inadmissible because it did not meet the standard of certainty that applies to plaintiffs' overall burden of proof. Hawn v. Fritcher, 301 Ill. App. 3d 248,234 Ill. Dec. 497, 703 N.E. 2d 109 (4th Dist. 1998).

An expert's opinion as to the cause of an injury is not improper or inadmissible because it is couched in terms or probabilities or possibilities based upon certain assumed facts. An expert may testify as to what might be the cause of the injury despite any objection that his testimony is inconclusive or speculative. Counsel may draw the jury's attention to possible deficiencies in the expert's inferences and the information the expert relied upon. Most importantly, the jury, once aware of any infirmities in the expert's opinion, can determine his credibility. An expert, when referring to the cause of an occurrence, may couch his answer in terms of “possibility.” Use of the word “possibility” in conjunction with causation does not automatically render the expert's answer inadmissible or improper. Nor does the use of the word “possibility” in connection with causation render the expert's testimony speculative or inconclusive. McKenzie v. S K Hand Tool Corp. 272 Ill. App. 3d 1, 208 Ill. Dec. 918, 650 N.E. 2d 612 (5th Dist. 1995). Also, see Trial Handbook for Illinois Lawyers. Civil, 7th Edition, Robert S. Hunter, Cumulative Supplement, August 2000, Section 42:19(1) Expert opinion as to cause of injury New.

D. THE TRIAL COURT COULD HAVE PROPERLY INQUIRED OF PLAINTIFFS' EXPERT, DOUG PAGE. IF THERE WERE ANY OTHER RASES OR REASONS FOR HIS OPINION, WHILE IN THE WITNESS CHAIR. RATHER THAN WAIT UNTIL DIRECT EXAMINATION, CROSS-EXAMINATION AND REDIRECT HAD BEEN COMPLETED. THE WITNESS EXCUSED, AND JURY DISMISSED FOR THE DAY'S PROCEEDINGS, BEFORE ADVISING PLAINTIFFS' COUNSEL THAT THIS OPINION WOULD BE STRICKEN AND THE JURY INSTRUCTED TO DISREGARD THE PROXIMATE CAUSE OPINION OF PLAINTIFFS' EXPERT.

It is the function of the trial court to ensure the parties before the Court have a fair and just trial. Since the trial court knew that it would strike this opinion of Doug Page, which was the only proximate cause testimony of Plaintiffs' only engineer in this product liability action, the Court should have intervened to ensure a fair trial, particularly, when the trial Court well knew that Plaintiffs' expert, Doug Page, relied upon the “Bates” stamped documents in proffering this opinion in his discovery deposition, which this Court accepted as a basis for denying Defendants' Motion to Bar. Further, the trial court, on its own motion, based its ruling upon the fact that Doug Page “disavowed” opinion number two, which is the opinion in question. The word “disavow” means to repudiate and deny a fact that is true. Here, Doug Page did not disavow this particular opinion. He merely failed to mention the “Bates” stamped documents as one of the bases or reasons for this opinion. However, Doug Page did state that he reviewed all of the “Bates” documents, which numbered approximately 18,000, prior to proffering his opinions, which included opinion number 2.

Unfortunately, after the jury was dismissed for the day and the Court advised counsel for the parties of this ruling upon the Court's own motion, Doug Page could not be recalled to cure such defect. Doug Page testified on Wednesday, November 15, 2000, and departed from Peoria to Minneapolis at approximately 6:00 p.m. that evening. At 7:00 a.m. the next morning Doug Page had a biopsy for a serious medical condition from which he immediately went into a coma and died on December 1, 2000.

As an aside, if this Court had any doubt as to the impact of its ruling in striking Doug Page's opinion in question, and advising the jury that the Court was striking said opinion and instructing the jury to disregard said opinion, the Defendants withdrew their offer of $1,000,000.00, minutes after the Court's ruling and never made a reoffer of settlement thereafter.

The Court's motion, sua sponte, was contrary to law. Experts are permitted to testify to reasonable inferences that emanate from their opinions. Here, the Court permitted Plaintiffs' expert, Doug Page, to testify that the air bag on Plaintiffs' 1996 Chevrolet Cavalier inadvertently deployed, and his opinion that the air bag struck her, caused her to lose control, and collide with a truck, is a reasonable inference that emanates from the inadvertent deployment of the air bag.

The Motion to Strike by the Court, sua sponte, and the Court's instruction to the jury to disregard the opinion of Plaintiffs' expert, Doug Page, constitutes extreme prejudice and reversible error.

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