dissenting:
I respectfully dissent. I believe the trial judge abused his discretion, and I would reverse his order granting a new trial. See KeefeShea Joint Venture v. City of Evanston, 364 Ill. App. 3d 48, 61 (2005). It is clear from the November 22, 2006, order granting the new trial, which the majority quotes in its entirety above, that the trial judge based his ruling solely on two issues: the “fleeting” display of the billboard photo and the purported discovery violation discovered after the trial.
With regard to the purported discovery violation, the judge based his ruling on the failure of the defendants “to provide complete information to the plaintiffs,” reasoning that “[cjomplete discovery could well have been used to attack the impartiality of [Dr. Olanow] and resulted in a different outcome.” The majority upholds this ruling by concluding that because the defendants’ experts cited studies funded in part by the defendants, the “undisclosed” (385 Ill. App. 3d at 258) exact amount of the funding by the defendants — in the neighborhood of $600,000 — could have been used by Boren to challenge the impartiality of one of the defendants’ key witnesses, Dr. Olanow. There are two major problems with this reasoning: first, there is no factual support for the proposition that any discovery violation occurred, and second, even if this court were to assume, arguendo, that there was a discovery violation, it is clear from the record that no prejudice to Boren resulted from the alleged violation.
The violation of discovery rules is a serious matter, and I agree with the Illinois Supreme Court that “discovery procedures are meaningless unless a violation entails a penalty proportionate to the gravity of the violation.” Buehler v. Whalen, 70 Ill. 2d 51, 67 (1977). This court gives considerable deference to a trial judge’s decision to impose sanctions for a discovery violation, and we will not reverse that decision absent an abuse of discretion. Cirrincione v. Westminster Gardens Ltd. Partnership, 352 Ill. App. 3d 755, 761 (2004). The predicate to our deference, however, is that the decision to impose sanctions is factually and legally informed and reasoned. Cirrincione, 352 Ill. App. 3d at 761. In this case it is neither.
The first problem with the reasoning of the trial judge, sustained by my colleagues in the majority, is that there is no factual support for the proposition that a discovery violation occurred in this case at all. In the trial court and on appeal, Boren contends that disclosures made on April 20, 2006, in a case in Wisconsin are proof that a discovery violation occurred in this case. In the April 20, 2006, disclosures, defendant ESAB stated that it had provided approximately $294,000 in funding for epidemiological studies “relating to manganese in welding products or fumes or neurological problems in welders” conducted “between 2001 and 2005,” and defendant Lincoln Electric stated that it had provided approximately $296,000 in funding for epidemiological studies “relating to manganese in welding products or fumes or neurological problems in welders” conducted “between 2001 and 2005.” As noted above, the trial in this case took place in November and December 2005. At the hearing on his motion for a new trial, Boren provided no evidence that the information disclosed in the Wisconsin case on April 20, 2006, was available to the defendants at the time of this trial and thus could have been disclosed. In the absence of proof that the information was available to the defendants at the time of the trial in this case, I would not conclude, as did the trial judge and as does the majority, that a discovery violation occurred. Unsubstantiated conclusions argued by Boren’s counsel are not sufficient.
A second and more troubling problem with the reasoning of the trial judge, sustained by my colleagues in the majority, is that even if this court were to assume, arguendo, that there was a discovery violation in this case, it is clear from the record that no prejudice to Boren resulted from the alleged violation. As the appellate court has stated, a trial court abuses its discretion when it grants a new trial on the basis of a discovery violation where the party aggrieved by the violation fails to show any prejudice resulting from the violation. Tinsey v. Chicago Transit Authority, 140 Ill. App. 3d 546, 549 (1986). That is because, as the Tinsey court pointed out, “the trial court’s discretionary power must be exercised with great care, with a view toward achieving the goals of providing the parties with complete discovery and a full trial on the merits,” and the sanction of granting a new trial when the violation has not resulted in prejudice “is far out of proportion” to the gravity of the defendants’ violation. 140 Ill. App. 3d at 549.
In the case at bar, I fail to see how the defendants’ failure to disclose the exact amount of funding they provided to studies could reasonably be said to have prejudiced Boren’s ability to challenge the impartiality of Dr. Olanow. In the opening minutes of his testimony, Dr. Olanow stated that of the “maybe thirty, forty, fifty million dollars” in funding he had received during his career to fund his research, “some” of that funding was received from the welding industry, a statement that alerted the jury, at the outset of Dr. Olanow’s testimony, that issues regarding his impartiality might exist. Moreover, during direct examination Dr. Olanow also testified that his own study finding no link between welding fumes and Parkinson’s disease had been funded by the welding industry and that he did not know who had funded the other nine studies finding no such link. After discussing other studies that contrasted Parkinson’s disease and “manganism,” Dr. Olanow testified that none of those studies had been funded by the welding industry. He was specifically asked by defense counsel how long he had “consulted with people like myself in the welding rod companies,” how much he charged per hour and per day to consult, and how much money he personally had received from the welding industry over the course of the 16 years he had been consulting on welding issues. To this last question, Dr. Olanow testified that he had received “probably in excess of a million dollars,” three-quarters of which was paid directly to him and one-quarter of which was used to fund his own study finding no link between welding fumes and Parkinson’s disease.
On cross-examination, Dr. Olanow testified extensively about his early meetings with attorneys about the issue of welding fumes, during which time Boren’s counsel repeatedly highlighted the fact that these attorneys represented the welding industry. Dr. Olanow also agreed that he had received approximately $1.25 million from the welding industry, a clarification of the amount “probably in excess of a million dollars” he had testified to on direct examination. Boren’s counsel then reiterated the $1.25 million figure many times during the remainder of his cross-examination. Dr. Olanow also testified that his opinions were “derived based on the scientific data, not based on what a lawyer says,” and that the funding he had received did not influence his opinions. He then testified extensively about various studies and study proposals, as well as the sources of funding for those studies and study proposals, indicating that attorneys for the welding industry had agreed to fund millions of dollars in studies, including at least $1.4 million to fund a study led by Dr. Carli Tanner. He was also examined extensively and in minute detail about studies that purportedly did find a link between welding fumes and Parkinson’s disease, including the fact that those studies were not funded by attorneys. Moreover, he was questioned extensively about the necessity of disclosing potential conflicts of interest arising from sources of funding when submitting papers to scholarly journals, which led to attempts by Boren’s counsel to imply that Dr. Olanow had failed to disclose conflicts of interest he should have disclosed. Throughout cross-examination, Boren’s counsel was unable to get Dr. Olanow to renounce his conviction that there is no link between welding fumes and Parkinson’s disease or to admit that he had ever acted unethically or failed to disclose a conflict of interest.
On redirect examination, Dr. Olanow again testified that his opinions were based on science and were not for sale, and he explained in detail the medical and scientific bases for his disagreement with studies that suggested a link between welding fumes and Parkinson’s disease.
Against this factual backdrop, I fail to see how the defendants’ failure to disclose the exact amount of funding they provided to studies could reasonably be said to have prejudiced Boren. Boren’s counsel was able to repeatedly inform the jury that the welding industry, via their attorneys, had funded the studies relied upon by the defendants’ witnesses and to therefore cast doubt upon the objectivity of those studies, as well as of witnesses such as Dr. Olanow, using figures far in excess of the approximately $600,000 that defendants ESAB and Lincoln Electric had not specifically disclosed. I do not agree with the trial judge and the majority that knowing the exact amount that these defendants contributed to that funding could possibly have changed the outcome in this case. In light of this absence of prejudice, I believe that the judge’s sanction of granting a new trial was far out of proportion to the gravity of the defendants’ discovery violation — assuming, arguendo, that one occurred — and was therefore unreasonable.
With regard to the billboard issue, the judge noted in his order that he initially believed that his admonishment to the jury was sufficient to cure any prejudice that might have resulted from the “fleeting” display of the photo and that accordingly he had denied Boren’s request for a mistrial on the basis of the display of the photo. Indeed, even after reviewing “all the evidence after the first motion,” the judge “felt some reluctance in disturbing [his] judgment at that point.” Comments made from the bench by the judge during the second hearing on the motion for the new trial reiterate the reluctance found in the judge’s order. The judge’s reluctance is not surprising in light of the fact that the Illinois Supreme Court has long held that a jury is presumed to have followed a judge’s instruction to disregard improper evidence (see, e.g., McDonnell v. McPartlin, 192 Ill. 2d 505, 535 (2000), citing People v. Taylor, 166 Ill. 2d 414, 438 (1995)) and that where the exposure of the jury to improper evidence “was brief, [was] devoid of any specifics, and occurred during the course of lengthy and complex proceedings” and has been followed by a curative instruction, there are no grounds for a mistrial (McDonnell v. McPartlin, 192 Ill. 2d 505, 535 (2000), citing People v. Jones, 123 Ill. 2d 387, 408-10 (1988)).
It was only after the judge became aware of the purported discovery violation that he reversed his position on the photo issue, found his previous admonishment to no longer be sufficient, and declared Boren’s argument to be “well taken.” Although the majority contends that this court “cannot determine from the record how long the jury viewed” the photo of the billboard (385 Ill. App. 3d at 256), Boren — both in his motion for a new trial and in his brief on appeal— contends the photo was visible for “about one minute,” the judge himself admitted the viewing was “fleeting,” and as noted above this was a five-week trial. Given these facts and the cases cited above, I do not believe it to be reasonable to take the view that a discovery violation that was not proven to have occurred and that in any event did not prejudice Boren could nevertheless render insufficient a previously adequate admonishment on the entirely unrelated matter of the “fleeting” observation — encompassing about one minute during the course of a five-week trial — by the jury of a purportedly inadmissible photograph.
Although the majority contends that the defendants’ reference in closing argument to welding lawsuits as a “cottage industry,” in violation of the motion in limine, “compounded” the prejudicial effect of the billboard photo (385 Ill. App. 3d at 256), it bears repeating that Boren did not object to any closing argument comments at the trial and did not object to the “cottage industry” comments in his motion for a new trial. Nor did Boren ever specifically mention the “cottage industry” comments during the May 18, 2006, hearing on his motion for a new trial. The record reflects that this phrase was mentioned in passing only twice during a two-hour-long closing argument. Accordingly, there is absolutely no evidence that the trial judge based his ruling in any part on the use of this phrase or even noticed that the phrase had been made. Because there is no evidence that the “view” taken by the trial judge in the order we are reviewing was based on the passing “cottage industry” comments made in closing argument, I do not believe that those comments warrant any consideration in our analysis of whether that “view” was reasonable. Indeed, the majority itself states that it cannot conclude “that the cumulative effect of the errors noted by the circuit court did not affect the verdict.” (Emphasis added.) 385 Ill. App. 3d at 254. Had this issue been perceived as prejudicial by either Boren’s counsel or the trial judge, surely there would have been an objection or admonishment.
If, however, the panel is to consider the comments, I would note that in a prior decision in our district, our court held that because “attorneys are allowed broad latitude in closing argument,” even remarks that violate a motion in limine only warrant a reversal if the remarks prevented a party from receiving a fair trial. Elam v. Lincoln Electric Co., 362 Ill. App. 3d 884, 900 (2005). The majority’s holding in the case at bar is inconsistent with Elam. Like the comments in Elam— which was another welding case involving many of the same attorneys present here and which included sarcastic and derisive comments by counsel for the plaintiff to the effect that defense counsel were “ ‘Chicago lawyers’ ” who would use “ ‘slick’ ” tactics and “ ‘trick[s]’ ” (362 Ill. App. 3d at 900) — I would find the unobjected-to remarks in this case to fall far short of prejudicial error.
I do not believe that it is reasonable to take the view adopted by the trial judge in his order granting a new trial. To the contrary, close scrutiny of the view adopted by the trial judge, and of the record as a whole, leads to the conclusion that the reasons given by the judge are insufficient and that the order really amounts to nothing more than an opportunity for a plaintiff who did not prove his case to have another bite at the apple. Accordingly, I would reverse the order. Because my colleagues have decided to do otherwise, I respectfully dissent from their decision.