{ "id": 4267629, "name": "ELVIN GONZALEZ et al., Plaintiffs-Appellants, v. NISSAN NORTH AMERICA, INC., et al., Defendants-Appellees", "name_abbreviation": "Gonzalez v. Nissan North America, Inc.", "decision_date": "2006-12-04", "docket_number": "No. 1\u201405\u20143539", "first_page": "460", "last_page": "471", "citations": [ { "type": "official", "cite": "369 Ill. App. 3d 460" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "652 N.E.2d 803", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "807" }, { "page": "807" }, { "page": "807" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258600 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "359" }, { "page": "359" }, { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0353-01" ] }, { "cite": "412 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "610" } ], "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 881", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5541374 ], "year": 1980, "pin_cites": [ { "page": "884" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0881-01" ] }, { "cite": "588 N.E.2d 1193", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1278", "parenthetical": "indicating expert witness should have been precluded from testifying where his opinion was not timely disclosed" } ], "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5244900 ], "year": 1992, "pin_cites": [ { "page": "920", "parenthetical": "indicating expert witness should have been precluded from testifying where his opinion was not timely disclosed" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0882-01" ] }, { "cite": "334 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2710579 ], "year": 1975, "pin_cites": [ { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0851-01" ] }, { "cite": "817 N.E.2d 1068", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1073" } ], "opinion_index": 0 }, { "cite": "352 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5455989 ], "year": 2004, "pin_cites": [ { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/1015-01" ] }, { "cite": "15 U.S.C. \u00a72301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "702 N.E.2d 274", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "277" }, { "page": "278" }, { "page": "277" }, { "page": "279" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221467 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "1052" }, { "page": "1052" }, { "page": "1052" }, { "page": "1054-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/1048-01" ] }, { "cite": "402 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226918 ], "year": 1980, "pin_cites": [ { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1031-01" ] }, { "cite": "651 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1081" }, { "page": "1081" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198891 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "68" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0048-01" ] }, { "cite": "493 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "1124" }, { "page": "1128" }, { "page": "1128" }, { "page": "1128" } ], "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5666347 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "796-97" }, { "page": "803" }, { "page": "803" }, { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0791-01" ] }, { "cite": "612 N.E.2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "974" }, { "page": "974" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108040 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "948" }, { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0940-01" ] }, { "cite": "732 N.E.2d 1129", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "1134" }, { "page": "1134" }, { "page": "1134" } ], "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980737 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "244" }, { "page": "244" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0238-01" ] } ], "analysis": { "cardinality": 1160, "char_count": 27377, "ocr_confidence": 0.747, "pagerank": { "raw": 6.918322759571925e-08, "percentile": 0.4201266174205523 }, "sha256": "e1decf69ca4e85f7285d3daa3fd360ea6b54fe6fd9fe1ede7085cafdf5138a8f", "simhash": "1:423039e8bfe1e4b7", "word_count": 4416 }, "last_updated": "2023-07-14T20:04:07.948493+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELVIN GONZALEZ et al., Plaintiffs-Appellants, v. NISSAN NORTH AMERICA, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE McBRIDE\ndelivered the opinion of the court:\nPlaintiffs appeal from an order of the circuit court of Cook County dismissing their action with prejudice as a sanction pursuant to Supreme Court Rules 137 and 219. 155 Ill. 2d R. 137; 166 Ill. 2d R. 219. Plaintiffs contend their attempt to refresh a trial witness\u2019 recollection with a document that plaintiffs did not disclose to defendants during discovery was not a violation of the discovery rules or an order in limine barring use of undisclosed documents at trial and that, even if plaintiffs\u2019 conduct was improper, it did not warrant such an extreme sanction.\nBefore addressing the arguments on appeal, we note numerous omissions in plaintiffs\u2019 opening brief and the record on appeal. For instance, introductory sections of plaintiffs\u2019 brief, which are mandated by Supreme Court Rule 341(e)(1) and entitled \u201cPoints and Authorities\u201d and \u201cIssues Presented for Review,\u201d indicate that plaintiffs addressed only the Rule 137 grounds for the dismissal, thus conceding the propriety of the dismissal pursuant to the other rule cited by the trial judge, Rule 219. 188 Ill. 2d R. 341(e); 155 Ill. 2d R. 137; 166 Ill. 2d R. 219. Further review of the brief discloses plaintiffs actually addressed both bases for dismissal and that the introductory sections of the brief are simply incomplete. Nevertheless, the additional review also reveals plaintiffs copied entire passages from the trial transcripts and that the quotations take up 10 full pages of the brief. This briefing style is cumbersome and violates the provision in Supreme Court Rule 341(e) that an appellant is to state only \u201cthe facts necessary to an understanding of the case *** with appropriate references to the pages on appeal,\u201d and that \u201c[ejvidence shall not be copied at length, but reference shall be made to the pages of the record on appeal *** where evidence may be found.\u201d 188 Ill. 2d Rs. 341(e)(6), (e)(7). Moreover, the brief relies heavily on a fact that is not supported by citation to the record, specifically that the document which plaintiffs failed to disclose to defendants was authored by defendants and therefore always in defendants\u2019 possession. Along those same lines, but even more egregious, is that plaintiffs never cite the page or pages of the record containing the sanction order on appeal and we were unable to locate the order in the record or in the appendix to plaintiffs\u2019 brief. Supreme Court Rule 321 obligated plaintiffs to provide the order appealed from (155 Ill. 2d R. 321), Supreme Court Rule 329 authorized plaintiffs to subsequently correct \u201c[mjaterial omissions\u201d from the record transmitted to the appellate court (134 Ill. 2d R. 329), Supreme Court Rule 342 obligated plaintiffs to compile an appendix of \u201cany pleadings or other materials from the record which are the basis of the appeal or pertinent to it\u201d (155 Ill. 2d R. 342), and Supreme Court Rule 341(e)(7) obligated plaintiffs to cite \u201cthe pages of the record relied upon\u201d for their arguments (188 Ill. 2d R. 341(e)(7)). Plaintiffs state in their opening brief that the written sanction order lacked specificity and defendants do not disagree with this characterization of the order. A lack of detail, however, does not justify plaintiffs\u2019 failure to provide a complete record, a complete brief, or basic supporting citation for their arguments. The brief writer\u2019s failure to follow the appellate rules makes it difficult to conduct our review. Given the deficient brief and record, it would be within our discretion to affirm the sanction order without further comment. Even so, we have read the transcripts of the three-day trial, determined they adequately convey the conduct at issue, and decided to rule on the merits of the sanction.\nRule 137 provides that an attorney\u2019s signature on a pleading, motion, or other paper is the attorney\u2019s certification that he or she has read the motion and\n\u201cthat to the best of his knowledge, information, and belief formed after reasonable inquiry it is well ground in fact and is warranted by existing law or a good-fath argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\u201d 155 Ill. 2d R. 137.\nThe rule authorizes the court, upon motion or upon its own initiative, to impose on a represented party, an attorney, or both, \u201can appropriate sanction.\u201d 134 Ill. 2d R. 137. The decision to impose sanctions under Rule 137 is entrusted to the sound discretion of the trial court, is \u201cafforded considerable deference\u201d on appeal, and will be overturned only where the appellate record discloses an abuse of discretion. Technology Innovation Center, Inc. v. Advanced Multiuser Technologies Corp., 315 Ill. App. 3d 238, 244, 732 N.E.2d 1129, 1134 (2000). An abuse of discretion occurs where the trial court\u2019s finding is against the manifest weight of the evidence or where no reasonable person would adopt the same view. Technology Innovation Center, 315 Ill. App. 3d at 244, 732 N.E.2d at 1134. Accordingly, a reviewing court considers whether the imposition of sanctions was informed, based on valid reasoning, and follows logically from the facts. Technology Innovation Center, 315 Ill. App. 3d at 244, 732 N.E.2d at 1134.\nRule 219 addresses the consequences of refusing or failing to comply with discovery rules or orders. Subsection (c) of the rule specifies that if a party\n\u201cunreasonably fails to comply with [the discovery rules] or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere provided, such orders as are just, including, among others, the following:\n^\n(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;\n(iv) That a witness be barred from testifying concerning that issue;\n(v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party\u2019s action be dismissed with or without prejudice[.]\u201d 166 Ill. 2d R. 219(c).\nFurther, \u201c[i]n lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include *** a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty.\u201d 166 Ill. 2d R. 219.\nA sanction may be imposed regardless of whether omissions in discovery are intentional or inadvertent. Boettcher v. Fournie Farms, Inc., 243 Ill. App. 3d 940, 948, 612 N.E.2d 969, 974 (1993).\n\u201cA trial court is vested with wide discretionary powers in pretrial discovery matters.\u201d Nehring v. First National Bank in DeKalb, 143 Ill. App. 3d 791, 796-97, 493 N.E.2d 1119, 1124 (1986). Nonetheless, even if a court has determined that a party has not reasonably complied with discovery, and some sanctions are appropriate, the sanctions imposed must be just and proportionate to the offense. Nehring, 143 Ill. App. 3d at 803, 493 N.E.2d at 1128. \u201cThe Illinois courts have determined that dismissal with prejudice is: (1) a drastic punishment which the courts are reluctant to impose [citation]; (2) to be employed only as a last resort in order to enforce the rule of discovery [citation]; [and] (3) an inappropriate sanction where a trial *** can be had without hardship or prejudice [citations].\u201d Nehring, 143 Ill. App. 3d at 803, 493 N.E.2d at 1128. A dismissal with prejudice is so drastic a sanction that it should be employed only when a party has shown a \u201cdeliberate and contumacious disregard for the court\u2019s authority\u201d (Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68, 651 N.E.2d 1071, 1081 (1995)) and all other enforcement measures have failed. Sander, 166 Ill. 2d at 67, 651 N.E.2d at 1081.\n\u201c[A] just order imposing sanctions for failure to comply with discovery is one which, to a degree possible, insures both discovery and trial on the merits. [Citation.] The purpose of providing sanctions for failure to comply with discovery rules is to promote the flow of discovery and not to punish a dilatory or noncomplying party. [Citation.]\u201d Nehring, 143 Ill. App. 3d at 803, 493 N.E.2d at 1128.\n\u201cThe purpose of imposing sanctions under Supreme Court Rule 219(c) is to compel cooperation rather than to dispose of litigation as a means of punishing the noncomplying party. [Citation.] The court may not invoke sanctions which are designed to impose punishment rather than to achieve or effect the objects of discovery. [Citations.] *** [A] sanction for noncompliance with discovery rules or orders under Rule 219(c) should be set aside when a trial on the merits may be held without visiting hardship or prejudice on the parties. [Citation.]\u201d Cedric Spring & Associates, Inc. v. N.E.I. Corp., 81 Ill. App. 3d 1031, 1035, 402 N.E.2d 352, 356 (1980).\n\u201cThe determination of an appropriate sanction is circumstance specific.\u201d Smith v. City of Chicago, 299 Ill. App. 3d 1048, 1052, 702 N.E.2d 274, 277 (1998). \u201cConsequently, the review of such an order must necessarily focus upon the particular behavior of the offending party that gave rise to the sanction and the effects that behavior had upon the adverse party.\u201d Smith, 299 Ill. App. 3d at 1052, 702 N.E.2d at 278. Thus, the general principle that a reviewing court may affirm an order on any basis apparent from the record does not apply to a Rule 219 sanction order. Smith, 299 Ill. App. 3d at 1052, 702 N.E.2d at 277.\nThe record on appeal consists primarily of the parties\u2019 pleadings and trial transcripts, which disclose the following relevant facts. On July 2, 2003, Elvin and Ana Gonzalez filed suit against vehicle manufacturer Nissan North America, Inc., and vehicle dealer Hawkinson Nissan, L.L.C., of Matteson, Illinois, regarding a 2002 Nissan Xterra sport utility vehicle that plaintiffs purchased on June 17, 2002. Plaintiffs alleged the sport utility vehicle had an unremediated defect that caused it to pull to the right during driving or braking. The complaint included claims of breach of express and implied warranties, under the federal Magnuson-Moss Warranty \u2014 Federal Trade Commission Improvement Act (15 U.S.C. \u00a72301 et seq. (2000)) and consumer revocation of acceptance of nonconforming goods, under the state codification of section 2 \u2014 608 of the Uniform Commercial Code (810 ILCS 5/2 \u2014 608 (West 2002)). Plaintiffs\u2019 suit proceeded to trial by jury on September 6, 2005. Before the presentation of evidence, the trial judge granted defendants\u2019 motion in limine \u201cto bar plaintiffs from calling any witness not timely and properly disclosed and barring plaintiffs from utilizing documents not properly disclosed.\u201d Although plaintiffs\u2019 written motion in limine and the trial judge\u2019s written order in limine were not included in the record on appeal, various transcripts that were tendered for our review substantiate that the trial judge made this ruling in limine.\nOn September 7, 2005, the second day of the trial, plaintiffs called their automotive expert, Phillip J. Grismer, to the witness stand. The substance and scope of Grismer\u2019s testimony had been previously disclosed to defendants pursuant to Supreme Court Rule 213(f)(3). 210 Ill. 2d R. 213(f)(3). In relevant part, the rule requires a proponent to identify its controlled expert witnesses and to disclose \u201c(i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and bases therefor, (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.\u201d 210 Ill. 2d R. 213(f)(3). Also relevant here is Supreme Court Rule 222 which, stated broadly, requires parties to disclose and produce the factual basis of their claim or defense. 166 Ill. 2d R. 222. The rule expressly provides: \u201c(g) Exclusion of Undisclosed Evidence. In addition to any other sanction the court may impose, the court shall exclude at trial any evidence offered by a party that was not timely disclosed as required by this rule, except by leave of court for good cause shown.\u201d 166 Ill. 2d R. 222(g).\nUnder plaintiffs\u2019 direct examination, Grismer testified that in March 2004, he \u201cvisually inspected\u201d plaintiffs\u2019 vehicle in a parking lot, measured the tread depth, condition, and air pressure of the tires, and then took a test drive. After this \u201cnon-invasive inspection [where] nothing was taken apart, [and] the vehicle was not hoisted,\u201d Grismer concluded the Xterra had \u201cdefective suspension geometry\u201d which could be attributable to a bent or loose component or \u201csimply something that\u2019s out of adjustment\u201d and that this defect diminished the value of the vehicle by 30% of the suggested retail price.\nOn cross-examination, Grismer was asked about the report about plaintiffs\u2019 vehicle which he prepared and plaintiffs tendered to defendants as part of plaintiffs\u2019 supplemental Rule 222 disclosures. 166 Ill. 2d R. 222. In particular, Gismer was asked about the reference in his narrative report to a \u201ctechnical service bulletin\u201d about Nissan vehicles. Technical service bulletin \u201c00 \u2014 037B\u201d consisted of a one-page exhibit attached to Grismer\u2019s report. This document indicated most United States roads are built with a \u201c \u2018crown\u2019 \u201d or higher elevation in the center to \u201chelp rain water drain from the road surface,\u201d \u201cvehicles have a natural tendency to drift to the low side of the crown,\u201d and vehicles are designed with \u201ca small amount of counteracting left pull.\u201d Grismer testified that he obtained technical service bulletin 00 \u2014 037B from an Internet site, www.alldatapro.com; however, three or four additional pages of the bulletin were missing from the exhibit in defense counsel\u2019s hands. Defendants objected and a sidebar conference was had outside the presence of the jury.\nDuring the sidebar, defendants informed the court that the technical service bulletin attached to Grismer\u2019s report which plaintiffs produced during discovery consisted of only one page. Defendants reminded the court of its order in limine barring any witness from utilizing or referencing any document not seasonably produced and asked the court to strike Grismer\u2019s last comment and admonish him outside the jury\u2019s presence that documents which were subject to the order in limine should not be utilized or referenced. Plaintiffs admitted they disclosed to defendants only one page of the technical service bulletin Grismer was relying on, that \u201c[t]he following three pages were not [disclosed],\u201d and that plaintiffs and Grismer realized the omission the day before when they were going over Grismer\u2019s testimony. Plaintiffs emphasized, however, that the bulletin was brought up only during cross-examination by defendants, and plaintiffs argued that they were not in violation of the order in limine because they had not asked Grismer about the undisclosed document during direct examination and did not try to admit the multiple pages into evidence. The trial judge responded that plaintiffs were under a duty to seasonably supplement discovery, and although it would not have been timely, plaintiffs should have nevertheless disclosed the missing pages immediately upon learning of their omission or at least \u201cthis morning prior to the start of the [second day of] trial.\u201d Further, \u201cto simply not say anything about it and not seasonably supplement is a violation [of the discovery rules].\u201d The judge asked defendants to suggest a resolution to the problem and defendants proposed plaintiffs stipulate only one page had been produced during discovery and the jury be instructed to disregard any testimony indicating there were additional pages to the technical service bulletin. Plaintiffs agreed and so stipulated, and when the judge and lawyers returned to the courtroom, the jury was informed the technical service bulletin \u201ccontained only one page\u201d and that Grismer\u2019s reference to multiple pages should be disregarded. When cross-examination resumed, Grismer testified without further incident.\nThe next morning, September 7, 2005, plaintiffs resumed their case-in-chief with the testimony of David J. Schend. Schend was employed as a \u201cdealer technical specialist\u201d by defendant vehicle manufacturer Nissan North America, Inc., and his position required him to travel to Nissan dealers in 12 or 13 midwestern states to assist technicians who were having difficulty with certain repairs. Schend spent several hours inspecting plaintiffs\u2019 Xterra for defects.\nDuring direct examination, plaintiffs asked Schend if he was aware of any technical service bulletins regarding plaintiffs\u2019 vehicle and Schend responded that there were numerous bulletins that \u201ccover all sorts of systems and subsystems on the Nissan Xterra over a number of different [model] years\u201d and that he could not recall the details of any particular bulletin. Plaintiffs asked if Schend was aware of a bulletin regarding any steering or pulling condition and Schend responded that he was but could not recall the details of any particular bulletin. In an attempt to refresh Schend\u2019s recollection about the technical service bulletin regarding Nissan vehicles\u2019 steering, plaintiffs began showing Schend the documents that the previous witness, Grismer, obtained from www.alldatapro.com, including the missing pages that plaintiffs were previously barred from \u201cutilizing\u201d at trial because those pages were not seasonably disclosed during discovery. Before counsel could hand the exhibit to Schend, defendants objected, and a sidebar conference was convened.\nDuring the sidebar, plaintiffs argued that because Schend was \u201cwell aware of the technical bulletin,\u201d plaintiffs\u2019 use of the document at trial could not cause \u201cprejudice or surprise whatsoever to any defendant in this case\u201d and was not improper. The trial judge found, however, that plaintiffs\u2019 attempt to refresh Schend\u2019s recollection with documents previously barred due to their nondisclosure was \u201ca very, very serious violation of discovery rules, [and] a very serious violation of the Court\u2019s prior ruling.\u201d The trial judge reiterated that plaintiffs had an opportunity before Grismer testified to tender the pages that had been omitted from previous disclosures, but plaintiffs had not acted on that opportunity and had instead committed a discovery violation. In addition, the trial judge found that plaintiffs\u2019 subsequent attempt to use or actual use of the stricken pages was a purposeful, wilful, and wanton violation of the court\u2019s previous order. The trial judge then dismissed plaintiffs\u2019 complaint with prejudice as a sanction pursuant to Supreme Court Rules 137 and 219. 155 Ill. 2d R. 137; 166 Ill. 2d R. 219. The judge and attorneys returned to the courtroom, where the judge announced the disposition of the case and released the jury.\nThis recitation of facts demonstrates that the dismissal order was improper. Rule 137, quoted in relevant part above, concerns the filing of false and frivolous lawsuits (Sanchez v. City of Chicago, 352 Ill. App. 3d 1015, 1020, 817 N.E.2d 1068, 1073 (2004)) or motions or other paper (155 Ill. 2d R. 137), and is not applicable to this case. Rule 219, also quoted in relevant part above, concerns \u201crefusal\u201d or \u201cunreasonable fail[ure]\u201d to comply with discovery or pretrial procedures (166 Ill. 2d R. 219), and is only indirectly applicable because the sanction at issue was imposed primarily because of counsel\u2019s misconduct on the third day of trial rather than during the discovery phase of this litigation. In Day v. Schoreck, 31 Ill. App. 3d 851, 852, 334 N.E.2d 864, 865 (1975), this court indicated that Rule 219 is not a basis for sanctioning conduct that occurs at trial. Even if counsel\u2019s violation of the order in limine was a discovery violation sanctionable under Rule 219(c), the sanction imposed was too harsh and was an abuse of discretion. We reach this conclusion because the record does not indicate a lesser sanction was ineffective, that the dismissal was entered only as a last resort, and that a trial on the merits was no longer possible.\nA Rule 219(c) penalty is expected to be proportionate to the gravity of the discovery violation. Boettcher, 243 Ill. App. 3d at 947, 612 N.E.2d at 974. Here, plaintiffs gained little benefit, if any, from their use of the multipage exhibit. The transcripts show plaintiffs did not rely on the offensive exhibit while examining their expert witness, Grismer. Instead, the technical service bulletin was first mentioned during cross-examination by the defense. When plaintiffs subsequently attempted to use the exhibit with Nissan\u2019s employee, Schend, an objection was made before the jury heard or saw anything about the exhibit. We do not mean to suggest that plaintiffs\u2019 counsel was adhering to the order in limine or that we condone his courtroom conduct. We do, however, point out that plaintiffs\u2019 use of the barred exhibit had minimal impact on the jury members and that a lesser sanction was still possible. Dismissing the action with prejudice not only negated Grismer\u2019s and Schend\u2019s testimony regarding the disclosed page of the technical service bulletin, but also negated their unrelated testimony and the entire testimony of the two plaintiffs. The dismissal precluded a resolution on the merits of plaintiffs\u2019 allegations and the properly disclosed evidence. It is our opinion that a proportionate, effective sanction in this instance could have included barring and striking all witness testimony regarding the technical service bulletin (see, e.g., Betts v. Manville Personal Injury Settlement Trust, 225 Ill. App. 3d 882, 920, 588 N.E.2d 1193, 1278 (1992) (indicating expert witness should have been precluded from testifying where his opinion was not timely disclosed)), and/or imposing a monetary penalty on plaintiffs\u2019 counsel. This type of sanction would have ensured that defendants were not prejudiced by counsel\u2019s conduct and emphasized to plaintiffs that discovery is \u201ca serious phase of litigation\u201d worthy of counsel\u2019s \u201ccareful attention.\u201d Fine Art Distributors v. Hilton Hotel Corp., 89 Ill. App. 3d 881, 884, 412 N.E.2d 608, 610 (1980).\nWalton v. Throgmorton, 273 Ill. App. 3d 353, 652 N.E.2d 803 (1995), was a will contest which the trial dismissed with prejudice as a discovery sanction when the plaintiffs counsel failed to appear at a hearing. The appellate court reversed the sanction in part because there was \u201cnothing in the record to indicate that the court notified [counsel] *** that such a strong sanction would be imposed by his failure to appear.\u201d Walton, 273 Ill. App. 3d at 359, 652 N.E.2d at 807. The court emphasized, \u201cDismissal with prejudice for abuse of the discovery process is the most severe sanction available to the court and is to be employed only as a last resort, and only in those cases where the actions of a party show a deliberate, contumacious, or unwarranted disregard of the court\u2019s authority.\u201d Walton, 273 Ill. App. 3d at 359, 652 N.E.2d at 807. The court reasoned that \u201cwithout some notice to [counsel] that a dismissal was imminent, we cannot find that the dismissal was used only as a last resort.\u201d Walton, 273 Ill. App. 3d at 359, 652 N.E.2d at 807. Similarly, here, there is no indication that counsel was warned that certain conduct could result in the imposition of the most severe sanction possible to his clients. In fact, the trial transcripts suggest that plaintiffs\u2019 counsel was caught off guard. The transcripts disclose that when plaintiffs\u2019 counsel started to show the multipage technical service bulletin to the Nissan witness, the defense objected and the judge and attorneys convened in chambers, outside the jury\u2019s hearing for a sidebar conference. There was apparently a slight lag between the objection and the beginning of the sidebar conference, because when the conference started, defense counsel stated: \u201cAs we were headed back to chambers, plaintiffs\u2019 counsel indicated to me he was just going to withdraw [the exhibit] and not go any further with this. So if that\u2019s the case, then I don\u2019t think we need to go *** any further.\u201d However, plaintiffs\u2019 attorney responded, \u201cWell, your Honor, we\u2019re here now,\u201d and proceeded to argue that his use of the complete technical service bulletin was not improper. The conference concluded with the dismissal of plaintiffs\u2019 lawsuit. We do not believe plaintiffs\u2019 counsel would have proceeded to argument if he had known a potential outcome was the dismissal of his entire case. Again, we do not mean to suggest that counsel\u2019s conduct was proper or condoned by this court. We do, however, find that the transcript suggests counsel was surprised by the dismissal. Absent some indication in the record that counsel was on notice that dismissal was imminent, we cannot find that the ultimate sanction was imposed as a last resort.\nFinally, this court stated the following regarding Illinois\u2019 public policy of resolving complaints on their merits and the extreme nature of dismissing an action with prejudice, in Smith v. City of Chicago, 299 Ill. App. 3d 1048, 702 N.E.2d 274 (1998):\n\u201cThe underlying spirit of our system of civil justice is that controversies should be determined according to the substantive rights of the parties. This notion is not only intuitive \u2014 it is the articulated public policy of the state. See 735 ILCS 5/1 \u2014 106 (West 1996). Dismissal of an action or the entry of an order of default may be an appropriate sanction for a party\u2019s refusal to obey a valid court order. However, such a drastic sanction, being the antithesis of a determination of a cause on its merits, should be employed only as a last resort after all other enforcement powers at the court\u2019s disposal fail. When, as in this case, sanctions are visited upon a party as vicarious punishment for the acts of her counsel, care must be taken in fashioning a sanction that both adequately addresses the offending conduct and, to the extent possible, preserves the right of the party to be heard on the merits of her case.\u201d Smith, 299 Ill. App. 3d at 1054-55, 702 N.E.2d at 279.\nThe dismissal in this case is inconsistent with the public policy of this jurisdiction.\nBecause the dismissal was disproportionate to plaintiffs\u2019 misconduct and came without warning, it was an unjust sanction. A lesser sanction would have been effective and yet adhered to Illinois\u2019 policy of resolving disputes on their merits. Accordingly, we reverse the dismissal order and remand the cause for further proceedings with a different circuit court judge, which may include a trial on the merits. Because discovery has closed, any further proceedings are to be conducted without the use of the entire multipage exhibit. Plaintiffs disclosed only the first page of the technical service bulletin and are limited to using that single page on remand.\nReversed and remanded.\nGARCIA and R. GORDON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McBRIDE" } ], "attorneys": [ "Rebecca J. Letourneaux and Mike K. Kim, both of Consumer Legal Services, EC., of Chicago, for appellants.", "Swanson, Martin & Bell, LLB of Chicago (Bruce S. Terlep and David J. Riski, of counsel), for appellees." ], "corrections": "", "head_matter": "ELVIN GONZALEZ et al., Plaintiffs-Appellants, v. NISSAN NORTH AMERICA, INC., et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1\u201405\u20143539\nOpinion filed December 4, 2006.\nRebecca J. Letourneaux and Mike K. Kim, both of Consumer Legal Services, EC., of Chicago, for appellants.\nSwanson, Martin & Bell, LLB of Chicago (Bruce S. Terlep and David J. Riski, of counsel), for appellees." }, "file_name": "0460-01", "first_page_order": 476, "last_page_order": 487 }