{ "id": 4295438, "name": "ROSE WHITE, Indiv. and as Adm'x of the Estate of Don R. White, Deceased, Plaintiff-Appellee, v. GARLOCK SEALING TECHNOLOGIES, LLC, Defendant-Appellant", "name_abbreviation": "White v. Garlock Sealing Technologies, LLC", "decision_date": "2010-02-08", "docket_number": "No. 4\u201409\u20140036", "first_page": "610", "last_page": "628", "citations": [ { "type": "official", "cite": "398 Ill. App. 3d 610" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "886 N.E.2d 964", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "970", "parenthetical": "noting that issues should be raised at the trial level so that, when appropriate, the court may reconsider its own ruling" } ], "opinion_index": 0 }, { "cite": "228 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706686 ], "year": 2008, "pin_cites": [ { "page": "190", "parenthetical": "noting that issues should be raised at the trial level so that, when appropriate, the court may reconsider its own ruling" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0181-01" ] }, { "cite": "910 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "564", "parenthetical": "overturning contrary case law and holding that a defendant in an asbestos-related injury case must be allowed to introduce evidence of other asbestos exposure in support of its sole proximate cause defense" } ], "opinion_index": 0 }, { "cite": "233 Ill. 2d 416", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3621380 ], "year": 2009, "pin_cites": [ { "page": "444-45", "parenthetical": "overturning contrary case law and holding that a defendant in an asbestos-related injury case must be allowed to introduce evidence of other asbestos exposure in support of its sole proximate cause defense" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/233/0416-01" ] }, { "cite": "871 N.E.2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "374 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7328589 ], "year": 2007, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0536-01" ] }, { "cite": "888 N.E.2d 740", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2008, "pin_cites": [ { "page": "745" }, { "page": "745" }, { "page": "745" } ], "opinion_index": 0 }, { "cite": "382 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276433 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "899" }, { "page": "899" }, { "page": "899" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0895-01" ] }, { "cite": "692 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1154", "parenthetical": "noting that the construction of a rule, like the construction of a statute, is a question of law to be reviewed de novo" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 395", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821394 ], "year": 1998, "pin_cites": [ { "page": "401", "parenthetical": "noting that the construction of a rule, like the construction of a statute, is a question of law to be reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0395-01" ] }, { "cite": "869 N.E.2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2007, "pin_cites": [ { "parenthetical": "hereinafter, White I" }, { "page": "260" }, { "page": "259" }, { "page": "260-61" }, { "page": "260" }, { "page": "261" } ], "opinion_index": 0 }, { "cite": "373 Ill. App. 3d 309", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270665 ], "weight": 6, "year": 2007, "pin_cites": [ { "parenthetical": "hereinafter, White I" }, { "page": "330" }, { "page": "328-29" }, { "page": "330-31" }, { "page": "330" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0309-01" ] } ], "analysis": { "cardinality": 1236, "char_count": 44843, "ocr_confidence": 0.761, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1445294687064767 }, "sha256": "b3d42a933f81e2e2f6336731f7c7168054444e2be9d9af3d490543ada0445d42", "simhash": "1:6baf8024758fd6fb", "word_count": 7549 }, "last_updated": "2023-07-14T21:50:17.302697+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MYERSCOUGH, EJ., concurs." ], "parties": [ "ROSE WHITE, Indiv. and as Adm\u2019x of the Estate of Don R. White, Deceased, Plaintiff-Appellee, v. GARLOCK SEALING TECHNOLOGIES, LLC, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nThis case presents the question of whether Supreme Court Rule 237(b) (210 Ill. 2d R. 237(b)), dealing with persons whom a party may be required to produce at trial, includes not only persons who are \u201cofficer[s], director[s], or employee[s,]\u201d but also those persons who are under a party\u2019s control. We hold that it does not.\nI. PROLOGUE\nDuring an October 2008 wrongful-death jury trial based upon asbestos exposure (which was the second jury trial in this case), the trial court sanctioned defendant, Garlock Sealing Technologies, LLC, pursuant to Rule 237(b) (210 Ill. 2d R. 237(b)) for failing to produce a witness. The court entered judgment against Garlock on the issues of liability and causation and ordered the case to proceed on the issue of damages only. The jury subsequently awarded plaintiff, Rose White, $500,000 in damages.\nGarlock appeals, arguing that (1) the trial court erred by finding that Garlock violated Rule 237(b); (2) if this court agrees and orders a new trial, Garlock should be allowed to introduce evidence of decedent\u2019s exposure to other sources of asbestos; and (3) if this court affirms the court\u2019s Rule 237(b) finding, we should order remittitur. Because we agree with Garlock that the court erred by finding that Garlock violated Rule 237(b), we reverse and remand for a new trial.\nII. BACKGROUND\nA. The First Trial\n1. White\u2019s Wrongful-Death Suit\nIn August 2002, White sued Garlock (and several other defendants who are not parties to this appeal) for the wrongful death of her husband, Don R. White. White asserted that Garlock was responsible for her husband\u2019s death because, while employed by Garlock, her husband\u2019s duties required him to perform work that exposed him to asbestos-containing products that Garlock had manufactured.\n2. The Rule 237(b) Issue at the First Trial\na. Rule 237(b)\nBecause Rule 237(b) is the gravamen of Garlock\u2019s claim on appeal, we will first discuss that rule. It reads, in pertinent part, as follows:\n\u201cThe appearance at the trial or other evidentiary hearing of a party or a person who at the time of trial or other evidentiary hearing is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. *** Upon a failure to comply with the notice, the court may enter any order that is just, including any sanction or remedy provided for in Rule 219(c) [(210 Ill. 2d R. 219(c))] that may be appropriate.\u201d 210 Ill. 2d R. 237(b).\nb. The Interrogatory That Gave Rise to White\u2019s Rule 237(b) Request\nPrior to the first jury trial in this case that took place in November and December 2005, White presented the trial court with a response by Garlock to an interrogatory from another asbestos-related case in which Garlock was a party. That interrogatory stated as follows:\n\u201cHas [Garlock] ever had one or more persons whose primary responsibility included looking after or monitoring the health of [Garlock\u2019s] employees, such as a medical director? If so, state the following as to each person who [ha]s held this position: name, address, name of the position or title, and dates during which he or she held the position.\u201d\nGarlock\u2019s response stated that Dr. David Carlson had done so since \u201cJuly/August 2002.\u201d The address listed under Dr. Carlson\u2019s name read: \u201cGarlock Sealing Technologies, LLC[,] 1666 Division Street[,] Palmyra, New York 14522.\u201d\nc. The Rule 237(b) Arguments Presented to the Trial Court\nIn September 2005, White served Garlock with a Rule 237(b) request to produce Dr. Carlson. Garlock responded by filing a motion to quash White\u2019s request, asserting that although Dr. Carlson had examined and treated some Garlock employees, he did so as an independent contractor, not an employee. As proof, Garlock submitted an affidavit from its vice president of human relations, Ramond Mathes, in which Mathes stated that (1) Dr. Carlson was not and had never been an employee of Garlock; (2) Dr. Carlson had never been paid a salary by Garlock; (3) Dr. Carlson had never received employee benefits from Garlock; (4) Dr. Carlson was the medical director of Healthworks, which was part of the New York-based Thompson Medical Center; (5) Healthworks had provided services to Garlock since June 2002; (6) Healthworks provided medical services to approximately 120 other businesses and organizations; and (7) Dr. Carlson had visited Garlock plants and treated its employees in his capacity as an independent contractor or employee of Healthworks. Following an October 21, 2005, hearing, the trial court denied Garlock\u2019s motion to quash.\nOn October 31, 2005, Garlock filed a motion to reconsider the trial court\u2019s October 21, 2005, ruling. At a November 2005 hearing on that motion to reconsider, Garlock engaged in the following exchange with the court:\n\u201c[GARLOCK]: Clearly in this particular case, the [interrogatory from the other case] counsel cites in no way indicates that Dr. Carlson is an employee, officer[,] or director. It has an address on there which has unknown explanations as to what the particular address means. We have affidavits from the supposed employer, the corporation, saying Dr. Carlson works for this health company who has been contracted to come and look at people at our facility.\nDr. Carlson, the horse\u2019s mouth, has an affidavit saying [he is] not an employee, officer [,] or director of Garlock.\ns$c * $\u2022;\nWhat [White] gives [the court] is a document from a closed lawsuit where there is nothing in [t]here to indicate that [Dr. Carlson] is an officer, director!,] or employee. It has an address of Palmyra, New York, and [White] wants [this court] to speculate that somehow *** this guy was a member of the company. ***\nTHE COURT: Well, *** the confusing part of this to this court is, if he is not now and has never been an employee of Garlock, why was this interrogatory answered in the way it was, giving Garlock as his address? Maybe it is speculation, but that does lead one to speculate or wonder about what\u2019s going on.\n\u2756 * *\nThe question is why would you answer this interrogatory this way if [Dr. Carlson] has never had an office at Garlock and never been employed at Garlock and has always provided independent medical services? As [the court] recall[s], [the court] didn\u2019t get a really great answer before, and [it is] not getting a really great answer today.\n[GARLOCK]: I don\u2019t know[.] I can come up with a bunch of plausible answers, but I don\u2019t know. I don\u2019t know if there\u2019s a facility that he works out of to check people. I don\u2019t know.\nBut I do have an affidavit saying he\u2019s not in our control. We have an affidavit from Garlock people saying he is not in our control ***.\nTHE COURT: [A]ny reasonable person looking at this response here would say on whatever date, September of 2003, that Dr. *** Carlson was the medical director of Garlock. [T]hat\u2019s the only implication you can receive from this. This business address is Gar-lock[\u2019s] in Palmyra.\u201d\nd. The Trial Court\u2019s Ruling\nAt a hearing later that month, the trial court further mused about the Rule 237(b) issue, as follows:\n\u201cTHE COURT: Let [the court] tell you where [it is] on the Rule 237 thing. [The court] did a little hit of research. [The court] would like to do a little bit more. [The court] did not find any particular case that was any help in Illinois, and [the court does not] know that there are any, but part of [the court\u2019s] thinking here is, even when you get away from the issue as to the interrogatory and whether [Dr. Carlson] worked for [Garlock] or whatever, assuming that the doctor is what he says he is, which is an independent contractor and the medical director of some other outfit that provides health services to Garlock employees, part of [the court\u2019s] thinking here is what is the spirit and the flavor, if you will, of Rule 237, and is it to be read literally or is there room for interpretation?\nThe gist of *** the control factor that would allow the [c]ourt to force a party to produce someone who is an employee or an officer or whatever, is that they have control. That\u2019s the gist of the control. They have control and that control would generally be like control of their position and their livelihood. Does that disappear when a person is an independent contractor?\nWell, it\u2019s not as strong a factor, but that factor is still there, and [the court] supposefs] one would have to know how much of this doctor\u2019s business is related to Garlock to know how strong that factor would be, but there is still a control factor there. If you don\u2019t come and testify when you\u2019re asked to by the company, you won\u2019t be providing our health services anymore, which is not really much different than saying to an employee, you better show up or you won\u2019t be our employee anymore. It seems to [this court] that the same principle is involved, and whether the [c]ourt should somewhat broaden the interpretation of Rule 237 is what [the court] is pondering.\u201d\nAt trial later that month, White called Garlock\u2019s corporate representative, James Heffron, to testify. Heffron testified, in part, that he knew Dr. Carlson (1) had been Garlock\u2019s company physician in the past and (2) was Garlock\u2019s company physician at the time of trial. At the conclusion of the proceedings that day, White explained to the trial court that Heffron\u2019s testimony had just reaffirmed Garlock\u2019s interrogatory that Dr. Carlson was Garlock\u2019s company doctor. Garlock responded by engaging with the court as follows:\n\u201c[GARLOCK]: That\u2019s *** [an] inaccurate statement of what the witness testified to.\nTHE COURT: What did he testify to[?]\n[GARLOCK]: He testified *** that he does medical work for the company, not that he *** is an employee of the company at all. If you notice there was never a question asked of him \u2018Is Dr. Carlson an employee of the company?\u2019 If you look at the record, you\u2019ll see that that question was never asked.\nTHE COURT: That\u2019s true, but that\u2019s not what [White] said. [White] said he testified the he was the company doctor.\n[GARLOCK]: Just because somebody can treat bumps and bruises and that\u2019s who [the employee is] sent to, that doesn\u2019t mean he\u2019s an employee of the company. And that\u2019s what the relevant issue is.\nTHE COURT: [M]aybe [the court] didn\u2019t make an additional ruling when [it] made the final reconsideration for this matter, but\u2014 and the [a]ppellate [c]ourt [may] well decide that my interpretation of this is wrong[ \u2014 ]as with many areas of the law [this court] do[es] [not] think [it] necessarily has to proceed on the exact literal letter of what\u2019s in a statute, that it can proceed at times when it\u2019s appropriate within the spirit of what\u2019s intended. And based on the information that\u2019s been made available to the [c]ourt today, which is not in any way diminished by the testimony of the company representative, that this is the company\u2019s physician, [and that] leads the [c]ourt to believe that Dr. Carlson is in a position very similar to being an employee. *** [The court] believe[s] [that] does not place him outside the parameters of what Rule 237 was intended to accomplish, and *** Garlock, from what [the court] presently know[s], is in a position to produce this witness, and that remains the ruling of the [c]ourt.\u201d\ne. The Trial Court\u2019s Sanction\nAt the close of White\u2019s case in chief, the trial court instructed the jury regarding Garlock\u2019s failure to produce Dr. Carlson, explaining, in pertinent part, as follows: \u201cDespite the [cjourt\u2019s order, Garlock has failed to produce Dr. Carlson and has failed to offer an explanation for his absence acceptable to the court. You will receive further instruction at the conclusion of the case related to this issue.\u201d\nAt the conclusion of the case, the trial court instructed the jury as follows:\n\u201cIf a party to this case has failed to offer evidence within its power to produce, you may infer that the evidence would be adverse to that party if you believe each of the following elements:\n1. The evidence was under control of the party and could have been produced by exercising reasonable diligence.\n2. The evidence was not equally available to an adverse party.\n3. A reasonably prudent person under the same or similar circumstances would have offered the evidence if it believed it to be favorable.\n4. No reasonable excuse for the failure has been shown.\u201d\n3. The Jury\u2019s Verdict and the Parties\u2019 Posttrial Motions\nIn December 2005, the jury returned a verdict for Garlock. Shortly thereafter, White filed a posttrial motion, alleging that Garlock had violated several trial court orders and rulings. In part, White asserted that Garlock had violated Rules 213(i) and 237(b) (210 Ill. 2d Rs. 213(i), 237(b)). In July 2006, the court granted White\u2019s motion and ordered a new trial because it found that Garlock had violated Rule 213(i) (210 Ill. 2d R. 213(i)). Specifically, the court found that Garlock had failed to supplement its written interrogatories after Garlock discovered on the eve of trial that the answers initially provided by a doctor who was one of its expert witnesses had changed.\nB. The First Appeal\nIn September 2006, this court granted Garlock\u2019s petition under Supreme Court Rule 306(a)(1) (210 Ill. 2d R. 306(a)(1)) for leave to appeal the trial court\u2019s decision to grant White\u2019s motion for a new trial. In that petition, Garlock challenged only the trial court\u2019s rulings that (1) found Garlock violated Rule 213(i) and (2) granted White a new trial based upon that finding. Garlock made no mention in that petition of the trial court\u2019s Rule 237(b) findings and sanctions, but White raised the issue in her brief to this court.\n1. The Rule 237(b) Issue on Appeal\nWith respect to Rule 237(b), the issue before this court was, given the violation of Rule 237(b) as found by the lower court, whether the court abused its discretion by imposing an insufficient sanction. See White v. Garlock Sealing Technologies, LLC, 373 Ill. App. 3d 309, 869 N.E.2d 244 (2007) (hereinafter, White I). As earlier noted, Garlock as appellant did not contest the trial court\u2019s sanction (no doubt because Garlock won at trial). Garlock\u2019s sole interest in bringing its appeal under Rule 306(a) was to have this court reverse the trial court\u2019s order granting White\u2019s motion for a new trial.\nHowever, Rule 306(a) states that when a petition for leave to appeal an order granting a new trial is granted, all rulings on posttrial motions are before the reviewing court. White had raised claims in her posttrial motion that (1) Garlock violated Rule 213(i) and (2) the trial court\u2019s sanction for Garlock\u2019s violation of Rule 237(b) was insufficient. White also raised on appeal that latter issue, arguing that because Garlock intentionally violated Rule 237(b), this court should enter judgment against Garlock on the issues of liability and causation and order a new trial on damages only. White I, 373 Ill. App. 3d at 330, 869 N.E.2d at 260.\n2. This Court\u2019s Decision\nIn June 2007, this court affirmed the trial court\u2019s order granting White a new trial, concluding that (1) Garlock\u2019s actions violated Rule 213(i) and (2) the court did not abuse its discretion by ordering a new trial based upon Garlock\u2019s failure to comply with that rule (White I, 373 Ill. App. 3d at 328-29, 869 N.E.2d at 259).\n3. This Court\u2019s Discussion of Rule 237(b)\nAs part of our opinion, this court stated the following, in pertinent part, with respect to White\u2019s Rule 237(b) request:\n\u201cOne month before the November 2005 jury trial, White served Garlock with a notice under Rule 237(b) requesting, among other things, that Garlock produce Dr. *** Carlson to testify at trial. Gar-lock moved to quash the notice, arguing that Dr. Carlson was not then and never had been an employee, officer, or director of Gar-lock. The matter was extensively argued before the trial court, which ultimately agreed with White that although Dr. Carlson was not an employee, officer, or director of Garlock, he was in a similar position because of his perceived economic relationship with Gar-lock.\nWhen Garlock did not produce Dr. Carlson to testify at trial, the trial court instructed the jury [as noted earlier in this opinion.]\nIn White\u2019s posttrial motion, she raised the issue of Garlock\u2019s failure to produce Dr. Carlson. The trial court concluded that the sanction it entered against Garlock was sufficient, noting that White did not take Dr. Carlson\u2019s deposition or provide the court with information it could use to determine that Dr. Carlson\u2019s testimony would have in fact been important.\nWe earlier mentioned the obvious care and consideration the trial court gave to the Rule 213(i) issue in this case, and we are equally impressed regarding the court\u2019s handling of the Rule 237(b) issue. Like other discovery issues, the appropriateness of any sanction for a violation of Rule 237(b) is left to the sound discretion of the trial court.\u201d White I, 373 Ill. App. 3d at 330-31, 869 N.E.2d at 260-61.\nC. White\u2019s Rule 237(b) Request Prior to the Second Trial\nIn June 2008, following this court\u2019s remand, White filed a second Rule 237(b) request, in which she requested that Garlock produce Dr. Carlson for the second trial. Garlock responded by filing a motion to quash, again asserting that Dr. Carlson was not, and had never been, one of its employees, officers, or directors. Following an August 2008 hearing on Garlock\u2019s motion, at which the trial court \u2014 although this time the issue was before a different trial judge \u2014 heard essentially the same arguments that the parties had made prior to the first trial,, the court found as follows:\n\u201cThe trial judge in the previous *** trial *** ruled that *** this particular witness [(Dr. Carlson)] fell within *** [Rule] 237[(b)] *** which [this court] as sume [s] came under the [\u2018] employee of a party[\u2019] [phraseology], [This court has not] read [the previous court\u2019s] whole ruling *** but [that judge] decided that the *** appropriate remedy at that point in that trial was [to give] an instruction to the jury on an adverse inference from nonproduction of that witness. And then the [a]ppellate [c]ourt *** specifically discussed this [and] specifically sa[id] that [it] approve [d of] the way [the judge] handled it ***. *** So [the appellate court] ha[s said] this is the way [it] view[s] this particular issue ***. *** [W]hether [this court] like[s] it or not, [the appellate court has] ruled on this issue specifically and said it was okay the way it was done, so [this court will] stick with [the earlier judge\u2019s] ruling that [Rule] 237[(b)] applies to this particular witness ***.\u201d\nD. The Second Trial\n1. Garlock\u2019s Motion To Reconsider\nOn October 6, 2008, just before trial, Garlock moved the trial court to reconsider its August 2008 ruling to enforce White\u2019s Rule 237(b) request as to Dr. Carlson. The court refused to reconsider its prior ruling, but added that Garlock was free to object to the issue \u201cat the appropriate time.\u201d\nOn October 7, 2008, following jury selection, Garlock again moved to quash White\u2019s Rule 237(b) request, at which point White\u2019s counsel, among other things, posited that further discussion of the matter should be deferred until White called Dr. Carlson to testify. Garlock responded that it had produced evidence to show that not only had it never employed Dr. Carlson, but that it no longer had a business relationship with Dr. Carlson\u2019s actual employer, Healthworks. Garlock explained that Healthworks had forbidden Dr. Carlson from appearing at trial. Thereafter, the court directed Garlock to file a motion or affidavit outlining its efforts to produce Dr. Carlson.\nOn October 8, 2008, the trial commenced and White called Dr. Carlson as her first witness. However, Dr. Carlson did not appear. White then called Heffron to testify. Heffron testified, in pertinent part, that Dr. Carlson was a physician whom the company had contracted to handle certain medical issues and was not a company employee. That same day, Garlock filed a memorandum and exhibits, in which Garlock posited that (1) Dr. Carlson was not an employee of Garlock, (2) no economic relationship existed between Garlock and Healthworks, (3) Garlock had attempted to produce Dr. Carlson for trial, and (4) Healthworks refused to permit Dr. Carlson to testify.\n2. White\u2019s Motion for Sanctions Pursuant to Rule 237(b)\nOn October 9, 2008, White moved for sanctions against Garlock based on its failure to produce Dr. Carlson, tendering a written motion in that pursuit. At that point, the trial court adjourned the trial to allow Garlock an opportunity to review White\u2019s motion and to prepare its response.\nOn October 10, 2008, Garlock provided White and the trial court with its written response to White\u2019s motion for sanctions. In that response, Garlock explained the steps that it had taken to produce Dr. Carlson and the reasons why it should not be sanctioned.\n3. The Trial Court\u2019s Ruling\nFollowing a hearing on sanctions, the trial court found as follows:\n\u201c[This court] had to make a determination [as to whether] reasonable steps were taken *** to secure the attendance of this witness who [was], up until apparently almost at the date of trial or was in a position \u2014 a relationship[ \u2014 ]with [Garlock] of some nature. [The court is] still unclear exactly the nature of what that relationship was. But[,] it\u2019s clear from the record [that] the relationship was medical director at least at one point [as he] was described as such by [Garlock\u2019s] corporate representative[.] This is a gentleman who has been with the corporation since 1973 *** and has been involved in the asbestos part of the litigation for a number of years!.] Now he says he was mistaken.\nWell, [the court] do[es not] know. All [the court] know[s] is [that] back in 2005 when he testified!,] he said that\u2019s what [Dr. Carlson] was.\u201d\nThat same day, the court entered its written order, in which, as a sanction, the court entered judgment against Garlock on the issues of liability and causation, with the trial to proceed only on the issue of damages.\n4. The Jury\u2019s Verdict\nOn October 15, 2009, the jury returned a verdict for White in the amount of $500,000. The court later reduced the judgment to $466,666.66 pursuant to a setoff.\nThis appeal followed.\nIII. ANALYSIS\nA. Garlock\u2019s Claim That the Trial Court Erred by Finding That Garlock Violated Rule 237(b)\nGarlock argues that the trial court erred by finding that it violated Rule 237(b) (210 Ill. 2d R. 237(b)) for failing to produce Dr. Carlson. Specifically, Garlock contends that the court erroneously interpreted Rule 237(b) to include not only \u2014 as the plain language of the rule states \u2014 \u201cperson[s] who at the time of trial *** [are] officer[s], director[s], or employee[s] of a party,\u201d but also persons who were at some point under a party\u2019s control.\nWThite responds with various arguments, remaining consistent in her position that the spirit of Rule 237(b) requires a person under a party\u2019s control to be considered the equivalent of an officer, director, or employee. In that regard, she asserts the following:\n\u201cRule 237(b) does not contain, nor has Garlock suggested, a definition for any of these terms[: officer, director, or employee]. Each represents a type of agency relationship. It is the agency relationship that is the basis for the court\u2019s authority.\nThe authority of a court to order a party to produce its agent as a witness predated the adoption of Rule 237(b). Rule 237(b) is not the source of the court\u2019s authority, it is but one expression of that authority.\u201d\nWe agree with Garlock and disagree with White\u2019s expansive reading of Rule 237(b).\n1. The Standard of Review\nBecause Garlock\u2019s argument involves the construction of a supreme court rule, our review is de novo. See In re Estate of Rennick, 181 Ill. 2d 395, 401, 692 N.E.2d 1150, 1154 (1998) (noting that the construction of a rule, like the construction of a statute, is a question of law to be reviewed de novo). When interpreting a supreme court rule, a reviewing court should apply the same principles of construetion that apply to a statute \u2014 that is, the reviewing court should ascertain and give effect to the intent of the supreme court in promulgating the rule. Berry v. American Standard, Inc., 382 Ill. App. 3d 895, 899, 888 N.E.2d 740, 745 (2008). The most reliable indicator of that intent is the specific language used in the rule. Berry, 382 Ill. App. 3d at 899, 888 N.E.2d at 745. When the language of a supreme court rule is clear and unambiguous, a reviewing court should apply the language without reference to other interpretive aids. Berry, 382 Ill. App. 3d at 899, 888 N.E.2d at 745.\n2. The Pertinent Language of Rule 237(b)\nRule 237(b) reads, in pertinent part, as follows:\n\u201cThe appearance at the trial or other evidentiary hearing of a party or a person who at the time of trial or other evidentiary hearing is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear.\u201d (Emphases added.) 210 Ill. 2d R. 237(b).\n3. Rule 237(b) and This Case\nThe plain language of Rule 237(b) is clear and unambiguous. The supreme court\u2019s intent when it promulgated Rule 237(b) was to give trial courts the ability to force \u2014 through sanction or other remedy \u2014 a party to produce a person who was then an officer, director, or employee of that party. Here, Dr. Carlson was not an officer, director, or employee of Garlock at the time of trial. Indeed, in its October 10, 2008, findings, the trial court expressed doubt that Garlock had ever employed Dr. Carlson, noting that it was \u201cstill unclear exactly what the nature of the relationship was.\u201d Accordingly, we conclude that the court erred by finding that Garlock violated Rule 237(b).\nIn so concluding, we note that the supreme court is perfectly capable of saying what it means and understands the importance of using precise language. The supreme court, in Rule 237(b), did not use the term \u201cagent\u201d or the phrase \u201ca person under a party\u2019s control\u201d but instead advisedly used the terms \u201cofficer, director, or employee.\u201d We deem the use of the descriptive words \u201cofficer, director, or employee\u201d to be limited and legal terms of art.\nWe find support for this conclusion in the language used in Supreme Court Rule 213(f) (210 Ill. 2d R. 213(f)), wherein the supreme court drew a distinction between \u201cindependent expert witnesses,\u201d as defined in Rule 213(f)(2), and \u201ccontrolled expert witnesses,\u201d as defined in Rule 213(f)(3). \u201cAn \u2018independent expert witness\u2019 is a person giving expert testimony who is not the party, the party\u2019s current employee, or the party\u2019s retained expert.\u201d (Emphasis added.) 210 Ill. 2d R. 213(f)(2). On the other hand, \u201c[a] \u2018controlled expert witness\u2019 is a person giving expert testimony who is the party\u2019s current employee, or the party\u2019s retained expert.\u201d (Emphasis added.) 210 Ill. 2d R. 213(f)(3). Rule 213 requires a party to provide substantially greater information regarding a controlled expert witness who will testify at trial than it does regarding an independent expert witness. Thus, Rule 213 \u2014 which had been in effect several years before the trial court\u2019s fall 2005 ruling that Garlock had violated Rule 237(b) \u2014 demonstrates the supreme court (1) appreciates the difference between a witness who is an employee of a party and a witness who is not and (2) utilizes the word \u201ccontrol\u201d when it deems it appropriate to do so. Accordingly, if the supreme court meant for Rule 237(b) to include circumstances wherein a party has some control over persons who are not technically employees, the supreme court would have said so.\n4. Clarification of Our Holding in White I\nThe trial court on remand from White I interpreted this court\u2019s decision in that case to endorse the first trial judge\u2019s determination that Garlock should be sanctioned under Rule 237(b) because this court apparently agreed that Rule 237(b) included persons under a party\u2019s control. That interpretation was in error.\nAs earlier noted, White I was before us on appeal pursuant to Rule 306(a), which permits a party to petition for leave to appeal to this court from an order of the circuit court granting a new trial. The last paragraph of Rule 306(a) provides as follows: \u201cIf the petition for leave to appeal an order granting a new trial is granted, all rulings of the trial court on the posttrial motions are before the reviewing court without the necessity of a cross-petition.\u201d 210 Ill. 2d R. 306(a). In White I, we cited that language and wrote the following: \u201cPursuant to [Rule 306(a)], White argues that Garlock not only violated Rule 213(i) but also Rule 237(b) (210 Ill. 2d R. 237(b)), and that these intentional violations require the entry of judgment against Garlock on liability and causation and a new trial on damages only. We disagree.\u201d White I, 373 Ill. App. 3d at 330, 869 N.E.2d at 260.\nThis court\u2019s discussion in White I of White\u2019s claim that Garlock violated Rule 237(b) was set forth as the last portion of our opinion in that case, after we had already resolved that the trial court did not err by granting White a new trial as the remedy for Garlock\u2019s Rule 213(i) violation. White contended that Garlock\u2019s intentional violation of Rule 237(b) required the entry of judgment against Garlock on liability and causation and a new trial on damages only. We rejected White\u2019s contention and concluded that the matter was addressed to the trial court\u2019s sound discretion. We explained our rejection of White\u2019s contention as follows:\n\u201cWe earlier mentioned the obvious care and consideration the trial court gave to the Rule 213(i) issue in this case, and we are equally impressed regarding the court\u2019s handling of the Rule 237(b) issue. Like other discovery issues, the appropriateness of any sanction for a violation of Rule 237(b) is left to the sound discretion of the trial court. We conclude that the trial court did not abuse its discretion on this matter, and accordingly, we decline to grant White the additional relief she has requested on appeal.\u201d White I, 373 Ill. App. 3d at 331, 869 N.E.2d at 261.\nAs the previous quotation demonstrates, the question before us in White I regarding Rule 237(b) was the following: Did the trial court abuse its discretion by not entering judgment against Garlock on liability and causation and ordering a new trial on damages only? We answered that question no, finding no abuse of the trial court\u2019s discretion. In doing so, we were not first required to determine whether any Rule 237(b) violation occurred, especially given the context of the case presented to us on appeal.\nAs stated earlier, Garlock brought its appeal in White I pursuant to Rule 306(a) to challenge the trial court\u2019s order granting White\u2019s motion for a new trial because Garlock violated Rule 213(i). Garlock contended both that no violation occurred and that, if a Rule 213(i) violation did occur, the court\u2019s sanction was too harsh. We rejected Garlock\u2019s positions regarding the trial court\u2019s findings that a Rule 213(a) violation had occurred and that the new trial sanction was appropriate.\nAlthough Garlock vigorously disputed at trial White\u2019s claim that Garlock was required to produce Dr. Carlson under Rule 237(b), that ruling was not part of Garlock\u2019s Rule 306(a) appeal. Given that the jury returned a verdict in Garlock\u2019s favor, Garlock\u2019s position is entirely understandable. That is, although Garlock believed the trial court erred in its Rule 237(b) rulings, Garlock did not care about those rulings on appeal because the trial court did not base its order granting White a new trial on those rulings; instead, the court based its new-trial ruling solely upon Garlock\u2019s violation of Rule 213(i).\nThese circumstances explain why Garlock, in its initial brief before this court, made no mention at all of the trial court\u2019s Rule 237(b) rulings. Only after White in her brief raised the issue \u2014 namely, that the trial court\u2019s sanction against Garlock for violating Rule 237(b) was insufficient and constituted an abuse of discretion \u2014 did Garlock even mention Rule 237(b). And even then, Garlock concluded its discussion of this subject in its reply brief as follows: \u201cThe trial court correctly concluded that Garlock\u2019s failure to produce Dr. Carlson to testify at trial did not prejudice the plaintiff and, therefore, did not provide a basis for granting plaintiff a new trial.\u201d\nRegarding Rule 237(b), this court chose in White I to address only whether the trial court abused its discretion by imposing the sanction it did against Garlock based upon its finding that Garlock violated that rule. In retrospect, we can see how this court could have avoided the trial court\u2019s misinterpretation of our decision in White I had we added the following sentence to our decision: \u201cIn concluding that the trial court did not abuse its discretion, this court takes no position as to whether a Rule 237(b) violation occurred in the first place.\u201d\n5. White\u2019s Ambiguous Interrogatory\nAs previously stated, the Rule 237(b) issue in this case arose from Garlock\u2019s response to the following interrogatory:\n\u201cHas [Garlock] ever had one or more persons whose primary responsibility included looking after or monitoring the health of [Garlock\u2019s] employees, such as a medical director? If so, state the following as to each person who [has] held this position: name, address, name of the position or title, and dates during which he or she held the position.\u201d\nGarlock responded that Dr. Carlson had done so since \u201cJuly/August 2002.\u201d\nThe question White asked is inherently ambiguous. A party responding to this question could legitimately believe that its scope would include (at least) all of the following:\n(1) An employee of Garlock.\n(2) An employee of a medical services provider who contracted with Garlock to provide medical services for its employees.\n(3) A physician or health-care provider who routinely saw Gar-lock employees upon reference from Garlock, as well as other patients, as part of that physician\u2019s medical practice.\nObviously, in our judgment, only the first of these persons would fit under the language of Rule 237(b) as being \u201can officer, director, or employee\u201d of Garlock.\n6. White\u2019s Other Contentions Regarding the Trial Court\u2019s Rule 237(b) Ruling\nIn support of White\u2019s claim that the trial court properly ruled that Garlock was required to produce Dr. Carlson under Rule 237(b), White raises three additional claims: (1) the affidavits submitted by Garlock are hearsay; (2) Garlock may not contradict its sworn answers to a written interrogatory in order to create an issue of fact; and (3) a \u201csubstantial relationship\u201d existed between Garlock and Dr. Carlson. We address each of these contentions in turn.\na. White\u2019s Claim That the Affidavits Submitted by Garlock Are Hearsay\nThe trial court determined that Garlock violated Rule 237(b) by failing to produce Dr. Carlson. As a sanction for this failure, the court entered judgment against Garlock on the issue of liability and causation and ordered the case to proceed on the issue of damages only. The question before this court is whether the trial court was correct in its ruling that Garlock violated Rule 237(b). In resolving that issue, this court will consider all of the materials the parties submitted to the trial court in support of their respective positions thereon. Some of the materials submitted by Garlock included affidavits (specifically, of Dr. Carlson and Garlock corporate executive Ramond Mathes) to the effect that Dr. Carlson was not then and had never been an employee of Garlock. Regarding these affidavits, White makes the following contention on appeal: \u201cThe affidavits submitted by Garlock are hearsay, and are not admissible at trial on a contested issue.\u201d\nBecause this contention provides neither analysis nor citation of authority in support thereof, we could simply disregard it as being in violation of Supreme Court Rule 341(i) (210 Ill. 2d R. 341(i)). However, we choose to address this contention on its merits.\nWhether a party has violated Rule 237(b) is a matter for resolution by the trial court, not by a jury. Thus, contrary to White\u2019s contention, whether a Rule 237(b) violation has occurred is not a \u201ccontested issue at trial,\u201d to be resolved by the trier of fact. Nor do the formal rules of evidence apply regarding what the trial court may consider when addressing a Rule 237(b) issue. Instead, the trial court may consider affidavits on point and should look to Supreme Court Rule 191(a) (210 Ill. 2d R. 191(a)) for guidance regarding what those affidavits should show.\nFor instance, in the present case, the affidavits submitted by Gar-lock regarding the Rule 237(b) issue before the trial court were made on the personal knowledge of the affiants and set forth with particularity the facts upon which the affidavits were based. Also, they did not consist of conclusions but of facts admissible in evidence. They also affirmatively showed that the affiants, if sworn as witnesses, could testify competently thereto. White\u2019s brief is bereft of any analysis as to why the trial court should not have considered these affidavits, and we conclude that they were properly before the trial court, as well as this court on appeal.\nb. White\u2019s Contention That Garlock May Not Contradict Its Sworn Answers to the Written Interrogatory\nRegarding the consideration by the trial court and this court of Garlock\u2019s affidavits, White writes the following: \u201cWhen Garlock asks the court system to ignore what it has said, through the sworn testimony of its corporate representative, James Heffron, and through its sworn answers to interrogatories ***, Garlock is asking the court to permit it to do what a litigant is barred from doing in summary judgment proceedings *** or at trial.\u201d We disagree.\nWhite is essentially arguing that Heffron\u2019s initial testimony and Garlock\u2019s response to the interrogatory discussed earlier constitute judicial admissions, which may not later be controverted. However, \u201c \u2018[a] judicial admission is a deliberate, clear, unequivocal statement of a party, about a concrete fact, within the party\u2019s peculiar knowledge.\u2019' [Citation.]\u201d Rath v. Carbondale Nursing & Rehabilitation Center, Inc., 374 Ill. App. 3d 536, 538, 871 N.E.2d 122, 125 (2007). Heffron\u2019s initial testimony and Garlock\u2019s response to the interrogatory did not constitute judicial admissions.\nWe earlier criticized White\u2019s interrogatory as patently ambiguous, which in turn means that any response to it by Garlock (including the one Garlock actually made) could not, by definition, constitute a judicial admission. Heffron\u2019s initial testimony \u2014 that Dr. Carlson had been Gar-lock\u2019s company physician \u2014 suffers from the same defect of patent ambiguity. Just as someone might refer to Dr. Jones as his \u201cfamily\u2019s doctor\u201d (meaning he takes care of everyone in the family) without meaning that Dr. Jones is an \u201cemployee\u201d of that family, so might Hef-fron refer to Dr. Carlson as \u201cGarlock\u2019s company physician\u201d without meaning that Dr. Carlson was an \u201cemployee\u201d of Garlock. Indeed, Hef-fron later testified that the latter was in fact Dr. Carlson\u2019s role. That is, Dr. Carlson was a physician whom Garlock had contracted to handle certain medical issues, but he was not an employee.\nWe note once again that White\u2019s counsel did not use the word \u201cemployee\u201d \u2014 the term actually used in Rule 237(a) \u2014 when he called Heffron during the first trial and asked him whether Dr. Carlson had been Garlock\u2019s company physician. Garlock, of course, could have\u2014 and should have \u2014 sought clarification from Heffron at that time regarding Dr. Carlson\u2019s nonemployee status. However, Garlock overcame its initial failure in this regard by calling Heffron to testify during the second trial. Thus, when the trial court made its ruling at issue in this appeal \u2014 namely, that Garlock had violated Rule 237(b)\u2014 the court had all the information it needed (including Heffron\u2019s clarification) to know that Dr. Carlson was not Garlock\u2019s employee.\nc. White\u2019s \u201cSubstantial-Relationship\u201d Claim\nWhite also asserts the following:\n\u201c[E]ven if this [c]ourt were to consider the otherwise inadmissible materials provided by Garlock and ignore the only admissible evidence on the matter, the most that gains Garlock is a diminution of the relationship. Even under Garlock\u2019s materials, there is a substantial relationship between Garlock and Dr. Carlson.\u201d (Emphasis added.)\nWe quote this argument because this claimed \u201csubstantial relationship\u201d between Garlock and Dr. Carlson seems to be the gist of White\u2019s position throughout this litigation. In other words, White contends that Dr. Carlson is somehow under Garlock\u2019s \u201ccontrol\u201d and must be produced pursuant to Rule 237(b) even though he is not, within the plain language of Rule 237(b), an \u201cemployee, officer, or director\u201d of Garlock. For the reasons previously stated, we strongly disagree with this contention and reiterate that Rule 237(b) means precisely what it says: \u201cemployee, officer, or director.\u201d \u201cSubstantial relationships\u201d or \u201cdegrees of control\u201d are immaterial when determining whether Rule 237(b) applies. Instead, Rule 237(b) requires a specific relationship \u2014 namely, that of an officer, director, or employee.\nB. Garlock\u2019s Claim That It Should Be Allowed To Introduce Evidence of Decedent\u2019s Exposure to Other Sources of Asbestos\nLast, Garlock next argues that if this court remands this case for a new trial, Garlock should be allowed to introduce evidence of decedent\u2019s exposure to other sources of asbestos, pursuant to the supreme court\u2019s recent decision in Nolan v. Weil-McLain, 233 Ill. 2d 416, 444-45, 910 N.E.2d 549, 564 (2009) (overturning contrary case law and holding that a defendant in an asbestos-related injury case must be allowed to introduce evidence of other asbestos exposure in support of its sole proximate cause defense). Garlock contends that the court\u2019s prior rulings prohibiting Garlock from introducing such evidence were based on the cases that the Nolan decision overturned and, therefore, this court should reverse those prior rulings and order that Garlock be allowed to introduce such evidence on remand. Because, generally we only review arguments presented to the trial court (see People v. Hudson, 228 Ill. 2d 181, 190, 886 N.E.2d 964, 970 (2008) (noting that issues should be raised at the trial level so that, when appropriate, the court may reconsider its own ruling)), we decline Garlock\u2019s invitation to enter such an order.\nHere, the trial court based its ruling as to whether decedent\u2019s exposure to other sources of asbestos should be admitted prior to the supreme court\u2019s decision in Nolan. Given the unusual circumstances of this case, we conclude that Garlock\u2019s argument about Nolan is best presented to the trial court in the form of a motion to reconsider. Doing so will give both parties the opportunity to fully brief and argue the issue.\nBecause we are remanding this case for a new trial, we need not address Garlock\u2019s alternative argument that this court should order remittitur.\nIV CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand for a new trial.\nReversed and remanded for a new trial.\nMYERSCOUGH, EJ., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE APPLETON,\nspecially concurring:\nWhile I concur in the majority\u2019s result, I write separately to take potential exception to the broad statement by the majority that the duty to produce a witness pursuant to Supreme Court Rule 237(b) is strictly limited to officers, directors, or employees of a party.\nWithout disagreeing with the express language of the rule, it is not beyond conception that a person could be employed by \u201cCorporation A\u201d but, by his or her service to \u201cCorporation B\u201d pursuant to a contractual agreement, by the determination of the employee\u2019s income or by actual conduct (including the right to direct by Corporation B) could be properly deemed in fact to be an employee of Corporation B. There may be many purposes for such contractual arrangements \u2014 one being the potential avoidance of Rule 237(b) duties to produce.\nAs there is no evidence in this record of the contractual relationship between Dr. Carlson\u2019s employer and defendant or, as importantly, any evidence of intent on the part of defendant to thereby evade the strictures of Rule 237(b), I concur.", "type": "concurrence", "author": "JUSTICE APPLETON," } ], "attorneys": [ "John J. Kohnke, Paul E. Wojcicki (argued), Jason L. Kennedy, and Jenni L. Young, all of Segal, McCambridge, Singer & Mahoney, Ltd., of Chicago, for appellant.", "James Walker (argued), of James Walker, Ltd., of Bloomington, for appel-lee." ], "corrections": "", "head_matter": "ROSE WHITE, Indiv. and as Adm\u2019x of the Estate of Don R. White, Deceased, Plaintiff-Appellee, v. GARLOCK SEALING TECHNOLOGIES, LLC, Defendant-Appellant.\nFourth District\nNo. 4\u201409\u20140036\nArgued November 19, 2009.\nOpinion filed February 8, 2010.\nRehearing denied March 26, 2010.\nAPPLETON, J., specially concurring.\nJohn J. Kohnke, Paul E. Wojcicki (argued), Jason L. Kennedy, and Jenni L. Young, all of Segal, McCambridge, Singer & Mahoney, Ltd., of Chicago, for appellant.\nJames Walker (argued), of James Walker, Ltd., of Bloomington, for appel-lee." }, "file_name": "0610-01", "first_page_order": 626, "last_page_order": 644 }