Appellate Victory for Client Incorrectly Sanctioned at Trial for Failing to Produce Third-Party Witness


February 12, 2010

An appellate court has reversed a judgment that had followed from the trial court's sanctioning of Segal McCambridge client Garlock Sealing Technologies, LLC, for failing to produce a witness who was not an officer, director, or employee of Garlock.

The ruling of the Illinois Appellate Court, Fourth District, handed down February 8, 2010, in the case of White v. Garlock Sealing Technologies, confirms the principle that the Illinois Supreme Court's Rule 237(b) – requiring companies to produce at trial their "officer[s], director[s], or employee[s]" – "means precisely what it says" and may not be read expansively to include other persons who do not fit within one of the enumerated categories.

The underlying case was a wrongful-death jury trial in which plaintiffs alleged injury due to asbestos exposure. In the course of trial (actually two trials – the first, with a verdict in Garlock's favor, was reversed on appeal due to a technicality unrelated to Rule 237(b)), plaintiffs' attorneys sought to question someone "whose primary responsibility included looking after or monitoring the health of [Garlock's] employees." According to the company, the person who came closest to fitting that description was a Dr. David Carlson. Dr. Carlson, however, had never been a Garlock employee. He was instead the medical director of Healthworks, a part of the New York-based Thompson Medical Center.

In both trials, our attorneys moved to quash the request for Dr. Carlson's testimony on the grounds that Rule 237(b) requires a party at trial to produce "a person who at the time of trial . . . is an officer, director or employee of a party," and Dr. Carlson was none of these. Neither trial judge ruled in favor of our motions.

The judge in the first trial stated, "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's] 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 some room for interpretation?" Citing a "control factor," the judge reasoned that a person in Dr. Carlson's position should be in some sense under the company's control, and thus the company should be expected to produce him under Rule 237(b).

In the second trial, Garlock asked Dr. Carlson to testify, but Healthworks refused to permit him to do so. We presented evidence to that effect and affidavits attesting to his non-employee status. But the judge in the second trial relied upon the first judge's handling of the question.

Both judges sanctioned our client. In the first trial, the judge instructed the jury that we had failed to produce the witness and that they should infer his testimony would have been adverse. The second judge went a step further, entering judgment against Garlock on the issues of liability and causation, and ordering the case to proceed on the issue of damages only. The jury awarded the plaintiff $500,000 in damages.

We appealed, arguing the court had erred in ruling that Garlock had violated the rule. The appellate court agreed.

Writing for the bench, Justice Robert Steigmann wrote, "The plain language of Rule 237(b) is clear and unambiguous. The supreme court's intent when it promulgated Rule 237(b) was to give trial courts the ability to force – through sanction or other remedy – 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."

Justice Thomas Appleton filed a special concurrence, seeking to reserve the principle that, under certain circumstances, a contractual relationship may be so structured as to make it an employment relationship for the purposes of Rule 237(b). But finding no evidence of such circumstances in this case, the judge concurred.

The case is reversed and remanded for a new trial. You can read the appellate decision here.

Paul Wojcicki, chair of the Segal McCambridge appellate sub-committee, handled the appeal for Garlock. The trial team consisted of John Kohnke, Jason Kennedy, Jenni Young and Mr. Wojcicki.