holding new trial was necessary where counsel for the defendant company made reference in opening statements to an expert witness when the witness was undisclosed and then also did not call the expert as a witness at trial
How later courts described this case
- holding new trial was necessary where counsel for the defendant company made reference in opening statements to an expert witness when the witness was undisclosed and then also did not call the expert as a witness at trial
- finding burden of requiring employer “to guard against any risk” of insufficient clearance for employee to remove air purifiers would have been overwhelming
- same general standard of care applies to all professionals, including architects
- court will deny a motion to strike if it is able to review the merits of the appeal.
Written by the judges who cited it.
The opinion
JUSTICE HARRISON, concurring in part and dissenting in part:
I agree with the majority that plaintiff is entitled to a new trial on his claims against WHGK, Inc.; Hellmuth, Obata, Kassabaum, Inc. (HOK); and Fritz, Inc. Because a new trial is necessary as to those claims, I believe that we should also order a new trial on the third-party claims by HOK and Fritz, Inc., against American Air Filter (AAF) and Belleville Area College (BAG). At this point we cannot know precisely what evidence will be adduced in the course of the retrial of the underlying action, but we should not assume that it will merely be a rerun of the initial litigation. Plaintiff’s underlying action was and is factually intertwined with the third-party claims, and in the course of presenting his case against WHGK, HOK and Fritz, Inc., a second time, plaintiff may well bring to light additional facts which show that AAF and BAG were negligent or guilty of misconduct and that such negligence or misconduct was a proximate cause of plaintiff’s injury. If that happens, there would certainly be a valid basis for a claim for contribution against BAG and AAF by WHGK and HOK. Under the majority’s disposition, however, the possibility of bringing such a contribution claim has now been completely foreclosed. I see no justification for such a result. Accordingly, I would reverse and remand for a new trial not only on the underlying action but on the contribution claims as well.