Betts v. Manville Personal Injury Settlement Trust (225 Ill. App. 3d 882, 1992)

JUSTICE McCULLOUGH

delivered the opinion of the court:

These consolidated appeals arose from the determinations of the circuit court of McLean County in consolidated multiparty actions seeking damages for personal injuries, wrongful death, and loss of consortium allegedly resulting from exposure of workers at the Bloomington, Illinois, factory owned by Union Asbestos and Rubber Company (UNARCO) to asbestos or diatomaceous earth (McLean County case Nos. 79 — L—147, 80 — L—93, 81 — L—206, 84 — L—129, and 86 — L—112). The cases were tried on theories of negligence and strict liability. It is alleged the asbestos was sold by Johns-Manville Corporation or related entities. As a result of bankruptcy court proceedings, the Manville Personal Injury Settlement Trust was established as a means to satisfy claims due to exposure to Johns-Manville asbestos. For purposes of litigation, the trust is identified as the Manville Corporation Asbestos Disease Compensation Fund (Fund). The Fund was substituted as party defendant for the Johns-Manville Corporation and its affiliated entities. The diatomaceous earth was allegedly sold by defendant Grefco, Inc.

In this consolidated appeal, the following plaintiffs appeal in No. 4 — 91—0090 from adverse rulings in the trial court: Mary Smith, administrator of the estate of Wesley Smith, deceased, and individually; Ray Deitz; Walter Lehr; John Handley; Juan Mendiola; Sarita Mendiola; William Dugan, administrator of the estate of Merle Dugan, deceased; Wilha Dietrich; Margaret Harmon, administrator of the estate of Thomas Harmon, deceased; Vernadine Thacker, administrator of the estate of Charles Thacker, deceased, and individually; Dorothy Betts, administrator of the estate of Elijah Betts, deceased, and individually; Chlora Skinner, administrator of the estate of Robert Skinner, deceased, and individually; Ethel Babb, administrator of the estate of Joseph Babb, deceased, and individually; Gladys Nevius, administrator of the estate of Ernest Nevius, deceased and individually; Betty Redman, administrator of the estate of George Redman, deceased; Delora Stewart; Robert Day; and Lee Hayes.

This court has further designated as No. 4 — 91—0057 Juan and Sarita Mendiola’s appeal from an adverse decision in McLean County case No. 81 — L—206.

In No. 4 — 91—0066, Grefco appeals from judgments entered in favor of Robert Day; John Handley; Lee Hayes; Wilha Dietrich; Dewey Durbin; Joseph Finfrock; Jerry Heck; Margaret Harmon, administrator of the estate of Thomas Harmon, deceased, and individually; Delora Stewart; and Robert Van Dorn. Grefco also seeks review of the judgment entered in favor of third-party defendants Wedron Silica Company (Wedron) and the Fund on Grefco’s claim for contribution and of the denial of Grefco’s motion for summary judgment on the grounds that Grefco is legally responsible for the acts of Great Lakes Carbon Company (GLC).

In No. 4 — 91—0046, the Fund appeals from the judgments entered in favor of John Handley; Robert Day; Lee Hayes; Ethel Babb, administrator of the estate of Joseph Babb, deceased, and individually; Betty Redman, administrator of the estate of George Redman, deceased, and individually; Gladys Nevius, administrator of the estate of Ernest Nevius, deceased and individually; Dorothy Betts, administrator of the estate of Elijah Betts, deceased, and individually; Chlora Skinner, administrator of the estate of Robert Skinner, deceased, and individually; and Delora Stewart.

The respective parties to this appeal raise several issues for this court’s consideration, i.e., whether reversible error occurred in any or all of the following ways: (1) granting summary judgment to defendants with regard to the alleged injuries of Wesley Smith on the ground that the cause of action was barred by the statute of limitations; (2) refusing plaintiffs’ tendered instruction on Grefco’s failure to produce a witness; (3) allowing Grefco to call as an expert witness a person disclosed as an expert in a letter dated September 7, 1989, even though the extended order of disclosure of expert witnesses expired on that date; (4) refusing to strike the testimony of Jerome Wiot, or to declare a mistrial, based on a violation of Supreme Court Rule 220 (134 Ill. 2d R. 220); (5) dismissing Wilha Dietrich’s action against the Fund based on collateral estoppel and the statute of limitations; (6) giving to the jury a special interrogatory tendered by Grefco regarding whether the lung disease of Deitz and Lehr was proximately caused by exposure to diatomaceous earth supplied to UNARCO by Grefco or GLC; (7) restricting the plaintiffs’ examination of Gregg Smith, a Fund employee, and Dr. Thomas Davison, formerly a chief medical officer of the Johns-Manville Waukegan plant and corporate medical director of the Johns-Manville Corporation; (8) directing a verdict in favor of defendants on the claimed injuries of Juan Mendiola; (9) allowing the Fund to assert a defense of assumption of risk against Handley’s claim for injury; (10) allowing as a setoff against the judgment in favor of Stewart for loss of consortium due to the asbestosis of her husband William earlier settlements entered into between the estate of William Stewart and other tortfeasors; (11) the failure of any or all of the plaintiffs to prove that asbestos supplied by Johns-Manville proximately caused the plaintiffs’ injuries; (12) allowing the jury to consider evidence that plaintiffs were at an increased risk of cancer over an objection that such evidence was speculative; (13) striking, as a matter of law, the Fund’s defense that UNARCO’s conduct was a superseding cause of plaintiffs’ injuries; (14) instructing the jury with regard to the Fund’s statute of limitations defense against the claim of Handley and refusing to grant the Fund a directed verdict against Handley on the basis of the statute of limitations; (15) permitting the expert testimony of Dr. Susan Daum into evidence in violation of Supreme Court Rules 219 and 220 (134 Ill. 2d Rules 219, 220); (16) admitting evidence of conditions at the Johns-Manville plant in Waukegan through the testimony of three former Johns-Manville employees over objections to the relevance of such evidence; (17) denying the Fund a fair trial by trial tactics employed by plaintiffs’ counsel calculated to prejudice the jury against the Fund; (18) ruling that Grefco was collaterally estopped from contesting the following facts: (a) fibrosis of the lungs is caused by exposure to diatomaceous earth; (b) Grefco knew, before distributing diatomaceous earth to the UNARCO plant, that exposure to diatomaceous earth causes fibrosis; (c) Grefco distributed diatomaceous earth to the UNARCO plant; (d) Grefco was responsible for the sale of diatomaceous earth by GLC to UNARCO; and (e) Grefco was negligent in failing to warn of the hazards of exposure to diatomaceous earth and particularly the risk of fibrosis of the lungs by failing to place warnings on bags of diatomaceous earth supplied to UNARCO from 1953 to 1967; (19) refusing to grant Grefco a judgment n.o.v. based on plaintiffs’ failure to prove that exposure to Grefco’s product was a substantial factor in causing plaintiffs’ injuries or that Grefco’s product was the medical cause of plaintiffs’ injuries; (20) the verdicts against Grefco are excessive and unsupported by the evidence such that they should be remitted or a new trial awarded; (21) refusing to sever the plaintiffs’ claims against Grefco for trial; (22) striking the testimony of Dr. Robert Jones, Grefco’s expert witness, based on a violation of Supreme Court Rule 220(cX3) (134 Ill. 2d R. 220(c)(3)), particularly in light of the fact that the trial court conceded in ruling on the post-trial motion that it erred in striking the evidence as to some of the plaintiffs; (23) admitting into evidence plaintiffs’ exhibit Nos. 44, 45, and 46 (newspaper and magazine articles), plaintiffs’ group exhibit No. 3 (reports from the Johns-Manville plant in Waukegan regarding occupational diseases at the plant), and plaintiffs’ exhibit No. 51 (a document purporting to state the ingredients used to make Unarcoboard), or whether the cumulative effect of these errors denied Grefco a fair trial; (24) striking the following affirmative defenses raised by Grefco: (a) plaintiffs were contributorially negligent because of their cigarette smoking; (b) the scientific and industrial communities did not recognize a risk from exposure to diatomaceous earth at the time of plaintiffs’ exposure, thereby relieving Grefco of a duty to warn; (c) plaintiffs’ employer was a sophisticated user of diatomaceous earth and, therefore, Grefco had no duty to warn; and (d) the actions of UNARCO were a superseding cause of plaintiffs’ injuries; (25) dismissing Grefco’s third-party complaint for contribution against the Fund and Wedron; (26) refusing to rule that any or all of plaintiff’s claims were barred by the statute of limitations; and (27) denying Grefco’s motion for summary judgment made on the ground that GLC, and not Grefco, was responsible for supplying diatomaceous earth to the UNARCO plant during the period 1953 to mid-1966, pursuant to the terms of a March 24, 1966, agreement between Grefco’s parent corporation and GLC and assignments from the parent corporation to Grefco.

The record in these cases is voluminous. For this reason, and because the parties are familiar with the facts of this case, only those facts necessary for the disposition of each issue will be discussed as the issue is analyzed.

I. Dismissal Of Grefco’s Third-Party Complaint For Contribution Against The Fund And Wedron

The first issue to consider is raised by Grefco in No. 4—91— 0066, i.e., whether the trial court erred in dismissing Grefco’s third-party complaint for contribution against the Fund and Wedron premised on the products supplied to UNARCO by third-party defendants. In addition to the asbestos supplied by companies covered by the Fund, Wedron was alleged to have supplied silica flour, a fibrogenic form of crystalline silica. The Fund and Wedron moved to dismiss the third-party action on the ground that plaintiffs’ exposure to their products predates the March 1, 1978, effective date of the Illinois Contribution Act (Act) (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.).

In People v. Brockman (1991), 143 Ill. 2d 351, 366, 574 N.E.2d 626, 631, the Act was discussed. The Illinois Supreme Court noted the Act applies only to “causes of action arising out of occurrences on and after March 1, 1978.” (Brockman, 143 Ill. 2d at 369, 574 N.E.2d at 633, citing Ill. Rev. Stat. 1987, ch. 70, par. 301 and Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437.) Brockman conclusively decided that if the wrongful occurrence did not take place on or after March 1, 1978, no right to contribution exists. The dismissal of the third-party complaint is affirmed.

II. Issues Raised By Plaintiffs

In an attempt to organize this disposition in an understandable fashion, we will next address the 10 issues raised by the plaintiffs before considering issues raised by the Fund or Grefco.

A. Propriety of Dismissing Wilha Dietrich’s Action Against the Fund Based on Collateral Estoppel and the Statute of Limitations

The second issue which will be considered is raised by plaintiff Wilha Dietrich in No. 4—91—0090, i.e., whether the dismissal of her action against the Fund based on collateral estoppel and the statute of limitations was error. When the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and any allegations which are merely conclusions, unsupported by allegations of specific facts, are not admitted. The test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendant. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505-06, 485 N.E.2d 372, 374.) Dietrich alleged she discovered her injury on March 21, 1979. However, section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) allows for the filing of a motion for involuntary dismissal based on defects or defenses enumerated in the statute, and if the ground for dismissal is not evident from the face of the pleading, the motion may be supported by affidavit. (Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564, 574 N.E.2d 1328, 1330.) Prior to trial, the Fund filed a section 2 — 619 motion to dismiss Dietrich’s cause of action on the ground that, in a previous trial involving Dietrich (Dietrich v. North American Asbestos Corp. (Cir. Ct. McLean Co.), No. 79 — L—147), her physician, Dr. Albert Van Ness, testified he told her in 1971 that she had fibrosis from exposure to asbestos. In the previous case, Dietrich appealed a judgment entered in favor of North American Asbestos Corporation (NAAC) and the testimony of Van Ness was clearly set forth in this court’s disposition. (Dietrich v. North American Asbestos Corp. (1987), 157 Ill. App. 3d 1160 (unpublished order pursuant to Supreme Court Rule 23).) If when Dietrich discovered her injury was a material fact in determining whether she could bring the earlier action and, therefore, it has been fully litigated in an action involving Dietrich and she is barred by the doctrine of collateral estoppel from relitigating that fact, the impact on this case is that Dietrich’s suit against the Fund, instituted in 1979 in McLean County case No. 79 — L—147, is barred by the statute of limitations. The trial judge in the case against NAAC directed a verdict, finding among other things that Dietrich was told in 1971 she had asbestosis and her cause of action was barred by the statute of limitations.

Collateral estoppel applies when (1) the issue in the former case and pending case is identical; (2) a final judgment on the merits has been rendered by a court of competent jurisdiction in the cause asserted as a bar; and (3) the party against whom estoppel is asserted is the same party or in privity with a party in the first cause, and has had a full opportunity to litigate the issue or question. (Mohn v. International Vermiculite Co. (1986), 147 Ill. App. 3d 717, 720, 498 N.E.2d 375, 377; see also Wolford v. Owens-Coming Fiberglas Corp. (1988), 176 Ill. App. 3d 312, 314, 530 N.E.2d 721, 722.) The issues are identical, to wit: when did Dietrich know, or through the use of reasonable diligence should she have known, of her personal injury and the wrongful cause thereof. The time of discovery of the injury is a material fact in both cases. It having been determined in the earlier case that Dietrich learned of her asbestosis in 1971, she cannot now relitigate that fact and she is barred by the two-year statute of limitations from bringing a cause of action against the defendants. (Ill. Rev. Stat. 1989, ch. 110, pars. 13 — 202, 13 — 213(d).) Dietrich was a party to both actions, she had a full opportunity to litigate the issue in the earlier action, and the trial court made a determination of the fact question. On direct appeal of the earlier case, the judgment was affirmed. (See Dietrich, 157 Ill. App. 3d 1160 (unpublished order under Supreme Court Rule 23).) Although the issue presented here was not the basis for the appellate court decision, that does not alter the facts that the trial court in Dietrich v. North American Asbestos Corp. (Cir. Ct. McLean Co.), No. 79 — L—147, was a court of competent jurisdiction having authority to make such a finding and did make the finding, and the finding was not overturned on appeal. The dismissal of Dietrich’s complaint against the Fund in McLean County case No. 79 — L—147 is therefore affirmed in No. 4 — 91—0090.

B. Propriety of Granting Summary Judgment Against Wesley Smith Based on the Statute of Limitations

Next we consider whether the trial court erred in granting summary judgment to defendants as to the alleged injuries of Wesley Smith on the ground that the cause of action was barred by the statute of limitations, an issue raised in No. 4 — 91—0090. Summary judgment is a drastic remedy and is appropriate where no genuine issue of material fact exists and the moving party’s right to it is clear and free from doubt. In determining the propriety of granting summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Although inferences may be drawn from undisputed facts, an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304, 1307-08.) The application of the discovery rule to determine when a party knows or reasonably should have known the injury occurred and it was wrongfully caused such that the statute of limitation begins to run is a question of fact, unless the facts are undisputed and only one conclusion may be drawn from them (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868-69), in which case summary judgment will be an appropriate disposition. It is pointed out in Nolan that it is unnecessary for the complaining party to know of a particular defendant’s negligent conduct in order for the statute of limitations to begin running. Instead, plaintiff should be on notice sufficient to warrant investigating into the cause of the wrongfully inflicted injury. See also Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.

Here, the trial court found that, as to Smith’s causes of action, there was no genuine issue of material fact in that Smith was informed of the diseased condition of his lungs more than two years prior to filing suit. Defendants were sued by Smith on May 19, 1980. In Smith’s deposition taken on August 6, 1980, Smith stated Dr. Robert Wheaton had been his family doctor for five or six years before he put Smith on sick leave from work in April 1980. Smith first went to see Wheaton for shortness of breath in 1973. He was told X rays revealed scars. The shortness of breath got worse, and he had chest pains “off and on.” Wheaton told Smith the scarring was possibly connected with asbestos. Further tests were recommended, but Smith put off the tests because he did not like the traffic conditions in Milwaukee, where the tests were to be conducted. Milwaukee was about 30 miles from his home.

Wheaton gave his evidence deposition on February 21, 1990. Wheaton testified he first saw Smith in February 1974. In interpreting X rays taken in August 1976, the possibility that scarring was involved was noted. At that time, the doctor considered fibrosis, but did not diagnose asbestosis since a biopsy had not been done. He discussed this with Smith in 1977. On a typewritten report of a chest X ray taken on September 22, 1977, Wheaton added a handwritten note “probably asbestosis.” To the best of Wheaton’s recollection, he informed Smith of the probable asbestosis. On January 3, 1978, on another X-ray report, Wheaton’s handwritten note clearly implicated asbestosis as the cause of Smith’s lung condition. Wheaton said he would have informed Smith of his impression. Wheaton also confirmed that Smith did not want to drive to Milwaukee for a consultation with a pulmonologist to whom Wheaton wanted to refer him. Wheaton later testified there was no definite diagnosis of asbestosis in 1976 because no biopsy had been done. It is Wheaton’s opinion that a lung biopsy must be done to reach a definite diagnosis of asbestosis. The first lung biopsy was done on Smith in April 1979. The results of that biopsy showed Smith had asbestosis. An electronic microscopy was done to confirm the diagnosis. Wheaton received the test results on April 11 and 23, 1979. That was when he related to Smith that he had asbestosis. With regard to the earlier X rays, the reports were uncertain as to the etiology of the scarring, although a fibrosis as opposed to an acute pneumonia was indicated. Until the biopsy was done by a consultant named Dr. Schlueter, Wheaton was referring to Smith’s condition as interstitial lung disease because it was undetermined exactly what it was. Wheaton also stated he did not recall telling Smith before the biopsy that Smith had asbestosis.

As related in Nolan, the law is that a cause of action arises when a person knows or should know, through reasonable diligence, of the injury and its wrongful causation. In this case, Smith was alerted to the fact of injury and to the possibility of its wrongful causation, although the doctor’s diagnosis was not absolutely certain in the absence of a biopsy, but Smith would not drive to Milwaukee for further tests by a specialist. Smith was certainly put on notice and, had he pursued the recommended treatment, would have discovered the fact his lung injury was wrongfully caused more than two years before he filed suit in this case. For this reason, the summary judgment in favor of the Fund and Grefco and against Smith in McLean County case No. 80 — L—93 is affirmed in No. 4 — 91—0090.

C. Directed Verdict in Favor of the Fund and Grefco as to Injuries of Juan Mendiola

Next, we consider whether the trial court’s directing a verdict in favor of defendants on the claimed injuries of Juan Mendiola was error, an issue raised in Nos. 4 — 91—0057 and 4 — 91—0090. At the conclusion of plaintiffs’ case in chief, the Fund and Grefco moved for directed verdicts on the causes of action of Juan and Sarita Mendiola (McLean County case Nos. 81 — L—206 and 84 — L—129) on the ground there was lack of evidence that Juan had been injured from exposure to their products. The trial court denied both motions. At the end of all of the evidence, both defendants again moved for directed verdict and the trial judge granted the motions indicating he did not believe there was an “expert opinion in evidence” causally connecting Hendiola’s illness with exposure to asbestos or diatomaceous earth.

The standard for granting a directed verdict is the same as the standard for granting a judgment n.o.v. A directed verdict or a judgment n.o.v. should be entered only where all of the evidence, when viewed in its aspects most favorable to the opponent to the motion for judgment n.o.v., so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Dr. Robert Conklin testified he examined and treated Hendióla beginning on September 5, 1980. The examination revealed a “scattered inspiratory rhoncus” in the right lung and a history of coughing up blood intermittently for several months. A biopsy did not reveal the presence of lung cancer, but instead revealed an acute inflammation. The medical history revealed Hendióla was a heavy smoker and had been exposed to asbestos from 1969 to 1970. It was believed the cough was due to bronchitis. Hendióla was treated as an outpatient with aerosol medications and antibiotics. After that, Conklin saw him on October 9 and November 3, 1980, and again on Harch 12, 1984. When Conklin saw him last, he was overweight and had high blood pressure, but there was no definite evidence of pulmonary asbestosis.

Conklin was allowed to testify, over objection by the Fund, that workers from the UNARCO plant are at an increased risk of bronchial conditions, cancer, and heart failure as a result of exposure to asbestos. The trial judge instructed the jury that this testimony was only to be considered insofar as it related to the cost of medical monitoring of these patients in the future.

There is no mention of exposure to diatomaceous earth in Conklin’s testimony. As a result, the directed verdicts in Grefco’s favor will be affirmed. In addition, the medical testimony does not establish that Mendiola suffered a present injury from asbestos exposure. There must be a present injury to warrant recovery under Illinois law. (Morrissy v. Eli Lilly & Co. (1979), 76 Ill. App. 3d 753, 761, 394 N.E.2d 1369, 1376 (rejecting claims for possible future injury due to exposure).) Accordingly, the directed verdicts in favor of the Fund and Grefco and against Juan and Sarita Hendióla in HcLean County case Nos. 81—L—206 and 84—L—129 are affirmed in Nos. 4—91—0057 and 4-91-0090.

D. Propriety of Setoff Against Judgment for Delora Stewart Based on Earlier Settlements

The next of plaintiffs’ issues to be considered is that of plaintiff Delora Stewart in No. 4—91—0090, i.e., whether the trial court erred by allowing as a setoff against the judgment in her favor for loss of consortium due to the asbestosis of her husband William based on earlier settlements entered into between the estate of William Stewart and other tortfeasors. The jury returned a verdict in favor of Stewart and against the Fund in the amount of $275,000 in McLean County case No. 80—L—93. Following consideration of the Fund’s post-trial motion, the trial court held that the entire amount of Stewart’s judgment was subject to a setoff because of earlier settlements between William’s estate and other tortfeasors. In December 1987, wrongful death, survival, and loss of consortium causes of action had been settled with NAAC for $400,000. Fifty thousand dollars of the amount was specifically allocated to the wrongful death claim. However, no allocation was made between the survival and loss of consortium causes of action.

As this court has commented, an injured person is entitled to only one fully compensable recovery for his injury. A double recovery for the injury violates public policy. Therefore, a plaintiff cannot be heard to complain that a defendant is entitled to a setoff for damages already recovered by plaintiff. (Eberle v. Brenner (1987), 153 Ill. App. 3d 700, 703, 505 N.E.2d 691, 694.) In this case, the problem arises because of the failure to allocate the recovery among the various causes of action in the earlier case.

Both parties cite McDaniel v. Hoge (1983), 120 Ill. App. 3d 913, 458 N.E.2d 1063, and Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 426 N.E.2d 614. In both cases, the question was whether the trial court that heard the case committed an abuse of discretion in allocating a settlement between counts so that workers’ compensation liens did not attach. Here, Stewart would have had this trial court allocate her recovery in a different case. That would entail virtually retrying her cause of action against NAAC. The supplemental opinion in Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 189a, 471 N.E.2d 195, 199, points out that only where the parties to the settlement have failed to designate the allocation in their settlement agreement is the trial court required to exercise discretion at all to allocate the settlement.

Apparently, the issue of allocation, with the exception of the wrongful death action, never arose in the case against NAAC. The trial court in this case cannot allocate those funds, and the question here is not whether the trial court committed an abuse of discretion in refusing to allocate.

Stewart does not contend the Fund was not entitled to a set-off, but only contends the amount of setoff was not properly calculated. Stewart would have the trial court look to the survival and derivative counts now in the McLean County case No. 80—L—93 to determine the comparison between the average awards on survival and derivative theories. On this basis, Stewart suggests only 27% of the unallocated $350,000 of the 1987 settlement with NAAC should have been applied as a setoff in the case at bar. Of course, the resolution of causes of action against NAAC might have resulted in a vastly different allocation, and the trial court’s refusal to proceed on the basis suggested by plaintiffs was proper. Since Stewart failed to agree on an appropriate allocation in the case against NAAC or to have the trial court exercise its discretion therein to determine an appropriate allocation, it is Stewart’s burden, and not the Fund’s (which is admittedly entitled to some setoff), to establish the entire unallocated $350,000 of the 1987 settlement was not attributable to her cause of action for loss of consortium against NAAC in the earlier case. Under the circumstances presented here, the trial court did not have any alternative but to apply the entire $350,000 as a setoff against the judgment in No. 80—L—93; accordingly, that ruling is affirmed in No. 4—91-0090.

E. Propriety of Refusing Plaintiffs’ Instruction on Gref go’s Failure to Produce a Witness

The next of the plaintiffs’ issues in No. 4—91—0090 to be considered is whether the trial court erred in refusing plaintiffs’ tendered instruction on Grefco's failure to produce a witness. Plaintiffs tendered an instruction on the failure of a party to produce a witness based on Illinois Pattern Jury Instruction, Civil, No. 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1991) (hereinafter IPI Civil 3d)). IPI Civil 3d No. 5.01 allows an adverse inference to be drawn from the failure of the party to produce a witness if (1) the witness was trader the control of the party and could have been produced with reasonable diligence; (2) the witness was not equally available to an adverse party; (3) a reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him; and (4) no reasonable excuse for the failure to produce the witness has been shown. The trial court refused the instruction even though plaintiffs argued Grefco failed to call disclosed expert witnesses, including Dr. Clark Cooper, a pulmonologist.

Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 201-02, 549 N.E.2d 1295, 1304, summarized the standard used for determining when IPI Civil 3d No. 5.01 is appropriate. The giving of IPI Civil 3d No. 5.01 rests in the sound discretion of the trial court, and reviewing courts will reverse only when a clear abuse of discretion is demonstrated. Prior to giving the instruction, the trial court must ascertain whether, in all likelihood, the party would have produced the witness under the facts and circumstances of the case unless the testimony would be unfavorable. For example, if the witness’ testimony would be cumulative of facts already established, the instruction is not warranted.

In this case, the refusal to give the instruction was not clearly shown to be an abuse of discretion. Plaintiffs point to nothing in the record from which this court can determine that Cooper would have been produced but for the fact that his testimony would have been unfavorable. We decline to require every party to produce every expert it lists as a possible witness in order to avoid the unfavorable inference instruction. We affirm the trial court’s ruling on plaintiffs’ instruction.

F. Propriety of Giving Special Interrogatory Regarding the Proximate Cause of Lung Disease in Deitz and Lehr

We next consider whether the trial court erred in giving to the jury special interrogatories tendered by Grefco regarding whether the lung disease of Deitz and Lehr was proximately caused by exposure to diatomaceous earth supplied to UNARCO by Grefco or GLC, another issue raised in No. 4—91—0090. Grefco’s instruction No. 106 was a special interrogatory to the jury regarding Deitz which inquired whether the jurors find that Deitz has a lung disease proximately caused by exposure to diatomaceous earth supplied by Grefco or GLC. Grefco’s instruction No. Ill was an interrogatory identical to the Deitz interrogatory, other than the substitution of Lehr’s name. In fact, Grefco’s instruction Nos. 103 through 114 were all similar except to the individual plaintiff to which they referred. Over plaintiffs’ objection, the court gave Grefco instruction Nos. 103 through 114.

Section 2— 108 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1108) provides for the use of special interrogatories. A special interrogatory is an effective device for testing the jury’s comprehension of a case and can serve to clarify and sharpen the jury’s consideration of questions presented by the evidence in the case. (First National Bank v. Szwankowski (1969), 109 Ill. App. 2d 268, 275, 248 N.E.2d 517, 521.) Special interrogatories can test the general verdict against the jury’s conclusions as to ultimate controlling facts. (Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 835, 507 N.E.2d 930, 939.) The terms of the special interrogatory must be capable of being understood by the jury in order to serve its purpose. (See, e.g., Struthers v. Jack Baulos, Inc. (1977), 52 Ill. App. 3d 823, 368 N.E.2d 148.) As this court pointed out in Duffin, proposed special interrogatories should not be ambiguous and should use the same language or terms as are contained in other instructions so as not to confuse or mislead the jury-

Plaintiffs complain that Deitz and Lehr sought damages for “fibrosis of the lungs” and the use of the term “lung disease” in the special interrogatories was misleading and ambiguous. The testimony in the case discussed asbestosis, fibrosis, silicosis, and pneumoconiosis, all diseases of the lungs. The trial court used the term “lung disease” throughout the jury instructions to encompass the claimed injuries of all plaintiffs, even though those instructions also specifically refer to fibrosis, asbestosis, and lung cancer on occasion. However, if the jury found Deitz and Lehr did not have a lung disease proximately caused by diatomaceous earth, that would include fibrosis of the lungs. Plaintiffs do not contend the answers to the special interrogatories are inconsistent with the general verdicts as to Deitz and Lehr. The language employed is not ambiguous or confusing in light of the evidence presented at trial and the other instructions, and the giving of the special interrogatories was not error.

G. Propriety of Allowing the Fund to Assert an Assumption of Risk Defense Against John Handley’s Claim for Injuries

Another issue plaintiff John Handley asks this court to consider is whether the trial court erred by allowing the Fund to assert a defense of assumption of risk against his claim for injury. In this issue, Handley raises three contentions: (1) the Fund’s pleading of the affirmative defense of assumption of risk was deficient; (2) the examination of Conklin by the Fund and Grefco was improper in a number of respects; and (3) the trial court improperly instructed the jury as to assumption of risk. The jury returned a verdict for Handley against the Fund, but reduced the verdict by 50%, finding Handley had assumed the risk of injury resulting from exposure to asbestos dust.

1. The Pleading of the Affirmative Defense

In the second-amended complaint in cause No. 80—L—93, Handley alleged an action for products liability against the Fund. In that complaint, Handley alleged the Fund knew before it sold any asbestos to UNARCO that exposure to “asbestos particles” caused asbestosis, which was the injury Handley allegedly contracted because of such exposure. Handley also alleged the asbestosis produced by the Fund was so hazardous it should not even be sold. The Fund’s eleventh affirmative defense was directed at Handley and Deitz. (In this context, of course, we are only concerned with Handley.) In this affirmative defense, the Fund alleged Handley assumed the risk by working at the UNARCO plant with knowledge that “the dust exposure” was harmful and that he suffered from a lung injury; Handley knew he was breathing “the dust complained of” into his lungs; he was advised by a physician that he suffered from a lung injury and the dust he was breathing at UNARCO was harmful and caused or contributed to the lung injury; notwithstanding this knowledge, Handley continued to work at UNARCO and “voluntarily breath[ed] the dust complained of, although he had the option to take precautionary measures or seek alternative employment.”

Initially, Handley argues the affirmative defense, as pleaded, improperly asserts that he assumed the risk by failing to obtain alternative employment. However, Handley never moved to strike the affirmative defense on this ground. Nor was this a basis for his argument to the trial court that the affirmative defense should be dismissed, or in the alternative, a verdict should be directed. Instead, Handley only argued that the Fund failed to plead:

“First, that the plaintiff knew of the condition which the plaintiff claims make the asbestos unreasonably dangerous; second, that the plaintiff understood and appreciated the risk of injury from that condition and proceeded to use the asbestos anyway; third, that the known condition was a proximate cause of the plaintiff’s injuries.”

Therefore, for purposes of review, Handley has waived his argument that the Fund improperly pleaded failure to seek alternative employment as a basis for the affirmative defense of assumption of risk. In any event, the Fund also pleaded Handley’s failure to take precautionary measures so that the affirmative defense would not have been entirely dismissed for the deficiency now asserted anyway. We now consider those contentions which have been preserved for review.

The affirmative defense of assumption of risk operates to reduce plaintiff’s recovery by that amount which the jury finds him to have been at fault. The test is subjective in that it is plaintiff’s knowledge, understanding, and appreciation of the danger which must be assessed, rather than that of the reasonably prudent person. The defense applies only if the plaintiff is actually aware of the defective nature of the product and appreciates its unreasonably dangerous character, but chooses voluntarily to act in disregard of the known danger. (Suich v. H & B Printing Machinery, Inc. (1989), 185 Ill. App. 3d 863, 870, 541 N.E.2d 1206, 1211.) Of course, in assessing the propriety of a ruling on a motion to dismiss a pleading, all well-pleaded facts are taken as true, but conclusions unsupported by alleged facts are disregarded. When pleading affirmative defenses, the requirement of pleading facts still pertains. Ill. Rev. Stat. 1989, ch. 110, par. 2—613(d).

Here, Handley pleaded the product was so hazardous as to be incapable of being safely used. Plaintiff also pleaded the hazardous nature of the product caused injury to him when he breathed the particles. Defendant pleaded plaintiff was told by a physician that he had a lung disease and should stop working around the dust. If these facts are proved, the reasonable inferences therefrom are that Handley knew of the hazardous nature of asbestos, understood and appreciated the health risks associated with continued exposure, and nevertheless voluntarily disregarded the danger. Plaintiff also pleaded that his injury was proximately caused by the hazardous nature of the asbestos.

A defense is affirmative in nature if by raising it the defendant gives color to the plaintiff’s cause of action and then asserts new matters which apparently defeat plaintiff’s right to remedy. (Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 533, 445 N.E.2d 844, 855.) So in pleading the affirmative defense, the Fund necessarily acknowledges that the defense applies even assuming plaintiff proves his injuries were proximately caused by the hazardous condition of asbestos. Therefore, in order to plead an affirmative defense, a defendant need not admit the elements of the plaintiff’s cause of action are true, but only allege that if plaintiff proves those elements, then plaintiff’s right to relief is defeated by new matters, in this case, the assumption of risk. The pleading is not deficient.

2. The Examination of Dr. Conklin

As for the sufficiency of the evidence, Handley only contends the defendants were improperly allowed to ask Dr. Robert Conklin a leading question. On one occasion, after Conklin testified he had no recollection as to whom he had given a note he wrote dated June 14, 1967, he was asked, “Well, would Defendant Manville[’s] Exhibit [No.] 3 correspond to your normal practice that you follow that you just described?”

It has long been the rule that the manner in which questions are allowed to be put to a witness rests in the discretion of the trial court. (Mayville v. French (1910), 246 Ill. 434, 440-41, 92 N.E. 919, 922 (indicating that in that case although some leading questions were allowed, no harm was done to the opposing party).) Plaintiff cites two cases as standing for the proposition that, generally, leading questions are not allowed by the party calling the witness, i.e., People v. Bennett (1954), 3 Ill. 2d 357, 365, 121 N.E.2d 595, 599, and Farmar v. Crane (1975), 32 Ill. App. 3d 383, 389, 336 N.E.2d 607, 613.

Here the question was not leading. The witness could answer yes or no. The question did not suggest the answer. Therefore, there was no abuse of discretion in overruling the objection. Handley also argues, without any citation to authority, that defendant Fund’s exhibit No. 3 should not have been admitted into evidence because it was hearsay. The note was addressed to “To Whom It May Concern” and advised the reader that Handley “should not work in a dusty atmosphere, particularly asbestos dust.” Plaintiff suggests that exhibit No. 3 does not show knowledge on Handley’s part even though Conklin explained that his normal practice, i.e., where he determined a patient’s work environment ought to be modified, was to give the patient a statement to that effect which the patient could then take to his employer. Obviously, if Handley had been given such a note, the jury could infer that he was aware of his condition. In any event, Conklin had already testified to the diagnosis and later said he told Handley about the diagnosis so the note was merely cumulative anyway. Handley further complains that on cross-examination of the witness by Grefco, Grefco should not have been allowed to ask leading questions because Grefco’s interest on this issue was the same as the Fund’s and Grefco was able to get into evidence, through leading questions, the fact that in 1967 when Conklin made his diagnosis, he discussed with Handley the fact that he had injured his lungs at UNARCO and should not go back to work. Of course, leading questions are allowed on cross-examination.

In this appeal, plaintiffs, including Handley, oppose Grefco’s position with regard to the need to sever all of these cases. Handley cites no authority for the proposition that Grefco should not have been allowed to use leading questions. No abuse of discretion on the part of the trial judge has been demonstrated.

3. The Instructions on the Assumption of Risk Defense

On the assumption of risk defense, the trial court refused plaintiff’s instruction No. 54 and gave the Fund’s instruction No. 10(a), both premised on IPI Civil 2d No. 400.03.01 (Supp. 1986) (Illinois Pattern Jury Instructions, Civil, No. 400.03.01 (2d ed. Supp. 1986)). In addition, the trial court refused plaintiff’s instruction No. 55 and gave the Fund’s instruction No. 11(a), both premised on IPI Civil 2d No. 400.03 (Supp. 1986) (Illinois Pattern Jury Instructions, Civil, No. 400.03 (2d ed. Supp. 1986)). The Fund’s instruction No. 10(a) stated:

“With *** respect to the claims of plaintiff, John V. Handley, the defendant, Manville Fund, has further asserted the defense that the plaintiff assumed the risk of injury. To establish that defense, the defendant has the burden of proving each of the following propositions:

First, that the plaintiff, John V. Handley, knew of the condition which plaintiff claims made the asbestos unreasonably dangerous;

Second, that the plaintiff, John V. Handley, understood and appreciated the risk of injury from that condition and continued to use the asbestos;

Third, that the known condition was a proximate cause of plaintiff’s injuries.

Plaintiff’s assumption of the risk, if any, does not bar his recovery. However, the total amount of damages to which he would otherwise be entitled is reduced in proportion to the amount of his fault in assuming the risk. This is known as comparative fault.”

Plaintiff’s instruction No. 54 is very similar and added a final paragraph as follows:

“The condition which the plaintiff claims made the asbestos unreasonably dangerous is as follows:

a) it contained no warning that exposure to asbestos caused asbestosis, mesothelioma, cancer of the lung, or cancer of the GI tract;

b) it contained no instruction whatsoever as to safe methods, if any existed, of handling and processing asbestos;

c) it was sold; stated in other words, asbestos is so dangerous and asbestos plant workers were so ignorant of its hazardous nature that it was improper to sell asbestos.”

Plaintiff’s tendered instruction unfairly emphasizes the allegedly unreasonably dangerous condition and was properly refused. See Ramos v. Pankaj (1990), 203 Ill. App. 3d 504, 509, 561 N.E.2d 744, 746.

Plaintiff’s instruction No. 55 stated:

“If you find that John Handley’s injury was proximately caused by an unreasonably dangerous condition of the asbestos and if you also find that the plaintiff assumed the risk of his injury, you must then determine the amount of damages to be awarded by you as follows:

First, determine the total amount of damages to which the plaintiff would be entitled under the court’s instructions if plaintiff had not assumed the risk;

Second, determine what portion or percentage is attributable solely to the plaintiff’s assumption of risk and the conduct of Grefco, Union Asbestos & Rubber Company and Cape Industries and the unreasonably dangerous condition of the asbestos each proximately contributed to the plaintiff’s injury.

Third, reduce the total amount of plaintiff’s damages by the proportion or percentage of plaintiff’s assumption of the risk.

The resulting amount, after making such reduction, will be the amount of your verdict.”

The Fund’s instruction No. 11(a) was essentially the same, but for the second proposition therein, which stated:

“Second, determine what portion or percentage is attributable solely to the plaintiff’s conduct in assuming the risk, considering the extent to which plaintiff’s assumption of risk and the conduct of Johns-Manville, Grefco and UNARCO and the unreasonably dangerous condition of the asbestos each proximately contributed to the plaintiff’s damage.”

Plaintiff argues it is error for the Fund’s instruction No. 11(a) to refer to the statute of limitations defense. The instruction directed the jury to determine damages in this fashion only after finding (1) Handley’s injury was proximately caused by exposure to defendant’s asbestos, (2) that the cause of action was filed within the statute of limitations period, and (3) that Handley assumed the risk of injury. No authority is cited, and it is only common sense to instruct the jury to consider the statute of limitations defense first. Since the jury obviously did not rule that Handley’s claim was barred by the statute of limitations, there does not appear to have been any harm to Handley even if it was error to include such a reference in the instruction.

The second error Handley alleges is that the absent tortfeasor, Cape Industries (which was not involved in the trial), should have been referred to in the instruction, as was UNARCO. At the instructions conference, the Fund pointed out that plaintiffs had wanted to keep out the names of other potential tortfeasors throughout trial and it would serve no purpose to include a reference to Cape Industries in the instruction. The trial judge agreed, stating his belief that the jury understood the responsible parties to be Grefco, UNARCO and the Fund.

Jury instructions should not confuse the jury. (See Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 1027, 524 N.E.2d 615, 622 (noting the jury instructions should fairly and accurately state the law while being concise, impartial, free from argument, and not misleading).) Here, the jury might well have begun to wonder who Cape Industries was and how it was involved if a reference had been made. Since very little reference, if any, had been made to Cape Industries at trial, at plaintiffs’ insistence, there was no abuse of discretion for the trial judge to refuse to include a reference to Cape Industries in the instructions.

H. Propriety of Rulings Restricting Plaintiffs’ Examination of Witnesses Smith and Davison

Plaintiffs next contend, also in No. 4 — 91—0090, that the trial court erred by restricting the plaintiffs’ examination of Gregg Smith, a Fund employee, and Dr. Thomas Davison, formerly a chief medical officer of the Johns-Manville Waukegan plant and corporate medical director of the Johns-Manville Corporation. The first witness called by plaintiffs was Smith. Smith testified that he had worked for the Fund for over two years. Prior to that employment, Smith worked for the Asbestos Claims Facility in Princeton, New Jersey. Smith had responsibility for the western region of the United States as defined by the Fund, which included Illinois.

Smith testified that the purpose of the Fund was to make payments to individuals exposed to Johns-Manville’s asbestos who had injuries resulting therefrom. During plaintiffs’ examination of Smith, plaintiffs’ attorney asked the following questions of Smith:

(1) “Well, as the Trust goes about its business, what does it use as a guideline as to how much asbestos it takes to cause asbestosis?”

(2) “Is the man’s disease the result of the total and cumulative effects of all the asbestos he has breathed?”

(3) “Isn’t it true, Mr. Smith, that in any exposure, if Manville asbestos was part of that exposure, because there is no known safe level, Manville’s asbestos is implicated as one of the causes of the disease that the worker suffered from or died from?”

To each of the preceding questions, the court sustained an objection by the Fund. On question (1), the basis for the objection was that the question had been asked and answered. To the remaining questions, the objection concerned the witness’ lack of competence to testify to those matters.

The Fund argues plaintiffs failed to include these questions in the offer of proof. The record clearly establishes these questions were not asked as part of the offer of proof. Where a party seeks to have a reviewing court determine whether the trial court’s rulings unduly restricted the examination of a witness, it must be clear from the record what the witness’ answer to the question would have been and what purpose would have been served by the testimony. This is accomplished by an offer of proof, and the failure to make an offer of proof waives the issue for review. (Moore v. Swoboda (1991), 213 Ill. App. 3d 217, 237-38, 571 N.E.2d 1056, 1070.) Therefore, the issue is waived.

In any event, the objections were properly sustained. Prior to the first of the above-quoted questions, Smith testified there had to be clear proof that an individual was exposed to Manville asbestos, but it was difficult to say how much exposure. Some diseases are related to dose and others are not. Some people could be exposed very heavily over a very short period of time, while other people could be exposed just a little bit for many years, and the effect may well be the same. Since Smith already testified to the guidelines the Fund used to assess claims, it was proper for the trial court to sustain the objection so as to forbid repetitive questioning. (See Norman v. American National Fire Insurance Co. (1990), 198 Ill. App. 3d 269, 300, 555 N.E.2d 1087, 1107.) In addition, the second and third questions would require the witness to have a level of expertise which plaintiffs’ examination of Smith did not establish he possessed. The trial court’s rulings were correct.

Plaintiffs also claim the trial court erred in restricting plaintiffs’ examination of Davison, a former Johns-Manville employee. Davison began his employment with Johns-Manville in 1962 as the chief medical officer of the Waukegan plant. In 1970, Davison became the corporate medical director of the Johns-Manville Corporation. While assigned to Waukegan, he had a clinic in the plant. During the time he was there, asbestos and diatomaceous earth were used in the Waukegan plant.

Plaintiffs complain their counsel was not allowed to ask Davison whether it was true that Johns-Manville operated its plants on the assumption that dust released in any part of the building was likely to become part of the atmosphere in the rest of the building when there were no partitions or walls and nothing to inhibit the movement of the particles. The colloquy is as follows:

“Q. [Plaintiff’s attorney on direct examination:] Isn’t it true, Dr. Davison, that in its own operations, Manville operated under the assumption that dust released in any part of a building was likely to become a part of the atmosphere in the entire rest of that building when there is [sic] no partitions, no walls, no nothing [to] inhibit the movement of those particles?

[FUND’S ATTORNEY]: Objection, your Honor.

THE COURT: Overruled.

[FUND’S ATTORNEY]: Leading, your Honor.

BY THE WITNESS:

A. I don’t technically know—

THE COURT: Sustained.

BY THE WITNESS:

A. —that that is true, but I would assume that from industrial hygiene surveys that were done that this would be their feelings.

[FUND’S ATTORNEY]: Excuse me, Doctor.

THE WITNESS: Yes, sir.

[FUND’S ATTORNEY]: I believe the objection is sustained.

THE COURT: I am going to sustain the objection.

THE WITNESS: Excuse me.

THE COURT: The answer is ordered stricken. The jury is ordered to disregard it.”

The question was leading, and the objection was properly sustained. In addition, the witness answered before he realized the objection had been ruled upon. What Davison “assumes” is neither his personal knowledge nor his expert opinion. On these bases, sustaining the Fund’s objection, striking the testimony, and directing the jury to disregard it would not be error.

Plaintiffs also argue they should have been allowed to ask Davison, “If you breath[e] in both asbestos and diatomaceous earth, can they both contribute to the disease?” To this question, the Fund and Grefco objected on the ground that Davison was not disclosed as an expert, and the objections were sustained. Earlier in his testimony, Davison had been asked to describe “pneumoconiosis,” which he indicated resulted from exposure to diatomaceous earth or silica. Grefco objected to his description of the disease on the grounds that Davison had not been disclosed as an expert by plaintiff and that objection had been sustained.

In Coleman v. Central Illinois Public Service Co. (1990), 207 Ill. App. 3d 96, 101-03, 565 N.E.2d 274, 277-79, this court suggested in dictum that an employee of an opponent need not be disclosed as an expert pursuant to Illinois Supreme Court Rule 220 where the employer-opponent already knows the employee’s opinion. One factor in Coleman which is not present in this case is that the employer was planning on calling the employee as a witness anyway. However, even if the trial court in this case erred as to the Fund’s objection, the trial court’s ruling was clearly proper as to Grefco.

Davison was not Grefco’s employee. Therefore, if plaintiffs wanted to inquire of Davison’s opinion regarding diatomaceous earth exposure, plaintiffs should have disclosed him as an expert pursuant to Rule 220. Since both questions related to exposure to diatomaceous earth, the objections were properly sustained.

I. Propriety of Rulings on Claimed Violations of Supreme Court Rule 220

We conclude our discussion of plaintiffs’ issues by considering two issues relating to Illinois Supreme Court Rule 220. These issues are whether the trial court erred (1) by allowing Grefco to call as an expert witness a person disclosed as an expert in a letter dated September 7, 1989, even though the extended order of disclosure of expert witnesses expired on that date; and (2) in refusing to strike the testimony of Jerome Wiot, or to declare a mistrial, based on a violation of Rule 220.

Supreme Court Rule 220 states, in pertinent part:

“(b) Disclosure.

(1) Expert witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:

(i) ascertain the identity of such witnesses, and

(ii) obtain from them the opinions upon which they may be requested to testify.

In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. The schedule established by the trial court will sequence the disclosure of expert witnesses in accordance with the complexities of the issues involved and the burdens of proof of the respective parties as to those issues. All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. Upon disclosure, the expert’s opinion may be the subject of discovery as provided in paragraph (c) hereof. Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.

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(c) Discovery.

(1) Upon interrogatory propounded for that purpose, the party retaining or employing an expert witness shall be required to state:

(i) the subject matter on which the expert is expected to testify;

(ii) his conclusions and opinions and the bases therefor; and

(in) his qualifications.

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(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel.

* * *

(d) Scope of Testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with [n]or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (134 Ill. 2d Rules 220(b), (c), (d).)

Recently, in Baird v. Adeli (1991), 214 Ill. App. 3d 47, 60-61, 573 N.E.2d 279, 286-87, this court discussed the various purposes of these subsections of Rule 220. After observing that, generally, the rule promotes the timely and good-faith pretrial disclosure of expert witnesses to prevent surprise and to facilitate pretrial investigation of credentials of the expert and preparation of cross-examination as well as the substance of the testimony of the opposing party’s own expert, this court further noted that each subsection of the rule has a different function. Rule 220(b) allows a trial court to establish a disclosure schedule so as to disqualify an expert who is not properly disclosed, and Rules 220(c) and (d) require timely notification of shifts in an expert’s theory or belief and the limiting of the e