Shimanovsky v. General Motors Corp.

Annotate this Case
Shimanovsky v. GM, No. 79083 (2/20/97)

Docket No. 79083--Agenda 7--March 1996.
Opinion filed February 20, 1998.

JUSTICE NICKELS delivered the opinion of the court:
Plaintiffs, Mildred and Almarvin Shimanovsky, filed a complaint in the
circuit court of Cook County alleging that a defect in their automobile caused a
crash in which Mildred suffered severe injuries. The automobile was manufactured
and designed by defendant, General Motors Corporation. The circuit court granted
defendant's motion to dismiss plaintiffs' cause of action under Supreme Court Rule
219(c) (166 Ill. 2d R. 219(c)), as a discovery sanction. The appellate court affirmed
in part and reversed in part. 271 Ill. App. 3d 1. This court granted defendant's
petition for leave to appeal (166 Ill. 2d R. 315(a)). We affirm the judgment of the
appellate court.

Based on the pleadings, discovery materials, motions and the responses
thereto, the facts are as follows. On July 7, 1985, Mildred was driving her 1982
Chevrolet Caprice on an interstate highway in Cook County. The automobile
suddenly lost power-steering control, causing it to swerve and strike a guard rail on
the right side of the road and then rebound across all lanes of traffic and strike a
concrete barrier on the opposite side of the road. Mildred suffered severe injuries
as a result of the crash.
Soon after the accident, plaintiffs' counsel retained John Stilson, a
mechanical engineer, to investigate whether the automobile possessed a defect which
may have caused the crash. Stilson's initial inspection of the automobile did not
reveal any defect which would result in a loss of power-steering control. Thus,
Stilson determined that an internal inspection of the automobile's power-steering
mechanism was necessary. On September 20, 1985, Stilson removed the power-
steering mechanism from the automobile and disassembled it. The internal
inspection revealed that various components of the power-steering mechanism were
damaged by the crash. In addition, grooves were discovered in one of the power-
steering components. Stilson recommended to plaintiffs' counsel that a metallurgist
be retained to determine whether the grooves were a result of the crash or whether
they indicated a possible defect. Consequently, plaintiffs' counsel hired metallurgist
Lyle Jacobs. In October 1985, Jacobs examined the power-steering mechanism and
concluded that it was necessary to section some of the components in order to
determine the cause of the grooves. Accordingly, Jacobs sectioned the components
and performed various tests on the sectioned pieces. As a result of these tests,
Jacobs concluded that the grooves were not damage from the crash, but rather were
the result of long-term wear. To support his conclusion, Jacobs provided a written
report and 27 photographs which documented the various tests and analysis he
performed on the power-steering mechanism. Based on Jacob's findings, Stilson, the
engineering expert, concluded that wear and deterioration in the power-steering
mechanism caused the automobile's power steering to fail.
On June 16, 1986, plaintiffs filed a complaint alleging the accident occurred
because the power-steering mechanism in plaintiffs' automobile was "defectively
manufactured, fashioned, fabricated and designed" by defendant. On July 24, 1986,
defendant filed a written request, pursuant to Supreme Court Rule 214 (166 Ill. 2d
R. 214), seeking production by plaintiffs of any documents pertaining to expert
examination of the automobile. Defendant did not, however, seek production of the
automobile or any of its components. On March 11, 1987, plaintiffs filed discovery
answers which indicated that the power-steering mechanism was examined and
tested by experts and that Jacobs had prepared a report regarding his particular tests.
Although the record does not indicate the specific date, the report was delivered to
defendant early in the litigation.
According to defendant's motion to dismiss, defendant's own experts first
viewed the automobile and its parts on September 28, 1989, while the evidence was
still in plaintiffs' possession. However, defendant did not seek production of the
actual power-steering components until December 23, 1991, when it moved to
compel Stilson to produce the automobile parts at his deposition (166 Ill. 2d R.
219(a)). The court granted defendant's motion to compel and, accordingly, Stilson
produced the power-steering components at his deposition on January 8, 1992.
Defendant's experts examined the power-steering components some time in
January 1992. On February 10, 1992, defendant filed answers to interrogatories
containing the conclusions of its own engineers and metallurgist. The experts opined
that the plaintiffs' automobile contained no defect or unreasonably dangerous
condition which caused or contributed to the crash. In addition, the experts
concluded that the sectioning of the power-steering components by plaintiffs' expert
deprived defendant of the opportunity to show the jury further evidence of the
proper manufacture and operation of the mechanism.
On September 11, 1992, the eve of trial, plaintiffs filed a motion in limine,
seeking to bar defendant from cross-examining plaintiffs' experts regarding their
methods of testing the power-steering components. Defendant responded with its
motion to dismiss the case or, in the alternative, bar any evidence of the condition
of the power-steering mechanism. Defendant argued that it was entitled to such
relief pursuant to Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)), as a sanction
for the destruction of the power-steering components without notice by plaintiffs'
expert witness. Following a hearing held that same day, the circuit court denied
plaintiffs' motion in limine and granted defendant's motion to dismiss plaintiffs'
complaint with prejudice.
Plaintiffs filed a motion for reconsideration on October 9, 1992, arguing that
defendant had not shown that it suffered prejudice to a degree which mandated
dismissal of the complaint. Plaintiffs included the affidavit of Larry Bihlmeyer, an
additional mechanical engineer retained by plaintiffs' counsel. In the affidavit,
Bihlmeyer opined that the tests which defendant contended it was precluded from
performing would not have yielded data relevant to the alleged defects of the power-
steering mechanism. In addition, Bihlmeyer stated that the destructive testing of the
power-steering components had not hindered his ability to form his opinions. The
trial court denied plaintiffs' motion for reconsideration and plaintiffs appealed.
The appellate court determined that the circuit court did not err in imposing
a sanction on plaintiffs for the destructive testing of the power-steering components.
However, the appellate court did determine that the circuit court abused its
discretion by dismissing plaintiffs' case without first considering the degree of
prejudice suffered by defendant. Accordingly, the appellate court reversed the trial
court's dismissal order and remanded the cause for a hearing to determine whether
the degree of prejudice suffered by defendant warranted dismissal of plaintiffs'
cause of action. 271 Ill. App. 3d at 11. Defendant appealed.
Before this court, defendant contends that the appellate court erred in
reversing the circuit court's dismissal of the cause of action as a sanction for
plaintiffs' discovery violations. It argues that a defendant in a products liability
action is entitled to dismissal whenever a plaintiff has spoliated the allegedly
defective product and such spoliation gives the plaintiff an unfair advantage in the
litigation. Defendant further contends that the appellate court erred in remanding the
cause for a hearing to determine the level of prejudice it suffered from the
destructive testing. Defendant argues that when a defendant is precluded from
testing an allegedly defective product in its post-accident condition, the prejudice
suffered by the defendant is manifest.
In response, plaintiffs contend that the circuit court lacked authority to
impose any sanction upon them because Rule 219(c) provides sanctions only for
violations of discovery rules and pretrial orders. Plaintiffs argue that, because their
expert's testing of the power-steering components did not violate any discovery rule
or court order, the circuit court was without authority to sanction them for the
destructive testing. Plaintiffs argue in the alternative that, if the circuit court is
empowered to impose any sanction under these circumstances, they are entitled to
a full evidentiary hearing to determine in what manner and to what extent the
destructive testing prejudiced defendant. Finally, plaintiffs contend that if any
sanction is appropriate it should be a sanction far short of dismissal of their cause
of action.

We first address the issue of whether the trial court possessed authority
under Supreme Court Rule 219(c) to impose a sanction upon plaintiffs for
destructive testing of evidence prior to commencement of the lawsuit. The trial
court's order in the instant case states that plaintiffs' cause of action was dismissed
with prejudice as a sanction based on plaintiffs' expert's destruction of the power-
steering components. The appellate court, relying primarily on Graves v. Daley, 172
Ill. App. 3d 35 (1988), and American Family Insurance Co. v. Village Pontiac-
GMC, Inc., 223 Ill. App. 3d 624 (1992), determined that the destructive testing of
the power-steering components was clearly an act for which plaintiffs could be
sanctioned. 271 Ill. App. 3d at 9. This court has defined "destructive testing" as the
physical testing of tangible objects such that the testing involves the alteration or
partial destruction of the object. Sarver v. Barrett Ace Hardware, Inc., 63 Ill. 2d 454, 458-59 (1976). Plaintiffs do not disagree that the tests performed in the instant
case either altered the condition of or partially destroyed the power-steering
Rule 219(c) authorizes a trial court to impose a sanction, including dismissal
of the cause of action, upon any party who unreasonably refuses to comply with any
provisions of this court's discovery rules or any order entered pursuant to these
rules. 166 Ill. 2d R. 219(c); Sander v. Dow Chemical Co., 166 Ill. 2d 48, 62 (1995).
The decision to impose a particular sanction under Rule 219(c) is within the
discretion of the trial court and, thus, only a clear abuse of discretion justifies
reversal. Boatmen's National Bank v. Martin, 155 Ill. 2d 305, 314 (1993). Initially,
we observe that the testing of the power-steering components was performed by
plaintiffs' experts approximately eight months prior to the date plaintiffs filed their
complaint. Therefore, the trial court had not entered any order prohibiting such
testing.[fn1] Nevertheless, some Illinois courts have held that it is unreasonable
noncompliance, and thus sanctionable, for a party to fail to produce relevant
evidence because it was destroyed prior to the filing of a lawsuit and, thus, before
any protective order can be entered by the court. See Shelbyville Mutual Insurance
Co. v. Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 640-42 (1994);
American Family Insurance Co., 223 Ill. App. 3d at 626-28; Graves, 172 Ill. App.
3d at 37-39.
In Graves, the plaintiffs' home was destroyed by a fire that was caused, in
the opinion of the insurance investigator, by a defect in the plaintiffs' furnace. Prior
to filing a strict liability action against the furnace manufacturer, plaintiffs disposed
of all the debris from the home, including the furnace. During discovery, the trial
court granted defendant's motion for sanctions, barring all evidence regarding the
condition of the furnace. In affirming the sanction, the appellate court observed that
the preservation of the allegedly defective product is of utmost importance in a strict
liability action. The court reasoned that the plaintiffs knew, or should have known,
the evidentiary value of the allegedly defective product and determined that
plaintiffs were "not free to destroy crucial evidence simply because a court order
was not issued to preserve the evidence." Graves, 172 Ill. App. 3d at 38-39; see also
American Family Insurance Co., 223 Ill. App. 3d at 627-28 ("As a matter of sound
public policy, an expert should not be permitted intentionally or negligently to
destroy such evidence and then substitute his or her own description of it").
Thus, the appellate court has determined that a potential litigant owes a duty
to take reasonable measures to preserve the integrity of relevant and material
evidence. This duty is based on the court's concern that, were it unable to sanction
a party for the presuit destruction of evidence, a potential litigant could circumvent
discovery rules or escape liability simply by destroying the proof prior to the filing
of a complaint. See Graves, 172 Ill. App. 3d at 38-39; American Family Insurance
Co., 223 Ill. App. 3d at 627-28; Miller v. Gupta, 275 Ill. App. 3d 539, 545 (1995),
aff'd in part & rev'd in part on other grounds, 174 Ill. 2d 120 (1996). We agree
with the appellate court that a potential litigant does indeed owe such a duty.
Although this court has previously recognized the value of destructive testing
as a discovery tool, it has also held that such testing must be authorized in the
sound discretion of the trial court and be permitted only when "the rights of the
opposing litigant are not unduly prejudiced." Sarver, 63 Ill. 2d at 459-60. In Sarver,
this court stated:
"[T]he trial court must be sure that the testing is relevant to the
issues in the case and that the information sought is unavailable
through any other, less destructive, testing method. Also the trial
court must insure that the alteration or partial destruction of the item
will not unreasonably impair the opposing litigant's presentation of
his case to the trier of fact." Sarver, 63 Ill. 2d at 461.
In the trial court, defendant contended that the destructive testing of the
power-steering components placed it at a disadvantage because defendant was
precluded from performing certain tests which would aid in its defense. The rules
provide that both parties are entitled to full disclosure by discovery of any relevant
matter, including matters which relate to the defense of a party. 166 Ill. 2d R.
201(b)(1); Yuretich v. Sole, 259 Ill. App. 3d 311, 317 (1994). Moreover, either party
may seek production of evidence for testing whenever the condition of such item
is relevant. 166 Ill. 2d R. 214. Thus, defendant had a right to perform tests on the
power-steering components in order to formulate its defense to the products liability
action. However, plaintiffs' destructive testing interfered with defendant's right to
such discovery. Under the specific circumstances of this case, we cannot say that
the trial court abused its discretion in determining that plaintiffs' actions were an
unreasonable noncompliance with discovery rules.
Having determined that the trial court had authority to impose a sanction on
plaintiffs for the destructive testing of evidence, we must next address the issue of
whether dismissal was the appropriate sanction. A just order of sanctions under Rule
219(c) is one which, to the degree possible, insures both discovery and a trial on the
merits. Wakefield v. Sears, Roebuck & Co., 228 Ill. App. 3d 220, 226 (1992); White
v. Henrotin Hospital Corp., 78 Ill. App. 3d 1025, 1028 (1979). When imposing
sanctions, the court's purpose is to coerce compliance with discovery rules and
orders, not to punish the dilatory party. Sander, 166 Ill. 2d at 68; People ex rel.
General Motors Corp. v. Bua, 37 Ill. 2d 180, 196 (1967), quoting Caryl Richards,
Inc. v. Superior Court, 188 Cal. App. 2d 300, 304, 10 Cal. Rptr. 377, 380 (1961).
An order of dismissal with prejudice or a sanction which results in a default
judgment are drastic sanctions to be invoked only in those cases where the party's
actions show a deliberate, contumacious or unwarranted disregard of the court's
authority. Sander, 166 Ill. 2d at 67-68; Wakefield, 228 Ill. App. 3d at 226; White,
78 Ill. App. 3d at 1028. Being such a drastic sanction, dismissal should only be
employed as a last resort and after all the court's other enforcement powers have
failed to advance the litigation. Wakefield, 228 Ill. App. 3d at 226; White, 78 Ill.
App. 3d at 1028.
The reversal of a trial court's imposition of a particular sanction is only
justified when the record establishes a clear abuse of discretion. Sander, 166 Ill. 2d
at 67; Boatmen's National Bank, 155 Ill. 2d at 314. To determine if the trial court
abused its discretion, a reviewing court must look to the criteria upon which the trial
court relied in making its determination of an appropriate sanction. Boatmen's
National Bank, 155 Ill. 2d at 314; Ashford v. Ziemann, 99 Ill. 2d 353, 369 (1984).
The factors a trial court is to use in determining what sanction, if any, to apply are:
(1) the surprise to the adverse party; (2) the prejudicial effect of the proffered
testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence
of the adverse party in seeking discovery; (5) the timeliness of the adverse party's
objection to the testimony or evidence; and (6) the good faith of the party offering
the testimony or evidence. Boatmen's National Bank, 155 Ill. 2d at 314; Ashford,
99 Ill. 2d at 369; Vaughn v. Northwestern Memorial Hospital, 210 Ill. App. 3d 253,
259-60 (1991). Of these factors, no single factor is determinative. In re Estate of
Kline, 245 Ill. App. 3d 413, 433 (1993).
Applying these factors to the instant case, we find the majority of factors
weigh in favor of plaintiffs. Initially, we note that defendant cannot claim surprise
that plaintiffs performed destructive testing on the power-steering components.
Defendant claims that it was not clear that destructive testing of the evidence had
occurred until January 1992, after defendant had deposed plaintiffs' expert
witnesses. The court notes defendant's motion to compel production of the
automobile parts, filed on December 23, 1991, expressly states that plaintiffs had
engaged in destructive testing. In addition, the record does not support defendant's
claim that it was unaware of the degree of destructive testing performed. In March
1987, defendant was informed of the metallurgical testing of the power-steering
components and defendant received a copy of Jacobs' report documenting the
testing early in the case. It is expressly reported in this document, and a number of
photographs clearly show, that the power-steering components were sectioned during
Jacobs' examination. Moreover, defendant's own experts inspected the automobile
and all its components in September 1989, taking notes and over 100 photographs.
Thus, defendant was aware of the testing and condition of the power-steering
Defendant's claims of surprise serve to highlight its own lack of diligence
in seeking discovery of the automotive parts. Defendant attempts to explain this by
blaming plaintiffs for delays in scheduling depositions of plaintiffs' experts.
Nevertheless, it was not necessary for defendant to wait until the depositions of the
expert witnesses to receive the tangible evidence. At any time after defendant filed
its appearance (166 Ill. 2d R. 201(d)), it could have obtained production of the items
with a proper written discovery request pursuant to Rule 214 (166 Ill. 2d R. 214).
However, defendant never entered a Rule 214 request for the steering components
and its motion to compel production of the parts was not filed until December 1991,
nearly 5« years after commencement of the suit.
Moreover, defendant's objection to the destructive testing was not timely.
Defendant did not file its motion to dismiss, as a Rule 219(c) sanction, until the eve
of trial in September 1992, more than six years after the suit was filed. However,
defendant was aware of the destructive testing as early as March 1987, when it
learned of Jacobs' testing or, at the latest, in September 1989, when its own experts
examined the automobile and components.
We also conclude that plaintiffs fairly demonstrated that they acted in good
faith. While acknowledging that the testing altered the condition of the power-
steering components, plaintiffs claim that it was necessary to determine whether they
possessed a valid products liability claim against defendant. Plaintiffs' expert
testified in his deposition that his initial examination of the automobile revealed no
defect which would result in a loss of power-steering control and a subsequent
internal examination of the power-steering mechanism revealed a condition which
was not definitively a defect. After the initial investigation revealed no facts to
support a claim against the car manufacturer, it was necessary for plaintiffs to
conduct further investigation to more fully determine if they had a viable cause of
action. See Regan v. Ivanelli, 246 Ill. App. 3d 798, 809 (1993). Failure to conduct
further investigation at that point may have exposed plaintiffs to sanctions under
Rule 137 (155 Ill. 2d R. 137) for filing a frivolous complaint (see In re Estate of
Hoover, 155 Ill. 2d 402, 418-19 (1993); Regan, 246 Ill. App. 3d at 809). In addition,
after the testing was performed, plaintiffs preserved all of the parts and components
of the automobile and power-steering mechanism. Once defendant sought production
of the automobile components, plaintiffs produced them in a timely manner. The
trial court specifically found that plaintiffs had not acted in bad faith and, after a
thorough review of the record, we come to the same conclusion.
Despite these factors, defendant claims that it was prejudiced by the
destructive testing because it could not perform certain tests to affirmatively
disprove plaintiffs' theories regarding the defective condition of the power-steering
mechanism. We agree that the nature of the power-steering mechanism in this case
was such that it had significant evidentiary value. We also recognize that a
defendant can clearly be prejudiced in defending a strict liability action if the
allegedly defective product is not preserved. See H&H Sand & Gravel Haulers Co.
v. Coyne Cylinder Co., 260 Ill. App. 3d 235, 247 (1994); Graves, 172 Ill. App. 3d
at 38-39. However, here the degree of prejudice to the defendant is in question.
A thorough review of the proceedings reveals that the trial court did not rely
on any determination that defendant was unduly prejudiced in order to justify the
sanction of dismissing plaintiffs' cause of action. To the contrary, the trial court
determined that it was unnecessary to consider evidence pertaining to the prejudice
suffered by defendant as a result of the destructive testing, believing that the Graves
holding mandated dismissal of a plaintiffs' cause of action as a sanction for the
presuit alteration of evidence.
Contrary to defendant's contention, a party is not automatically entitled to
a specific sanction just because evidence is destroyed or altered. Rather, a court
must consider the unique factual situation that each case presents and then apply the
appropriate criteria to these facts in order to determine what particular sanction, if
any, should be imposed. Boatmen's National Bank, 155 Ill. 2d at 314; Ashford, 99 Ill. 2d at 372. Dismissing plaintiffs' cause of action solely because evidence was
altered, without any regard to the unique factual situation or the relevant factors
which should be considered in determining an appropriate sanction, is a sanction
which serves only to punish the party and does nothing to further the objects of
discovery (see Sander, 166 Ill. 2d at 68; Bua, 37 Ill. 2d at 196). Accordingly, we
agree with the appellate court's order which remanded the instant cause to the trial
court for a hearing to specifically determine the degree of prejudice defendant
suffered as a result of the plaintiffs' alteration of evidence.
Once the trial court ascertains the level of defendant's prejudice, it must then
determine what sanction, if any, is warranted. Defendant contends that the prejudice
it suffered was so great that it can only be remedied by dismissal of plaintiffs' case.
We recognize that prejudice is one of the factors to be considered when determining
an appropriate discovery sanction. Boatmen's National Bank, 155 Ill. 2d at 314.
Nevertheless, we disagree that defendant suffered such a degree of prejudice from
the destructive testing that dismissal of plaintiffs' case is warranted.
Unlike many of the cases on which defendant relies, plaintiffs in this case
did not destroy or dispose of the entire allegedly defective product. See, e.g.,
Graves, 172 Ill. App. 3d at 37 (entire defective furnace destroyed); American Family
Insurance Co., 223 Ill. App. 3d at 625-26 (only one wire of entire automobile
preserved). All the components of the power-steering mechanism and the remainder
of the automobile are still available for the defendant's investigation. See H&H
Sand & Gravel Haulers Co., 260 Ill. App. 3d at 245-47. Although certain additional
tests of the power-steering mechanism, which defendant claims are now impossible
to perform, may have provided defendant with further evidence to support its
defense, the power-steering components still exist in such a condition that
defendant's experts were able to form their opinions that the mechanism contained
no defect.
Moreover, defendant has access to all the same information, reports, and
photographs upon which plaintiffs' experts relied in forming their opinions
concerning the alleged defect. In addition, defendant possesses all the information
and data regarding the original design and production of the power-steering
mechanism. Finally, we observe that defendant's claims of prejudice are weakened
by its lack of diligence in seeking production and the untimeliness of its objection
to the condition of the evidence. When sufficient evidence is available to both
parties which enables them to establish their case or defense, a sanction which
disposes of a claim without a trial on the merits constitutes an abuse of discretion.
H&H Sand & Gravel Haulers Co., 260 Ill. App. 3d at 248.
Here, plaintiffs' testing only altered or partially destroyed the automobile
components and was done in a good-faith effort to better determine the legitimacy
of their legal claims. Moreover, plaintiffs' actions were not a knowing and willful
defiance of the discovery rules or the trial court's authority. We believe a greater
degree of prejudice and a stronger showing of wrongdoing is necessary than that
presented by the facts of this case in order to impose such a drastic sanction.
Therefore, we conclude that dismissal of plaintiffs' case is an unreasonable sanction.
A reasonable sanction would be one other than dismissal or one which does not
totally prevent plaintiffs from presenting evidence regarding the condition of the
power-steering mechanism.

For the foregoing reasons, the judgment of the appellate court, remanding
the cause to the circuit court of Cook County for further proceedings, is affirmed.
On remand, however, the circuit court shall enter a sanction other than dismissal;
to the extent that the appellate court did not so order, its judgment is therefore

Appellate court judgment affirmed as modified.

JUSTICE HEIPLE, dissenting:
Plaintiffs sustained injuries on July 7, 1985, when their automobile allegedly
malfunctioned. Believing the steering mechanism responsible, but not wanting to file
a frivolous suit in violation of Rule 137 (155 Ill. 2d R. 137), they engaged a
metallurgical engineer to examine the steering mechanism. On September 20, 1985,
plaintiffs' metallurgical engineer sliced the column into sections and conducted
detailed tests which purportedly disclosed that the steering column contained a flaw
which caused it to malfunction. On June 16, 1986, plaintiffs filed the instant product
liability action against General Motors Corporation. On the eve of trial, General
Motors moved to dismiss plaintiffs' case as a Rule 219(c) sanction for the presuit
destructive testing of the power-steering mechanism without notice to defendant's
expert witnesses. The trial court dismissed plaintiffs' case as a discovery sanction
and the appellate court affirmed in part, ruling that while a sanction was permissible
under Rule 219(c), the trial court should first conduct a hearing to determine the
level of prejudice before entering whatever sanction it then deems appropriate. The
majority today affirms, concluding, inter alia, that Rule 219(c) permits sanctions for
presuit destructive testing of evidence. Because our discovery rules do not prescribe
presuit behavior, and further given that the presuit rule crafted by the majority is
both unwise and unnecessary, I respectfully dissent.
The majority correctly observes that Rule 219(c) authorizes a trial court to
impose a sanction, including dismissal, upon any party who unreasonably refuses
to comply with any provisions of this court's discovery rules or any order entered
pursuant thereto. 166 Ill. 2d R. 219(c); Sander v. Dow Chemical Co., 166 Ill. 2d 48,
62 (1995). The majority errs, however, in concluding that Rule 219(c) applies to the
plaintiffs' presuit destructive testing. First, there are no discovery rules governing
presuit activities. Second, because plaintiffs had yet to file suit when they conducted
the destructive testing, there was no court order concerning the same. Accordingly,
Rule 219(c) and our other discovery rules, on their face, are inapplicable in the
instant context.
In deciding to fashion a discovery rule not found in the existing discovery
scheme, the majority approves a line of nonbinding appellate precedent consisting
of Graves v. Daley, 172 Ill. App. 3d 35 (1988), and American Family Insurance Co.
v. Village Pontiac-GMC, Inc., 223 Ill. App. 3d 624 (1992). But see Graves, 172 Ill.
App. 3d at 39-40 (Heiple, J., dissenting). The rationale of my dissent in Graves is
equally applicable here. As I said in that case:
"The majority decision in this case is without support in case
law, in statute or in court rule. That is to say, it enunciates a wholly
new proposition of law. The proposition is that a party may be barred
from introducing testimony or other evidence on any matter relating
to physical evidence if the physical evidence has been disposed of
and cannot be produced.
In the case at hand, the plaintiff has been barred from
presenting evidence regarding a defective furnace because the furnace
was disposed of and could not be produced for the defendant's
inspection. The justification for the ruling is that the destruction of
the furnace was done corruptly by the plaintiff in order to secure an
unfair advantage in a lawsuit that was being contemplated but not yet
While I question the finding that the destruction was corrupt,
that particular point is not material. In fact, the State Fire Marshall
had fully investigated the fire, the insurance company had done
likewise, and the homeowners wanted to get the fire debris disposed
of. Even accepting the bad light put on plaintiffs' actions, however,
it should not make any difference. The point is that at the time of
destruction of the furnace, there was no lawsuit on file and no
directive from any court prohibiting the plaintiffs from hauling their
fire debris to the junkyard. Later, when the plaintiffs were directed
to produce the furnace, the order could not be complied with because
it was impossible for them to do so.
Interestingly, in the case at hand, the furnace itself was not
the only material evidence relating to the cause of the fire. It is
equally arguable that all of the fire scene was material. The burned
house and its contents could or might show that the fire began in a
different area than the furnace, say from a hot electrical wire or from
a combustible agent, etc.
The precedential implications of this ruling are truly
enormous. Future plaintiffs may likewise find themselves tossed out
of court because they tossed out their junk. It could be wrecked car,
a severed body part, an item of clothing, a bandage, a dead cat. Who
knows? Doubtless, resourceful defendants will find good reasons for
claiming that plaintiffs corruptly destroyed this or that item of
physical evidence knowing full well that a lawsuit was being
contemplated and that the evidence would be material.
Finally, regarding the furnace in this case, it seems to me that
the defendants, who were the manufacturers and installers of the
furnace in question, would have been well able to meet the plaintiffs'
case with the testimony of their own designers, engineers and
installers. The destruction of the ruined furnace by the plaintiffs
really only goes to the weight of plaintiff's evidence and could be
considered by the jury in light of all the evidence in the case.
The action taken by the trial court in this case and affirmed
by a majority of this appellate court has deprived plaintiffs of their
day in court and has created an unfortunate precedent in so doing.
Accordingly, I dissent." Graves, 172 Ill. App. 3d at 39-40
(Heiple, J., dissenting).
The majority here adopts the holdings of these appellate cases, which
essentially provide that sound public policy should preclude plaintiffs from
discarding or destroying evidence which might be material to future litigation:
plaintiffs or their experts should not be permitted to intentionally or negligently
destroy material evidence before filing suit and then substitute their own description
of it at trial. The majority believes that, to hold otherwise, would permit the
circumvention of our discovery rules by sanctioning presuit behavior directly
contrary to our discovery rules. I disagree.
Finally, I would observe that plaintiffs' presuit destructive testing occurred
several years prior to Graves v. Daley, 172 Ill. App. 3d 35 (1988), the first opinion
to hold that such presuit activities could subject a litigant to Rule 219(c) sanctions.
A retrospective or retroactive rule is one which creates a new obligation and then
imposes that obligation on transactions already past, resulting in a different legal
effect from that which existed under the law when the transaction occurred. Black's
Law Dictionary 1317 (6th ed. 1990). Such rules, though generally constitutional in
civil contexts, are nevertheless unfair and should be discouraged. The majority
opinion authorizes Rule 219(c) sanctions for presuit conduct that violated none of
our discovery rules as understood before Graves and its progeny. Because Graves
was decided before the instant presuit destructive testing, the majority adopts a
retrospective interpretation of Supreme Court Rule 219(c)--unfairly punishing
plaintiffs for not having the foresight to anticipate this new rule.
Accordingly, I dissent.

JUSTICE HARRISON joins in this dissent.

[fn1] We observe that the record contains a stipulated protective order, filed April
12, 1990, which requires preservation of all the automobile parts and components
in their then-present condition and prohibits any destructive testing without the other
party's consent. Nevertheless, the trial court did not rely on the protective order as
a basis for its discovery sanction and because the destructive testing at issue
occurred prior to the entry of the order we conclude it was not violated.