Shimanovsky v. General Motors Corp.
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 79083
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Docket No. 79083--Agenda 7--March 1996. MILDRED SHIMANOVSKY et al., Appellees, v. GENERAL MOTORS CORPORATION, Appellant. 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. BACKGROUND 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. ANALYSIS 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 components. 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 mechanism. 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 |