MILDRED SHIMANOVSKY et al., Appellees, v. GENERAL MOTORS CORPORATION, Appellant.
No. 79083
Supreme Court of Illinois
February 20, 1998
David R. Reed, Hugh C. Griffin and John T. Williams, of Lord, Bissell & Brook, and Alex Dimitrief and J. Robert Robertson, of Kirkland & Ellis, all of Chicago, for appellant.
John B. Schwartz and Stephen J. Caron, of John B. Schwartz & Associates, of Chicago, for appellees.
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
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.
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 damaged 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 Jacobs’ 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
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 (
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
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 when-
In response, plaintiffs contend that the circuit court lacked authority to impose any sanction upon them because
ANALYSIS
We first address the issue of whether the trial court possessed authority under
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.
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.
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
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
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
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 (
Moreover, defendant‘s objection to the destructive testing was not timely. Defendant did not file its motion to dismiss, as a
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
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 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.
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
CONCLUSION
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 modified.
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
The majority correctly observes that
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 filed.
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 a 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
Accordingly, I dissent.
JUSTICE HARRISON joins in this dissent.