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Shimanovsky v. General Motors Corp.

February 20, 1998


The opinion of the court was delivered by: Justice Nickels

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 ...

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