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 alla, 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 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 plaintiffs 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 after 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.