Shimanovsky v. General Motors Corp.

• Decision Date: 21 November 1994
• Docket Number: No. 1-92-4386,1-92-4386
• Citation: 271 Ill.App.3d 1,648 N.E.2d 91
• Parties: , 207 Ill.Dec. 635 Mildred SHIMANOVSKY and Almarvin Shimanovsky, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 91

648 N.E.2d 91

271 Ill.App.3d 1, 207 Ill.Dec. 635

Mildred SHIMANOVSKY and Almarvin Shimanovsky, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 1-92-4386.

Appellate Court of Illinois First District, First Division.

Nov. 21, 1994.

Rehearing Denied April 5, 1995.

John B. Schwartz & Associates, Chicago (John B. Schwartz and Stephen J. Caron, of counsel), for appellants.

Lord, Bissell & Brook, Chicago (David R. Reed, Hugh C. Griffin and John T. Williams, of counsel), for appellee.

Presiding Justice CAMPBELL delivered the opinion of the court:

Plaintiffs Mildred and Almarvin Shimanovsky appeal an order of the circuit court of Cook County dismissing their product liability complaint against defendant General Motors Corporation ("GM") as discovery sanction pursuant to Illinois Supreme Court Rule 219 (134 Ill.2d R. 219).

The record on appeal, including the pleadings and discovery materials, indicates the following facts. Plaintiffs filed this product liability complaint against GM on June 16, 1986. The complaint alleges that on July 7, 1985, while travelling northbound on Interstate 294 in Cook County, Mildred Shimanovsky lost power steering control of her 1982 Chevrolet Caprice, an automobile designed, manufactured and distributed by GM. Mildred allegedly struck a guard rail on the right side of the road, then crossed all lanes of traffic and struck a concrete barrier on the left side of the road. Mildred claims this occurrence resulted in the loss of her right eye, both tear ducts and part of her skull, as well as the fracturing of her left wrist, right ankle, jaw, ribs, and nose. Almarvin Shimanovsky, Mildred's husband, claims the occurrence resulted in a loss of consortium. The complaint alleges that the accident occurred because the power steering in Mildred's 1982 Chevrolet Caprice was "defectively manufactured, fashioned, fabricated and designed" by GM.

On July 18, 1985, eleven days after the accident, plaintiffs' counsel retained John Stilson, a mechanical engineer, to investigate whether a there was a problem with the car that would have caused the accident. Stilson inspected the automobile on the premises of Underwriter's Salvage Company, where the car had been towed at the request of plaintiffs' insurer. Stilson inspected many parts of the automobile, including the: front and rear suspension; linkage, spindles and linkage connections for the front suspension; tires; steering column shaft connector; steering gear exterior; and brakes. This inspection did not show any defect that would result in an inability to control the automobile.

Stilson, however, asked plaintiffs' counsel for the authority to disassemble and inspect the steering gear itself, as the steering gear is an external component with internal systems. Stilson knew that if he found a defect after disassembling the steering gear, plaintiffs probably would file a product liability suit. Stilson did not recommend to plaintiffs' counsel that GM be notified of the disassembly of the steering gear. Stilson's firm is a member of the American Society for Testing and Materials ("ASTM"), whose guidelines require that an expert recommend to his or her client that other parties in interest be notified and afforded the opportunity to observe and record any examination likely to alter the state or condition of an item that may become involved in a product liability suit.

On September 20, 1985, Stilson drained the power steering fluid from the steering gear, cut the hydraulic power steering lines and removed the steering gear from the automobile. Stilson then disassembled the steering gear. Stilson's inspection indicated that various components of the steering gear had been damaged as a result of the accident. Stilson also noticed that the valve body had worn grooves into the inner bore of the housing. Stilson recommended to plaintiffs' counsel that a metallurgist be retained to determine whether these grooves were caused by the accident.

Plaintiffs retained Lyle Jacobs as their metallurgist. On September 23, 1985, Jacobs received the steering gear housing, valve body and valve seals for analysis. Jacobs determined that the steering gear housing and valve body would need to be sectioned or cut because there was no nondestructive way to determine the cause of the grooves in the inner bore of the housing.

In their discovery depositions, Stilson and Jacobs disagreed over who authorized the sectioning of the steering gear components. Stilson indicated that Jacobs and plaintiffs' counsel made the decision. Jacobs indicated that he had sought authorization from Stilson because "sometimes by court order you are prohibited from doing any destructive testing." Jacobs indicated that Stilson mentioned the possibility of litigation. Like Stilson's firm, Jacobs was a member of ASTM. Indeed, Jacobs was a member of the ASTM committee that drafted the aforementioned testing disclosure guidelines. Stilson and Jacobs, however, indicated that they were not aware of the ASTM guidelines in 1985.

Jacobs performed destructive testing of the steering gear components in October 1985. The steering gear housing was sectioned. The valve body, with three attached seals, were also sectioned. Five cross-section samples of the housing and valve body were mounted in bakelite molds. Other cross-section samples were subjected to chemical analysis.

Based on the aforementioned tests, Jacobs concluded that the grooves were the result of long-term wear, as opposed to impact damage. Jacobs provided a report and 27 photographs in support of his conclusion. In turn, Stilson told plaintiffs' counsel that the wear and deterioration in the steering gear assembly caused the accident. Stilson opined that the wear marks compromised the steering gear seals, causing internal leakage of power steering fluid, resulting in the malfunction of the steering gear. Plaintiffs filed suit after receiving these opinions.

Pretrial proceedings and discovery ensued. The record does not clearly indicate when GM learned of the nature of the examination and testing of the steering gear. On July 24, 1986, GM filed a notice pursuant to Supreme Court Rule 214 (134 Ill.2d R. 214) seeking, among other things, production of any document concerning expert examinations and any expert reports. The notice however, did not seek production of the automobile or any of its parts. On March 11, 1987, plaintiffs filed answers to interrogatories that indicated that the power steering system had been examined or tested by experts and that a report had been prepared regarding one of the examinations. The record does not indicate when GM received any such report, aside from an oral representation to the trial court by plaintiff's counsel that it sent a report to GM "early on." According to GM's motion to dismiss and bar, its representatives were first allowed to view the automobile and its parts on September 28, 1989.

On April 12, 1990, the parties filed a stipulation for a protective order providing that each part of the 1982 Chevrolet Caprice in question shall be preserved and generally not subject to destructive inspection, testing or disassembly, except under conditions specified in the stipulation. On December 23, 1991, GM moved to compel production of the components of the steering gear and to possess the parts for visual inspection from January 8, 1992 through February 10, 1992; this motion was granted on December 31, 1991.

On January 28, 1992, plaintiffs' counsel notified GM's counsel by facsimile that plaintiffs had retained Larry Bihlmeyer as an expert witness. The record indicates that Bihlmeyer is a mechanical engineer. Bihlmeyer opined in a deposition that there were a number of defects in the design and manufacture of the steering gear and its components that caused the steering gear to malfunction; two examples follow. Bihlmeyer stated that there was an improper fit between the O rings, the teflon rings, the valve body and the housing body from a design standpoint such that there was no "squeeze" to help maintain alignment in the manufacturing process. Bihlmeyer also opined that there was a manufacturing defect insofar as the metal lands on the control valve body were not rounded and the sharp edges of the lands would contribute to high stress concentration factors during metal to metal contact, which would lead to smearing of the metals, slivers and contamination.

On February 10, 1992, GM filed answers to interrogatories indicating that it might call three expert witnesses: Donald Miller, James Willis and Robert O'Shea. Miller and Willis were engineers employed by GM's Saginaw Division, where they had duties relating to the design and testing of steering gears. O'Shea was listed as a metallurgical engineer. Miller and Willis concluded that there was no defect or unreasonably dangerous condition in Mildred's 1982 Chevrolet Caprice that caused or contributed to the accident. All three of GM's experts concluded that

"the destruction of the steering gear by plaintiffs' experts without notice to General Motors violated engineering ethics, failed to produce evidence that could not be obtained by other means, and deprived General Motors of the opportunity to show the jury further evidence of the proper manufacture and operation of the gear."

In discovery depositions, Miller and Willis indicated that disassembly of the steering gear was an accepted practice, but objected to the cutting of the housing, valve body and seals.

In their depositions and in affidavits submitted in support of GM's motion to dismiss or bar, Miller and Willis discussed the effect the examination and testing of the steering gear had on GM's ability to defend against plaintiff's complaint. For example, Miller and Willis indicated that the destructive testing prevented them from performing a manual function test, in which the stub shaft of the intact steering gear would be rotated to determine...