In fashioning just orders under Rule 219(c), trial courts must seek to achieve compliance with discovery and a trial on the merits. Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App.3d 1144, 1146, 401 N.E.2d 1156, 1158. Some courts have declared that dismissal is proper only as a last resort when the offending party's actions "demonstrate a deliberate, contumacious and unwarranted disregard for the court's authority" and where a trial on the merits would prejudice the opposing party.

Similarly, the instant defendant claimed that it turned over all of the requested documents that were in its possession, and the trial court apparently found this assertion to be credible, insofar as it chose not to impose sanctions. We cannot say that this decision was an abuse of discretion. ¶ 51 Notwithstanding the foregoing, plaintiff cites Stegmiller v. H. P. E., Inc., 81 Ill. App. 3d 1144 (1980), for the proposition that sanctions may be imposed even where evidence is inadvertently lost. Stegmiller is readily distinguishable on its facts. In Stegmiller, plaintiff filed a product liability suit alleging that a pool filter electrocuted and killed her son.

Moreover, we reject defendants' reliance upon those cases which have found "that negligent or inadvertent destruction or alteration of evidence may result in a harsh sanction, including dismissal, when a party is disadvantaged by the loss." Farley Metals, Inc. v. Barber Colman Co., 269 Ill. App. 3d 104, 110, 645 N.E.2d 964 (1994), citing Graves v. Daley, 172 Ill. App. 3d 35, 526 N.E.2d 679 (1988); Stegmiller v. H.P.E., Inc., 81 Ill. App. 3d 1144, 401 N.E.2d 1156 (1980); Marrocco v. General Motors Corp., 966 F.2d 220 (7th Cir. 1992); see also Kambylis v. Ford Motor Co., 338 Ill. App. 3d 788, 794, 788 N.E.2d 1 (2003); Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 641, 634 N.E.2d 1319 (1994), citing State Farm Fire Casualty Co. v. Frigidaire, Division of General Motors Corp., 146 F.R.D. 160 (N.D. Ill. 1992); Jones v. Goodyear Tire Rubber Co., 137 F.R.D. 657 (C.D. Ill. 1991). It is only where a party's conduct can be characterized as "deliberate, contumacious or [an] unwarranted disregard of the court's authority" that the drastic sanction of dismissal is justified, and, even then, only "as a last resort and after all the court's other enforcement powers have failed to advance the litigation."

Illinois courts have upheld sanctions for destruction of evidence in violation of a protective order and for failure to comply with discovery orders after evidence was inadvertently lost. Stegmiller v. H. P. E., Inc., 81 Ill. App.3d 1144, 401 N.E.2d 1156 (1980); see also Marrocco v. General Motors Corp., 966 F.2d 220 (7th Cir. 1992); State Farm Fire Casualty Co. v. Frigidaire, Division of General Motors Corp., 146 F.R.D. 160 (N.D.Ill. 1992); Jones v. Goodyear Tire Rubber Co., 137 F.R.D. 657 (C.D.Ill.1991), aff'd, 966 F.2d 220 (7th Cir. 1992). Ress relies on Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Prods. Co., 262 Ill. App.3d 636, 634 N.E.2d 1319 (1994), in support of its contention that the trial court erred in failing to impose sanctions.

Turning to the present case, we must determine whether, absent the helmet, plaintiff has introduced enough circumstantial evidence to support each of the elements of his strict liability action against Kucharik. We note that, unlike most of the cases defendant relies upon, this is not a case where the trial court excluded evidence of a defect or expert testimony as a sanction pursuant to Supreme Court Rule 219(c) (134 Ill.2d R. 219(c)). E.g., Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co., 262 Ill. App.3d 636, 634 N.E.2d 1319 (1994); Graves v. Daley, 172 Ill. App.3d 35, 526 N.E.2d 679 (1988); Ralston v. Casanova, 129 Ill. App.3d 1050, 473 N.E.2d 444 (1984); Stegmiller v. H.P.E., Inc., 81 Ill. App.3d 1144, 401 N.E.2d 1156 (1980). Here, the court made no finding of bad faith on plaintiff's part; the court did not strike the deposition testimony and affidavits of plaintiff's expert; and the court did not exclude the literature defendant distributed or the exemplar helmet.

Consequently, Illinois courts have upheld sanctions for destruction of evidence in violation of a protective order and for failure to comply with discovery orders after evidence was inadvertently lost. Ralston, 129 Ill. App.3d at 1050, 473 N.E.2d at 444; Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App.3d 1144, 401 N.E.2d 1156; see also Marrocco v. General Motors Corp. (7th Cir. 1992), 966 F.2d 220; State Farm Fire Casualty Co. v. Frigidaire, a Division of General Motors Corp. (N.D. Ill. 1992), 146 F.R.D. 160; Jones v. Goodyear Tire Rubber Co. (C.D. Ill. 1991), 137 F.R.D. 657, aff'd (7th Cir. 1992), 966 F.2d 220. Contra Applegate v. Seaborn (1985), 132 Ill. App.3d 473, 477 N.E.2d 74 (sanction reversed where there was no showing that plaintiff had control over the truck differential at issue).

Illinois courts have upheld sanctions for destruction of evidence in violation of a protective order and for failure to comply with discovery orders after evidence was inadvertently lost. ( Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App.3d 1144, 401 N.E.2d 1156; see also Marrocco v. General Motors Corp. (7th Cir. 1992), 966 F.2d 220; State Farm Fire Casualty Co. v. Frigidaire, Division of General Motors Corp. (N.D. Ill. 1992), 146 F.R.D. 160; Jones v. Goodyear Tire Rubber Co. (C.D. Ill. 1991), 137 F.R.D. 657, aff'd (1992), 966 F.2d 220.) Sanctions may also be imposed even if no prior court order protecting the information exists.

Prior case law upheld orders barring expert testimony when evidence was lost or when destructive testing was performed in violation of a court order. (See Ralston v. Casanova (1984), 129 Ill. App.3d 1050; Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App.3d 1144. Contra Applegate v. Seaborn (1985), 132 Ill. App.3d 473.) The court responded to the plaintiffs' suggestion that they did not violate any court order or perform destructive testing by stating that "[t]he plaintiffs are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence."

We believe that Graves is sound law and should be followed under the facts in the instant case. Although other Illinois Appellate Court decisions have upheld sanctions for destruction of evidence in violation of a court order ( Ralston v. Casanova (1984), 129 Ill. App.3d 1050, 1058, 473 N.E.2d 444) and for failing to comply with discovery orders after the evidence has been lost ( Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App.3d 1144, 1147, 401 N.E.2d 1156), it is similarly sound that sanctions may also be imposed despite the absence of a court order barring destruction (R. Johnston K. Kandaras, Discovery in Illinois 181 (1985)). • 1 Supreme Court Rule 219(c) authorizes a trial court to bar testimony if a party unreasonably refuses to comply with discovery rules and if the sanction is just. (134 Ill.2d R. 219(c)(iv).) Supreme Court Rule 214 allows a party to request the production of tangible things for inspection and testing. (134 Ill.2d R. 214.)

The appellate court affirmed, holding that the sanction was appropriate and was appropriately placed on the party responsible for the failure to preserve the product. A similar result was reached in Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App.3d 1144, 401 N.E.2d 1156. In Stegmiller, the appellate court affirmed the dismissal of the plaintiff's complaint as a sanction for her failure to produce an allegedly defective product.