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Kersey v. Ruch Trucking12/1/2003
to the close of evidence, defendants announced that they would not be calling Gerald E. Cohn, Ph. D., an expert to whom they referred in their opening statement. Defendants stated that they were not calling Cohn because they covered his expected testimony during their cross-examination of Moore.
At the jury instruction conference, plaintiff tendered two instructions based on Illinois Pattern Jury Instruction, Civil, No. 5.01 (Supp. 2003) (hereinafter IPI Civil (Supp. 2003) No. 5.01), also known as the "missing-witness instruction" or the "missing-evidence instruction." IPI Civil (Supp. 2003) No. 5.01 provides:
"5.01 Failure to Produce Evidence or a Witness
If a party to this case has failed [to offer evidence] [to produce a witness] within his power to produce, you may infer that the [evidence] [testimony of the witness] would be adverse to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The [evidence] [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have [offered the evidence] [produced the witness] if he believed [it to be] [the testimony would be] favorable to him.
4. No reasonable excuse for the failure has been shown." IPI Civil (Supp. 2003) No. 5.01.
Plaintiff argued that she was entitled to a missing-evidence instruction regarding defendants' failure to produce the accident-reconstruction report alluded to by Smith and Broughton. While acknowledging Broughton's testimony, defendants insisted that they were unaware of any accident- reconstruction report. Defendants admitted to an "investigation" conducted by an insurance company and believed that Smith's testimony referred to that investigation. However, defendants did not consider the investigation to be a reconstruction. The trial court declined to give the jury a missing- evidence instruction, stating, "I think the strength of [defendants'] case is their eyewitness testimony and * there is good reason not to present the reconstruction evidence."
Plaintiff's second IPI Civil (Supp. 2003) No. 5.01 instruction was a missing-witness instruction based on defendants' failure to call Cohn. Defendants reiterated that the points they wished to elicit through Cohn's testimony were covered by the cross-examination of Moore. For instance, defendants asserted that Cohn's primary criticism of Moore's testimony involved the high value he obtained for the coefficient of friction. Defendants noted that Moore himself testified that the coefficient of friction was high. The trial court declined to give the missing-witness instruction, concluding that plaintiff did not meet all four criteria listed for giving the instruction. Nevertheless, the court informed plaintiff that she could raise the issue of the missing witness during her closing argument. Ultimately, the jury returned a verdict in defendants' favor. Plaintiff then filed a posttrial motion arguing, among other things, that the trial court erred in refusing to tender to the jury the missing-witness and missing-evidence instructions. Following the denial of plaintiff's posttrial motion, this timely appeal ensued.
II. ANALYSIS
On appeal, plaintiff assigns error to the trial court's failure to tender her proposed missing-witness and missing-evidence instructions. As noted above, IPI Civil (Supp. 2003) No. 5.01 allows a jury to draw an adverse inference from a party's failure to offer evidence or to produce a witness. The instruction should be gi
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