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Kersey v. Ruch Trucking12/1/2003
ven only when a foundation is presented which suggests that: (1) the witness or evidence was under the control of the party to be charged and could have been produced by reasonable diligence; (2) the witness or evidence was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence or produced the witness if he believed the evidence or the witness's testimony would have been favorable to him; and (4) no reasonable excuse for the failure to offer the evidence or to produce the witness has been shown. Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1008-09 (2003); Nassar v. County of Cook, 333 Ill. App. 3d 289, 298 (2002); Roeseke v. Pryor, 152 Ill. App. 3d 771, 781 (1987). However, the instruction is not warranted if the evidence that has not been offered or the witness that has not been produced is merely cumulative of facts already established. Jenkins v. Dominick's Finer Foods, Inc., 288 Ill. App. 3d 827, 831 (1997). The decision whether to tender IPI Civil (Supp. 2003) No. 5.01 to the jury is within the sound discretion of the trial court, and that decision will not be reversed absent a clear abuse of discretion. Simmons v. Garces, 198 Ill. 2d 541, 573 (2002); Jenkins, 288 Ill. App. 3d at 831. With these principles in mind, we address plaintiff's arguments.
A. Missing-Witness Instruction
Plaintiff first contends that the circuit court erred in refusing to give IPI Civil (Supp. 2003) No. 5.01 based on defendants' failure to call Cohn. According to plaintiff, the four foundational requirements for tendering IPI Civil (Supp. 2003) No. 5.01 for a missing witness were satisfied, Cohn's testimony would not have been cumulative, and she was prejudiced by the trial court's failure to give the missing-witness instruction. Defendants respond that the circuit court did not err in failing to give the missing-witness instruction because not all factors supporting the instruction were present, Cohn's testimony would have been cumulative, and the court's decision did not constitute prejudicial error.
Defendants do not dispute the presence of the first two foundational requirements for a missing-witness instruction. Indeed, plaintiff satisfies the first two requirements because, Cohn, as an expert witness hired by defendants, was under defendants' control for purposes of testifying, and thus was unavailable to plaintiff as a witness. See Hollembaek v. Dominick's Finer Foods, Inc., 137 Ill. App. 3d 773, 776-77 (1985) (holding that a doctor hired by the defendant to examine the plaintiff is under the defendant's control for the purpose of testifying and thus unavailable to the plaintiff as a witness); Ciborowski v. Philip Dressler & Associates, 110 Ill. App. 3d 981, 986 (1982) (holding that witness hired by the defendant with the intention of having him testify on the defendant's behalf is under the defendant's control for purposes of IPI Civil (Supp. 2003) No. 5.01); but see Taylor v. Kohli, 252 Ill. App. 3d 852, 858 (1993), aff'd 162 Ill. 2d 91 (1994) (holding that trial court erred in tendering missing-witness instruction to jury where the plaintiff advised the defendant of his decision to abandon expert witness 19 months prior to trial).
With respect to the third factor, plaintiff argues that Cohn's testimony would have been unfavorable to defendants because it contradicted the testimony of defendants' eyewitnesses and demonstrated that the speed at which Lyle was driving was above the posted limit and unsafe for the intersection. The record reveals that Cohn was hired by defendants in February 2002 "to evaluate Deputy Moore's reconstruction of the accident and identify any major mistake
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