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Kersey v. Ruch Trucking12/1/2003
ore was incorrect.
Defendants also assert that Cohn "did not validate any of the coefficients of friction, he did not account for moisture on the road surface, and he did not apply the 25% reduction factor for heavy trucks." Exactly what defendants mean in arguing that Cohn did not "validate" the coefficients of friction is unclear. However, we note that Cohn did testify that the typical coefficient of friction range for well-traveled pavement is 0.55 to 0.70. Further, while Cohn did not account for moisture on the road surface, there was contradictory testimony on this point. Finally, as we note above, Cohn did testify regarding the 25% reduction factor for trucks. However, the jury was also presented with contradictory testimony on this aspect. See Dugan v. Weber, 175 Ill. App. 3d 1088, 1094-95 (1988) (holding that trial court properly tendered missing-witness instruction to jury; although the defendant's expert's report and deposition contained some matters that were favorable to the defendant, materials also contained matters unfavorable to the defendant).
Turning to the fourth requirement, we conclude that defendants did not proffer a reasonable excuse for the failure to produce Cohn as a witness. Defendants contend that " ll of the essential points that [they] would have raised in Dr. Cohn's direct examination had already been raised in the very effective cross examination of Moore." In other words, defendants' excuse is that Cohn's testimony would have been cumulative of the testimony they elicited from their cross-examination of Moore. We disagree.
A missing-witness 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, 288 Ill. App. 3d at 831; Hollembaek, 137 Ill. App. 3d at 777. At his deposition, Cohn admitted that he was retained by defendants "to identify any major mistakes, inaccuracies and weaknesses in Officer Moore's opinion" and to make an independent determination of the speed of the truck driven by Lyle. In addition, during their opening statement, defendants referred to Cohn's expected testimony. In this regard, defense counsel commented:
"The only testimony that you're going to hear about [Lyle] exceeding the speed limit is going to come from Officer Moore. And while I'm not a math expert - that's one of the reasons why I went to law school - we are going to call a doctor of physics, and we're going to show that some of the math calculations, not necessarily the formulas - but if you put in different numbers or make different assumptions, you come up with different speeds.
And you will find that when we compare with some of those different inputs and use the same formulas that Officer Moore did that you're going to come up with speeds very similar to what the eyewitnesses testified that [Lyle] was traveling."
Simply put, while one of the purposes of Cohn's testimony was to criticize Moore, it is also clear from the record that defendants intended to call Cohn to provide an independent analysis of the speed of the truck. Moore did not and could not testify regarding Cohn's independent determination of the speed of the truck driven by Lyle. Thus, we conclude that Cohn's testimony would not have been cumulative of the testimony elicited from Moore on cross-examination. See Dugan, 175 Ill. App. 3d at 1095 (concluding that missing witness's testimony was not cumulative to other testimony presented where missing witness's testimony concerned personal observations and findings).
Defendants assert that even if the trial court erred in failing to tender IPI Civil (Supp. 2003) No. 5.01 to the jury ba
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