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Kersey v. Ruch Trucking12/1/2003
sed on their failure to call Cohn, any error was harmless. We disagree. A new trial will be granted where a party shows that its right to a fair trial has been seriously prejudiced by the denial of an instruction. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 273 Ill. App. 3d 977, 988 (1995). In this case, many, if not all, of plaintiff's allegations of negligence in her complaint centered on the speed at which the truck was traveling. During opening statements, defendants informed the jury that they would present the testimony from a "doctor of physics" to explain that if the variables in the formulas used by Moore to estimate the speed of the truck driven by Lyle were changed, "you come up with different speeds." Defendants also informed the jury that when these variables are plugged into the formulas used by Moore, "you're going to come up with speeds very similar to what the eyewitnesses testified that [Lyle] was traveling." The jury was never presented with this testimony.
Moreover, we do not believe that the circuit court's decision to permit plaintiff to comment on defendants' failure to call Cohn during closing argument rendered the error harmless. Although plaintiff informed the jury of defendants' failure to call an expert witness during closing argument, defendants explained away their failure by telling the jury that they elected not to call Cohn because his testimony was covered during cross-examination. As plaintiff notes, without the jury instruction, her argument was just argument. It did not have the authority and force of law that she was entitled to by IPI Civil (Supp. 2003) No. 5.01. See Bargman v. Economics Laboratory, Inc., 181 Ill. App. 3d 1023, 1028 (1989) (holding that the trial court should have given missing-witness instruction despite parties stipulation read to jury that (1) the defendant retained the missing witness as an expert, (2) the witness was privy to certain information regarding the litigation, and (3) the witness was available to testify, where foundational requirements for instruction were satisfied). Accordingly, we conclude that there was evidence establishing the existence of all four foundational requirements and the trial court abused its discretion in not tendering the missing-witness instruction to the jury.
Citing to Betts v. Manville Personal Injury Settlement Trust, 225 Ill. App. 3d 882, 901 (1992), defendants assert that accepting plaintiff's argument "would effectively require a party to call a retained opinion witness in every case or else risk the jury receiving a missing witness instruction at the close of the case." Defendants exaggerate the impact of our decision. The missing-witness instruction will be given only when evidence is presented that suggests the existence of the four foundational requirements and the testimony of the missing witness would not be cumulative of facts already established. See Jenkins, 288 Ill. App. 3d at 831.
B. Missing-Evidence Instruction
Plaintiff also argues that the circuit court erred in refusing to give IPI Civil (Supp. 2003) No. 5.01 based on defendants' failure to provide her with a copy of the accident reconstruction purportedly conducted by Red Arrow and Rush. According to plaintiff, the foundational requirements for tendering IPI Civil (Supp. 2003) No. 5.01 based on missing evidence were satisfied. Defendants respond that the circuit court did not abuse its discretion in refusing to give the instruction where the court determined that no such evidence ever existed. Although we have already determined that this cause must be remanded for a new trial, we address this issue because it will arise on remand. Koonce v. Pacilio, 307 Ill. App. 3d 449, 4
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