During discovery, you learn that a supervisor employed by defendant has investigated an accident—and the supervisor’s conclusions are terrible for the defendant. You make mincemeat of one of plaintiff’s experts during deposition and you know at the time of trial, the jury is going to agree—mincemeat. You should also understand that in these situations, your opponents agree with your assessments and damage control is first and foremost on their mind. Trial comes and you learn: The Supervisor … the damaged expert, neither is going to be called as a witness. Are you entitled to the missing witness instruction? It all depends.

Illinois Pattern Jury Instruction 5.01 states:

If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:

1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence;

2. The witness was not equally available to an adverse party;

3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him;

4. No reasonable excuse for the failure has been shown.

Whether to give a missing witness instruction is left to the sound discretion of the trial court and will not be overturned absent an abuse of discretion. Chuhak v. Chicago Transit Auth., 152 Ill.App.3d 480, 105 Ill. Dec. 590, 504 N.E.2d 875 (1st Dist. 1987).

Was the witness under the control of the party: Where a witness is an employee of a party, that witness is under the control of that party. Nassar v. Cnty. of Cook, 333 Ill.App.3d 289, 775 N.E.2d 154 (1st Dist. 2002). Where a witness is a retained expert of a party, that witness is under the control of the party so retaining her. Kersey v. Red Arrow Corp., 344 Ill. App. 3d 690, 800 N.E.2d 847 (2nd Dist. 2003). A former employee is not necessarily under the control of a party. Chuhak v. Chi. Transit Auth., 152 Ill. App. 3d 480, 504 N.E.2d 875 (1st Dist. 1987).

Could the witness be produced by the exercise of reasonable diligence: Where a party learned of an August trial date in May, but waited to advise her expert until a week before trial and the witness was not available, that party failed to exhibit reasonable diligence in producing the witness at trial. Dugan v. Weber, 175 Ill. App. 3d 1088, 530 N.E.2d 1007 (1st Dist. 1988).

Was the witness equally available to the opponent: Generally, where the witness is a retained expert, that witness is not equally available to the adverse party. Montgomery v. Blas, 359 Ill.App.3d 83, 833 N.E.2d 39 (1st Dist. 2005). In the circumstance where the witness was retained by defendant to perform an independent medical exam of the plaintiff, that witness is not “equally available” to the plaintiff. Hollembaek v. Dominick’s Finer Foods, Inc., 137 Ill.App.3d 773, 484 N.E.2d 1237 (1st Dist. 1985).

A reasonably prudent person would have produced the witness if testimony were favorable to that person: Looking at this conversely, a party would likely have produced the witness unless the testimony was unfavorable to the party. An Illinois court held that I.P.I. 5.01 was appropriate even though the witness had offered opinions favorable to the defendant because there were key opinions he offered which favored the plaintiff, as well. See, Dugan v. Weber, 175 Ill. App. 3d 1088, 530 N.E.2d 1007 (1st Dist. 1988).

No reasonable excuse for the failure to produce the witness was shown: In Kersey v. Red Arrow Corp., a defendant failed to call a retained expert in a traffic case, arguing that the only reason the expert would be called was to criticize the findings of plaintiff’s expert. Defense counsel argued that the witness was not needed because counsel effectively neutralized the plaintiff’s expert at cross. The trial court disagreed and the appellate court upheld, noting that the defense expert also testified to his own analysis of the accident and, therefore, his testimony would not be cumulative. Kersey v. Red Arrow Corp., 344 Ill. App. 3d 690, 800 N.E.2d 847 (2nd Dist. 2003). Where the party can show, though, that testimony would be merely cumulative, or would unnecessarily prolong the trial, the failure to call the witness is reasonable. Montgomery v. Blas, 359 Ill. App. 3d 83, 833 N.E.2d 39 (1st Dist. 2005); Chuhak v. Chi. Transit Auth., 152 Ill. App. 3d 480, 504 N.E.2d 875 (1st Dist. 1987).

PRACTICE NOTE:

Read I.P.I. 5.01 aloud and it can be somewhat confusing. The court does not instruct the jury on precisely what the missing witness said—or would have said—it simply instructs the jury that an inference can be drawn that the party’s own witness would have provided damaging testimony. Further, often times it is not necessarily clear who the witness is; the connection to the party abandoning the witness; and why the damaging testimony is important. If the court gives this instruction, in closing argument, the instruction must be explained and the import of the missing witness and her testimony made manifest.

For example, recently this instruction was given at a trial where a defense expert was withdrawn just after plaintiff rested her case in chief. The court found the witness was a retained expert who had performed a medical examination of the plaintiff (under the control of the defendant and not equally available to plaintiff). The witness had testified that the plaintiff’s injuries were caused by the negligence of the defendant but opined that the damages were not as severe as plaintiff claimed (the witness likely would have been called but for the unfavorable testimony). While the defendant claimed that others were testifying that the plaintiff’s injuries were caused by the negligence and therefore his testimony was cumulative, the defense expert also had other contentions and it was clear the defendant was trying to avoid the bad effect of his expert’s testimony (no reasonable basis for not calling the witness).

In this circumstance, a discussion was had with the court before closing argument to understand precisely what type of argument plaintiff’s counsel could make when explaining the instruction and explaining the inference the jury could make. While plaintiff’s counsel was not permitted to state exactly what the expert would have said if called to testify, counsel was permitted to argue that the court had found that all of the elements for the instruction had been met, the expert was retained by defendant, examined the plaintiff, made certain findings and would have offered opinions concerning causation. By doing this before closing, plaintiff’s counsel was able to argue the instruction effectively without generating an objection. ■