Find Legal Information

No. 2--02--1001

JUSTICE GROMETER delivered the opinion of the court:

Plaintiff, Barbara Kersey, as special administrator of the estate of her deceased daughter,Shawnna M. Kersey, filed a negligence action alleging claims under the Wrongful Death Act (740ILCS 180/0.01 et seq. (West 1996)) and the Survival Act (755 ILCS 5/27--6 (West 1996)) againstdefendants, Rush Trucking, Inc. (Rush), Red Arrow Corporation (Red Arrow), Richard E. Smith,and Edward D. Lyle, in connection with a vehicular accident. Following a trial in the circuit courtof Winnebago County, the jury returned a verdict in defendants' favor. On appeal, plaintiff arguesthat the trial court erred in refusing to give the jury two of her proposed instructions. For the reasonsthat follow, we reverse the judgment of the circuit court and remand the cause for a new trial.

I. BACKGROUND

The collision that resulted in Shawnna's death occurred at the intersection of Alpine andSpring Creek Roads in Rockford, Illinois. Alpine Road is a four-lane highway that runs north andsouth. Spring Creek Road is a four-lane thoroughfare that runs east and west. The intersection ofAlpine Road and Spring Creek Road is controlled by a traffic signal. Left turn lanes exist for alldirections at the intersection. At the time of the collision, the speed limit for vehicles traveling southon Alpine Road at the intersection was 45 miles per hour. On December 12, 1996, at about 6 p.m.,Shawnna was driving her station wagon north on Alpine Road. At about the same time, Edward D.Lyle was driving a truck south on Alpine Road in the curb lane. As Shawnna approached the SpringCreek Road intersection, she entered the left turn lane. While Shawnna was turning west onto SpringCreek Road, her vehicle and Lyle's truck collided. Shawnna eventually died of the injuries shesustained in the accident.

At trial, Richard E. Smith testified that at the time of the collision Lyle was an employee of"Smitty's Express," a trucking business Smith started in 1985. Smith explained that prior toSeptember 1998, Smitty's Express was an in-house agent for Red Arrow and Rush. Under thisarrangement, Smitty's Express supplied commercial vehicles and hired drivers but operated under theauthority of federal and state operating licenses procured by Red Arrow and Rush. Smith testifiedthat an advisor from Rush provided him with information regarding a reconstruction of the accidentperformed by Red Arrow and Rush.

Lyle testified that he was familiar with the intersection at which the accident occurred. Lylerecalled that shortly before the accident he was driving south on Alpine Road, descending a hill thatprecedes the intersection. Lyle testified that when he was about 100 yards from the intersection, henoticed that the traffic signal was red for through traffic, but the green arrow signal was illuminatedfor traffic wishing to turn left. Lyle slowed down to an estimated speed of 25 to 30 miles per houras he approached the intersection. Once the green circular signal illuminated, Lyle proceeded intothe intersection. Lyle noticed a station wagon starting to make a left turn and come towards his laneof traffic. At that point, he applied his brakes and swerved to the right. However, he was unable toavoid the collision. Lyle stated that at the time of the accident the weather was clear and it was notraining. In addition, Lyle admitted that approaching this particular intersection at a speed of 35 milesper hour would have been dangerous.

Karen Rhoads testified that at about 6 p.m. on December 12, 1996, she was traveling northon Alpine Road when she came to a stop at the Spring Creek Road intersection. Rhoads heard theimpact from the collision and observed a truck pushing a station wagon.

Joseph Douglas Holloway testified that at the time of the collision he was driving south onAlpine Road. Holloway was traveling in the inside lane. Holloway slowed down as he approachedthe Spring Creek Road intersection because the traffic signal was red. Holloway first observedShawnna's vehicle as the traffic signal changed to green. As Holloway accelerated, he noticed astation wagon traveling north enter the left turn lane to go west on Spring Creek Road. Accordingto Holloway, the station wagon "made kind of a little bit of a hesitation stop like it was going to stop,and then it proceeded." Holloway slammed on his brakes and swerved to avoid the station wagon. Holloway was unaware of Lyle's presence until he heard the impact. Holloway estimated that Lylewas traveling at the speed limit.

Jennifer Cliningsmith testified that at the time of the collision she was also traveling south onAlpine Road in the inside lane. Cliningsmith was driving a pickup truck with a five-speed manualtransmission. There was a car directly in front of Cliningsmith and a truck to her right. Cliningsmithrecalled that there was a little bit of snow and rain the day of the accident. Cliningsmith testified thatas she approached the Spring Creek Road intersection, she began to downshift her vehicle from thirdto second gear because the traffic signal was red. When the traffic signal turned to green,Cliningsmith upshifted her vehicle from second to third gear. She estimated that she would have beengoing 25 to 30 miles per hour at the time and that the truck to her right was going about the samespeed. As she was shifting from second to third gear, Cliningsmith noticed a station wagon travelingnorth on Alpine Road enter the left turn lane to head west on Spring Creek Road. According toCliningsmith, the station wagon was "coming quick." Cliningsmith applied her brakes and tookevasive action to avoid a collision with the car in front of her. According to Cliningsmith, the car infront of her "barely missed" the station wagon. Cliningsmith testified that the roads were wet and thather vehicle slid a bit as she braked to avoid the collision.

Deputy Anthony Moore of the Winnebago County sheriff's police investigated the December12, 1996, accident. Moore is a certified accident reconstructionist. Moore testified in his capacityas an employee of the Winnebago County sheriff's police and as an expert retained by plaintiff. Moore testified that the accident was reported at 6:03 p.m. and that he arrived at the scene at 6:26p.m. Moore stated that at the time of his arrival, the roads were dry. Moore explained that if thepavement had been wet, there would not have been a skid mark. However, Moore determined thatthe truck that Lyle was driving left a 102-foot-long skid mark on the roadway. According to Moore,the truck skidded for 25 feet before striking the passenger side of Shawnna's station wagon. Mooredetermined the point of impact by locating the gouge marks in the pavement. Following impact, thetruck pushed the station wagon in a southwesterly direction for 77 feet before coming to rest.

Moore's investigation consisted of three different analyses: the slide-to-stop test, the "barrierequivalent velocity" test, and the momentum test. The slide-to-stop test measures the speed of avehicle at the first visible skid. Moore testified that, with respect to the slide-to-stop test, the lengthof the skid mark and the type of roadway surface are significant. In order to conduct this analysis,Moore had to determine the coefficient of friction. To measure the coefficient of friction, Mooredragged a "sled" across the roadway surface. The "sled" consisted of half of a motor vehicle tireattached to a scale. The tire, which was filled with cement and steel fragments, weighed 75 pounds. Moore stated that the coefficient of friction is usually around 0.67 to 0.70. Moore performed thedragging exercise six times. Averaging the results of the six drags, Moore determined the coefficientof friction to be 1.08. Moore acknowledged that the coefficient of friction he obtained was higherthan average for this type of pavement. However, he attributed the higher number to the fact thatthe skid mark ran "across the grain of the pavement" so that "it was almost like a new pavement" andthat the truck was moving on an untraveled portion of the pavement. Using 1.08 as the value of thecoefficient of friction, Moore determined that the speed of the truck was 57 miles per hour at thebeginning of the first visible skid.

The "barrier equivalent velocity" or "crush" test measures speed at impact. This test involvesmeasuring crush damage. Accordingly, several days after the crash, Moore measured the crushdamage to the station wagon. Based on these measurements, Moore determined that Lyle's truck wastraveling 52 miles per hour at impact. The momentum test also determines speed at impact. Themomentum test involves evaluating the directions in which the vehicles travel prior to impact and thedirections in which they travel after impact. Using the momentum test, Moore calculated the speedof the truck at 58 miles per hour. Based on all three of his analyses, Moore concluded that the truckdriven by Lyle was traveling 57 miles per hour at the beginning of the first visible skid and 52 milesper hour at the time of impact.

Using the momentum test, Moore also determined that Shawnna's vehicle was traveling 26miles per hour at the time of impact. Moore opined that given the speed of Shawnna's vehicle, if thetruck had been going between 25 and 35 miles per hour, the collision would not have occurred. Moore also opined that if the truck had been going 40 miles per hour, the two vehicles may have"touched bumpers," but he even doubted that.

On cross-examination, Moore admitted that the coefficient of friction is generally reduced by25% when determining the speed of trucks and that he did not reduce the coefficient of friction in thiscase. Moore cautioned, however, that a 25% reduction in the coefficient of friction does not yielda corresponding 25% reduction in the speed of the vehicle since the 25% is taken off of the coefficientof friction at the beginning of the formula. Moore also stated that his investigation revealed that atthe time of the collision, traffic traveling south on Alpine Road had the green circular signal. Mooreconceded that if southbound traffic had the green circular signal, it was not possible for Shawnna tohave had a green or yellow arrow signal. Moore testified, however, that Shawnna would have hadthe green circular signal and that Shawnna could have turned left on a green circular signal providedshe yielded to oncoming traffic. On redirect examination, Moore testified that the 25% reduction inthe coefficient of friction that is generally applicable to trucks did not apply in this case because thevehicles were moving sideways.

The parties also presented the videotaped deposition of Daniel Broughton, the safetysupervisor for Rush and Red Arrow at the time of the accident. Broughton testified that part of hisjob as safety supervisor was to investigate collisions and that he investigated the accident thatoccurred on December 12, 1996. Broughton acknowledged that someone for Rush and Red Arrowdid some reconstruction of the December 1996 accident. However, Broughton stated that he neverspoke to that individual.

Prior to the close of evidence, defendants announced that they would not be calling GeraldE. Cohn, Ph. D., an expert to whom they referred in their opening statement. Defendants stated thatthey 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 PatternJury Instruction, Civil, No. 5.01 (Supp. 2003) (hereinafter IPI Civil (Supp. 2003) No. 5.01), alsoknown 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 hispower to produce, you may infer that the [evidence] [testimony of the witness] would beadverse 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 beenproduced 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 wouldbe] 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' failureto produce the accident-reconstruction report alluded to by Smith and Broughton. Whileacknowledging Broughton's testimony, defendants insisted that they were unaware of any accident-reconstruction report. Defendants admitted to an "investigation" conducted by an insurance companyand believed that Smith's testimony referred to that investigation. However, defendants did notconsider 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 testimonyand *** there is good reason not to present the reconstruction evidence."

Plaintiff's second IPI Civil (Supp. 2003) No. 5.01 instruction was a missing-witnessinstruction based on defendants' failure to call Cohn. Defendants reiterated that the points theywished to elicit through Cohn's testimony were covered by the cross-examination of Moore. Forinstance, defendants asserted that Cohn's primary criticism of Moore's testimony involved the highvalue he obtained for the coefficient of friction. Defendants noted that Moore himself testified thatthe 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 closingargument. Ultimately, the jury returned a verdict in defendants' favor. Plaintiff then filed a posttrialmotion arguing, among other things, that the trial court erred in refusing to tender to the jury themissing-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 allowsa jury to draw an adverse inference from a party's failure to offer evidence or to produce a witness. The instruction should be given only when a foundation is presented which suggests that: (1) thewitness or evidence was under the control of the party to be charged and could have been producedby 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 theevidence or produced the witness if he believed the evidence or the witness's testimony would havebeen favorable to him; and (4) no reasonable excuse for the failure to offer the evidence or to producethe 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 orthe 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 IPICivil (Supp. 2003) No. 5.01 to the jury is within the sound discretion of the trial court, and thatdecision 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'sarguments.

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 foundationalrequirements 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 failureto give the missing-witness instruction. Defendants respond that the circuit court did not err in failingto 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 prejudicialerror.

Defendants do not dispute the presence of the first two foundational requirements for amissing-witness instruction. Indeed, plaintiff satisfies the first two requirements because, Cohn, asan expert witness hired by defendants, was under defendants' control for purposes of testifying, andthus was unavailable to plaintiff as a witness. See Hollembaek v. Dominick's Finer Foods, Inc., 137Ill. App. 3d 773, 776-77 (1985) (holding that a doctor hired by the defendant to examine the plaintiffis under the defendant's control for the purpose of testifying and thus unavailable to the plaintiff asa witness); Ciborowski v. Philip Dressler & Associates, 110 Ill. App. 3d 981, 986 (1982) (holdingthat witness hired by the defendant with the intention of having him testify on the defendant's behalfis 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 intendering missing-witness instruction to jury where the plaintiff advised the defendant of his decisionto abandon expert witness 19 months prior to trial).

With respect to the third factor, plaintiff argues that Cohn's testimony would have beenunfavorable to defendants because it contradicted the testimony of defendants' eyewitnesses anddemonstrated that the speed at which Lyle was driving was above the posted limit and unsafe for theintersection. The record reveals that Cohn was hired by defendants in February 2002 "to evaluateDeputy Moore's reconstruction of the accident and identify any major mistakes, inaccuracies andweaknesses" in Moore's opinion. In addition, defendants requested Cohn to "develop [his] ownanalysis of the accident, including a computation of the speed of the truck." To this end, Cohnprepared a report and was deposed regarding his findings.

At his deposition, Cohn testified that he has a Ph. D. in nuclear physics. Although Cohnadmitted that he was not trained in accident reconstruction, he stated that "the first accidentreconstruction [he] did as an expert witness" was in 1977. He also testified that he has been deposedas an accident-reconstruction expert between 10 and 20 times and that he has provided speed analysistestimony as it relates to accident reconstruction. Furthermore, Cohn testified that his businessconcentrates in two areas of practice: technical consulting and specialty education. Cohn testifiedthat between 25% and 60% of his technical consulting business deals with accident reconstructionand between 10% and 25% of his specialty education business deals with accident reconstruction. Accordingly, Cohn held himself out as an expert in accident reconstruction.

Cohn opined that the value that Moore placed on the coefficient of friction was "unusuallyhigh and should be justified." Cohn explained that the typical coefficient of friction range for newpavement is 0.65 to 1.0 while the typical coefficient of friction range for well-traveled pavement is0.55 to 0.70. Cohn characterized the intersection where the collision occurred as well traveled, andhe opined that the 1.08 value that Moore placed on the coefficient of friction was not "characteristicof a well-traveled surface." At trial, Moore attributed the high value he obtained for the coefficientof friction to the fact that the truck was moving in a direction that simulated the effect of newpavement and that the truck was on an untraveled portion of the pavement. Thus, Moore provideda justification for the high value he calculated for the coefficient of friction. Consequently, had Cohnbeen retained by defendants solely to criticize Moore's opinions, we may have been inclined to accepttheir argument that Cohn's testimony was cumulative of facts already established. See Hollembaek,137 Ill. App. 3d at 777.

However, Cohn was also retained to "develop [his] own analysis of the accident, includinga computation of the speed of the truck." At his deposition, Cohn testified regarding spreadsheetshe prepared. Cohn explained that the spreadsheets contain his estimations of the initial speed of thetruck for various coefficient-of-friction values. Among other things, the spreadsheets list Cohn'scomputations of the estimated speed of the truck at three different phases: (1) postimpact, i.e., thespeed at which the truck exited the impact scene; (2) preimpact, i.e., the speed of the truckinstantaneously prior to the impact with the passenger vehicle; and (3) preskid, i.e., the speed of thetruck just before it started to skid. In calculating the preskid speed of the truck, Cohn used valuesfor the coefficient of friction ranging from 0.5 to 1.2. For instance, Cohn testified that, using a valueof 1.05 for the coefficient of friction, the truck would have been traveling 94.696 feet per second. Cohn converted feet-per-second to miles per hour by dividing the former by 88 and then multiplyingthe resulting quotient by 60. Thus, using 1.05 as the value for the coefficient of friction, Cohncalculated that the preskid speed of the truck would have been 64.6 miles per hour. Cohn alsotestified that the preskid speed of the truck would have been 64.8 miles per hour if the value used forthe coefficient of friction was 1.08.

As noted previously, Cohn considered the intersection at which the collision occurred as well-traveled, and he testified that the typical coefficient of friction range for well-traveled pavement is0.55 to 0.70. According to the spreadsheets Cohn generated, using a value of 0.55 for the coefficientof friction, the lowest typical value for well-traveled roads, the truck would have been traveling68.287 feet per second preskid. Converting that number to miles per hour yields a speed of 46.559miles per hour. Using a value of 0.70 for the coefficient of friction, the highest typical value for well-traveled roads, the truck would have been traveling 77.153 feet per second. Converting that numberto miles per hour yields a speed of 52.604 miles per hour. Thus, operating under Cohn's assumptions,the truck was traveling between 46.559 and 52.604 miles per hour just before it started to skid.

Ultimately, however, Cohn concluded that the evidence was consistent with the trucktraveling a speed "at or below the posted limit of 45 miles per hour." Cohn explained his conclusionas follows:

"Well, I don't remember if or where I said this, but, again, from the articles here, yousee that for trucks, coefficients of trucks are lower. They are lower -- I should have -- what'sthe right word you use? I should have derated the values of coefficient of friction I usebecause it's a truck we are talking about. And if those coefficients are lower, then consideringalso, the response time that would be required for what Office Moore asserts happenedhappening [sic], it seems unlikely to me that it all could have happened with the truck -- theway it did with the truck going at the speed it's claimed to have been going, but a speed belowthe limit would be more *** reasonable."

When Cohn was asked later on what he based his opinion that the truck was moving at 45 miles perhour or below, Cohn responded:

"Based on, first, that I have a hard time accepting a coefficient of friction as high aswas measured. The other points that I've tried to make here see, to indicate to me that thereis some question about Officer Moore's analysis, but I think that the evidence would be moreconsistent with a lower speed. I just think it's more likely that that happened."

We note, however, that the jury also heard testimony from Moore that the 25% reduction tothe coefficient of friction should not have been applied in this case because of the manner in whichthe truck was moving. The jury also heard Moore's explanation regarding the high value he obtainedfor the coefficient of friction. Obviously, if the jury chose to believe Moore's explanations, theunfavorable nature of Cohn's testimony is readily apparent: Cohn's testimony supported plaintiff'stheory that Lyle was driving above the posted speed limit at the time of the collision. See VanSteemburg v. General Aviation, Inc., 243 Ill. App. 3d 299, 320 (1993) (holding that where thedefendant failed to call its witness, and the plaintiff's expert's testimony was not comparable to thedefendant's expert's testimony, missing-witness instruction should have been given).

Defendants now claim that the spreadsheets generated by Cohn were merely charts "showingwhat speeds would result for skid marks of a given length at different coefficients of friction." Wefail to see the relevance of this argument. Moore testified that in calculating the speed of the vehicleusing the slide-to-stop test, the two variables are the coefficient of friction and the length of the skidmark. In this case, Moore measured the length of the skid mark. Although varying the length of theskid mark would have undoubtedly altered the speed calculations, defendants offered no testimonythat the length of the skid mark as measured by Moore was incorrect.

Defendants also assert that Cohn "did not validate any of the coefficients of friction, he didnot account for moisture on the road surface, and he did not apply the 25% reduction factor for heavytrucks." Exactly what defendants mean in arguing that Cohn did not "validate" the coefficients offriction is unclear. However, we note that Cohn did testify that the typical coefficient of frictionrange for well-traveled pavement is 0.55 to 0.70. Further, while Cohn did not account for moistureon the road surface, there was contradictory testimony on this point. Finally, as we note above, Cohndid testify regarding the 25% reduction factor for trucks. However, the jury was also presented withcontradictory 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 thedefendant's expert's report and deposition contained some matters that were favorable to thedefendant, materials also contained matters unfavorable to the defendant).

Turning to the fourth requirement, we conclude that defendants did not proffer a reasonableexcuse for the failure to produce Cohn as a witness. Defendants contend that "[a]ll of the essentialpoints that [they] would have raised in Dr. Cohn's direct examination had already been raised in thevery effective cross examination of Moore." In other words, defendants' excuse is that Cohn'stestimony would have been cumulative of the testimony they elicited from their cross-examinationof Moore. We disagree.

A missing-witness instruction is not warranted if the evidence that has not been offered orthe 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 thathe was retained by defendants "to identify any major mistakes, inaccuracies and weaknesses in OfficerMoore'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 thisregard, defense counsel commented:

"The only testimony that you're going to hear about [Lyle] exceeding the speed limitis going to come from Officer Moore. And while I'm not a math expert - that's one of thereasons why I went to law school - we are going to call a doctor of physics, and we're goingto show that some of the math calculations, not necessarily the formulas - but if you put indifferent 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 usethe same formulas that Officer Moore did that you're going to come up with speeds verysimilar 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 fromthe record that defendants intended to call Cohn to provide an independent analysis of the speed ofthe truck. Moore did not and could not testify regarding Cohn's independent determination of thespeed of the truck driven by Lyle. Thus, we conclude that Cohn's testimony would not have beencumulative of the testimony elicited from Moore on cross-examination. See Dugan, 175 Ill. App. 3dat 1095 (concluding that missing witness's testimony was not cumulative to other testimony presentedwhere 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 based on their failure to call Cohn, any error was harmless. We disagree. A newtrial will be granted where a party shows that its right to a fair trial has been seriously prejudiced bythe 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 ofnegligence in her complaint centered on the speed at which the truck was traveling. During openingstatements, defendants informed the jury that they would present the testimony from a "doctor ofphysics" to explain that if the variables in the formulas used by Moore to estimate the speed of thetruck driven by Lyle were changed, "you come up with different speeds." Defendants also informedthe jury that when these variables are plugged into the formulas used by Moore, "you're going tocome up with speeds very similar to what the eyewitnesses testified that [Lyle] was traveling." Thejury was never presented with this testimony.

Moreover, we do not believe that the circuit court's decision to permit plaintiff to commenton defendants' failure to call Cohn during closing argument rendered the error harmless. Althoughplaintiff 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 becausehis 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 entitledto 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 instructiondespite 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 wasavailable to testify, where foundational requirements for instruction were satisfied). Accordingly, weconclude that there was evidence establishing the existence of all four foundational requirements andthe 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 calla retained opinion witness in every case or else risk the jury receiving a missing witness instructionat the close of the case." Defendants exaggerate the impact of our decision. The missing-witnessinstruction will be given only when evidence is presented that suggests the existence of the fourfoundational requirements and the testimony of the missing witness would not be cumulative of factsalready 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 reconstructionpurportedly conducted by Red Arrow and Rush. According to plaintiff, the foundationalrequirements 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 theinstruction where the court determined that no such evidence ever existed. Although we have alreadydetermined that this cause must be remanded for a new trial, we address this issue because it will ariseon remand. Koonce v. Pacilio, 307 Ill. App. 3d 449, 461 (1999).

Prior to trial, plaintiff submitted to defendants a request for production of documents. See166 Ill. 2d R. 214. Relevant here, plaintiff requested the following materials:

"27. Copy of any and all accident reports, including but not limited to reports filledout by Edward D. Lyle and/or employees or agents of Red Arrow or Rush Trucking.

* * *

33. Any and all accident reports, investigative reports and inspection reportspertaining to the injuries sustained by any party to the lawsuit, except those documents whichfall under the protection of privileges or work product, containing factual material concerningthe date of the occurrence which is the subject matter of this lawsuit."

In a letter dated March 10, 1999, defendants responded to plaintiff's inquiries as follows. Withrespect to inquiry 27, defendants stated, "None other than the statement given by Edward Lyle to hisinsurance company. Investigation continues." With respect to inquiry 33, defendants stated, "Noneat present. Investigation continues."

However, at trial, two witnesses testified regarding the existence of an accident-reconstructionreport. The following colloquy occurred between plaintiff's counsel and Broughton, the safetysupervisor for Rush and Red Arrow at the time of the accident:

"Q. Okay. Now someone for Rush Trucking and Red Arrow Corporation did somereconstruction of the collision back in December of '96; correct?

A. Correct.

Q. Okay. But you never talked to that person; correct?

A. No, sir."

In addition, defendant Smith testified:

"Q. Okay. You heard Mr. Broughton testify that in December of 1996 Red Arrowand Rush did a reconstruction of this collision.

A. Yes.

Q. You heard him say that?

A. Yes.

Q. Did you ever see it?

A. Through an advisor, they gave me information in regards to it. I never saw it."

Despite this testimony, defendants claim that no such accident-reconstruction report exists. However,defendants never questioned these two witnesses regarding the report's existence. If the accident-reconstruction report did not exist as defendants claim, it was incumbent upon them to question thewitnesses on this matter. Defendants did not do this. Accordingly, we presume that the report exists.

In addition, we find that the foundational requirements for the missing-evidence instructionhave been satisfied. First, the testimony suggests that the evidence was under defendants' control andcould have been produced by the exercise of reasonable diligence. Second, since the accident-reconstruction report was never produced through discovery, defendant cannot claim that it wasequally available to plaintiff. See Jenkins, 288 Ill. App. 3d at 832. Third, a reasonably prudent personunder the same or similar circumstances would have offered the evidence if he believed it to befavorable to him. Finally, although defendants offered a reason for failing to produce the accident-reconstruction report, i.e., the report was nonexistent, the evidence at trial contradicted defendants'claim. Accordingly, we conclude that the trial court abused its discretion in failing to give themissing-evidence instruction. See Jenkins, 288 Ill. App. 3d at 832 (holding that in personal injuryaction the plaintiff's failure to produce photographs of alleged injuries warranted missing-evidenceinstruction despite the plaintiff's claim that photographs had been lost); Dugan, 175 Ill. App. 3d at1094 (holding that in medical malpractice action the defendant's failure to introduce the plaintiff's Xrays warranted missing-evidence instruction despite the defendant's claim that X rays were allegedlylost since the defendant admitted that X rays had been mailed to him).

III. CONCLUSION

For the aforementioned reasons, we reverse the judgment of the circuit court of WinnebagoCounty and remand the cause for a new trial.

Reversed and remanded with directions.

McLAREN and BOWMAN, JJ., concur.