"Missing Witness" Instruction Allowing Jury to Draw Inferences from Evidence not Presented

Before the close of evidence, the defendant announced that it would not be calling an expert to whom it had referred in the opening statement. The defendant said it was not calling the expert because it had purportedly covered his expected testimony during cross-examination of plaintiff's expert.

During the jury instruction conference, the plaintiff sought a "missing witness" instruction based on IPI No. 5.01. Such an instruction provides generally that if a party fails to produce a witness within his power to produce, the jury may infer that the testimony would have been adverse to that party (if it was under the party's control, if it could have been produced by the exercise of reasonable diligence, if it was not equally available to an adverse party, if a reasonably prudent person would have produced it, and if there is not a reasonable excuse for the failure to do so).

The trial court refused the instruction but allowed plaintiff's counsel to raise the issue of the missing witness during closing argument. However, the Illinois Appellate Court for the Second District reversed and remanded the case for a new trial, holding that without the instruction, the argument was just argument, and it did not have the force of law that the plaintiff was entitled to by the proposed instruction. Kersey v. Rush Trucking, Inc., No. 2-02-1001, 800 N.E.2d 847, 279 Ill.Dec. 559 (2d Dist. Dec. 1, 2003).