dissenting:
I disagree with the majority that it was reversible error for the trial court to give the adverse inference (missing witness or evidence) instruction.
Plaintiff argues that defendants would have produced the witness or evidence if the testimony was favorable. Defendants’ reason for not calling the witnesses was based upon the premise that the evidence would be cumulative. It is not clear whether the testimony and evidence would be cumulative.
Plaintiffs exhibit No. 56 listed the two medical experts defendants had retained to present opinion testimony at trial. The exhibit suggested that Dr. Weill would testify regarding the pathology and epidemiology of lung disease, the effects of cigarette smoking and the cause of Wilkerson’s lung cancer. Plaintiffs’ counsel argued defendants talked throughout the trial concerning scheduling problems to have the doctors present. OCF’s counsel also suggested "scheduling difficulties” and "considering that neither Dr. Skillrud and Dr. Weill were available on Friday and that would take me into Monday that the cumulativeness of their testimony made it possible to skip calling them.”
The "clear abuse” standard set forth in Johnson and in Betts (225 Ill. App. 3d at 901, 588 N.E.2d at 1206) did not make it reversible error to give or refuse to give the missing evidence and/or witness instruction. The cases cited in "Notes on Use” in IPI Civil 3d No. 5.01 were affirmances of the trial court in its decision to give, or refuse to give, the instruction. IPI Civil 3d No. 5.01, Notes on Use, at 5 — 3.
In Johnson, Chiricosta, and Betts, cited by the majority, the appellate courts affirmed the ruling of the trial courts. In Taylor, neither the appellate court nor the supreme court decided that the error, if any, in giving the instruction, was in itself reversible error. In discussing Supreme Court Rule 220, the supreme court stated:
"The rule further provides that experts will not be allowed to testify in a manner inconsistent with their pretrial disclosures. The committee comments to this paragraph point out that '[t]he purpose of this rule is to permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries.’ 134 Ill. 2d R. 220(d), Committee Comments, at 182.
The goal is that a party will be able to rely on his adversary’s expressed intention to call the experts he discloses. Thus, a missing-witness instruction is appropriate if such an expert is not abandoned and is not called. Thus, we rule that a party may give notice of abandonment and avoid the missing-witness instruction. The notice must be given in reasonable time prior to trial.” (Emphasis in original.) Taylor, 162 Ill. 2d at 98, 642 N.E.2d at 469-70.
The supreme court and appellate court also noted in Taylor that the plaintiff had given notice, approximately 19 months before trial, that the expert witness would not be called. Abandonment discussed in Taylor is not an issue or argument in this case. Taylor is important, however, because of reference to the missing witness instruction, and because the supreme court did not determine whether there was error in giving the instruction.
It was not an abuse of discretion to give the adverse inference instruction. It was also not reversible error because the trial court refused to give apportionment of responsibility instructions and a contribution verdict form.
I would affirm the trial court.