Hollembaek v. Dominick’s Finer Foods, Inc., 137 Ill.App.3d 773, 484 N.E.2d 1237 (1985)
Plaintiff, Lorene Hollembaek, brought this action to recover for injuries sustained when she slipped on a wet floor while shopping in a food store owned by defendant Dominick’s. At the conclusion of trial, the jury returned a verdict for $240,000, but reduced it to $216,000, representing the jury’s allocation of plaintiff’s comparative negligence in the amount of ten percent.
Defendant first claimed that the missing witness instruction was improperly given. The appellate court stated:
“Defendant here chose to call a doctor whose last examination took place two years before trial rather than the doctor it hired to examine plaintiff only three months before trial. . .we find that in all likelihood defendant would have produced Dr. Gleason unless the testimony was unfavorable. We find no merit in defendant’s argument that Dr. Gleason was equally available to both parties. The cases are clear that a doctor hired by defendant to examine plaintiff is under defendant’s control for the purpose of testifying, and thus unavailable to plaintiff as a witness.” 137 Ill.App.3d 773, 776-777 (1985).
Defendant attempted to reopen its case after plaintiff tendered the missing witness instruction, and the trial court denied the motion to reopen with the appellate court noting: “… if a party could reopen its case to produce a missing witness whenever the missing witness instruction is tendered, there would be no need for the instruction. The appellate court affirmed the jury’s award to plaintiff of $216,000.
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