Torress v. Midwest Development Company ( 2008 )

FIRST DIVISION
MAY 19, 2008
1-06-3698
EFRAIN TORRES, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 04 L 3805
)
MIDWEST DEVELOPMENT COMPANY, ) Honorable
) Cheryl A. Starks,
Defendant-Appellee. ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
Plaintiff, Efrain Torres, brought this premises liability action, seeking to recover
damages for personal injuries sustained by him on January 11, 1999, when he slipped and
fell on real property owned by defendant, Midwest Development Company. Following
trial, the jury rendered a verdict for defendant, and the trial court entered judgment on the
verdict. The trial court denied plaintiff’s posttrial motion, and plaintiff has filed a timely
appeal, contending that the trial court erred by barring plaintiff’s expert, Michael Eiben,
from testifying. We affirm.
BACKGROUND
Plaintiff filed this premises liability action after he slipped and fell, sustaining a
bimalloelar fracture to his right ankle, outside of his third-floor apartment, located at
2608 West LeMoyne Street in Chicago, Illinois. In his complaint, plaintiff alleged that
defendant “[i]mproperly operated, managed, and maintained *** the [the property] so as
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to permit the unnatural accumulation of ice and snow in front of the [entryway] to
[p]laintiff’s apartment.” Plaintiff also alleged that defendant “failed to inspect and repair
gutters and roof overhangs which caused the unnatural accumulation of ice and snow in
front of the [entryway] to [p]laintiff’s apartment, and ***[f]ailed to inspect and repair
defects in the porch and deck by the [entryway] to [p]laintiff’s apartment which caused
the unnatural accumulation of ice and snow.”
Michael Eiben was disclosed as plaintiff’s expert witness prior to trial. Eiben was
retained by plaintiff to offer expert opinion testimony regarding how defects in the
building’s roof caused an unnatural accumulation of ice on plaintiff’s porch that
allegedly caused plaintiff’s fall.
Before reaching Eiben’s opinions, we briefly summarize the operative facts
concerning the property and its roof, which are necessary to an understanding of those
opinions.
The building is a three-story masonry residential apartment building. Each of the
three stories contains three apartments. The primary means of ingress and egress to and
from the individual apartments is a rear outdoor stairway.
The third floor of the apartment building includes a large, outdoor wooden porch
that is common to all three of the building’s third-floor apartments. At the time of
defendant’s purchase, the roof of the building was composed of two parts. The first part
of the roof, covering the masonry building itself, was composed of asphalt. The second
part of the roof was composed of single-ply wooden planking and extended over part of
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the porch situated on the third floor of the building. At some point prior to and through
the time of plaintiff’s injury, the masonry roof and the wooden planking roof were set at
the same level.
Shortly after purchasing the property in 1997, defendant hired a roofing company
to repair the building’s roof because water was leaking into an apartment in the complex.
At that time, a new asphalt roof was installed over the preexisting asphalt roof, and a
“peel and stick” method was utilized to create a seam between the newly installed asphalt
roof and the preexisting wooden plank roof. The material used for the “peel and stick”
repairs was rubber-based.
In 2000, after the time of plaintiff’s injury, the same roofing company installed an
entirely new roof over the structure, including the porch roof. At that time, the newly
constructed roof consisted of only asphalt. The roof was constructed as one continuous
structure extending over the porch and contained no gaps.
We now turn to a discussion of Eiben’s opinions.
Prior to trial, defendant filed several motions in limine contesting the proffered
testimony of plaintiff’s retained expert, Michael Eiben. Eiben provided a discovery
deposition in this case, which was utilized by the trial court to determine if his opinions
would be allowed into evidence.
At his discovery deposition, Eiben testified that he earned a degree in architecture
from Notre Dame University in 1966. He completed an apprenticeship with a licensed
architect and earned his Illinois architect’s license in 1975 after serving in the military.
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Eiben practiced as an architect until 1999. After that point, he has devoted all of his
professional time as an expert witness. He testified that he has designed numerous
buildings including schools, healthcare facilities, prisons, residential housing and other
commercial real estate. He testified that he designed the roof for every structure that he
designed and inspected every roof to ensure compliance with his plans and specifications,
city ordinances, and state laws.
Eiben considers himself an expert in roofing and its composition. He stated that
Illinois requires continuing education courses for architects and that he has met those
requirements every year since his licensure. He has testified as an expert in 33 trials
since 1975, but could not recall how many trials he has testified in the past five years.
When asked if he considers roofing a specialty and whether he considers himself a
roofing specialist, he stated that architects do not use the term “specialist.” When asked
the same question later in his deposition, Eiben stated that he does not consider himself a
roofing specialist. Eiben was also unfamiliar with many professional organizations
related to roofing and the composition of roofing materials.
Eiben inspected the property on September 20, 2005, six years and eight months
after plaintiff’s fall and after the roof’s structure and composition had been changed. He
testified that the weather conditions on September 20, 2005, were “mild and sunny.”
After inspecting the property and reviewing climatological data for January 1999, Eiben
opined that an unnatural accumulation of ice formed on plaintiff’s porch in one of two
ways. Firstly, Eiben opined that water leaked through a gap between the roof of the
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masonry building and the wooden porch roof, as they existed at the time of plaintiff’s
injury. Secondly, Eiben opined that the unnatural accumulation of ice on the third-floor
porch was caused by an inadequate drainage system. Eiben testified that his opinions
were based only on his inspection of the premises. There was no foundational testimony
that he was aware of the structure as it existed at the time of plaintiff’s injury. He
testified that he did not rely on the deposition testimony of any of the people deposed, but
testified that their deposition testimony was “consistent with” his opinions without
providing specifics. Eiben specifically testified that he reviewed several depositions the
night before his own deposition, but had formulated his opinions well in advance of his
review of those depositions.
Eiben stated that water may have leaked through a gap between the roof of the
masonry building and the wooden porch roof, as they existed at the time of plaintiff’s
injury. He testified that the roof at that time was defectively designed, because the porch
roof was set at the same level as the asphalt roof. He stated that wooden porch roofing in
a like building should be constructed “somewhat” lower than masonry roofing and should
contain flashing between the two. He explained that flashing is necessary to seal the gap
between the two materials because wood and asphalt expand and contract at different
rates, leading to conditions whereby leaking could occur through a gap between the two,
especially during wintertime when contraction of the two materials is at its maximum.
Eiben criticized the “peel and stick” repairs made to the roof in 1997. He testified
that the rubber material used to make the “peel and stick” repairs was insufficient to
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remedy the dangerous condition caused by the absence of flashing between the masonry
and wooden roofs. Eiben stated that he would not expect the rubber material to last more
than one warm/cold weather cycle in Chicago and certainly expected the material to have
failed by the time of plaintiff’s injury. Eiben conceded that he never observed the 1997
“peel and stick” repairs, as an entirely new roof was installed in 2000, as noted.
Eiben stated that his opinion was based solely on his observation of water stains
on the underside of the porch roof. He conducted no testing to determine the age of the
water stains and stated that he had no way of knowing if the water stains existed prior to
or after the 1997 repairs were made to the roof. He could not testify to a reasonable
degree of architectural or scientific certainty that the water stains he observed in
September 2005 existed in January 1999 when plaintiff was injured. He stated that
scientific testing could have been used to determine the precise age of the water stains,
“other than simply looking at the stain,” but that would have involved “go[ing] to another
level of testing,” which he did not do.
In Eiben’s alternative opinion that an unnatural accumulation of ice formed on the
third-floor porch of the building because of an inadequate drainage system, he testified
that he was “very critical” of the building’s drainage system and the way the system was
maintained. However, he offered no explanation as to why the system was inadequate
and provided no basis for his opinions.
Eiben also stated that a phenomenon known as “ice damming” in conjunction
with the building’s inadequate drainage system may have contributed to the unnatural
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accumulation of ice on the porch. Eiben stated that “ice damming” occurs when a
building emits heat from its roof (a process called thermal transmission) causing existing
snow or ice on the roof surface to melt, whereby the melted snow or ice, now in liquid
form, travels to and refreezes over openings to the gutter system’s downspouts. He
testified that other liquid caused by the same thermal transmission thereafter travels out
of the gutter system because the liquid has nowhere else to go. He stated that the roof of
the building was poorly designed and was susceptible to “ice damming.”
Eiben did not review any blueprints related to the building in formulating his
opinion. He did not pour water on the roof and did not observe any drainage patterns.
He did not make measurements and specifically did not measure the roof’s overhang.
Eiben stated that his opinion regarding “ice damming” was consistent with several
citations issued by the City of Chicago regarding inadequate heating of the building.
Eiben stated that inadequate heating conditions causes an uneven distribution of thermal
transmission, leading to prime conditions for “ice damming.” However, Eiben could not
testify whether the citations were issued at the time of plaintiff’s fall or if the inadequate
heating conditions had been remedied prior to plaintiff’s fall. He could not testify to a
reasonable degree of architectural or scientific certainty that “ice damming” occurred
around the time of plaintiff’s injury. Eiben stated that “ice damming” was consistent
with one of the depositions he had reviewed, but stated that he in no way relied on the
deposition to form his opinion. He could not recall whose testimony was consistent with
the occurrence of “ice damming.”
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After reviewing Eiben’s opinions and factual basis therefore, and hearing
extended arguments from both parties, the trial court barred Eiben from trial. The trial
court found that Eiben’s testimony was not admissible because he had “no rational basis
for his opinions.” Incorporated into that ruling was the transcript from the hearing.
In ruling to bar Eiben’s opinion testimony, the trial court firstly found that
Eiben’s opinions could not be based upon his 2005 inspection because he never inspected
the roof as it existed at the time of plaintiff’s injury, since the entire roof was replaced in
2000. With regard to Eiben’s opinion that the “peel and stick” repairs were ineffective,
the trial court found that Eiben never examined the repairs, since, again, the entire roof
was replaced prior to his inspection. With regard to Eiben’s alternate opinion, that an
unnatural accumulation of ice occurred on plaintiff’s porch due to an inadequate drainage
system and “ice damming,” the trial court found that Eiben did not offer any explanation
as to why the building’s drainage system was inadequate and could not testify to a
reasonable degree of architectural or scientific certainty that “ice damming” occurred
around the time of plaintiff’s injury.
The trial court also found that although certain depositions could have supplied a
factual basis for Eiben’s opinions, Eiben stated that he did not rely on any depositions to
formulate his opinions.
We note that plaintiff conceded that there is no foundation for Eiben to testify
about the drainage system, including the building’s gutter system. In plaintiff’s counsel’s
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words, Eiben could not testify regarding the drainage system because “the water never
reached the gutters.”
The matter was tried before a jury without Eiben’s testimony. The jury returned a
verdict in favor of defendant.
Plaintiff filed a posttrial motion for a new trial, contending that the trial court
erred by barring Eiben’s testimony. The court denied plaintiff’s posttrial motion, stating
that although Eiben “was competent to testify as to architectural opinions about roofs
including slopes and angles,” his testimony was barred because “he did not articulate a
real basis for his opinions that the slopes and angles of the roof caused an unnatural
accumulation of ice.” The trial court also found that Eiben’s opinions were properly
barred from trial because he could not hold his opinions to a reasonable degree of
architectural or scientific certainty.
ANALYSIS
On appeal, plaintiff contends that the trial court erred by barring Eiben as a trial
witness. With regard to expert testimony, it is well settled that “[a] person will be
allowed to testify as an expert if his experience and qualifications afford him knowledge
that is not common to laypersons, and where his testimony will aid the trier of fact in
reaching its conclusions.” Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006), citing
People v. Miller, 173 Ill. 2d 167, 186 (1996). It has long been recognized that special
care must be taken by the trial court in ruling upon the admissibility of scientific
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evidence since juries tend to equate science with truth and may place substantial weight
on any evidence labeled scientific. People v. McKown, 226 Ill. 2d 245 (2007). The
critical issue is whether the expert’s legal testimony aids the trier of fact by explaining a
factual issue beyond one’s ordinary knowledge. Martin v. Sally, 341 Ill. App. 3d 308,
315 (2003), citing Eychaner v. Gross, 321 Ill. App. 3d 759, 779 (2001). The admission
of expert testimony is within the discretion of the trial court and will not be reversed on
appeal absent an abuse of that discretion. Martin, 341 Ill. App. 3d at 315, citing In re
Detention of Tittlebach, 324 Ill. App. 3d 6, 10 (2001).
Before proceeding to the issue of whether the trial court abused its discretion by
barring Eiben as a trial witness, we note that plaintiff failed to make an offer of proof
regarding Eiben’s proposed testimony at the trial level. We must first determine what
effect, if any; plaintiff’s failure to make an offer of proof has on this appeal.
Generally, when a trial court refuses evidence, no appealable issue remains unless
a formal offer of proof is made. Volvo of America Corp. v. Gibson, 83 Ill. App. 3d 487,
491 (1980). The purpose of an offer of proof is to inform the trial court, opposing
counsel, and a reviewing court of the nature and substance of the evidence sought to be
introduced. Volvo of America Corp., 83 Ill. App. 3d at 491. Where it is not clear what a
witness would testify to, or what the basis for his testimony is, the offer of proof must be
considerably detailed and specific, so that a reviewing court can thereby review whether
the exclusion was proper. Volvo of America Corp., 83 Ill. App. 3d at 491.
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However, an offer of proof is not required where it is apparent that the trial court
clearly understood the nature and character of the evidence sought to be introduced.
Volvo of America Corp., 83 Ill. App. 3d at 491. Such is the case here. A review of the
record demonstrates that the trial court had before it Eiben’s written report and lengthy
deposition testimony, which contained within them all of the opinions that he would have
provided at trial. The trial court also heard extensive argument from both parties
regarding Eiben’s qualifications, opinions and the lack of a factual basis for those
opinions.
Having determined that plaintiff’s failure to make an offer of proof did not result
in waiver, we now turn to a determination of whether the trial court abused its discretion
by barring Eiben as a trial witness.
As noted, the trial court barred Eiben’s testimony for two reasons. First, the trial
court barred Eiben’s opinions from trial because the opinions were not based on a
reasonable degree of architectural or scientific certainty. Second, the trial court barred
Eiben’s opinions from trial because the opinions had no factual basis. For the reasons
that follow, we find that the trial court did not abuse its discretion by barring Eiben’s
opinions from trial.1
1
On appeal, the parties argue extensively regarding whether Eiben was qualified
to testify about roofing and its composition. Despite the parties’ extensive arguments, we
decline to address whether Eiben was qualified to testify regarding roofing and its
composition for two reasons. First, despite the parties’ lengthy arguments regarding
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A. Reasonable Degree of Architectural or Scientific Certainty
As noted, the trial court barred Eiben’s testimony from trial because he could not
hold his opinions to a reasonable degree of architectural or scientific certainty.
To begin, we recite the familiar rule that “[i]ndividuals are permitted to testify as
experts when their experience and qualifications provide them with knowledge beyond
that of lay persons and where their testimony aids the jury in reaching a conclusion.”
Dominguez v. St. John’s Hospital, 260 Ill. App. 3d 591, 594-95 (1993). An expert’s
testimony must be to a reasonable degree of certainty within the field of his expertise to
be admissible. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967,
972 (1997). An expert’s statement that his or her opinions are based on a reasonable
degree of certainty within a given field allows the courts to know that the opinions are an
expression of the general consensus of recognized thought within the given field.
Dominguez, 260 Ill. App. 3d at 595; Yates v. Chicago National League Ball Club, Inc.,
230 Ill. App. 3d 472, 485 (1992). In Illinois, the admission of expert testimony is
governed by the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Eiben’s qualifications, the basis for the trial court’s order barring Eiben’s testimony was
that his opinions (1) were not held to a reasonable degree of architectural or scientific
certainty, and (2) lacked a factual basis. Second, having already determined that the trial
court did not abuse its discretion by barring Eiben’s testimony for the reasons given in
the trial court’s order, any determination of whether Eiben was qualified to testify
regarding roofing and its composition would be dictum.
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Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002). Pursuant
to the Frye standard, which is also known as the “general acceptance” test, scientific
evidence is only admissible at trial if the underlying methodology or scientific principle
upon which the opinion is based is sufficiently established to have gained general
acceptance in the particular field in which it belongs. Donaldson, 199 Ill. 2d at 77.
In other words, when an expert testifies to a reasonable degree of certainty within
a given field, it means that others in the field would agree with the expert’s opinion.
However, “there is no magic to the phrase itself.” Dominguez, 260 Ill. App. 3d at 595.
“If the [expert’s testimony] reveals that his or her opinions are based upon specialized
knowledge and experience and grounded in [scientific, medical, architectural, etc.]
thought, it is of no consequence that the witness has failed to preface the opinions with
the phrase, ‘within a reasonable degree of certainty.’ ” (Emphasis added.) Dominguez,
260 Ill. App. 3d at 595.
However, the opposite is true when an expert testifies that he cannot base his
opinion of architectural or scientific certainty. In the instant case, Eiben testified that he
could not testify to a reasonable degree of architectural or scientific certainty whether (1)
the water stains on the underside of the third-floor porch were present at the time of
plaintiff’s fall, (2) whether ice damming had occurred around the time of plaintiff’s fall,
(3) whether ice or snow was on plaintiff’s concrete step at the time of plaintiff’s fall, and
(4) whether plaintiff actually slipped on an unnatural accumulation of ice. Accordingly,
Eiben’s testimony regarding such matters was properly excluded from the jury.
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B. Insufficient Factual Basis
As noted, the trial court also barred Eiben’s testimony from trial because his
opinions lacked a sufficient factual basis. “An expert’s opinion is only as valid as the
basis and reasons for the opinion.” Wilson v. Bell Fuels, Inc., 214 Ill. App. 3d 868, 875
(1991), citing McCormick v. Maplehurst Winter Sports, Ltd., 166 Ill. App. 3d 93, 100
(1988). “A party must lay a foundation sufficient to establish the reliability of the bases
for the expert’s opinion.” Petraski v. Thedos, No. 1-06-2914, slip op. At 11 (March 3,
2008), citing Turner v. Williams, 326 Ill. App. 3d 541, 552-53 (2001). Expert opinions
based on guess, speculation, or conjecture are inadmissible. Modelski v. Navistar
International Transportation Corp., 302 Ill. App. 3d 879, 886 (1999).
In Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967 (1997),
the plaintiff’s decedent was taken to the emergency room complaining of numbness on
the right side of his body. About six or seven hours later, a CT scan was taken, revealing
a brain hemorrhage. The patient died a few days later. The plaintiff presented two
experts who testified that the emergency room physician’s delay in taking the CT scan
caused the decedent’s death. It was the plaintiff’s theory that a diagnosis of the condition
would have triggered surgical intervention to prevent the decedent’s death. However, on
cross-examination, the plaintiff’s experts admitted that they would defer to a
neurosurgeon as to whether surgery should have even been performed; yet the only
neurosurgeons testifying in the case stated that surgery would not have been appropriate.
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This court held that the opinions offered by the plaintiff’s experts lacked a sufficient
factual basis and were therefore based on conjecture. Aguilera, 293 Ill. App. 3d at 975.
Likewise, in the case at bar, Eiben’s proffered opinions lacked any factual basis.
As noted, Eiben expressed the opinion that an unnatural accumulation of ice
formed on the third-floor porch of the building in one of two ways. Eiben opined that
water leaked through a gap between the roof of the masonry building and the wooden
porch roof, as they existed at the time of plaintiff’s fall. Alternatively, Eiben opined that
the unnatural accumulation of ice on the third-floor porch was caused by an inadequate
drainage system.
In ruling to bar Eiben’s opinions for lack of a sufficient factual basis, the trial
court firstly found that Eiben’s opinions could not be based on his 2005 inspection
because he never inspected the roof as it existed at the time of plaintiff’s injury, since the
entire roof was replaced in 2000, prior to his inspection. We agree.
Eiben’s inspection occurred on September 20, 2005, six years and eight months
after plaintiff’s fall. It is undisputed that in 2000, after the time of plaintiff’s injury, an
entirely new roof was installed over the building. The post-2000 roof was constructed as
one continuous structure that extended over the porch and contained no gaps. Any
opinion based upon Eiben’s inspection of a roof that was entirely different than the roof
as it existed at the time of plaintiff’s injury would be speculative.
Despite the foregoing, plaintiff argues that Eiben’s opinions could be based on his
2005 inspection, because Eiben focused on the slopes and angles of the roof to formulate
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his opinions. On appeal, plaintiff argues that although the roof had been entirely redone
in 2000, the slopes and angles of the roof in 2005 were the same as the slopes and angles
of the roof at the time of plaintiff’s injury. However, plaintiff does not cite to anything in
the record and does not point to the testimony of a single witness that shows that the
slopes and angles of the 2005 roof and the roof as it existed at the time of plaintiff’s
injury were the same. This court’s own review of the record on appeal does not reveal
any.
“Testimony based on an inspection after the event in question is not competent
unless evidence is also introduced to show that the conditions inspected had remained
unchanged in the interim.” La Salle National Bank v. Feldman, 78 Ill. App. 2d 363, 372
(1966). Since there is a complete lack of any such evidence, plaintiff’s argument must
fail.
As noted, Eiben also criticized the “peel and stick” repairs made to the roof in
1997. Eiben opined that an unnatural accumulation of ice might have occurred on the
third-floor porch because the “peel and stick” repairs were insufficient to remedy the
dangerous condition caused by the absence of flashing between the masonry and wooden
roofs, as they existed at the time of plaintiff’s injury. However, for the reasons stated
above, Eiben’s opinion that the insufficient repairs caused an unnatural accumulation of
ice on the third-floor porch cannot be based on his 2005 inspection. Eiben himself
conceded that he never observed the “peel and stick” repairs, as an entirely new roof was
installed in 2000, prior to his inspection.
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Plaintiff then argues that Eiben’s first opinion that water had leaked through a gap
between the masonry and porch roof was based on a sufficient factual basis, because the
opinion was based on his observation of water stains on the underside of the porch roof.
We disagree. Eiben did not reference any industry standards to formulate his opinion.
Although he stated that testing could have been conducted to determine the precise age of
the water stains, he conducted no such testing, and stated that he had no way of knowing
when the water damage occurred.
Nor could Eiben’s opinion that an unnatural accumulation of ice occurred on the
third-floor porch because of a leak between the gap of the masonry and porch roofing be
based upon any of the depositions that Eiben reviewed in preparation for his own
deposition. When asked if he had relied on any depositions to formulate his opinion,
Eiben stated that several depositions “were consistent with” his opinion but that he had
not relied upon them. Eiben specifically stated that he reviewed several deposition the
night before his own deposition, but had formulated his opinion well in advance of his
review of those depositions.
As noted, Eiben’s alternative opinion was that the unnatural accumulation of ice
on plaintiff’s porch was caused by the roof’s inadequate drainage system. Eiben also
stated that “ice damming” in conjunction with the building’s inadequate drainage system
may have caused an unnatural accumulation of ice on the third-floor porch.
Before proceeding with an examination of the factual basis for Eiben’s alternative
opinion, we note that plaintiff may have waived his contentions regarding Eiben’s second
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opinion on appeal because he agreed at the trial level that Eiben could not testify
regarding the drainage system, specifically the building’s gutter system. In plaintiff’s
counsel’s words, Eiben could not testify regarding the drainage system because “the
water never reached the gutters.”
Under the “ ‘doctrine of invited error,’ ” a party may not request to proceed in one
manner and then later contend on appeal that the course of action was in error. People v.
Harvey, 211 Ill. 2d 368, 385 (2004), quoting People v. Carter, 208 Ill. 2d 309, 319
(2003) . To permit a party to use, as a vehicle for reversal, the exact action which it
procured in the trial court “ ‘would offend all notions of fair play’ ” and encourage
duplicity by litigants. Harvey, 211 Ill. 2d at 385, quoting People v. Villarreal, 198 Ill. 2d
209, 227 (2001). Thus, when a party “procures, invites or acquiesces” to a trial court’s
evidentiary ruling, even if the ruling is improper, he cannot contest the ruling on appeal.
People v. Bush, 214 Ill. 2d 318, 332 (2005).
We will nevertheless examine the factual basis for Eiben’s alternative opinion.
As noted, Eiben was “very critical” of the drainage system and the way it was
maintained. However, he offered no explanation as to why the system was inadequate.
Eiben stated that the roof as it existed at the time of plaintiff’s injury was poorly
designed and was susceptible to “ice damming.” In forming his alternative opinion,
Eiben did not review any of the building’s blueprints. He did not pour water on the roof
and did not observe any drainage patterns. He did not measure the roof’s dimensions,
slopes, or overhangs. He stated that the building had been cited for inadequate heat in the
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past, and that inadequate heat leads to uneven thermal transmission, which in turn leads
to “ice damming.” However, Eiben did not know if the citations were issued at the time
of plaintiff’s fall or if the inadequate heating conditions had been remedied prior to
plaintiff’s fall. He stated that one of the depositions that he had reviewed “was
consistent” with “ice damming,” but that he in no way relied upon the deposition to
formulate his opinion.
Based upon the foregoing, it is apparent that Eiben’s alternatvie opinion also had
no factual basis and that the trial court did not abuse its discretion by excluding it from
trial.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Cook
County. We cannot say that the trial court abused its discretion by barring Eiben’s
opinions because (1) his opinions were not held to a reasonable degree of architectural or
scientific certainty, and (2) the opinions had no factual basis.
Affirmed.
CAHILL, P.J., and GARCIA, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be attached to each Opinion)
Please use the ]
following form: ]
] EFRAIN TORRES,
]
] Plaintiff-Appellant,
] v.
]
] MIDWEST DEVELOPMENT COMPANY,
]
] Defendant-Appellee.
Complete ]
TITLE ]
of Case. ]
Docket No. ] No. 1-06-3698
] Appellate Court of Illinois
COURT ] First District, First Division
]
] MAY 19, 2008
Opinion Filed ] (Month, Day and Year)
]
JUSTICES ] JUSTICE ROBERT E. GORDON delivered the opinion of the court.
]
] CAHILL, P.J., and GARCIA, J., concur.
]
APPEAL from the ] Lower Court and Trial Judge(s) in form indicated
Circuit Court ] in margin:
of Cook County; ] Appeal from the Circuit Court of Cook County.
the Hon:______ ]
Judge Presiding ] Honorable Cheryl A. Starks, Judge Presiding.
]
For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of ]APPELLEES and include attorneys of counsel.
Chicago. ]Indicate the word NONE if not represented.
For APPELLEES, ]----------------------------------------------------------------------------------------------
-
Smith and ] Brustin & Lundblad, Ltd.
Smith, of ] Chicago, Illinois 60603
Chicago. ] Attorneys for Appellant
Brown, ] Attn: Marvin A. Brustin; Milo W. Lundblad; and Jennifer M. Hill
of Counsel. ] OF COUNSEL
]
]
]
Also add atty.] Johnson and Bell
for third party ] Chicago, Illinois 60603
appellants ] Attorneys for Appellee
or appellees. ] Attn: Scott W. Hoyne and Jonathan W. Goken
] OF COUNSEL
]
]
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ( U S E R E V E R S E S I D E I F
NEEDED_________________________________
1-06-3698
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