Petraski v. Thedos , 2011 IL App (1st) 103218 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Petraski v. Thedos, 2011 IL App (1st) 103218Appellate Court MICHAEL PETRASKI, Guardian of the Estate of Margaret Petraski, a
Caption Disabled Person, Plaintiff-Appellee, v. DEBORAH THEDOS,
Individually and as Agent/Employee of the Sheriff of Cook County, and
MICHAEL SHEAHAN, Sheriff of Cook County, Defendants-Appellants.
District & No. First District, Sixth Division
Docket No. 1-10-3218
Filed December 16, 2011
Held In an action arising from a collision at an intersection between plaintiff’s
(Note: This syllabus vehicle and the vehicle of an officer in the county sheriff’s department
constitutes no part of who was responding to a call with her emergency lights activated, the
the opinion of the court trial court’s grant of a new trial based on defense counsel’s improper
but has been prepared comments concerning the societal impact of drunk driving was affirmed,
by the Reporter of and the appellate court also held that the trial court did not abuse its
Decisions for the discretion in finding that it erred in admitting testimony of defendants’
convenience of the toxicology expert that plaintiff was intoxicated and impaired and in
reader.)
barring the testimony of plaintiff’s expert concerning her psychiatric
evaluation of defendant.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-2953; the Hon.
Review Dennis J. Burke, Judge, presiding.
Judgment Affirmed.
Counsel on Anita M. Alvarez, State’s Attorney (Michael L. Gallagher, Assistant
Appeal State’s Attorney, of counsel), and Barry G. Bollinger and Gregory V.
Ginex, both of Bollinger, Ruberry & Garvey, Special Assistant State’s
Attorneys, both of Chicago, for appellants.
Michael W. Rathsack and Winters Enright Salzetta & O’Brien (Paul L.
Salzetta and Karen McNulty Enright, of counsel), both of Chicago, for
appellee.
Panel PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
OPINION
¶1 On May 28, 2001, Margaret Petraski (Margaret) and Officer Deborah Thedos, of the
Cook County Sheriff’s Police Department,1 were involved in a motor vehicle accident at the
intersection of the Midlothian Turnpike and Central Avenue in unincorporated Cook County.
Officer Thedos admitted that she drove through a red light with her Mars lights activated.
She had also activated her siren as she approached the intersection. Margaret was seriously
injured in the accident and became a quadriplegic as a result of her injuries. Michael Petraski,
Margaret’s son and legal guardian, brought a personal injury suit on her behalf against
Officer Thedos and the officer’s employer Michael Sheahan, sheriff of Cook County.
¶2 At the first trial, a jury found for plaintiff. Defendants appealed, claiming that evidence
of Margaret’s blood-alcohol content (BAC) should have been admitted at trial. This court
agreed and reversed the judgment and ordered a new trial. Petraski v. Thedos, 382 Ill. App.
3d 22 (2008).
¶3 At the second trial, the jury found for the defendants. Plaintiff filed a posttrial motion for
a new trial, which was granted by the trial court on October 4, 2010. On November 3, 2010,
defendants filed a petition for leave to appeal the interlocutory order pursuant to Illinois
Supreme Court Rule 306(a)(1) (eff. Feb. 19, 2010). On January 6, 2011, this court granted
defendants’ petition for leave to appeal.
¶4 On this interlocutory appeal, defendants claim that the trial court abused its discretion by
granting a new trial. The trial court found that it had committed three errors, each of which
would independently require a new trial. The three errors were: (1) The trial court should
1
The parties’ briefs in this case refer to Cook County sheriff’s department deputy sheriffs
by the title “officer” and we shall also do so here.
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have granted plaintiff’s motion to bar defendants’ toxicology expert, Dr. Jerrold Leiken, from
testifying that Margaret was in fact impaired, solely on the basis of her blood-alcohol level;
(2) evidence of Officer Thedos’ mental health history was improperly excluded; and (3)
defense counsel made improper closing remarks about the societal impact of drunk driving.
¶5 For the following reasons, we affirm the trial court’s grant of a new trial and remand for
further proceedings.
¶6 I. BACKGROUND
¶7 On May 28, 2001, at approximately 2:30 a.m., Margaret and Officer Deborah Thedos,
of the Cook County Sheriff’s Police Department, were involved in a motor vehicle accident
at the intersection of the Midlothian Turnpike and Central Avenue. At the time of the
collision, Officer Thedos was responding to a police dispatch about an “unwanted subject,
probably ex-wife,” in a yard.
¶8 A. First Trial
¶9 The case was first tried before a jury in May of 2006. The jury rendered a verdict in favor
of plaintiff and awarded damages in the amount of $35,835,684. The jury reduced this
amount by 25% after finding Margaret guilty of contributory negligence. The trial court
entered judgment on the verdict against defendants for $26,876,763. The trial court denied
defendant’s posttrial motion for a new trial, and defendants filed a timely appeal. On direct
appeal, this court reversed and remanded for a new trial by finding that the trial court erred
when it excluded evidence of Margaret’s alcohol consumption. Petraski, 382 Ill. App. 3d at
33.
¶ 10 B. Second Trial
¶ 11 The case was retried in October 2009. On October 23, 2009, following a three-week trial,
the jury returned a verdict in favor of the defendants. The appellate record consists of
excerpts from the transcript of the second trial. Since we have only excerpts, this factual
background is limited to a discussion of the evidence in the appellate record.
¶ 12 1. Pretrial Proceedings
¶ 13 Prior to the second trial, plaintiff filed a motion in limine to bar portions of the testimony
of defendants’ expert, Dr. Leiken, regarding Margaret’s BAC. The trial court denied this
motion. Plaintiff also filed a motion in limine to bar any reference to Officer Thedos being
funded by taxpayers, which was granted.
¶ 14 Defendants filed a motion in limine to exclude the testimony of plaintiff’s expert, Dr.
Helen Morrison, regarding her psychiatric evaluation of Officer Thedos. This motion was
also granted.
¶ 15 In plaintiff’s offer of proof, plaintiff stated that Dr. Morrison had made a psychiatric
evaluation following an examination of Officer Thedos’ medical and personnel records and
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the depositions of Thedos’ psychiatric treating physicians. Plaintiff stated that, had she
testified, Dr. Morrison would have opined that Thedos suffered from bipolar disorder and
possible attention deficit disorder. In Dr. Morrison’s opinion, Thedos overacted to a
nonemergency situation due to factors including stress related to her own domestic situation,
and that Thedos’ behavior was an oversensitive reaction to stimulus.
¶ 16 Dr. Morrison would have also testified that Officer Thedos’ failure to take her medication
as prescribed contributed to her psychiatric symptoms and that her condition was not under
control at the time of the accident. Dr. Morrison would have further opined that Officer
Thedos’ bipolar disorder manifested in symptoms of anger, irritability, poor judgment, and
impulsivity, and that these symptoms led to Thedos’ oversensitive reaction to what she
perceived as an emergency call. Dr. Morrison would have testified that Officer Thedos’
psychiatric condition was a primary cause of the accident.
¶ 17 2. Evidence at Second Trial
¶ 18 Plaintiff’s evidence consisted of the testimony of: Officer Yolanda Collins, who was
accompanying Officer Thedos at the time of the dispatch; Officer Thedos, who was called
as an adverse witness; criminology expert Geoffrey Alpert; sheriff’s department investigator
Officer Craig Wilk; sheriff’s department officer Donna Mallon; accident reconstruction
expert Arnold Siegel; Cook County traffic engineer Richard Jezierny; and Margaret
Petraski’s children, Laura and Michael Petraski.
¶ 19 Defendants called accident reconstruction expert Robert Seyfried; Margaret Vahl, who
was a short distance from the intersection at the time of the accident and heard the collision;
Ann Lovegrove, a nurse who testified as an expert on long-term care for catastrophically
injured individuals; police procedures expert Tom Walton2; and toxicology expert Dr. Jerrold
Leiken.
¶ 20 a. Officer Yolanda Collins
¶ 21 Cook County Sheriff’s Police Department Officer Yolanda Collins testified on behalf of
plaintiff. Officer Collins testified that on May 28, 2001, at around 2 a.m., Thedos and Collins
had parked their vehicles together in the driveway of a White Hen convenience store, located
within Collins’ beat at 143rd Street and 82nd Avenue. She and Officer Thedos were assigned
to adjacent beats. The officers were engaged in traffic enforcement duties. Officer Collins
testified that she recalled the radio dispatch of an “unwanted subject banging on the door,
possibly an ex-wife.” She testified that an “unwanted subject” call was different from a
domestic disturbance, but also testified that such a call could become a domestic disturbance.
There was no mention in the dispatch of a life-threatening situation or immediate harm.
¶ 22 Officer Collins testified that she heard the officer assigned to the beat that contained the
address respond to the dispatch and that Thedos also responded that she was en route as
2
The excerpt of the trial testimony of defense expert Tom Walton’s in the appellate record
provides only Walton’s testimony as to his qualifications as an expert.
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back-up. Officer Collins testified that Thedos chose to respond to the call because it was
located in the beat adjacent to hers. However, because Thedos was in Collins’ beat at the
time of the call, Thedos would have to drive from her location in Collins’ beat, through her
own beat, to reach the location of the dispatch which was in even another further beat.
¶ 23 Officer Collins testified that she followed Officer Thedos to the boundary of Collins’ beat
and then turned north. She testified that, when Thedos pulled out of the driveway in response
to the call, Thedos activated her lights and siren.
¶ 24 Collins testified that, after she turned north, she heard Officer Thedos state over the radio
that she had been involved in a “10/50,” which is the code for a traffic accident. Collins then
proceeded en route to the scene of the traffic accident. Collins testified that, when she arrived
at the scene, she checked on Thedos and the driver of the other vehicle, who was
unconscious and slumped over the steering wheel. She then returned to Officer Thedos and
secured various items from the vehicle including a shotgun, other equipment in the trunk of
Thedos’ vehicle, and Thedos’ personal items. She testified that at some point she also
secured Thedos’ personal weapon.
¶ 25 Officer Collins testified that she was familiar with the intersection where the accident
occurred and agreed that the traffic signal system at the intersection included a left-turn
arrow signal for westbound traffic turning south from Midlothian Turnpike into Central
Avenue.
¶ 26 Officer Collins testified that she did not hear Thedos announce “code” when she was
responding to the subject call. A “code” response means that the officer was responding to
the dispatch as an emergency. She further testified that, regardless of whether or not an
officer is proceeding by “code,” the officer’s orders are to avoid collisions and exercise
caution to avoid accidents. On cross-examination, Collins testified that it was common
practice for another officer to back up the responding officer without first being requested
to do so by the dispatcher.
¶ 27 b. Officer Deborah Thedos, Defendant
¶ 28 Officer Thedos was called as an adverse witness in plaintiff’s case. Thedos testified that
she had been employed with the Cook County sheriff’s department for approximately 15
years at the time of the accident. She had been employed with the sheriff’s police department
for 10 of those years. She had worked on various assignments during her time with the
sheriff’s police department and had been assigned a patrol responsibility in the Markham
District for approximately six or seven months at the time of the accident. She had worked
on several different beats and was assigned to beat 47 on the night of the accident. She was
familiar with the officers in the adjacent beats and was knowledgeable about the boundaries
and geography of each beat.
¶ 29 Officer Thedos testified that she heard Officer Craig Januchowski, the officer assigned
to beat 45, receive the radio call to respond to the report of the “unwanted subject.” Officer
Thedos testified that she announced she would be en route to the call and told the dispatcher
she could cover if needed. Thedos testified that Officer Healy was assigned to beat 43.
Within the same minute of announcing that she was en route, she heard Officer Healy
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announce that he was also responding to the call. Thedos testified that announcing her
location and announcing “code” are both required by the sheriff’s department general orders,
but that she failed to do either.
¶ 30 Officer Thedos testified that she was familiar with the rules that officers are mandated
to follow in their operation of vehicles. She testified that she was aware of an obligation to
strictly obey all traffic laws. Thedos testified that in an emergency rapid response situation
it is always considered paramount to operate vehicles at a speed or in a manner that does not
interfere with complete control at all times. She testified that she was not to proceed through
intersections until all other traffic had yielded the right-of-way. Officer Thedos agreed that
she understood that having other vehicles yield the right-of-way was a privilege, and that she
was not to proceed through an intersection until yielding had occurred.
¶ 31 Thedos testified that, regardless of the type of emergency, she was to operate her vehicle
in a manner to permit other motorists an opportunity to move out of the way. She was
required to adhere to basic rules of traffic safety regardless of assignment, and there were no
exceptions to this rule. Thedos further testified that in an emergency situation she was
permitted to proceed with the use of a siren and warning lights, but that she was obliged to
notify the radio dispatcher if she were proceeding in that manner. Thedos agreed that the
reason for this obligation was so a field supervisor would be aware of how officers were
operating their vehicles. She testified that regardless of assignment she was required to
inform the dispatcher of an intention to proceed with emergency equipment.
¶ 32 Thedos testified that, while an officer is using lights and siren, traffic conditions may
dictate the officer slow down to safely proceed through an intersection. She testified that she
was unaware that the law provided that motorists be given the opportunity to clear an
intersection when an emergency vehicle is approaching.
¶ 33 Thedos testified that the “unwanted subject” dispatch was issued at 2:20 a.m. She further
testified that, based on her experience and general orders, a domestic disturbance is
considered an emergency. Thedos also acknowledged that there was a difference between
“unwanted subject” calls and domestic disturbance calls. At 2:22 a.m. Officer Januchowski
received the call, and in the same minute, Officers Thedos and Healy both announced they
were responding to the call.
¶ 34 From the driveway of the convenience store, Thedos proceeded east on 143rd Street.
Thedos testified that, while en route, she had stopped at the intersection of 143rd Street and
Harlem Avenue. She had come to a stop, despite her siren and lights, due to the traffic
conditions. She testified that her siren was not in continuous operation but that she activated
it as she approached intersections. Thedos also admitted that she stopped at Ridgeline
Avenue, the next major intersection after Harlem Avenue. After passing Ridgeline Avenue,
143rd Street entered an area consisting of the forest preserve and then jogged to the
northeast, becoming Midlothian Turnpike. Thedos proceeded on the Turnpike to Central
Avenue, where the collision occurred.
¶ 35 The intersection of Midlothian Turnpike and Central Avenue consisted of left and right
through lanes for eastbound traffic on Midlothian Turnpike, and left and right through lanes
for westbound traffic, with the addition of a left-turn lane for westbound traffic turning south
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onto Central Avenue.
¶ 36 Thedos testified that the light for eastbound traffic on Midlothian Turnpike was red the
entire time as she approached the intersection. As she approached she observed a vehicle
stopped at the red light at the intersection. The vehicle was stopped in the eastbound left
through lane of Midlothian Turnpike. She was aware that approaching a red light heading
eastbound on Central Avenue could mean there was a green light for traffic coming from the
south on Central Avenue, or that there was a green left turn arrow for westbound traffic on
Midlothian Turnpike.
¶ 37 Thedos testified that there were limited sight lines for cross-traffic at the intersection. She
noticed the vehicle stopped at the red light in the left through lane of eastbound Midlothian
Turnpike when she was approximately a block from the intersection. Thedos changed from
the left-hand lane to the right-hand lane to proceed around the vehicle and to “get a better
view of the intersection.” She identified the vehicle as a large tan or gold four-door sedan.
¶ 38 Thedos testified that, as she maneuvered from the left to the right through lane of
eastbound Midlothian Turnpike, she saw Margaret’s vehicle stopped in the left-turn lane for
westbound traffic on Midlothian Turnpike. The vehicle stopped in the left through lane of
eastbound Midlothian Turnpike and Margaret’s vehicle in the left-turn lane of Westbound
Midlothian Turnpike were the only two vehicles Officer Thedos observed at the intersection.
¶ 39 Thedos admitted that she was expected to know the speed her vehicle was traveling at
all times, but she testified that she did not know the speed she was traveling on her way to
the call because she was “watching the road.” She testified that, when she was 20 feet from
the intersection, Margaret’s vehicle was still stopped. Thedos did not observe Margaret’s
vehicle turning until Thedos was five feet into the intersection. Thedos testified that when
she reached the intersection at Central Avenue she went through a red light. She testified that
she braked before the intersection, and then as she entered the intersection, she accelerated.
¶ 40 At 2:26 a.m., Thedos reported the accident that she was involved in. She admitted that
the four minutes between 2:22 a.m. and 2:26 a.m. included some time where she had
regained her senses following the collision. She was not sure if she had lost consciousness,
but she did not remember the collision. After she regained her senses, she first tried to report
the collision using her vehicle’s radio. When that radio failed to work, she called in the report
on her shoulder radio. Thedos was located approximately 8½ miles from the location of the
subject call at the time she responded en route. She testified that she had traveled
approximately three miles at the time of the accident.
¶ 41 Thedos testified that the collision occurred in a portion of the right through lane of
eastbound Midlothian Turnpike. She was unsure of her speed but acknowledged that she was
traveling above the speed limit. The speed limit on Midlothian was 45 miles per hour and
changed to 40 miles per hour east of Central. She testified that, as she approached the
intersection, she was looking toward the north side of the intersection and that she observed
a green light for northbound Central Avenue. She also testified that she observed “a green
glow” coming from the southern side of the intersection. Thedos testified that she submitted
a report to Officer Mallon approximately a week after the crash. She testified that she did not
remember telling Officer Mallon that she had assumed that both north and southbound sides
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of Central Avenue had green lights, but upon reviewing a copy of the report, Thedos
acknowledged that she must have made that statement.
¶ 42 Thedos testified that she was unaware that there could never be a green light for both
north and southbound traffic on Central Avenue at the same time. She testified that, as she
approached the intersection, she had assumed that because there was a green light for travel
on Central Avenue, then Margaret’s vehicle must have a red light. Thedos did not observe
any vehicles travelling north or southbound on Central Avenue. Thedos testified that she did
not observe Margaret’s vehicle start to turn. After the impact she initially believed the
collision had involved a vehicle coming from the north side of Central Avenue.
¶ 43 In closing argument, defense counsel stated that Thedos had wrongly believed that both
lights on Central Avenue were green and that Thedos was wrong when she said that Margaret
began her turn when Thedos was just 20 feet from the intersection.
¶ 44 c. Geoffrey Alpert, Plaintiff’s Retained Criminology Expert
¶ 45 Plaintiff’s retained criminology expert, Geoffrey Alpert, testified that police officers are
trained to understand that civilian responses to an approaching emergency vehicle are
unpredictable and that they should not make assumptions about how a motorist will react.
Alpert testified that this unpredictability is especially significant at intersections and that the
sheriff’s department general orders requiring an officer not to proceed through an intersection
until all other traffic has yielded the right-of-way means that officers should slow down to
a speed where the officer can respond to a motorist’s unpredictable reactions.
¶ 46 Alpert testified that, regardless of the nature of the call an officer is responding to, safe
driving is of paramount importance. Alpert opined that there would be almost no
circumstance where driving through a red light at an intersection would be allowable and that
Officer Thedos’ response was inappropriate and violative of the public trust. In his opinion,
Officer Thedos did not slow down sufficiently to control the intersection, and her conduct
was reckless.
¶ 47 On cross-examination, Alpert opined that “unwanted subject” calls are a subset of
domestic disturbance calls and that domestic disturbance calls involving alcohol are
particularly dangerous situations for police officers. However, he noted that there was no
mention of alcohol in the dispatch here.
¶ 48 d. Officer Craig Wilk, Sheriff’s Police Accident Investigator
¶ 49 Cook County Sheriff’s Police Department Officer Craig Wilk testified that he was
responsible for conducting an investigation of the accident on behalf of the sheriff’s police
department. Officer Wilk testified to his qualifications as a reconstruction expert.
¶ 50 Officer Wilk then described his reconstruction methods and explained the calculations
used to reach his estimates of the vehicles’ respective speeds. He started with the resting
place of the vehicles and worked in reverse to the point of the impact of the collision. His
calculations took into account the weights of the vehicles and the coefficient of friction of
the surfaces on which the vehicles traveled. He used the marks, scrapes, and gouges left on
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the roadway, the fluid splatter, and the damage to the vehicles to come to a conclusion as to
the vehicles’ respective postimpact speeds. Based on the coefficient of friction of the surfaces
and how the vehicles moved across the surface, Wilk determined a drag factor of the
vehicles. Using this drag factor, the direction of travel and weights of the vehicles, Officer
Wilk was able to use a formula to calculate preimpact speeds.
¶ 51 Officer Wilk testified that the evidence was consistent with Margaret’s vehicle making
a left turn at the time of the collision. Officer Thedos’ vehicle struck the side of Margaret’s
vehicle. The force of the collision spun Margaret’s vehicle 270 degrees. Officer Thedos’
vehicle spun 180 degrees, jumped an 8- or 9-inch concrete curb, and slid backwards on a
grassy area at the side of the roadway before coming to rest.
¶ 52 Officer Wilk testified that in his initial report he had calculated the speed of Officer
Thedos’ vehicle to be 67 miles per hour at the time of the impact, but due to a transposed
number in his initial calculations that number was later revised to 68.9. Wilk testified that
he had initially calculated the speed of Margaret’s vehicle at 21 miles per hour, but as a result
of his revised calculations that number would decrease to approximately 19 miles per hour.
¶ 53 Officer Wilk believed that his observations at the accident scene supported the drag
factor calculations he had used, and he testified that he had chosen a drag factor at the
conservative end of the allowable range. He opined that, whether a vehicle’s wheels are
locked or whether the vehicle is spinning, the drag factor is similar.
¶ 54 Officer Wilk also testified to the light sequence at the intersection. He testified that the
lights for Midlothian Turnpike would only be red if traffic on Central Avenue had activated
a sensor, and that the lights for north and southbound traffic on Central Avenue could not be
green at the same time. Wilk further testified that a vehicle stopped in the left through lane
of Midlothian Turnpike facing eastbound could have potentially obscured Margaret’s vision.
¶ 55 On cross-examination, Officer Wilk testified that the drag factor used in his calculations
would have been lower if the vehicles’ wheels were free rolling. He would still expect the
driver of a vehicle in the westbound left-turn lane on Midlothian Turnpike to observe an
approaching police vehicle, or at least the flashes from the emergency lights. Wilk also
testified that, when westbound traffic on Midlothian Turnpike has a green left-turn arrow,
it is possible for northbound traffic on Central Avenue to have a green right-turn arrow.
¶ 56 e. Detective Donna Mallon
¶ 57 Cook County Sheriff’s Police Department Detective Donna Mallon testified that she was
asked to perform an investigation of the accident. She testified that she interviewed Officer
Thedos approximately five days after the accident and that Thedos had an attorney present
during the interview. Mallon testified that Thedos had told her that she had activated her
lights and siren prior to the collision. Thedos told Mallon that she slowed and stopped at
every intersection. Thedos told Mallon she observed green lights for north and southbound
traffic on Central Avenue. She looked both ways at the intersection, but hit a grey vehicle
and did not know where it came from. Mallon testified that Thedos told her that the vehicle
“wasn’t in the intersection when she arrived until the last minute.” Mallon testified that,
when asked, Thedos could not recall her speed at the time of the accident.
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¶ 58 f. Richard Jezierny, Traffic Engineer
¶ 59 Richard Jezierny testified on behalf of the plaintiff. He was employed as a traffic
engineer with the Cook County department of highways, and he testified that he had been
involved in the preparation of a report prepared at plaintiff’s request detailing the functioning
of the light system at the intersection of Central and Midlothian and that he was familiar with
the intersection and the lights systems.
¶ 60 Jezierny testified that the lights on Midlothian Turnpike remained green unless a vehicle
detector sensed a vehicle approaching from the north or south on Central Avenue. This
detector triggered a cycle that turned the lights green for that direction on Central Avenue.
When either north or southbound Central Avenue traffic had a green light, all other lights
would be red. If a vehicle entered the left-turn lane on westbound Midlothian Turnpike while
Central Avenue had a green light, this would trigger the left-turn lane signal to activate.
While westbound Midlothian Turnpike had the protected left-turn signal, northbound Central
Avenue would also have a green right-turn arrow for traffic turning onto eastbound
Midlothian Turnpike.
¶ 61 On cross-examination, Jezierny testified that there was a limited time interval where a
vehicle could arrive in the left-turn lane on Midlothian Turnpike to trigger the protected turn,
and if a vehicle arrived outside that interval the left-turn arrow would not illuminate at the
conclusion of the cycle. Jezierny further testified that, if northbound traffic had a green light,
it was impossible for the left-turn arrow on westbound Midlothian Turnpike to also be
activated.
¶ 62 g. Arnold Siegel, Plaintiff’s Accident Reconstruction Expert
¶ 63 Plaintiff’s accident reconstruction expert, Arnold Siegel, opined that Officer Wilk’s
speed calculations were overly conservative and that, in his opinion, Officer Thedos’ vehicle
was traveling between 70 and 75 miles per hour at the time of the collision. Siegel testified
that 70 miles per hour translates to approximately 103 feet per second. Siegel testified that,
had Thedos attempted to slow down before the intersection and then reapplied the accelerator
within 20 feet from the intersection, the vehicle would not have time to appreciably
accelerate. Siegel further testified that a vehicle traveling at 50 miles per hour could not
accelerate to 70 miles per hour within 20 feet.
¶ 64 Siegel testified that his calculation for Margaret’s vehicle at the time of the impact was
14-17 miles per hour. He testified that he had timed vehicles in the intersection traveling
from the stop line of the left-turn lane to the area of impact. The distance traveled was
approximately 85 feet, and most vehicles traveled that distance in five to seven seconds.
Based on the point of impact, Siegel opined that the turn was a “normal average turn *** just
like all of the exemplar vehicles.” He noted that the front wheels of Margaret’s vehicle had
already entered the Central Avenue portion of the intersection when the impact occurred, and
within less than a second, her entire vehicle would have been on Central Avenue.
¶ 65 Siegel testified that, based on his calculations, Officer Thedos’ vehicle would have been
over 500 feet east of the intersection at the time Margaret began her turn, and from that
distance at night it would be difficult to discern the speed of an approaching vehicle.
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¶ 66 h. Laura Petraski
¶ 67 Laura Petraski, Margaret’s daughter, testified to her mother’s enjoyment of gardening,
crafts, and baking prior to the accident. She testified that her mother was in a coma for
approximately a month following the accident, and she described her mother’s ongoing care.
¶ 68 i. Michael Petraski
¶ 69 Michael Petraski, Margaret’s son and legal guardian, testified to his mother’s difficulty
in communicating as a result of her injuries sustained in the accident. Michael testified that
his mother could slightly move one hand, and was able to communicate by pointing to letters
on a board. She was unable to speak, and had to be moved every two hours to prevent
bedsores. She was fed through a tube and was unable to close one eye. He testified that,
following the accident, his mother had become depressed, anxious, and frustrated at her
condition. Michael testified, and both parties stipulated, that his mother’s medical expenses
totaled $1,218,352. Following Michael Petraski’s testimony, the plaintiff rested.
¶ 70 j. Robert Seyfried, Defendants’ Retained Accident Reconstruction Expert
¶ 71 Defendants’ retained accident reconstruction expert Robert Seyfried testified that he
disagreed with the drag factor calculations used in Officer Wilk’s reconstruction of the
accident. Seyfried admitted that Wilk’s drag factor calculations were conservative. However,
Seyfried opined that each vehicle had only one wheel locked as a result of collision damage
and that the other wheels would have been free rolling after the impact. In his opinion this
warranted a lower drag factor than that used by Officer Wilk.
¶ 72 Seyfried opined that Margaret’s vehicle was traveling at 14 to 16 miles per hour at the
time of the collision, and Officer Thedos’ vehicle was traveling at 49 to 56 miles per hour.
On cross-examination, Seyfried testified that he had originally calculated that Petraski’s
vehicle was traveling at 16 to 17 miles per hour and that Thedos’ vehicle was traveling at 60
to 66 miles per hour, but that he had later revised his calculations.
¶ 73 Seyfried testified that he had timed the sequence of the traffic signals at the intersection
of Midlothian Turnpike and Central Avenue using a stopwatch. Seyfried testified that the
lights for northbound and southbound traffic on Central Avenue could not be green at the
same time. If there was a green light for traffic traveling northbound on Central Avenue, the
lights for Midlothian Turnpike would be red. If the sensor at the intersection did not detect
a vehicle on Central Avenue for 5 to 5.5 seconds, it would cycle the light to yellow for
approximately 4.3 seconds, and then 1.8 seconds where all the signals would be red. Seyfried
testified that if there were no traffic on Central Avenue and a red light for eastbound
Midlothian Turnpike for longer than 11.5 seconds, it would be because a vehicle in the
westbound left-turn lane on Midlothian Turnpike had activated a green left-turn signal.
¶ 74 Seyfried testified that, if Margaret’s vehicle was stopped near the stop line in the left-turn
lane when Officer Thedos’ vehicle was 20 feet from the intersection, it would have been
impossible for the collision to occur.
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¶ 75 k. Margaret Vahl, Event Witness
¶ 76 Margaret Vahl testified that she was in the driveway of a friend’s house, located
approximately two blocks east of the intersection of Midlothian Turnpike and Central
Avenue, at the time of the accident. She testified that she heard the “whoop-whoop” sound
of a siren for two to three seconds, followed by a “boom.”
¶ 77 Vahl testified that she immediately began running toward the sound and arrived at the
scene of the accident before any other emergency vehicles arrived. She testified that she
observed Officer Thedos exit her vehicle and fall to the ground. The emergency lights on the
vehicle were activated when she arrived at the scene. She approached Thedos to “see if she
was okay and if anybody called 911 and got everybody help.” Vahl testified that Thedos told
her to “go help the other people, to make sure that they’re okay.” She characterized Thedos’
emotional state as “very upset.” She attempted to calm Thedos down and stayed with her
until another police officer arrived. Vahl never approached the individual in the other
vehicle.
¶ 78 l. Ann Lovegrove, Defendants’ Retained Damages Expert
¶ 79 Ann Lovegrove testified that she had made a life care plan for Margaret at defendants’
request. The plan was offered into evidence and published to the jury without objection. The
plan detailed Lovegrove’s opinions as to Margaret’s present and future medical care needs
given her quadriplegia following the accident. Lovegrove’s report included a range of costs
for Margaret’s lifetime care, ranging from $3,924,289 to $4,091,560.
¶ 80 m. Dr. Jerrold Lieken, Defendants’ Retained Toxicology Expert
¶ 81 Dr. Jerrold Lieken testified that Margaret’s medical records showed that her blood was
drawn at 4:08 a.m. and tested for alcohol content. The blood test showed a blood-serum level
of 0.116. Lieken testified that whole blood is less concentrated than serum and that the
standard rate of conversion between serum and whole blood is between 12% and 20%. Given
this range of conversion, Margaret’s whole blood alcohol concentration would be between
0.103 and 0.097. Lieken testified that a conversion rate as high as 25% is occasionally used,
and that rate would mean a whole blood-alcohol level of 0.093.
¶ 82 Lieken testified that, once alcohol is consumed, it is absorbed into the bloodstream within
minutes, and the metabolic process that begins to eliminate alcohol from the bloodstream
could also begin within minutes. Lieken opined that the majority of the population would
have fully absorbed any alcohol between 30 to 60 minutes after consuming the alcohol.
Margaret’s blood draw occurred approximately 90 minutes after the accident, and she could
not have consumed any alcohol in that time. Lieken testified that alcohol is metabolized in
the liver over time and opined that, based on the time that had passed between the accident
and the blood draw, Margaret’s BAC was higher at the time of the accident than at the time
her blood was drawn.
¶ 83 Lieken testified that, in his experience, once an individual arrives at the emergency room,
he or she is almost always in a metabolic phase. He testified that severe trauma slows down
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the absorption process and that individuals who sustain trauma will often vomit the contents
of their stomach, preventing any further absorption. Based on Margaret’s medical records,
Lieken opined that Margaret would have been in a postabsorption stage after the accident.
Lieken testified that retrograde analysis would place Margaret’s serum-blood alcohol level
at between 0.131 and 0.161 at the time of the accident, indicating a whole-blood alcohol
range between 0.109 and 0.144.
¶ 84 Lieken testified to the effects of alcohol in the average person. He testified that alcohol
can cause perceptual abnormalities including reduced depth perception, impaired judgment,
lack of coordination, and increased reaction time. He opined that even someone with a lower
BAC than Margaret would also suffer from these abnormalities to a lesser degree. Lieken
then proceeded to testify as follows:
“DEFENSE COUNSEL: Doctor, based on your experience and background to a
reasonable degree of medical and toxicology certainty, do you have an opinion whether
or not at the time of this occurrence Margaret Petraski was intoxicated?
DR. LIEKEN: Yes, I do.
DEFENSE COUNSEL: And what is your opinion?
DR. LIEKEN: Margaret Petraski was intoxicated at the time of the accident.
DEFENSE COUNSEL: And, Doctor, based on your experience and background to
a reasonable degree of medical and toxicology certainty, do you have an opinion whether
or not at the time of this occurrence Margaret Petraski was impaired?
DR. LIEKEN: Yes, I do.
DEFENSE COUNSEL: And what is your opinion?
DR. LIEKEN: That she was impaired at the time of the accident.
***
DEFENSE COUNSEL: Doctor, as you sit here today and based upon your
background in medicine and toxicology, do you have an opinion as to whether the things
you mention that would affect somebody at the level of blood alcohol that Margaret
Petraski had, whether that did, in fact, affect Margaret Petraski on the night of this
occurrence?
DR. LIEKEN: Yes.
DEFENSE COUNSEL: And at the time of the occurrence?
DR. LIEKEN: Yes.
DEFENSE COUNSEL: And what is your opinion?
DR. LIEKEN: That it did affect her on the night and time of the occurrence.”
¶ 85 On cross-examination, Dr. Lieken admitted that massive trauma could cause lower rates
of alcohol elimination. He acknowledged that a variety of factors including gastrointestinal
pathology and body mass index could play a role in alcohol absorption, and that food
consumption could also play a minor role. Dr. Lieken testified that he used a range of
percentages in his calculations to account for these differing factors, but offered no testimony
as to how these factors affected Margaret specifically. Dr. Lieken admitted that he could not
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quantify Margaret’s level of impairment. He opined that coordination is not significantly
diminished at BAC levels below 0.1, but that he would consider a person impaired at BAC
levels as low as 0.02. Dr. Lieken acknowledged that he was not aware of any specific facts
regarding Margaret’s actions on the night of the accident. He did not testify as to how food
consumption, weight or gender would affect Margaret’s level of impairment.
¶ 86 3. Closing Arguments
¶ 87 Defense counsel’s closing argument included the following statements, which are at issue
on this appeal:
“There really are not just two people in the case. There are three that have to be
considered. There is Margaret Petraski. There is Deborah Thedos. And there is all the rest
of us. And we have to consider what we want out there.
***
We *** make judgments about who should be on our roads and the condition they
should be in. And we do that because we know that there are certain people who should
not be on the road when they are impaired. We, as a society, accept that and know it to
be true.
***
Deborah Thedos *** embodies what we want to help us in our community. *** Mrs.
Petraski embodies exactly what we do not want on our roads.”
¶ 88 Defense counsel also stated that Officer Thedos was “doing her job as a police officer
that we, as residents of Cook County, pay her to do.” Finally, defense counsel closed with
the following: “Let me share one of my images, when the aunt who helped raise me died
from a drunk driver. *** That’s an image I have. What do we want on our roads?” Plaintiff’s
objection to this statement was overruled, and defense counsel continued: “Ladies and
gentlemen, there was one person, one person that night who had the right to be on that road.
That was this police officer.”
¶ 89 4. Verdict and Posttrial Motion
¶ 90 On October 23, 2009, at the close of the second trial, the jury returned a verdict for
defendants. On December 21, 2009, plaintiff filed a posttrial motion for a new trial.
Following a hearing on May 20, 2010, the trial court granted plaintiff’s motion on October
4, 2010, on the grounds that it had erred in: (1) allowing expert testimony regarding blood-
alcohol content; (2) barring expert testimony regarding defendant Officer Thedos’ mental
health; and (3) in not striking inappropriate statements made by defense counsel in closing
argument.
¶ 91 On November 3, 2010, defendants filed a petition for leave to appeal pursuant to Illinois
Supreme Court Rule 306(a)(1). On January 6, 2011, this court granted the petition for leave
to appeal. On appeal, plaintiff claims that the trial court abused its discretion when it granted
a new trial.
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¶ 92 II. ANALYSIS
¶ 93 On appeal, defendants claim that the trial court abused its discretion when it granted a
new trial. The trial court granted a new trial finding: (1) that defendants’ expert, Dr. Leiken,
should have been barred from testifying as to plaintiff’s possible impairment as a result of
her blood-alcohol level; (2) that evidence of Officer Thedos’ mental health was improperly
excluded; and (3) that comments made by defense counsel during closing arguments were
improper.
¶ 94 For the following reasons, we find that the trial court acted within its discretion, and we
affirm. Specifically, we find that the trial court did not abuse its discretion when it granted
a new trial on the basis of defense counsel’s improper closing arguments. Since we remand
for further proceedings, we will also address the issues of the admissibility of the testimony
of defendants’ expert, Dr. Lieken, and plaintiff’s expert, Dr. Morrison, which the parties have
raised and briefed on this appeal.
¶ 95 A. Improper Closing Argument
¶ 96 On appeal, defendants claim that the trial court abused its discretion when it found that
comments made by defense counsel during closing arguments were improper and warranted
a new trial. Defendants note that several of the challenged comments were made without
objection and claim that the comments were invited by plaintiff’s counsel during plaintiff’s
closing arguments.
¶ 97 The prejudicial impact of remarks made in opening statements or closing arguments is
a matter left to the sound discretion of the trial court, and the trial court’s ruling will not be
overturned on review absent an abuse of discretion. Ford v. Grizzle, 398 Ill. App. 3d 639,
649 (2010) (citing Morgan v. Richardson, 343 Ill. App. 3d 733, 740 (2003)). Greater
deference is granted to a trial court’s grant of a new trial than to a denial. Thomas v. Chicago
Transit Authority, 16 Ill. App. 2d 470, 476 (1958) (citing Bergman v. Gilbert, 6 Ill. App. 2d
206 (1955)). An abuse of discretion will be found only where the trial court’s ruling is
arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted
by the trial court. People v. Caffey, 205 Ill. 2d 52, 89 (2001) (citing People v. Illgen, 145 Ill.
2d 353, 364 (1991)). “In passing upon the question as to whether or not the trial court ***
was justified in granting a new trial, we must bear in mind that there are many things which
a trial judge observes on a trial that do not appear from the printed record ***.” (Internal
quotation marks omitted.) Spankroy v. Alesky, 45 Ill. App. 3d 432, 437 (1977) (quoting
Gavin v. Keter, 278 Ill. App. 308, 315 (1934)).
¶ 98 In granting plaintiff’s motion, the trial court noted that attorneys are permitted a wide
latitude in closing argument. Guzeldere v. Wallin, 229 Ill. App. 3d 1, 13 (1992). The trial
court still found that defense counsel’s closing argument was improper in several respects
and that cumulatively these comments warranted a new trial.
¶ 99 First, the trial court found that defense counsel improperly charged the jury with
rendering a moral or social judgment in verdict form. The trial court, citing Zoerner v. Iwan,
250 Ill. App. 3d 576 (1993), reasoned that Illinois courts have explicitly refused to allow
moral or social arguments in the context of cases involving drunk driving.
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¶ 100 Second, the trial court noted that it was improper for defense counsel to stress Officer
Thedos’ job as a public servant with a taxpayer-funded salary. The trial court noted that, in
French v. City of Springfield, 5 Ill. App. 3d 368 (1972), a comment that the jurors, as
taxpayers, should identify themselves with the defendant city was “not only patently
prejudicial but of such impropriety that it, standing alone, would have required [a] reversal.”
French, 5 Ill. App. 3d at 379. In the case at bar, the trial court noted that while plaintiff did
not object to the statement during trial, the statement was in direct violation of the trial
court’s order that granted plaintiff’s motion in limine barring any reference that Officer
Thedos’ salary was funded by taxpayers.
¶ 101 Finally, the trial court found that defense counsel’s personal story emphasizing the social
danger of drunk driving was improper. The trial court, citing Hansel v. Chicago Transit
Authority, 132 Ill. App. 2d 402 (1971), noted that counsel should not indulge in assertions
that have no bearing or relation to the case whatsoever. Hansel, 132 Ill. App. 2d at 407.
¶ 102 Defendants claim that defense counsel’s comments were proper, as they were made in
response to plaintiff counsel’s closing arguments. They further claim that defense counsel
made no explicit reference to “taxpayers” in closing and, therefore, did not violate the trial
court’s order granting plaintiff’s motion in limine. Defendants also argue that since the
majority of the defense counsel’s arguments were made without objection, plaintiff waived
any error.
¶ 103 The trial court recognized that several of defense counsel’s comments were made without
objection by plaintiff, but found that the cumulative effect of the comments was so serious
that they deprived plaintiff of a fair trial. The trial court noted that comments made without
objection will only be reviewed when they are “so egregious that they deprived a litigant of
a fair trial” and that only the most blatant indiscretions warrant such review. However, the
trial court noted that in Zoerner, the appellate court ruled that urging the jury to make a social
statement about drunk driving in closing argument was sufficiently prejudicial to warrant
appellate review, despite the fact that plaintiff did not object at trial or even challenge the
argument in a posttrial motion. Zoerner, 250 Ill. App. 3d at 584-86. The trial court further
noted that, in Owen v. Willett Truck Leasing Corp., 61 Ill. App. 2d 395 (1965), “reversible
error [is] committed where liability is a close question of fact, and the conduct and arguments
of counsel or incidents transpired in the course of the proceedings which clearly deprived a
litigant of a fair trial and improperly prejudiced the jury in its verdict.” Owen, 61 Ill. App.
2d at 402. The trial court had the opportunity to observe the jury and any visual effect the
comments had on jurors.
¶ 104 Defendants argue that invited comments do not provide a basis for reversal and that each
of defense counsel’s challenged comments was made in response to plaintiff’s counsel’s
arguments. Defendants claim that plaintiff’s counsel invited comments regarding Officer
Thedos being paid by the residents of Cook County when he made repeated references to
Officer Thedos failing to properly perform her duties. Defendants also claim that defense
counsel’s comments regarding Officer Thedos’ “indifference to the public” and “lack of any
regard or due regard for civilians” opened the door for defense counsel’s comments urging
the jury to make a decision about “what the community wants.” Defendants also argue that
plaintiff’s counsel’s assertion that Margaret’s BAC was irrelevant because it “proves nothing
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more than a violation of the statute” and “ha[s] nothing to do with the facts of this case”
invited defense counsel’s comments that “[w]e *** make judgments about who should be
on our roads and the condition they should be in” and “we have to consider what we want
out there [on the roads].” Defendants also argue that defense counsel’s statement that a drunk
driver killed his aunt was invited by plaintiff’s counsel’s reference to his children burying
each other up to their necks in sand.
¶ 105 We agree that invited comments may not constitute grounds for reversal. See, e.g.,
People v. Hudson, 157 Ill. 2d 401, 445 (1993); Oldenstedt v. Marshall Erdman & Associates,
Inc., 381 Ill. App. 3d 1, 14 (2008). However, we find that defendants’ argument that defense
counsel’s comments were invited are unpersuasive. The connection between plaintiff’s
counsel’s arguments and defense counsel’s “responses” is tenuous. Plaintiff’s counsel’s
mention of the officer’s lack of regard for the safety of civilians did not invite defense
counsel to call upon the jury to make a community judgment against plaintiff. Nor did
plaintiff’s counsel’s mention of the relevance of Margaret’s BAC invite defense counsel’s
comment calling for the jury to render a social judgment about who should be on the roads.
¶ 106 As the trial court noted, plaintiff’s counsel’s image of his children burying each other in
the sand was intended to illustrate the helplessness suffered by plaintiff as a result of being
rendered a quadriplegic in the accident. By contrast, defense counsel’s story of his aunt
brought in facts not before the jury and was intended to make the case a personal vendetta.
The trial court found that defense counsel’s statement, however true, was not invited by
plaintiff’s counsel and improperly invoked defense counsel’s personal loss to garner
sympathy. “[I]t is highly improper for an attorney to do or say anything in argument the only
effect of which will be to inflame the passions or arouse the prejudices of the jury against one
of the parties without throwing any light upon the question for decision.” (Internal quotation
marks omitted.) Svoboda v. Blevins, 76 Ill. App. 2d 277, 281 (1966) (quoting Coal Creek
Drainage & Levee District v. Sanitary District of Chicago, 336 Ill. 11, 45 (1929)).
¶ 107 Defense counsel’s statement attempted to associate Margaret with the drunk driver that
had killed his aunt and was allowed over plaintiff’s objection. Remarks that inflame the
passions or prejudices of the jury constitute reversible error, and it is “within the sound
discretion of the trial court to determine whether arguments are inflammatory because it has
the superior opportunity to observe the impact of the remarks on the jury.” Fintak v. Catholic
Bishop of Chicago, 51 Ill. App. 3d 191, 197 (1977).
¶ 108 The trial court was in the best position to judge the effects of defense counsel’s
comments, and it found that, while each of defense counsel’s improper statements alone may
be insufficient to merit a new trial, cumulatively they constituted grounds for a new trial.
Based on the evidence we cannot say the trial court’s decision to grant plaintiff’s motion for
new trial was arbitrary, fanciful, or unreasonable. We therefore find no abuse of discretion
and affirm the trial court’s grant of a new trial based on defense counsel’s improper
statements.
¶ 109 B. Admissibility of Dr. Lieken’s Testimony
¶ 110 On appeal, defendants note that the trial court was bound by this court’s decision in the
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first Petraski appeal that the proposed expert testimony at the first trial regarding Margaret’s
BAC was relevant and reliable and that its probative value was not outweighed by concerns
of prejudice. Petraski, 382 Ill. App. 3d at 28-32. Defendants argue that since this court found
that the jury should hear expert testimony regarding Margaret’s BAC, the admission of Dr.
Lieken’s testimony was proper, and the trial court’s grant of a new trial based on the trial
court’s finding that it erred in admitting portions of Dr. Lieken’s testimony was an abuse of
discretion.
¶ 111 Following this court’s decision in the first Petraski appeal, the trial court allowed Dr.
Lieken to testify to his opinions as to Margaret’s BAC. Dr. Lieken opined, to a degree of
medical certainty, Margaret’s BAC was above 0.08. Lieken testified to the effects of
intoxication on the average person, but then went on to attribute those effects to Margaret’s
actual conduct.
¶ 112 In granting a new trial, the trial court noted that Dr. Lieken’s methods for conversion of
serum-blood alcohol level and retrograde analysis were reliable. The trial court also reasoned
that the jury is responsible for weighing the evidence and drawing reasonable inferences and,
therefore, found that conflicting evidence regarding conversion rates did not render the
evidence inadmissible. However, the trial court held that it erred by allowing Lieken to opine
that Margaret was in fact both intoxicated and impaired at the time of the accident.
¶ 113 In the first Petraski appeal, this court found:
“[T]he alcoholic consumption evidence is relevant to the issue of Petraski’s contributory
negligence. *** The jury could have used O’Donnell’s [the defendant’s toxicology expert
at the first trial] testimony as an explanation for Petraski’s conduct. It would have
provided the jury with a reason why Petraski turned left in front of an on-coming
emergency vehicle, green arrow or not.” Petraski, 382 Ill. App. 3d at 28.
¶ 114 Defendants argue that this court also made it clear that evidence both of Margaret’s BAC
and the consequential impairment to her abilities was relevant because her BAC was above
the 0.08 level that allows for a statutory presumption: “Here, there was evidence that
Petraski’s blood-alcohol level was more than 0.08 at the time of the accident, supporting a
presumption that she was under the influence.” Petraski, 382 Ill. App. 3d at 28; see also 625
ILCS 5/11-501.2(b)(3) (West 2000).
¶ 115 In effect, defendants claim that once an individual’s BAC is above the statutory
presumption that the individual is under the influence, it is also presumed that the individual
is impaired. However, under section 11-501.2(b)(3) of the Illinois Vehicle Code (625 ILCS
5/11-501.2 (b)(3) (West 2000)), a BAC above 0.08 allows only the presumption that an
individual was “under the influence of alcohol.” Defendants cite Wade v. City of Chicago
Heights, 216 Ill. App. 3d 418 (1991), in support of their claim, but nothing in Wade suggests
that an expert may testify that an individual was in fact impaired or intoxicated based solely
on a BAC result above the presumptive level. In fact, in Wade, this court noted:
“Although one who is intoxicated can be said to be under the influence of alcohol,
the converse is not necessarily true: one may be under the influence of alcohol in varying
degrees [citations] without necessarily being considered intoxicated. [Citations.] As
previously noted, neither section 11-501 nor section 11-501.2 employs the term
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‘intoxicated.’ Nor is the concept of being under the influence anywhere statutorily
equated with being intoxicated.” Wade, 216 Ill. App. 3d at 434.
¶ 116 Defendants argue that Illinois precedent allows expert testimony to explain BAC test
results and that barring Dr. Lieken’s testimony regarding the effects of Margaret’s BAC on
her conduct will leave the jury without guidance as to the meaning of her BAC test results.
However, the trial court did not rule that it had erred in admitting the entirety of Dr. Lieken’s
testimony, only that part of his testimony where Lieken opined that Margaret was in fact
intoxicated and impaired. Therefore defendants’ argument that the trial court’s ruling would
leave the jury with evidence of Margaret’s BAC but no explanation of that result is
unpersuasive.
¶ 117 Defendants further argue that in several Illinois appellate court cases, once the statutory
presumption is met, and expert testimony has been admitted where the expert opined that an
individual was impaired based solely on that individual’s BAC. In Thomas v. Brandt, 144
Ill. App. 3d 95 (1986), the defendant’s expert was allowed to testify that based on a test result
of a 0.114 taken at 11:55 a.m., he would think that plaintiff had was intoxicated at the time
of the accident, which was estimated to have occurred at 5 a.m. Thomas, 144 Ill. App. 3d at
97. Defendant’s expert further testified that he would think plaintiff’s “ability to function”
was impaired, even though he admitted that he could not give an opinion as to the degree of
impairment because “individual capacities vary.” Thomas, 144 Ill. App. 3d at 97.
¶ 118 In Thomas, plaintiff’s blood sample, taken more than six hours after the accident,
returned a result of 0.114. Defendant’s expert did not testify as to what this result would
mean in terms of plaintiff’s BAC at the time of the accident. Nor did he testify that plaintiff
was in fact intoxicated and impaired, only that based on such a result “he would think
plaintiff had consumed alcoholic beverage[s] and was intoxicated.” (Emphasis added.)
Thomas, 144 Ill. App. 3d at 97.
¶ 119 In Cuellar v. Hoot, 168 Ill. App. 3d 416 (1988), the appellate court found that
defendant’s expert’s testimony regarding plaintiff’s BAC was properly admitted. In Cuellar,
defendant’s expert opined that plaintiff was intoxicated, based on a BAC of 0.104. Cuellar,
168 Ill. App. 3d at 420. However, the appellate court also found that plaintiff had waived the
issue of the admissibility of defendant’s expert’s testimony as to plaintiff’s intoxication.
Cuellar, 168 Ill. App. 3d at 422. The appellate court noted that, had the issue not been
waived, plaintiff’s claim would not have prevailed, reasoning that defendant’s expert “did
take into account facts specific to plaintiff *** in coming to his opinion.” Cuellar, 168 Ill.
App. 3d at 423.
¶ 120 Furthermore, in Cuellar, as in Thomas, the issue on appeal was whether the trial court
had erred in admitting the expert’s testimony. Cuellar, 168 Ill. App. 3d at 420; Thomas, 144
Ill. App. 3d at 96. The appellate court did not rule in either case that exclusion of such
testimony would have been an abuse of discretion. None of the cases defendants cite indicate
that Illinois precedent necessarily requires the admission of expert testimony that an
individual is “in fact intoxicated” based only on the fact that their BAC is above the level that
would allow a statutory presumption that the individual is under the influence.
¶ 121 In Burris v. Madison County, 154 Ill. App. 3d 1064 (1987), defendant challenged the trial
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court’s exclusion of evidence of plaintiff’s BAC. The appellate court found “that it was error
to exclude defendant’s evidence regarding plaintiff’s possible intoxication as well as the
results of the blood test and the expert’s interpretation of that result.” (Emphasis added.)
Burris, 154 Ill. App. 3d at 1069. In Burris, the trial court excluded BAC evidence based on
the appellate court’s ruling in People v. Murphy, 124 Ill. App. 3d 695 (1984), barring such
evidence if the person drawing blood was not certified. Burris, 154 Ill. App. 3d at 1068.
During the trial, Murphy was reversed by the Illinois Supreme Court. Burris, 154 Ill. App.
3d at 1069. Based on that reversal, the appellate court found that the trial court had erred in
excluding the BAC evidence. Burris, 154 Ill. App. 3d at 1069.
¶ 122 In reversing the trial court, the appellate court in Burris noted that the trial court had
denied plaintiff’s initial motion in limine to exclude evidence regarding plaintiff’s possible
intoxication and granted plaintiff’s renewed motion based solely on the appellate court’s
ruling in Murphy. Burris, 154 Ill. App. 3d at 1068. The appellate court reasoned, “the trial
court denied plaintiff’s [initial] motion and held the defendant’s intoxication evidence to be
admissible. In its permissible exercise of discretion on the point, we can find no abuse.”
Burris, 154 Ill. App. 3d at 1071.
¶ 123 In the instant case, the trial court noted it is possible for an expert to reasonably opine
that a specific plaintiff may have been impaired based on unusually high levels of
intoxication. Marshall v. Osborn, 213 Ill. App. 3d 134, 140-41 (1991) (permitting expert
testimony that a BAC of 0.320 would “have a profound effect on [decedent’s] perception,
judgment, and physical abilities”). However, Marshall involved an individual whose BAC
was four times the legal limit of 0.08.
¶ 124 The trial court found that, given Margaret’s much lower BAC level, Dr. Leiken’s
testimony attributing the possible effects of alcohol consumption to her actual conduct was
speculative. See Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d
879, 886 (1999) (“[E]xpert opinions based upon the witness’s guess, speculation, or
conjecture as to what he believed might have happened are inadmissible.”). In other words,
there was no proper basis for Dr. Leiken’s opinion. See Petraski, 382 Ill. App. 3d at 28 (“A
party must lay a foundation sufficient to establish the reliability of the bases for the expert’s
opinion.”). Dr. Lieken had no evidence of Margaret’s conduct leading up to the accident.
There was no evidence that she was speeding or otherwise driving erratically. Beyond the
blood sample, there was no evidence to corroborate a finding of impairment. Lieken did not
take into account any specific information about Margaret personally or the events leading
up to the accident.
¶ 125 For these reasons, the trial court found that Dr. Lieken’s testimony that Margaret was
intoxicated and impaired was unreliable, and caused plaintiff to suffer unfair prejudice, and
it had erred when it admitted this testimony. We cannot say that the trial court’s grant of a
new trial on these grounds was arbitrary, fanciful, or unreasonable. We therefore find no
abuse of discretion.
¶ 126 C. Admissibility of Dr. Morrison’s Testimony
¶ 127 Since we have already found that the trial court did not abuse its discretion in granting
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a new trial, we now analyze whether Dr. Morrison’s testimony should be barred. The trial
court had previously barred this testimony and now contemplates allowing it at retrial.
¶ 128 In order to prevail on his complaint, plaintiff has the burden of proving that Officer
Thedos’ conduct was willful and wanton. Willful and wanton conduct is defined as “a course
of action which shows *** an utter indifference to or conscious disregard for the safety of
others or their property.” 745 ILCS 10/1-210 (West 2010). Dr. Morrison would have opined
that Officer Thedos was suffering from uncontrolled bipolar disorder, and he identified
symptoms of anger, irritability, poor judgment, and impulsiveness as precipitating factors for
her conduct.
¶ 129 Defendants argue that the assessment of willful and wanton conduct is based on the
objective nature of the conduct, and that Officer Thedos’ mental health history is not
relevant. Defendants further argue that a determination of willful and wanton conduct is a
question of fact for the jury and Dr. Morrison’s testimony would unnecessarily invade the
province of the jury. Defendants also claim that Dr. Morrison’s opinions are based upon
conjecture and speculation and that the potential for unfair prejudice far outweighs its
probative value.
¶ 130 In finding that it had erred in excluding Dr. Morrison’s testimony, the trial court agreed
that testimony concerning Officer Thedos’ mental state is not necessary for an evaluation of
whether her conduct was willful and wanton. However, the trial court found that Dr.
Morrison’s testimony was nonetheless still relevant. The trial court noted that relevant
evidence is evidence that has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” (Internal quotation marks omitted.) Voykin v. Estate of DeBoer,
192 Ill. 2d 49, 57 (2000).
¶ 131 The trial court noted that, under this court’s holding in the first Petraski appeal, alcohol
evidence was relevant because it could provide a potential reason that plaintiff turned when
she did at the intersection. Petraski, 382 Ill. App. 3d at 28. In finding that it had erred in
excluding Dr. Morrision’s testimony, the trial court found that, by the same reasoning,
evidence of Officer Thedos’ mental state was relevant to the question of whether Officer
Thedos’ conduct was willful and wanton, insofar as it would offer a potential reason for such
conduct.
¶ 132 The trial court acknowledged that Illinois courts have assessed claims of willful and
wanton misconduct by police in vehicular accident cases based only on the officers’ behavior
at the time, and without reference to the officers’ mental states. See, e.g., Nelson v. Thomas,
282 Ill. App. 3d 818, 830 (1996); Breck v. Cortez, 141 Ill. App. 3d 351, 362 (1986).
However, the trial court found that evidence of Officer Thedos’ mental health history could
explain her behavior in support of a showing of carelessness.
¶ 133 The trial court reasoned that the Illinois Supreme Court found that psychiatric testimony
was probative in providing a reason for plaintiff’s conduct in D.C. v. S.A., 178 Ill. 2d 551(1997). However, that is not what D.C. is about. In D.C., a plaintiff-pedestrian sustained
injuries from an automobile accident after stepping off a curb into the path of defendant’s
motor vehicle. Plaintiff’s treating physician referred plaintiff for psychiatric care after
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plaintiff indicated that he might have been attempting suicide at the time of the accident.
¶ 134 Defendants filed a motion to compel the production of plaintiff’s psychiatric and
psychological records, and plaintiff objected. The trial court ordered that certain portions of
plaintiff’s psychological record after the accident be disclosed to defendants, and plaintiff
appealed. D.C., 178 Ill. 2d at 555-56. The Illinois Supreme Court, reversing an appellate
court decision, found that the trial court had not abused its discretion in ordering the
disclosure of plaintiff’s records, noting that “the information is relevant as it pertains to
plaintiff’s conduct and actions at the time of the accident. The information is probative as
well because it appears to provide a possible explanation of how the accident occurred.”
D.C., 178 Ill. 2d at 569. D.C. did not involve psychiatric testimony and opinions.
¶ 135 D.C. is not a case, as we have here, where a mental health care professional testifies as
a retained expert to a party’s mental health based solely on records obtained prior to an
automobile collision. In D.C., the defendant was attempting to obtain only the records after
the pedestrian was struck by an automobile where the defendant claimed that the pedestrian
walked in front of his vehicle. The psychiatric records were compiled during the plaintiff’s
stay in a hospital and mental health facility immediately after the accident. The plaintiff’s
refused disclosure was based on the psychiatric-patient privilege under the Mental Health and
Development Disabilities Confidentiality Act, and after an in camera review, the trial court
allowed the disclosure of certain records referring to plaintiff’s purported conduct at the time
of the accident.
¶ 136 In the case at bar, it is the plaintiff who desires his retained expert to testify to defendant
Officer Thedos’ mental health prior to the time of the accident, without examining the
defendant. Further, plaintiff does not allege in her complaint that the defendant has any
mental conditions that affected her in the operation of her motor vehicle.
¶ 137 Defendants argue that Dr. Morrison’s testimony is unreliable and speculative due to the
fact that Dr. Morrison was not present at the accident scene and never personally examined
Officer Thedos. Expert testimony cannot be based on speculation and conjecture. Dyback v.
Weber, 114 Ill. 2d 232, 244 (1986).
¶ 138 The trial court here found that Dr. Morrison had sufficient facts available to allow her to
give reliable testimony regarding Officer Thedos’ mental health in the period leading up to
the accident. The trial court then reasoned that if Maragaret’s BAC results must be admitted
as a “reason” for her actions under the first Petraski appeal, then it is reasonable to extend
that same standard to Dr. Morrison’s testimony.
¶ 139 Mental health professionals are normally not allowed to provide expert testimony to
evaluate willful and wanton conduct in negligence cases. Hudson v. City of Chicago, 378 Ill.
App. 3d 373 (2007); Urban v. Village of Lincolnshire, 272 Ill. App. 3d 1087 (1995). Instead,
as the trial court acknowledged, willful and wanton conduct has consistently been assessed
by considering only the parties’ actions at the time. Nelson v. Thomas, 282 Ill. App. 3d 818(1996); Breck v. Cortez, 141 Ill. App. 3d 351 (1986). The law defines willful and wanton as
a “course of action” and not a state of mind. 745 ILCS 10/1-210 (West 2010). Accordingly,
it follows that Officer Thedos’ actions may be willful and wanton regardless of what she was
thinking or what her subjective manifestations of thought process was. Thus, Officer Thedos’
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conduct is best evaluated by determining her actions at the time as opposed to attempting to
guess the reasons underlying those actions.
¶ 140 Further, the defendants argue Officer Thedos’ mental health is not relevant because it was
never placed at issue in the plaintiff’s third amended complaint. To determine relevancy, the
trial court must interpret the evidence in light of factual issues raise by the pleadings. Edward
M. Cohen & Associates, Ltd. v. First National Bank of Highland Park, 249 Ill. App. 3d 929,
939 (1993). A plaintiff’s complaint frames the case’s issues. McGoey v. Bruce, 395 Ill. App.
3d 847, 849 (2009). Evidence is only relevant if it proves a fact in controversy or renders a
matter at issue more or less probable. In re Stephen K., 373 Ill. App. 3d 7, 29 (2007). Only
relevant evidence is admissible. In re Stephen K., 373 Ill. App. 3d at 29.
¶ 141 Since there is no mention of Officer Thedos’ mental health in the third amended
complaint, Officer Thedos’ mental health is not at issue. See McGoey, 395 Ill. App. 3d at
849. The third amended complaint discusses only Officer Thedos’ physical actions with no
reference to her mental state. Therefore, any evidence introduced to address Officer Thedos’
mental health is irrelevant and, consequently, inadmissible. See In re Stephen K., 373 Ill.
App. 3d at 29. Moreover, the presence of the affirmative defense of contributory negligence
does not alone place the plaintiff’s mental health at issue. D.C. v. S.A., 178 Ill. 2d 551, 565
(1997). It would be a dangerous precedent in the trial of an automobile collision to determine
the subjective manifestation of a person’s thought process, especially by a retained expert.
The trial court thus abused its discretion in determining that plaintiff’s retained expert would
aid the jury. People v. Anderson, 113 Ill. 2d 1, 12 (1986).
¶ 142 Defendants additionally argue that the probative value of Dr. Morrison’s testimony is
minimal in comparison to its ability to unfairly prejudice Officer Thedos. Relevant evidence
may be barred if its probative value is minimal compared to its danger of producing unfair
prejudice. People v. Bedoya, 325 Ill. App. 3d 926, 937 (2001). Given that Officer Thedos’
mental state is unnecessary in determining willful and wanton conduct, it is likely that Dr.
Morrison’s testimony will have minimal probative value. See Nelson v. Thomas, 282 Ill.
App. 3d 818 (1996). Even if Dr. Morrison’s testimony is relevant, it may potentially prompt
the jury into placing more weight on Officer Thedos’ mental disorders than on her actions
leading to the accident.
¶ 143 In the case at bar, Dr. Morrison’s testimony’s prejudicial effect far outweighs any
possible probative value.
¶ 144 In the case at bar the trial court also noted that, in the first Petraski appeal, this court
found that evidence that Officer Thedos failed to call in “code” before proceeding “was
relevant for the jury’s determination of whether Thedos was acting in a willful and wanton
manner at the time of the collision.” Petraski, 382 Ill. App. 3d at 33. The trial court reasoned
that if Dr. Morrison’s testimony can explain why Officer Thedos failed to call in code or
otherwise act as she did, it was relevant evidence.
¶ 145 We held in the first Petraski appeal that the fact that Officer Thedos failed to call in
“code” before proceeding was relevant, not testimony speculating why she did not call in
“code.”
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¶ 146 III. CONCLUSION
¶ 147 Where defense counsel’s improper comments made in closing argument deprived the
plaintiff of a fair trial, the trial court’s grant of a new trial was not an abuse of discretion.
¶ 148 Because of their importance on remand, we also consider the issues of the admissibility
of expert testimony raised in defendants’ interlocutory appeal. We cannot say that the trial
court abused its discretion when it found that it had erred in allowing Dr. Leiken to testify
that Margaret was in fact intoxicated and impaired. We further find that the trial court did
not abuse its discretion in barring the testimony of Dr. Morrison.
¶ 149 Affirmed.
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