Petraski v. Thedos

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Petraski v. Thedos

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-2914 Rel

Case Date: 03/03/2008

Preview:FIRST DIVISION March 3, 2008

No. 1-06-2914 MICHAEL PETRASKI, Guardian of the Estate of MARGARET PETRASKI, a Disabled Person, Plaintiff-Appellee, v. DEBORAH THEDOS, individually and as agent/employee of the SHERIFF OF COOK COUNTY, and MICHAEL SHEEHAN, SHERIFF OF COOK COUNTY, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Richard J. Elrod, Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court: Margaret Petraski was seriously injured when she turned her car into the path of a high-speeding Cook County Sheriff's police car driven by Officer Deborah Thedos. A jury found for

Petraski's guardian and returned a verdict in the amount of $35,835,684. The award was reduced by 25% to $26,876,763, based

on Petraski's contributory negligence. This appeal by the County and Thedos raises issues concerning expert testimony. One of them--whether evidence of

Petraski's consumption of alcohol should have been admitted-causes us to reverse the judgment and order a new trial. FACTS On May 28, 2001, at approximately 2:26 a.m., Thedos and

1-06-2914 Petraski were involved in a motor vehicle accident at the intersection of Central Avenue and Midlothian Turnpike. Thedos was on duty as a Cook County sheriff's police officer. She and another officer, Yolanda Collins, were sitting At

in their vehicles in a White Hen parking lot on 143rd Street.

2:19 a.m., a police dispatcher relayed a call for help involving an "unwanted subject, ex-wife." Officer Craig Januchowski Thedos

responded on the radio that he was en route to the call. responded that she also was en route to the location.

A third

officer, Michael Healy, responded that he would provide backup. None of the officers notified dispatch that he or she was proceeding "code," a phrase meaning a request for permission to proceed at a high rate of speed with emergency lights and siren activated. Thedos testified she responded to the call as if it were an emergency. About two blocks before each intersection, she

manually operated her siren, which emitted a "whoop-whoop" sound. Her emergency lights were on at all times. As she traveled east

on Midlothian Turnpike toward Central Avenue, Thedos saw a red light facing her at the intersection. She slowed and checked

both sides of the intersection to make sure other drivers saw and heard her. She saw no northbound or southbound traffic. To her

left, she saw a green light that controlled northbound traffic on

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1-06-2914 Central. To her right, she saw a "green glow" for southbound When Thedos was 20 feet from the

traffic on Central.

intersection, she saw Petraski's car stopped in the left-turn lane facing west on Midlothian. light at the intersection. Thedos' vehicle. Thedos proceeded through the red

Petraski made a left turn in front of Petraski was severely

The two cars collided.

injured in the collision. Officer Yolanda Collins responded to the scene. She

testified Thedos' emergency lights were on when Thedos left the White Hen, and the lights were still on when she arrived at the accident scene. Five witnesses who lived near the accident scene Two of the The

testified they heard the sound of the crash.

witnesses said they heard a police siren before the crash. other three witnesses did not hear a siren. Four of the

witnesses saw the emergency lights activated on Thedos' squad car when they viewed the accident scene. The fifth witness said she

saw a police car with its lights on but did not specify whether they were emergency lights. Plaintiff's expert witness Arnold Siegel estimated Thedos' car was going 70 to 75 miles per hour at the time of impact. He

estimated the speed of Petraski's car at 15 to 20 miles per hour. In his reconstruction of the accident, Siegel assumed Petraski had a green left-turn arrow when she turned. He based that

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1-06-2914 assumption on Thedos' testimony that Petraski's car was stopped in the left-turn lane, the fact that there was another car stopped on Midlothian on the eastbound side, and the sequencing of the lights at the intersection. Siegel testified the traffic

lights on northbound and southbound Central could not be green at the same time. DECISION I. Blood-Alcohol Evidence The jury heard no evidence that Petraski was intoxicated or found to have an elevated blood-alcohol level. Prior to trial,

the court granted the plaintiff's motion in limine barring any evidence that the plaintiff consumed alcohol, was intoxicated, or any other reference to alcohol. Defendants sought to introduce expert witness James O'Donnell, who would have testified that a test of Petraski's blood following the accident revealed an elevated blood-alcohol level, and that Petraski's blood-alcohol level would have been above .08 at the time of the accident. Defendants' offer of proof included the transcript of O'Donnell's discovery deposition. If called to testify,

O'Donnell would have testified he is board-certified in pharmacology, has been qualified in the past as an expert in pharmacology, and has testified as an expert concerning blood-

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1-06-2914 alcohol test results and the effects of blood-alcohol test levels on individuals operating motor vehicles. He reviewed medical

records, police reports, laboratory test results, and depositions of witnesses. Among the documents he reviewed was a Christ

Hospital blood test result for Petraski that revealed a blood serum reading of 116 milligrams per deciliter, or .116 grams per deciliter. That test was conducted at 4 a.m. on May 28, 2001,

approximately 1 1/2 hours after the accident. O'Donnell would testify the blood serum level must be converted to a whole blood equivalent. He performed the

conversion by lowering the blood serum results by 18%, according to statute or regulation. Using the 1.18 conversion factor, he

would opine the serum blood alcohol level converted to whole blood equivalent would be approximately .095 or .096. O'Donnell

testified the conversion factors generally range from 1.09 to 1.22. Nevertheless, he would opine that even if the conversion

factor were as high as 1.25, Petraski's blood alcohol level would have exceeded .08, the statutory presumptive level of intoxication. O'Donnell would testify he assumed Petraski's blood-alcohol level was in the elimination phase during the entire period after the accident. With that assumption, he performed retrograde

extrapolation to obtain a blood-alcohol level at the time of the

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1-06-2914 accident, in effect, a backward estimate. He would testify that

22 to 24 units of alcohol would have to be added back, bringing Petraski's blood-alcohol level to the range of .116 to .120 at the time of the accident. Plaintiff's counsel had an opportunity to cross-examine O'Donnell at the deposition. O'Donnell admitted he did not know

when Petraski started and stopped drinking, what she drank or ate, or how much she drank. He recognized a number of factors

could influence the conversion rate from blood serum to whole blood. He recognized Petraski could have been in the absorption He agreed absorption rates vary

phase for some of the alcohol.

between individuals, from 45 minutes to 3 hours. O'Donnell opined that Petraski's blood-alcohol level would have affected her depth perception, peripheral vision, and ability to judge speeds. The threshold level of alcohol

intoxication for someone to have these visual impairments would be .07 to .08. Petraski's blood-alcohol level would have

affected her judgment of risk-taking because alcohol is a disinhibitor. O'Donnell was unable to render an opinion as to

whether Petraski's blood-alcohol level caused or contributed to the accident. He said a blood alcohol level of .116, for "an

overwhelming majority of the population," would impair a person's ability to operate a vehicle safely.

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1-06-2914 The trial court barred O'Donnell from testifying, finding the testimony too speculative to be admissible. The court also

found the prejudicial effect of the testimony outweighed its probative value. The court granted plaintiff's motion in limine

to bar any evidence to suggest Petraski consumed alcohol or was intoxicated. Whether a motion in limine should be granted is subject to the trial court's discretion. Sher v. Deane H. Tank, Inc., 269 A reviewing court

Ill. App. 3d 312, 317, 645 N.E.2d 1046 (1995).

will not reverse a trial court's order allowing or excluding evidence in limine absent a clear showing of an abuse of that discretion. Sher, 269 Ill. App. 3d at 317. An abuse of

discretion may be found where the trial court's ruling is arbitrary, unreasonable, or where no reasonable man would take the view adopted by the trial court. Hilgenberg v. Kazan, 305 The decision of

Ill. App. 3d 197, 204, 711 N.E.2d 1160 (1999).

whether to admit expert testimony also is subject to an abuse of discretion standard. Reed v. Jackson Park Hospital Foundation,

325 Ill. App. 3d 835, 842, 758 N.E.2d 868 (2001). We first address the relevance of the proposed evidence. "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

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1-06-2914 without the evidence.' " Voykin v. Estate of DeBoer, 192 Ill. 2d

49, 57, 733 N.E.2d 1275 (2000), quoting Fed. R. Evid. 401; People v. Monroe, 66 Ill. 2d 317, 322, 362 N.E.2d 295 (1977) (adopting Rule 401). "[T]estimony grounded in guess, surmise, or

conjecture, not being regarded as proof of a fact, is irrelevant as it has no tendency to make the existence of a fact more or less probable." Modelski v. Navistar International

Transportation Corp., 302 Ill. App. 3d 879, 886, 707 N.E.2d 239 (1999), citing Dyback v. Weber, 114 Ill. 2d 232, 244-45, 500 N.E.2d 8 (1986). "Evidence of a plaintiff's intoxication is relevant to the extent that it affects the care that he takes for his own safety and is therefore admissible as a circumstance to be weighed by the trier of fact in its determination of the issue of due care." Marshall v. Osborn, 213 Ill. App. 3d 134, 140, 571 N.E.2d 492 (1991). O'Donnell opined that Petraski's blood-alcohol level at the time of the accident was over .08, within the statutory presumption in the Illinois Vehicle Code for driving under the influence of alcohol. Subsection 11-501.2(b) of the Code applies

to "any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the

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1-06-2914 influence of alcohol." 625 ILCS 5/11-501.2(b) (West 2000). A

person whose alcohol concentration is .05 or less is presumed to not be under the influence of alcohol. (West 2000). 625 ILCS 5/11-501.2(b)(1)

An alcohol concentration between .05 and .08 does

not give rise to a presumption that the person was or was not under the influence of alcohol, but "such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol." (West 2000). 625 ILCS 5/11-501.2(b)(2)

An alcohol concentration of .08 or more creates a

presumption that the person was under the influence of alcohol. 625 ILCS 5/11-501.2(b)(3) (West 2000). Plaintiff contends the blood-alcohol evidence was irrelevant to the issues in the case because the expert could not conclude Petraski suffered impairment. O'Donnell opined that alcohol had

an effect on her functions, but he could not quantify the impairment, nor could he render an opinion as to whether alcohol caused or contributed to the accident. Plaintiff contends the

testimony only would have fueled speculation as to whether alcohol affected Petraski's conduct, without any supporting evidence that the consumption caused impairment. There was no

eyewitness evidence of Petraski's actual consumption of alcohol, erratic driving, or physical characteristics of intoxication. The cases plaintiff cites in support of this contention hold

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1-06-2914 that evidence of alcohol consumption alone is inadmissible absent other supporting evidence of intoxication. See Sullivan-Coughlin

v. Palos Country Club, 349 Ill. App. 3d 553, 561, 812 N.E.2d 496 (2004); People v. Barham, 337 Ill. App. 3d 1121, 1131-32, 788 N.E.2d 297 (2003); Bodkin v. 5401 S.P., Inc., 329 Ill. App. 3d 620, 633-34, 768 N.E.2d 194 (2002). In those cases, however, the

only evidence of intoxication was evidence of the parties' consumption of alcohol. Here, there was evidence that Petraski's

blood-alcohol level was more than .08 at the time of the accident, supporting a presumption that she was under the influence. We find the alcohol consumption evidence is relevant to the issue of Petraski's contributory negligence. The plaintiff's

expert, Siegel, told the jury Petraski accelerated as she turned, that there would have been no accident if she had braked in the first two seconds. The jury could have used O'Donnell's It would

testimony as an explanation for Petraski's conduct.

have provided the jury with a reason why Petraski turned left in front of an on-coming emergency vehicle, green arrow or not. Instead, plaintiff's lawyer was left free to argue the defendants did not "give any reason" why Petraski would have turned in front of Thedos' car unless she had the green arrow. were not permitted to give a reason. The defendants

See Marshall, 213 Ill. App.

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1-06-2914 3d at 140-41. Plaintiff also contends the evidence lacked the necessary foundation for reliability. Expert opinion testimony generally

is admissible if the expert is qualified by knowledge, skill, experience, training, or education in a field with "at least a modicum of reliability," and the testimony would assist the jury in understanding the evidence. Turner v. Williams, 326 Ill. App. However, an expert's opinion A party must

3d 541, 552, 762 N.E.2d 70 (2001).

is only as valid as the reasons for the opinion.

lay a foundation sufficient to establish the reliability of the bases for the expert's opinion. 53. First, plaintiff says O'Donnell had no knowledge of the appropriate factors to perform an accurate conversion of blood serum to whole blood. Evidence of a person's blood-alcohol level Turner, 326 Ill. App. 3d at 552-

may be introduced through whole blood test results or blood serum results converted into whole blood equivalents. People v.

Thoman, 329 Ill. App. 3d 1216, 1218, 770 N.E.2d 228 (2002). Because a blood serum alcohol concentration test result can be anywhere from 12% to 20% higher than a whole blood alcohol concentration test result, blood serum results generally are converted by dividing by a corresponding factor between 1.12 and 1.20. Thoman, 329 Ill. App. 3d at 1218-19.

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1-06-2914 To perform the blood serum conversion, O'Donnell used the conversion factor in section 1286.40 of the Illinois Administrative Code, which provides: "[t]he blood serum or blood plasma alcohol concentration result will be divided by 1.18 to obtain a whole blood equivalent." (2000). 20 Ill. Adm. Code

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