Petraski v. Thedos

887 N.E.2d 24, 382 Ill. App. 3d 22, 320 Ill. Dec. 244, 2008 Ill. App. LEXIS 169
Appellate Court of Illinois·Decided March 3, 2008·No. 1-06-2914·Published·Cited by 45 cases

Opinion

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 sheriffs 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 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 sheriffs police officer. She and another officer, Yolanda Collins, were sitting in their vehicles in a White Hen parking lot on 143rd Street. At 2:19 a.m., a police dispatcher relayed a call for help involving an “unwanted subject, ex-wife.” Officer Craig Januchowski responded on the radio that he was en route to the call. Thedos 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 Central. To her right, she saw a “green glow” for southbound traffic on Central. When Thedos was 20 feet from the intersection, she saw Petraski’s car stopped in the left-turn lane facing west on Midlothian. Thedos proceeded through the red light at the intersection. Petraski made a left turn in front of The-dos’ vehicle. The two cars collided. Petraski was severely injured in the collision.

Officer Yolanda Collins responded to the scene. She testified The-dos’ 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 testified they heard the sound of the crash. Two of the witnesses said they heard a police siren before the crash. The 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 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-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 IV2 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 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.

Plaintiffs 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 phase for some of the alcohol. He agreed absorption rates vary 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.

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Petraski v. Thedos, 887 N.E.2d 24, 382 Ill. App. 3d 22, 320 Ill. Dec. 244, 2008 Ill. App. LEXIS 169 (Ill. Ct. App. 2008).

887 N.E.2d 24 (Petraski v. Thedos) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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