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June 10, 1997


Appeal from the Circuit Court of Cook County. Honorable Philip Fleischman, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Mcnulty delivered the opinion of the court. Rakowski and Tully, JJ., concur.

The opinion of the court was delivered by: Mcnulty

JUSTICE MCNULTY delivered the opinion of the court:

This case turns on the admissibility of a toxicology report. James Steward died when his car hit a trailer. Rosie Steward, as special administrator of James Steward's estate, sued the trailer's owner and driver for negligence. The trial court admitted into evidence at trial the medical examiner's toxicology report, which showed an alcohol concentration of .162 in Steward's blood. Plaintiff appeals from judgment entered on the jury's verdict for defendants. We, too, find the report admissible under section 115-5.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-5.1 (West 1994)), and therefore we affirm.

Defendant Bernard Crissell drove a truck and trailer for defendant North American Van Lines on January 11, 1992. Heading westbound on 95th Street somewhat after 11 p.m., he saw a sign indicating that the viaduct ahead of him had a clearance of only 12 feet 8 inches. Because his trailer was over 13 feet tall, he realized he needed to turn around. He turned left onto Dorchester, only to find a chain blocking the street. The street led to a business district, and authorities for that district closed that street at 6 o'clock that night. Crissell pulled his truck up to the chain, stopped, and turned on his four-way flashers. His trailer then blocked both eastbound lanes and one of the two westbound lanes. He saw a security pickup truck coming towards him from inside the business district. A few minutes later Crissell heard a loud crash.

Police found Steward dead in his car. The trailer sheared off the top of the car as the eastbound car passed under the trailer. The car came to a stop 89 feet east of the trailer. The estate charged Crissell and North American Van Lines with negligently blocking the eastbound lanes without placing warnings adequate to give drivers time to react when they discovered the trailer after passing underneath the nearby viaduct.

Before trial plaintiff moved to bar the toxicologist's report and testimony. The trial court denied the motion. Dr. Nancy Wu Chen, chief toxicologist in the Cook County office of the medical examiner, explained department procedures for quantifying toxin levels in samples the department receives from the medical examiner's pathology department. The toxicology department received the samples labeled "James Stewart" at 1:44 p.m. on January 12, 1992. The file numbers matched Steward's files, and the subject's description also matched Steward's description. Dr. Wu Chen did not know when the pathology department drew the samples because her records show only the toxicology department's work. The court overruled plaintiff's objection to the foundation for the exhibit.

On cross-examination Dr. Wu Chen admitted that alcohol concentrations in the blood change somewhat after death, and the readings vary somewhat depending upon the part of the body from which blood is drawn. She knew neither from what part of Steward's body, nor how long after death, the pathologists drew the blood. She said, "that question maybe it should be directed to a pathologist." Defendants' exhibits listed Dr. Deborah Kay as the pathologist who requested the toxicology report. Neither party subpoenaed Dr. Kay to testify.

The parties presented testimony concerning lighting, obstruction of the view for eastbound cars, Steward's speed, and the length of time the trailer remained across the lanes prior to the crash. Plaintiff argued that Crissell could have pulled off the roadway rather than turn left, and he could have put out the warning triangles kept in the truck.

The court instructed the jurors that statutory law forbids driving with a blood-alcohol concentration in excess of .10, and if they found a violation of that statute, they could consider that violation in assessing negligence. The court also told the jurors that if Steward's contributory negligence was more than 50% of the proximate cause of the accident, they should return a verdict for defendants.

Plaintiff argues that section 115-5.1 of the Code of Criminal Procedure does not authorize admission of the toxicology report because the alcohol in Steward's blood was not the cause of death. Section 115-5.1 provides:

"In any civil or criminal action the records of the coroner's medical or laboratory examiner summarizing and detailing the performance of his or her official duties in performing medical examinations upon deceased persons or autopsies, or both, and kept in the ordinary course of business ***, duly certified by the *** medical examiner, shall be received as competent evidence in any court of this State, to the extent permitted by this Section. These reports, specifically including but not limited to the pathologist's protocol, autopsy reports and toxicological reports, shall be public documents and thereby may be admissible as prima facie evidence of the facts, findings, opinions, diagnoses and conditions stated therein.

A duly certified coroner's protocol or autopsy report, or both, complying with the requirements of this Section may be duly admitted into evidence as an exception to the hearsay rule as prima facie proof of the cause of death of the person to whom it relates. The records referred to in this Section shall be limited to the records of the results of ...

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