Appeal from the of Margaret Circuit Court of Cook County. No. 09 L 2953 Honorable Dennis J. Burke, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
¶ 1 On May 28, 2001, Margaret Petraski (Margaret) and Officer Deborah
Thedos, of the Cook County Sheriff's Police Department,*fn1
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
¶ 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 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.
¶ 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
¶ 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 ¶ 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 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 Country traffic engineer Richard Jezierny; and Margaret Petraski's children, Laura
¶ 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 Walton*fn2 ; and toxicology expert Dr. Jerrold Lieken.
¶ 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 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's 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 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 has 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 to 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 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 8 1/2 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 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, Sheriffs 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 ...