Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County, Law Division. No. 13 L
1225 Honorable Thomas J. Lipscomb, Judge Presiding.
JUSTICE GRIFFIN delivered the judgment of the court, with
opinion. Presiding Justice Mikva and Justice Pierce concurred
in the judgment and opinion.
1 Plaintiff filed a personal injury lawsuit against defendant
Scott Gilman and his employer, Aspen Commercial Painting,
Inc., to recover damages she sustained when defendant drove
over her left foot at an intersection in Chicago. The case
was tried before a jury.
2 Halfway through trial, the trial court learned that
defendants' expert witness, Oleg Petrov, DPM, reviewed a
surveillance video of an unidentified person walking and
standing without pain or difficulty and assumed it was
plaintiff when forming his opinion that her injuries were not
severe or permanent. Following a lengthy discussion about the
video, the trial court barred "any mention" of it
at trial. The trial court, however, allowed Petrov to testify
to his opinion finding it had an otherwise independent and
3 The jury returned a verdict in favor of plaintiff and
awarded damages for pain and suffering, disability and
disfigurement in a total amount of $123, 375. The jury
reduced the award to $70, 500 after finding plaintiff was 40
percent contributorily negligent and failed to mitigate her
damages. Plaintiff filed a motion for a new trial challenging
the trial court's evidentiary ruling and the jury's
award of damages. The trial court denied the motion.
4 Plaintiff appeals, and argues that the trial court
committed reversible error when it limited the
cross-examination of defendants' expert witness as to the
basis of his opinion. Plaintiff also claims that the
jury's award of damages was manifestly inadequate and the
trial court's decision to the contrary was incorrect. For
the following reasons, we reverse and remand for a new trial.
6 On October 10, 2013, defendant made a left-turn at an
intersection in Chicago and ran over plaintiff's left
foot. A month later, plaintiff sued defendant and his
employer in the circuit court of Cook County claiming they
were negligent and liable for her injuries. Defendants raised
two affirmative defenses: contributory negligence and failure
to mitigate damages. Discovery took place, and the case was
tried before a jury.
7 At trial, several expert witnesses testified that, as a
result of the accident, plaintiff suffered a nerve injury to
her left foot that was severe and permanent. One of those
witnesses was plaintiff's podiatrist and surgeon, Dean
Stern, DPM. Plaintiff's counsel questioned Stern about a
surveillance video taken by defendants' investigators
that allegedly showed plaintiff, after the date of the
injury, walking and standing for long periods of time without
any signs of discomfort or pain.
8 Plaintiff's counsel asked Stern if "part of
[Petrov's] opinions are based upon a surveillance video
that was provided him purporting to be my client." Stern
answered in the positive. Plaintiff then asked Stern if he
was shown the video and whether plaintiff was the person in
the video. Stern answered that he viewed the surveillance
video and the person in it was "not your client."
No further questions were asked about the surveillance video
until halfway through trial.
9 Defense counsel asked plaintiff if she "ever worked at
an eyebrow threading place." The trial court struck the
question from the record and asked how it was relevant to the
case. Defense counsel gave the following answer: "I have
video surveillance of someone that my guy thought was Sweta
Karn. I don't know if it is her or not. He doesn't
know if it was her or not. So I did a Request to Admit and
Plaintiff denied it was her. If it is not her, then there is
no issue and let's move on." The surveillance video
was part of an investigative report commissioned by
defendants that explicitly referred to plaintiff as the
"subject" of the investigation. Upon further
inquiry, the trial court learned that defendants' expert
witness had received the report, reviewed the video and
relied on it when forming his opinion.
10 Unable to get a clear answer from the parties as to who
was depicted in the surveillance video, the trial court
reviewed Petrov's written report and found it did not
refer to the person in the video as plaintiff. Rather, Petrov
referred to "[a]n individual purported to be Ms.
Karn," and further stated that the
"individual" in the video "appeared to be Ms.
Sweta Karn" and he "assumed" it was her. After
a lengthy discussion with the parties that continued into the
next day, the trial court barred any "mention about the
video surveillance, period."
11 Despite its ruling and the fact that the video formed part
of the basis of Petrov's opinion, the trial court allowed
Petrov to testify to the severity and permanence of
plaintiff's injuries at trial. Plaintiff asked the trial
court for permission to cross-examine Petrov about the