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Karn v. Aspen Commercial Painting, Inc.

Court of Appeals of Illinois, First District, First Division

June 28, 2019

SWETA KARN, Plaintiff-Appellant,

          Appeal 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 reliable basis.

         ¶ 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.

         ¶ 5 BACKGROUND

         ¶ 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 ...

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