Cuellar v. Hout

• Decision Date: 15 April 1988
• Docket Number: No. 2-87-0414,2-87-0414
• Citation: 168 Ill.App.3d 416,522 N.E.2d 322,118 Ill.Dec. 867
• Parties: , 118 Ill.Dec. 867 Tomas A. CUELLAR, Plaintiff-Appellant, v. Robert W. HOUT, Defendant (Winfield Township et al., Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 322

522 N.E.2d 322

168 Ill.App.3d 416, 118 Ill.Dec. 867

Tomas A. CUELLAR, Plaintiff-Appellant, v. Robert W. HOUT, Defendant (Winfield Township et al Defendants-Appellees).

No. 2-87-0414.

Appellate Court of Illinois,

Second District.

April 15, 1988.

Alfred Y. Kirkland, Jr. (argued), Charles F. Haverty, III, Wayne M. Jensen, Brady, McQueen, Martin, Collins & Jensen, Elgin, for Tomas A. Cuellar.

Stephen R. Swofford, Lynn D. Dowd (argued), Thomas A. Brabec, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Wheaton, for Roger W. Hout, Winfield Tp. and Arthur Lootens.

Presiding Justice LINDBERG delivered the opinion of the court:

Plaintiff, Tomas A. Cuellar, brought an action in the circuit court of Du Page County seeking damages for personal injuries he alleged resulted from the negligence of Roger W. Hout (Hout), Winfield Township (the township), and Winfield Township Highway Commissioner Arthur J. Lootens (Lootens). Prior to trial, Hout was dismissed as a defendant pursuant to a settlement agreement with plaintiff. Plaintiff's claim against the township and Lootens (defendants) was tried by a jury which returned a verdict for defendants and against plaintiff. In addition, the jury, responding to a special interrogatory, found "the negligence of the defendants [was not] a proximate cause of the injury to Tomas A. Cuellar at the time and place alleged." The circuit court denied plaintiff's post-trial motion and entered judgment on the jury's verdict. Plaintiff appeals from this judgment.

The accident on which plaintiff's action was based occurred on June 26, 1983. Plaintiff was riding a motorcycle heading north on Ridgeland Street. At the same time Hout was driving a van west on National Street. At about 7 p.m. at the intersection of Ridgeland and National in Winfield Township, plaintiff collided with the driver's side of Hout's van. Although they did not witness the collision, four witnesses saw plaintiff riding immediately before the accident. One testified that plaintiff was going about 30 miles per hour, and the other three testified that he was going over 50 miles per hour. Plaintiff, who suffered brain damage from the accident (having been comatose for several days afterward), had incomplete recollection of the period just prior to the accident and did not remember how fast he had been travelling. Hout was the only witness to testify as to his driving prior to the collision. His unrebutted testimony was that he was driving about 15 to 20 miles per hour at 7:10 p.m. Before he reached the intersection of National and Ridgeland, Hout placed his foot on the brake because he would have to yield the right-of-way to northbound traffic on Ridgeland. As he approached the intersection, Hout looked to his left and then to his right. Hout looked to his left again as he entered the intersection, and then he looked straight ahead. He had seen no vehicles approaching the intersection. When Hout was 10 to 15 feet into the intersection he heard a motorcycle engine, and the collision occurred at almost the same instant. It was undisputed that drivers' views were obstructed to some extent near the intersection (the extent, however, being much in dispute) and that there were no regulatory or warning signs on either street near the intersection (although the need for such signs was in dispute).

Plaintiff was taken to Central Du Page Hospital. At some time between 8:55 p.m. and 9:17 p.m. a blood sample was drawn to perform a blood-alcohol test. The test indicated a blood-alcohol level of .064.

Defendants presented the testimony of James O'Donnell, who was a pharmacologist, pharmacist and nutritionist, as to whether plaintiff had been intoxicated at the time of the accident. O'Donnell testified that "retrograde extrapolation" is accepted in the pharmacological community. Alcohol is eliminated from the body at an average rate of .015 to .02-per-hour. O'Donnell used the .02-per-hour elimination rate on the basis that it was more likely correct due to elevated levels of certain enzymes in the blood indicating how plaintiff's liver was functioning. Assuming the .02-per-hour elimination rate, and assuming that during the entire period after the accident plaintiff was in the elimination and not the absorption phase for the alcohol he had consumed, retrograde extrapolation indicated that plaintiff had a blood-alcohol level of .104 at the time of the accident. O'Donnell was of the opinion that plaintiff had been intoxicated at the time of the accident.

Austin Gibbons, M.D., a pathologist (who was also an attorney), testified as an expert for plaintiff. He testified that retrograde extrapolation of a blood-alcohol level from a single measurement could not be relied upon. From that number it is impossible to determine whether the person is still in the absorption phase or, if in the elimination phase, when the level had peaked. Trauma, the type of beverage consumed, and the type of food consumed could affect the absorption rate and so the validity of an extrapolation. Gibbons also testified that the enzymes O'Donnell had found significantly high were not much above normal levels and would be expected to be at higher than average levels for a period following trauma.

Plaintiff raises the following issues:

"1. Whether the trial court ruled correctly in allowing defendants to place evidence of plaintiff's drinking before the jury.

2. Whether the trial court ruled correctly in allowing opinion evidence that plaintiff was intoxicated by one who did not observe plaintiff, but who based the opinion on mathematical extrapolations and a statutory presumption.

3. Whether the trial court ruled correctly in excluding evidence of defendants' admission [that the intersection should have signs]."

We affirm.

Plaintiff's first two issues are related. We will, therefore, follow the lead of the parties and discuss them together.

Under the first two issues, plaintiff challenges the admissibility of essentially three types of testimony. The testimony challenged concerned: (1) plaintiff's drinking of beer prior to the accident; (2) results of the blood-alcohol test showing a .064 alcohol level in plaintiff's blood; and (3) retrograde extrapolation from the blood-alcohol test results leading O'Donnell to the opinions that (a) plaintiff's blood-alcohol level was .104 at the time of the accident and (b) plaintiff was intoxicated at the time of the accident. Plaintiff's challenges to the admissibility of the blood-alcohol test and O'Donnell's testimony on retrograde extrapolation, and his opinions, will be considered first.

Since this is not a prosecution for driving under the influence and section 11-501.2(a) of the Illinois Motor Vehicle Code does not apply, the ordinary standards of admissibility apply to the evidence of the blood-alcohol test. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.2(a); People v. Murphy (1985), 108 Ill.2d 228, 234, 91 Ill.Dec. 653-655, 483 N.E.2d 1288, 1290.) Plaintiff makes two arguments in support of his claim that the blood- alcohol test results were inadmissible.

First, plaintiff contends that the results were inadmissible because "[t]he test was not given 'at the time' of the occurrence (Ill.Rev.Stat. ch. 95 1/2, par. 11-501.2(a)), but, rather, 1.67 to 2.03 hours after the collision." Although plaintiff cites the inapplicable section 11-501.2(a), we will consider this contention under similar language found in the applicable section 11-501.2(b). (Compare Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.2(a) with par. 11-501.2(b).) Section 11-501.2(b) refers to "the concentration of alcohol in the person's blood or breath at the time alleged as shown by analysis of the person's blood, urine, breath, or other bodily substance." (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.2(b).) Contrary to plaintiff's contention, the language quoted does not require that the test be "given 'at the time' of the occurrence." Rather, the statute requires that the concentration of alcohol "at the time alleged" be "shown by analysis of the person's blood, urine, breath, or other bodily substance" without reference to when the substance analyzed is taken from the person. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.2(b).) It is, therefore, broad enough to allow the admission of evidence of the analysis of blood, urine, breath, or some other bodily substance at a time subsequent to the time alleged when that analysis can show, by use of retrograde extrapolation or some other method, the concentration of alcohol in the person's blood or breath at the time alleged. We note that in virtually every case there will be some lapse of time between the time alleged and the performance of the analysis of the person's blood, urine, breath, or other bodily substance so that in virtually every case a degree of extrapolation from the analysis will be required. (People v. Johnigk (1982), 111 Ill.App.3d 941, 943-44, 67 Ill.Dec. 503, 505, 444 N.E.2d 739, 741.) Thus, our construction of the statute to permit such extrapolation testimony is also necessary if the statute is to have any effect at all. People v. Johnigk (1982), 111 Ill.App.3d 941, 944, 67 Ill.Dec. 503, 505, 444 N.E.2d 739, 741 ("Since it is unlikely that a blood sample would be drawn at the exact time of an accident, by implication the statute permits the kind of testimony which was received here--estimating the blood-alcohol level at a time earlier than [when] the sample was drawn").

Plaintiff attempts to distinguish Johnigk on the basis that the actual blood-alcohol level found was in excess of .10 in Johnigk and was less than .10 in the case at bar. (See Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.2(b).) This distinction is irrelevant since (1) it is not the blood-alcohol level at the time of the test, but rather that at the time alleged, that is significant and (2) the distinction does not concern in any way the admissibility of testimony extrapolating from the actual test results...