Petraski ex rel. Estate of Petraski v. Thedos, 1–10–3218.

• Decision Date: 16 December 2011
• Docket Number: No. 1–10–3218.,1–10–3218.
• Citation: 2011 IL App (1st) 103218,963 N.E.2d 303,357 Ill.Dec. 350
• Parties: Michael PETRASKI, Guardian of the Estate of Margaret Petraski, a Disabled Person, Plaintiff–Appellee, v. Deborah THEDOS, Individually and as Agent/Employee of the Sheriff of Cook County, and Michael Sheahan, Sheriff of Cook County, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 103218

357 Ill.Dec. 350

963 N.E.2d 303

Michael PETRASKI, Guardian of the Estate of Margaret Petraski, a Disabled Person, Plaintiff–Appellee,

v.Deborah THEDOS, Individually and as Agent/Employee of the Sheriff of Cook County, and Michael Sheahan, Sheriff of Cook County, Defendants–Appellants.

No. 1–10–3218.

Appellate Court of Illinois, First District, Sixth Division.

Dec. 16, 2011.

Anita M. Alvarez, State's Attorney (Michael L. Gallagher, Assistant State's Attorney, of counsel), and Barry G. Bollinger and Gregory V. Ginex, both of Bollinger, Ruberry & Garvey, Special Assistant State's Attorneys, both of Chicago, for appellants.

Michael W. Rathsack and Winters Enright Salzetta & O'Brien (Paul L. Salzetta and Karen McNulty Enright, of counsel), both of chicago, for appellee.

OPINION

Presiding Justice R. GORDON delivered the judgment of the court, with opinion.

[357 Ill.Dec. 353] ¶ 1 On May 28, 2001, Margaret Petraski (Margaret) and Officer Deborah Thedos, of the Cook County Sheriff's Police Department,¹ 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 County.

¶ 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, 320 Ill.Dec. 244, 887 N.E.2d 24 (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.

¶ 6 I. BACKGROUND

¶ 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 yard.

¶ 8 A. First Trial

¶ 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 33, 320 Ill.Dec. 244, 887 N.E.2d 24.

¶ 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 County traffic engineer Richard Jezierny; and Margaret Petraski's children, Laura and Michael Petraski.

¶ 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 ²; and toxicology expert Dr. Jerrold Leiken.

¶ 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' 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...