Illinois Appellate Court Reverses Jury Verdict Where Expert Testimony Was Based in Part on Barred Evidence

An Illinois Appellate Court for the First District reversed and remanded a decision from a Cook County trial judge after it entered a judgment order following a jury verdict. Scott Gilman drove over one of Sweta Karn’s feet as he was making a left turn at a Chicago intersection on Oct. 10, 2013. She filed a lawsuit a month later against him and his employer, Aspen Painting Inc. ,for negligence. At the jury trial, the defendants raised the defenses of contributory negligence and failure to mitigate damages.

Multiple expert witnesses testified that Karn suffered “severe and permanent” nerve injury to her left foot. One of the experts, Dr. Oleg Petrov, a witness for the defendants, was questioned about a surveillance video submitted by the defendants 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.”

Although the person walking in the video was never identified, Dr. Petrov used the video as the basis for his opinion that Karn’s injuries were not severe or permanent. Dr. Dean Stern, who was Karn’s podiatrist and surgeon, testified at the trial that she was not the person in the surveillance video that Dr. Petrov used.

The trial judge reviewed Dr. Petrov’s written testimony and found that the person in the video was referred to as “[a]n individual purported to be Ms. Karn” without any solid identification of her.

The trial court barred any mention of the surveillance video. Dr. Petrov was allowed to testify about Karn’s injuries, despite the fact that the barred video formed part of the basis for his opinion, and he testified that her injury was not permanent and that her physical limitations were solely the result of “perceived pain.” Karn’s lawyer was not permitted to cross-examine Dr. Petrov about the video. The video was not admitted into evidence.

The jury entered a verdict in Karn’s favor in the amount of $123,375, which the jury reduced to $70,500 based on contributory negligence and failure to mitigate damages.

Karn filed a motion before the trial court challenging the court’s decision to limit her cross-examination of Dr. Petrov and alleging that the jury’s award of damages was manifestly inadequate. When those motions were denied, Karn took this appeal.

On appeal, she argued that the trial court’s ruling that she couldn’t cross-examine Dr. Petrov about the video rose to the level of reversible error and that the award of damages was manifestly inadequate.

Karn sought a new trial or, in the alternative, a new trial on damages. Karn emphasized that Dr. Petrov, at trial, admitted that the video formed “part of the basis” of his opinion and the last sentence of his expert report specifically cites “surveillance evidence of the individuals assumed to be Sweta Karn” in concluding that the injury was not permanent.

The appellate court agreed, noting that the trial court’s ruling prevented Karn from arguing that Dr. Petrov’s reliance on the surveillance video which was not established to be of her, rendered his entire opinion unreliable.

The jury was not able to be made aware of the role of the barred video played in Dr. Petrov’s conclusions. The appellate court found that, given the battle of the experts over the severity and permanence of Karn’s injuries, the jury could not say that the verdict would have remained unchanged if they had heard about the video on which Dr. Petrov’s testimony was partially based.

The law in Illinois is such that on cross-examination, a lawyer may probe an expert witness’s qualifications, experience and sincerity, the weaknesses and the basis of his/her opinions, the sufficiency of his/her assumptions, and the general soundness of his/her opinion. Halleck v. Coastal Building Maintenance Co., 269 IL App (3d) 887, 897 (1995). The facts, data, and opinions that form the basis of the expert’s opinion, but which are not disclosed on direct examination, may be developed on cross-examination. Id. Nonetheless, the scope of cross-examination rests within the sound discretion of the trial court and will not be disturbed on appeal absent and abuse of that discretion. Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 102 (1995).

Accordingly, the appellate court reversed the trial court’s decision and remanded the case for a new trial.

The appeals panel held that plaintiff was clearly entitled to question Dr. Petrov about the surveillance video because it formed part of the basis of his opinion.

The trial court erred when it precluded plaintiff from cross-examining Dr. Petrov as to the basis of his opinion. It was noted that as a result of the trial court’s ruling, plaintiff was unable to argue to the jury that Dr. Petrov’s reliance on the surveillance video rendered his opinion unworthy of belief.

Sweta Karn v. Aspen Commercial Painting Inc., et al., 2019 IL App (1^st) 173194 (June 28, 2019).

Kreisman Law Offices has been handling Illinois jury trials, medical malpractice lawsuits, birth trauma injury lawsuits, birth injury lawsuits, traumatic brain injury lawsuits and catastrophic injury lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Wilmette, Winnetka, Worth, South Holland, Blue Island, Downers Grove, Deerfield, Glenview, Dolton, Worth, Crystal Lake, Gurnee, Grayslake, Mount Prospect, Palatine, Hoffman Estates, Elmwood Park, Melrose Park, Chicago (Bronzeville, Back of the Yards, Pullman, Roscoe Village, Bucktown, Lakeview, West Town, South Loop, Lincoln Square, Rogers Park, Albany Park, Hyde Park), Bridgeview, Bolingbrook, Joliet, Aurora, Woodstock, Naperville, New Lenox and Lansing, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.