Illinois Appellate Court Reverses Verdict and Orders New Trial After Defendant’s Expert Witness Was Not Allowed to be Cross-Examined

On Oct. 10, 2013, Scott Gilman’s car ran over the left foot of Sweta Karn while the car was making a left turn on a street. Karn was a pedestrian at the time; she suffered severe and permanent injury to her foot. She filed a lawsuit against Gilman and his employer, Aspen Commercial Painting Inc.

Aspen and Gilman filed affirmative defenses sounding in contributory negligence and Karn’s failure to mitigate her damages.

At the jury trial, Aspen focused on a video that was taken that purported to show Karn walking, post incident, without a limp or any sign of her alleged permanent injuries. Karn, on seeing the video, denied that she was depicted in the video.

Aspen hired an expert witness, Oleg Petrov, who relied on the video as part of the basis of his opinion about the severity and permanence, or lack thereof, of Karn’s claimed injuries. The trial judge barred any mention of the video but allowed Petrov to testify to his findings in reliance on the same video.

Because the video itself was barred, including any mention of it, Karn’s attorney was not allowed to cross-examine Petrov about his reliance on the video in forming his opinions. Petrov found, based on the video, that Karn was walking “with a normal gait pattern and an ability to ambulate in standard shoes without gait assistance devices.”

The Petrov report of his opinion concluded that “[g]iven the documented improvements in the pain rating, post-operative healing, normal physical examination findings and surveillance evidence of the individual, assumed to be Sweta Karn, no future pain, suffering, and/or disability are expected to continue beyond October of 2016.”

The jury found in favor of Karn, signing a verdict for $123,375, but reducing the verdict by 40% for her contributory negligence and removing $3,525 of her damages for failure to mitigate damages, making the total amount of the verdict just $70,500.

Karn appealed, arguing that the trial judge erred in limiting her counsel the ability to cross-examine Petrov about the video that supposedly showed Karn walking without a problem. The appeals panel agreed, finding that since Petrov’s opinion was based in part on the video, if he was permitted to give his opinion, Karn’s counsel must be permitted to question him about that same video.

Aspen argued that although conceding error, it did not warrant reversal of the verdict as it did not materially alter the outcome of the case.

The appellate court disagreed. The Illinois Appellate Court emphasized that Petrov was the sole expert witness for Aspen, refuting multiple experts that testified for Karn and that the “jury assessed the credibility of Petrov’s testimony and weighted his expert opinion based upon less than all of the information he used to form it.”

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

Sweta Karn v. Aspen Commercial Painting Inc., et al., No. 1-17-3194 (Oct. 31, 2019)

Kreisman Law Offices has been handling wrongful death lawsuits, Illinois jury trials, nursing home abuse cases, premises liability cases and product liability 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 Richton Park, Lake Forest, Mount Prospect, Prospect Heights, Northbrook, Waukegan, Willowbrook, Bensenville, Schaumburg, Mundelein, Park Forest, Park Ridge, Chicago (Back of the Yards, Little Italy, Greek Town, Lincoln Square, Lincoln Square, Rogers Park, North Lawndale, East Garfield Park, Washington Park, Rodgers Park, Albany Park, Pilsen, Wicker Park), Palos Hills, South Barrington, Antioch and Naperville, Ill.

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