Illinois (last Shepardized on 9/25/04)
Illinois state law decisions are monitored and summarized for this site by C.E. Petit, an Urbana practitioner who also authors the well-regarded Scrivener's Error weblog. Readers should be sure to consult his helpful overview. Additional background on Illinois's law of expert evidence can found in this article by Craig M. Cooley from the Fall 2003 Newsletter of the Illinois Association of Criminal Defense Lawyers.
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Illinois Supreme Court
In re Simons, 211 Ill. 2d 523, 821 N.E.2d 1184 (2004). In commitment proceedings under Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq., state offers testimony from Drs. Jacqueline Buck and Paul Heaton based largely on certain psychological inventories. Trial court admits testimony without conducting Frye analysis and finds respondent to be sexually dangerous. On intermediate appeal, respondent objects based on People v. Taylor, 335 Ill. App. 3d 965, 782 N.E.2d 920 (2d Dist.), appeal denied, 206 Ill. 2d 641, 806 N.E.2d 1072 (2002). Court of Appeals reverses and remands for further proceedings. State requests leave to appeal to the Illinois Supreme Court, which is granted. Admissibility reinstated. Appellate review of Frye rulings in Illinois has hitherto applied across-the-board abuse-of-discretion standard. Henceforth, trial court decisions on expert qualifications and relevance will continue to be reviewed for abuse of discretion, but trial courts' Frye analyses will be reviewed de novo, and reviewing court may consider not only trial court record, but also sources outside record, including legal and scientific articles and opinions from other jurisdictions. Turning to merits of trial court's evidentiary ruling, intermediate appellate courts in Illinois are divided on admissibility of actuarial risk assessment evidence. In Taylor, it was held that actuarial risk assessment was "scientific" testimony for Frye purposes, and that state had failed to carry burden of showing general acceptance. But better view is represented by In re Erbe, 344 Ill. App. 3d 350 (4th Dist. 2003), which held that whether or not technique is "scientific," it enjoys general acceptance. Review of psychological literature and decisions in other jurisdictions confirm this conclusion. Trial court did not err in admitting testimony. [Editor's Note: This decision functionally removes certain actuarial instruments from the Frye inquiry and overrules cases that previously had held that such instruments were not sufficiently accepted to form a proper foundation for expert opinion. In re Lourash, 347 Ill. App. 3d 680, 807 N.E.2d 1269 (2d Dist. 2004), previously summarized below, presumptively is no longer good law.]
People v. Burns, 209 Ill. 2d 551, 809 N.E.2d 107 (2004). Sexual offender applies to be designated "recovered" (no longer sexually dangerous) under the Sexually Dangerous Persons Act, 725 ILCS 205/0.01, and released from involuntary confinement. His petition is denied partially on testimony from Dr. Mark Carich, state employee who previously examined and treated petitioner. Dr. Carich has bachelor's degree in psychology and doctorate in educational counseling, but is not licensed clinical psychologist. Admissibility affirmed. Statute requires only that psychologists file reports and testify on SDPA recovery petitions, not licensed clinical psychologists. In any event, Dr. Carich is exempt from licensing requirement because he is salaried employee of state whose duties are those of psychologist. 225 ILCS 15/3(e). Additionally, Dr. Carich's experience and academic background make him "eminently qualified to render an opinion in a recovery proceeding"; Illinois appellate courts have rejected several other challenges to his testimony.
In re Michelle J., 209 Ill. 2d 428, 808 N.E.2d 987 (2004). Illinois statute on involuntary mental health confinement requires testimony from mental health professional (psychiatrist, psychologist, clinical social worker) "who has examined [respondent and] testifies in person at the hearing." 405 ILCS 5/3-807. Dr. Debra Ferguson relies upon medical records but no recent examination for one respondent. Dr. Lenora Brown relies upon both medical records and her involvement in care of another respondent. Both respondents are involuntarily confined. Their appeals are consolidated. Admissibility affirmed in part and reversed in part. Applying literal terms of section 3-807, Dr. Ferguson's testimony should have been excluded, because making "an effort" to interview respondent that fails due to respondent's conduct or impaired condition is not sufficient; "[e]xamining a person's medical records . . . is not the same as examining the person." Conversely, Dr. Brown's testimony was admissible, because she had examined patient in course of providing care, even though she was unable to complete separate examination attempted specifically for purpose of confinement hearing.
Illinois Court of AppealsGallina v. Watson, 821 N.E.2d 326 (Ill. App. 4th Dist. 2004). During cross-examination at deposition in medical malpractice case, defendant's expert Dr. Joseph Whalen opines as his "personal preference" that plaintiff should have been counseled on surgical reduction options for one of several fractures and injuries suffered in vehicular mishap, and that Dr. Whalen favors surgical reduction for relevant injury. Trial court grants defendants' motion to bar plaintiff's use of that portion of deposition at trial. Jury finds for defendants and plaintiff appeals. Exclusion reversed. Testimony at issue was relevant to credibility of expert's testimony that defendant's treatment of plaintiff fell within standard of care.
People v. Raines, 820 N.E.2d 592 (Ill. App. 4th Dist. 2004). Murder defendant offers expert testimony from psychologist Dr. Ruth Kuncel concerning his state of mind. Dr. Kuncel's report asserts that "while consciously frightened, anxious, physiologically distressed, and in a high state of autonomic arousal, at least in part, in response to the officer's reported discharge of the pistol, [defendant] pulled the trigger of the gun," resulting in death of police officer. Trial court grants prosecutor's motion to exclude, concluding that the testimony concerns matters of knowledge common to jury and therefore would not assist finder of fact. Exclusion affirmed. Issue of defendant's state of mind was capable of resolution via jurors' common knowledge. No abuse of discretion.
Compton v. Ubilluz, 353 Ill. App. 3d 863, 819 N.E.2d 767 (2d Dist. 2004). In medical malpractice action, trial court denies defendants' motion to exclude testimony from plaintiff's damages expert, life care planner Alan Spector, M.A. Jury awards $1.7 million to plaintiff. Admissibility affirmed. Defendant argues that plaintiff did not establish causal link between failure to diagnose and plaintiff's need for new home, special equipment, and therapy that Spector recommended. But unchallenged causation testimony from plaintiff's physician experts established necessary foundation for Spector's recommendations. Spector's experience gave him information "beyond the ken of the average juror" and allowed him to place the plaintiff's condition in financial and architectural contexts that could materially assist jury in rendering verdict. Because he did not testify to diagnosis or causation, Spector was not bound by doctrine of "reasonable medical certainty" under such decisions as Mengelson v. Ingalls Health Ventures, 323 Ill. App. 3d 69, 751 N.E.2d 91 (1st Dist. 2001).
In re Bushong, 351 Ill. App. 3d 807, 815 N.E.2d 103 (2d Dist. 2004). Trial court finds respondent to be sexually violent person under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq. Respondent petitions for release or conditional discharge. State's expert ("Dr. Leavitt") administers several standardized tests and determines that respondent remains at significant risk for recidivism. Respondent's expert (Dr. Hollida Wakefield) is given access to Dr. Leavitt's test results, but not his complete files, nor access to treating personnel from Department of Human Services after DHS's attorney bars her from such consultations. Her diagnosis is broadly similar to Dr Leavitt's but heavily qualified. Trial denies petition for discharge, holding that respondent's counsel was not ineffective for failing to challenge admissibility of psychological test results, or for failing to move to exclude state's experts when they refused to discuss respondent's case with defense expert. Admissibility affirmed. Respondents at these hearings, although they are technically civil in nature, are entitled to effective assistance of counsel consistent with Strickland v. Washington, 466 U.S. 668 (1984). Respondent's counsel did not run afoul of that standard in failing to raise Frye objection to test results. State's reliance on challenged instruments was not error per se, and respondent's own expert relied on same instruments. Counsel's failure to challenge state's expert on grounds of due process violation (DHS consultation with state's expert but not respondent's) did constitute ineffective assistance, but was harmless beyond reasonable doubt.
In re Marriage of Chianchetti, No. 3-03-0518 (Ill. App. 3d Dist. Aug. 27, 2004). Divorced woman seeks court order requiring ex-husband to pay half of private-college tuition for two daughters of marriage. Ex-husband attempts to introduce evidence from Daniel Kriedler, alleged expert on college expenses and education financing, regarding alternative calculations of reasonableness of educational cost. Trial court excludes testimony and goes on to grant order requiring payment, noting ex-husband previously paid private high-school tuition without objection. Exclusion affirmed. Trial courts enjoy discretion to admit expert testimony "when the testimony will aid the trier of fact on a topic beyond the ken of the average person." But trial court permissibly found that Kriedler's proffered testimony was not based on cost comparison between proposed college and other institutions with similar programs.
People v. Sutton, 812 N.E.2d 543 (Ill. App. 1st Dist. 2004). Defendant Sutton is arrested for murder of Monica Rinaldi. Only potential eyewitness is Rinaldi's boyfriend, David Janik, who was also wounded in same attack and suffers amnesia as result. Over six-month period, Janik is treated with hypnosis and other psychological therapies by Dr. Stephen Ries. Trial court admits Janik's testimony and excludes defendant's expert testimony regarding unreliability of post-hypnotic recollections. Defendant is convicted of Rinaldi's murder. Admissibility of hypnotically enhanced testimony reversed; exclusion of expert testimony reversed. Defendant correctly argues that trial court erred in admitting Janik's hypnotically enhanced testimony. See People v. Zayas, 131 Ill. 2d 284, 295, 546 N.E.2d 513 (1989) (hypnotically enhanced testimony by anyone other than defendant is per se inadmissible in criminal matter). State failed to meet its burden of proving that Janik's post-hypnotic testimony reflected no inconsistencies with pre-hypnotic statements. State's assertion that this is defendant's burden is "meritless," and there were substantial inconsistencies between pre- and post-hypnotic statements. Barring defendant's expert was also inappropriate, see People v. Wilson, 116 Ill. 2d 29, 46-49, 506 N.E.2d 571 (1987). Hypnosis has not met Frye test as basis for testimony, and defendant should have been allowed to present expert evidence on how hypnosis can alter later recall inaccurately. Neither error was harmless. Vacated and remanded for further proceedings.
Perfection Corp. v. Lochinvar Corp., 812 N.E.2d 465 (Ill. App. 1st Dist. 2004). Water heater manufacturers settle numerous consumer class actions alleging that "dip tubes" in their water heaters are defective, and then sue Perfection (manufacturer of dip tubes). On summary judgment, manufacturers offer testimony from economist Dr. Darrell L. Williams, who estimates their reputational damages by calculating impact on manufacturer stock prices based on "event study methodology." Perfection moves to strike Williams's testimony. Trial court discounts testimony as "speculative" and grants summary judgment to Perfection, mooting motion to strike. Manufacturers take interlocutory appeal. Affirmed. Even if Williams's testimony were held to satisfy Frye, summary judgment was proper, because defendants "could identify no lost customers, profits, declines in revenues, or loss of sales as a result of the dip tube failure and associated media coverage." Dr. Williams's testimony went only to stock price. In any event, Williams's testimony was not competent evidence to establish plaintiffs' damages. Although "event studies methodology" has been held admissible in some courts, it has not gained sufficient acceptance for the purpose of determining damages in any context aside from securities fraud.
Kim v. Mercedes-Benz USA, Inc., No. 1-03-1270 (Ill. App. 1st Dist. Jun. 17, 2004). Purchaser of vehicle sues Mercedes-Benz under Magnuson-Moss Act, alleging that dealer's failure to correct malfunctioning fuel gauge after several attempts rendered vehicle nonmerchantable. Asked in discovery to identify any opinion witnesses, purchaser discloses none. Prior to trial, purchaser's lawyer sends letter informing Mercedes-Benz that purchaser will testify "about the matters alleged in Plaintiff's complaint." Court grants Mercedes-Benz's unopposed motion in limine to exclude testimony from any undisclosed fact or opinion witness. At trial, purchaser is called as lay opinion witness concerning diminished value of vehicle in light of alleged defect. Mercedes-Benz moves to exclude purchaser's opinion testimony under Court's previous ruling on motion in limine. Trial court grants motion and awards directed verdict to Mercedes-Benz because purchaser cannot prove damages. Exclusion affirmed. Purchaser waived appellate review on admissibility of purchaser's opinion testimony because purchaser made no offer of proof at trial disclosing substance of proposed testimony. Alternatively, testimony was properly excluded for noncompliance with Illinois Supreme Court Rule 213 (pretrial disclosure of witnesses and subjects of testimony). Counsel's pretrial letter was insufficient, because it disclosed only subject matter of proffered testimony, not its substance. Rule 213 no longer requires detailed disclosure, but "notice that [the purchaser] would testify as to matters set forth in his complaint is a generalized statement akin to the committee comments' example noting that merely testifying about an 'accident' is improper disclosure" because it creates "unfair surprise." Alternatively, purchaser did not demonstrate adequate foundation for his opinion on value of vehicle in its "defective state."
People v. Robinson, 812 N.E.2d 448 (Ill. App. 1st Dist. 2004). Defendant is arrested on suspicion of driving while intoxicated. Arresting officer Richard Barber administers two behavioral tests one-leg stand, and horizontal gaze nystagmus (HGN). Results of both are consistent with intoxication. Robinson is then taken to police station, where breathalyzer test indicates blood alcohol content of 0.10%. At trial, defendant calls Larry Etzkorn, technical administrator for state police responsible for certifying breathalyzers, to testify to irregularities in certification of particular breathalyzer used to test defendant. See 625 ILCS 5/11-501.2 (Illinois chemical alcohol test standards). Trial court excludes Etzkorn's testimony on breathalyzer but admits Barber's testimony on HGN. Defendant is convicted. Exclusion affirmed; admissibility affirmed. Etzkorn's breathalyzer testimony was properly excluded. Defendant raises potentially significant issues concerning certification and proper functioning of breathalyzer, but according to Etzkorn's voir dire, Etzkorn would have testified that breathalyzer machine has extensive fail-safe self diagnostics that prevent it from giving any reading if not in working order. Trial court properly concluded that no examination of Etzkorn would have elicited admissible evidence to contrary. Meanwhile, Barber's HGN testimony was permissibly admitted, notwithstanding trial court's failure to conduct Frye hearing. HGN is not conclusive test but one of several indicators that officers may use to establish grounds for chemical analysis (breathalyzer). Although appellate courts in Illinois have split on whether HGN must be examined in Frye hearing, this court sides with two other appellate courts in holding Frye hearing to be unnecessary. Dictum in other decisions also tends to support HGN's general acceptance. On facts of this case, because Barber did not rely solely upon HGN results in concluding that defendant was driving under the influence, admission of his HGN testimony was proper without Frye hearing.
The Southern Illinoisan v. Illinois Dep't of Public Health, 349 Ill. App. 3d 431, 812 N.E.2d 27 (5th Dist. 2004). Newspaper sues for release of records from state cancer registry under state freedom of information act. The Illinois Health and Hazardous Substances Registry Act, 410 ILCS 525/4(d), prohibits public release or inspection of any group of facts tending to disclose identity of any person whose condition or treatment information is submitted to registry. Dr. Latanya Sweeney, director of Laboratory for International Data Privacy at Carnegie Mellon University, testifies for Department of Public Health that she used data requested by newspaper to correctly identify 18 of 20 persons in test sample, relying on sealed methodology. Defendants present no other evidence on use of requested data to identify individuals. Trial court accepts Sweeney as expert for defendants and, precisely because she is qualified as such, rules that her testimony and research demonstrate that release of information requested by plaintiffs would not lead less expert individuals to identity of individuals in question. Affirmed. Defendants "now must stand by the evidence they actually presented, not by alarmist conjecture about the resounding policy implications of that somewhat limited evidence." Assertion that others could have replicated Dr. Sweeney's work is speculation not supported by evidence.
Allen v. Martinez, 348 Ill. App. 3d 310, 809 N.E.2d 807 (2d Dist. 2004). Allen sues for injuries suffered on defendants' trampoline when he was eleven years old. Defendants move for summary judgment, asserting that trampoline was open and obvious danger. Allen offers expert opinion from Donald McPherson, experienced gymnastics instructor. Trial court refuses to consider McPherson's opinion and grants summary judgment to the defendants. Exclusion affirmed. On appeal, Allen asserts that McPherson's affidavit should have been admitted and demonstrates triable issue of fact. But Sollami v. Eaton, 201 Ill. 2d 1 (2002), held that by its nature (falling from height), trampoline is open and obvious danger to any child old enough "to be allowed at large." McPherson's opinion would not enable trier of fact to conclude otherwise, both because existence of duty to plaintiff is question of law previously answered by Supreme Court of Illinois and because McPherson cannot provide insight into perceptions of eleven-year-old boy.
People v. Patterson, 347 Ill. App. 3d 1044, 808 N.E.2d 1159 (4th Dist. 2004). State brings murder and arson charges against defendant Patterson. State offers opinion testimony from Kelly Gannon concerning DNA match between victim and bloodstain found at Patterson's home. Admissibility affirmed. On appeal, Patterson asserts his counsel was ineffective for failing to adequately challenge admission of Gannon's testimony. But Patterson's counsel cross-examined Gannon on his qualifications as an expert -- "meaningful adversarial testing" that made counsel's related motions strategic decisions and not ineffective assistance. Alternatively, determining whether expert is qualified is in trial judge's discretion. It is true that Gannon had only bachelor's degree and limited testimonial and publication experience, and that expert's knowledge "must be more than that of the average citizen." However, "no specific rules prescribe what experience, education, or training is required to gain this knowledge."
In re Lourash, 347 Ill. App. 3d 680, 807 N.E.2d 1269 (2d Dist. 2004). State brings involuntary commitment proceedings against convicted pedophile under Sexually Violent Persons Commitment Act. State offers expert testimony from Dr. Agnes Jonas and Dr. Barry Leavitt, who both opine that defendant is at high risk of recidivism. Trial court orders defendant committed to inpatient mental health treatment following his parole date. Admissibility reversed (but error was harmless). Defendant argues that trial court should have conducted Frye hearing insofar as experts' testimony was based on Hansen-Bussiere meta-analysis, Minnesota Sex Offender Screening Tool-Revised ("MnSOST-R"), and instrument known as "Static 99." Defendant is correct that under People v. Taylor, 335 Ill. App. 3d 965, 782 N.E.2d 920 (2d Dist.), appeal denied, 206 Ill. 2d 641, 806 N.E.2d 1072 (2002), actuarial instruments going beyond experts' "clinical judgment, training, and expertise" constitute scientific evidence for which Frye analysis is required. State argues that Taylor should be revisited in light of contrary rulings in other Illinois appellate district, but that invitation is rejected. However, trial court's error in failing to conduct Frye hearing was harmless, in light of substantial alternate grounds on which state's two testifying mental health professionals relied. [Editor's note: See In re Simons, 211 Ill. 2d 523, 821 N.E.2d 1184 (2004), summarized above.]
Southwestern Ill. Dev. Auth. v. Masjid al-Muhajirum, 348 Ill. App. 3d 398, 809 N.E.2d 730 (5th Dist. 2004). To show value of property in takings action, owner offers expert testimony from appraiser, who values property at $1.4 million. Trial court strikes testimony and refuses continuance for owner to retain substitute appraisal expert. Because only remaining evidence of value is government appraiser's estimate of $5,330, trial court directs entry of judgment in that amount. Exclusion affirmed. Owner's appraiser based his estimate on value of various improvements that owner planned to make in future but on which it had not even broken ground. This methodology would permit landowners to assign whatever value they chose to their properties "merely by conjuring big dreams and wishes for [their] land use." Nor did trial court abuse its discretion in refusing continuance to obtain new evidence, possibly including new appraisal with different methodology. Repeated delays and changes of counsel allowed trial judge to conclude that plaintiffs "were the kind of litigants that would never be fully prepared and ready for trial."
People v. Spencer, 347 Ill. App. 3d 483, 807 N.E.2d 1228 (5th Dist. 2004). Defendant Spencer is convicted of manufacturing methamphetamine. Forensic scientist Michael Cravens performs lab testing on materials seized from trailer in which Spencer allegedly manufactured methamphetamine. Cravens testifies on both results of testing and interpretation of those results, but is not questioned on either equipment calibration or validity of analysis methods. Admissibility affirmed. Spencer failed to object to Cravens's testimony at trial. On appeal, he asserts that lack of foundation implicates sufficiency of evidence. But "given the ease with which the State could have corrected the problem by asking additional foundational questions," failure to object to lack of foundation at trial waives sufficiency attacks on expert testimony.