THE TRIAL MONITOR’S CORNER: Evidence Of A Plaintiff’s Alcohol Consumption In Illinois–

…A Fertile Trial And Appellate Battleground

On two separate occasions over the summer months, the Clausen Miller Appellate Practice Group assisted trial counsel in high-stakes trials where the admissibility of evidence of a plaintiff’s alcohol consumption was at issue. In both cases, the plaintiff’s consumption and inebriation bore greatly on his comparative fault for the injuries he sustained. However, in both cases the trial judge kept out expert testimony regarding whether plaintiff was under the influence as well as a blood-alcohol (“BAC”) test showing that the plaintiff was over the statutory limit.

In doing so, both respective judges relied on Petraski v. Thedos, 963 N.E.2d 303 (1st Dist. 2011) (“Petraski II“), a recent Illinois case discussing alcohol evidence. The trial judges both ruled that Illinois law now requires evidence of physical signs of intoxication for any of the other evidence to be admitted. Without getting lost in the weeds of detail, what Petraski IIactually holds is that a trial court can prevent an expert from stating that a specific plaintiff was intoxicated (at least when the plaintiff’s BAC is only slightly over the legal limit). The decision does nothing to prevent evidence of a BAC level above the legal limit when combined with an expert opining as to the effects of such a BAC level on the average person, which had previously been ruled acceptable by Petraski v. Thedos, 887 N.E.2d 24 (1st Dist. 2008) (“Petraski I“).

The current position of at least some Illinois trial judges appears to be directly at odds withPetraski I. The misinterpretation sets up a bizarre circumstance wherein an Illinois citizen may find one judge allowing a BAC test to be used against him or her as evidence in a criminal case that deprives them of the freedoms of driving or their liberty, yet could walk down the hall to a judge in a simple civil matter and be saved from the evidence.

Upon examination of the relevant case law, strong arguments can be made, based on public policy and the text of the Petraski decisions, that expert testimony on the effects of alcohol on the average person combined with a bad BAC test is sufficient for such evidence to be admitted against a party at trial. Keeping such evidence out would appear to constitute reversible error. Trial counsel must, however, ensure that any retained expert satisfies these two building blocks when they build their case ahead of trial. In other words, the expert will need to opine as to the effects of the BAC level in question on the average person as a building block opinion. The expert might further try to additionally opine that the specific plaintiff was intoxicated if the BAC is high enough.

Practice Pointer

Ultimately, neither of this summer’s trials resulted in an appeal on the alcohol issue due to settlements. Nevertheless, recent Illinois monitoring assignments have made it clear that it is just a matter of time before an appeal occurs on alcohol evidentiary issues. Any active Illinois litigation involving an inebriated plaintiff merits close monitoring given the recent trends in the rulings coming down from the trial bench. The current tact that judges are taking sets up favorably for a challenge on appeal, provided the proper steps have been taken in the trial court.

Do you have a tort case in Illinois where alcohol is at issue? To learn how the Appellate Practice Group’s expertise in this area can help you achieve the best results, please contact Joe Ferrini at 312-606-7447 or jferrini@clausen.com.