Illinois Appellate Court Affirms Striking of Expert Witness Affidavit for Failure to Include Documents on Which the Expert Relied

On July 15, 2008, Friehiwet Tahir was standing on the Chicago Transit Authority’s Argyle L station platform.  As the train approached the station, Friehiwet extended her right arm into the train’s right-of-way. The train struck her elbow. She lost her balance and fell onto the track’s dock where she died.

On July 5, 2011, Meram Tahir, Friehiwet’s sister, filed a lawsuit against CTA alleging wrongful death. Tahir claimed the CTA had been negligent in choosing not to notice Friehiwet, in failing to stop the train, in failing to keep the train under control, in failing to warn Friehiwet by blowing the train horn and warning of the train’s approach. The lawsuit also claimed that the CTA chose not to apply the brakes and failed to take reasonable precautions to avoid the deadly incident

Tahir also alleged negligence in design and maintenance of the platform and public address system. In addition, Tahir charged that the CTA operated the train with “worn and defective equipment . . .at an excessive and dangerous speed.”

On Aug. 26, 2013, the CTA moved for summary judgment and argued that it “did not owe a duty to protect Friehiwet from the open and obvious dangers of an incoming train.”

Tahir argued that there were questions of genuine issues of material fact still to be decided, noting that the Argyle Street platform was narrower than others; she also claimed that the platform was not maintained in accordance with the Chicago Building Code.

Lee Rogulich, an architect with the CTA, testified that the code requires 3 feet from the edge of the platform and that the Argyle station had 3 feet and 2 inches and only that little because “there’s nowhere else to go” due to difficulty buying surrounding property to expand the station.

On the other hand, Eras Beseka, an architect, testified on behalf of Tahir, stating that the platform was unsafe, noting a “wet paint” sign that pushed passengers off the wall. He explained that the 24-inch danger zone safety strip should not be included.

The CTA moved to strike the Beseka affidavit in which he stated that the two operators’ statement that Friehiwet was not within 2 feet of the platform was “scientifically and mathematically impossible” and that the platform according to “industry standards, customs and practice,” was “essentially a latent death trap.”

The CTA’s motion to strike the affidavit was based on the fact that Beseka did not show that he had personal knowledge of the case, offered conclusions rather than facts and had no documents attached to demonstrate on what basis he relied.

The court granted the CTA’s motion for summary judgment and struck Beseka’s affidavit. Tahir appealed.

Tahir argued that Beseka’s affidavit was based on a review of the records, depositions, site visits, sound reasoning, personal knowledge of the location, review of the surveillance video and “materials that experts in the same field usually rely on to render opinions.”

The appellate court, however, noted that no surveillance video was in the record, merely occasional still photos, and that Beseka’s only basis for testifying that the operators did not see Friehiwet within 2 feet of the platform, an essential element of his testimony, was a purported video that was not included in the affidavit.

The court noted that Tahir “has the burden to present a sufficiently complete record” and that “any doubts that may arise from an incomplete record are resolved against the appellant (Tahir).”

The appeals panel upheld the striking of Beseka’s affidavit as violating Illinois Supreme Court Rule 191(a) for failing to include documents on which the witness relied. The appellate court also affirmed the circuit court and supported the summary judgment on the basis that the train was an open and obvious condition. As a result, it was concluded that the CTA had no duty to protect Friehiwet with respect to this incident.

Meram Tahir v. Chicago Transit Authority, 2015 IL App (1st) 142066-U.

Kreisman Law Offices has been handling wrongful death cases, truck accident cases, car accident cases, bicycle accident cases, motorcycle collision cases and premises liability cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Grayslake, Crystal Lake, Gurnee, Round Lake Beach, Buffalo Grove, Vernon Hills, Winfield, Westchester, Highwood, Homewood, Inverness, Lake Zurich, Aurora, Arlington Heights, Chicago (Rogers Park, Wicker Park, Bucktown, Old Town, DePaul University Area, Hyde Park, Wrigleyville, Bridgeport, Canaryville), Morton Grove and Niles, Ill.

Related blog posts:

Cook County Jury Verdict to Stand–So Says Illinois Appellate Court

Engineering Expert Excluded from Testifying Because He Did Not Perform Any Tests to Form His Opinions – Bielskis v. Louisville Ladder, Inc.

llinois Appellate Court Holds That Plaintiff Failed to Prove That Negligence Caused the Damages Claimed; Costello v. City of Chicago