Saturday, January 11, 2014

Pitfalls in Preservation: An Explanation of the Waiver Doctrine in the Context of Expert Testimony

By Karen Kies DeGrand
Partner, Donohue Brown Mathewson & Smyth LLC

Failing to properly preserve an evidentiary objection before a lower court may result in that objection being waived on appeal. Thus, a thorough understanding of the waiver doctrine is essential for trial and appellate practitioners alike. In Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156, the Appellate Court provided a by-the-book application of the waiver doctrine in the context of preserving a challenge to the admissibility of expert testimony.

In Sheth, the reviewing court considered cross appeals brought by the parties to a legal slugfest over a variety of claims, including breach of contract and fraud, arising from the parties' dealings in used machinery. Id. ¶¶ 1-2. Following a trial in which a jury decided certain claims and the court ruled on others, the First District scrutinized the judgment entered on the jury's verdict and a number of the trial court's rulings, including the dismissal of certain counts on the pleadings. All withstood challenge, with the exception of the trial court's denial of the defendants' request for prejudgment interest; the plaintiff's liability for fraudulent misrepresentation entitled the defendants to an interest award. Id. ¶¶ 2-3.

With respect to waiver, the defendants did not succeed in persuading the appellate panel to consider whether the trial court had botched its rulings in admitting the testimony of an expert witness for the plaintiff as to subjects including foreign regulations and the existence of an oral agreement. The defendants contended that these issues were beyond the expertise of the witness and were not properly the subject of opinion testimony. Id. ¶ 109. Although the defense had presented and lost a motion in limine raising these issues, they failed to renew the objections when the expert witness testified. Id. ¶ 112. Instead, the defendants objected at trial only to the foundation of the expert's testimony. Therefore, the evidentiary challenges raised in the defendants' pretrial motion in limine were waived for appellate review. Id. In addition, the defendants' foundation objection raised during trial was also waived because the defendants failed to raise that objection in a posttrial motion. Id. 

The analysis in Sheth is clear: a contemporaneous objection to the foundation of the expert witness's testimony did not preserve evidentiary objections to the testimony raised in a pretrial motion in limine. To preserve the objections, a party should raise the evidentiary objections again at trial and in a posttrial motion. Id. ¶¶ 111-12. Notably, the appellate court shut the door without an alternative analysis on the merits, which frequently follows a waiver ruling.

Recommended Citation: Karen Kies DeGrand, Pitfalls in Preservation: An Explanation of the Waiver Doctrine in the Context of Expert Testimony, The Brief, (January 11, 2014),

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