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. ¶¶
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), http://applawyers-thebrief.blogspot.com/2014/01/pitfalls-in-preservation-explanation-of.html.
The Appellate Lawyers Association does not provide legal services or legal
advice. Discussions of legal principles and authority, including, but not
limited to, constitutional provisions, statutes, legislative enactments, court
rules, case law, and common-law doctrines are for informational purposes only
and do not constitute legal advice.