Appellate Law

Dispute Over Expert Testimony Not Waived On Appeal Despite Failure To Make Offer Of Proof In Trial Court

By Steven R. Merican

Efrain Torres injured his shoulder when he slipped on property owned by Midwest Development Company. Torres sued Midwest, claiming the company caused an unnatural accumulation of ice on the property. Michael Eiben, Torres?s roofing expert, was barred from testifying at trial, because, the trial court ruled, Eiben had ?no rational basis for his opinions.?

After a jury verdict in favor of Midwest, Torres appealed. He argued that Eiben should have been allowed to tell the jury his opinions about ice damming and proper roof construction. That raised the question of whether plaintiff?s failure to make an offer of proof to the trial judge resulted in waiver of the argument that Eiben should have been permitted to testify.

The First District Illinois Appellate Court ruled there was no waiver. The court acknowledged that ?when a trial court refuses evidence, no appealable issue remains unless a formal offer of proof is made.?

But this case fell into the exception that ?an offer of proof is not required where it is apparent that the trial court clearly understood the nature and character of the evidence sought to introduced ? A review of the record demonstrates that the trial court had before it Eiben?s written report and lengthy deposition testimony, which contained with them all of the opinions that he would have provided at trial. The trial court also heard extensive argument from both parties regarding Eiben?s qualifications, opinions and lack of a factual basis for those opinions.?

Read the whole case, Torres v. Midwest Development Co., No. 1-06-3698 (5/19/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on September 03, 2008 (boomark / email).