Appellate Law

Failure To Object At Trial Forfeits Appeal Of Violation Of Favorable Pre-Trial Evidentiary Ruling

By Steven R. Merican

This opinion is useful because it reiterates the point that a favorable pre-trial evidentiary ruling may not be sufficient to preserve the issue for appeal if your opposing counsel violates the ruling at trial. You must object at trial when the evidence is offered.

In this medical malpractice case, the defendant and a non-party witness testified that the aggrieved patient wanted to continue the allegedly negligent medical treatment despite reported problems. On appeal, the patient argued the testimony violated a pre-trial order that prohibited ?testimony that Ms. Hardy [plaintiff] was comparatively negligent.? Unfortunately for Ms. Hardy, she neither objected to the testimony nor moved to strike it.

The Third District Illinois Appellate Court ruled that Ms. Hardy forfeited appeal of the argument. Here?s what the court said:

?Once a motion in limine is granted, the movant must be vigilant and object when evidence is presented which may violate the order. The purpose of an in limine order is to exclude inadmissible evidence, not to create a trap which results in a new trial if the court in retrospect determines the rule was violated." ? "A motion to strike is required to preserve errors in the admission of evidence. * * * [A] party opposing evidence waives any objection unless a motion to strike is made as soon [as] the objectionable nature of evidence becomes apparent." ? Plaintiff failed to object to, and never moved to strike, either nurse Rasche's or nurse Cordero's references to plaintiff's wishes to continue the IV. Plaintiff has forfeited the issue.

The whole case, Hardy v. Cordero, No. 3-09-0109 (4/8/10), is here for the clicking.

Full post as published by Illinois Appellate Lawyer Blog on September 03, 2010 (boomark / email).