ARTICLE: A CAUTIONARY LESSON TO AVOID WAIVER OF ISSUES RAISED AT TRIAL

The below article of mine was published in the Summer of 2024 edition of the Civil Litigation Update (Vol. 27, No. 3) put out by the PBA Civil Litigation Section and is republished here with permission.

A CAUTIONARY LESSON TO AVOID A WAIVER OF ISSUES  RAISED AT TRIAL


By


Daniel E. Cummins, Esq.


A recent decision out of the Philadelphia County Court of Common Pleas serves as a cautionary lesson that, if heeded, will avoid a waiver of issues on appeal in a civil litigation matter.

Not All Pre-Trial Objections Are Preserved

In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court found that the plaintiffs in this motor vehicle accident litigation had waived their objections to the testimony of the defendant’s medical expert witness by failing to restate the objections that were previously raised plaintiff’s pre-trial motion in limine until after that expert for the defense had testified at trial.

A copy of the Wingate decision can be secured on the author’s Tort Talk blog by going to www.TortTalk.com and typing “Wingate '' into the Search box near the upper right hand corner of the home page of the blog.

According to the Opinion, during the discovery phase of this personal injury litigation, the defendant produced reports from a medical expert who offered an opinion that the plaintiff’s back problems were unrelated to the accident.

As the case approached trial, the plaintiff filed a motion in limine seeking to exclude the defendant’s expert from testifying. At that point, the trial court issued an Order deferring a decision on the pre-trial motion until the time of trial.

However, at trial, the plaintiff did not restate the issues raised in their motion in limine until after the jury had heard the testimony from the defendant’s medical expert. The case proceeded to a verdict and the defense prevailed.

Thereafter, post-trial motions were filed by the plaintiff. In its initial ruling on the post-trial motions, the trial court ruled in part that it had committed error by failing to conduct an analysis of the admissibility of the defense expert’s opinions before the presentation of that testimony at trial.

However, in its later Rule 1925 Opinion further reviewing this issue, the trial court reversed its own decision. The trial court in Wingate stated that “[t]he reason this Court failed to conduct the analysis required…prior to the start of [the defense expert’s] testimony is not because this Court was derelict in its duty; rather, this Court failed to conduct the…analysis because Plaintiffs failed to renew the issue prior to the presentation of [the defense expert’s] testimony at trial.”

In so ruling the court in Wingate relied upon the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222 (Pa. Super. 2011), appeal denied 49 A.3d 441 (Pa. 2012). In Blumer, the Superior Court had ruled that “if the trial court defers ruling on a motion in limine until trial, the party that brought the motion must renew the objection at trial or the issue will be deemed waived on appeal.”

As a result, in its Rule 1925 Opinion addressed to the Superior Court, the trial court in Wingate requested the Superior Court to reverse the trial court’s previous decision to grant the plaintiffs a new trial.

The Lesson

The Wingate is just one of many examples of judges seeking to find a waiver of an issue that has been presented for appellate review.

Surely, the filing of pre-trial written motions in limine should ordinarily be sufficient to deem an issue as preserved for appeal. However, if a decision on the motion is deferred by the Court until the time of trial, it is only fair that the burden of making sure a decision on that motion is secured before the issue occurs at trial be placed upon the party who filed that motion.  That party is in the better position to remember to make sure the issue is decided as opposed to the judge with hundreds and hundreds of cases on her or his docket and who is presented with many other issues at the very trial taking place.

The lesson for litigators to recall here is that trial court and appellate court judges are trained to actively look, as a matter of first instance, for waivers of issues as a matter of course in the review of matters before them. Finding a waiver not only allows a judge to avoid additional work, but also serves an important purpose as another way for a judge to preserve a result such that a case does not have to be tried a second time.

Accordingly, litigators should view it as a challenge to raise and re-raise objections as many times as possible so as to make it free and clear from any doubt that the issue has been preserved for further review.

The Wingate decision confirms that issues raised in pre-trial motions that have been deferred for a decision until the time of trial must be raised again. Yet, even if a pre-trial motion limine was decided prior to trial, out of an abundance of caution, the trial attorney should reiterate any rulings therefrom on the record at trial prior to jury selection in order to emphasize favorable rulings or to confirm the plan to appeal adverse rulings. If such pre-trial issues dealt with the testimony of a particular witness, the objections should be restated again prior to the commencement of the testimony of that witness.

Closer to the end of any trial, out of an abundance of caution and with the possibility of irking the judge, a trial attorney should confirm on the record both before closing arguments, and again during that time after the presentation of the jury instructions and before the jury is excused to deliberate, that any and all verbal and written pre-trial and trial objections and issues raised are preserved for appeal.

In the end, the represented client is entitled to have their attorney go above and beyond in the effort to prevail in the case, including with respect to preserving all objections as to how the case has proceeded.

Daniel E. Cummins, Esquire is the managing partner of the Clarks Summit, PA law firm of Cummins Law. Attorney Cummins is a trial attorney who focuses on insurance defense matters.  Attorney Cummins was also one of the Attorney Advisors for the 2024 National Champion High School Mock Trial Team from Abington Heights High School (Clarks Summit, PA), a team that also won the Pennyslvania State Title three out of the last four years.