Objections Sufficient To Preserve Evidence Issue For Appeal
The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you
believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal?
Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery. Charles’s expert witness, Dr. Carl Bakken, testified that Dr. DiFilippo’s diagnosis and treatment did not meet the appropriate standard of care.
About a year before the trial, Dr. Bakken had been reprimanded by the Illinois Department of Professional Responsibility for not making a proper diagnosis of a different patient’s problem. Charles objected when Dr. DiFiloppo advised the court she intended to examine Dr. Bakken about the reprimand. But the trial court overruled the objection. Charles also objected when the examination of Dr. Bakken’s reprimand began at the trial, and he asked for a side conference with the court to raise the objection again. The court did not allow the side conference, but told Charles he could make his record later.
Charles did not raise the matter again until he appealed after the jury decided in favor of Dr. DiFilippo. Charles argued to the appellate court that the examination of Bakken’s reprimand should not have been allowed. Dr. DiFilippo argued that Charles waived the issue for appeal “by failing to object to the question about the reprimand itself and only interposing an objection after the answer was given and the defense asked the witness about the basis for the reprimand.”
The First District Illinois Appellate Court ruled that the argument was not waived. Here’s the court’s explanation.
Generally, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review … On the other hand, to save a question for review, an objection need not be repeated each time similar matters are presented where the court has previously ruled … Once the court has ruled, a party is entitled to assume that the trial judge will continue to make the same ruling and that he need not repeat the objection.
In this case, during recess of Dr. Bakken's direct examination, defendant [DiFilippo] advised the circuit court of her intent to cross-examine Dr. Bakken regarding the reprimand from the Illinois Department of Professional Responsibility. Plaintiffs [Charles Cetera] objected at that time and argued the evidence was irrelevant. The circuit court ruled that defendant would be allowed to ask Dr. Bakken whether he received a reprimand. Then during the cross-examination, the circuit court denied plaintiffs' request for a side bar regarding evidence of the reprimand and the court explained that plaintiffs had "45 minutes on this." The court concluded by telling plaintiffs to "make your record later." While plaintiffs did not make a further record after this exchange, based on this record, plaintiffs were entitled to conclude that the circuit court would continue to make the same ruling and were not required to repeat the objection.
Although there was no waiver, the appellate court ultimately ruled the trial court did not abuse its discretion in allowing the examination of Bakken’s reprimand. DiFilippo’s favorable judgment was affirmed. The whole case, Cetera v. DiFilippo, No. 1-09-0691 (8/4/10), is available here for the clicking.