I wrote about this case, Bergman v. Kelsey, on October 15, 2007, and pointed out an inconsistency between the stated standard of review (de novo) and the court’s actual analysis (deferential review of a jury verdict). The case is instructive for another reason: reiterating the rule on how to preserve an order barring evidence for appellate review.
Katherine Bergman filed a medical malpractice case against the doctor and the hospital after her newborn son died from a streptococcus infection. Katherine got a verdict for more than $1.5 million. Defendants appealed, asking for a judgment notwithstanding the verdict or for a new trial.
One of the evidentiary issues on appeal bears repeating because so many trial lawyers overlook it: If your evidence is barred at trial, to preserve a prejudice argument on appeal, you must make an offer of proof.
In this case, defendants claimed they were improperly prohibited from putting on evidence of Katherine’s two subsequent pregnancies. Plaintiff’s motion in limine to preclude the evidence was granted. Defendants did not ask to make an offer of proof, so the First District Illinois Appellate Court ruled that the argument was waived for appeal.
The appellate court spelled out the rule. “‘Whether granted or denied, a motion in limine itself does not preserve the issue for appellate review … Rather, to preserve an error in the exclusion of evidence, the proponent of the evidence must make an adequate offer of proof in the [circuit] court … Failure to make such offer of proof results in waiver of the issue on appeal Here, defendants failed to make a specific offer of proof regarding the testimony at issue and the issue is therefore waived.’”
Get the whole case, Bergman v. Kelsey, No. 1-06-1296 (8/2/07), by clicking here.