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Spurgeon v. Murz
Appellate decision regarding testimony of expert witness
In this case, the defense had an expert witness that had not been deposed by the plaintiff prior to trial. The defendant had properly disclosed the expert but for various scheduling problems, his deposition was never taken. Three days prior to trial the plaintiff filed a Motion to Bar the expert, trial judge denied the motion and offered to schedule the deposition anytime convenient to the plaintiff and at the defendant's expense, plaintiff declined the offer saying it would compromise his case as he needed time to prepare for trial. The judge told the plaintiff to submit information he would need for his cross examination and the defendant would submit written answers. The plaintiff failed to submit such information.
At trial the expert witness was called and testified. The plaintiff made no objection to the court regarding the testimony. The jury found in favor of the defendant.
In the appeal, the plaintiff contends that the court abused its discretion by refusing to bar the testimony of the expert. The appellate court found that the plaintiff waived consideration of the appeal when they did not renew their objection to the testimony at trial.
In order to preserve an issue for appellate review objection must be made at the time the evidence is offered or as soon as grounds for the objection becomes apparent even though a motion raising objection to such issue may have already been filed. In addition, the court held despite the plaintiff's failure to timely object to the testimony, that the expert witness' testimony was admissible because of the plaintiff's difficulties and poor handling of the situation. |
