Appellate Law

Objection To Expert Waived Where ?Speculation? Argument Not Asserted During Testimony

By Steven R. Merican

Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler?s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed.

At trial, William and Ramona?s expert testified that Linnea probably approached Gambler?s ?kick zone,? an area directly behind the horse that the horse instinctively kicks when surprised. In the appellate court, Linnea argued that the expert?s testimony was inadmissible because it was speculative. William and Ramona asserted that the ?speculation? argument had been waived because it was not properly preserved in the trial court.

The First District Illinois Appellate Court agreed with William and Ramona. Although Linnea made a pre-trial objection based on speculation, she did not assert the ?speculation? objection during the expert?s testimony at trial. Here?s what the court said:

Initially, we find that plaintiffs have waived their argument that Jahiel's [expert?s] testimony was improperly admitted because it was based on speculation. Plaintiffs asserted five objections during the course of Jahiel's testimony. At no time in the trial court did plaintiffs object to Jahiel's testimony based on the purported speculative basis of her testimony ? Although plaintiffs filed a motion in limine seeking to prevent Jahiel from "[d]irectly or indirectly disclosing, discussing or suggesting in any manner ? that the horse Gambler was provoked since [she] does not know what the plaintiff was doing at the time of the kick," plaintiffs failed to object to Jahiel's testimony on the grounds of speculation at trial and thus failed to properly preserve this issue for appeal

Linnea got a new trial nonetheless because the trial court mistakenly allowed the jury to consider whether she was guilty of comparative fault. Read the whole case, Johnson v. Johnson, Nos. 1-06-2759, 1-07-0029 (11/5/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 11, 2009 (boomark / email).