Superior Court Reverses New Trial, Finds Expert Testimony Objection Waived by Failure to Re-Raise at Trial

On appeal, the Superior Court of Pennsylvania reversed an order granting a new trial and remanded the case for entry of judgment in favor of the appellant because the appellee had waived his pre-trial motion to exclude to expert testimony. 

The appellant, Wingate, brought action against the appellee, McGrath, as a result of injuries suffered from a motor vehicle accident where the appellee’s vehicle struck a car occupied by Mr. Wingate and Ms. Davis. 

During discovery, the appellant offered two expert reports from a radiologist, which expressed that the spinal issues purported by Wingate and Davis were likely the result of disc degeneration and not the result of a single acute traumatic event, including the vehicular accident. The appellant filed a pre-trial motion in limine to exclude the doctor’s expert testimony. 

Three days before trial, the court ordered that the motion in limine would be decided at the time of trial. However, the appellant failed to re-raise the motion until after the doctor had testified and after the jury exited the courtroom. 

That court held that issues regarding the appellee’s expert’s testimony had been waived. The appellant filed a post-trial motion requesting a new trial, which was granted. The appellee then filed a timely notice of appeal from the order granting the appellant a new trial, arguing that the appellant had waved his objection to the radiology doctor’s expert testimony. 

Citing Pennsylvania Rules of Evidence, this court agreed with the appellee, holding that issues raised in an undecided pre-trial motion in limine must be re-raised at trial in order to be preserved. 

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