Day on Torts
You file a motion in limine to exclude testimony of defendant’s expert witness. The motion is denied. Do you have to object to the testimony of the expert at the time he or she testifies to preserve the issue for appeal?
Maybe. The Wyoming Supreme Court has ruled that a later objection must be made unless the trial judge’s ruling excluding the testimony was "definitive." in Hicks v. Zondag, 2014 WY 16 (Jan. 28, 2014) the trial court denied the motion in limine but said that its ruling was without prejudice to the right to assert an objection at trial that the proposed evidence was cumulative or otherwise in violation of Rule 403. Thus, counsel has to object again when the witness testified to properly preserve the issue for appeal.
Tennessee has a similar rule. In Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) then Judge Koch said that if “the trial court has not ‘clearly and definitively’ acted on the motion [in limine], the moving party must renew the motion contemporaneously with the introduction of the objectionable evidence. Failure to renew the motion will preclude the moving party from taking issue on appeal with the admission of the evidence.” This language was cited with approval in State v. Banks, 271 S.W.3d 90, 170 (Tenn. 2008) and Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 192, fn. 11 (Tenn. Ct. App. 2008).
Grandstaff’s lesson: get a firm ruling. If the ruling is ambiguous, be sure to raise the issue again in the trial itself out of the presence of the jury and get a definitive ruling on the record. Failure to do so will give rise to a waiver of a right to complain about the admissibility of the evidence unless the objection is renewed in a timely fashion.