In Philip Morris USA Inc. v. Gore, Case No. 4D15-3892, the Fourth DCA recently issued an opinion on the preservation of error of Daubert challenges. In this wrongful death case, Plaintiff called an expert historian to testify concerning Defendant’s use of ammonia to increase the addictiveness of cigarettes. The trial court allowed the expert to testify on that issue but not on the chemistry of tobacco. On appeal, the defense argued that the expert went beyond a historical opinion into the realm of a scientific opinion by testifying that adding ammonia to cigarettes increases their addictiveness.

Defendants raised this specific Daubert issue (i.e., the expert’s scientific opinion) through a pre-trial motion in limine; however, the trial court deferred ruling on it until trial. At trial, Defendants never made any contemporaneous objection raising the specific Daubert argument. Accordingly, the issue was not preserved for appeal.

This opinion presents two important intersecting legal principles.  First, preservation of error requires the specific legal argument be presented below.  Second, “when a trial court declines to rule on a motion in limine before trial, the moving party must raise a contemporaneous objection at trial to preserve the issue for appellate review.”

Thus, to preserve error (1) the specific legal argument must be presented to the trial court, and (2) contemporaneous objections raising a specific legal argument must be made a trial absent a definitive pre-trial ruling.

If you have any questions as to preservation of error or would like to refer an appellate case, please contact our appellate attorneys.