See Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 152 (2d Cir.2010) (โ[A]n offer of proof ... is required where, as here, โthe significance of the excluded evidence is not obvious or where it is not clear what the testimony of the witness would have been or that he was even qualified to give any testimony at all.โ โ (quoting Fortunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir.1972))). This failure robs the Court of its ability โto reevaluate [its] decision in light of the actual evidence to be offeredโ or otherwise โdetermine if the exclusion affected the substantial rights of the party offering it.โ
However, the general rule is that a court will not consider issues on appeal that are not raised below. Terkildsen v. Waters, 481 F.2d 201, 204 (2d Cir. 1973); Fortunato v. Ford Motor Company, 464 F.2d 962, 967 (2d Cir.) cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972) (holding that a court will not "permit a party to allege on appeal what it failed to claim to the trial court"); Ansul Company v. Uniroyal, Inc., 448 F.2d 872, 886 (2d Cir.), cert. denied, 404 U.S. 1018, 92 S.Ct. 680, 30 L.Ed.2d 666 (1972). The record before this Court gives no indication that Claimants argued a theory of equitable or promissory estoppel before the Bankruptcy Court. Nowhere in either the oral argument before the Bankruptcy Court nor in the motion papers presented to the Bankruptcy Court is the term estoppel even used.
That was sufficient. See Fed. R. Evid. 103(a)(2) ; Fortunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir. 1972) (An offer of proof is not "an absolute prerequisite in every appeal"; it is required where "the significance of the excluded evidence is not obvious or where it is not clear what the testimony of the witness would have been or that he was even qualified to give any testimony at all"). III.
See Henry v. Wyeth Pharms., Inc. , 616 F.3d 134, 151-52 (2d Cir. 2010) ("While an offer of proof is not โan absolute prerequisite in every appeal from the exclusion of evidence,โ it is required where, as here, โthe significance of the excluded evidence is not obvious or where it is not clear what the [excluded evidence] would have been.โ ") (quoting Fortunato v. Ford Motor Co. , 464 F.2d 962, 967 (2d Cir. 1972) ). The jury heard testimony that the purchase price of the 2012 counterfeit Omega was $80 and that the price of the closest real Omega watch would be about $5,000, which provides perhaps the best evidence of actual loss.
In some circumstances, evidence of other accidents or injuries may be used to show the risk that a defendant's conduct created or that a defendant knew or should have known about a danger. See, e.g., Fortunato v. Ford Motor Co., 464 F.2d 962, 968 (2d Cir. 1972) ("Competent evidence of accidents similar to [the plaintiff's] on [the accident site] would have been admissible."). Here, the district court concluded that the FRA reports did not provide evidence of accidents substantially similar to Colon's such that they would be relevant for the jury's determination of Plaintiffs' negligence claim.
In order to preserve a claim of error, a party must make an offer of proof as to the content of the excluded evidence where "the significance of the excluded evidence is not obvious" or "it is not clear what the testimony of the witness would have been." Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 151-52 (2d Cir. 2010) (quoting Fortunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir. 1972)); see also Fed. R. Evid. 103(a)(2). For excluded evidence, an offer of proof is sufficient if, at the very least, "a party informs the court of its substance."
While an offer of proof is not "an absolute prerequisite in every appeal from the exclusion of evidence," it is required where, as here, "the significance of the excluded evidence is not obvious or where it is not clear what the testimony of the witness would have been or that he was even qualified to give any testimony at all." Fortunate v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir. 1972). Here, Henry's counsel went so far as to refuse to reveal the content of the proffered testimony, arguing in his Memorandum of Law in Opposition to Defendants' Motion In Limine:
The primary difficulty with application of the physical facts rule to this case is that General Motors' affidavits simply do not establish undisputed physical facts fatal to Harris' products liability claim. See Fortunato v. Ford Motor Co., 464 F.2d 962, 965-66 (2nd Cir. 1972). In support of the motion, General Motors submitted the affidavits of two defense experts.
Simply put, the defendants refused to put Sonesen on the stand for their own reasons, and yet want us to accept at face value representations not made under oath, not subject to cross-examination, and in fact inconsistent with prior testimony made under oath. See, e.g., Fortunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972) (stating that appellate court will not "permit a party to allege on appeal what it failed to claim to the trial court," since that "would allow a party to obtain a new trial simply on its claim that it would have proven a certain fact or facts had it been given a chance"); Moss v. Hornig, 314 F.2d 89, 93 (2d Cir. 1963) (holding that an appellate court cannot be expected to reverse where there was no offer of proof, and "where the significance of the evidence sought to be introduced is not obvious"); Marrone v. United States, 355 F.2d 238, 241 (2d Cir. 1966) (holding that the failure to make an offer of proof to demonstrate the significance of excluded testimony "must be held to be fatal," even where persuasive authority indicated that the district court should have allowed the testimony). The second witness proffered by the defense was the former co-chair of the Pan Am Security Task Force, Richard Cozzi.
Whether errors had a significant prejudicial influence on the jury in a particular case admittedly is a fine question of judgment in which precedents give little guidance, for what may be harmless in a case where the evidence strongly favors one party may be fatally prejudicial in a close case. Fortunato v. Ford Motor Co., 464 F.2d 962, 976 (2d Cir.) (Mansfield, J., concurring and dissenting), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972). In appraising prejudicial remarks and conduct such as involved here, the court must consider "the climate of the contest in which it occurred."