Chapter 14 Motions in Limine in New York Products Liability Litigation

• Jurisdiction: New York

CHAPTER FOURTEEN MOTIONS IN LIMINE IN NEW YORK PRODUCTS LIABILITY LITIGATION Loren H. Brown, Esq.
Christopher G. Campbell, Esq.
Jennifer A. Fuerch, Esq.

I. OVERVIEW

Used effectively, the motion in limine can be one of the most powerful weapons in any trial lawyer’s arsenal. This is especially true with respect to the products liability trial lawyer who must, on a recurring basis, confront different types of evidence which, if admitted at trial, will undoubtedly evoke prejudice, emotion and sympathy from a jury, thereby affecting the jury’s ability to fairly and impartially decide whether the product is defective. The best way to avoid these potential problems is to fight hard to prevent the introduction of such evidence or, at least, to limit its impact by eliminating the most objectionable portions or characteristics

Indeed, the motion in limine commands a sweeping power. It applies to statements, physical evidence, arguments, questions and, in fact, anything that implies the existence of the prohibited evidence. Moreover, the prohibition remains in effect during the entire trial—from voir dire to closing arguments. The motion does not merely bar the specified piece of prejudicial evidence; it prohibits all effects of that evidence. Thus, not only does the motion in limine shelter the trial lawyer from the adversary’s prejudicial rhetoric, but it also prevents costly delays and the cluttering of the court record with irrelevant or prejudicial matters ²⁵⁵⁹

While these are the primary purposes of a motion in limine, they are not the only ones. Effective use of this motion can serve several other strategic objectives at trial, as well as create advantageous settlement opportunities. Geared toward both the new and the more seasoned products liability litigator, this chapter describes the general principles governing motions in limine in the state and federal courts in New York, and applies them to specific evidentiary issues that arise in products liability lawsuits

A. Motion in Limine Defined

The New York courts have described a motion in limine simply as a motion that is made to limit the scope of evidence to be adduced at trial ²⁵⁶⁰ Black’s Law Dictionary defines motion in limine as a “pretrial motion requesting court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to moving party that curative instructions cannot prevent predispositional effect on jury.” ²⁵⁶¹ Commentators have opined that a motion in limine is the functional equivalent of a motion to exclude in a criminal case—the basic difference being that a motion to suppress is not based on the rules of evidence but upon a defendant’s constitutional rights. ²⁵⁶²

B. Form of Relief

There are two kinds of motions in limine: the prohibitive motion and the permissive motion. The prohibitive motion seeks an order to preclude the opponent from offering or referring to the subject information in the presence of the jury. While the prohibitive motion is made to exclude certain evidence, the permissive motion, in contrast, is made in an effort to admit certain evidence. In other words, the permissive motion is used to get a court declaration that the proposed evidence is neither prejudicial nor irrelevant and is, therefore, admissible.

Of the prohibitive motions in limine, there are two forms: the absolute form and the preliminary form. The absolute form permanently and irrevocably prohibits a party from offering or referring to the specified evidence at any time during the trial. The preliminary form allows for the possibility that the judge will reconsider the matter during trial.

II. SCOPE AND PURPOSE

A. Advantages

1. Practical Benefits

Perhaps the most recognized practical benefit of a motion in limine is in obtaining an evidentiary ruling outside the presence of the jury, thereby avoiding the prejudicial impact that would occur if the opponent attempts to offer the same evidence in the midst of trial. ²⁵⁶³ For example, even if the litigant successfully objects to the evidence during trial and the objection is sustained, the prejudicial effect remains in the minds of the jurors—especially where the judge instructs the jurors to disregard the evidence, both at the time of the objection and when the jury instructions are given. ²⁵⁶⁴ Even worse, perhaps, the jury may believe that the opponent of the evidence has something to conceal. ²⁵⁶⁵ The in limine ruling eliminates this dilemma.

There are many other recognized practical benefits of an in limine ruling. Specifically, such a ruling (1) allows more certainty and predictability with respect to trial strategy; (2) saves the unnecessary expense of calling certain witnesses at trial or preparing certain rebuttal; (3) averts the introduction at trial of matters that are irrelevant, inadmissible and prejudicial; (4) makes the trial fairer for the parties by avoiding the need to depend on jurors to disregard evidence that they have heard; (5) allows for briefing and argument, which gives the judge more time to consider the particular issue and the authority on which to base a decision (doing so outside the “heat of battle” reduces appeals and promotes judicial economy); ²⁵⁶⁶ (6) eliminates unnecessary trial interruptions; (7) narrows the evidentiary issues; and (8) serves as an added procedural step before sensitive evidence can be admitted.

2. Tactical Benefits

A motion in limine also offers several recognized tactical benefits. The motion can be used to (1) discover the opposing party’s trial strategy and evidence, (2) sensitize the trial judge to the law on difficult legal issues, (3) preserve and clarify the record on appeal, (4) facilitate settlement discussions by obtaining an advisory ruling on questionable evidence, and (5) learn in advance of an actual offer of proof how the court is likely to rule. ²⁵⁶⁷

The court’s refusal to rule in favor of the movant does not mean that the foregoing tactical advantages have not been achieved. As stated above, the legal issues that perhaps would not be briefed or argued in the “heat of battle” can be presented more clearly to the court in the motion, so that when the matter does arise at trial, the court will be better informed and more likely to understand the movant’s position. ²⁵⁶⁸ Additionally, where a “permissive” motion is denied, the movant then has an opportunity to amend or alter the offer of proof to meet the concerns or objections raised when the motion was heard and denied. ²⁵⁶⁹

B. Disadvantages

While there are some recognized disadvantages to filing such a motion, they are usually outweighed by the aforementioned benefits. Nonetheless, the following disadvantages have been cited: (1) It is difficult to make a proper ruling outside the context of a trial without full knowledge of the facts; (2) it alerts the opposition in advance of the attempted proffer; (3) the effort may be wasted time, since the issue may never in fact arise at trial; and (4) with respect to a “permissive” motion, it may demonstrate uncertainty and provoke an objection that might not otherwise have been asserted at trial. ²⁵⁷⁰

C. New York State Authority

In New York, the rules of evidence are based on common law. Similarly, and as in virtually every other state, the power to admit or exclude evidence in New York is not found in any specific procedural rule but instead arises out of the inherent authority of a trial court to manage the cases before it, including the admission or exclusion of evidence. ²⁵⁷¹ In determining the admissibility of evidence, the court has the power to decide when and how the evidence is admissible (i.e., during trial or pretrial; with or without a hearing). ²⁵⁷² Thus, implicit in the court’s power to determine if, when and how evidence will be received is the authority of the court to entertain motions in limine. ²⁵⁷³

While no explicit authority exists in the Civil Practice Law and Rules, various provisions appear at least to support the court’s implied authority to decide such motions. For example, N.Y. Civil Practice Law and Rules 4011 (CPLR) provides that “[t]he court may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue.” Additionally, § 202.26(c) of the Uniform Civil Rules for the Supreme Court and County Court permits the court to consider at the pretrial conference “any other matters deemed relevant.” ²⁵⁷⁴ Finally, objections to evidence are governed by CPLR 4017, which provides that “[a]t the time a ruling or order of the court is requested or made a party shall make known . . . his objection to the action of the court.” Because CPLR 4017 is silent as to when such an objection or ruling should be made, and the other sections cited above do not indicate the sequence or manner in which relevant trial issues will be handled, the statute appears to provide judges with ample flexibility to entertain and decide motions in limine. ²⁵⁷⁵

D. Federal Authority

While the practice and procedure of motions in limine in federal court also arise out of the inherent authority of a trial court to manage the cases before it, like New York, support for the federal court’s authority is found in various statutory rules, including Rule 16 of the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence 403, 103(c), 104(c) and 611(a) (FRE). Rule 16(c)(3) of the FRCP provides that “[a]t any conference, the court may consider and take appropriate action on the following matters . . . ruling in advance on the admissibility of evidence.” Additionally, FRE 103(c) requires that “[i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or

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