September 29, 2020 Articles

Know Your Risks: Limiting or Eliminating Damages Through In Limine Requests

Understand how your court treats the intersection of summary judgment motions and motions in limine.

By Anastasia L. McCusker and Daniel J. Zeller

Reminiscent of the characters in Ocean’s Eleven, though perhaps not as entertaining, motions in limine are multifarious filings that usually seek pretrial evidentiary rulings. Sometimes in limine requests go too far and are viewed as improperly usurping the role of dispositive motions. When it comes to limiting or eliminating damages through an in limine request, know your risks.

Motions In Limine: A Vehicle for Evidentiary Rulings in Advance of Trial

In limine is Latin for “at the outset” or “at the start.” Motions in limine are commonplace in federal (and state) civil litigation and are generally filed prior to the commencement of a trial. Depending on local practice and the presiding judge, the governing schedule order may provide parties with dates by which motions in limine are to be filed and a hearing date for those motions. There is no explicit rule under the Federal Rules of Evidence or the Federal Rules of Civil Procedure that authorize in limine rulings. Rather, motions in limine and the courts’ resolution of those motions prior to trial have developed under the courts’ inherent authority to manage trials and dockets. Because this practice stems from the courts’ inherent management authority, motions in limine could be submitted far in advance of trial (such as with a summary judgment motion) or during the trial.

Generally speaking, in limine motions are used as vehicles for litigants to obtain pretrial rulings on evidentiary and related matters, such as the admissibility of particular evidence, burdens of proof, the exclusion of witness testimony (including expert testimony), evidentiary exclusions consistent with a prior summary judgment ruling, and excluding witnesses from the courtroom during certain times. Motions in limine can run the gamut from simple to complex. Some purposes of deciding such issues in limine are to provide certainty prior to the trial as well as to avoid interrupting the trial with argument on matters that could have been definitively addressed beforehand. In addition, a motion in limine and the corresponding ruling may provide a cleaner record on appeal. The outcome of a motion in limine can be an order excluding the introduction of evidence, limiting the use of evidence, permitting the use of evidence, or providing that the evidentiary issue will be handled through objections at trial so that the court can consider the arguments, evidence, and objections in context.

Some federal courts require a showing that evidence is clearly inadmissible on all potential grounds in order to grant a request to exclude that evidence in limine. Some federal courts view in limine rulings as preliminary decisions that can be changed in the sound discretion of the trial judge as the case unfolds; for example, if the actual testimony or presentation of evidence differs from what was proffered in connection with the in limine request. See United States v. Connelly, 874 F.2d 412 (7th Cir. 1989) (citing Luce v. United States, 469 U.S. 38 (1984)).

Trying to Chip Away at Damages Through In Limine Rulings

In limine motions have the capability to affect substantively the elements of parties’ claims and defenses, including limiting or eliminating damage claims. For instance, if a damage claim requires expert testimony and that expert testimony is precluded before trial, that damage claim is out. In the nonexpert context, litigants (oftentimes defendants) have used a variety of in limine motions to obtain a pretrial ruling that effectively reduces or eliminates damage claims by requesting that the court limit or exclude the evidence that can be offered in support of that claimed damage or make a legal determination that renders evidence in support of a damage claim irrelevant. These in limine motions can request, among other things, a cap on damages, a ruling that a party is not entitled to present evidence as to a category of damages, a ruling that a party’s evidence in support of a damage claim is too speculative to be submitted to the trier of fact, and a ruling limiting the evidence of certain damages based on a prior summary judgment ruling.

It is easy to see how these types of in limine requests can blur the lines between a pretrial evidentiary ruling and a substantive ruling on the merits of the claims and defenses—something more expected in a summary judgment motion or a motion for judgment on the pleadings. But the Federal Rules of Evidence, in some ways, invite this. Under Federal Rule of Evidence 402, evidence must be relevant to be admissible. Federal Rule of Evidence 401 defines evidence as relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” One could argue that a category of damages is legally unavailable (or is capped by applicable law) and, by extension, evidence under that theory of damages is irrelevant and inadmissible. To make this determination, the court would have to address the underlying legal argument as to the unavailability or limitation on the category of damages.

If I Could Turn Back Time . . . to Summary Judgment

When it comes to reducing or excluding damage claims, an in limine motion may start to look like a disguised summary judgment or other dispositive motion because it raises non-evidentiary matters. Depending on the jurisdiction, a litigant may wish he or she could turn back time to summary judgment after presenting a court with an in limine request that effectively reduces or eliminates a damage claim.

Some federal courts have reasoned that civil litigants should not be allowed to raise non-evidentiary matters in motions in limine at all because, among other things, doing so deprives the opposing party of the procedural protections that come with summary judgment or other dispositive motions practice, like a motion for judgment on the pleadings. See Louzon v. Ford Motor Co., 718 F.3d 556, 560–64 (6th Cir. 2013) (gathering cases); Clark Distribution Sys., Inc. v. ALG Direct, Inc., No. 1:10-CV-2575, 2014 U.S. Dist. LEXIS 127221, at *1 (M.D. Pa. Sept. 11, 2014) (denying without prejudice motion in limine that sought to limit or preclude plaintiff from presenting evidence regarding a certain damage claim because a ruling on the sufficiency of the evidence presented in support of the damage claim was inappropriate at the in limine stage). However, such non-evidentiary matters must be addressed at some point absent a finding of waiver for failure to assert the claim as part of a dispositive motion. In such case, that non-evidentiary issue may then be decided after evidence has already been submitted to the jury.

Other courts may automatically treat a motion in limine that seeks to limit damages as a motion for partial summary judgment. See Fed. Ins. Co. v. Mertz, No. 12-CV-1597-NSR-JCM, 2016 U.S. Dist. LEXIS 51598, at *1 (S.D.N.Y. Apr. 18, 2016). However, it is unclear if this rule applies when a scheduling order provides a defined time for summary judgment motions practice, well in advance of trial. Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be modified only for good cause and with the judge’s consent. Finally, other courts may rule on such requests as part of an in limine motion without issue. A court’s view likely will depend on the context, the specific request, and the nature of the underlying litigation.

Hedging Your Bets at the Onset

Rare is the lawyer who claims that he or she can foresee the course of civil litigation from complaint to last appeal. Sometimes litigants may strategically hold back on summary judgment to limit or eliminate a damage claim in hopes of accomplishing the same goal through a motion in limine. As the path to trial never runs smoothly, it is possible that a damage matter arises after the allotted time for summary judgment has passed and that matter overlaps with an evidentiary matter proper for an in limine request. In other instances, and given the ability for commonality to exist, a damages-related issue may be appropriate for resolution on an in limine motion despite the presence of non-evidentiary matters or the substantive effect.

To hedge your bets at the onset of a case, consider working into a scheduling order a provision about motions in limine that takes into account the possibility that a motion in limine will be considered a partial motion for summary judgment. If a court or the other party is not willing to agree to such a provision, remember to do your due diligence on how courts in the jurisdiction treat the intersection of summary judgment and motions in limine. When using in limine motions to limit or eliminate damage claims, know your risks.

Anastasia L. McCusker and Daniel J. Zeller are partners at Shapiro Sher Guinot & Sandler in Baltimore, Maryland.

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