Ever had a big defense firm drop a huge “motion in limine” on your foot the day before trial? If you’re a plaintiffs’ lawyer, sure you have. I’m talking about the kind of motion which, if granted, would bar an expert essential to your case.
While most of us were getting ready for New Year’s Eve, the Appellate Division of New Jersey’s Superior Court, our state’s intermediate appellate court, issued an opinion, approved for publication, taking a very, very dim view of this practice.
The three-judge panel in Cho v. Trinitas Regional Medical Center, A-5923-13T2 (App. Div. Dec. 30, 2015) first explained what a motion in limine WAS:
“The term ‘in limine’ is taken from the Latin phrase, ‘at the outset.’ Black’s Law Dictionary 791 (9th ed. 2009). The absence of any rule addressing what may properly be considered as a preliminary matter before trial commences has permitted the timing of the motion, rather than its subject matter, to pass for a definition. However, whether a motion is correctly termed a motion in limine is not dictated by the fact it is brought literally on the threshold of trial. Black’s defines a motion in limine as ‘[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.’ Id. at 1109. Thus, it is anticipated that, as a general rule, a motion in limine will not have a dispositive impact on a litigant’s entire case.”
Cho v. Trinitas Regional Medical Center, A-5923-13T2, slip op. at 11-12.
Clearly exasperated with widespread abuse of in limine practice, the Cho panel then also clarified what a motion in limine was NOT:
“The fact that this misuse of the motion in limine occurs sufficiently often to win our notice, despite our repeated cautions against such practice, leads us to conclude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff’s case or the suppression of a defendant’s defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions.”
Cho v. Trinitas Regional Medical Center, A-5923-13T2, slip op. at 13.
In 1986, the Rules Governing the Courts of the State of New Jersey were amended to require that summary judgment motions be brought no later than thirty days before the scheduled trial date, unless otherwise permitted by the court upon a showing of good cause. R. 4:46-1. Unfortunately, this rule was often ignored or circumvented by the expedient of a “motion in limine.”
The importance of Cho, in my view, lies in the Court’s willingness to go beyond mere reliance upon the Rules of Court. Instead, Chostressed that when a party sandbags an adversary with a potentially dispositive “motion in limine” on the eve of trial, due process concerns are implicated. The Cho Court reduced the concept to its simplest terms: “Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner.” Cho v. Trinitas Regional Medical Center, A-5923-13T2, slip op. at 16 (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). Further, under the rationale of Cho, a “harmless error” argument should not succeed. That is to say, a party filing an improper “motion in limine” cannot be heard to argue that the adverse party’s claims, ultimately lack merit. The Cho opinion stressed that “[t]he right to due process of law is not limited to worthy causes.” Cho v. Trinitas Regional Medical Center, A-5923-13T2, slip op. at 19. The important point is that, if faced with a late-filed “motion in limine,” counsel should forcefully object to the trial court even considering the application because he or she has not been given a “meaningful” time or manner to prepare and be heard.
New Jersey does not have a motion in limine practice defined in its Rules of Court. Certainly, there will be times when and topics about which such motions are appropriate. Cho did not slam the door entirely upon late motions either.
“‘Due process is not a fixed concept . . . but a flexible one that depends on the particular circumstances.’ Therefore, we do not hold that the summary judgment rules establish rigid requirements that must be met in every case for due process demands to be satisfied. Still, the time requirements for the filing and decision of summary judgment motions provide a useful background for assessing whether plaintiffs had an opportunity to be heard at a meaningful time and in a meaningful manner.”
Cho v. Trinitas Regional Medical Center, A-5923-13T2, slip op. at 17 (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)).
In the end, it is hoped that this published decision imbues trial judges with the wherewithal to put an end to the abuse of the “motion in limine” practice which is all too common in the courts of New Jersey.
|If you’ve ever had a “Motion in Limine” dropped on your foot on the eve of trial, read the recent|
New Jersey Appellate Division opinion in Cho v. Trintas regional Medical Center