A Sample Motion in Limine: Plaintiff's Version

As promised, here is a sample motion in limine for a plaintiff. It's from a case in which the Plaintiff alleged that the Defendant's negligence caused a permanent shoulder injury. Even though motions in limine tend to be very case specific, parts of the motion would be applicable to any case.

PLAINTIFF’S MOTION IN LIMINE

COMES NOW Plaintiff, by his attorneys, and requests this Court to enter an Order in Limine, to prevent any mention in opening statement, questioning of witnesses, closing argument or in any other way before the jury, of the following matters:

1. Any reference to the fact that Plaintiff made an objection to interrogatories or document requests, or asserted a claim of privilege, during the pretrial phase of this case.

2. Any speculation or argument about the substance of the testimony of any witness who is absent or
unavailable, or whom Plaintiff did not call to testify.

3. Any reference to the fact that Plaintiff failed to call any witness equally available to all parties in the case. Kersey v. Rush Trucking, Inc., 800 N.E.2d 847, 279 Ill. Dec. 559 (2d Dist. 2003).

4. Any reference to the existence or filing of this Motion in Limine, or to the fact that Plaintiff has sought to exclude evidence, or to any ruling on the Motion in Limine by the Court.

Relating to Damages

5. Any reference to the receipt by Plaintiff, or his entitlement to receive, benefits of any kind from a collateral source, including the following: health or life insurance coverage; unemployment benefits; government benefits such as Social Security, Medicaid, Medicare, other benefits; workers’ compensation benefits; free medical services; “comp time”; or any other benefits.

6. Any reference to the fact that a portion of Plaintiff’s cause of action may be a subrogation claim owned by an insurance company.

7. Any reference that a recovery from this action may or may not be subject to federal income tax or any other tax.

8. Any reference to the fact that the individual Defendant will have to personally pay any judgment entered in this case.

9. Any reference to any unrelated prior or subsequent claims, suits or settlements, and their amount.

10. Any reference to the time or circumstance under which Plaintiff employed a lawyer, or that a motive, purpose or result of this lawsuit is or will be to compensate Plaintiff’s lawyers.

11. Any reference to the effect or results of a claim, suit or judgment upon the insurance rates, premiums or charges, either generally or as particularly applied to the party or employer in this case, as a result of this or any other matter.

Relating to Liability

12. Any suggestion or evidence or argument that Plaintiff caused or contributed to the collision of YYYY, because Defendants did not plead defenses or affirmative defenses raising the issue of Plaintiff’s alleged negligence. Carlisle v. Harp, 200 Ill. App. 3d 908, 558 N.E.2d 318, 146 Ill. Dec. 355 (5th Dist. 1990).

Relating to Injury and Causation

13. Any references to the fact that the frame of Plaintiff’s vehicle was not bent after the crash, as such evidence is arguably relevant only to an argument that Plaintiff’s shoulder injury was not caused in the collision of YYYY, and there is no expert testimony linking these two issues. Dicosola v. Bowman, 794 N.E.2d 875, 276 Ill. Dec. 625 (1st Dist. 2003).

14. Any reference to any pre-existing shoulder problems, both because (a) such evidence would be irrelevant; (b) there is no such evidence in the case; and (c) there is no expert testimony to relate any pre-existing shoulder problems with Plaintiff’s current problems.

15. Any reference to any pre-existing back or neck problems, because there is no expert testimony to relate any pre-existing back or neck problems with Plaintiff’s current problems, and because such evidence would be irrelevant.

16. Any reference, inference or suggestion that Plaintiff could have developed frozen shoulder from any medical condition about which there is no evidence that he has been diagnosed with such condition, or reference to any medical condition in which there is no expert testimony that the condition might cause frozen shoulder, including:

(a) Obesity;

(b) Kidney stones;

(c) Arthritis;

(d) a Type II acromion;

(e) Degenerative changes to the AC joint; or

(f) Back problems or problems with legs or “thoracic region.”

17. Any reference to or argument that plaintiff’s shoulder condition was caused by his heart bypass surgery, because such evidence is irrelevant, and further because: (a) there is no expert medical evidence of this (Defendants’ expert XXXX having testified the shoulder condition is idiopathic, which means he does not know the cause); (b) any testimony by Defendants’ expert XXXXon this issue would be unreliable, given his failure to consider all the medical records between YYY (the date of the crash) and the date of Plaintiff’s heart bypass surgery; (c) any testimony by Defendants’ expert XXXX on this issue would also be unreliable because he admitted that he did not understand records in the chiropractor’s chart concerning shoulder range of motion tests.

18. Any reference to or argument that about Plaintiff’s mild diabetes, or reference to diabetes as making Plaintiff more susceptible to developing a shoulder injury with trauma, because such evidence is not relevant, and further because:

(a) this is evidence of pre-existing injury, and the Illinois Supreme Court has held that “a tortfeasor is liable for the injuries he causes, even though the injuries consist of the aggravation of a pre-existing condition.” Balestri v. Terminal Freight Cooperative Association, 394 N.E.2d 391, 76 Ill. 2d 451, 31 Ill. Dec. 189 (1979). In Balestri, the Illinois Supreme Court stated that damages are not reduced because the disability is “due in part to a preexisting condition or for the reason that plaintiff, because of a preexisting condition, was more susceptible to injury than an individual would have been without the preexisting condition.” Such evidence is therefore irrelevant;

(b) the only competent expert medical testimony by in this case is that diabetes might make a person more susceptible to developing frozen shoulder, but did not cause the shoulder injury in this case;

(c) the Defendants’ medical expert did not testify that Plaintiffs’ diabetes caused the shoulder injury, but that the shoulder condition is idiopathic, which means he does not know the cause and can only rule out certain causes such as the car wreck;

(d) any testimony by Defendants’ expert that Plaintiff’s frozen shoulder was caused by diabetes is unreliable, given his failure to consider all the medical records; and,

(e) any testimony by Defendants’ expert XXXX on this issue would also be unreliable because he admitted that he did not understand records in the chiropractor’s chart concerning shoulder range of motion tests.

19. Any reference to a supposed fall in a hardware store, because there is no competent evidence that this supposed fall involved Plaintiff’s shoulder, and there is no expert testimony connecting this supposed fall to Plaintiff’s shoulder injury.

20. Any reference to reports of pain in other parts of the body other than the shoulder, because such are irrelevant to any issue in the case.

21. Any reference to the fact that Plaintiff was overtreated or received unnecessary treatment or was negligent in the way he sought treatment because such evidence would be irrelevant, see Pullman Palace Car Co. v. Bluhm, 109 Ill. (1884); Chicago City Railway Co. v. Saxby, 213 Ill. 274, 72 N.E.2d 755 (1904), Restatement (Second) of Torts, p. 457 and Illustration 1; and because there is no expert testimony on these issues.

22. Evidence that he is negligent for not having sought surgery yet, since there is no duty to undergo surgery in order to mitigate damages. Hall v. Dumitru, 250 Ill. App. 3d 759, 620 N.E.2d 668, 189 Ill. Dec. 700 (5th Dist. 1993).

23. Argument in closing statement that “plaintiff has asked for a greater amount of money than he actually expects to be awarded.” Kallas v. Lee, 22 Ill. App. 3d 496, 317 N.E.2d 704 (1st Dist. 1974).

Comments

[David E. Ortman]

RE: Motions in Limine

In Washington state, a MiL is suppose to it describes the evidence objected to with sufficient specificity to enable the trial court to determine that it is clearly inadmissible and the trial court is given a memorandum of authorities showing that the evidence is inadmissible.

How does Illinois get by with just submitting a general list of vague objections to evidence that might or might not be offered?

Perspiring minds want to know.
The granting or denial of a motion in limine is within the discretion of the trial court, subject only to review for abuse. Gammon v. Clark Equip. Co., 38 Wn.App. 274, 286, 686 P.2d 1102 (1984), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985); Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 91, 549 P.2d 483 (1976). The motion should be granted if (1) it describes the evidence objected to with sufficient specificity to enable the trial court to determine that it is clearly inadmissible; (2) the evidence is so prejudicial that the movant should be spared the necessity of calling attention to it by objecting when it is offered; and (3) the trial court is given a memorandum of authorities showing that the evidence is inadmissible. Gammon, 38 Wn.App. at 286-87, 686 P.2d 1102.

State v. Cole, 74 Wn. App. 571, 577, 874 P.2d 878 (1994) (overruled on other grounds)

[Evan]

David: Only the motion is included in the post. In Illinois, you'd normally file a memorandum in support of the motion as well. In addition to this, the motion would be argued on the record before trial. At the motion hearing, you'd try to do what you do in Washington, i.e., "describe the evidence objected to with sufficient specificity to enable the trial court to determine that it is clearly inadmissible."

[David E. Ortman]

Thanks and great website, by the way.

In Washington, to take the court literally, it is the motion that must describe the evidence with sufficient specificity, not the memorandum on the motion. Perhaps, each state does this a bit differently. Any help from the FRCP?

"motion should be granted if (1) it describes the evidence objected to with sufficient specificity to enable the trial court to determine that it is clearly inadmissible;"