Preserving Pretrial Issues for Appeal
By Ashley M. Felton – July 9, 2013
Before 2000, the federal courts diverged on whether a pretrial motion required renewal during trial to preserve the issue for appeal. Some courts required a renewal at the time the evidence was offered at trial despite the fact that the issue of admissibility was previously ruled on in limine. Other courts did not require an objection or renewal during trial so long as the trial court judge had previously ruled on the issue. In response to the differing views held by the federal courts, Federal Rule of Evidence Rule 103(a) was amended in 2000 to provide that once a court has made a definitive ruling admitting or excluding evidence, either at or before trial, it is not necessary to renew an objection to preserve a claim for appeal. Fed. R. Evid. 103(a) advisory committee’s note. Theoretically, Rule 103(a) should have cleared the murky water concerning when an objection was required during trial to preserve an issue for appeal. Instead, the federal courts have been grappling with the definition of a “definitive ruling” in the context of Rule 103(a), which has led to uncertainty for litigants throughout the country. However, a survey of several federal court rulings interpreting Rule 103(a) post-amendment provides guidance and identifies a host of hazards to sidestep when dealing with the issue of preserving issues for appeal following a pretrial ruling. In practice, this has led to four areas of which litigants should be aware: (1) tentative or conditional rulings, (2) the scope of the ruling, (3) rulings made without prejudice, and (4) a court’s willingness to reconsider. This article explores various courts’ rulings in such circumstances.
Tentative or Conditional Rulings
The Seventh Circuit issued an instructive opinion on this issue in Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999), while the amendment to Rule 103(a) was making its way through the legislature. Accordingly, at the time the Seventh Circuit heard the appeal in Wilson, it was left to formulate its own approach rather than decide whether the pending amendment was the best solution.
Wilson involved a claim under 42 U.S.C. § 1983 brought by a prisoner after detention for a felony-murder charge involving the murder of two Chicago police officers. Id. at 563–65. The prisoner alleged that he was beaten while in custody prior to his conviction. Id. at 564. Before Mr. Wilson’s §1983 civil suit went to trial, he argued in limine that his conviction for killing a police officer should be excluded from trial and his criminal history used for impeachment purposes only. The court denied the motion in limine, and based on this denial, Mr. Wilson’s lawyer did not object to the use of such information during trial. Id. at 565. Surprisingly, the appeals court held that the issue of Mr. Wilson’s criminal history was waived because his lawyer did not object to the use of this evidence during trial. In affirming the lower court’s decision, the Seventh Circuit set forth a framework that is helpful in any circuit court.
The Seventh Circuit advised that a litigant must be cognizant of the nature of the trial judge’s decision, for example, whether the ruling was tentative or contingent on the showing of a certain condition during trial. The court offered several illustrations of such rulings. For example, a conditional ruling can encompass a judge’s statement that, if a litigant testifies, then the adverse party will be entitled to cross-examine in a particular manner. Until the condition has been satisfied by the testimony, the ruling has no effect.
Similarly, if the judge’s pretrial ruling is tentative—if, for example, the judge says that certain evidence will be admitted unless it would be unduly prejudicial given the way the trial develops—then later events may lead to reconsideration, and the litigant adversely affected by the ruling must raise the subject later so that the judge may decide whether intervening events affect the ruling. An appeal in such a case without an objection at trial would bushwhack both the judge and the opponent.
Id. at 565–66.
In contrast, the court stated, definitive rulings do not invite reconsideration. When a judge makes a decision that does not depend on how the trial proceeds, objections made during trial are unnecessary and serve only to slow down trial. Id. at 566. Rather, a judge “who rules definitively before trial sends the message that the right time has come and gone. On the contrary, making objections during trial will only alert the jury to the very issues that should be concealed.” Id. In sum, until a conditional or tentative decision has been made definitive, it is subject to reconsideration and a litigant must preserve his or her position at trial. But if a ruling is definitive and there are no conditions that must be met at trial in order for the pretrial ruling to take effect, an objection is not necessary to preserve the issue for appeal.
The Eleventh Circuit similarly highlighted the importance of keeping an eye out for tentative or conditional rulings made by trial judges. The plaintiff and special administrator in Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Florida, 402 F.3d 1092 (11th Cir. 2005), brought a section 1983 suit against the sheriff after Daniel Tessier committed suicide while incarcerated. The sheriff moved in limine to bar the expert witness testimony of Dr. Maris as well as references to other suicides at the same prison. The district court found the occurrence of additional suicides at the facility irrelevant to the plaintiff’s claims and granted the sheriff’s motion. Id. at 1104. With regard to the expert’s testimony, the court “tentatively” granted the sheriff’s motion in limine excluding Dr. Maris’s testimony, “providing further that Plaintiffs may attempt to reintroduce expert testimony at trial once they have established other evidence tending to show deliberate indifference on the part of Defendant.” Id. at 1109 n.6 (internal quotations omitted). Upon review of the record, the Eleventh Circuit found that the plaintiff never attempted to reintroduce Dr. Maris’s testimony even though the district court judge explicitly gave the plaintiff the opportunity to do so. Moreover, the court stated that “[a]lthough this Circuit has not squarely addressed the issue, when a trial court rules in limine tentatively to exclude evidence, most courts require that the party seeking admission of the evidence offer the evidence again at trial in order to preserve the issue for appeal.” Id. The Eleventh Circuit noted that several circuits have addressed this issue and held that when a “district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial.” The appellate court upheld the lower court’s exclusion of Dr. Maris’s testimony on other grounds.
Beware of the Scope of the Trial Judge’s Ruling
The Ninth Circuit has illustrated the importance of being cognizant of the scope of the trial judge’s ruling. In Elsayed Mukhatar v. California State University, 299 F.3d 1053 (9th Cir. 2002), the plaintiff, a university teacher, brought an employment discrimination action under Title VII of the Civil Rights Act of 1964 against his employer. During trial, he presented an expert witness who testified that race was a factor in the employer’s decision to deny the plaintiff tenure. The defendant made explicit objections to the expert’s testimony in its motion in limine, which the district court denied. The district court ruled that the expert witness’s testimony was admissible on the subject of whether race was a factor in denying the plaintiff tenure; however, the expert was not allowed to offer a legal conclusion. Id. at 1062–63. Because the expert witness’s testimony stayed within the parameters of the judge’s pretrial ruling, the appellate court ruled that no additional objection was necessary. Id. at 1063. This case underscores the importance of paying close attention to exactly what the trial judge ruled and ensuring that the evidence being offered strictly complies with that ruling.
Without Prejudice to Renew at Trial
Another nuance that one needs to be alert to is a ruling that may seem definitive in nature but is issued with language indicating that the ruling was made without prejudice of renewal at trial. In United States v. Funaro, 222 F.R.D. 41 (D. Conn. 2004), a pharmacist was convicted of illegally selling controlled substances in violation of a federal statute. After he was convicted on all counts, he filed a motion to set aside the jury verdict and/or grant a new trial on several grounds, one of which included the admission of the past medical practices of his company. Prior to trial, the defendant filed several motions in limine to bar evidence regarding the medical practices of his company, Massie, as well as the conduct of his patients. The trial judge ultimately denied the defendant’s motion but did so “without prejudice to renewing them at trial.” Id. at 45 (emphasis added). During trial, the defendant neither renewed his motions in limine on these topics nor objected to the admission of this evidence. Accordingly, the appellate court upheld his conviction as well as the trial court’s order excluding the evidence. Thus, although the judge’s ruling in Funaro was not based on any condition being satisfied during trial, the “without prejudice” language was apparently interpreted by the appellate court to mean that the objections must be renewed at trial or they are deemed waived.
Willingness to Reconsider
Litigants must also be mindful of the court’s willingness to reconsider its pretrial ruling during trial. In Olson v. Ford Motor Company, 481 F.3d 619 (8th Cir. 2007), the plaintiff brought a product liability suit against a vehicle manufacturer after her husband died as a result of an automobile accident. The plaintiff alleged that the accident was caused by a defect in the power-braking system. The jury returned a verdict finding Ford 50 percent liable and the decedent 50 percent liable as there was also evidence of alcohol consumption. Id. at 621. The plaintiff argued on appeal that the trial court erred in ruling on the admissibility of certain pieces of evidence, including the testimony of plaintiff’s expert Dr. Donelson. Id. at 626–30. In response, Ford maintained that the plaintiff waived these arguments because she did not object during trial. The appellate court disagreed with Ford and found “that the district court made a definitive pretrial ruling on the overall admissibility of Dr. Donelson’s testimony, and the district court gave no indication that it was willing to reconsider its decision.” Id. at 629 n.7.
Although the legislature intended to put an end to the circuit split with the enactment of the 2000 amendment to Federal Rule of Evidence 103(a), it most certainly did not. On the contrary, the legislature actually created more confusion and uncertainty for litigants in federal court. The one lesson that can be gleaned from a review of pertinent case law is that a litigant must be conscious of the type of ruling issued by a trial court relative to a motion in limine. If the trial court makes any indication that the ruling is conditional or that it may reconsider its decision in light of the facts presented at trial, an objection should be made so as to preserve the issue for appeal.
The definition of “definitive ruling” will never be set in stone and will always be open for interpretation. The best guidance oddly comes from a pre-2000 amendment case in the Tenth Circuit, United States v. Mejia-Alacorn, 995 F.2d 982, 988 (10th Cir. 1993):
Under the best of circumstances, counsel must exercise caution in relying exclusively upon rulings made in connection with pretrial motions in limine as the basis for preserving claims of error in the admission and exclusion of evidence. Prudent counsel will renew objections at trial. . . . Indeed, most objections will prove to be dependent on trial context and will be determined to be waived if not renewed at trial.
Keywords: litigation, trial practice, admission of evidence, exclusion of evidence, final ruling, motion in limine, objection, without prejudice
Ashley M. Felton is an associate at Segal McCambridge Singer & Mahoney in Chicago, Illinois.