Pre-Trial Motions And Pleadings

Motions In Limine

Most pre-trial motions will be motions in limine. In limine is Latin for "at the outset." These motions are presented to the judge before or during trial. Motions in limine are usually filed to secure a pre-trial ruling to exclude or limit evidence. Such motions are as varied as are tort claims and the conduct of the actors involved. Some of the more common motions in limine are listed below.

a. Collateral Sources

Such a motion is filed to exclude reference to any sources of payment collateral to the tortfeasor. This may include reimbursement for medical bills such as payment by health insurance, medical expense coverage, medicaid, medicare or workers compensation. Acuar v. Letourneau, 260 Va. 180, 189, 531 S.E.2d 316 (2000) (quoting Schickling v. Aspinall, 235 Va. 472, 474, 369 S.E.2d 172 (1988). It also may include reimbursement for loss of income, such as sick leave, vacation pay, and short or long term disability. Va. Code 8.01-35.

b. Prior or Subsequent Accidents or Injuries

Where the plaintiff has the misfortune to be injured before or after the incident which is the subject of the litigation, and where the medical treatment is unrelated or irrelevant to the injuries at issue, counsel should move to exclude any mention of the prior or subsequent injuries. For example, where there exists no evidence that the plaintiff had ongoing complaints or treated with any physician for injuries after his recovery in the prior accident, evidence of a prior accident should be excluded because any probative value is substantially outweighed by danger of unfair prejudice, waste of time, confusion of the issues and needless presentation of misleading facts. Smith v. Ellis, 22 Va. Cir. 422 (Judge Ledbetter) (1991); Seilheimer v. Melville, 224 Va. 323 (1982).

Evidence of prior claims is inadmissible if not linked to evidence establishing relevance and probative value. Carter v. Shoemaker, 214 Va. 16, 197 S.E.2d 181 (1973).

c. Prior Drug Use

A motion to exclude such evidence is useful when bringing a brain injury claim. If no expert can testify, to a reasonable medical probability, that the prior drug use caused the brain injury, the evidence must be excluded. Velocity Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 205, 585 S.E.2d 557, 566-67 (2003) (prohibiting cross-examination of plaintiff's expert witness on subject of plaintiff's prior drug use where there was no evidence that the prior drug use caused plaintiff's brain injury). This same argument should be used even more forcefully where the claim does not involve a brain injury, as any probative value is likely outweighed by the prejudice to the party.

d. Prior Depression or Disability

A party should move in limine to prohibit any reference to pre-injury depression or disability. Regarding depression, the plaintiff should so move where either there is no claim for depression, or where it is clear that the depression resolved prior to the injury at issue. For example, where the plaintiff had a two-year history of untreated depressive episodes, but where the evidence establishes that pre-injury depression was successfully treated and that the depression had resolved several years before the accident, the evidence would be excluded. Even if the evidence establishes that the party continued to treat for depression, cross examination would be improper where evidence of depression is not elicited by the Plaintiff on direct examination. Velocity Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 205-06, 585 S.E.2d 557, 567 (2003).

Nor should the plaintiff be permitted to refer to the defendant's disability without linking the disability to the cause of action or some other matter relevant to the litigation.

e. Nature of Prior Felony Conviction

Felony convictions and misdemeanors involving moral turpitude (lying, stealing, fraud) are admissible to impeach the credibility of a party. But unless the conviction is for perjury, the court should prohibit any cross examination which elicits anything other than the fact there was a conviction. For purposes of impeachment, a prior felony conviction may be shown against a party-witness in a civil case. But, the nature of the felony, other than perjury, and the details thereof may not be shown. Payne v Carroll, 250 Va. 336, 340; 461 S.E.2d 837, 839 (1995).

f. Attorney Referral To Physician

Although there is scant case law in Virginia on the topic, a motion in limine should be filed to prohibit any reference to an attorney referral to a treating physician. Such evidence is irrelevant and may invade the attorney client privilege. The fact there was an attorney referral is usually elicited to suggest that the plaintiff, his attorney and the treating physician are engaged in misconduct or efforts to inflate an injury claim. The courts should not allow such argument or innuendo. In most instances of attorney referral, the client is uninsured and has requested help from his attorney. Counsel should argue the attorney would be remiss in not helping his client find a physician and that to defend his actions, he would have to testify and possibly withdraw as counsel.

g. Photographs Prove The Degree Of Injury

Where the property damage photographs fail to depict significant visible damage, defense counsel will invariably argue that the photographs "prove" the plaintiff was not injured. Despite the fact this argument is made in the absence of any expert testimony, and therefore represents little more than the opinion of counsel, Virginia circuit courts have routinely allowed such argument. While the plaintiff can hire an expert to review the property damage estimates and photographs to blunt such argument, it is advisable to file a motion in limine to exclude the photographs or at least limit such argument. This issue is ripe for a ruling from the Virginia Supreme Court. The argument that the property damage correlates to the degree of bodily injury is without scientific support. Such an argument should be excluded in the absence of expert testimony about the transfer of energy and how it affected the party. Admissibility of such testimony should be conditioned on establishing a proper foundation. This requires consideration of a myriad of variables and it is unlikely an expert could account for each such variable. See, 8.01-401.1 & 8.01-401.3; Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465-466 (1995). Gilbert v. Summers, 240 Va. 155, 159-160, 393 S.E.2d 213, 215 (1990)]; Swiney v. Overby, 237 Va. 231, 233-34, 377 S.E.2d 372, 374 (1989). Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996). Unfortunately for plaintiffs, jurors frequently accept the invitation to speculate and frequently fail to return a reasonable verdict. The Supreme Court of Delaware held that in the absence of expert testimony, a party may not directly argue that there exists a correlation between the degree of personal injuries and the damage to the automobiles. Davis v. Maute, 770 A.2d 36, 40 (2001).

Likewise, the Plaintiff usually benefits from photographs which depict significant property damage. And likewise, there is little scientific support for the assumption that significant property damage correlates with a significant injury. The defendant would be wise to move in limine to prevent the Plaintiff from arguing "the photographs prove the injury."

2. Other Pre-Trial Pleadings

Other pre-trial pleadings include motions to increase the ad damnum clause, to consolidate or sever claims or parties, to take and compel discovery, to strike defenses or claims, to compel production of a recorded statement, to request a default as to liability, and to assert claims of immunity, including sovereign and charitable immunity.

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