State Court Motion in Limine - Pennsylvania

MOTION IN LIMINE

(Pennsylvania Court of Common Pleas — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

1. Caption
2. Notice / Motion

3. Memorandum of Law
   3.1 Introduction
   3.2 The Evidence Sought to Be Excluded
   3.3 Legal Standard
   3.4 Argument — Numbered Grounds
   3.5 Conclusion

4. Proposed Order

5. Certificate of Service

1. CAPTION

IN THE COURT OF COMMON PLEAS OF [________________________________] COUNTY, PENNSYLVANIA
CIVIL DIVISION

No.: [________________________________]

[MOVANT]'S MOTION IN LIMINE NO. [____] TO EXCLUDE [________________________________]

Assigned to: Hon. [________________________________]
Trial Date: [__/__/____]

2. NOTICE / MOTION

TO: [________________________________], Counsel for [Plaintiff / Defendant], and all parties of record:

[Plaintiff / Defendant] [________________________________] ("Movant"), by and through undersigned counsel, respectfully moves this Honorable Court, in advance of trial and outside the presence of the jury, for an order prohibiting [the opposing party] [________________________________] ("[Opposing Party]"), and its counsel and witnesses, from offering, mentioning, referring to, interrogating concerning, or attempting to convey to the jury in any manner — directly or indirectly — the evidence and matters described below, and from suggesting to the jury that such matters exist, without first obtaining a ruling from the Court outside the presence and hearing of the jury.

This Motion is made pursuant to the Court's inherent authority to control the conduct of trial, Pa.R.E. 403, and the additional authorities set forth below, on the grounds that the evidence is irrelevant under Pa.R.E. 402 and/or its probative value is outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence under Pa.R.E. 403. The Motion is supported by the accompanying Memorandum of Law, the pleadings and record, and any further evidence or argument presented at or before argument.

DATED: [__/__/____]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME], PA I.D. No. [________________]
[Firm Address] | [Telephone] | [Email]
Counsel for [Movant]

3. MEMORANDUM OF LAW

3.1 Introduction

This is an action for [describe nature of action — e.g., negligence arising from a motor-vehicle collision / breach of contract / products liability]. Trial is set for [__/__/____]. Movant anticipates that, absent an order from this Court, [Opposing Party] will attempt to introduce or elicit evidence and argument that is irrelevant under Pa.R.E. 402, and/or that is subject to exclusion under Pa.R.E. 403 because its probative value is outweighed by the danger of unfair prejudice, confusion, and waste of time — the mere mention of which before the jury would cause harm that no cautionary instruction could cure. Movant therefore moves to exclude the matters set forth below.

3.2 The Evidence Sought to Be Excluded

Movant seeks an order excluding the following specific items of evidence:

1. [________________________________]
2. [________________________________]
3. [________________________________]

3.3 Legal Standard

Relevance (Pa.R.E. 401, 402). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." (Pa.R.E. 401.) Irrelevant evidence is not admissible. (Pa.R.E. 402.)

Discretion to Exclude — Pennsylvania's Pa.R.E. 403 (the FRE 403 analog). "The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (Pa.R.E. 403.)

Character and Other Acts (Pa.R.E. 404). Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. Evidence of any other crime, wrong, or act is not admissible to prove character but may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, subject to Pa.R.E. 403.

Credibility and Impeachment (Pa.R.E. 608, 609). A witness's character for truthfulness may be attacked or supported only by reputation evidence (Pa.R.E. 608). In a civil case, a witness may be impeached by a prior conviction only if the crime involved dishonesty or false statement (crimen falsi), subject to the time limit and balancing in Pa.R.E. 609.

Subsequent Remedial Measures (Pa.R.E. 407). When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.

Compromise Offers and Negotiations (Pa.R.E. 408). Evidence of furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — valuable consideration in compromising a disputed claim, and conduct or statements made during compromise negotiations, is not admissible to prove or disprove the validity or amount of a disputed claim.

Liability Insurance (Pa.R.E. 411). Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Hearsay (Pa.R.E. 801–807). Hearsay is not admissible except as provided by the Pennsylvania Rules of Evidence, other rules prescribed by the Supreme Court, or statute.

Expert Testimony — Pa.R.E. 702 and the FRYE General-Acceptance Standard (Pa.R.E. 702; Grady v. Frito-Lay; Frye v. United States). Pennsylvania is a Frye jurisdiction — not a Daubert jurisdiction. Under Pa.R.E. 702, a qualified expert may testify if (a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) it will help the trier of fact to understand the evidence or determine a fact in issue; and (c) "the expert's methodology is generally accepted in the relevant field." Pa.R.E. 702(c) "reflects Pennsylvania's adoption of the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)" and "rejects the federal test derived from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)." (Pa.R.E. 702 cmt.; Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003).) A Frye challenge to expert testimony relying on novel scientific evidence is raised by motion under Pa.R.C.P. No. 207.1, and the proponent bears the burden of establishing that the methodology is generally accepted. (See Betz v. Pneumo Abex LLC, 615 Pa. 504, 44 A.3d 27 (2012).)

Golden-Rule and Improper Appeals to Sympathy or Passion. Argument inviting jurors to place themselves in the position of a party (the "golden rule"), or appealing to sympathy, passion, or prejudice rather than the evidence, is improper and excludable under Pa.R.E. 403 and Pennsylvania decisional law governing attorney misconduct in argument.

3.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (Pa.R.E. 401, 402).
Movant moves to exclude [describe evidence] because it has no tendency to make any fact of consequence more or less probable. Specifically, [________________________________]. Because the evidence is irrelevant, it is inadmissible under Pa.R.E. 402.

GROUND 2 — Unfair Prejudice, Confusion, and Waste of Time (Pa.R.E. 403).
Movant moves to exclude [describe evidence] because any probative value is outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and needless presentation of cumulative evidence. [________________________________].

GROUND 3 — Character and Other Acts (Pa.R.E. 404; Pa.R.E. 403).
Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character / other crimes], which is offered only to prove that the [party/witness] acted in accordance with a character trait and is inadmissible under Pa.R.E. 404, and which, even if offered for a permissible non-character purpose, should be excluded under Pa.R.E. 403.

GROUND 4 — Improper Impeachment (Pa.R.E. 608, 609; Pa.R.E. 403).
Movant moves to exclude impeachment by [describe prior conviction / other matter] because, in this civil case, the conviction is not crimen falsi under Pa.R.E. 609 and/or its probative value on credibility is outweighed by the danger of unfair prejudice under Pa.R.E. 403, and any attack on truthfulness must comply with Pa.R.E. 608.

GROUND 5 — Inadmissible Hearsay (Pa.R.E. 801–807).
Movant moves to exclude [describe out-of-court statement / document] as inadmissible hearsay offered to prove the truth of the matter asserted, for which no exception applies.

GROUND 6 — Subsequent Remedial Measures (Pa.R.E. 407).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence, culpable conduct, a product defect, or the need for a warning, inadmissible under Pa.R.E. 407.

GROUND 7 — Compromise Offers and Negotiations (Pa.R.E. 408).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made during compromise negotiations, inadmissible under Pa.R.E. 408.

GROUND 8 — Liability Insurance (Pa.R.E. 411; Pa.R.E. 403).
Movant moves to exclude any evidence, reference, or argument that any party was or was not covered by liability insurance, inadmissible on the issue of fault under Pa.R.E. 411 and unduly prejudicial under Pa.R.E. 403.

GROUND 9 — Inadmissible Expert Testimony Under Frye (Pa.R.E. 702; Pa.R.C.P. 207.1; Grady v. Frito-Lay).
Movant moves to exclude the opinion testimony of [Expert Name] because the methodology underlying the opinion is not generally accepted in the relevant field as required by Pa.R.E. 702(c) and Frye. Specifically, [the methodology is novel and/or has not gained general acceptance / ________________________________]. Pursuant to Pa.R.C.P. No. 207.1, the Court should conduct a Frye analysis and exclude this testimony because the proponent cannot establish general acceptance.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (Pa.R.E. 403).
Movant moves to prohibit opposing counsel from making any "golden rule" argument asking jurors to place themselves in the position of a party, and from any argument or evidence appealing to sympathy, passion, or prejudice rather than the evidence.

GROUND 11 — [Additional Ground].
[________________________________]

3.5 Conclusion

WHEREFORE, Movant respectfully requests that the Court GRANT this Motion in Limine; ORDER that [Opposing Party], its counsel, and its witnesses refrain from offering, mentioning, or alluding to the excluded matters in the presence or hearing of the jury, whether during voir dire, opening statement, examination of witnesses, or closing argument, without first approaching the bench and obtaining leave of Court outside the jury's presence; DIRECT counsel to instruct and admonish their witnesses accordingly; and GRANT such other and further relief as the Court deems just and proper.

DATED: [__/__/____]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME], PA I.D. No. [________________]
Counsel for [Movant]

4. PROPOSED ORDER

IN THE COURT OF COMMON PLEAS OF [________________________________] COUNTY, PENNSYLVANIA
CIVIL DIVISION

No.: [________________________________]

ORDER

AND NOW, this ______ day of ________________, 20____, upon consideration of [Movant]'s Motion in Limine No. [____] and any response thereto, it is hereby ORDERED that the Motion is GRANTED and:

1. The following evidence, testimony, argument, and reference is EXCLUDED: [________________________________].
2. [Opposing Party], its counsel, and its witnesses shall not offer, mention, refer to, or attempt to convey to the jury — directly or indirectly — any of the excluded matters during voir dire, opening statement, the examination of witnesses, or closing argument, without first obtaining leave of Court outside the presence and hearing of the jury.
3. Counsel for [Opposing Party] shall instruct and admonish each of its witnesses to comply with this Order.

Ruling on each numbered ground:

☐ GROUND 1 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 2 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 3 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 4 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 5 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 6 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 7 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 8 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 9 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 10 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐
☐ GROUND 11 — GRANTED ☐ / DENIED ☐ / DEFERRED to trial ☐

BY THE COURT:

______________________________
J.

5. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing [Movant]'s Motion in Limine No. [____], Memorandum of Law, and Proposed Order was served upon all counsel and/or unrepresented parties of record via [e-service / first-class mail / hand delivery] addressed as follows:

[Opposing Counsel Name]
[Firm Name] | [Address] | [Email]

______________________________
[Attorney Name], PA I.D. No. [________________]

Sources and References

• Pa.R.E. 401 (Test for relevant evidence): https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/225/chapter4/s401.html
• Pa.R.E. 403 (Excluding relevant evidence for unfair prejudice, confusion, or other reasons): https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/225/chapter4/s403.html
• Pa.R.E. 404 (Character evidence; other crimes, wrongs, or acts): https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/225/chapter4/s404.html
• Pa.R.E. 609 (Impeachment by evidence of a criminal conviction — crimen falsi)
• Pa.R.E. 702 (Testimony by expert witnesses; 702(c) codifies Frye): https://www.pacodeandbulletin.gov/secure/pacode/data/225/chapter7/s702.html
• Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003) (Frye general-acceptance standard)
• Betz v. Pneumo Abex LLC, 615 Pa. 504, 44 A.3d 27 (2012) (gatekeeping for novel expert testimony)
• Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
• Pa.R.C.P. No. 207.1 (Motion to exclude expert testimony relying on novel scientific evidence)
• Pennsylvania Rules of Evidence (full text): https://www.pacodeandbulletin.gov/Display/pacode?titleNumber=225