State Court Motion in Limine - West Virginia

MOTION IN LIMINE

(State of West Virginia — Circuit Court — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Motion in Limine

4. Memorandum of Law
   4.1 Introduction
   4.2 The Evidence Sought to Be Excluded
   4.3 Legal Standard
   4.4 Argument — Numbered Grounds
   4.5 Request to Instruct Counsel and Admonish Witnesses
   4.6 Conclusion

5. Certificate of Service

6. Exhibit A — Proposed Order

1. CAPTION

IN THE CIRCUIT COURT OF [________________] COUNTY, WEST VIRGINIA

Civil Action No. [________________]

Judge: Hon. [________________]

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

Trial Date: [__/__/____]
Hearing Date: [__/__/____]
Hearing Time: [________________]
Courtroom: [________________]

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [__/__/____] at [________________], or as soon thereafter as counsel may be heard, in [Courtroom] of the above-entitled court, located at [Courthouse Address, City, West Virginia], before the Honorable [Judge Name], [Plaintiff / Defendant] [________________] ("Movant") will, and hereby does, move this 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 and West Virginia Rules of Evidence 401, 402, and 403, together with the additional authorities set forth below, on the grounds that the evidence is irrelevant and/or its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

The Motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and records on file in this action, and any further evidence or argument presented at or before the hearing.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME] (WV Bar No. [________________])
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Attorneys for [Movant]

3. MOTION IN LIMINE

[Plaintiff / Defendant] [________________] ("Movant"), by and through undersigned counsel, respectfully moves this Court, pursuant to W. Va. R. Evid. 401, 402, 403, and the additional authorities set forth below, for an order in limine excluding the evidence and matters identified herein and prohibiting any reference to them before the jury without prior leave of Court. In support, Movant relies upon the accompanying Memorandum of Law.

4. MEMORANDUM OF LAW

4.1 Introduction

This is an action for [describe nature of action — e.g., negligence arising from a motor-vehicle collision / product liability / breach of contract]. 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 Rules 401 and 402, and/or subject to exclusion under Rule 403 because its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, and misleading the jury — the mere mention of which before the jury would cause harm that no instruction could cure. Movant therefore moves to exclude the matters set forth below.

4.2 The Evidence Sought to Be Excluded

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

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

4.3 Legal Standard

Relevance (Rules 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. (W. Va. R. Evid. 401.) Irrelevant evidence is not admissible. (W. Va. R. Evid. 402.)

Discretion to Exclude — Rule 403 (the FRE 403 analog). The court may exclude relevant evidence if its probative value is substantially 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. (W. Va. R. Evid. 403.)

Character and Other Acts (Rule 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. (W. Va. R. Evid. 404(a).) Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show conformity, but may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The proponent must identify the specific purpose for which the evidence is offered and provide notice. (W. Va. R. Evid. 404(b).)

Impeachment (Rules 608, 609). A witness's credibility may be attacked or supported by reputation or opinion as to character for truthfulness only as permitted by Rule 608, and impeachment by a prior conviction is governed by Rule 609, subject to Rule 403 balancing.

Hearsay (Rules 801–804). Hearsay is not admissible unless a rule, statute, or constitutional provision provides otherwise. (W. Va. R. Evid. 802.)

Subsequent Remedial Measures (Rule 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 (Rule 408). Evidence of furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — valuable consideration in compromising or attempting to compromise a disputed claim, and conduct or statements made during compromise negotiations, is not admissible to prove or disprove the claim's validity or amount or a party's liability, or to impeach by a prior inconsistent statement or contradiction. The rule preserves other-purpose use and otherwise discoverable evidence.

Liability Insurance (Rule 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.

Expert Testimony — Rule 702 and the Daubert/Wilt Standard. West Virginia applies the Daubert/Wilt standard to the category defined in its current rule. A witness qualified as an expert by knowledge, skill, experience, training, or education may testify if the expert's specialized knowledge will assist the trier of fact. (W. Va. R. Evid. 702(a).) Where the opinion is based on a novel scientific theory, principle, methodology, or procedure, it is admissible only if the testimony is based on sufficient facts or data, is the product of reliable principles and methods, and the expert has reliably applied those principles and methods to the facts. (W. Va. R. Evid. 702(b).) Under Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993), Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995), and Harris v. CSX Transportation, 232 W. Va. 617, 753 S.E.2d 275 (2013), the circuit court acts as a gatekeeper for covered scientific opinions. Non-scientific technical or specialized testimony remains subject to Rule 702(a); Watson v. Inco Alloys Int'l, Inc., 209 W. Va. 234, 545 S.E.2d 294 (2001), held it was error to apply the scientific Daubert/Wilt analysis to engineering testimony founded on technical rather than scientific knowledge.

Golden-Rule Argument and 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 Rule 403 and West Virginia decisional law governing attorney misconduct.

4.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (Rules 401, 402).
Movant moves to exclude [describe evidence] because it has no tendency to make any fact of consequence more or less probable and is therefore inadmissible. Specifically, [________________________________].

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

GROUND 3 — Character and Other Acts (Rule 404).
Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character], offered only to show the [party/witness] acted in conformity with a disposition, inadmissible under Rule 404 and, even if offered for a permitted purpose, excludable under Rule 403.

GROUND 4 — Improper Impeachment (Rules 608, 609; Rule 403).
Movant moves to exclude impeachment by [describe prior conviction / other matter] because it does not satisfy Rule 608/609 and/or its probative value on credibility is substantially outweighed by a danger of unfair prejudice under Rule 403.

GROUND 5 — Inadmissible Hearsay (Rules 801–804).
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 or exclusion applies.

GROUND 6 — Subsequent Remedial Measures (Rule 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 a need for a warning, inadmissible under Rule 407.

GROUND 7 — Compromise Offers and Negotiations (Rule 408).
Movant moves to exclude [identify the compromise offer, conduct, or statement], made during compromise negotiations concerning the disputed claim, to the extent it is offered to prove or disprove the claim's validity or amount or a party's liability, or to impeach by a prior inconsistent statement or contradiction. W. Va. R. Evid. 408 preserves other-purpose use and otherwise discoverable evidence.

GROUND 8 — Liability Insurance (Rule 411).
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 Rule 411 and unduly prejudicial under Rule 403.

GROUND 9 — Inadmissible / Unreliable Expert Testimony (Rule 702; Daubert/Wilt).
Movant moves to exclude the opinion testimony of [Expert Name] because [it is based on a novel scientific theory, principle, methodology, or procedure that fails the reliability requirements of Rule 702(b) and the Daubert/Wilt standard] and/or because the witness is not qualified or the opinion will not assist the trier of fact under Rule 702(a). Specifically, [________________________________]. The Court should exercise its gatekeeping function and exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (Rule 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].
[________________________________]

4.5 Request to Instruct Counsel and Admonish Witnesses

Movant further requests that the Court direct counsel for [Opposing Party] to instruct and admonish each of its witnesses, before they testify, not to mention, refer to, or attempt to convey to the jury — directly or indirectly — any of the excluded matters, and to refrain from offering or eliciting such matters during voir dire, opening statement, examination of witnesses, or closing argument, without first approaching the bench and obtaining leave of Court outside the presence and hearing of the jury.

4.6 Conclusion

For the foregoing reasons, Movant respectfully requests that the Court GRANT this Motion in Limine and enter the accompanying Proposed Order.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME] (WV Bar No. [________________])
Attorneys for [Movant]

5. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a copy of the foregoing Motion in Limine, Memorandum of Law, and Proposed Order was served upon all counsel of record via [electronic filing (File&ServeXpress / e-filing portal) / first-class mail, postage prepaid / hand delivery] as follows:

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

______________________________
[Attorney Name] (WV Bar No. [________________])
Counsel for [Movant]

EXHIBIT A — PROPOSED ORDER

IN THE CIRCUIT COURT OF [________________] COUNTY, WEST VIRGINIA

Civil Action No. [________________]

ORDER GRANTING [MOVANT]'S MOTION IN LIMINE NO. [____]

On this day came [Movant], by counsel, upon its Motion in Limine. Having considered the Motion, any opposition, the arguments of counsel, and the record, the Court FINDS good cause to GRANT the Motion. It is therefore ORDERED as follows:

1. The Motion is GRANTED as set forth below.
2. The following evidence, testimony, argument, and reference is EXCLUDED: [________________________________].
3. [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.
4. 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 ☐ / RESERVED for trial ☐
☐ GROUND 2 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 3 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 4 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 5 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 6 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 7 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 8 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 9 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 10 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 11 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐

ENTERED: this ______ day of ________________, 20____.

______________________________
Judge [________________]

Prepared by:
[Attorney Name] (WV Bar No. [________________])
Counsel for [Movant]

SOURCES AND REFERENCES

• W. Va. R. Evid. 401, 402, 403 — Relevance and exclusion: http://www.courtswv.gov/legal-community/court-rules/rules-evidence-contents
• W. Va. R. Evid. 404 — Character evidence; crimes or other acts
• W. Va. R. Evid. 407 — Subsequent remedial measures
• W. Va. R. Evid. 408 — Compromise offers and negotiations; Rule 411 — Liability insurance
• W. Va. R. Evid. 608, 609 — Impeachment; conviction of crime
• W. Va. R. Evid. 702 — Testimony by expert witnesses (Rule 702(b): novel scientific theory, principle, methodology, or procedure)
• Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993) (West Virginia adopts Daubert reliability analysis under Rule 702)
• Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995) ("Daubert/Wilt" standard)
• Harris v. CSX Transportation, 232 W. Va. 617, 753 S.E.2d 275 (2013) (scientific gatekeeping); Watson v. Inco Alloys Int'l, Inc., 209 W. Va. 234, 545 S.E.2d 294 (2001) (technical engineering testimony analyzed without the scientific Daubert/Wilt screen)
• West Virginia Trial Court Rules (motion practice)