Eighth Circuit Panel Split On Impact Of 2000 Amendments To FRE 103(a)(2) (Offer Of Proof)

In an employment discrimination retaliation trial, from which sexual harassment claims had been dismissed, an Eighth Circuit panel splits on whether the plaintiff adequately preserved grounds for appeal under FRE 103(a)(2); circuit finds plaintiff made an "effective" waiver by (1) failing to identify precisely what evidence she would have offered in the retaliation trial, and (2) that the plaintiff failed to make an offer of proof as to sexual harassment evidence excluded from the retaliation trial, in Smith v. Hy-Vee, __ F.3d __ (8th Cir. Oct. 12, 2010) (No. 09-2631)

In 2000, FRE 103(a) was amended to "impose[ ] the obligation on counsel to clarify whether ... [an] evidentiary ruling is definitive when there is doubt on that point." The Eighth Circuit recently examined a case involving the application of FRE 103(a)(2) and the panel of judges assigned to the case divided over the application of the rule in the case. The rule is important because it sets forth the basis to preserve an evidetiary challenge for appeal.

In the case, plaintiff Smith sued her former employer Hy-Vee for violating state antidiscrimination employment law. The plaintiff filed both a claim of sexual harassment in the work place and a claim that she was retaliated against when she made her harassment claim. The defendant employer removed the case to the federal district court and the district judge granted defendant's motion for summary judgment on the sexual harassment claim. The court dismissed the claim finding that the female co-worker that the plaintiff alleged was sexually harassing her was not motivated by sexual desire towards the plaintiff as would create a hostile work environment. Indeed, that the co-worker exposed both men and women to the same behavior without distinction as to the sex of the victim. The case continued on to trial regarding the plaintiff's retaliation claims and there the trial judge granted defendant's motion in limine to exclude from the retaliation trial specific evidence of the harassment claim.

The Eighth Circuit panel agreed with the analysis of the sexual harassment claim, but split on another issue identified by the plaintiff -- whether the plaintiff had properly preserved her objection to exclusion of sexual harassment evidence in her retaliation trial. The panel majority decided she failed to preserve her objections to the exclusion of evidence at trial. As to using evidence of specific incidents of sexual harassment in her proof of her retaliation claim, the circuit majority found no error. It noted that:

Smith does not say in her brief before our court precisely what evidence she would have offered, so it is impossible for us to determine what effect its exclusion might have had. In her opposition to Hy-Vee's motion in limine, moreover, she said only that she wanted to 'talk generally of who harassed her, including Ms. Lynch' and wanted to show that she 'was harassed by Sherri Lynch, i.e., including that she was improperly touched.' This seems to us to imply that she had no objection to the motion in limine except for certain matters regarding her interactions with Ms. Lynch. ... We think that Smith therefore effectively waived any objection to the motion in limine....

Smith, __ F.3d at __.

This problem was exacerbated by the plaintiff failing to:

make an offer of proof with respect to any evidence that was excluded in limine is fatal to her assignment of error. Fed.R.Evid. 103(a) and (a)(2) provide that '[e]rror may not be predicated upon a ruling which ... excludes evidence unless ... the substance of the evidence was made known to the court by offer [of proof],' and we have held repeatedly that to preserve an evidentiary issue for appeal an offer of proof is necessary, even if the district court grants a motion in limine. See, e.g., Dupre v. Fru-Con Engineering, Inc., 112 F.3d 329, 336 (8th Cir. 1997); Keeper v. King, 130 F.3d 1309, 1315 (8th Cir. 1997). While these cases predate an amendment to Rule 103 that occurred in 2000, that amendment had no effect on the part of the rule that bears on offers of proof except to excuse a failure to renew one: The point we make here is that no offer of proof was ever made, not that one was not renewed. As the Advisory Committee Notes observe, the amendment applies "when the party has otherwise satisfied the ... offer of proof requirement of Rule 103(a)." Though we stated in Moran v. Clarke, 296 F.3d 638, 649 (8th Cir. 2002) (en banc)), that an offer of proof is necessary 'unless the evidence was excluded pursuant to a motion in limine,' we cited no cases in support of this proposition and we don't believe that the court intended to overrule our clear, contrary precedents on the matter, especially without discussion. In fact, the matter of whether a motion in limine had been made does not seem to have been in issue in Moran, so we think that the assertion there about offers of proof being unnecessary was inadvertent and dictum. The fact that the plain language of the rule provides otherwise makes us even more confident of this reading of the case.

, __ F.3d at __.

Circuit Judge Bye dissented, noting that "where a judge has made a definitive ruling before trial, an objection is 'unnecessary to prevent error, and it may do little other than slow down the trial. One additional benefit of bringing a motion in limine in advance of trial is allowing parties to modify their trial strategy depending on the outcome of the motion. Requiring an offer of proof at trial would deprive litigants of such a benefit." Smith, __ F.3d at __ (citing Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999)).

Nor was Judge Bye convinced of the need for a formal offer of proof. In his dissent he argued :

Consistent with the purposes of the 2000 amendment, the Eighth Circuit has previously noted 'a party must properly preserve an issue below with an offer of proof unless the evidence was excluded pursuant to a motion in limine.' Moran v. Clarke, 296 F.3d 638, 649 (8th Cir. 2002) (en banc) (emphasis added). The majority attempts to discount the weight of this en banc opinion by pointing to two opinions which both predated the 2000 amendment, see Dupre v. Fru-Con Eng'g, Inc., 112 F.3d 329, 336 (8th Cir. 1997); Keeper v. King, 130 F.3d 1309, 1315 (8th Cir. 1997), and were inconsistent with the law then in place, see Charter v. Chleborad, 551 F.2d 246, 248-49 (8th Cir. 1977) (holding that a party was not required to make an offer of proof where the court was "aware of the general nature of the evidence to be offered"). Recognizing the timing problem, the majority contends the 2000 amendment did nothing to alter Rule 103's substantive standards, and clarifies as to its main contention about "no offer of proof was ever made, not that one was not renewed.

I disagree as to Smith's pre-trial presentation of evidence on the record being inadequate. The purpose of the offer of proof is '(1) to inform the [trial] court and opposing counsel of the substance of the excluded evidence, enabling them to take appropriate action; and (2) to provide an appellate court with a record allowing it to determine whether the exclusion was erroneous and whether [the] appellant was prejudiced by the exclusion.' Kline v. City of Kansas City, 175 F.3d 660, 665 (8th Cir. 1999) (internal quotation marks and citation omitted). Hy-Vee's briefing of the motion in limine, Smith's response thereto, and the trial court's order on the issue satisfy both of these purposes, and it is difficult to imagine what more Smith could have done to make her point. See also Black's Law Dictionary 1190 (9th ed. 2009) (explaining that an offer of proof consists of '(1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility”). In addition to the parties' articulation of proffered evidence in connection with the motion in limine, the district court gained familiarity with the substance of Smith's allegations when adjudicating the parties' dispositive motions. See Germano v. Int'l Profit Ass'n, Inc., 544 F.3d 798, 801 (7th Cir. 2008) (stating that briefing of the issue in a response to a motion for summary judgment satisfied requirements of Rule 103(a)(2)). Thus, Smith fulfilled her duty of presenting the issue 'in a meaningfully developed manner,' Moran, 296 F.3d at 649 (quoting Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 173 n. 1 (7th Cir. 1996)), and did not forfeit its substantive review.

Smith, __ F.3d at __.

Federal Rules of Evidence