Consequences Of Violating An In Limine Order Excluding Evidence

Under what circumstances can a willful violation of an in limine order excluding evidence result in a mistrial? Eighth Circuit examines whether a second violation of the court's ruling excluding a portion of expert testimony, after the first trial resulted in a mistrial, resulted in prejudice, in Warger v. Shauers, _ F.3d _ (8th Cir. July 24, 2013) (No. 12-1846)

What are the consequences when a party's counsel disregards an in limine order of the trial court excluding certain evidence? Following a jury verdict, can the violation of an in limine ruling vacate the verdict? The Eighth Circuit recently considered this issue.

The case involved a negligence action following a traffic accident which resulted in serious injuries. The first trial resulted in a mistrial after the defendant's "attorney violated the district court's in limine order instructing 'that experts may offer opinion testimony as to a driver's conduct but may not offer legal opinions as to whether such conduct violates South Dakota law.'" Warger, _ F.3d at _ (citing record). At the second trial, defense counsel again violated the in limine order during cross-examination of an expert by questioning if "Mr. Warger ha[d] to yield to the right-of-way and not enter . . . until he [was] certain that the highway [was] free of oncoming traffic . . . ." Warger, _ F.3d at _ (citing record). The plaintiff again moved for a mistrial. As the opinion summarized:

The court acknowledged the violation, but denied the motion for mistrial because it found the violation had not been prejudicial. After the recess, the court instructed the jury to disregard the question. The trial continued without any further violations of the in limine order, and the jury returned a verdict in favor of defendant Shauers.

Warger, _ F.3d at _. On appeal, the plaintiff challenged the denial of a mistrial based on the persistent violation of the in limine order.

The Eighth Circuit affirmed the denial of the motion for a mistrial after agreeing with the trial court that no prejudice had been shown by the violation at the second trial:
It is undisputed the district court's in limine order was specific in its prohibition and the violation was clear. The issue raised on appeal is whether the violation was prejudicial. We agree with the district court, it was not. The court gave a curative instruction after the recess and, during final jury instructions, reminded the jury that if an objection is sustained they "must ignore the question and must not try to guess what the answer might have been." We have previously upheld district courts' refusals to grant mistrials for violations of in limine orders when, inter
alia, the court gives "a prompt and clear curative instruction." Warger, _ F.3d at _ (quoting Russell v. Whirlpool Corp., 702 F.3d 450, 460 (8th Cir. 2012); see also Black v. Shultz, 530 F.3d 702, 706 (8th Cir. 2008) ("A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear."; "Prejudicial error is error which in all probability produced some effect on the jury's verdict and is harmful to the substantial rights of the party assigning it.") (quoting Pullman v. Land O' Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001)) (other citation to record omitted).

The circuit also found the plaintiff's argument challenging the sufficiency of the jury instruction:

Warger argues the curative instruction was insufficient because it was not given until the jury had returned from the recess. Although it is true the instruction was not given until after the recess, Warger provides no persuasive explanation as to how Shauers's question affected the jury's verdict. He claims the question was prejudicial because it was an attempt to introduce inadmissible evidence which was key to Shauers's defense. However, the jury heard no inadmissible testimony because the district court sustained the objection and Shauers's counsel did not ask any similar questions during the remainder of the trial.

Warger, _ F.3d at _.

The violation of the in limine order in Warger was intentional, occurring at two trials. The opinion does not address whether the trial court considered other sanctions against counsel. However, the opinion does address the evidentiary impact of the violation in the context of a mistrial.

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