Input/Output, Inc. et al v. Sercel, Inc., (5-06-cv-00236) (July 22, 2009)
Judge: David Folsom
Holding: Motions in Limine Granted in Part
Orders on motions in limine are always difficult for lawyers not in the case to fully comprehend (and sometimes even lawyers in the case) for several reasons. First, the order frequently refers to the motions by number and not issue, since the lawyers in the case know well what the numbers refer to. Second, it's often impossible to fully understand the ruling unless you were at the hearing and heard what the parties told the court the issue really was, and what the court said. And third, the procedural context of an in limine ruling is crucial, and often the lawyers simply don't take into account the difference between an order excluding or admitting evidence and an in limine ruling, which the judges well understand is a tentative ruling which simply requires counsel to approach the bench before going into an area. Generally speaking (the Fifth Circuit caselaw is not completely consistent on this point) a ruling on a motion in limine doesn't preserve error or obviate the need to actually offer the evidence at trial, or object to the evidence. (You might want to check your O'Connor's on this point, because it contains a unseful analysis what a limine ruling does and doesn't do).
A few of these issues came to mind this morning when I was reading Judge Folsom's order on defendant Sercel's motion in limine in this case. Download 1771 - Ion limine order While it's a good example of how much the casual reader of such an order can't tell from the order in isolation, there are a few interesting points even to an uninformed reader like myself.
First, with respect to Sercel's motion no. 1 seeking in broad terms to limit damages, Judge Folsom first had to break the motion into threee subparts because it had three separate bases. But all three shared the same basic flaw, he held, which was that they should have been brought as a motion to strike or as a Daubert motion within the required time frame. Parts also asked the Court to weight the sufficiency of the evidence of lost profits. All of which pointed to a common problem with motions in limine, which is their use as either a rearguing of a summary judgment or Daubert motion, or, as in the latter case, a premature motion for judgment as a matter of law. (In this order, #3 was in fact simply a rearguing of a previously filed motion to strike). If an issue or evidence shouldn't go to the jury, the tool is, as Judge Folsom observed, a motion to strike, or a Daubert motion, or perhaps a motion for summary judgment or to exclude. Motions in limine are late in the game, and a poor substitute for a substantive motion. As I've told people for years, file a motion to exclude the objectionable evidence - not a motion in limine.
It bears repeating that an order in limine does not exclude evidence - it simply requires a party to approach the bench before going into something because of the risk of incurable prejudice if it gets out there. A good example is, well, suggesting to the jury that the plaintiff incorporated where it did to avoid paying taxes. That would be a good motion in limine subject, I would think, because of the risk of prejudice - but if the plaintiff got cute and started claiming what a great corporate citizen they are the defendant might ask to approach and argue that the plaintiff has opened the door. But an in limine ruling protects the parties from messing up the fact finder until the Court has decided that something really ought to be introduced. I've had motions in limine granted against me with the clear understanding that the Court was not indicating he was likely to exclude the evidence at trial - he just wanted to retain control over the issue and wait until he saw the evidence at trial to make sure that the issue ought to come in - had he not granted that, an issue might have gotten before the jury before the Court had a full picture of whether it was proper for it to. A good example is the common, common ruling that motions in limine are granted essentially in toto for voir dire unless someone really screams that they need to voir dire on a specific subject - but without prejudice to the Court's more substantive ruling on them following voir dire for the evidentiary part of the trial.
Back to the order.
One issue that is case specific is a ruling permitting the plaintiff to introduce evidence that the defendant's opwn scientists were surprised at how similar the plaintiff's patent was to a Sercel patent, which they believe is non-obvious, in response to Sercel's assertion that the patent is obvious. (Unless of course Sercel drops the obviousness defense). Other rulings are not permitting the plaintiff to suggest that failure to obtain an opinion of counsel should result in an adverse inference, and excluding any reference to injunctions. There are numerous other rulings made, but as they either adopt agreements by the parties are refer only to numbers, as I said, it's not possible to tell what they refer to without studying the underlying motions.
But as I said, a useful order to understand, at least in part, the use and misuse of motions in limine.