By Joseph M. Barrett
To ensure fairness, courts often grant parties' motions to keep the jury from hearing some matters. These are motions in limine, heard outside the presence of the jury. In civil trials, they can be made by both plaintiffs and the defense. Common topics include keeping out evidence of insurance, settlement talks, improper arguments, and reference to evidence that would create confusion, waste time, or be unduly prejudicial to one side or the other.
This article will examine common issues that underlie plaintiffs' motions to exclude evidence in personal injury trials, providing valuable insights regarding when they should be made, their proper use, and whether they should be granted or denied.
The objective of this article and accompanying self-assessment test is to familiarize practitioners and bench officers with basic rules for excluding evidence through in limine motions in personal injury jury trials. By reading the article and taking the test, readers will learn: courts' general authority to exclude evidence; the extent to which statements in medical records should be excluded; the admissibility of evidence of the lack of prior accidents; and the admissibility of compliance with government standards.
Issues concerning the admissibility of evidence must be litigated outside the presence of a jury for obvious reasons: once a jury hears the evidence, it is extremely difficult to "unring a bell." Evidence Code Section 402 specifically allows a court to hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury.
In the present context, courts normally exclude evidence from being considered by a jury in two situations: when it is irrelevant and when, although relevant, it would otherwise unduly prejudice a party, confuse the jury or take up too much time. Oftentimes litigants will first argue irrelevance, with the latter reasons as back-ups.
Courts have the inherent power to grant a motion in limine to exclude evidence in both situations. Courts may exclude "any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial." (Clemens v. American Warranty Corp, 193 Cal.App.3d 444, 451 (1987).)
Regarding irrelevant evidence, Evidence Code Section 350 states that "(n)o evidence is admissible except relevant evidence." Relevant evidence is defined by Evidence Code Section 210 as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The court may exclude irrelevant evidence, including irrelevant witness testimony. (Mesnick v. Caton, 183 Cal.App.3d 1248, 1262-63 (1986).)
Regarding minimally relevant evidence, Evidence Code Section 352 states that a court may "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Section 352 has been cited to keep out evidence on various grounds, such as prejudice to a party (People v. Cardenas, 31 Cal.3d 897, 904 (1982).); undue consumption of time (People v. Sanders, 11 Cal.App.4th 475, 514 (1995).); and avoiding juror confusion (People v. Wagner, 138 Cal.App.3d 473, 481 (1982).).
In addition to excluding unduly prejudicial evidence, a court can instruct counsel not to mention the evidence in question during trial, and can similarly direct persons under counsel's control, such as experts and witnesses. (See Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 793(1981).)
Medical records following an accident contain both admissible and inadmissible statements. When a party moves to admit the records into evidence, courts must carefully examine the records' contents and proceed accordingly.
The medical records themselves can qualify as "business records" under Evidence Code Section 1271, and thus would not be excluded by the hearsay rule. (People v. Diaz, 3 Cal.4th 495, 535 (1992).) Of course, all the requirements of the business records exception must be established by the proponent of the evidence, including that the writing was made in the regular course of a business at or near the time of the event, and "the sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evidence Code Section 1271.)
However, even if a business-record foundation is properly laid, many statements contained therein must be excluded if offered for the truth of the matter because they constitute inadmissible multiple hearsay. For example, statements of the patient's relatives and bystanders do not fall within any exception to the hearsay rule and must be excised. (See People v. Ayers, 125 Cal.App.4th 988, 994 (2005) [appellate court held in a spousal battery case that records of a victim's statements to a 911 dispatcher at a clinic were inadmissible].)
If a party indicates that the records are being offered not for the truth of the matter stated, but only to explain a physician's diagnosis or treatment, then the records - including all the statements contained therein - may be admitted into evidence. However, the diagnosis or treatment must be relevant to the issues at hand (Rosener v. Larson, 255 Cal.App.2d 871, 878 (1967).); the statements must have been actually relied upon by the physician (Johnson v. Aetna Life Ins. Co., 221 Cal.App.2d 247, 252 (1963).); and the source of the statements must be sufficiently trustworthy (Evid. Code Section 1271(d)).
Finally, even if the proponent of this type of evidence jumps through all these hoops, a limiting instruction must be given so that the jury does not mistakenly use the records to prove the truth of the matters they contain. (Springer v. Reimers, 4 Cal.App.3d 325, 338 (1970).) Nonetheless, if the court concludes such an instruction would not be effective because the potential for prejudice outweighs any probative value, it should exercise its discretion and keep the records out under Evidence Code Section 352. (People v. Montiel, 5 Cal.4th 877, 919 (1993).)
Lack Of Prior Accidents
In some cases, the defense tries to introduce evidence through statements of their personnel that there has never been, for instance, another fall, assault, or injury like the one at issue, in order to make the case that they are not negligent because of lack of notice. This type of evidence can be admitted, but with some important limitations.
As explained by Benson v. Honda Motor Co., 26 Cal.App.4th 1337, 1345 (1994), "Evidence that there have been no prior claims tends to be more relevant in actions alleging negligence, because foreseeability of harm is a primary issue in such cases. ... Evidence of the absence of prior similar incidents is especially probative in cases involving theories of negligence and failure to warn when offered, inter alia, to show lack of notice."
However, the Benson court acknowledged that "there are two possible explanations why a witness knows of no prior accidents. The first is that there have been no prior accidents; the second is there have been prior accidents, but the witness does not know about them." Evidence of lack of prior incidents should only be admitted when a court is satisfied that the witness would have known about the prior incidents had they occurred. For this reason, the Court of Appeal stressed that "at a minimum, the proponent should proffer evidence through a witness who is familiar with product safety surveys or safety records concerning the product."
Benson is an example of when this evidence was properly admitted: in defending a suit due to allegedly defective car seats, Honda presented the testimony of a product safety engineer who examined a computerized system of customer complaints, police reports and product inspections, and concluded that the type of accident suffered by the plaintiffs had not previously occurred before. The Court of Appeal agreed with the trial court's ruling that "the methodology used by Honda was sufficient and that [the engineer] would be in a position to testify to its records regarding such vehicles". (Benson v. Honda Motor Co., supra, 26 Cal.App.4th 1337, 1347-1348.)
In contrast, the Arizona Supreme Court, in a case cited with approval by Benson, disallowed evidence of lack of accidents because it was not supported by any significant product safety survey or safety record research. (Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 700 P.2d 819, 824 (1985).) The Arizona court explained that "the proponent of the evidence must establish that if there had been prior accidents, the witness probably would have known about them," and in its case the evidence was properly excluded because there was no showing "that if there had been accidents, the witness would have known of them either from the system utilized to track safety-history or from the investigation made at the sources of such information."
Benson concluded, "Trial courts should be cautious in exercising their discretion to admit such evidence. They should bear in mind that problems of prejudice, inability of the opposing party to meet the evidence of absence of prior claims, and the danger of misleading the jury are substantial."
Admissibility of Compliance
In some cases, the defendant in a personal injury suit seeks to introduce evidence that it complied with municipal or government codes. Should a bench officer permit the defense to present such evidence?
Two things should be kept in mind: compliance with government codes will only absolve a party of negligence per se, but will not establish due care as a matter of law; and, even when relevant, such compliance can be excluded under Evidence Code Section 352.
Regarding negligence per se, four elements must be satisfied by the plaintiff to prevail on this theory: "(1) [defendant] violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." (Evid. Code Section 669.) "In order for a claim of negligence per se to succeed, all four elements must be met." (Capolungo v. Bondi, 179 Cal.App.3d 346, 349 (1986).)
If the defendant proves that she acted in compliance with "a statute, ordinance, or regulation of a public entity," then she will defeat a claim based on negligence per se. However, this will not establish due care as a matter of law because, "One may act in strict conformity with [codes] and yet not exercise the amount of care which is required under the circumstances." (Perrine v. Pacific Gas & Elec. Co., 186 Cal.App.2d 442, 448 (1960).)
For example, in Amos v. Alpha Property Management, 73 Cal.App.4th 895 (1999), a child fell out a second-story window and the plaintiffs argued that the property owners were negligent in not having a barrier to keep the child from falling. The defendants argued that their premises met all applicable fire, building and safety codes and that this established due care as a matter of law. Amos held "there is no merit to this argument ... although the fact the window complied with applicable safety regulations is relevant to show due care, it is not dispositive."
Given its narrow relevance, in cases where there is no allegation of negligence per se, courts should consider keeping this evidence away from the jury altogether under Evidence Code Section 352. When compliance with codes is admitted into evidence, the jury should be instructed that mere compliance with a government code is not by itself sufficient to establish due care. A danger will still exist, however, that the jury may nonetheless accept the compliance to wholly exonerate the defendant. That is, the jury may feel that since it acted according to government regulations, the defendant should not be held responsible.
These are just a few of the commonly filed motions in limine made by plaintiffs in personal injury cases. The principles in each are designed to keep the trial fair and to prevent improper and unduly prejudicial statements and documents from being used as evidence.
Joseph M. Barrett is an attorney with The Cochran Firm in Los Angeles.