A recent case out of Montana, Peterson-Tuell v. First Student Transp., LLC, 339 P.3d 16 (Mont. Nov. 15, 2014), highlights the import of a Rule 403 challenge and of making your challenges and objections as comprehensive and specific as possible. There, after being involved in an auto accident, the plaintiff demonstrated no signs of injury, but later claimed the accident caused her to sustain a mild traumatic brain injury that caused her to have memory loss and difficulty concentrating. The plaintiff filed a negligence claim. The defendant admitted liability, leaving damages as the only issue.
During discovery, the fact that the plaintiff’s daughter had been sexually abused decades earlier and that plaintiff had a long history of anxiety and depression came to light. The defendant’s medical expert opined that plaintiff’s alleged injuries were psychosomatic and the result of years of subconscious guilt plaintiff experienced as a result of her daughter’s abuse.
The plaintiff filed a motion in limine to exclude the defendant’s expert’s theory, arguing that the defendant’s expert’s theory was neither causally connected to the plaintiff’s symptoms nor relevant to the case at bar. The trial judge denied plaintiff’s motion, finding the evidence relevant because it related to the question of whether plaintiff’s symptoms were attributable to an incident apart from the accident.
The plaintiff appealed the trial court’s denial of her motion in limine, arguing that the defendant’s expert’s theory should have been excluded as unduly prejudicial under Montana’s version of Rule 403. The Montana Supreme Court denied relief, holding that the plaintiff did not specifically raise a Rule 403 challenge in her motion in limine or at trial.
- The failure to raise a Rule 403 challenge below may waive any such challenge on appeal.
Typically, lawyers tend to focus on more “substantive” challenges, such as relevance or hearsay, and some view Rule 403 as a “throw-away” challenge. In this case, the evidence of the prior abuse presented a clear case of inflammatory testimony with the strong potential of being unduly prejudicial.
While inflammatory testimony takes many forms, matters that are traditionally viewed as highly volatile should raise Rule 403 concerns. See, e.g., United States v. Santiago, 477 F. App'x 922 (3d Cir. 2012) (holding evidence proffered by criminal defendant of kidnapping victim’s sex and gambling habits were properly excluded on grounds that its probative value was substantially outweighed by its prejudicial effect); Motes v. Johnson, 304 Ark. 23, 799 S.W.2d 798 (Ark. 1990) (holding evidence related to alcohol, drug, and gambling history of attorney sued for breaching his fiduciary duty was properly excluded because evidence was unfairly prejudicial and had little probative value).
Some less obvious examples would include introduction of evidence of other incidents which do not satisfy the substantial similarity requirement. See, e.g., Ford Motor Co. v. Hall-Edwards, 971 So.2d 854 (Fla. 3d DCA 2007).
The case also reminds us to make specific objections – both in limine and at trial. Appellate courts across most jurisdictions will typically decline to find an abuse of discretion or error where the objection raised was generic or on one ground versus another. For this reason, and although it seems elementary, it is generally a good idea to keep a list of the rules of evidence and possible objections while drafting your motions in limine and at counsel table during trial.