The Fifth Circuit’s decision in Blessey v. Marine Services, Inc., --- F.3d ---, 2014 WL 5837059 (5th Cir. Nov. 10, 2014), highlights two different ways that adverse pretrial rulings can wind up unreviewable.

Preservation Issue: Summary Judgment

Prior to trial, the appellant sought summary judgment on a purely legal issue. The trial court denied the motion, and the case proceeded to a trial by jury. The appellant lost and challenged the summary judgment ruling on appeal. The Fifth Circuit held that while other circuits will review “purely legal issues” decided on summary judgment prior to trial, the Fifth Circuit follows the view that, once a jury trial is held, the appellate court lacks jurisdiction to consider the summary judgment ruling.

Critically, the appellant had not raised the summary judgment arguments again in a Rule 50 motion. Had it done so, the appellate court would have reviewed the matter in the Rule 50 context.

Tip: In a jury trial, avoid concerns about preserving summary judgment arguments by raising those same arguments again through Rule 50 motions.

The court’s discussion calls to mind the United States Supreme Court’s decision in Ortiz v. Jordan, 562 U.S. 180 (2011), where the high court distinguished between summary judgment challenges relating to the sufficiency of the evidence and those involving a “purely legal issue” that can be resolved with reference to undisputed facts. Ortiz held that the case before the court involved the former and that such matters are not reviewable on appeal following a jury trial. There, too, the appellant did not file a Rule 50 motion raising the same challenge, and had the appellant done so, the matter would have been reviewable in that context.

Ortiz expressly declined to address whether the summary judgment ruling would have been reviewable had it involved a “purely legal issue.” As Blessey shows, the answer in the Fifth Circuit is no.

Preservation Issue: Motions In Limine

The appellant in Blessey also challenged the denial of a motion in limine to exclude certain evidence. Having lost that effort, the appellant referenced the evidence at issue in opening statements and then affirmatively introduced the evidence. The Fifth Circuit held that the appellant’s actions waived any challenge to the pretrial ruling.

Tip: If you unsuccessfully tried to keep something out of evidence, avoid potential waiver problems by not being the party that introduces that evidence at trial.  If you believe you must address the evidence, consider seeking a ruling or agreement that by informing the jury about the evidence, you are not waiving your objection that the evidence should be excluded.