The Dallas Court of Appeals recently provided a “helpful reminder” of how to preserve error when a trial court excludes evidence.

In Ferguson v. Plaza Health Services at Edgmere, 2014 Tex. App. Lexis 6342 (Tex. App.—Dallas June 11, 2014), an assisted living facility sued Ferguson for unpaid fees. Ferguson asserted counterclaims including medical negligence. But because Ferguson failed to provide a timely medical expert report, Ferguson’s medical negligence claim was dismissed.

Before trial, the facility sought to exclude any evidence of medical negligence. The trial court agreed and granted a motion in limine on this issue. Ferguson’s attorney then made a “proffer” in which he explained the need for the evidence and generally summarized what he expected the evidence would show. At the end of trial, the court granted a directed verdict for the facility on Ferguson’s counterclaims and affirmative defenses. On appeal, Ferguson complained of the trial court’s exclusion of medical negligence evidence, but the court of appeals held the issue had not been preserved.

What should Ferguson have done?

Remember that a ruling on a motion in limine doesn’t preserve anything. (For either side.) At trial, you still have to offer evidence (or object to its being offered) to preserve error.

  • During the trial, bring the issue to the court’s attention and get a ruling. In this case, Ferguson should have approached the bench during trial, formally offered the evidence, and obtained a ruling on the offer—all on the record and out of the jury’s presence.
  • If the evidence is excluded, make an offer of proof. Presumably, the trial court in Ferguson would have ruled the evidence inadmissible. Ferguson then should have made an offer of proof by making a record of the substance of the evidence excluded so that it might be considered on appeal.