By: Rey O. Villanueva, Esq.[1] and Joseph C. Valenzuela, Esq,[2]
On September 1, 2020, New Jersey adopted Rule 4:25-8, a new Court Rule, which addresses motions in limine. The process of implementing Rule 4:25-8 was initially prompted by the Appellate Division’s decision in Cho v. Trinitas Regional Medical Center, 443 N.J. Super. 461 (App. Div. 2015), certiff. denied, 224 N.J. 529 (2016). In Cho a defendant filed a “motion in limine” that sought to dismiss the complaint on the day before jury selection in a medical malpractice case. The Appellate Division held that the eleventh-hour consideration of the purported motion in limine, and dismissal of the complaint under those circumstances, deprived the plaintiffs of their right to due process. To allay such concerns, Rule 4:25-8 was implemented to define motions in limine, and the procedures for adjudicating such motions.
Rule 4:25-8 defines a motion in limine as 1) an application returnable at Trial, 2) for a ruling regarding the conduct of the Trial, 3) which if granted, would not have a dispositive impact on a litigant’s case. Accordingly, subject to Rule 4:25-8, motions in limine that may have a dispositive effect on the case are explicitly prohibited, and dispositive motions cloaked as motions in limine will not be entertained by the Court. Expressly included within the definition of a “dispositive motion” are motions which seek to bar expert testimony in matters in which such experts are required, as a matter of law, to sustain a party’s burden of proof.
Additionally, Rule 4:25-8 sets forth the procedure for filing and adjudicating motions in limine. Rule 4:25-8 mandates that motions in limine be submitted as part of the pretrial exchange information required to be served seven (7) days prior to the initial Trial date, pursuant to Rule 4:25-7(b). Once motions in limine have been submitted, the Trial court must rule on each prior to opening statements or “direct the litigants on whether or to what extent they may refer to the disputed evidence or other issue raised in the motion in the opening statements or otherwise, until such time as the motion is decided.” Under Rule 4:25-8, the Trial court need not decide any late-filed motion in limine prior to opening statements unless good cause is shown.
This rule change effectively makes the summary judgment stage as the final opportunity for any dispositive action, including barring experts when such experts are required for Trial as a matter of law. Motions in limine can no longer serve as a safety net to assert dispositive arguments immediately prior to Trial. Moreover, motions in limine can no longer be used as a surprise tactic to attempt to dismiss claims or defenses on the eve of Trial.
Rule 4:25-8 promotes earlier preparedness for practitioners, as they must be equipped to address all possible dispositive arguments at the summary judgment phase of litigation. The new rule further encourages both sides to reasonably evaluate their case’s merits and disadvantages in order to properly advise and recommend Trial or settlement after the close of discovery.
In practice, insurance carriers may note that there is an influx of requests for authorization to file dispositive motions, especially motions pertaining to the barring of expert witnesses. In the past, there may have been an inclination to wait until the eve of Trial to authorize the filing of such motions. However, the implementation of Rule 4:25-8 has removed that luxury. Thus, the handling attorney must relay the possibility of any potential dispositive motion to the carrier as soon as possible, so that the carrier may adequately consider the recommendation. In light of this rule change, it becomes even more imperative that handling attorneys and claims professionals maintain a constant dialogue regarding the strategy to be implemented on a file.
[1] Rey Villanueva, Esq. is a Shareholder in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Rey can be reached at RVillanueva@grsl.com..
[2] Joseph C. Valenzuela, Esq. is an Associate in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Joe can be reached at JValenzuela@grsl.com..
