Preserving the Record & Motions in Limine

By Judge James L. Kimbler

A recent decision from the Court of Appeals for the Ninth Appellate District illustrates two important points. The first is the need to preserve the record when trying a case. The second is that pre-trial rulings on motions in limine are not reviewable on appeal unless there is an objection made when the ruling is implemented during the trial itself.

The issue that the Lorain County Court of Appeals faced was whether or not a defendant in a personal injury case could introduce evidence of the amount of the plaintiff's medical bills that were "written off" by the plaintiff's medical insurers. The Court of Appeals put the issue this way in paragraph 3 of the opinion:

"Defendant filed a notice of her intent to introduce medical billing information, specifically evidence of medical bills which were “written off,” for the jury’s consideration in determining the fair and reasonable value of medical expenses incurred by Plaintiff. Defendant argued that both the Ohio Supreme Court’s decision in Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, and R.C. 2315.20 support the admission of such evidence for that purpose. Plaintiff filed a motion in limine to exclude collateral source evidence, specifically the amounts of contractual write-offs or adjustments. Plaintiff argued that Defendant’s reliance on the Robinson decision is misplaced because the provisions of R.C. 2315.20 are controlling in a case where a health insurance company who paid Plaintiff’s medical bills has a contractual right of subrogation. On June 1, 2009, the trial court granted Plaintiff’s motion in limine to exclude collateral source evidence for the reason that Plaintiff’s cause of action accrued after the effective date of R.C. 2315.20, rendering the statute controlling. The trial court ordered that “[D]efendant and defense counsel are ordered not to inquire, reference or mention at any phase of the trial any thing to suggest that the medical bill amounts should be reduced by any contractual write-offs or adjustments to medical bills.”"

At trial, the jury returned a verdict of $34,809.00 in economic damages, and $50,000.00 in noneconomic damages, for a total of $84,809.00. After the verdict was reduced to a judgment, the defendant appealed, raising one issue on the appeal. The issue was whether the trial court had erred in excluding the evidence of the amount "written off" or adjusted by the plaintiff's medical insurers.

The Court of Appeals affirmed the judgment of the trial court, but did not reach the issue of whether Robinson v. Bates is still good law after the enactment of R.C. 2315.20. The reason why the Court of Appeals didn't reach that issue was because the defendant didn't preserve the record on appeal.

In paragraph 8 of the appellate decision, the following language appeas:

"On September 11, 2009, Defendant filed a motion in the trial court to correct, supplement and certify the record with an agreed statement. Defendant conceded therein that she had earlier filed an agreed statement pursuant to App.R. 9(D) directly with the appellate court without first obtaining approval by the trial court. Plaintiff timely responded in opposition. The trial court granted the motion to correct or supplement the record and ordered the clerk of courts to certify the parties’ agreed statement and transmit it as part of the record on appeal. On September 22, 2009, the parties filed an agreed statement as the record on appeal pursuant to App.R. 9(D) in the trial court. However, there is no record that the agreed statement was ever filed with this Court. The record contains no agreed statement bearing a time-stamp from the appellate clerk. Nor does the appellate docket indicate that the agreed statement was filed with this Court. The record in this case consists solely of the original papers, exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment. It does not, however, contain a valid App.R. 9(D) agreed statement."

As a result of not fining the App. R. 9 (D) agreed statement, the Court of Appeals had noting to review. This is because the decision of a trial court on a motion in limine is not a reviewable order unless the losing party objects at trial when the trial court implements its order in limine. The following language appears in paragraph 10 of the appellate decision:

“A motion in limine is a request for a preliminary order regarding the admissibility of evidence that a party believes may be improper or irrelevant. Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310. The purpose of a motion in limine is to alert the court and counsel of the nature of the evidence in order to remove discussion of the evidence from the presence of the jury until the appropriate time during trial when the court makes a ruling on its admissibility. Id. An appellate court need not determine the propriety of an order granting or denying a motion in limine, unless the claimed error is preserved by an objection, proffer, or ruling on the record at the proper point during the trial. State v. Maurer (1984), 15 Ohio St.3d 239, 259-260. In order for an appellate court to review the propriety of the exclusion of evidence, the party claiming prejudice must proffer into the record the substance of the excluded evidence.State v. Tait (Jan. 29, 1997), 9th Dist. No. 96CA006339. See, also, Evid.R.103(A)(2). This enables the reviewing court to ‘determine whether or not the [ruling] of the trial court [was] prejudicial.’ Smith v. Rhodes (1903), 68 Ohio St. 500, 505.” State v. Keenan (Feb. 20, 2002), 9th Dist. No. 20528."

Since there was no record filed showing the alleged error, the Court of Appeals had nothing to review. Since it is the responsibility of the appellant to transmit the record necessary for the appeal, the Court of Appeals had no option other than to affirm the trial court's judgment.

The decision is captioned Carreon v. Duncan, 2010-Ohio-703. It was issued on March 1, 2010, and was written by Judge Donna Carr. It can be read here: http://www.sconet.state.oh.us/rod/docs/pdf/9/2010/2010-ohio-703.pdf
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