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Making the most of motions in limine: you can defeat five common defense arguments in medical negligence cases before trial even begins. Motions in limine - backed by powerful precedent - are the key.

Article Excerpt
In any trial of a medical negligence case, you can expect to encounter certain defenses. Some are difficult to overcome; others are easily countered and dismissed. But some common defense tactics can be stopped in their tracks before a jury is even impaneled, with a powerful, but underused, tool: the motion in limine.

A motion in limine may be used to facilitate the admission of evidence, to limit what may be introduced into evidence, or to limit what a piece of evidence may be used for. The motion also may be used to exclude part or all of a defense expert's testimony. Use this tool preemptively to attack five common defense arguments, and you and your client will be in a better position before trial begins.

Unfavorable inference

In many jurisdictions, a defendant can argue that a plaintiff's failure to call a witness under his or her control permits an inference that the witness's testimony would have been unfavorable. (1) Under limited circumstances, a jury instruction may be given to this effect. (2)

A missing-witness instruction should not be given if the witness is equally available to both parties or if the plaintiff can provide a reasonable excuse for the failure to produce the witness. (3) These rules are especially helpful when you know you will not be calling one of the treating professionals in a case where the plaintiff suffered injuries that required continuous medical care.

In support of a motion in limine to block the defense's use of a missing-witness inference or instruction, argue that the defendant was aware that the plaintiff was seen by many doctors, nurses, and other health care professionals, any of whom could have been disclosed and subpoenaed by any party. (4) Point out that where the defendant has access to the same list of professionals who may have knowledge of the plaintiff's injuries, the plaintiff does not have an obligation to call each one. (5)

You can also argue that you have a reasonable excuse for not calling the witness. Explain to the court that calling every doctor or nurse as a witness would require extraordinary expense and involve the presentation of a good deal of cumulative testimony. (6)

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