In the 2016-2018 Supreme Court Rules Committee Reports (224 N.J.L.J. 497), the committee invites comment on a number of proposed emendations and additions to our rules including upon which is the proposed addition of R.4:25-8, Motions in Limine. Almost two years ago, in an editorial entitled, Empower Courts to Rule on Expert Reports Before Trial, NJLJ 2/26/16, we called upon our Supreme Court “to direct the Civil Practice Committee to develop guidelines which, on the one hand, [will] allow a litigant to quickly bar testimony which discovery demonstrates will not survive a trial”…while, on the other hand, be mindful that “if, by reading the respective briefs, it appears that a pre-trial hearing on the motion should not be entertained, the request simply should be denied.”

The proposed rule usefully sets standard parameters for the timing and briefing of in limine motions and requires that, to the extent practicable, they be decided by the judge assigned for trial. It requires that all such motions be filed no less than 14 days before the scheduled trial date, except for good cause shown. In one respect, though, it sets a trap for unwary counsel.

Proposed R. 4:28-5(a)(1) defines a motion in limine to exclude “an application to bar an expert's testimony in a matter in which such testimony is required as a matter of law to sustain a party's burden of proof.” As a practical matter, this means that when expert testimony is an essential element of a plaintiff's prima facie case, a defendant who wants to exclude that testimony as inadmissible net opinion or otherwise not competent cannot do so before trial by a motion in limine. However, the issue can be raised by motion for summary judgment within the time limits set by R. 4:46-1. That rule requires summary judgment motions to be returnable no later than 30 days before a scheduled trial date and filed 28 days before the return date.

It follows that where the exclusion of expert testimony would constitute a knockout blow, the moving party must proceed by motion for summary judgment or forego any objection until trial. The proposed rule allows expert testimony whose exclusion would not be dispositive to be addressed under the shorter time frames of a motion in limine.

The summary judgment rule provides ample time in advance of trial for the opposing party to respond to and the court to consider a motion that will dispose of the case without trial. The Supreme Court Evidence Committee recommended that motions in limine that have dispositive effect be handled under the longer deadlines to avoid hurried pretrial consideration.

Because a testifying expert's report is discoverable and his trial testimony should be confined to the scope of the report, the inadmissibility of his opinions can be thoroughly explored by deposing him and—if they are essential to the adversary's case—addressed on a motion for summary judgment. If the result of expert discovery reveals that an essential proposed witness cannot offer an admissible opinion as a matter of law, a motion for summary judgment allows the opposing party to stop spending needlessly to defend or prosecute a case while assuring due consideration in ample time to protect the proponent's right to a trial on the merits.

We can see no issue of expert admissibility that could be raised on a motion in limine that could not be raised equally well on a motion for summary judgment. The only difference is one of timing. However, counsel need to be aware of the dispositive motion carve-out from the in limine rule lest they lose the chance to forestall an avoidable trial.

Editorial Board member Edwin Stern recused from this editorial.