Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative.

In Lawrey, after Dawn Lawrey's daughter was born with permanent nerve damage in her right shoulder and arm, Lawrey brought a medical malpractice action against Dr. Dawn Murray, the physician who performed the delivery. When the jury found for the defendants, Lawrey appealed.

On appeal, Lawrey challenged the district court's pretrial order granting Dr. Murray's motion in limine, which limited the testimony Lawrey's experts could provide on the relationship between excessive physician-applied traction and brachial plexus injuries. In response, the defendants claimed that Lawrey had to prove plain error because she failed to make an offer of proof at trial.

And the defendants had some support for this claim. As noted, in Smith v. Hy–Vee, a divided panel of the Eighth Circuit interpreted amended Rule 103(b) "as still requiring an offer of proof at trial after a definitive ruling on a motion in limine, reasoning that the rule refers to renewing an objection, and thus an initial offer of proof must be made before it can be renewed."

In Lawrey, however, the court disagreed with Hy–Vee, concluding that

The Hy–Vee majority...overlooked several other Eighth Circuit decisions that had already considered whether—following the 2000 amendment—Rule 103 required an offer of proof at trial to preserve a claim of error following a definitive ruling on a pre-trial motion in limine. All those cases held the error was preserved without requiring an offer of proof at trial, essentially recognizing that the motion in limine itself (or the opposition to the same) served as the required objection which the Hy–Vee majority found lacking.

-CM