The Nevada Supreme Court addressed issues of seatbelt evidence and violations of pretrial motions in limine in Roth v. BMW, 127 Nev. Adv. Op. No. 11 (April 14, 2011).
The case involved a single car rollover in which the Plaintiff, Alyson Roth, was rendered a paraplegic. Roth was a passenger in a 1987 BMW 528e, and she was sleeping in a reclined position in the front passenger seat when the car strayed onto the shoulder, swerved back across the road, and rolled 2.5 times before coming to rest on its roof. Roth was ejected from the vehicle and suffered severe injuries to her spine.
Roth sued the driver of the vehicle for negligence, and BMW for strict product liability. Roth's theory against BMW was that the car's safety restraint was defective and allowed her to be ejected from the vehicle. Roth and the driver of the car both claimed that Roth was wearing her seatbelt at the time of the accident.
In a pretrial motion in limine, Roth moved to preclude BMW from introducing evidence that Roth was not wearing her seatbelt. Roth based this motion on Nevada's seatbelt statute, NRS 484D.495, which requires that an adult wear a seatbelt but that failure to wear a seatbelt "may not be considered as negligence [or] misuse or abuse of a product or as causation in any [civil] action." NRS 484D.495(4). BMW argued that the statute could not prohibit evidence of seatbelt nonuse where the plaintiff sought damages for enhanced injuries due to defects in the safety restraint system.
The Court ruled that Roth had to show that she was wearing her seatbelt at the time of the accident, so BMW could introduce evidence of nonuse of the seatbelt. However, the Court crafted a limiting instruction, given before opening statements and again before deliberation: "BMW [will introduce] [has introduced] evidence the Plaintiff was not wearing her seatbelt. This evidence may be considered by you in evaluating Plaintiff's claim against BMW that the subject vehicle was defective and unreasonably dangerous. You may not consider this evidence for any other purpose."
In opening statements, BMW's attorney stated that the evidence would show that Roth was ejected from the car because she wasn't wearing her seatbelt, and had she been wearing her seatbelt, she wouldn't have been ejected and she wouldn't have received her spinal injuries. Roth's attorney did not object.
In closing arguments, BMW's attorney said, "[L]et's look at what [Roth is] claiming here and ask the question, did any of these alleged defects cause any injury to Ms. Roth or the accident? Take the seatbelt. It wasn't being worn . . ." Roth's attorney objected, and the Court clarified that BMW could "say that there is evidence she was not wearing her seat belt, so the seat belt couldn't have been defective, and, therefore, the defect in the seat belt could not be a cause of the injuries," but that BMW's attorney "can't say anything beyond that."
The jury returned a $5.9 million verdict in favor of Roth against the driver of the BMW for negligence, but returned a verdict in favor of BMW. The jury found no defect in the BMW.
Roth moved for a new trial against BMW based on NRCP 59(a)(2), which provides that misconduct may warrant a new trial if the misconduct "materially affect[s] the substantial rights of an aggrieved party." The district court granted the motion.
Violation of Motion in Limine
The Supreme Court addressed several issues in determining whether a new trial was warranted.
One issue was whether the prevailing party on a pretrial motion in limine must contemporaneously object to misconduct concerning a pretrial motion in limine. The Court concluded that whether a contemporaneous objection is required depends on whether the party prevailed on the motion in limine. Where the admission or exclusion of evidence at trial is pursuant to an order in limine, the alleged error at trial is the same as the error alleged in the ruling on the motion, and the party need not contemporaneously object in order to preserve claim of error on the ruling on the motion in limine. However, where the alleged error is attorney misconduct involving the violation of an order in limine, a contemporaneous objection must be made in order to preserve the claim of error on appeal. The Court explained the reasoning behind the distinction:
Dispensing with the requirement of a contemporaneous objection would allow the proponent of the order in limine to remain silent and hope for a new trial even though, in many instances, an objection and curative instruction would prevent the need to relitigate the case. Thus, contemporaneous objections to claimed violations of an order produced by a motion in limine are required to prevent litigants from wasting judicial, party, and citizen-juror resources.
BMW's attorney's references to seatbelt evidence in opening statements were not objected to; thus, claim of error was waived unless the misconduct was plain error. Noting that Roth did claim that the seatbelt system was defective, the lack of specificity in the court's order in limine, and the uncertainty in the law with respect to the seatbelt defense in crashworthiness cases, the Court ruled that the comments regarding seatbelt nonuse in opening statements were not plain error.
The Court then addressed the objected-to conduct in closing statements. Conduct that is admonished and objected to is subject to standards set forth in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008). Under Lioce, "a party moving for a new trial bears the burden of demonstrating that the misconduct is so extreme that the objection and admonishment could not remove the misconduct's effect." Lioce, 124 Nev. at 17, 174 P.3d at 981. The Court noted that "A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear." Black v. Schultz, 530 F.3d 702, 706 (8th Cir. 2008).
The Court held that the closing argument statements did not warrant a new trial, because the jury instruction cured any misconduct, and in fact, the jury found no product defect and did not reach causation.