Sample Motion to Exclude Evidence of Amount Sought in Ad Damnum Clause

Motion in Limine to Prevent Plaintiff from Mention of How Much Money Plaintiff Originally Sought in the Complaint

This is a motion to prohibit the defense lawyers from bringing up the amount of money that plaintiffs' sought in the complaint.

Good Maryland lawyers increasingly do not need to file this motion. Why? Because we have modified our rules so that you just need to allege "more than $75,000" to make sure you have asked for enough money in most tort claims. So as the old cases die out, this should not be an issue much longer. Still, few Maryland lawyers got the memo so we stil get these "$5 million sought" headlines which are misleading and drive most trial lawyers mad.

IN THE CIRCUIT COURT OF MARYLAND FOR BALTIMORE COUNTY

EDWARD JOHNSON
- Plaintiff,

v.

WILLIAM KENNEDY
- Defendant.

Plaintiff’s Motion in Limine to Exclude Any Mention of the Ad Damnum Clause

Now comes the Plaintiff, Edward Johnson, by and through his attorneys, Ronald V. Miller, Jr. and Miller & Zois, LLC, and hereby moves that this Honorable Court exclude evidence of the ad damnum clause from Plaintiff’s Complaint, and for cause therefore state as follows:

  1. This is a personal injury truck accident case where the only facts at issues are whether defendant was negligent in operating his truck, and, if so, whether that negligence was a proximate cause of plaintiff’s injuries. In this personal injury action, the amount of damages sought by plaintiff in the ad damnum clause of the Complaint should be excluded from the trial of this matter because it is irrelevant and more prejudicial than probative.

  2. In his Complaint, Plaintiff sued for one million dollars ($1,000,000.00).
Argument
  1. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. R. Evid. 5-401. Evidence that is not relevant is not admissible. Md. R. Evid. 5-402.

  2. Further, even if this evidence were relevant, it would be inadmissible per Md. R. Evid. 5-403, which holds:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

  3. Maryland Courts have uniformly treated ad damnum clauses as meaningless formalities of pleading. In Merzbacher v. State, 346 Md. 391, 396 (Md. 1997), the defendant, a teacher at Catholic Community Middle School of Baltimore, was charged with rape and sexual child abuse. During the trial, the defendant's attorney attempted to introduce evidence of civil cases filed by the victim, a witness, against defendant and the Archdiocese. Id. The trial court disallowed entry of the civil complaints into evidence, ruling that:
    ...I think it could unfairly mislead the jury because we all know that she can sue for ten billion dollars too if you want to do that. There is no limit to the ad damnum clause in a civil suit and if I’m willing to admit that, to let them come in and say yes, it’s in the hundred and forty million dollar range or so forth I would feel obligated to have testimony brought before the jury as to the way the ad damnum cause is handled by lawyers now in the State of Maryland, that there is no limit to what you can sue for and that the numbers for all intents and purposes mean nothing and I think it would allow–I think it would be unfairly prejudicial for the jury to feel that this is what she is really seeking, she is really, really trying to get a hundred and forty million dollars. I think it would be unfair and prejudicial. Id. at 412-413.

  4. Furthermore, plaintiffs are placed in the unenviable position when filing a complaint of having to determine the amount of damages, which is the province of the jury. If a plaintiff files for an amount that is lower than the jury’s verdict, Maryland courts historically have been receptive to motions by the opposition for remittitur of the award consistent with the ad damnum clause. See, e.g., Falcinelli v. Cardascia, 339 Md. 414 (Md. 1995); Scher v. Altomare, 278 Md. 440 ( 1976); Attrill v. Patterson, 58 Md. 226 (1882); Zeller v. Greater Baltimore Med. Ctr., 67 Md. App. 75 (1986); Carl M. Freeman Assocs. v. Murray, 18 Md. App. 419 (1973). Since the amendment of Md. R. Civ. Proc. 2-341, however, trial courts now have discretion to allow amendment of the ad damnum clause after the return of a jury’s verdict. See Owens Corning v. Bauman, 125 Md. App. 454, 532, n.34 (1999). The considerations underlying this discretion are not apparent in cited case law.

  5. Under these circumstances, the amount complained for is not relevant because it does not necessarily bear any clear relationship to the amount of damages actually realized by the Plaintiff. Instead, it is intended to be all-inclusive of all possible realistic verdicts. Likewise, mention of the amount stated in the ad damnum clause is more prejudicial than probative because, as stated in Merzbacher, the jury is likely to misapprehend the true nature of the clause and its place in Maryland pleading.

WHEREFORE, for the aforementioned reasons, Plaintiff requests that the Court prohibit defense counsel and their witnesses from providing testimony or introducing evidence of the amount of damages requested in the ad damnum clause of Plaintiff’s Complaint.

MILLER & ZOIS, LLC
Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
(410)779-4600 Telephone
(410)760-8922 Facsimile
Attorney for the Plaintiff

Certificate Of Service

I hereby certify that a copy of the foregoing Plaintiff’s motion in limine to exclude any mention of the ad damnum clause was sent via U.S. Mail, first-class, postage pre-paid, this day of ___________________________, 2012, to:

H. Barritt Peterson, Jr. & Associates
One West Pennsylvania Avenue, Suite 500
Towson, Maryland 21204-5025
Attorneys for Defendant

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