The following is an article of fiction. The author simply has a well-developed imagination. 

He should have won summary judgment. And he had – on all claims save one. But one was enough. 

And now he found himself in that wonderfully awful time period before trial began. The pressure was mounting but not yet so crushing that it left him breathless. His partners knew the date was close, and they picked up his other work, giving him the necessary freedom to prepare and just think. He needed to think. Trials were his CFL, his Career First Love. There was nothing related to his job that carried the same pure, raw emotion of a trial. Everything got elevated:  humor, creativity, exhaustion. At trial, he was his best at pivoting when necessary, demonstrating calm when the tides unexpectedly turned, and providing encouragement to his team when he really wanted to just rail at them (and himself). Well, that last sentence was more aspirational than realistic. He remembered and passed along a truism his mentor told him when she was at her wit’s end dealing with his inexperience, stage fright, and defeatism. “As long as you’re breathing, you can fight. So remember to breathe. Breathe after your last question. Breathe before your next question. It’s not a difficult concept.” She had a way with words. Lifelong friendships, including with the aforementioned (a word never to be used in any trial… or pleading … or even here!) crusty old mentor, spawned during trials. He absolutely loved – no, that is the wrong word – he craved trials. 

But he should have won summary judgment. He and, more importantly, the client both thought so. And he had – on all claims save one. 

The judge was good. In her former life, she worked as a products lawyer, first for a small plaintiff shop and then later for a boutique defense firm that recognized her trial skills and made it worth her while. The boutique firm also had the kind of connections that helped elevate a good lawyer to the bench. She was the kind of thoughtful jurist that both sides wanted. That is, any side that relished enforcement of deadlines and actual application of law to facts without bias. But that was the thing – she applied the law without bias. It pained him to admit that her ruling in this case was right. The surviving claim was a throw-away claim in a products case, the type of claim that plaintiffs always pled and never actually pursued. Maybe that was why he addressed it in a footnote in the summary judgment briefing instead of meeting his burden under FRCP 56(c). And here was the other thing — the dispositive and Daubert deadlines were long gone. 

If he went to trial, he was fairly certain he would win a Rule 50(a) motion. The plaintiff simply did not have the expert evidence needed to get to a jury on this last claim, at least not with what she had now. The expert did not have the necessary opinion in his report. But things have a way of changing at trial. The plaintiff’s lawyer surely knew the opinion was not in the report, too, and would be working to find a way to get it in front of the jury. Somehow. He did not want the client paying for even half a trial that ought not to happen, much less a full trial if he missed an objection. 

So, what now? He could ask for reconsideration, but have you looked at the applicable standard for that lately? And is it really wise to start a trial by telling the court she made a mistake? 

He could ask the court for leave to file a supplemental summary judgment motion on the single, outstanding claim. Sometimes, falling on your sword worked. “I can support the Rule 56 motion on this last claim; I just didn’t do it the first go-round.” This particular judge was unlikely to determine that excuse demonstrated “good cause.” 

What else? He could file an additional motion in limine. That might work. He could ask to exclude the non-existent expert opinion. That would alert the judge to the issue and to expect his objection at trial. It would also alert the plaintiff’s lawyer. And even if he won in limine, that might not quite get him the brass ring. He still needed a vehicle to get rid of the claim before trial.

When all else fails, read the rules. He was in trial prep mode, and one of his most consistent rituals was to read through the rules of evidence. Yes, he knew them. But it was a great habit, and he found it essential before every trial. So he started with 101. At 102, he began to breathe a little faster. “Purpose. These rules should be construed so as to … eliminate unjustifiable expense ….” Well, if that was the purpose of the rules of evidence, surely there was some way to make them work for him here. He kept reading. Rule 103 was helpful as a reminder if he went the in limine route. “To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.” Assuming he won the MIL, he could remind the court of that win before the plaintiff’s expert took the stand and sprinkle in some 103 language. But that meant Plan A failed, and he was already at trial. He kept reading.

At 104, he was on fire. Bingo! 

Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

***

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

***

He nearly skipped the rule. He was familiar with 104(a) from the Rule 702 context. Otherwise, he remembered 104 only vaguely from his Criminal Law class when he was still flirting with the idea of government work (before law school debt changed his mind for him). His recollection was that 104(c) generally came into play with confessions. That would not help him here, but he had just enough OCD to keep reading.

How had those words never registered before? 104(c)(3). The court must conduct a hearing. That was the first part. And here—where the dispositive deadline was long gone, and he would have a hard time convincing the court he had good cause—that was half the battle. He read on. The court must conduct a hearing if “justice so requires.” What had Rule 102 said one of the purposes of the rules was: to eliminate unjustifiable expense. Yes! The tendrils of a plan began to come together. 

But surely he was not the first lawyer to seize upon that glorious language from Rule 104(c)(3)?  He asked around his firm and got a response from an old-timer who primarily dealt with mass torts in multi-district litigations. The older lawyer recalled a medical device case that was remanded from an MDL to Arizona. His Arizona local lawyer pointed out an interesting Arizona statute, A.R.S. section 12-689(A)(1), that precluded punitive damages for products approved or cleared by FDA. Of course, the dispositive motion deadline was long gone as the MDL court preferred to handle those things, so the old-timer could not seek summary judgment on the punitive claim. Instead, he sought in limine to exclude evidence related to punitive damages and asked the Arizona court to hold a hearing under FRE 104 to determine the “preliminary question” of whether the statute applied to the case. 

The Arizona court saw through the creativity and initially denied the MIL, noting quite properly that it actually was an untimely motion for summary judgment and that the defendants could raise it in a Rule 50 motion during trial. But the matter troubled the court because the issue was a purely legal question. Eventually, the old-timer recalled, with more than a bit of satisfaction, that the court held the requested hearing and kicked the punitive claim. Based on that success, the older lawyer suggested to his younger partner that he frame his request similarly – as a purely legal question.

In our hypothetical scenario here, this is how it worked:

1. The court rightly dismissed on summary judgment the plaintiff’s strict liability failure to warn and design defect theories. But our over-confident hero did not adequately support the dismissal of the plaintiff’s negligent infliction of emotional distress claim.
2. Local law required that the plaintiff must have expert medical or scientific proof to demonstrate serious or severe emotional distress.
3. The plaintiff’s expert had written a tome on her physical injuries but had not included an opinion that she had a significant emotional injury.
4. Our erstwhile hero, as part of the joint proposed pretrial order, asked for a hearing on the remaining claim under FRE 104(c)(3). He pointed to the expert report. He noted evidentiary evidence was not necessary since his point was the omission of the opinion. Just for fun, he did a word count of the tome and told the court that “emotion” was nowhere to be found. He hoped the court got the point and the pun.
5. He pointed to FRE 102. And just to be on the safe side, he pointed to FRCP 1 with its admonition that those rules (like FRE 102) extol the virtue of an “inexpensive determination of every action and proceeding.”
6. Then he began to prepare for the pretrial conference and, fingers crossed, the requested Rule 104 hearing.

Meanwhile, the court got to work. Searching “Rule 104” led to the court’s now very-well-settled ability to decide “whether a witness is qualified” under Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 579 (1993). The court knew full well she could hold a FRE 104 hearing to help her decide a Rule 702 challenge. She also knew she could hold a hearing to determine the existence of a privilege. Neither was the issue here, as the scenario was somewhat novel. Simplistically, the issue here was whether evidence of the plaintiff’s emotional suffering was admissible when the other side argued she lacked the expert proof necessary to actually prevail on the sole remaining claim. It seemed the plain language of Rule 104(a) supported the request.

Next, a generic search for “Rule 104(c)(3)” led to the unhelpful discovery that there exists a Tax Court Rule 104(c)(3). Yawn. Outside the tax realm, another preliminary Westlaw search garnered cases applying the Petroleum Marketing Practices Act section 104(c)(3). Really? The court decided to enlist her clerk to help.

First, as is self-evident from the rule, FRE 104(c)(3) applies only to jury trials. See United States v. Mendoza, 2019 WL 3220549, *2 (D. Arizona Jul. 17, 2019) (Senior Judge Campbell). There is no need for it in a bench trial. While helpful, the court thought it pretty obvious.

Second, a number of cases reference Rule 104(c)(3) in the context of FRE 104(b). See United States v. Holmes, 2021 WL 2044470, *39 (N.D. Cal. May 22, 2021). Rule 104(b) acknowledges that sometimes evidence is relevant only if another fact exists. Now that also was useful here. Evidence of the plaintiff’s emotional suffering (caused by her horrific physical injuries) was relevant only if she had expert proof of an emotional injury. The court and her clerk reviewed the expert’s rather robust report. The plaintiff did not have the requisite expert proof.

Looking at the black and white letters of Rules 104, 102, and FRCP 1, the court found herself bound to have the requested hearing. And she did the right thing. She noted the lack of requisite expert proof. She noted the lack of relevancy of the plaintiff’s emotional distress evidence without expert proof. She noted that irrelevancy made the plaintiff’s testimony inadmissible. And that without either the plaintiff’s testimony or an expert opinion, justice required not only the hearing but a dismissal. She also noted the creativity of the approach via Rule 104, along with her annoyance that the better approach would have been via Rule 56 with a timely motion and a more fulsome argument not relegated to a footnote.

The lawyer listened and learned his lesson. But he also tucked Rule 104(c)(3) away for use another day. He might not always get the hearing; he might not always prevail if he did get the hearing; but a pending Rule 104(c)(3) motion brought a lot of pressure if nothing else.  Sometimes that is exactly what a client needs.

Finis