Pretrial Motions in Limine and Pre-Voir Dire Records Do Not Preserve Excluded-Evidence Error Without a Trial Offer of Proof

Introduction

Schultz vs. Great Plains Trucking, Inc. (Supreme Court of Missouri, Feb. 11, 2025) arose from a fatal multi-vehicle highway collision in Wentzville, Missouri, in dark, rainy conditions. A Great Plains tractor-trailer driven by Beck collided with a vehicle occupied by “mother” and “son,” after mother’s vehicle fishtailed, struck the median wall, and came to rest on the highway. Son died from injuries sustained in the collision.

Plaintiffs (son’s parents) sued Beck and Great Plains for wrongful death. A jury awarded $10,000,000 in compensatory damages against defendants, plus aggravating circumstances damages of $10,000,000 against Great Plains and $25,000 against Beck. The circuit court entered judgment and awarded post-judgment interest; post-trial motions for a new trial or JNOV were denied. The Supreme Court of Missouri granted transfer after a court of appeals opinion.

The appeal presented four main themes: (1) preservation of error regarding exclusion of an impairment expert, (2) preservation of error regarding participation by separate counsel for plaintiffs, (3) whether substantial evidence supported a “failure to keep a careful lookout” submission, and (4) whether evidence supported aggravating circumstances damages against the driver and the trucking company.

Summary of the Opinion

  • Point I (excluded expert): Not preserved. Pretrial litigation over a motion in limine—even with a purported “continuing objection” before the venire was sworn—did not substitute for offering the evidence at trial and making a specific trial offer of proof.
  • Point II (separate counsel participation): Not preserved. Defendants’ pretrial motion to limit questioning did not preserve later complaints about voir dire, openings, and closings where no timely, specific trial objection was made.
  • Point III (careful lookout instruction): Properly submitted. Substantial evidence supported that Beck failed to keep a careful lookout, including lateral observation and anticipation of danger indicated by slowing adjacent-lane traffic.
  • Points IV & V (aggravating circumstances damages): Properly submitted. Clear and convincing evidence allowed a finding that Beck and Great Plains showed complete indifference to or conscious disregard for the safety of others.

Disposition: Judgment affirmed.

Analysis

1) Preservation Doctrine as Applied to Excluded Evidence (Point I)

Precedents Cited

  • Rosales v. Benjamin Equestrian Ctr., LLC, 597 S.W.3d 669 (Mo. App. 2019): The Court used Rosales to frame a “motion to exclude” as equivalent to a motion in limine, i.e., a preliminary evidentiary ruling that remains subject to reconsideration at trial.
  • Lozano v. BNSF Ry. Co., 421 S.W.3d 448 (Mo. banc 2014): Provided the canonical four-step preservation roadmap; critically, when evidence is excluded, the proponent must offer it at trial and make a detailed offer of proof when exclusion is enforced.
  • Petersen v. State, 658 S.W.3d 512 (Mo. banc 2022): Reinforced that a motion in limine filed/ruled the morning of trial is still “pretrial” and preserves nothing for appellate review.
  • Wilkerson v. Prelutsky, 943 S.W.2d 643 (Mo. banc 1997): Supplied the core rationale: in limine rulings are preliminary and “subject to change during the course of the trial”; if exclusion is granted in limine, an offer of proof must be made at trial.
  • Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203 (Mo. banc 1983): Set the specificity standard—an offer of proof must be relevant, specific, and definite.
  • Green v. Fotoohighiam, 606 S.W.3d 113 (Mo. banc 2020): Though a summary judgment case, cited for the broader institutional point that courts are not required to “sift through the entire record” to identify the movant’s theory—an analogy the Court used to reject “file-dumping” a deposition as a substitute for a tailored offer.
  • Reed v. Kan. City Mo. Sch. Dist., 504 S.W.3d 235 (Mo. App. 2016): Closely on point; no preservation where a party merely submitted a full deposition transcript without directing the court to admissible portions via a trial offer of proof.

Legal Reasoning

The Court treated defendants’ argument as a direct request to relax Missouri’s strict, long-standing preservation rules in the context of excluded evidence. Defendants attempted to rely on: (i) pretrial briefing and a pre-venire hearing, (ii) a verbal proffer describing anticipated testimony, (iii) a “stipulated” continuing objection, and (iv) a written offer of proof filed on the last day of trial attaching a deposition transcript.

The Court rejected each as inadequate because none satisfied the central preservation requirement highlighted in Lozano v. BNSF Ry. Co. and Wilkerson v. Prelutsky: the proponent must offer the excluded evidence at trial (or attempt to do so) and make a specific, definite offer of proof on the trial record when the court excludes it. A pre-voir dire record does not qualify as “evidence offered at trial” (per Petersen v. State).

The Court also emphasized institutional competence and fairness: requiring a trial offer (a) gives the circuit court a genuine opportunity to reconsider its preliminary in limine ruling in the evidentiary context that actually unfolds, and (b) creates a clear appellate record (questions/answers) so the reviewing court can assess admissibility and prejudice without guessing.

Finally, even assuming the timing defect could be overlooked, the Court held defendants’ “offer” was substantively insufficient. Referencing a witness disclosure and attaching an entire deposition transcript—without pinpointing the admissible opinions—fails the specificity requirement of Karashin v. Haggard Hauling & Rigging, Inc. and improperly shifts to the court the burden to mine the record (the concern articulated by Green v. Fotoohighiam and echoed in Reed v. Kan. City Mo. Sch. Dist.).

Impact

The decision consolidates a practical, litigation-driving rule: pretrial exclusion of evidence (even reaffirmed the morning of trial) does not preserve error unless the proponent renews the issue at trial and makes a specific trial offer of proof. For trial lawyers, it also highlights a trap: “continuing objections” or filing an offer of proof without bringing it to the judge’s attention on the record will not preserve the point. For appellate practice, the opinion reinforces that Missouri courts will not treat depositions or filings as self-executing offers of proof.

2) Preservation Doctrine as Applied to Trial Management/Attorney Participation (Point II)

Precedents and Rules Cited

  • In re E.G., 683 S.W.3d 261 (Mo. banc 2024): Quoted for the principle that a party cannot claim error on appeal where it did not timely call attention to the issue at trial and give the court an opportunity to rule.
  • Rule 78.07(a): Although allegations of error generally must be raised in a motion for new trial in jury cases, the motion for new trial does not “cure” the absence of a trial objection.

Legal Reasoning

Defendants reframed on appeal a narrow pretrial request (“Motion to Limit Questioning to One Attorney”) into a broader complaint that separate counsel participated “in all stages of the jury trial” (voir dire, openings, closings, witness examinations). The Court held this broader claim was not preserved because defendants did not make timely, specific objections at trial to those events.

Impact

The holding strengthens a recurring appellate message: trial-management complaints—especially those involving how the trial is conducted (who speaks, when, and how much)—must be contemporaneously objected to at the moment the alleged error occurs. Post-trial motions cannot be used to “retrofit” objections.

3) Submissibility of “Failure to Keep a Careful Lookout” (Point III)

Precedents Cited

  • Chavez v. Cedar Fair, LP, 450 S.W.3d 291 (Mo. banc 2014): Instructional propriety reviewed de novo.
  • Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396 (Mo. banc 2019): Review in light most favorable to submission; any theory supporting submission suffices.
  • Hayes v. Price, 313 S.W.3d 645 (Mo. banc 2010): Substantial evidence standard; defines lookout claim as “failure to see and failure to act”; submission requires evidence that a careful lookout would have allowed effective precaution.
  • Foster v. Farmers Ins. Co., 775 S.W.2d 143 (Mo. banc 1989): Lookout includes “ahead and laterally”; duty to take precautions when danger should be anticipated.
  • McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995): If reasonable minds can differ as to when danger should have been known, timing of duty and evasive action is for the jury.

Legal Reasoning

Defendants’ theory was that Beck could not have been negligent in lookout because the slowing traffic was in an adjacent lane, not directly ahead. The Court treated that argument as inconsistent with Foster v. Farmers Ins. Co., which expressly includes lateral vigilance and anticipation of danger.

The Court found substantial evidence supporting lookout submission: Beck moved into the left lane to avoid slowing traffic, maintained cruise control at 70 mph in dark/rain, ignored reduced speed warnings (65 mph sign and then a flashing yellow light with 60 mph advisory near the curve), and experts testified that a professional truck driver should adjust to the flow of traffic in adjacent lanes because slowing traffic may signal a hazard and that compliance with the 60 mph curve speed would have avoided impact. On that record, reasonable jurors could find a failure to see/anticipate and a failure to take effective precautionary action.

Impact

The opinion underscores that “careful lookout” is not limited to the vehicle immediately ahead and can be supported by evidence of adjacent-lane conditions, warning signage, weather, and professional-driver standards. It also reinforces that where the timing of hazard recognition is debatable, Missouri leaves the question to the jury.

4) Submissibility of Aggravating Circumstances Damages Against Driver and Employer (Points IV & V)

Precedents Cited

  • Rhoden v. Mo. Delta Med. Ctr., 621 S.W.3d 469 (Mo. banc 2021): De novo review of sufficiency for punitive/aggravating circumstances submission; view evidence in light most favorable to verdict; consider only supportive evidence.
  • Dodson v. Ferrara, 491 S.W.3d 542 (Mo. banc 2016), as modified (May 24, 2016): Clear and convincing evidence standard; negligence usually not enough, but punitive/aggravating damages may be awarded for negligent acts if conduct shows “complete indifference to or conscious disregard for the safety of others”; references MAI 10.02, MAI 10.07, and MAI 6.02 (wrongful death).
  • Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996): Punitive damages serve punishment and deterrence.

Legal Reasoning

The Court held plaintiffs made submissible claims (clear and convincing evidence) that both Beck and Great Plains acted with conscious disregard/complete indifference. For Beck, the Court emphasized: his professional experience, familiarity with the route and visibility limitations of the curve, knowledge of and duty to follow the Missouri CDL manual, and multiple manual-triggered conditions requiring speed reduction (reduced traction, traffic, curves, limited visibility). Expert testimony supported that proper reductions (including to 60 mph, and even to two-thirds of posted due to wet roads) would have avoided the collision.

For Great Plains, the Court relied on corporate attitude and policy evidence: the company president’s testimony that Beck’s speed was “acceptable,” an “unwritten rule” permitting drivers to exceed the speed limit by 4–5 mph “in all circumstances,” the president’s statement he “probably” would have done the same, the safety director’s testimony that Beck’s speed was “safe” and “reasonable,” and the company’s lack of remedial training or measures after the fatal crash. This allowed jurors to infer an organizational tolerance—indeed endorsement—of unsafe practices amounting to conscious disregard.

Impact

The decision illustrates how punitive-style submissions may be supported in a negligence-based wrongful death case through (a) professional safety rules (here, the Missouri CDL manual), (b) proof of a defendant’s knowledge of the risk, and (c) an employer’s culture/policies and post-incident response. It signals that juries may consider not only the driver’s moment-of-crash conduct but also the company’s safety governance and normalization of speed-limit violations.

Complex Concepts Simplified

Motion in limine (or “motion to exclude”)
A pretrial request for a preliminary ruling about evidence. In Missouri, it generally does not preserve error by itself because the judge can change the ruling during trial, and the appellate court needs a trial record of what was actually offered and excluded.
Offer of proof
A record made (typically outside the jury’s hearing) showing what excluded evidence would have been, why it is relevant, and what testimony (or document portions) would be presented. It must be specific and definite—“here are the questions and expected answers” or “here are the exact pages/lines”—not simply “see the deposition.”
Preservation of error
The set of steps required to make an issue reviewable on appeal. If a party does not timely object or make a proper trial proffer, the appellate court will typically treat the issue as waived.
Substantial evidence (instruction submissibility)
Enough evidence that a reasonable juror could find the issue true. For lookout, it includes evidence the driver could have seen/anticipated the hazard in time to take effective precautions.
Aggravating circumstances damages (wrongful death) / punitive damages
Enhanced damages meant to punish and deter. In negligence cases, they require more than ordinary carelessness—proof (by clear and convincing evidence) of complete indifference or conscious disregard for others’ safety (as reflected in MAI 6.02 for wrongful death).

Conclusion

Schultz vs. Great Plains Trucking, Inc. is most significant for its strict application of Missouri’s preservation rules: litigating an exclusionary ruling pretrial—even immediately before voir dire—and filing an undirected deposition-based “offer” will not preserve a claim of evidentiary error. Substantively, the Court reaffirmed broad lookout duties (including lateral vigilance and anticipation) and upheld aggravating circumstances damages where evidence showed knowing violations of professional safety standards and an employer culture that condoned speed-limit violations and declined remedial action after a fatal crash.