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DOCKET NO. MMX-CV-22-6033336S SUPERIOR COURT
AMY JOHNSON & TYE HEMINGWAY JD OF MIDDLESEX
VS AT MIDDLETOWN
JULIANO’S POOLS LLC APRIL 17, 2024
PLAINTIFFS’ OBJECTION TO
DEFENDANT’S MOTION IN LIMINE
The Plaintiffs, Amy Johnson and Tye Hemingway hereby submit this
Objection to Defendant’s Motion in Limine dated April 12, 2024.
I. Facts and Background
Plaintiffs’ Amy Johnson and Tye Hemingway are owners of a single
family home in which they reside located at 21 Sovereign Ridge, Cromwell,
Connecticut. Defendant Juliano’s Pools LLC is a builder of pools and spas,
licensed in the State of Connecticut, and doing business in Vernon,
Connecticut. On or about December 2, 2020, the Defendant entered into an
agreement with the Plaintiffs for the construction of a swimming pool at
Plaintiffs’ home. Construction was to begin June 10, 2021 with a completion
date approximately six weeks thereafter.
Plaintiffs allege that after Defendant began construction they
experienced numerous issues with the Defendant’s work. Significantly, an
area on their property in close proximity to the pool excavation site was filled
in by the Defendant with scattered construction and other debris, including
gutters, signing materials, miscellaneous metal and wooden objects, rocks,
miscellaneous garbage and other various and sundry materials, which
Plaintiffs allege rendered the land unsafe, and caused them to incur
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expenses, both for removing the debris from the site and for bringing in clean
fill to remedy the condition and render the land safe. Other difficulties also
ensued, including an improperly sloped area around the pool. Plaintiffs
ultimately had to hire other contractors, at substantial expense over the
contract price, to rectify deficiencies and complete the work that the
Defendant left unfinished. Additional losses alleged include loss of the
beneficial use of the pool.
II. Procedural History
Plaintiffs filed the complaint in this suit on January 20, 2022. The
Plaintiffs complaint sets forth three causes of action, to wit, breach of
contract, negligence, and violation of the Connecticut Unfair Trade Practices
Act.
On August 29, 2022, Defendant filed an Answer and Counterclaim. On
October 19, 2002 the Defendant filed an Amended Counterclaim. The
Amended Counterclaim asserts an action to foreclose a mechanics lien and a
breach of contract claim. On April 30, 2023, Plaintiff filed their Answer to the
Counterclaim.
On August 1, 2023, Defendant filed a Disclosure of Expert Witness. On
September 5, 2023, Plaintiffs filed their Disclosure of Expert Witness; then
on October 13, 2023, Plaintiffs filed an Amended Disclosure of Expert
Witness. On October 31, 2023, Defendant filed an Amended Disclosure of
Expert Witness.
On April 12, 2024, Defendant filed its Motion in Limine with respect to
the Plaintiffs expert witness disclosures.
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III. Legal Standard re Motion in Limine
IV. Argument
A. In a Bench Trial the Need for Gatekeeping is Lessened as the
Court is Presumed Capable of Assigning the Appropriate
Weight and Reliability to the Evidence.
In a bench trial, the presiding judge has substantial discretion in
determining the relevance and weight of expert evidence. As a general
proposition, the purpose of the motion in limine is to insulate the jury from
exposure to harmful inadmissible evidence.
For example, the applicable Daubert standard relating to the
admissibility of expert opinions in federal court, is intended primarily to
“protect juries from being swayed by dubious scientific testimony”. See
generally Nease v. Ford Motor Co., 848 F.3d 219, 231 (4th Cir. 2017) (quoting In
re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011)) But
in a bench trial, the need for gatekeeping is lessened, as the judge is presumed to
be capable of assigning the appropriate weight and reliability to the evidence.
See, e.g., David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th
Cir. 2012); accord In re McWane Inc., Docket No. 9351, Order Denying
Motions In Limine to Preclude Admission of Expert Opinions and Testimony
at 4 (Aug. 16, 2012). (“[T]he Court’s role as a ‘gatekeeper,’ pursuant to
Daubert, to prevent expert testimony from unduly confusing or misleading
the jury, has little application in a bench trial.”).
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Likewise, in Connecticut, as a general proposition, the purpose of a
motion in limine is to insulate the jury from exposure to harmful
inadmissible evidence. And the decision whether, in the first instance the
court should even entertain a motion in limine is a discretionary one. In
Guamamtario v. Sound Beach Partners, LLC, Superior Court of Connecticut,
Judicial District of Fairfield At Bridgeport January 6, 2015, Decided;
January 6, 2015, Filed FBTCV126023901S (Arnold, Richard E. J.), the court
specifically addressed the purpose of a motion in limine in this state.
"The purpose of a motion in limine is to exclude irrelevant,
inadmissible and prejudicial evidence from trial . . . A trial court
should exclude evidence if it would create undue prejudice and
threaten an injustice if admitted." (Citation omitted; internal quotation
marks omitted.) State v. Lo Sacco, 26 Conn. App. 439, 444, 602 A.2d
589 (1992). "The decision whether, in the first instance, the court
should entertain a motion in limine is a discretionary one. As a general
proposition, the purpose of the motion is to insulate the jury from
exposure to harmful inadmissible evidence . . . A ruling excluding (or
admitting) evidence claimed to be cumulative is also a discretionary
one." (Citation omitted; internal quotation marks omitted.) Sarfaty v.
PFY Management Co., Superior Court, judicial district of Fairfield at
Bridgeport, No. CV 02-0394269 S (Feb. 15, 2008, Blawie, J.) 45 Conn L.
Rptr. 47, 2008 Conn. Super. LEXIS 428, quoting, Tech Air of
Naugatuck v. CTR of Charlotte, Superior Court, judicial district of
Waterbury, Docket No. CV 040184947 (July 17, 2007, Gallagher, J.)
[43 Conn. L. Rptr. 792, 2007 Conn. Super. LEXIS 1869]. "Questions of
relevance must be determined in each case by reliance on reason and
judicial experience as no exact test of relevancy is found in the law . . .
Evidence is admissible when it tends to establish a fact in issue or to
corroborate other direct evidence in the case . . . A fact is relevant
whenever its existence, either alone or in connection with other facts,
makes more certain or probable the existence of another fact . . . [A]ny
fact may be proved which logically tends to aid the trier in the
determination of the issue . . . Relevant evidence is admissible if the
trial court, in the exercise of its broad discretion, determines that the
probative value of the evidence outweighs its prejudicial effect."
(Citations omitted; internal quotation marks omitted.) Lynch v.
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Granby Holdings, Inc., 32 Conn.App. 574, 581, 630 A.2d 609 (1993).
"Although relevant, evidence may be excluded by the trial court if the
court determines that the prejudicial effect of the evidence outweighs
its probative value . . . We have identified at least four
circumstances where the prejudicial effect of otherwise admissible
evidence may outweigh its probative value: (1) where the facts offered
may unduly arouse the jury's emotions, hostility or sympathy, (2)
where the proof and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main issues, (3)
where the evidence offered and the counter proof will consume an
undue amount of time, and (4) where the party against whom the
evidence has been offered, having no reasonable ground to anticipate
the evidence, is unfairly surprised and unprepared to meet it."
(Citation omitted; internal quotation marks omitted.) Potter v. Chicago
Tool Company, 241 Conn. 199, 265-66, 694 A.2d 1319 (1997).
(Emphasis added)
See Guamamtario v. Sound Beach Partners, LLC, Superior Court of
Connecticut, Judicial District of Fairfield At Bridgeport January 6,
2015, Decided; January 6, 2015, Filed FBTCV126023901S (Arnold,
Richard E. J.) (Emphasis added)
As the Guamamtario court noted, in the four circumstances where
the prejudicial effect of otherwise admissible evidence may outweigh its
probative value, two relate directly to how the evidence will impact the jury,
i.e. (1) where the facts offered may unduly arouse the jury's emotions,
hostility or sympathy, and (2) where the proof and answering evidence it
provokes may create a side issue that will unduly distract the jury from the
main issues. Since the trial in this case will be a bench trial, neither
circumstance applies in this case. And the other two circumstances are also
inapposite hereto; the testimony of Plaintiffs experts is not expected to
consume a great amount of time. Furthermore, since the Defendant was
apprised of the anticipated testimony from Plaintiffs experts in October 2023
when Plaintiffs filed their Disclosure of Expert Witnesses, the Defendant
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lacks a proper basis for claiming now that the evidence was not anticipated
and that it is unprepared to meet it.
In the bench trial of this case, there is no concern about insulating the
jury, arousing the jury’s emotions, hostility or sympathy, or where the proof
and answering evidence it provokes may create a side issue that unduly
distracts the jury from the main issues of the case. See also generally
Grindrod v. Shred-It United States, LLC Superior Court of Connecticut,
Judicial District of Waterbury At Waterbury July 5, 2017, Decided; July 5,
2017 Filed CV156028292S (Shah, Rupal, J.).
"The purpose of a motion in limine is to exclude irrelevant,
inadmissible and prejudicial evidence from trial . . . A trial court
should exclude evidence if it would create undue prejudice and
threaten an injustice if admitted." (Citations omitted; internal
quotation marks omitted.) State v. Lo Sacco, 26 Conn.App. 439, 444,
602 A.2d 589 (1992). "The decision whether, in the first instance, the
court should entertain a motion in limine is a discretionary one. As a
general proposition, the purpose of the motion is to insulate the jury
from exposure to harmful inadmissible evidence . . . A ruling excluding
(or admitting) evidence claimed to be cumulative is also a discretionary
one." (Citation omitted; internal quotation marks omitted.) Tech Air of
Naugatuck, LLC v. CTR of Charlotte, Inc., Superior Court, judicial
district of Waterbury, Docket No. CV 040184947 (July 17, 2007,
Gallagher, J.) (43 Conn. L. Rptr. 792, 2007 Conn. Super. LEXIS 1869).
Grindrod v. Shred-It United States, LLC, supra. (Emphasis added)
And as Gridrod’s ruling noted, to be excluded, the evidence must create
prejudice that is “undue” and so great as to threaten an injustice if the
evidence were to be admitted.
"The trial court is given broad discretion in determining the relevancy
of evidence and its decision will not be disturbed absent a clear abuse
of that discretion . . . The trial court also has broad discretion in
balancing the probative value of proffered evidence against its
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prejudicial effect." Ramos v. Ramos, 80 Conn.App. 276, 280-81, 835
A.2d 62, cert. denied, 267 Conn. 913, 840 A.2d 1175 (2003). "This court
has recognized that [e]vidence that is inadmissibly prejudicial is not to
be confused with evidence that is merely damaging . . . All evidence
adverse to a party is, to some degree, prejudicial. To be excluded, the
evidence must create prejudice that is undue and so great as to
threaten an injustice if the evidence were to be admitted."
(Emphasis in original; internal quotation marks omitted.) Id., 281. "In
determining whether evidence should be admitted, the
primary inquiry is whether it is relevant to a material issue in the
case." Id. "While there is no precise test for relevancy, evidence is
admissible if it tends to establish a fact in issue." Id., 281-82.
Grindrod v. Shred-It United States, LLC, supra.
As alluded to above, the Defendant lacks a basis for claiming prejudice
or surprise since Plaintiffs disclosed their experts about eight months ago.
Defendant had more than ample time and opportunity to depose Plaintiffs
experts and apparently opted not do to so. And if Defendant believed that it
needed more time to do so, it could have filed a motion for a continuance of
the trial.
In Davis v. Property Owners Ass'n, 183 Conn. App. 690 (2018) the trial
court denied plaintiffs motion in limine because they could not show how they
were prejudiced. Though plaintiffs claimed they were denied a fair trial
because plaintiffs disclosed their experts too late, the court noted that
plaintiffs had nine months notice that the defendants planned to call two
experts. According to the Davis court,
The plaintiffs argue that they were denied a fair trial because
the defendants disclosed Heager and Dilport too late. The plaintiffs
assert that the defendants, by disclosing these experts in the manner
in which they did, engaged in the "cat and mouse game" that timely
disclosure is meant to prevent. See Pool v. Bell, 209 Conn. 536, 541,
551 A.2d 1254 (1989). In Pool, our Supreme Court decided that a trial
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court's decision to preclude an Expert witness from testifying when a
party elected to disclose that witness only three weeks prior to the
start of trial, having consulted with that expert for more than one year
and having received a court order to disclose experts during that time,
was not an abuse of discretion on the basis of the facts of that case. Id.,
540-42. The present case does not contain the same facts that
supported affirming the preclusion of the untimely disclosed expert in
Pool . In the present case, the plaintiffs received notice that the
defendants planned to call a surveyor ten months before trial resumed
and that the defendants planned to present the testimony of a
photogrammetrist nine months before trial resumed. Unlike Pool, the
plaintiffs in the present case have failed to demonstrate that the
lengthy delay between the time of disclosure and the time when trial
resumed did not afford them an ample opportunity to rebut the
testimony at issue. This lengthy delay gave the plaintiffs ample
opportunity to mitigate any purported harm caused by the timing of
the defendants' disclosure. Indeed, the record reveals that the
plaintiffs took advantage of this opportunity to do so. The plaintiffs
were able to depose the defendants' experts and they were also able to
consult their own expert in order to present rebuttal evidence. The
defendants correctly assert that the plaintiffs could have sought a
continuance to seek more time to prepare for trial. "A continuance is
ordinarily the proper method for dealing with a late disclosure. . . . A
continuance serves to minimize the possibly prejudicial effect of a late
disclosure and absent such a request by the party claiming to have
been thus prejudiced, appellate review of a late disclosure claim is not
warranted." (Citations omitted; internal quotation marks omitted.)
Rullo v. General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279 (1988) .
If the plaintiffs believed that they needed additional time,
instead of filing motions in limine on the ground that disclosure was
untimely, or after those motions were denied, the plaintiffs could have
asked the court for more time to prepare for trial. Regardless, they
cannot persuade us that the court abused its discretion by allowing
Heagle and Dilport to testify on the ground that the defendants
disclosed these witnesses late, when they never alerted the court that
they needed an additional continuance for the purposes of rebutting
the untimely disclosed evidence. Also, although invited by the court,
the plaintiffs never renewed their objection when the defendants'
experts testified and in fact stipulated to the admissions of Dilport's
photogrammetric analysis and Heagle's composite map. Thus, the
court did not abuse its discretion by denying the plaintiffs' motions in
limine seeking to preclude the testimony of Heagle and Dilport because
by the time that those motions were presented to the court, which was
just before the trial was set to resume, the plaintiffs could not
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demonstrate how they were prejudiced. See Davis v. Property Owners
Ass'n, supra. (Emphasis added)
In the instant action, the Plaintiffs disclosed their expert witnesses
long before trial so Defendant has no proper basis to claim prejudice with
respect to the timing of the disclosure. However, now the Defendant moves
in limine to preclude the testimony of Mr. Iacobucci placing much reliance on
its baseless claim that the disclosure does not use the term “magical” term
negligence. But a party is not required to phrase its disclosure in the exact
manner, using the particular verbiage, that the opposing party desires.
Plaintiff’s disclosure makes abundantly clear that Mr. Iacobucci is expected
to testify about the “defective” and incomplete work, which is sufficient to
permit him to testify negligent work performed.
B. Under Practice Book Section 13-4(h) an Order of Preclusion
May Only be Entered Upon Finding that the Sanction of
Preclusion is Proportional to the Non-Compliance At Issue &
the Non-Compliance Cannot Adequately Be Addressed By a
Less Severe Sanction
Defendant also now complains in its motion in limine that Plaintiffs
did not fully respond to certain discovery as certain records relating to
damage claims were not provided; however, the Defendant never filed a
motion for order of compliance. And it is axiomatic that a motion in limine
should not be used as a substitute for Defendants failure to file a motion to
compel when issues raised therein could have been addressed by less severe
means. (See generally Practice Book Section 13-4(h).
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Practice Book § 13-4 (h) provides:
"A judicial authority may, after a hearing, impose sanctions on a party
for failure to comply with the requirements of this section. An order
precluding the testimony of an expert witness may be entered only
upon a finding that: (1) the sanction of preclusion, including any
consequence thereof on the sanctioned party's ability to prosecute or to
defend the case, is proportional to the noncompliance at issue, and (2)
the noncompliance at issue cannot adequately be addressed by a less
severe sanction or combination of sanctions." (Emphasis added)
Since no motion for order of compliance was filed by the Defendant, that
would have provided the court with an opportunity to address the issues
raised in a timely manner, and provided the Plaintiffs with an opportunity to
respond thereto or cure any alleged deficiency, the Defendant has no proper
basis for claiming now, on the eve of trial that discovery was not fully
responded to, as a basis for moving in limine stemming from its claim that
Plaintiffs did not fully respond to discovery.
C. Plaintiffs Must Be Allowed to Make An Offer Of Proof During
Trial Before Pre-Determining Whether The Disclosed Experts
Are Qualified to Testify As To The Relevant Issues In The Case
First, a consideration of the motion in limine regarding whether the
proposed experts are qualified to testify to the relevant issues should be
precluded until the admissibility thereof can be ascertained during trial. At
the time that Plaintiffs desire to introduce the evidence which is the subject
of Defendant’s motion in limine there should be a determination by the trial
court as to the admissibility of the proferred evidence, which is then
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determined by the circumstances and evidence adduced in the trial and the
issues raised by the evidence. Defendant is improperly using the motion in
limine; it ought only be allowed to use such a motion, if at all, to limit
questions being asked in a certain way until the court can determine from the
total circumstances of the case whether the evidence would be admissible.
Even assuming arguendo that Defendant’s motion in limine is properly
brought, it should not be argued at this time. Until trial has started and
Plaintiffs have had the opportunity to lay foundations for the introduction of
the evidence at issue, explain the rationale for offering the same, and solicit
live testimony to both explain the purpose for which the evidence is being
offered and refute the Defendant’s challenges, this Court has no facts upon
which to base a decision. Defendant’s use of its motion in limine under
present circumstances is tantamount to abuse of process, and attempts to
keep relevant evidence from the fact finder in violation of due process of law.
Further, whether or not Plaintiffs experts are qualified to testify as to
the issues raised in this case should not be determined on a motion in limine
but requires a determination thereof during trial in accordance with the test
for admission of expert testimony previously articulated by Connecticut’s
Supreme Court. In Czajkowski v. YMCA of Metro. Hartford, Inc., 149 Conn.
App. 436 (2014), the court addressed the test for admission of expert
testimony:
"[Our Supreme Court] recently articulated the test for the admission
of expert testimony, which is deeply rooted in common law. Expert
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testimony should be admitted when: (1) the witness has a special skill
or knowledge directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the issues. . . ."
It is well settled that [t]he true test of the admissibility of [expert]
testimony is not whether the subject matter is common or uncommon,
or whether many persons or few have some knowledge of the matter;
but it is whether the witnesses offered as experts have any peculiar
knowledge or experience, not common to the world, which renders their
opinions founded on such knowledge or experience any aid to the court
or the jury in determining the questions at issue. . . . Implicit in this
standard is the requirement . . . that the expert's knowledge or
experience must be directly applicable to the matter specifically in
issue." (Citations omitted; footnote omitted; internal quotation marks
omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn.
150, 157-59, 971 A.2d 676 (2009); see also Conn. Code Evid. § 7-2. "The
essential facts on which an expert opinion is based are an important
consideration in determining the admissibility of the expert's opinion."
Glaser v. Pullman & Comley, LLC, 88 Conn. App. 615, 624, 871 A.2d
392 (2005). (Emphasis added)
Czajkowski v. YMCA of Metro. Hartford, Inc., supra.
Accordingly, whether or not the Plaintiffs experts can establish the standard
of care in regards to the relevant construction issues subject of this dispute
must be adduced and determined during the trial.
Finally, because the Defendant filed a motion in limine, it has the
burden of demonstrating that the evidence it seeks to preclude is
inadmissible on any relevant ground.
The party who files the motion in limine has the burden of
demonstrating that the evidence is inadmissible on
any relevant ground. See First Savings Bank, F.S.B. v. U.S.
Bancorp, 117 F. Supp. 2d 1078, 1082 (D. Kan. 2000); see also
Plair v. E.J. Brach & Sons, Inc., 864 F. Supp. 67, 69 (N.D. Ill.
1994).
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However, whether the expert evidence that Plaintiffs seek to offer is
admissible on any relevant ground must be ascertained during the time of
trial of this case, and not pre-determined by way of a motion in limine.
D. When Nonexpert Opinion Evidence Will Aid the Trier of Fact, it
Meets the Test for Admissibility and is Not to be Excluded
Because it States the Conclusion of the Witness Based Upon
His Observation and Knowledge
The court in Czajkowski v. YMCA of Metro. Hartford, Inc., 149 Conn.
App. 436 also addressed the issue of when nonexpert opinion is admissible.
"The general rule is that [nonexpert] witnesses must state facts and
not their individual opinions, but there are exceptions to this rule as
well established as the rule itself. . . . [T]he opinions of common
observers in regard to common appearances, facts and conditions have
been received as evidence in a great variety of cases." Sydleman v.
Beckwith, 43 Conn. 9, 11 (1875); see also State v. Schaffer, 168 Conn.
309, 318-19, 362 A.2d 893 (1975) . HN8 [ ] Our Supreme Court has
recognized that "[e]very trial, as a rule, is filled with so-called
opinion evidence from the nonexpert witness. . . . When such nonexpert
opinion evidence will probably aid the triers in their search for the
truth, it meets the ultimate test of admissibility, and is not to be
excluded because it states the conclusion of the witness based upon his
observation and knowledge." (Citations omitted; internal
quotation marks omitted.) MacLaren v. Bishop, 113 Conn. 312, 314-15,
155 A. 210 (1931); see also Conn. Code Evid. § 7-1 ("[i]f a witness is
not testifying as an expert, the witness may not testify in the form of
an opinion, unless the opinion is rationally based on the perception of
the witness and is helpful to a clear understanding of the testimony of
the witness or the determination of a fact in issue").
Czajkowski v. YMCA of Metro. Hartford, Inc., supra.
(Emphasis added)
See also generally Porter v. Pequonnoc Mfg. Co., 17 Conn. 249 (1845)
In view of the foregoing, Plaintiffs can testify about the area on their
property in close proximity to the pool excavation site, that it was filled in by
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the Defendant, that it contained scattered construction and other debris,
including gutters, signing materials, miscellaneous metal and wooden
objects, rocks, miscellaneous garbage and other various and sundry
materials, and that this rendered the land unsafe. They can also testify that
the Defendant failed to landscape around the pool, and opine both to the
visible effects thereof and how the same has detrimentally impacted their
property. Opinions of common observers in regard to common appearances,
facts and conditions have been received as evidence in a great variety of
cases. Such non-expert opinion evidence will probably aid the trier of fact in
the search for the truth; hence it meets the ultimate test of admissibility, and
ought not be excluded because it states the conclusion of the witnesses based
upon their observation and knowledge.
Conclusion
The trial of this case will be a bench trial, not a jury trial; therefore,
the need for gatekeeping is lessened. The circumstances where the adverse
party can claim prejudice do not exist. There is no concern about arousing
the emotions of a jury, or unduly distracting a jury from the main issues in
the case. Since the Plaintiffs disclosed their experts long before trial the
Defendant had ample opportunity to depose them and discover the
particulars of their anticipated testimony. Moreover, Section 13-4(h) of the
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Practice Book an order of preclusion may only be entered after the court
makes the necessary findings.
Until trial has started and Plaintiffs have had the opportunity to lay
foundations for the introduction of the evidence at issue, explain the rationale
for offering the same, and solicit live testimony to both explain the purpose
for which the evidence is being offered and refute the Defendant’s challenges,
this Court has no facts upon which to base a decision on Defendant’s motion.
Expert testimony should be admitted when: (1) the witness has a special skill
or knowledge directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and (3) the testimony would
be helpful to the court or jury in considering the issues. . . A determination on
the admissibility of Plaintiffs expert testimony must be made during trial.
And opinions of lay persons, i.e. common observers, in regard to
common appearances, facts and conditions are permitted in many cases.
When such nonexpert opinion evidence will probably aid the triers in their
search for the truth, it meets the ultimate test of admissibility, and is not to
be excluded because it states the conclusion of the witness based upon their
observation and knowledge. Plaintiffs should be permitted to testify about
the construction debris, that same rendered their property unsafe, and as to
the effects and impacts on their property from the Defendant’s failure to
landscape.
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Preview
DOCKET NO. MMX-CV-22-6033336S SUPERIOR COURT AMY JOHNSON & TYE HEMINGWAY JD OF MIDDLESEX VS AT MIDDLETOWN JULIANO’S POOLS LLC APRIL 17, 2024 PLAINTIFFS’ OBJECTION TO DEFENDANT’S MOTION IN LIMINE The Plaintiffs, Amy Johnson and Tye Hemingway hereby submit this Objection to Defendant’s Motion in Limine dated April 12, 2024. I. Facts and Background Plaintiffs’ Amy Johnson and Tye Hemingway are owners of a single family home in which they reside located at 21 Sovereign Ridge, Cromwell, Connecticut. Defendant Juliano’s Pools LLC is a builder of pools and spas, licensed in the State of Connecticut, and doing business in Vernon, Connecticut. On or about December 2, 2020, the Defendant entered into an agreement with the Plaintiffs for the construction of a swimming pool at Plaintiffs’ home. Construction was to begin June 10, 2021 with a completion date approximately six weeks thereafter. Plaintiffs allege that after Defendant began construction they experienced numerous issues with the Defendant’s work. Significantly, an area on their property in close proximity to the pool excavation site was filled in by the Defendant with scattered construction and other debris, including gutters, signing materials, miscellaneous metal and wooden objects, rocks, miscellaneous garbage and other various and sundry materials, which Plaintiffs allege rendered the land unsafe, and caused them to incur −1− expenses, both for removing the debris from the site and for bringing in clean fill to remedy the condition and render the land safe. Other difficulties also ensued, including an improperly sloped area around the pool. Plaintiffs ultimately had to hire other contractors, at substantial expense over the contract price, to rectify deficiencies and complete the work that the Defendant left unfinished. Additional losses alleged include loss of the beneficial use of the pool. II. Procedural History Plaintiffs filed the complaint in this suit on January 20, 2022. The Plaintiffs complaint sets forth three causes of action, to wit, breach of contract, negligence, and violation of the Connecticut Unfair Trade Practices Act. On August 29, 2022, Defendant filed an Answer and Counterclaim. On October 19, 2002 the Defendant filed an Amended Counterclaim. The Amended Counterclaim asserts an action to foreclose a mechanics lien and a breach of contract claim. On April 30, 2023, Plaintiff filed their Answer to the Counterclaim. On August 1, 2023, Defendant filed a Disclosure of Expert Witness. On September 5, 2023, Plaintiffs filed their Disclosure of Expert Witness; then on October 13, 2023, Plaintiffs filed an Amended Disclosure of Expert Witness. On October 31, 2023, Defendant filed an Amended Disclosure of Expert Witness. On April 12, 2024, Defendant filed its Motion in Limine with respect to the Plaintiffs expert witness disclosures. −2− III. Legal Standard re Motion in Limine IV. Argument A. In a Bench Trial the Need for Gatekeeping is Lessened as the Court is Presumed Capable of Assigning the Appropriate Weight and Reliability to the Evidence. In a bench trial, the presiding judge has substantial discretion in determining the relevance and weight of expert evidence. As a general proposition, the purpose of the motion in limine is to insulate the jury from exposure to harmful inadmissible evidence. For example, the applicable Daubert standard relating to the admissibility of expert opinions in federal court, is intended primarily to “protect juries from being swayed by dubious scientific testimony”. See generally Nease v. Ford Motor Co., 848 F.3d 219, 231 (4th Cir. 2017) (quoting In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011)) But in a bench trial, the need for gatekeeping is lessened, as the judge is presumed to be capable of assigning the appropriate weight and reliability to the evidence. See, e.g., David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012); accord In re McWane Inc., Docket No. 9351, Order Denying Motions In Limine to Preclude Admission of Expert Opinions and Testimony at 4 (Aug. 16, 2012). (“[T]he Court’s role as a ‘gatekeeper,’ pursuant to Daubert, to prevent expert testimony from unduly confusing or misleading the jury, has little application in a bench trial.”). −3− Likewise, in Connecticut, as a general proposition, the purpose of a motion in limine is to insulate the jury from exposure to harmful inadmissible evidence. And the decision whether, in the first instance the court should even entertain a motion in limine is a discretionary one. In Guamamtario v. Sound Beach Partners, LLC, Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport January 6, 2015, Decided; January 6, 2015, Filed FBTCV126023901S (Arnold, Richard E. J.), the court specifically addressed the purpose of a motion in limine in this state. "The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial . . . A trial court should exclude evidence if it would create undue prejudice and threaten an injustice if admitted." (Citation omitted; internal quotation marks omitted.) State v. Lo Sacco, 26 Conn. App. 439, 444, 602 A.2d 589 (1992). "The decision whether, in the first instance, the court should entertain a motion in limine is a discretionary one. As a general proposition, the purpose of the motion is to insulate the jury from exposure to harmful inadmissible evidence . . . A ruling excluding (or admitting) evidence claimed to be cumulative is also a discretionary one." (Citation omitted; internal quotation marks omitted.) Sarfaty v. PFY Management Co., Superior Court, judicial district of Fairfield at Bridgeport, No. CV 02-0394269 S (Feb. 15, 2008, Blawie, J.) 45 Conn L. Rptr. 47, 2008 Conn. Super. LEXIS 428, quoting, Tech Air of Naugatuck v. CTR of Charlotte, Superior Court, judicial district of Waterbury, Docket No. CV 040184947 (July 17, 2007, Gallagher, J.) [43 Conn. L. Rptr. 792, 2007 Conn. Super. LEXIS 1869]. "Questions of relevance must be determined in each case by reliance on reason and judicial experience as no exact test of relevancy is found in the law . . . Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case . . . A fact is relevant whenever its existence, either alone or in connection with other facts, makes more certain or probable the existence of another fact . . . [A]ny fact may be proved which logically tends to aid the trier in the determination of the issue . . . Relevant evidence is admissible if the trial court, in the exercise of its broad discretion, determines that the probative value of the evidence outweighs its prejudicial effect." (Citations omitted; internal quotation marks omitted.) Lynch v. −4− Granby Holdings, Inc., 32 Conn.App. 574, 581, 630 A.2d 609 (1993). "Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value . . . We have identified at least four circumstances where the prejudicial effect of otherwise admissible evidence may outweigh its probative value: (1) where the facts offered may unduly arouse the jury's emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counter proof will consume an undue amount of time, and (4) where the party against whom the evidence has been offered, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." (Citation omitted; internal quotation marks omitted.) Potter v. Chicago Tool Company, 241 Conn. 199, 265-66, 694 A.2d 1319 (1997). (Emphasis added) See Guamamtario v. Sound Beach Partners, LLC, Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport January 6, 2015, Decided; January 6, 2015, Filed FBTCV126023901S (Arnold, Richard E. J.) (Emphasis added) As the Guamamtario court noted, in the four circumstances where the prejudicial effect of otherwise admissible evidence may outweigh its probative value, two relate directly to how the evidence will impact the jury, i.e. (1) where the facts offered may unduly arouse the jury's emotions, hostility or sympathy, and (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues. Since the trial in this case will be a bench trial, neither circumstance applies in this case. And the other two circumstances are also inapposite hereto; the testimony of Plaintiffs experts is not expected to consume a great amount of time. Furthermore, since the Defendant was apprised of the anticipated testimony from Plaintiffs experts in October 2023 when Plaintiffs filed their Disclosure of Expert Witnesses, the Defendant −5− lacks a proper basis for claiming now that the evidence was not anticipated and that it is unprepared to meet it. In the bench trial of this case, there is no concern about insulating the jury, arousing the jury’s emotions, hostility or sympathy, or where the proof and answering evidence it provokes may create a side issue that unduly distracts the jury from the main issues of the case. See also generally Grindrod v. Shred-It United States, LLC Superior Court of Connecticut, Judicial District of Waterbury At Waterbury July 5, 2017, Decided; July 5, 2017 Filed CV156028292S (Shah, Rupal, J.). "The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial . . . A trial court should exclude evidence if it would create undue prejudice and threaten an injustice if admitted." (Citations omitted; internal quotation marks omitted.) State v. Lo Sacco, 26 Conn.App. 439, 444, 602 A.2d 589 (1992). "The decision whether, in the first instance, the court should entertain a motion in limine is a discretionary one. As a general proposition, the purpose of the motion is to insulate the jury from exposure to harmful inadmissible evidence . . . A ruling excluding (or admitting) evidence claimed to be cumulative is also a discretionary one." (Citation omitted; internal quotation marks omitted.) Tech Air of Naugatuck, LLC v. CTR of Charlotte, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 040184947 (July 17, 2007, Gallagher, J.) (43 Conn. L. Rptr. 792, 2007 Conn. Super. LEXIS 1869). Grindrod v. Shred-It United States, LLC, supra. (Emphasis added) And as Gridrod’s ruling noted, to be excluded, the evidence must create prejudice that is “undue” and so great as to threaten an injustice if the evidence were to be admitted. "The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion . . . The trial court also has broad discretion in balancing the probative value of proffered evidence against its −6− prejudicial effect." Ramos v. Ramos, 80 Conn.App. 276, 280-81, 835 A.2d 62, cert. denied, 267 Conn. 913, 840 A.2d 1175 (2003). "This court has recognized that [e]vidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging . . . All evidence adverse to a party is, to some degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted." (Emphasis in original; internal quotation marks omitted.) Id., 281. "In determining whether evidence should be admitted, the primary inquiry is whether it is relevant to a material issue in the case." Id. "While there is no precise test for relevancy, evidence is admissible if it tends to establish a fact in issue." Id., 281-82. Grindrod v. Shred-It United States, LLC, supra. As alluded to above, the Defendant lacks a basis for claiming prejudice or surprise since Plaintiffs disclosed their experts about eight months ago. Defendant had more than ample time and opportunity to depose Plaintiffs experts and apparently opted not do to so. And if Defendant believed that it needed more time to do so, it could have filed a motion for a continuance of the trial. In Davis v. Property Owners Ass'n, 183 Conn. App. 690 (2018) the trial court denied plaintiffs motion in limine because they could not show how they were prejudiced. Though plaintiffs claimed they were denied a fair trial because plaintiffs disclosed their experts too late, the court noted that plaintiffs had nine months notice that the defendants planned to call two experts. According to the Davis court, The plaintiffs argue that they were denied a fair trial because the defendants disclosed Heager and Dilport too late. The plaintiffs assert that the defendants, by disclosing these experts in the manner in which they did, engaged in the "cat and mouse game" that timely disclosure is meant to prevent. See Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). In Pool, our Supreme Court decided that a trial −7− court's decision to preclude an Expert witness from testifying when a party elected to disclose that witness only three weeks prior to the start of trial, having consulted with that expert for more than one year and having received a court order to disclose experts during that time, was not an abuse of discretion on the basis of the facts of that case. Id., 540-42. The present case does not contain the same facts that supported affirming the preclusion of the untimely disclosed expert in Pool . In the present case, the plaintiffs received notice that the defendants planned to call a surveyor ten months before trial resumed and that the defendants planned to present the testimony of a photogrammetrist nine months before trial resumed. Unlike Pool, the plaintiffs in the present case have failed to demonstrate that the lengthy delay between the time of disclosure and the time when trial resumed did not afford them an ample opportunity to rebut the testimony at issue. This lengthy delay gave the plaintiffs ample opportunity to mitigate any purported harm caused by the timing of the defendants' disclosure. Indeed, the record reveals that the plaintiffs took advantage of this opportunity to do so. The plaintiffs were able to depose the defendants' experts and they were also able to consult their own expert in order to present rebuttal evidence. The defendants correctly assert that the plaintiffs could have sought a continuance to seek more time to prepare for trial. "A continuance is ordinarily the proper method for dealing with a late disclosure. . . . A continuance serves to minimize the possibly prejudicial effect of a late disclosure and absent such a request by the party claiming to have been thus prejudiced, appellate review of a late disclosure claim is not warranted." (Citations omitted; internal quotation marks omitted.) Rullo v. General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279 (1988) . If the plaintiffs believed that they needed additional time, instead of filing motions in limine on the ground that disclosure was untimely, or after those motions were denied, the plaintiffs could have asked the court for more time to prepare for trial. Regardless, they cannot persuade us that the court abused its discretion by allowing Heagle and Dilport to testify on the ground that the defendants disclosed these witnesses late, when they never alerted the court that they needed an additional continuance for the purposes of rebutting the untimely disclosed evidence. Also, although invited by the court, the plaintiffs never renewed their objection when the defendants' experts testified and in fact stipulated to the admissions of Dilport's photogrammetric analysis and Heagle's composite map. Thus, the court did not abuse its discretion by denying the plaintiffs' motions in limine seeking to preclude the testimony of Heagle and Dilport because by the time that those motions were presented to the court, which was just before the trial was set to resume, the plaintiffs could not −8− demonstrate how they were prejudiced. See Davis v. Property Owners Ass'n, supra. (Emphasis added) In the instant action, the Plaintiffs disclosed their expert witnesses long before trial so Defendant has no proper basis to claim prejudice with respect to the timing of the disclosure. However, now the Defendant moves in limine to preclude the testimony of Mr. Iacobucci placing much reliance on its baseless claim that the disclosure does not use the term “magical” term negligence. But a party is not required to phrase its disclosure in the exact manner, using the particular verbiage, that the opposing party desires. Plaintiff’s disclosure makes abundantly clear that Mr. Iacobucci is expected to testify about the “defective” and incomplete work, which is sufficient to permit him to testify negligent work performed. B. Under Practice Book Section 13-4(h) an Order of Preclusion May Only be Entered Upon Finding that the Sanction of Preclusion is Proportional to the Non-Compliance At Issue & the Non-Compliance Cannot Adequately Be Addressed By a Less Severe Sanction Defendant also now complains in its motion in limine that Plaintiffs did not fully respond to certain discovery as certain records relating to damage claims were not provided; however, the Defendant never filed a motion for order of compliance. And it is axiomatic that a motion in limine should not be used as a substitute for Defendants failure to file a motion to compel when issues raised therein could have been addressed by less severe means. (See generally Practice Book Section 13-4(h). −9− Practice Book § 13-4 (h) provides: "A judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requirements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that: (1) the sanction of preclusion, including any consequence thereof on the sanctioned party's ability to prosecute or to defend the case, is proportional to the noncompliance at issue, and (2) the noncompliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions." (Emphasis added) Since no motion for order of compliance was filed by the Defendant, that would have provided the court with an opportunity to address the issues raised in a timely manner, and provided the Plaintiffs with an opportunity to respond thereto or cure any alleged deficiency, the Defendant has no proper basis for claiming now, on the eve of trial that discovery was not fully responded to, as a basis for moving in limine stemming from its claim that Plaintiffs did not fully respond to discovery. C. Plaintiffs Must Be Allowed to Make An Offer Of Proof During Trial Before Pre-Determining Whether The Disclosed Experts Are Qualified to Testify As To The Relevant Issues In The Case First, a consideration of the motion in limine regarding whether the proposed experts are qualified to testify to the relevant issues should be precluded until the admissibility thereof can be ascertained during trial. At the time that Plaintiffs desire to introduce the evidence which is the subject of Defendant’s motion in limine there should be a determination by the trial court as to the admissibility of the proferred evidence, which is then − 10 − determined by the circumstances and evidence adduced in the trial and the issues raised by the evidence. Defendant is improperly using the motion in limine; it ought only be allowed to use such a motion, if at all, to limit questions being asked in a certain way until the court can determine from the total circumstances of the case whether the evidence would be admissible. Even assuming arguendo that Defendant’s motion in limine is properly brought, it should not be argued at this time. Until trial has started and Plaintiffs have had the opportunity to lay foundations for the introduction of the evidence at issue, explain the rationale for offering the same, and solicit live testimony to both explain the purpose for which the evidence is being offered and refute the Defendant’s challenges, this Court has no facts upon which to base a decision. Defendant’s use of its motion in limine under present circumstances is tantamount to abuse of process, and attempts to keep relevant evidence from the fact finder in violation of due process of law. Further, whether or not Plaintiffs experts are qualified to testify as to the issues raised in this case should not be determined on a motion in limine but requires a determination thereof during trial in accordance with the test for admission of expert testimony previously articulated by Connecticut’s Supreme Court. In Czajkowski v. YMCA of Metro. Hartford, Inc., 149 Conn. App. 436 (2014), the court addressed the test for admission of expert testimony: "[Our Supreme Court] recently articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert − 11 − testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . ." It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert's knowledge or experience must be directly applicable to the matter specifically in issue." (Citations omitted; footnote omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157-59, 971 A.2d 676 (2009); see also Conn. Code Evid. § 7-2. "The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of the expert's opinion." Glaser v. Pullman & Comley, LLC, 88 Conn. App. 615, 624, 871 A.2d 392 (2005). (Emphasis added) Czajkowski v. YMCA of Metro. Hartford, Inc., supra. Accordingly, whether or not the Plaintiffs experts can establish the standard of care in regards to the relevant construction issues subject of this dispute must be adduced and determined during the trial. Finally, because the Defendant filed a motion in limine, it has the burden of demonstrating that the evidence it seeks to preclude is inadmissible on any relevant ground. The party who files the motion in limine has the burden of demonstrating that the evidence is inadmissible on any relevant ground. See First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp. 2d 1078, 1082 (D. Kan. 2000); see also Plair v. E.J. Brach & Sons, Inc., 864 F. Supp. 67, 69 (N.D. Ill. 1994). − 12 − However, whether the expert evidence that Plaintiffs seek to offer is admissible on any relevant ground must be ascertained during the time of trial of this case, and not pre-determined by way of a motion in limine. D. When Nonexpert Opinion Evidence Will Aid the Trier of Fact, it Meets the Test for Admissibility and is Not to be Excluded Because it States the Conclusion of the Witness Based Upon His Observation and Knowledge The court in Czajkowski v. YMCA of Metro. Hartford, Inc., 149 Conn. App. 436 also addressed the issue of when nonexpert opinion is admissible. "The general rule is that [nonexpert] witnesses must state facts and not their individual opinions, but there are exceptions to this rule as well established as the rule itself. . . . [T]he opinions of common observers in regard to common appearances, facts and conditions have been received as evidence in a great variety of cases." Sydleman v. Beckwith, 43 Conn. 9, 11 (1875); see also State v. Schaffer, 168 Conn. 309, 318-19, 362 A.2d 893 (1975) . HN8 [ ] Our Supreme Court has recognized that "[e]very trial, as a rule, is filled with so-called opinion evidence from the nonexpert witness. . . . When such nonexpert opinion evidence will probably aid the triers in their search for the truth, it meets the ultimate test of admissibility, and is not to be excluded because it states the conclusion of the witness based upon his observation and knowledge." (Citations omitted; internal quotation marks omitted.) MacLaren v. Bishop, 113 Conn. 312, 314-15, 155 A. 210 (1931); see also Conn. Code Evid. § 7-1 ("[i]f a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue"). Czajkowski v. YMCA of Metro. Hartford, Inc., supra. (Emphasis added) See also generally Porter v. Pequonnoc Mfg. Co., 17 Conn. 249 (1845) In view of the foregoing, Plaintiffs can testify about the area on their property in close proximity to the pool excavation site, that it was filled in by − 13 − the Defendant, that it contained scattered construction and other debris, including gutters, signing materials, miscellaneous metal and wooden objects, rocks, miscellaneous garbage and other various and sundry materials, and that this rendered the land unsafe. They can also testify that the Defendant failed to landscape around the pool, and opine both to the visible effects thereof and how the same has detrimentally impacted their property. Opinions of common observers in regard to common appearances, facts and conditions have been received as evidence in a great variety of cases. Such non-expert opinion evidence will probably aid the trier of fact in the search for the truth; hence it meets the ultimate test of admissibility, and ought not be excluded because it states the conclusion of the witnesses based upon their observation and knowledge. Conclusion The trial of this case will be a bench trial, not a jury trial; therefore, the need for gatekeeping is lessened. The circumstances where the adverse party can claim prejudice do not exist. There is no concern about arousing the emotions of a jury, or unduly distracting a jury from the main issues in the case. Since the Plaintiffs disclosed their experts long before trial the Defendant had ample opportunity to depose them and discover the particulars of their anticipated testimony. Moreover, Section 13-4(h) of the − 14 − Practice Book an order of preclusion may only be entered after the court makes the necessary findings. Until trial has started and Plaintiffs have had the opportunity to lay foundations for the introduction of the evidence at issue, explain the rationale for offering the same, and solicit live testimony to both explain the purpose for which the evidence is being offered and refute the Defendant’s challenges, this Court has no facts upon which to base a decision on Defendant’s motion. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . A determination on the admissibility of Plaintiffs expert testimony must be made during trial. And opinions of lay persons, i.e. common observers, in regard to common appearances, facts and conditions are permitted in many cases. When such nonexpert opinion evidence will probably aid the triers in their search for the truth, it meets the ultimate test of admissibility, and is not to be excluded because it states the conclusion of the witness based upon their observation and knowledge. Plaintiffs should be permitted to testify about the construction debris, that same rendered their property unsafe, and as to the effects and impacts on their property from the Defendant’s failure to landscape. − 15 −