Pontes et al v. Meyerand

Filing 49

ORDER on objections raised in the parties' Joint Trial Memorandum. See attached Order with correction of typographical error on page 5. Signed by Judge Vanessa L. Bryant on 10/15/2012. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOAO PONTES, AS THE ADMINISTRATOR,
OF THE ESTATE OF MARIA PONTES, AND
JOAO PONTES, INDIVIDUALLY
PLAINTIFFS,

v.
MARY ELIZABETH MEYERAND,
EXECUTRIX OF THE ESTATE OF
MARY GRACE MEYERAND
DEFENDANT.

:
:
:
:
: CIVIL ACTION NO. 3:11cv404(VLB)
:
: OCTOBER 15, 2012
:
:
:
:
:

ORDER ON OBJECTIONS RAISED THE PARTIES’ JOINT TRIAL MEMORANDUM
At the outset, the Parties have failed to comply with this Court’s order that
all evidentiary objections raised in the Joint Trial Memorandum (“JTM”) must be
the subject of a Motion in Limine supported by applicable Second Circuit
precedent. See [Dkt. #18]. Instead, the Parties have raised form objections which
merely state legal conclusions unsupported by any factual predicate or citation to
caselaw. The Parties are informed that should they raise additional objections or
other motions during the course of this action, such objections or other motions
will be summarily denied for failure to submit a memorandum of law or to argue
points of fact and law providing the factual and legal predicate supporting the
objection or other motion.
i.

Defendant’s Objection to Photographs of Decedent

The Defendant objects to the introduction of more than 20 photographs of
the decedent which were appended to the medical examiner’s report on the

1 

grounds that the prejudicial effect of the photographs will far outweigh their
probative value pursuant to Fed. R. Evid. 403. First, the Court notes that Plaintiff
has not identified the relevance of the photos. Plaintiff has not asserted and this
Court can find any material fact in issue in this case which these photographs
have a reasonable tendency to prove or disprove. To the extent they are being
offered to prove the pain and suffering of the decedent, the Plaintiff has not listed
any witness or other exhibit which would establish a foundation for their
admission. The Plaintiff has not disclosed any expert medical or other testimony
nor an expert report necessary to lay a foundation for the relevance of the
photographs. In the absence of any proffered foundational evidence, the
photographs depicting multiple bruises and contusions on the decedent’s body
can only elicit speculation and sympathy upon which a jury may not base a
verdict. The Court also notes that the parties were ordered to file a Joint Trial
Memorandum in compliance with its Chambers Practices, disclosing all witness
they intended to call with a brief summary of the testimony they were expected to
offer along with a list and a binder containing their exhibits. Any objections to
proposed exhibits were to be included. Plaintiff failed to meet the Court’s
deadline for filing exhibits and later submitted a binder only containing the
medical examiner’s photos and no medical examiner’s report. The Defendant’s
objection to the introduction of the autopsy photographs is therefore sustained
and the Plaintiff is hereby precluded from offering the photographs at trial.
ii.

Defendant’s Objection to Plaintiff’s Proposed Wrongful Death
Instruction

2 

The Defendant has objected to any instruction regarding lost earnings as
Mario Pontes was collecting Social Security disability since 2000 until the time of
her death and therefore has no cognizable claim for lost wages. The objection is
sustained particularly in view of the fact that Plaintiff has not put forth any
evidence of lost wages. Plaintiff has not listed in the JTM, as he was obligated to
do, any evidence or testimony regarding lost wages. The Court will therefore not
instruct the jury on lost wages.
iii.

Defendant’s Objection to Plaintiff’s Proposed Loss of Consortium
Instruction

The Defendant objects to plaintiff’s request for a charge on loss of
consortium on the basis that the Plaintiff never made a claim for loss of
consortium in the complaint. Defendant argues that loss of consortium is a
separate cause of action which must be pled within the applicable statute of
limitations. The Connecticut Supreme Court has explained that “loss of
consortium is a separate cause of action” albeit derivative of the injured spouse’s
cause of action. Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312 (1987). As the
Plaintiff has not asserted a loss of consortium claim, which is broader than the
emotional distress claim he has made, the Defendant’s objection to a loss of
consortium charge is sustained.
A number of superior courts have held that an amended pleading asserting
a claim for loss of consortium can relate back for purposes of the statute of
limitations to the filing of the original complaint in circumstances where the
spouse was already a plaintiff and had previously raised claim for injury in the

3 

original complaint from the same events. Anderson v. Marriot Hotel Servs., Inc.,
No.CV085006399, 2010 WL 2108971, at *9 (Conn. Super. Ct. April 21, 2010).
Despite the fact that an amendment would relate back, the Plaintiff may not now
amend his complaint to assert a loss of consortium claim if he sought leave to do
so. Although Rule 15 of the Federal Rules of Civil Procedure provides that leave
to amend the pleadings should be “freely give[n] ... when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “The rule in this Circuit has been to allow a party to amend
its pleadings in the absence of a showing by the nonmovant of prejudice or bad
faith.” Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993). The Second
Circuit has “referred to the prejudice to the opposing party resulting from a
proposed amendment as among the ‘most important’ reasons to deny leave to
amend.” AEP Energy Servs. Gas Holding Co. v. Bank of American N.A., 626 F.3d
699, 725 (2d Cir.2010) (citation omitted). “Amendment may be prejudicial when,
among other things, it would require the opponent to expend significant
additional resources to conduct discovery and prepare for trial or significantly
delay the resolution of the dispute.” AEP Energy, 626 F.3d at 725–25 (internal
quotation marks and citation omitted). Courts have typically found amendments
to be prejudicial in circumstances where discovery has been completed and the
case is near or on the eve of trial. Ansam Assocs., Inc. v. Cola Petroleum, Ltd.,
760 F.2d 442, 446 (2d Cir.1985) (affirming denial of motion to amend as
“especially prejudicial given the fact that discovery had been completed and [the
defendant] had already filed a motion for summary judgment”); see also Krumme
v. WestPoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir.1998) (same where “case was

4 

near resolution and discovery had been completed”); Juncewicz v. Patton, No.
01-cv-0519E(SR), 2002 WL 31654957, at *6 (W.D.N.Y. Oct. 8, 2002) (denying leave
to amend complaint on “eve of trial” as that would “unduly delay the final
disposition of this action”). Although Plaintiff has not moved for leave to amend
the complaint, permitting him to do so now would be both prejudicial and cause
undue delay. Amendment of the complaint now would inevitably require the
reopening of discovery which has long been closed and further require a
continuance of the trial which is just weeks away. Accordingly the objection to
the proposed charge is sustained.

IT IS SO ORDERED.
______/s/___________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: October 15, 2012

5