Wade et al v. Churyk

Filing 110

OMNIBUS RULING on Defendant's Motions in Limine. Taking under advisement 78 Motion to Preclude; granting 79 Motion to Preclude; denying 80 Motion to Preclude; granting 81 Motion to Preclude; granting in part and denying in part 82 ; granting in part and denying in part 83 Motion to Preclude; granting in part and denying in part 84 Motion to Preclude; denying 85 Motion to Preclude. Signed by Judge Holly B. Fitzsimmons on 8/13/18. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL WADE and SALLY WADE
v.
BORIS CHURYK

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CIV. NO. 3:15CV00609(HBF)

RULING ON MOTIONS IN LIMINE
Pending are defendant’s Motions in Limine. [Doc. #78, 79,
80, 81, 82, 83, 84, 85].
Standard of Review
“The

purpose of an in limine motion is ‘to aid the trial

process by enabling the Court to rule in advance of trial on the
admissibility and relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.’” Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quoting Banque
Hypothecaire Du Canton De Genève v. Union Mines, 652 F. Supp.
1400, 1401 (D. Md. 1987)); see Luce v. United States, 469 U.S.
38, 40 n.2 (1984) (“We use the term [“in limine”] in a broad
sense to refer to any motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered.”). “A district court’s inherent
authority to manage the course of its trials encompasses the
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right to rule on motions in limine.” Capital Mgmt., L.P. v.
Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 2008).
“Evidence should be excluded on a motion in limine only
when the evidence is clearly inadmissible on all potential
grounds.” Levinson v. Westport Nat’l Bank, No. 3:09-CV1955(VLB), 2013 WL 3280013, at *3 (D. Conn. June 27, 2013)
(quoting Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp.
2d 461, 470 (S.D.N.Y. 2005)). Courts considering a motion in
limine may reserve judgment until trial, so that the motion is
placed in the appropriate factual context. See Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa. v. L.E. Meyers Co. Grp., 937 F.
Supp. 276, 287 (S.D.N.Y. 1996).
Motion in Limine to Preclude Claims Barred By Absence of Damages
Analysis [Doc. #78]
Defendant seeks to preclude plaintiffs from presenting
evidence or testimony relating to alleged damages that to date
have never been articulated.
Plaintiffs will produce their damages analysis to defendant
on or before August 31, 2018, including any support for the
categories of calculable loss set forth in their discovery
responses. [See Motion in Limine Doc. #78 at 3-4; Pl. Resp. Doc.
#97 at 1-3].
Accordingly, a ruling on defendant’s Motion in Limine [Doc.
#78] is RESERVED.

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Motion in Limine to Preclude Expert Testimony and/or Reports
[Doc. #79]
Defendant moves to preclude any and all expert testimony or
reports. Plaintiffs represent that they “have no intention of
presenting expert testimony.” [Doc. #98 at 1].
On this record, in light of plaintiffs’ representation,
defendant’s Motion in Limine [Doc. #79] is GRANTED.
Motion in Limine to Preclude Evidence of Claims Barred By the
Statute of Limitations [Doc. #80]
Defendant moves to preclude plaintiffs from presenting any
evidence or testimony relating to conduct alleged in the
Complaint that is beyond the statute of limitations. Under
Connecticut law, the statute of limitations that applies to
plaintiffs’ claims of intentional injury is three years. Conn.
Gen. Stat. §52-577 (“No action founded upon a tort shall be
brought but within three years from the date of the act or
omission complained of.”). This action was instituted by service
on the defendant on May 20, 2015. Defendant argues that any
claims accruing before May 20, 2012, are therefore barred by the
statute of limitations. Such claims defendant contends are
barred by the statute of limitations are:


A February 20, 2012 gunshot through a window of the
plaintiffs’ home.



Display of a Halloween decorative head.



Removal of “No Trespassing” signs.
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

Annoying wind chimes.
Plaintiffs respond that, “[t]he defendant...admits that the

continuing course of conduct doctrine permits the fact finder to
consider wrongdoing which occurred more than three years before
suit was filed so long as there are other relevant acts
committed within the three-year period.” [Doc. #99 at 1 (citing
Watts v. Chittenden, 301 Conn. 575, 596, 22 A.3d 1214 (2011). In
Watts, the Court found that
public policy interests weigh in favor of applying the
continuing course of conduct doctrine to toll the
statute of limitations for a claim of intentional
infliction of emotional distress without requiring the
existence of an original duty. Therefore, we hold
today that, in the context of cases involving only the
intentional infliction of emotional distress, the
existence of an original duty is not necessary to
apply the continuing course of conduct doctrine. We
further hold that, although we recognize the
continuing course of conduct doctrine in cases of
intentional infliction of emotional distress, we
further recognize that at some point there must be a
limitation on the ability to file an action to recover
for such conduct. Therefore, in such cases, if no
conduct has occurred within the three year limitations
period set forth in § 52–577, the plaintiff will be
barred from recovering for the prior actions of
intentional infliction of emotional distress. If,
however, additional actions occur within the
limitations period, the ability to bring an action
will be further extended. In the present case, the
trial court found that the defendant's conduct
continued from June 3, 1999, until her guilty plea on
April 11, 2002. In 2004, the defendant made an
additional report of sexual abuse. The present action
was commenced on August 29, 2005. Further, in May,
2006, the defendant made an additional report of
sexual abuse. At no time, as found by the trial court,
was there a gap of three years between the reports of

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sexual abuse reported by the defendant against the
plaintiff.
Watts, 301 Conn. at 596–98, 22 A.3d at 1226–28. The Court
reserved judgment until trial so that the motion may be placed
in the appropriate factual context.
Finally, defendant contends that the nuisance claims are
distinguishable from the intentional infliction of emotional
distress claims. “[T]he date upon which a nuisance claim accrues
depends on whether the nuisance is considered temporary (i.e.
continuing) or permanent. Wellswood Columbia, LLC v. Town of
Hebron, 327 Conn. 53, 81-82, 171 A.3d 409, 427-28 (Conn. 2017).
“If a nuisance is not abatable, it is considered permanent, and
a plaintiff is allowed only one cause of action to recover
damages for past and future harm.” Id. Conversely, “a nuisance
is not considered permanent if it is one which can and should be
abated....” Id. Under the standard articulated in Wellswood
Columbia, LLC, defendant argues that “the nuisance claim here is
either completely barred (if determined to be permanent) or
partially barred (if determined to be temporary).” [Doc. #80-1
at 3 (quoting Wellswood, 327 Conn. at 81-82, 171 A.3d at 42728). Defendant contends that plaintiffs’ alleged claims are
“temporary in nature; presumably any nuisance of the kind
described, if proved, could and should have been abated. This
means that the plaintiff should be able to recover only for

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wrongs that occurred after May 20, 2012.” [Doc. #80-1 at 3].
Thus, defendant contends that many of plaintiffs’ claims are
plainly barred as a matter of law, including the gunshot in
February 2012, display of the Halloween decorative head, removal
of no trespassing signs and annoying wind chimes. However,
plaintiffs allege a continuing course of conduct that they will
ask the trier of fact to consider as a whole in determining
whether the conduct meets the burden of proof on each claim.
Accordingly, defendant’s Motion in Limine [Doc. #80] to bar
claims outside the statute of limitations is DENIED under the
continuing conduct doctrine without prejudice to renewal at
trial if the plaintiffs cannot show that additional acts
occurred inside the limitations period, or successfully argue
that the prior events are more prejudicial than probative.
Motion in Limine to Preclude Evidence of Chemical Contamination
and Treatment [Doc. #81]
Defendant moves to preclude plaintiffs from presenting any
evidence or testimony relating to contamination or injury to
their property or to themselves by allegedly noxious chemicals.
[Doc. #81].
Plaintiffs respond that “they agree that they do not have,
and have not disclosed, any expert witness to substantiate the
above-quoted portion of their claim in this case. Accordingly,
they will not make that claim at trial.” [Doc. #100 at 1].

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Accordingly, in light of plaintiffs’ representation,
defendant’s Motion in Limine [Doc. #81] is GRANTED.
Motion in Limine to Preclude Evidence First Produced with
Plaintiffs’ Counsel’s Letters Dated April 3, 2018 and April 18,
2018 [Doc. #82]
Defendant moves to preclude plaintiffs from presenting any
evidence or testimony regarding material produced outside the
discovery period, specifically, materials produced in letters
dated April 3 and 18, 2018, photographs, audio recording, video
recording, or other unknown recordings that have not been
produced to date. Plaintiffs state they have no objection to
reopening discovery for the limited purpose of addressing
discovery produced after the discovery period closed.


Plaintiffs will provide all photographs, audio recordings,
video recordings, and any other documents listed on
plaintiff’s Trial Exhibit list, on or before August 31,
2018. [See Motion in Limine Doc. #82; Pl. Resp. Doc. #82].
Accordingly, defendant’s Motion in Limine [Doc. #82] is

GRANTED in part and DENIED in part, subject to renewal after the
proposed exhibits are produced.
Motion in Limine to Preclude Evidence of Erased Criminal Charges
and Proceedings [Doc. #83]
Defendant moves to preclude plaintiffs from presenting any
evidence or argument relating to criminal charges or proceedings
for which he completed a program of accelerated rehabilitation,

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resulting in the dismissal of charges and the erasure of
records. The Complaint alleges defendant was granted accelerated
rehabilitation with respect to the charges involving the gunshot
he fired through a window of plaintiffs’ home on February 20,
2012. [Doc. #1 ¶5]. There is no dispute that defendant
successfully completed the terms of the accelerated
rehabilitation.
Plaintiffs respond that the “evidence is admissible ...
because the arrest and prosecution marked the beginning of the
defendant’s long pattern of retaliation and harassment against
the plaintiffs.” [Doc. #102 at 1]. Plaintiffs intend to call the
arresting officer to “testify that the defendant expressed anger
against the plaintiffs at the time of his arrest and the
evidence will show that his desire for revenge fueled his
subsequent harassment.” Id. They argue that evidence of motive
is relevant and admissible. The Court agrees that the testimony
is relevant.
Under Connecticut law, when a person successfully completes
a program of acceleration, the charges are dismissed and “[u]pon
dismissal, all records of such charges shall be erased pursuant
to section 54-142a. Section 44-142(a)(e)(3) states, “(3) Any
person who shall have been the subject of such an erasure shall
be deemed to have never been arrested within the meaning of the

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general statutes with respect to the proceedings so erased and
may so swear under oath.” Conn. Gen. Stat. §54-142a(e)(3).
Defendant argues that “[n]o evidence or argument should be
permitted referencing any arrest of the defendant for which he
completed accelerated rehabilitation, resulting in the charges
being dismissed.” [Doc. #83-1 at 2]. However, defendant concedes
that “Connecticut cases distinguish between evidence of the
underlying events, which may be allowed if otherwise admissible,
and evidence of the arrest and criminal proceedings, which may
not be permitted.” Id.
A close reading of State v. Morowitz, 200 Conn. 440,
512 A.2d 175 (1986), relied on by defendant, is unhelpful
to his position. Section 54-142a does not preclude
“evidence based on personal knowledge and evidence based on
the erased records, and limit[ing] the scope of the
witness’s testimony to a description of the prior incident
as [he/she] remembered it.” 200 Conn. at 450, 512 A.2d at
181. The Court in Morowitz found no error in the trial
court permitting a victim/witness to testify from her
personal knowledge of events, independent of the court
proceedings that followed. “No reference was permitted to
the defendant’s prior arrest or prosecution, nor were any
records of the prior proceedings admitted into evidence.”
Id. In other cases the Court has recognized “the legitimacy
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of the distinction between testimony based on independent
personal knowledge and testimony based on inadmissible
records, permitting the former while barring the latter.”
Id. Recognizing “this distinction does not undermine the
purpose of the erasure statute.” Id. 200 Conn. at 451, 512
A.2d at 182.
Prohibiting the subsequent use of records of the prior
arrest and court proceedings adequately fulfills this
purpose by insulating such an individual from the
consequences of the prior prosecution. The statute
does not and cannot insulate [a defendant] from the
consequences of his prior actions. Although the
records of the defendant’s prior prosecution were
erased, the prior victim’s memory of the assault
remain. Because the disputed testimony was based on
personal knowledge independent of the erased records,
§54-142a did not bar its admission.
Id.
Accordingly, defendant’s Motion in Limine is GRANTED
in part and DENIED in part. The witnesses may testify to
the events of which they have personal knowledge that
preceded the court proceedings which followed. It may be
permissible for a witness to testify to the arrest and any
statements made by defendant during the course of the
arrest if it occurred in front of him/her. The proponent
must proffer testimony on the personal knowledge of a
witness and the scope of the subject matter of his/her
testimony prior to offering it at trial, and the Court will

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rule at that time. No records of the prior criminal
proceedings will be admitted into evidence.
Motion in Limine to Preclude Evidence in Support of Plaintiffs’
Claims of Bodily Injury and/or Specific Psychological Injury or
Diagnosis [Doc. #84]
Defendant moves to preclude evidence or testimony in
support of plaintiffs’ claims of bodily injury or specific
psychological injury or diagnosis on the basis that plaintiffs
failed to disclose any expert to support their claims. Defendant
argues that he “would be highly prejudiced by the disclosure of
an expert so close to the trial date....” [Doc. #84-1 at 4].
“[P]laintiffs have no intention of presenting expert
testimony.” [Doc. #98]. They contend, however, that the law does
not require expert testimony to prove emotional distress. [Doc.
#103 at 1-2 (citing cases)]; Schanzer v. United Techs. Corp.,
120 F. Supp. 2d 200, 217 (D. Conn. 2000)(“There is no
requirement under Connecticut law that a claim for emotional
distress be supported by medical evidence.” (citing Berry v.
Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992))). The Court
agrees.
Just as the fact of treatment is not sufficient to
prove the existence of severe emotional distress, the
absence of treatment does not preclude proof of severe
emotional distress. [Plaintiff] contends that he has
suffered from memory loss and anxiety since the
alleged incident. ... Connecticut courts have held
that emotional distress is severe when it reaches a
level which “no reasonable person could be expected to
endure.” Mellaly v. Eastman Kodak, 42 Conn. Supp. 17,
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597 A.2d 846 (1991). The symptoms described by the
plaintiff—memory loss and anxiety—are sufficiently
serious that a reasonable jury could find for the
plaintiff on this claim.
Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 175–76 (D.
Conn. 2003).
Accordingly, defendant’s Motion in Limine is GRANTED in
part and DENIED in part. Plaintiffs are precluded from offering
testimony regarding a diagnosis, or medical conclusions, such as
causation.
Motion in Limine to Preclude Evidence of Conduct that Does Not
Rise to the Level of Extreme and Outrageous [Doc. #86]
Finally, defendant moves to preclude plaintiffs from
presenting any evidence or testimony relating to conduct alleged
in the complaint that does not rise to the level of extreme and
outrageous in support of their Intentional Infliction of
Emotional Distress claim. He argues that such testimony and
evidence is more prejudicial than probative.
Here, plaintiffs allege three distinct claims. One is
intentional infliction of emotional distress. The other two are
nuisance and negligence. Plaintiffs correctly state that, “[t]he
requirement that the defendant’s conduct be found ‘extreme and
outrageous’ is present in only the first of three tort claims.”
[Doc. #104 at 1]. The Court agrees with plaintiffs that conduct
considered in isolation might be characterized as innocuous, but
may become “extreme and outrageous” when considered cumulatively
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and over a period of time. [Doc. #104 at 2]. The Court declines
to consider the allegations to determine if the conduct alleged
rises to “extreme and outrageous’ in a pretrial evidentiary
motion. If sufficient evidence is adduced, the jury will
determine if the conduct complained of meets the burden of proof
for each claim.
Accordingly, defendant’s Motion in Limine [Doc. #85] is
DENIED.
CONCLUSION
This is not a Recommended Ruling. The parties consented to
proceed before a United States Magistrate Judge [doc. #90] on
June 26, 2018, with appeal to the Court of Appeals. Fed. R. Civ.
P. 73(b)-(c).
SO ORDERED at Bridgeport, Connecticut this 13th day of
August 2018.
___/s/_________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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