Wendrow et al v. Michigan Department of Human Services et al
Filing
424
ORDER denying without prejudice 403 Motion in Limine; denying without prejudice 404 Motion in Limine; denying as moot 405 Motion in Limine; denying 406 Motion in Limine; granting 408 Motion in Limine; granting 409 Motion in Limine; denying without prejudice 410 Motion in Limine. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THAL FLAM WENDROW, et al.,
Plaintiffs,
Case No. 08-14324
v.
Hon. John Corbett O’Meara
MICHIGAN DEPARTMENT OF
HUMAN SERVICES, et al.,
Defendants.
_______________________________/
ORDER REGARDING
MOTIONS IN LIMINE
Before the court are several motions in limine filed by the parties.
I.
Defendants’ Motion to Preclude Any Claim of Damages by AW
Defendants seek to preclude any claim of emotional distress damages by
AW. Defendants argue that AW’s emotional distress damages are speculative,
particularly in light of her inability to communicate verbally. Essentially,
Defendants argue that Plaintiffs will not be able to present sufficient evidence of
AW’s emotional distress. Plaintiffs contend that it is not procedurally proper to
dispute the sufficiency of evidence in a motion in limine. The court agrees. See
Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). As the Sixth Circuit
has explained, “a mechanism already exists in civil actions to resolve non-
evidentiary matters prior to trial – the summary-judgment motion. Allowing a
party to litigate matters that have been or should have been resolved at an earlier
stage not only allows those dissatisfied with the court’s initial ruling a chance to
relitigate, but also deprives their opponents of the procedural protections that
attach at summary judgment.” Id.
Defendants’ motion in limine to preclude any claim of damages by AW is
denied.
II.
Defendants’ Motion to Preclude Evidence of Prior Prosecutions
Defendants seek to preclude evidence regarding prior prosecutions brought
by the Oakland County Prosecutor’s Office, such as People v. Perry, and
grievances related to those prosecutions. Plaintiffs respond that they will not refer
to prior prosecutions in their opening and may not attempt to introduce such
evidence at all. If necessary, the court will address the admissibility of such
evidence after a foundation is laid in the context of trial. Accordingly, Defendants’
motion is denied without prejudice.
III.
Defendants’ Motion to Preclude Evidence of Prior Statements
by David Gorcyca
Defendants seek to preclude evidence of negative statements made by David
Gorcyca about other criminal defendants. Plaintiffs respond that they do not intend
to elicit such evidence. Accordingly, the court will deny Defendants’ motion
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without prejudice.
IV.
Defendants’ Motion to Preclude Evidence that Defense Counsel
Has Contributed to Plaintiffs’ Mental Anguish
Defendants seek to preclude evidence that defense counsel has contributed
to Plaintiffs’ mental anguish. Plaintiffs respond that they do not intend to produce
such evidence or make such a claim. Therefore, the court will deny Defendants’
motion as moot.
V.
Plaintiff’s Motion to Exclude Testimony of Shari Brooks
Plaintiffs have filed a motion to exclude the testimony of Shari Brooks.
Because Defendants have agreed not to mention this witness in their opening
statement, the court will assess the admissibility of her testimony in the context of
the evidence presented at trial. The court will deny Plaintiffs’ motion without
prejudice.
VI.
Plaintiffs’ Motion to Exclude Testimony of Kathleen Faller
Plaintiffs seek to exclude the testimony of Defendants’ expert, Kathleen
Faller, a social worker. Faller’s training is related to how and when children
disclose circumstances surrounding abuse. Plaintiffs expect Faller’s testimony to
include that (1) Aislinn Wendrow was mentally capable of communicating abuse
allegations and that she was communicating at a 10-year-old level; (2) Aislinn
could communicate using facilitated communication (“FC”); (3) the medical
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examination of Aislinn was consistent with sexual abuse; (4) what Aislinn
described during the investigation was consistent with criminal sexual conduct; (5)
Aislinn’s parents engaged in sexual “boundary violations” by tolerating nudity and
assisting her with bathing or dressing. Essentially, Faller’s testimony appears to be
an attempt to justify the prosecution of the Wendrows.
Faller’s opinions do not meet the requirements of Fed. R. Evid. 702. Her
opinions regarding Aislinn’s mental capacity and ability to communicate are
contrary to the evidence in the record, are not based upon her personal examination
of Aislinn, and are not within her area of expertise. The same is true regarding
Faller’s view of the medical evidence. Faller’s opinion regarding whether certain
evidence constitutes criminal sexual conduct is likewise not within her expertise
and is irrelevant and unduly prejudicial. Evidence regarding alleged sexual
“boundary violations” is also irrelevant and more prejudicial than probative.
The court will grant Plaintiffs’ motion to exclude Faller’s testimony.
VII. Plaintiffs’ Motion to Exclude Testimony of Sarah Killips
Plaintiffs also seek to exclude the testimony of Sarah Killips, a social worker
whom Defendants seek to present as an expert. Similar to the testimony of Faller,
Killips intends to testify that the prosecutors were justified in prosecuting the
Wendrows. Killips also intends to testify that “Mr. Wendrow’s behaviors [bathing,
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clothing, caring for Aislinn] would be expected to bolster the allegation of sexual
abuse, encourage further investigation and increase potential for charges. . . .
Chronic sexual boundary violations are consistent with grooming behavior and
constitute a ‘red flag’ in the context of a sexual abuse investigation.” See Pl.’s Br.
at 5.
Again, these attempts to suggest that the Wendrows abused their children are
irrelevant and more prejudicial than probative. Further, whether the prosecutors
were justified in prosecuting the Wendrows or properly investigated this matter is
outside of Killips’s area of expertise.
The court will grant Plaintiffs’ motion to exclude Killips’s testimony.
ORDER
IT IS HEREBY ORDERED that Defendants’ motion to preclude any claim
of damages by AW [Docket No. 406] is DENIED.
IT IS FURTHER ORDERED that Defendants’ motions to preclude evidence
of prior prosecutions and statements by David Gorcyca [Docket Nos. 403 and 404]
are DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ motion to preclude evidence
that defense counsel contributed to Plaintiffs’ mental anguish [Docket No. 405] is
DENIED AS MOOT.
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IT IS FURTHER ORDERED that Plaintiffs’ motion to exclude the
testimony of Shari Brooks [Docket No. 410] is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs’ motions to exclude the
testimony of Kathleen Faller and Sarah Killips [Docket Nos. 408 and 409] are
GRANTED.
s/John Corbett O’Meara
United States District Judge
Date: October 3, 2014
I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, October 3, 2014, using the ECF system.
s/William Barkholz
Case Manager
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