Opinion
CARSC-RE-2018-53
10-18-2019
PENELOPE MCHATTEN Plaintiff v. PAUL F. BALLERSTEIN and GOLDIE E. BALLERSTEIN Defendants And KENNETH B. HAFFORD and SUSAN P. HAFFORD Plaintiffs
ORDER ON MOTION IN LIMINE
E. ALLEN HUNTER, JUSTICE
Pending before the court is the Plaintiffs' Motion In Limine. The motion asks for multiple rulings from the court in advance of the trial now scheduled to commence on October 28, 2019, Specifically, the motion seeks the following rulings:
1. That the averments of facts set forth in Counts I through IX of its complaint be deemed admitted based on the Defendants' failure to respond to those averments in accordance with the requirements of M.R.Civ. P. 8(d).
2. That the Defendants have waived any and all general defenses to Plaintiffs' complaint and any and all M.R.Civ.P 8 (c) and 12(b) affirmative defenses to the complaint.
3. That the Defendants be precluded from calling any expert witnesses at trial for failure to comply with the requirements of Paragraph 2 of the court's November 9, 2018 scheduling Order.
4. That the Defendants be precluded from challenging any of the Plaintiffs' expert witness opinions at trial.
5. That the Defendants be precluded from introducing direct testimony through the use of a "learned treatise".
6. That the Defendants be precluded from introducing evidence in support of their counterclaim for defamation.
7. That the Defendants be precluded from introducing evidence in support of their counterclaim for the intentional infliction of emotional distress.
DISCUSSION
The court begins its discussion with several general principles in mind. M.R.Civ.P 1 provides in part that the civil rules of procedure "shall be construed to secure the just, speedy and inexpensive determination of every action." M.R.Civ.P. 9(f) provides that "All pleadings shall be so construed as to do substantial justice". Additionally, the court reminds that there is only one set of court rules in effect in Maine and pro se parties are subject to the same standards as represented parties. A failure to observe the requirements of court rules can have serious consequences. (See e.g. Learned v Inhabitants of Van Buren, 182 F.Supp.2d (2002) where the court (J. Singal) found the Plaintiffs response to the Defendant's Motion for Summary Judgment to be inadequate for its failure to comply with the " corresponding numbered paragraphs" requirement and for its departure from the rule's "short and concise" requirement. In that case, the Plaintiff, although represented by experienced counsel, filed a response that not only failed to comply with the rule's requirement that the Plaintiff respond paragraph by paragraph to the Defendant's submission but the response also included a "melange of supported and unsupported facts, legal conclusions, speculations and hearsay." J. Singal observed that however convenient the Plaintiff might have found his response to be, the format that the court found most convenient was the one set forth in the rule. J. Singal went on to write, "Some of the statements are not facts at all. Furthermore, many of Plaintiff s statements do not actually controvert the Defendant's facts that they purport to address. Most importantly, the words, "admit," "deny" and qualify" simply do not appear in Plaintiff s pleading. The court is not required to pore through the record and try to glean which of the Plaintiffs statements admits, denies, or qualifies which of the Defendant's." The court deemed Plaintiffs submissions to be inadequate for their failure to comply with technical requirements of the rules for summary judgment and found the facts set forth by the Plaintiff to have been admitted." ) The point that this court is trying to make is that following the requirements of the rules is important for every litigant, represented or unrepresented and failure to do so can have serious consequences.
The court finds an additional requirement to be worth pointing out. M.R.Civ. P. 12(f) provides that on its own initiative, at any time, the court may order "stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
Finally, M.R.Civ.P. 7(b) (7) provides in part, "Except as otherwise provided by law or these rules, after the opposition is filed, the court may in its discretion rule on the motion without hearing." The court finds the present motion to be one that it can address without further hearing and therefore issues the following Order.
ORDER
1. Should the averments of facts set forth in Counts I through IX of its complaint be deemed admitted based on the Defendants' failure to respond to those averments in accordance with the requirements of M.R.Civ. P. 8(d)?
The court concludes that the answer to this question is "no". While it is true that the Defendants have not filed an answer that complies strictly with M.R.Civ.P. 8 (b), after engaging in the somewhat laborious process of construing the Defendants' non-standard responsive pleading and its similar response to the Plaintiffs' motion, the court finds that justice favors a liberal construction and leads the court to conclude that the Defendants' have sufficiently placed the Plaintiffs and the court on fair notice that they dispute the location of the common boundary lines that are the central issues in this litigation. The Plaintiffs' primary request is that the court declare the location of those common boundaries. The Defendants have adequately given notice that they dispute the Plaintiffs' contentions regarding the location of the common boundaries. The court finds their response to be sufficient to constitute a "general denial" answer within M.R.Civ.P. 8(b). Accordingly, the court denies this first request.
Notwithstanding this conclusion, the court feels constrained to point out that both in their responsive pleading to the complaint and in their response to the Plaintiffs' motion, the Defendants have engaged in an objectionable ad hominem narrative directed at the Plaintiffs, their attorney and their designated expert witness. In the exercise of its discretion and pursuant to M.R.Civ. P. 12 (f), on its own motion the court strikes from the Defendants' complaint and from its response to the Plaintiffs' Motion in Limine all of the gratuitous insults, irrelevant assertions of perceived facts and subjective opinion set forth within those submissions. Not only is such diatribe contrary to the manner in which this court conducts its proceedings, it is entirely unhelpful to the court in considering the merits of the Defendants' legal positions. Accordingly, the court disregards what it finds to be the impertinent aspects of the Defendants' pleadings.
When this matter proceeds to trial, the parties should be aware that the court finds reasoned argument based on the record evidence and on the governing principles of law to be far more persuasive than name calling and the casting of aspersions.
2. Should the court find that the Defendants have waived any and all general defenses to Plaintiffs' complaint and any and all M.R.Civ.P 8 (c) affirmative defenses to the complaint?
The court concludes that the Defendants have failed to raise any of the affirmative defenses set forth in M.R.Civ.P. 8(c) or any of the defenses set forth in MR. Civ. P. 12(b). These are defenses that must be specifically set forth in a defendant's responsive pleading or they are deemed to be waived. The Defendants have not raised any of these defenses and accordingly they are deemed to be waived. This part of the Plaintiffs' motion is granted. The Defendants shall be foreclosed from reliance upon any of those designated affirmative defenses or those set forth within M.R.Civ.P. 12 (b).
As indicated above however, the court has found the Defendants' responsive pleading to be the substantial equivalent of a "general denial" sufficient to place the determination of the locations of the common boundaries fairly in issue for trial. Accordingly, the Defendants may generally defend against the Plaintiffs' contentions at trial.
3. Should the Defendants be precluded from calling any expert witnesses at trial for failure to comply with the requirements of Paragraph 2 of the court's November 9, 2018 scheduling Order?
This request shall be granted without objection. The Defendants do not dispute that they have not designated any expert witness. In fact, within their responses to the Plaintiffs' motion, the Defendants candidly state, "And their points about not allowing the Ballersteins to add on an expert witness after the window of opportunity has closed is, we believe, valid." Accordingly, the court Orders that the Defendants in this matter shall be foreclosed from calling any expert witness at the trial upon the merits.
4. Should the Defendants be precluded from challenging any of the Plaintiffs' expert witness opinions at trial?
The court denies this request. Although the Defendants are foreclosed from presenting their own expert witness, in this court's view, it does not follow that they are therefore foreclosed from cross examination of the Plaintiffs' expert witness. It must be remembered that the court, as fact finder, is free to accept or reject the testimony of any witness including an expert witness. In Thompson v Johnson, (270 A.2d 879, Me 1970), the Law Court wrote, "Even if the testimony of the witness is not directly contradicted, it does not make it conclusive and binding upon the trier of facts. The rule is applicable to expert witnesses testimony. The above Rule is not without qualifications, however. .. .uncontradicted testimony is not to be utterly disregarded and arbitrarily ignored without reason."(internal citations and some punctuation omitted). More recently, in Handrahan v Maleno (2011 ME 15,12 A.3d 790, the Law Court wrote, "A court is not required to believe the testimony of any particular witness, expert or otherwise, even when the witness' testimony is uncontradicted." (internal citations and punctuation omitted) Accordingly, if the Plaintiffs present a witness and if the court is satisfied that he qualifies as an expert witness, the Defendants may cross examine that witness in the usual manner.
5. Should the Defendants be precluded from introducing direct testimony through the use of a "learned treatise"?
The utilization of "learned treatises" is governed by Maine Rule of Evidence 803.18 that permits the introduction of a statement contained in a treatise, periodical, or pamphlet, if:
(A) The statement is called to the attention of an expert witness on cross-examination, and
(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
The Plaintiff seeks an Order prohibiting the utilization of a learned treatise as "direct testimony". The court interprets this request to mean utilizing a learned treatise as direct evidence during the Defendant's presentation of their case in chief. The Defendants bear the burden of establishing that whatever publication they contend is a "learned treatise" meets the requisite standards, The rule restricts the use of learned treatises to use during cross examination (emphasis supplied) of an opposing expert witness. Should the Defendants seek to introduce "learned treatise" evidence outside of cross examination, it will be subject to objection on the basis of the Hearsay Rules.
The court has also italicized "statement" to draw attention to the limitations of even permitted uses of "learned treatise" evidence. Assuming, without finding, that the Defendants present a "learned treatise" during trial, the court would not anticipate receiving an entire volume of unknown length into evidence to pour over during its deliberations in search of statements contained therein that might support the proponent's positions. As this court interprets the rule, after a publication has been accepted as a "learned treatise", the proponent would then draw the witness' attention to particular and specific statements within the treatise to determine if the witness accepts or rejects them. Accordingly, the court grants this request regarding the use of a "learned treatise" as direct evidence outside of cross examination.
6. Should the Defendants be precluded from introducing evidence in support of their counterclaim for defamation?
and
7. Should the Defendants be precluded from introducing evidence in support of their counterclaim for the intentional infliction of emotional distress?
The court denies both of these requests. The Plaintiffs in effect argue that the Defendants' counterclaims cannot be proven for various reasons. What the Defendants can or cannot prove in support of their counterclaims remains to be seen. If they fail to prove the required legal elements of their cases then the Plaintiffs may make their argument at that time and the court will consider any such argument. However, the court is disinclined to foreclose the Defendants' opportunity to present their claims for consideration. Those claims may proceed to trial. The court will then consider The evidence and the relevant legal requirements and render its judgment.
The entry shall be. The Plaintiffs' Motion in Limine is granted in part and denied in part.