Free Motion in Limine - District Court of Connecticut - Connecticut

Case 3:02-cv-01302-JCH

Document 440

Filed 08/01/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT SHAWN POULIOT Plaintiff v. PAUL ARPIN VAN LINES, INC. et al. Defendants : : : : : : : : :

CIVIL ACTION NO. 3:02 CV 1302 (JCH) JUDGE JANET C. HALL

July 30, 2005

DEFENDANTS PAUL ARPIN VAN LINES, INC.'S AND ARPIN LOGISTICS, INC.'S MOTION IN LIMINE TO PRECLUDE TESTIMONY OF PLAINTIFF'S EXPERT WITNESS GARY M. CRAKES, Ph.D., WITH INCORPORATED MEMORANDUM OF LAW Defendants Paul Arpin Van Lines, Inc. and Arpin Logistics, Inc. (hereinafter collectively "Arpin") hereby move in limine to preclude the testimony of Plaintiff's expert witness Gary M. Crakes, Ph.D. at trial. Plaintiff failed to make Dr. Crakes available for deposition and represented to the Court that he would not use Dr. Crakes as an expert witness in this case. The Court should hold Plaintiff to his word by precluding Dr. Crakes's testimony at trial. Arpin's August 27, 2004 Memorandum in Support of Motion to Amend the Scheduling Order, filed with the Court on August 30, 2004, describes the Defendants' efforts to arrange and take Dr. Crakes' deposition. See August 27, 2004 Memorandum, at pp. 4-7, attached as Exhibit A to this Motion. In his August 25, 2004 Objection to Arpin's Motion to Change Scheduling Order, filed with the Court on August 27, 2004, Plaintiff represented to the Court that "Dr. Crakes will not be used as an expert witness" in this matter. See August 25, 2004 Objection, at p. 1, attached as Exhibit B to this Motion. In reliance upon Plaintiff's representation, Arpin did not depose Dr. Crakes.

ORAL ARGUMENT REQUESTED

Case 3:02-cv-01302-JCH

Document 440

Filed 08/01/2005

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In direct contradiction to his representation to the Court that he would not use Dr. Crakes as an expert witness in this matter, Plaintiff has now included Dr. Crakes on his list of definite witnesses at trial.1 Arpin relied on Plaintiff's representation to the Court and discontinued its efforts to arrange and take Dr. Crakes's deposition. For that reason, the Court should exclude Dr. Crakes as an expert witness at trial.

Dated this 30th day of July, 2005. Respectfully submitted,

/s/ Karen Frink Wolf Harold J. Friedman, Esq. CT 23785 Karen Frink Wolf, Esq. CT 26494 FRIEDMAN GAYTHWAITE WOLF & LEAVITT Six City Center, P.O. Box 4726 Portland, ME 04112-4726 (207) 761-0900 (207 761-0186 (Fax) [email protected] [email protected]

In light of his attempt to include Dr. Crakes on his witness list, Plaintiff's statement to the Court that Dr. Crakes would not be an expert witness in this case, on which Arpin relied in discontinuing its efforts to take Dr. Crakes's deposition, arguably meets the elements of an action for common law fraud, which include that (1) a false representation was made as a statement of fact; (2) that representation was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777 (2002).

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Case 3:02-cv-01302-JCH

Document 440

Filed 08/01/2005

Page 3 of 3

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was mailed via U.S. First Class Mail this 30th day of July, 2005 to the following:

Michael A. Stratton, Esq. Stratton Faxon 59 Elm Street New Haven, CT 06510 Thomas J. Grady, Esq. Lenihan Grady & Steele 6 Canal Street PO Box 541 Westerly, RI 02891-0541

Roland F. Moots, Jr., Esq. Moots, Pellegrini, Spillane & Mannion 46 Main Street, PO BOX 1319 New Milford, CT 06776-1319

/s/ Karen Frink Wolf Karen Frink Wolf, Esq. CT 26494

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