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Court will not rule on how either party should conduct their examinations in advance of trial but will
defer any ruling on the scope and nature of the cross-examination until trial begins and the scope of
M.G.’s direct examination is established. State v. Williams, 2010 VT 77, ¶ 11, 188 Vt. 405.
For these reasons, Defendant’s motion for accommodations is Denied as to the admission
and use of M.G.’s affidavit. It is Moot regarding allowing Ms. Stober as a support person and taking
breaks as necessary since these practices are already allowed. The issue of M.G.’s cross-examination
is Deferred until trial.
4. Plaintiff’s Motion in Limine (Motion # 25)
Plaintiff seeks in her motion in limine to prevent Defendant from having M.G. testify, from
having Attorney Safar testify, and from introducing testimony regarding the dismissed abuse of
process claims. Defendant objects to this motion on the grounds that a prior ruling by the Court
constituted a waiver of any objection to M.G. testifying and that Attorney Safar’s testimony is critical
to her retaliation claim.
“A motion in limine is a useful device for limiting the issues and evidence prior to trial where
that is possible.” State v. Dubois, 150 Vt. 600, 602 (1988). A motion in limine is necessarily limited
and must be used, if at all, as more of a scalpel than a shotgun. Id. In other words, a motion in
limine is best used to address a specific and discrete issue and not for broader and sweeping rulings
that may depend on the state of evidence at the time of trial and when admission is sought. Id.
“Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible
on all potential grounds.” United States v. Paredes, 176 F.Supp.2d 179, 181 (S.D.N.Y. 2001).
In this case, the relief sought falls into two categories. First, Defendant’s opposition makes
plain that she seeks to adduce evidence and testimony from M.G. and Attorney Safar regarding
Plaintiff’s decision to include Defendant’s daughter as a party to the case.
Defendant’s argument demonstrates that she has sought to reframe the issue that Plaintiff
initially included M.G. as a party as part of her retaliation counterclaim. Notwithstanding, these
facts are not relevant to the retaliation claim for two important reasons.
First, Defendant did not include service on her daughter as part of her November 11, 2024,
counterclaim for retaliation. As noted above, Defendant listed six bases for her retaliation claim.
None of them includes the post-termination decision to serve M.G. Defendant has not put Plaintiff
on notice that she intended to include this issue as a part of her retaliation claim, and it would be
prejudicial to include it now. In re Waitsfield-Fayston Telephone Co., Inc., 2007 VT 55, ¶ 12, 182 Vt. 79
(“Failure to plead a claim means that the claim is not in the case.”).
Second, the nature of a retaliation claim is focused on whether the landlord has either
changed the terms of a rental agreement or threatened or brought an action against a tenant who has
taken action consistent with one of the three protected categories. 9 V.S.A. § 4465(a); see also Houle
v. Quenneville, 173 Vt. 80, 87–88 (2001). As the Vermont Supreme Court has noted, “Vermont's
retaliatory eviction statute contemplates that the tenant’s protected activity will precede the
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landlord’s retaliatory action.” Houle, 173 Vt. at 90. Therefore, the service of and inclusion of M.G.
as a party is irrelevant to the retaliation claim.
In the alternative, Defendant also seeks to put this evidence forward in support of her
Breach of Habitability claim to show that Defendant’s failure was willful and intentional. This
contention is not logically connected. The breach of warranty claim is premised on the allegations
that Plaintiff did not have smoke detectors and carbon monoxide detectors installed at the start of
Defendant’s tenancy and that Plaintiff did not install them in a timely manner. Whether Plaintiff
included M.G. as a party does not make the question of whether she willfully failed to install the
detectors more or less true.
Finally, Defendant also contends that this testimony will establish her claim for punitive
damages and for attorney liability. Neither of these claims are before the Court, and therefore they
cannot provide a basis for admissibility. In re Waitsfield-Fayston Telephone Co, Inc., 2007 VT 55, at ¶ 12.
Furthermore, Attorney Safar is not a party, and any claims that Defendant may have against
Attorney Safar are also not before the Court in this trial.
For these reasons, the Court Grants Plaintiff’s motion in limine regarding any testimony
about the inclusion of M.G. as a party to this lawsuit and the process of serving her the complaint.
Such testimony is not relevant to any surviving claims that are presently before the Court and within
the scope of the present trial. Given that this area of testimony is the only testimony sought from
Attorney Safar, the motion in limine regarding calling Attorney Safar as a witness is Granted.
Defendant may not call Attorney Safar as a witness.
As to the second category, M.G.’s general ability to testify, Defendant notes that M.G. lived
in the house at 15 Phelps Street at all relevant times and was a witness to the incidents and facts that
make up Defendant’s remaining counterclaims, regarding retaliation and habitability. This proffer
suggests that M.G. has personal knowledge of the facts underlying these claims. For this reason, the
Court Denies Plaintiff’s request to outright bar M.G.’s testimony. At the same time, the Court will
note again that M.G. is not a party to this case, and any damages that she claims to have suffered or
any opinions that she may have about the process are not relevant to the present claims. Her
testimony will be circumscribed by V.R.E. 402 and 602, which require a witness to testify about their
personal knowledge of what they witnessed to the extent that such personal observations are
relevant to the claims before the Court.
In summary, the Court Grants Plaintiff’s motion in limine in Part. Neither party may offer
testimony regarding M.G.’s inclusion as a party in this case or the service of process that she
received as it is not relevant to the remaining claims. It is also Granted as to the testimony of
Attorney Safar, who shall not be called as a witness. It is Denied in Part to the issue of M.G.’s
testimony as she may testify about her personal observations and knowledge.