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 non5:08-cv-14324-JCO-MAR Doc # 424 Filed 10/03/14 Pg 1 of 6 Pg ID 13647
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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