Donaldson v. Grous

[[COURTLISTENER_SUBOPINION {"id":"11048997","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                            
                DISTRICT OF CONNECTICUT                              
---------------------------------------------------------------  x        
                                 :                                   
JOSHUA DONALDSON,                     :                                   
                                 :                                   
                   Plaintiff/Counter Defendant,  :  RULING ON MOTIONS 
                                 :     IN LIMINE                     
    -against-                    :                                   
                                 :        3:22-cv-810 (VDO)          
BILL GROUS,                           :                                   
                                 :                                   
                                     Defendant/Counter Plaintiff.  : 
                                 :                                   
---------------------------------------------------------------           
                                 x                                   

VERNON D. OLIVER, United States District Judge:                           
Plaintiff  Joshua  Donaldson  leased  Defendant  Bill  Grous’s  home  in  Greenwich, 
Connecticut. Donaldson claims that soon after he and his family moved into the home, they 
noticed mold and began to experience respiratory issues. They quickly moved out and, a few 
months later, filed this lawsuit alleging chiefly that the Grous’s home was uninhabitable. Grous 
disagrees, contending that any mold problem was remediated and, in any case, was not 
substantial enough to render the home uninhabitable. Grous countersued, arguing that the mold 
was simply a pretext for Donaldson to shirk his obligation to make monthly rental payments.  
Nearly three years into this litigation, the case is now on the verge of trial. As a result, 
the Parties have moved in limine to preclude each other from offering certain testimony and 
evidence. The Court now resolves these motions in turn.                   
I.   ANALYSIS                                                             
Motions in limine provide district courts the opportunity to rule in advance of trial on 
the admissibility and relevance of forecasted evidence. See Luce v. United States,
469 U.S. 38
, 
40 n.2 (1984). Motions in limine allow courts to resolve important evidentiary issues without 
repeated and protracted interruption of the trial itself. Palmieri v. Defaria,
88 F.3d 136, 141
(2d Cir. 1996). “A party may make a motion in limine requesting the exclusion of specified 
evidence or argument and base the motion on any of the grounds available under the Federal 

Rules of Evidence.” 2 Moore’s Manual of Federal Practice and Procedure § 18.24 (1990).1  
At the motion in limine stage, a court should exclude evidence only if the evidence is 
clearly inadmissible on all possible grounds. Levinson v. Westport Nat’l Bank, No. 09-cv-
1955-VLB,
2013 WL 3280013
, at *3 (D. Conn. June 27, 2013); United States v. Ulbricht,
79 
F. Supp. 3d 466, 478
(S.D.N.Y. 2015). That is because the admissibility of evidence or 
testimony at trial often depends on the context in which the evidence is offered, so “[t]he court 
also retains discretion to reserve judgment on some or all motions in limine until trial.” Bryant 

v. City of Hartford,
585 F. Supp. 3d 179
, 185 (D. Conn. 2022).            
Loosely translated, a motion in limine is a motion made “on or at the threshold,” Luce,
469 U.S. at 40
n.2 (quoting Black's Law Dictionary 708 (5th ed. 1979)), and courts generally 
issue rulings in limine in advance of trial. But the development of a trial is difficult to 
anticipate. As a result, the context of the trial itself may alter the viability of the proffered basis 
for a pre-trial ruling. The Court therefore invites any party who believe that the factual record 

as developed at trial supports a revised ruling to bring such an application in a timely manner. 




1 In quotations from legal authority, this opinion omits irrelevant subsequent case history as well 
as internal citations, quotation marks, and footnotes, and adopts alterations contained therein, 
unless otherwise noted.                                                   
A.   Grous’s motion to preclude testimony regarding emotional distress 
First, Grous seeks to preclude Donaldson or any other witness from offering testimony 
regarding  emotional  distress  damages.  Grous  chiefly  argues  that  such  damages  are 
unrecoverable under the causes of action that Donaldson has pled. Under a section discussing 

his claims for breach of contract and breach of the covenant of quiet enjoyment in his damages 
analysis, Donaldson indicated that he contemplated seeking “compensatory  damages  for 
emotional distress/pain and suffering.”2 Grous contends that breach of contract actions cannot 
support emotional distress damages,3 and that claims for breach of the covenant of quiet 
enjoyment fundamentally sound in contract law and therefore also cannot support damages for 
emotional distress.4                                                      

Because this Court sits in diversity to exercise jurisdiction over Donaldson’s state law 
claims,  substantive  legal  questions  regarding  those  claims  are  decided  according  to 
Connecticut law. See Res. Grp. Int’l Ltd. v. Chishti,
91 F.4th 107, 112
(2d Cir. 2024). 
Donaldson, for his part, readily concedes that his claim for breach of contract cannot support 



2 ECF No. 82-1 at 3.                                                      
3 Absent rare exceptions that neither party argues are present here.      
4 See generally ECF No. 82. At the outset, the Court notes that Grous’s main argument against this 
testimony is one of substantive tort law. Claims that turn in the first instance on substantive legal 
standards rather than the Federal Rules of Evidence are more properly resolved by dispositive 
motions, such as a motion for judgment as a matter of law. Because the issue presents questions 
as to what sort of testimony the jury may hear, however, the Court will address the claim now. If 
Grous believes the Court’s conclusion at this stage presents an error of law, however, he is free to 
move for judgment as a matter of law post-trial. Because this is a close question addressed with 
limited briefing and authority, the Court would consider such a motion without resort to the law-
of-the-case doctrine.                                                     
emotional damages and that he has not pled a separate action for emotional distress.5 But he 
cites three cases that he claims show that Connecticut law allows for the recovery of damages 
for emotional distress in an action without physical injury, which is usually considered the 

limitation on whether a party may recover damages for emotional distress. See, e.g., Michel v. 
MAPFRE Ins.,
2023 WL 6842125
, at *2 (Conn. Super. Ct. 2023).6             
Donaldson overstates the importance of the caselaw he cites in resolving the question 
presented in this motion. At a high level, it is important to differentiate between (1) a cause of 
action, or a claim, which provides the basis for the legal violation alleged, (2) the remedy 
sought—here, monetary damages—and (3) the harms for which monetary damages may be 
permitted under any given tort. Only at this third level do we reach the issue in the instant 

motion, which is not whether Donaldson can bring a claim for emotional distress, nor whether 
he can recover monetary damages for a breach of the covenant of quiet enjoyment. The 
question, rather, is whether damages for emotional distress may be recovered as part of 
compensatory damages awarded for a breach of the covenant of quiet enjoyment.  


5 “First, Grous argues that ‘emotional distress damages are not ordinarily recoverable for breach 
of contract.’ This is a red herring and ignores Donaldson’s claim for breach of the covenant of 
quiet enjoyment.” ECF No. 109 at 3 (quoting ECF No. 82-1 at 2); see also Comp., ECF No. 1.  
6 That Donaldson’s briefing relies entirely on his claim for breach of the covenant of quiet 
enjoyment as the basis for the compensatory damages for emotional distress that he seeks is 
puzzling. Donaldson also brings a claim under the Connecticut Unfair Trade Practices Act, or 
CUTPA. whether emotional distress damages are recoverable under CUTPA. Compl. at 8-9. As to 
“whether emotional distress damages are recoverable under CUTPA . . . [t]here is no Appellate 
authority [] and there is a split of authority amongst the trial courts.” Odell v. Wallingford Mun. 
Fed. Credit Union,
2013 WL 4734783
, at *35 (Conn. Super. Ct. 2013). But neither Donaldson’s 
damages analysis nor his opposition to Grous’s motion in limine argue that he can recover damages 
for emotional distress under CUTPA, so the Court will consider this argument forfeited.   
While it is true, as Donaldson claims, that Connecticut courts have “held that damages 
for emotional distress are available for a plaintiff who was exposed to mold in a residence even 
without physical injuries,”7 the cases he cites do not address this more specific question. In the 

first of his three cases, Hrebenko v. Birchwood Cheshire Condo. Assoc., Inc.,
2022 WL 
2339528
(Conn. Super. Ct. 2022), the Court explained that Connecticut courts have allowed 
for “a claim of emotional distress arising from exposure to sewage in a property-damage-type 
scenario.”
Id.
at *2 (citing Duffy v. Wallingford,
49 Conn. Supp. 109, 122
(2004)). The Court 
then explained that, like exposure to sewage, “exposure to mold is an environmental problem 
recognized in numerous court decisions,” and therefore held that exposure to mold could give 
rise “to what may loosely be referred to as environmental-type claims–emotional distress or 

direct injury resulting from exposure to heat and/or mold,” id. at *3, “due not to mere damage 
to property but to personal exposure and concerns about health,” id. at *2.  
Notably, however, there is no indication that the Hrebenko plaintiff was bringing a 
claim for breach of the covenant of quiet enjoyment. Instead, as that Court explained, the 
“owner of a condominium unit” brought claims against his condominium association and “an 
entity described as a management company hired by [the condominium association].” Id. at 1. 

That plaintiff “invoked a number of theories” to claim that “the improper maintenance and 
repairs of the boiler . . . has resulted in damage to his unit.” Id. (cleaned up). And the Court in 
Hrebenko was evaluating a motion to strike which is “a means of testing the legal sufficiency 
of a cause of action or of a claim for relief,” not a “challenge to the components allowable in 
a claim for damages.” Id. at *2. Therefore, Hrebenko concluded that the defendant had not 


7 ECF No. 109 at 3.                                                       
“established [the] legal insufficiency” of a standalone claim for “environmental-type claims–
emotional distress or direct injury resulting from exposure.” Id. at *5, *3.8  
The  problem  for  Donaldson,  however,  is  that  he  brought  neither  a  standalone 

environmental exposure injury claim nor a claim for emotional distress. And while he perhaps 
could point to Hrebrenko to support a standalone claim of that sort, Hrebrenko does little to 
demonstrate that damages for emotional distress are a part of the compensatory damages 
contemplated as the remedy for breach of the covenant of quiet enjoyment.  
The other two cases Donaldson cites are similarly off-base. For example, Donaldson 
cites Lecara v. Guillotte,
2002 WL 31319458
(Conn. Super. Ct. Sept. 24, 2002), as “awarding 
emotional distress damages on claim for breach of covenant of quiet enjoyment.”9 Not so: a 

careful review of that brief order instead shows that the Lecara Court found that the plaintiff 
had “not proven” damages for “[b]reach of quiet enjoyment and emotional distress” and 
awarded zero damages for this line-item in a list of requested damages. Lecara,
2002 WL 
31319458
at *1. And in any case, this brief order—quite literally, a list of claims and dollar 
amounts without any reasoning or analysis—does not clarify whether that particular line-item 
considers two standalone claims, one for breach of the covenant of quiet enjoyment and one 

for emotional distress, or one standalone claim and the basis of the damages sought to remedy 
that claim.
Id.
Therefore, Lecara provides no support whatsoever for Donaldson’s position.  

8 This reasoning may also be rooted in the line of cases establishing that a claim for the tort of 
emotional distress may be brought on the basis of an individual’s reasonable fear of physical harm 
to themselves. Strazza v. McKittrick,
146 Conn. 714, 718-19
(1959) (A plaintiff may recover 
emotional distress damages if “the defendant’s negligence proximately caused fright or shock in 
one who was within the range of ordinary danger.”).                       
9 ECF No. 109 at 3.                                                       
The third case, Wishneski v. Sielski,
2016 WL 1038817
(Conn. Super. Ct. 2016), 
presents exactly the same issue as Hrebenko. Though Donaldson correctly cites Wishneski as 
“permitting recovery of emotional distress where property damage caused by flooding caused 

concerns for residents’ health and safety,”10 the case does little to establish that Donaldson 
may seek damages for harms suffered as a result of the emotional distress he claims he endured 
as a result of the breach of the covenant of quiet enjoyment. The Wishneski plaintiff explicitly 
brought specific claims for both “intentional infliction of emotional distress (count six), and 
negligent infliction of emotional distress (count seven).” Id. at *1.     
Donaldson  has  conclusively  established  the  less-than-remarkable  proposition  that 
“Connecticut has determined that there are situations where recovery of emotional distress 

damages without the accompanying impact should be permitted.” Chamberland v. Physicians 
for Women’s Health, LLC,
2006 WL 437553
, at *5 (Conn. Super. Ct. 2006). But the ultimate 
question remains: Are damages for emotional distress permitted as compensatory damages for 
the tort of breach of the covenant of quiet enjoyment?                    
As far as this Court can tell, no Connecticut authority directly addresses this question.11 
Donaldson seems to argue that because Connecticut law does not necessarily require personal 


10 ECF No. 109 at 3. The language in this opinion too regarding “concern for residents’’ health 
and safety” similarly seems to implicate Strazza and associated cases regarding fear of injury to 
oneself. Donaldson, by contrast, apparently seeks emotional damages for any of the stresses 
suffered as a result of the entire situation, including, for example, the stress of moving.  
11 Issues unaddressed by state courts are often good candidates for certification to those very courts. 
“Whether we ask a state court to resolve unsettled legal questions will depend on, among other 
factors: (1) the absence of authoritative state court decisions; (2) the importance of the issue to the 
state, and (3) the capacity of certification to resolve the litigation.” Runner v. N.Y. Stock Exch., 
Inc.,
568 F.3d 383, 388
(2d Cir. 2009). “[W]e do not certify a question of unsettled state law merely 
injury for the return of damages, this recovery ought to be permitted. Grous, for his part, argues 
that the general prohibition on the recovery of compensatory damages for emotional distress 
in breach of contract actions ought to control the question in this case.  

There  is  certainly  some  logic  to  Grous’s  view.  After  all,  the  covenant  of  quiet 
enjoyment is, at its core, merely an “implied contractual provision.” Berry v. Black Rock 
Gardens, LLC,
2024 WL 2933003
, at *9 (Conn. Super. Ct. 2024). On the other hand, courts 
have split as to whether claims for the breaches of other covenants that are also implied 
contractual provisions sound in tort or contract. For example, “[a]lthough a Connecticut action 
for breach of the covenant of good faith and fair dealing is based on the existence of a contract, 
courts have held that the action sounds in tort.” Motiva Enter. LLC v. W.F. Shuck Petroleum, 

No. 3:10-CV-793-JCH,
2012 WL 601245
, at *8 n.9 (D. Conn. Feb. 22, 2012).  
Two decisions from the state courts of our neighbor to the north, however, reached the 
question presented in this action. Homesavers Council of Greenfield Gardens, Inc. v. Sanchez,
70 Mass. App. Ct. 453, 458
(2007) (“We see no reason in law or policy why emotional distress, 
where  foreseeable,  should  not  be  viewed  as  a  consequence  of  interference  with  quiet 
enjoyment.”); Simon v. Solomon,
385 Mass. 91
, 107–111 (1982) (vacating damages for 

emotional distress for a breach of the covenant of quiet enjoyment as redundant with a separate 
award for reckless infliction of emotional distress, but holding that the emotional damages 

because state law permits it.”
Id.
Rather, “[w]e resort to certification sparingly, mindful that it is 
our job to predict how the [state high court] would decide the issues before us.” Highland Capital 
Mgmt., LP v. Schneider,
460 F.3d 308
, 316 (2d Cir. 2006). On the eve of trial, certification is 
almost certainly unwise. It is particularly a mistake where, as here, (1) the issue is only one small 
part of the entire action and (2) would contribute more to the protraction of this long-running case 
than to its resolution.                                                   
award for breach of the covenant could support the recovery of attorneys’ fees  allowed for 
proven violations of that covenant and declining to question the trial judge’s instruction that 
actual and consequential damages under that tort could include emotional distress damages).   

Sanchez addresses the issue in greater detail. That Court focused on the distinction 
between negligent conduct, which is all that is required to support the tort of breach of the 
covenant of quiet enjoyment, and the heightened willful or reckless standard that is required 
to make out a claim for intentional infliction of emotional distress.
70 Mass. App. Ct. at 457
. 
“If foreseeable harm follows causally from the negligence, there is no basis for elevating the 
burden of proof of a single kind of harm (i.e., emotional distress) to that required with respect 
to a common-law tort where either intentional or reckless behavior must be present.”
Id.
The 

Sanchez Court ultimately concluded that “[s]uch an interpretation is inconsistent with the 
objectives of those remedial landlord-tenant statutes” and found no basis for concluding that 
these damages were unrecoverable in such an action.                       
The Court agrees with Sanchez: The traditional reason for limiting emotional distress 
damages in breach of contract actions is far less applicable here. “[I]n contract law, there is a 
strict limitation on the measure of damages” that essentially resolves to the foreseeability of 

such damages: “‘Damages are not recoverable for loss that the party in breach did not have 
reason to foresee as a probable result of the breach when the contract was made.’” Sutera v. 
Est. of Washton,
2003 WL 1478788
, at *8 (Conn. Super. Ct. 2003) (quoting Restatement 
(Second) of Contracts § 351 (1981)). This reasoning behind this limitation—foreseeability—
applies with much less force to breaches of the covenant of quiet enjoyment: It is certainly 
more foreseeable that emotional harm would result from being forced to vacate one’s home 
due to its inhabitability than to result from the breach of a run-of-the-mill contract for goods 
or services. Instead, the relationship between landlords and tenants is quite similar to the 
relationship  between  innkeepers  and  their  guests,  which  has  long  been  held  to  support 
compensatory damages for emotional harm. See Restatement (Second) of Contracts at § 353 

(acknowledging the general rule that “[d]amages for emotional disturbance are not ordinarily 
allowed” but holding that certain such damages were allowed in certain exceptional situations, 
including breaches of “contracts of carriers and innkeepers with passengers and guests.”). 
It is significant that courts and legislatures have developed a body of law affording 
particular protection to tenants where a standard breach of contract actions would almost 
certainly already apply. Instead, courts and legislatures have concluded that the dynamics 
between tenants, who rely on landlords to provide them with a viable home (or other important 

space), require particular protection. And the Connecticut Supreme Court has long held that 
such  remedial  provisions  of  law  are  to  be  “construed  generously  to  accomplish  [their] 
purpose.” Pizzuto v. Commissioner of Mental Retardation,
283 Conn. 257, 265
(2007). It is 
black-letter law that the aim of compensatory damages is “to restore an injured party to the 
position he or she would have been in if the wrong had not been committed.” Rizzuto v. 
Davidson  Ladders,  Inc.,
280  Conn.  225,  248
(2006).  Without  compensation  for  this 

foreseeable harm, a plaintiff who proves a breach of the covenant of quiet enjoyment would 
not be fully restored to their prior position.                            
In light of these principles, the Court concludes that to broadly construe this remedial 
body of law and to restore the plaintiff to the position he would have been in if unharmed 
requires allowing him to seek damages for his emotional distress.12 Therefore, the Court will 
allow Donaldson to present evidence regarding these damages to a jury and denies Grous’s 
motion to preclude Donaldson from doing so.13                             

Even if damages of this sort are permitted, Grous argues, this Court should limit who 
may testify regarding Donaldson’s emotional state and should limit the ability of their family 
members regarding their own emotional state. Grous does not cite a particular rule of evidence 
but references relevance and risk of confusing the jury, so the Court will construe these claims 
as arising under Federal Rules of Evidence 402 and 403. These rules require the exclusion of 
irrelevant evidence, Fed. R. Evid. 402, and of “relevant evidence if its probative value is 
substantially outweighed by a danger of . . .  unfair prejudice, confusing the issues, [and] 

misleading the jury,” among other reasons, Fed. R. Evid. 403.             


12 It is true that the dollar amounts at dispute in this action far exceed those usually contemplated 
by the image of the powerless tenant fighting a well-resourced landlord, but that is, of course, no 
basis for an exception to the broad remedial purpose of the covenant.     
13 Grous also argues that he was not on notice of Donaldson’s desire to seek such damages because 
“the Complaint fails to make any factual allegations or claim for relief with respect to emotional 
distress damages” and because the damages analysis “does not offer any computation” for such 
damages, only listing “‘TBD.’” ECF No. 82 at 6. The Court disagrees. Grous cites no law for the 
proposition that Donaldson was required to include in his complaint “factual allegations” related 
to the makeup of his claim for compensatory damages as a result of the breach of the covenant. 
And Donaldson’s damages analysis, provided to Grous about two months after the Court granted 
the Parties’ scheduling order, described these damages. See ECF No. 82-1 at 4, ECF No. 16. If, as 
Grous claims, “no discovery was taken on the issue of emotional distress damages,” that fault is 
his alone: Grous has already deposed Donaldson at length. To the extent that Grous has not had 
the opportunity to depose, for example, an expert on such damages, that is because Donaldson has 
not disclosed any such experts. Perhaps that decision may harm Donaldson’s attempt to convince 
the jury of such damages at trial, but it is no basis for precluding Donaldson outright from arguing 
for emotional distress damages.                                           
The Court will deny Grous’s requests to outright preclude any such testimony but 
reserves for decision in the context of trial whether any particular question or answer in 
testimony violates these rules. First, the Court notes that as Donaldson is the only plaintiff in 

this action, he is the only individual who can seek damages. Donaldson does not contend that 
he, as the lessee, may bring an action for emotional harms to nonparties. But that does not 
mean that only he can testify regarding his emotional state. Instead, others may offer evidence 
to corroborate his claims for damages, so long as that evidence is otherwise admissible.  
Second,  the  Court  declines  to  outright  preclude  other  individuals  from  testifying 
regarding their own mental states. The Court recognizes the concern that allowing Donaldson’s 
family members (chiefly, his then-fiancée Briana Miller) to testify at length regarding their 

own emotional state could create “the classic trial within a trial that Rule 403 seeks to prevent” 
by causing the jury to consider claims and surrounding facts foreign to the instant matter. Hart 
v. RCI Hosp. Holdings, Inc.,
90 F. Supp. 3d 250, 280
(S.D.N.Y. 2015). But “[a]fter all, the 
point of a trial is for parties and witnesses to testify in the first instance about what facts are 
true” and it is the job of jury “to listen and decide [which] facts are true.” DeAngelis v. City of 
Bridgeport, No. 3:14-CV-0161-JAM,
2018 WL 429156
, at *6 (D. Conn. Jan. 15, 2018). That 

job necessarily requires the jury to assess the credibility of various witnesses, see Reeves v. 
Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150
(2000), and the jury cannot do so if it is 
deprived of important context. Here, Donaldson has made clear that concern surrounding the 
mold drove his and Miller’s actions in the key period in question, so allowing them to paint an 
accurate picture for the jury requires allowing them to introduce some evidence regarding their 
emotional state.                                                          
Further, the Court concludes that testimony as to Miller’s emotional state presents a 
low risk of prejudice or confusion of the jury, provided that this testimony is not overly 
redundant and that the Court’s instructions are clear that damages may be awarded only for 

Donaldson’s injuries. See Williams v. Artus, No. 11-CV-5541-JG,
2013 WL 4761120
, at *18 
(E.D.N.Y. Sept. 4, 2013) (“As a general proposition, the courts presume that juries are capable 
of understanding and following instructions.” (citing Richardson v. Marsh,
481 U.S. 200, 211
(1987))). The Court concludes that testimony is likely to be more probative in allowing the 
jury to properly assess the credibility of witnesses than prejudicial in addressing emotional 
subjects. Therefore, the Court will not outright prohibit Miller from testifying as to either her 
own emotional state during the relevant period or to Donaldson’s, but Grous remains free to 

object if the circumstances of the trial indicate a risk of confusion, redundancy or undue 
prejudice. Likewise, of course, Grous is free to testify regarding his own emotional state during 
the period at issue.                                                      
B.   Grous’s motion in limine to preclude evidence concerning his obligations 
     as a landlord                                                   
Grous has further moved to preclude Donaldson from offering “testimony, evidence or 
argument of counsel” that Grous “had any obligations under the lease or [Connecticut law] to 
do anything other than repair the mold conditions or other conditions [] necessary to keep the 
premises in a fit and habitable condition.”14                             
The crux of this suit is whether Grous’s home was habitable. “In this case, all three 
claims rise and fall on the same question: did the mold render the home unfit to live in?” 



14 ECF No. 84 at 1.                                                       
Donaldson v. Grous,
2024 WL 5057655
, at *3 (D. Conn. Dec. 10, 2024). “Donaldson’s claim 
for breach of contract turns on whether Grous breached his contractual obligation to keep the 
home ‘fit and livable.’”
Id.
“Donaldson’s claim for breach of the covenant of quiet enjoyment 

turns on whether he was constructively evicted from the home because Grous allowed the 
home to fall into a state in which habitation was ‘untenantable.’”
Id.
And Grous’s counterclaim 
turns on whether Donaldson can show that, under Connecticut law, Donaldson was relieved of 
his obligation to pay rent because Grous failed to keep the home ‘fit and habitable.’”
Id.
Therefore, arguments about habitability and the state of the home will be front and center 
throughout the trial.                                                     
The particular dispute giving rise to Grous’s motion arises out of an exchange of emails 

between attorneys for Donaldson and Grous at the time that Donaldson was contemplating 
leaving the home and Grous was seeking to remediate the mold. In that exchange, Donaldson’s 
counsel first demanded that Grous return the home to a “fit and livable condition” as required 
by the terms of the lease.15 Grous’s counsel responded a few weeks later by confirming that 
“the  mold  remediation  has  been  completed.”16  And,  again  through  counsel,  Donaldson 
responded:                                                                

     Please provide specific information on the remediation efforts  
     undertaken by your client’s contractor, including what areas they 
     tested, where they found mold; how they remediated the mold;    
     and what fixtures, furniture, walls and other pieces of the house 
     were replaced as part of the remediation.  As we stated in our  
     April 29 letter, my clients intend to have an independent mold  

15 ECF No. 84-1 at 8.                                                     
16 ECF No. 84-3 at 3.                                                     
     analysis performed before they decide whether the mold has been 
     resolved.17                                                     
Grous’s concern, he explains, is that a jury reading this exchange will be misled into 
the belief that Grous was obligated by statute or contract to do more than merely keep the home 
habitable.18 Specifically, Grous argues that a jury might conclude from this exchange that he 
was obligated to provide the information that Donaldson’s counsel requested. Grous contends 

that the evidence is not relevant because it does not have a tendency to make any fact of 
consequence in the action more or less probable, see Fed. R. Evid. 401, and is therefore 
inadmissible, see Fed. R. Evid. 402.                                      
Donaldson  concedes  that,  at  first  blush,  what  Grous’s  obligations  were  under 
Connecticut law looks like a question of statutory interpretation committed to the Court.19 But 
Donaldson contends that his counsel’s email “as well as Grous’s counsel’s silence in response” 
is “highly relevant to whether the house was actually remediated as of that date and Grous’s 

conduct during the critical period when he was charged by law with remediating the mold 
infestation.”20 Donaldson apparently concedes that he does not “seek[] to offer testimony, 
evidence and argument that Grous was obligated to do more than just remediate.”21 Instead, 
Donaldson argues that the email exchange is relevant to determining whether the mold was 



17 Id. at 2.                                                              
18 ECF No. 84 at 3.                                                       
19 ECF No. 110 at 3.                                                      
20 Id.                                                                    
21 Id. at 4 (quotations omitted).                                         
remediated because a jury presented with this evidence could make permissible inferences 
about whether the mold was remediated, which is the key fact of consequence in this dispute. 
The Court agrees. Rule 401 imposes a “relatively low bar” to show relevance. United 

States v. Ray,
585 F. Supp. 3d 445
, 459 (S.D.N.Y. 2022). Perhaps Grous is correct that any 
inference from his counsel’s silence might be weak. But it cannot be said that there is no 
permissible, relevant inference to be made: For example, perhaps a jury could infer that Grous 
was not taking remediation seriously and thus that remediation was less likely to be complete 
at that time; or, perhaps a jury could infer that Grous lacked good evidence to support his claim 
of remediation. Of course, inferences against Donaldson and in Grous’s favor could be made 
from the same email exchange. But “the task of choosing among competing, permissible 

inferences is for the [jury], not for the [] court.” United States v. McDermott,
245 F.3d 133, 
137
(2d Cir. 2001).                                                       
Nor can it be said that the emails that Grous seeks to preclude are overly prejudicial. 
See Fed. R. Evid. 403. Grous contends that they might confuse the jury as to his obligations. 
The Court disagrees. First, the emails simply do not claim to be authoritative on Connecticut 
law or the terms of the lease. Second, the Court’s instructions will clearly lay out Connecticut 

law on the issue and will instruct the jury to apply the law only as the Court describes it. The 
Court, therefore, concludes that the jury is entirely capable of separating legal duty from simple 
request and that the emails in question are not overly prejudicial. Grous’s motion in limine 
regarding these emails is therefore denied.                               
C.   Grous’s motion in limine to preclude testimony regarding medical 
     symptoms                                                        
Third,  Grous  motions  in  limine  to  preclude  testimony  by  Donaldson  and  Miller, 
regarding their medical symptoms and those of their child.22 According to Donaldson and 
Miller, the coughs and congestion they experienced provide important context because these 
symptoms were the genesis of their complaints to Grous, which in turn prompted the full mold 
discovery.23 Grous correctly notes that whether the mold presented a risk to the health of the 
home’s inhabitants is a crucial issue to the home’s underlying habitability: “Habitability is 

defined as ‘the condition of a building in which inhabitants can live free of serious defects that 
might harm health and safety.’” Collier v. Adar Hartford Realty, LLC,
2022 WL 18054024
, at 
*10 (Conn. Super. Ct. 2022) (quoting Black’s Law Dictionary (8th ed. 2004)). 
Grous contends that any testimony by Donaldson and Miller regarding their symptoms 
“should be excluded as speculative, irrelevant, and unfairly prejudicial.”24 Relevance, of 
course, can be swiftly disposed of. As Grous himself admits, whether the mold caused a health 

and safety issue is an important question, and a jury could of course infer from the emergence 
of medical symptoms in occupants of the home that the mold was causing these symptoms.  
Grous’s further objections are similarly disposed of. For example, that Donaldson and 
Miller are “not medical doctors or toxicologists”25 might make for highly effective cross-
examination, but it is not a basis to deny them the ability to testify about their firsthand 


22 ECF No. 85.                                                            
23 ECF No. 111 at 3.                                                      
24 ECF No. 85.                                                            
25 Id. at 4.                                                              
experiences. See Sumpter v. Snyder, No. 9:20-CV-00619,
2025 WL 53138
, at *4 (N.D.N.Y. 
Jan. 9, 2025); see also Johnson v. Mauro, No. 16-cv-00622,
2019 WL 2336070
, at *6 
(N.D.N.Y. June 3, 2019) (“[U]nder Federal Rule of Evidence 701, a lay witness’s testimony 

‘in the form of an opinion is limited to one that is . . . rationally based on the witness’s 
perception’ and ‘not based on scientific, technical, or other specialized knowledge within the 
scope of Rule 702.’ [Defendant] may testify concerning his perceptions . . . [such as] his 
symptoms, and physical pain. He may not, however, testify to opinions ‘based on scientific, 
technical,  or  other  specialized  knowledge.’”  (quoting  Rule  701)).  And,  at  the  pretrial 
conference, Donaldson made clear that neither he nor Miller would offer medical opinion 
testimony.                                                                

Therefore, to the extent that Donaldson or Miller seek to opine as to the basis of their 
symptoms from a medical perspective, Grous is free to object to that testimony at trial. But a 
lay witness may testify as to the symptoms they experienced, including, for example, drawing 
connections on the basis of their experience: Just as a runner might testify that their knee began 
to hurt after they tripped and fell, so too can Donaldson and Miller testify that their symptoms 
developed after moving into their home. Nor can it be said that this testimony would be overly 

prejudicial. Juries are entrusted with weighing the testimony of lay and expert witnesses 
against each other, Williams v. Goord,
142 F. Supp. 2d 416, 427
(S.D.N.Y. 2001), and 
Donaldson and Miller will both be subject to “the crucible of cross-examination,” which is the 
“constitutionally prescribed method of assessing reliability.” Crawford v. Washington,
541 
U.S. 36, 61-62
(2004).                                                    
The  Court  declines  to  preclude  Donaldson  and  Miller  from  testifying  as  to  the 
symptoms that they experienced and denies Grous’s motion in limine to that effect. But the 
Court notes that Donaldson and Miller’s testimony must comport with the limitations of 
Federal Rules of Evidence 701 and 702, as well as all other relevant proscriptions.  
D.   Grous’s motion in limine to preclude testimony by Jack Yanqui as an 
     expert witness                                                  
Grous next moves in limine to prevent Jack Yanqui, an industrial hygienist and licensed 
mold assessor who conducted mold testing in the home at issue, from testifying in this case as 
an expert.26 Grous concedes that Yanqui may testify in this case as a fact witness because he 
has personal knowledge with respect to facts in dispute; namely, Yanqui personally inspected 

the home and observed the mold in question.27 But Grous contends that Yanqui lacks the 
qualifications necessary to testify as an expert regarding “the health effects mold may have on 
a person and whether or not the premises was habitable.”28                
After collecting mold samples from the home, Yanqui sent those samples out for testing 
and prepared a report on the results. Donaldson, for his part, explains that he seeks to offer 
Yanqui as a fact witness regarding the mold he saw in the house and the policies of BNF 

Consulting, Inc., his employer of five years, regarding its categorization of risks presented by 
certain types of mold.29 Donaldson contends that Yanqui is not offered as an expert or opinion 
witness.30 The BNF reports are critical evidence regarding the presence of mold in the home, 



26 ECF No. 86.                                                            
27 Id. at 1-2.                                                            
28 Id. at 1.                                                              
29 ECF No. 112 at 3.                                                      
30 Id.                                                                    
Donaldson avers, so Yanqui’s testimony will allow the jury to correctly interpret and evaluate 
the trustworthiness of these reports.                                     
This motion in limine appears moot, at least at this pretrial stage. There are no 

objections to any portions of the BNF reports which Yanqui in part prepared. Grous asks for 
preclusion of Yanqui as an opinion witness; Donaldson avers that he will not offer Yanqui as 
an opinion witness. If, at trial, Yanqui’s testimony appears to tend towards opinion testimony 
rather than fact testimony, Grous is welcome to renew his objection then to specific lines of 
questioning. If Yanqui’s testimony is limited to the unobjected-to report he prepared for BNF, 
that testimony is properly considered fact testimony. But if his testimony strays beyond the 
that report or his personal knowledge as to the state of the home, it may well be opinion 

testimony subject to an at-trial objection. Given the apparent high-level agreement of the 
Parties as to the legal rules that should operate to limit Yanqui’s testimony, the Court declines 
to address the issue further at this time and denies as moot Grous’s motion in limine. 
E.   Grous’s motion in limine to preclude testimony by Dr. David Rosenstreich 
     as an expert witness                                            
Grous  further  seeks  to  preclude  the  testimony  of  Donaldson’s  expert,  Dr.  David 
Rosenstreich. Expert testimony is admissible if the following conditions are met: 
     (a)  the  expert’s  scientific,  technical,  or  other  specialized 
     knowledge will help the trier of fact to understand the evidence 
     or to determine a fact in issue; (b) the testimony is based on  
     sufficient facts or data; (c) the testimony is the product of reliable 
     principles and methods; and (d) the expert has reliably applied 
     principles and methods to the facts of the case.                
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579
(1993). The 
Court’s role is to act as a “gatekeeper” to ensure that the expert’s testimony is relevant and 
rests on a reliable foundation. See In re Vivendi, S.A. Secs. Litig.,
838 F.3d 223, 253
(2d Cir. 
2016).                                                                    
Dr.  Rosenstreich  is  “an  Internal  Medicine  specialist  and  an  Allergy/Immunology 

specialist” with more than forty years of experience.31 Grous, therefore, does not contest Dr. 
Rosenstreich’s  general  qualifications.  Instead,  Grous  contends  that  Dr.  Rosenstreich’s 
opinions are not supported by the research he cites, are overly broad, and lack sufficient basis 
in testing performed on the home and on Donaldson and his family.         
First, and most broadly, the Court rejects each argument that Grous makes claiming 
that insufficient testing on Donaldson or the home has been done to allow Dr. Rosenstreich to 
offer an opinion on an issue. Each of these claims confuses an important limit on the strength 

of Dr. Rosenstreich’s testimony with a basis for excluding the claim altogether. For example, 
Grous contends that Dr. Rosenstreich cannot offer an expert opinion as to whether mold 
rendered the home uninhabitable because although BNF’s testing revealed the genus of the 
mold, no testing was done to determine whether the mold was of a species that is dangerous to 
human health. But Dr. Rosenstreich reviewed the testing from BNF regarding the presence of 
mold in the home, and the question this action presents is whether the home was habitable in 

general, not whether the home was habitable for Donaldson or his family specifically or 
whether  the  home  was  habitable  in  all  cases.  More  testing  might  have  strengthened 
Rosenstreich’s testimony, but his testimony nonetheless has a reliable basis and cannot be 
excluded.                                                                 



31 ECF No. 88 at 3.                                                       
As a second example, Grous seeks to preclude Dr. Rosenstreich from testifying about 
whether the home’s air system would sufficiently disperse the mold around the home to render 
all portions of the home uninhabitable. Grous avers that “that there was no testing done to 

determine whether mold actually spread through the ventilation system,”32 and therefore that 
Dr. Rosenstreich’s opinion that tenants were “at risk from developing medical problems from 
the mold exposure anywhere in the house”33 as a result of the HVAC system should be 
precluded. If additional testing had been conducted and had produced results consistent with 
Dr. Rosenstreich’s opinion, that testing certainly may have strengthened Dr. Rosenstreich’s 
testimony. But Dr. Rosenstreich’s testimony is based on sufficient facts—namely, the various 
BNF reports on mold in the home and blueprints of the home—to allow him to form and offer 

an opinion on that issue.                                                 
Grous next seeks to distinguish between a potential threat and a “serious” threat: “The 
standard is whether the mold was a serious threat to the health and welfare, not whether the 
mold was a potential threat.”34 This pedantic argument is unconvincing. Dr. Rosenstreich’s 
testimony speaks to the sort of threat that mold could form, and whether that threat is sufficient 
to render the home uninhabitable is the crux of the jury questions in this case. That is, whether 

the threat posed by mold rose to the level of uninhabitability is the key question, and Dr. 
Rosenstreich’s opinion will clearly assist the jury in evaluating that question. In essence, Grous 


32 Id. at 13.                                                             
33 ECF No. 88-2 at 61-62.                                                 
34 ECF No. 88 at 17 (“Dr. Rosenstreich does not have any reliable opinions that the mold within 
the home was dangerous, such that it would pose a serious threat to the health and welfare of the 
occupants.  Instead, his opinions are that the mold is potentially dangerous.”). 
argues that the threat posed by mold is not serious enough to rise to that level. As the Court 
made clear at summary judgment, however, exactly that question is for the jury, not the Court, 
Donaldson,
2024 WL 5057655
, and a jury presented with Dr. Rosenstreicih’s testimony could 

certainly conclude as much. Of course, Grous may well succeed in proving to the jury that the 
mold threat remained remote enough that the home was still livable. But that is his task at trial, 
not the Court’s in a motion in limine.                                    
Grous further seeks to preclude any testimony by Dr. Rosenstreich about Donaldson 
and his family’s symptoms on the basis of Dr. Rosenstreich’s testimony that he was not 
offering an opinion regarding the cause of the tenants’ symptoms.35 Again, though, Grous’s 
argument misunderstands the relevance of the symptoms that Donaldson and his family say 

they experienced. These symptoms might allow the inference that the mold in the home was 
of a volume and type sufficient to cause health issues, which in turn speaks to habitability. 
Whether the symptoms that the tenants describe are consistent with mold exposure, therefore, 
is a critical question. Dr. Rosenstreich’s concession that he cannot establish causation does not 
preclude him from testifying as to whether mold might have caused these symptoms, nor does 
it render the basis for his testimony unreliable. And, again, Grous further objects on the basis 

of prejudice, but to the extent that a lack of testing limits Dr. Rosenstreich’s ability to offer an 
opinion regarding the ultimate causation of the tenants’ symptoms, that simply forms the basis 
for rebuttal and cross-examination.                                       




35 ECF No. 88 at 18.                                                      
Lastly, Grous seeks to preclude Dr. Rosenstreich from testifying that exposure to mold 
could have deleterious effects on children.36 He argues that this opinion should be precluded 
because  the  study  it  chiefly  cites  included  different  circumstances  than  those  facing 

Donaldson’s child: several years of exposure, rather than several weeks, and potentially 
exposure to greater amounts of mold. But the question the jury will decide is not whether 
Donaldson’s daughter was harmed: This is not a personal injury action. Instead, the question 
is whether the home was habitable. And whether the home would have proved dangerous for 
children in the long run is certainly relevant to its habitability.37 Therefore, the Court denies in 
full Grous’s motion in limine to limit the testimony of Dr. Rosenstreich.38 
F.   Both Parties’ motions to preclude certain late-disclosed witnesses 

 Donaldson  and  Grous  both  seek  to  preclude  each  other  from  offering  allegedly 
untimely witnesses.39 Grous seeks to preclude three of Donaldson’s witnesses, two of whom 
are Grous’s former attorneys. Donaldson, meanwhile, seeks to preclude three of Grous’s 
witnesses, one of whom is Donaldson’s own prior counsel.                  
Federal Rule of Civil Procedure 26(a) requires a party to disclose, without awaiting a 
discovery request, the name of “each individual likely to have discoverable information—


36 ECF No. 88 at 11-12.                                                   
37 Likewise, the Court declines Grous’s request to preclude Dr. Rosenstreich’s opinion that risk 
increases with exposure. See id. at 9. Grous contends that “Dr. Rosenstreich did not have any 
data . . . concerning the length of time the occupants were at the premises,” but this is irrelevant: 
The issue is not whether Donaldson and his family were at the premises long enough to be at this 
increased risk, but rather the objective question of whether the home was habitable.  
38 ECF No. 88.                                                            
39 ECF Nos. 83 and 89.                                                    
along with the subjects of that information—that the disclosing party may use to support its 
claims or defenses.” Id. at 26(a)(1)(A)(i). “The purpose of this disclosure is to alert an opposing 
party of the need to take discovery of the named witness.” Pal v. New York Univ.,
2008 WL 

2627614
, at *4 (S.D.N.Y. June 30, 2008). Moreover, if “additional or corrective information” 
becomes available, a party is obligated to timely supplement this disclosure. Fed. R. Civ. P. 
26(e)(1).                                                                 
Under Rule 37(c)(1), if a party fails to identify a witness as required by Rule 26(a), the 
party is not allowed to use that witness to supply evidence at trial, “unless the failure was 
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In deciding whether to exclude 
testimony, the Court considers “(1) the party’s explanation for the failure to comply with the 

disclosure requirement; (2) the importance of the testimony of the precluded witnesses; (3) the 
prejudice suffered by the opposing party as a result of having to prepare to meet the new 
testimony; and (4) the possibility of a continuance.” Patterson v. Balsamico,
440 F.3d 104, 
117
(2d Cir. 2006) (cleaned up). “[C]ourts have broad discretion in determining whether and 
how to impose sanctions,” Preuss v. Kolmar Laboratories, Inc.,
970 F. Supp. 2d 171, 175
(S.D.N.Y. 2013), and “[p]reclusion is a harsh remedy that should only be imposed in rare 

situations,” Lujan v. Cabana Mgmt., Inc.,
284 F.R.D. 50, 68
(E.D.N.Y. 2012) (emphasis 
added). Here, there is no possibility of a continuance: This action has remained unresolved for 
many years, and the machinery of trial is far along. To extend the trial date further still would 
unnecessarily delay the resolution of this action and thus would not serve the ends of justice. 
First, the Court grants the motions in limine as they relate to each of the former 
attorneys. The two attorneys that Donaldson seeks to call—Robert Sisca and Philip Russell—
were  disclosed  only  during  the  drafting  of  the  joint  trial  memo,  far  after  the  close  of 
discovery.40 Similarly, the attorney that Grous seeks to call—James Denlea—was disclosed in 
a supplemental disclosure after the close of discovery.41 Each of these, the Court concludes, 
are unlikely to offer significant testimony: By and large, neither party identifies testimony that 

each may provide that is not already available on the basis of stipulated exhibits or testimony 
that cannot be offered by other witnesses. And “[c]ourts are understandably leery of turning 
trial counsel in the case before them into subpoenaed witnesses, because too often it is an effort 
to harass and intimidate and make trouble for a party by going after the lawyer.” Rubis v. 
Hartford Fire Ins. Co., No. 3:11-CV-796-WWE,
2012 WL 996530
, at *1 (D. Conn. Mar. 23, 
2012) (collecting cases). Therefore, the Court grants the motions in limine with respect to the 
Parties’ efforts to require each other’s attorney(s) to testify.          

Next, the Court turns to Donaldson’s motion to preclude Brian Gerard’s testimony. 
Gerard was not disclosed until mid-2024, roughly a year in advance of trial but shortly after 
the close of discovery.42 Donaldson has had many months in which to move to preclude Gerard 
or to move for an out-of-discovery deposition. Therefore, the Court concludes that there is 
little prejudice in this delayed disclosure. And Gerard’s testimony regarding remediation 
efforts will be substantially helpful to the jury in evaluating the key issue this case presents. 

Such minor prejudice cannot support the harsh sanction of precluding important testimony, 
and the Court therefore denies Donaldson’s motion as to Gerard.           



40 ECF No. 89 at 2.                                                       
41 ECF No. 83-1 at 3.                                                     
42 ECF Nos. 52, 107-1.                                                    
Donaldson’s motion as to Susan Calabrese presents different considerations. Calabrese 
was not disclosed as a witness until the late stage of the joint trial memorandum.43 That 
Donaldson has had limited discovery in the form of text messages related to Calabrese for 

years does not substantially impact the prejudice he faces from having been denied the chance 
to depose her.  Rather than the almost full year that Donaldson had to seek to depose Gerard, 
Donaldson had only a few months between disclosure and trial in which to seek an out-of-time 
deposition of Calabrese. Simply put, the drafting of a pretrial memorandum is far too late to 
introduce a witness to the litigation for the first time. Therefore, the Court grants Donaldson’s 
motion to preclude Susan Calabrese’s testimony.                           
Lastly, Grous seeks to exclude the testimony of Shanna Baldwin, one of Donaldson’s 

business managers.44 Like Calabrese, Baldwin was not disclosed until a few months before 
trial, during the preparations for the pretrial memorandum. But, unlike Baldwin, Grous has 
already noticed and deposed Baldwin in this litigation. He cannot now claim that he faces 
substantial prejudice as a result of Baldwin’s entrance as a witness. Grous’s strongest claim to 
prejudice is that Donaldson might seek to question Baldwin regarding matters outside the 
scope of her deposition. This, the Court concludes, would constitute prejudice, in the same 

way that allowing Calabrese to testify without a deposition on the subject would prejudice 
Donaldson. But Donaldson represented at the pretrial conference that he would limit his 
questioning of Baldwin to the subjects that were the focus of her deposition. Accordingly, the 
Court denies Grous’s motion to preclude Baldwin from testifying but notes that her testimony 


43 ECF No. 107 at 9.                                                      
44 ECF Nos. 89, 113 at 3.                                                 
must be limited to the subjects of her deposition. Grous is welcome to raise an objection should 
Donaldson’s  questioning  of  Baldwin  seek  to  stray  from  the  subjects  discussed  in  her 
deposition.                                                               

G.   Donaldson’s motion in limine to preclude Grous from testifying regarding 
     certain issues                                                  
Donaldson further seeks to preclude Grous from testifying regarding certain issues for 
which, Donaldson argues, Grous’s deposition answers were insufficient.45 Specifically, Grous 
seeks damages for some number of items of his property that he claims were damaged by 
Donaldson or his agents. These items include, for example, “furniture, cosmetics, tools, 
medications, kitchenware and bottles of alcohol.”46                       
Donaldson argues that Grous “unreasonably” failed to provide sufficient detail in 
response  to  questions  regarding  the  value  of  these  items.47  It  is  common  sense  that 
remembering the exact price of a bottle of alcohol one purchased several years prior is a 
difficult task, so Grous’s failure to provide such specifics is understandable. It is Grous’s 

burden at trial to convince a jury of the damages he suffered, and his failure to provide the 
details that Donaldson describes may prove an obstacle to fulfilling that burden. But it is no 
basis to exclude Grous’s testimony on that subject altogether. The Court’s review of the 
deposition transcript48 does not indicate that Grous’s answers were sufficiently unreasonable 
to warrant the sanction of preclusion. Therefore, Donaldson’s motion to preclude Grous from 


45 ECF No. 83-1 at 6.                                                     
46
Id.
47
Id.
48 ECF No. 83-3.                                                          
testifying as to these issues is denied. Of course, if Grous’s testimony at trial varies from his 
deposition testimony, Donaldson is free to make these differences clear to the jury during the 
crucible of cross-examination.                                            

H.   Grous’s argument regarding mold typology                        
In closing, the Court will specifically address one argument that Grous makes time and 
again throughout several of his motions in limine: That because testing revealed only the genus 
of the mold, and not the species of mold, Donaldson lacks sufficient evidence to testify as to 
the mold’s dangerousness. The Parties apparently agree that some species of the molds found 
in testing of Grous’s home are dangerous to humans, but not all, and that there is no way, at 
this stage, to know which species of mold were found in the home.         

Grous argues that for this reason, (1) Donaldson’s expert has no adequate basis to opine 
as to the dangerousness of the mold, and therefore that (2) it would be prejudicial to allow 
Donaldson and his family to testify regarding their symptoms without certainty that dangerous 
species of mold were present. This argument was also the basis of Grous’s motion for summary 
judgment.49 The Court (Meyer, J.) rejected that argument, and this Court agrees with the 
reasoning in that decision. See Donaldson,
2024 WL 5057655
.               
Donaldson cites a BNF report describing the mold as dangerous and a report from his 

expert doing the same, as well as circumstantial evidence in the form of the timing of the onset 
of their medical symptoms. Id. at *4. Grous cites testimony from his expert arguing the 
contrary. Id. But Grous’s expert also lacks specific testing as to the species of the mold present 
in the home in April of 2022. Judge Meyer explained that “[c]hoosing between the views of 


49 See ECF No. 55.                                                        
competing experts and assessing whether to make a plausible inference is a job for the jury at 
trial.” Id. As a result, he held that because the species of the mold could not be determined for 
certain and both Parties could only make inferences with the same information as to the mold’s 

dangerousness, he could not “conclude that the type of mold in the home was so obviously not 
dangerous as to warrant summary judgment.” Id.                            
Grous cites exactly one case that so much as differentiates between different types of 
molds. That case, a non-precedential and unpublished opinion which was front and center in 
his motion for summary jdugment, presents markedly different facts. See Dubiel v. Bacchiochi,
2023 WL 5700392
(Conn. Super. Ct. 2023). In Dubiel, “[n]o testing was done to determine 
whether the apparent mold is actually mold, and if so, what type of mold it might be.” Id. at 

*2. Far from testing specific enough to identify the genus of the molds present, no testing 
whatsoever was done to even confirm if mold was present in Dubiel. And that Court took pains 
to note that there was no testimony or “medical evidence that [the Dubiel plaintiffs] have been 
affected by the mold.” Id. at *4. Here, by contrast, Donaldson and his family have consistently 
testified that they had symptoms that arose after moving into the home, and their expert has 
opined that those symptoms are consistent with the symptoms of mold exposure. Dubiel, 

therefore, is best understood as concluding that no evidence whatsoever was put forward to 
establish mold and that mold type could have been one such sort of evidence. But Dubiel did 
not hold that establishment of the particular mold species was required.   
If Dubiel had held that the establishment of mold species was required, it would have 
flown in the face of more established Connecticut caselaw. For example, in Welsch v. Groat,
95 Conn. App. 658
(2006), the Connecticut Appellate Court concluded that a home was 
rendered uninhabitable by a mold outbreak without any reference to mold ‘type,’ or species, 
or genus. The Court therefore reaffirms the summary judgment holding that there is no basis 
in law to hold that a lack of testing as to the species of mold requires judgment as a matter of 
law in favor of a landlord where both sides have put forward competing evidence that would 

support inferences in either direction. As a result, the Court declines to preclude any testimony 
on the basis of this proposed conclusion of law.                          
II.  CONCLUSION                                                           
For the reasons set forth above, the Court GRANTS the Parties’ cross-motions in limine 
to preclude the Parties from calling each other’s attorney(s) as witnesses and GRANTS 
Donaldson’s motion to preclude Susan Calabrese from testifying.50 All other motions in limine 
are DENIED subject to the limitations described herein: If witness testimony expands beyond 

those limitations, Grous may raise an objection to that specific testimony during trial. 

                              SO ORDERED.                            

Hartford, Connecticut                                                     
May 12, 2025                                                              

                              /s/Vernon D. Oliver                    
                              VERNON D. OLIVER                       
                              United States District Judge           




50 The following witnesses are precluded: Calabrese, Denlea, Russell, and Sisca.