Cole Plaintiffs Can Testify On Emotional Distress, Use Expert

by | Mar 2, 2015

Kent County Courthouse

Kent County Courthouse

Although the Cole construction trial was due to begin in Kent County Superior Court Monday, Judge Bennett Gallo had to finish ruling on pretrial motions first – what testimony will be allowed and what won’t.

His two rulings Monday afternoon favored the plaintiffs – the owners of three houses on Sarah’s Trace. The defendants (including the town, the school department and various construction companies), acting as one, had asked the judge to preclude testimony about emotional distress and disqualify a plaintiffs’ expert.

The plaintiffs (Chris and Susan Lamendola, Tom Hogan and Cynthia Pelosi, and Keith and Wendy Amelotte) are suing because they say vibrations caused by the school construction have damaged their homes.

Gallo said he would allow the plaintiffs to include testimony about the emotional distress over the damage, while telling the plaintiffs’ lawyer, David Maglio, that he may well end up telling the jury they must disregard such testimony. The judge asked Maglio if there would be any medical testimony and testimony about physical symptoms and Maglio said no.

But Maglio said testimony about his clients’ emotional distress was important to his case.

“They lived through this,” he argued. “It was very, very distressing for them. It’s premature to dismiss the testimony before the trial even begins.”

John Donovan, lawyer for Manafort Brothers, argued for the defense, saying it was not as if the residents had to leave their homes as a result of the construction.

“They lived in the houses, they had gatherings in their houses, they still live in their houses,” said Donovan, suggesting Maglio’s legal argument did not rise to the level of the case to which Maglio was referring, in which an oil delivery to the wrong house forced the occupants immediately out of that house and the house eventually to be demolished.

But Gallo decided to allow the testimony, with this caution to Maglio: “You’re going to make much of this and it’s likely I’m going to tell the jury to disregard.”

In another motion, Gallo said he would allow an expert hired by the plaintiffs to testify about the state of the soil on the Lamendola and Hogan properties. The defense team had hoped to have engineer David Sykora disqualified, arguing his findings did not reflect strict scientific methodology.

Gallo did refuse to allow Sykora to testify about the Amelotte property since Sykora’s geotechnical tests did not include that property. (The original lawsuit, filed in 2011, included the Lamendolas and the Hogan/Pelosis; the Amelottes joined the lawsuit seven months later.)

Maglio said he recognized the defendants did not agree with Sykora’s testimony but that the jury could make up their own minds about it.

“You may think it’s thin or the jury’s not going to believe it,” said Maglio. “The jury can disregard an expert’s testimony if they do not believe it.”

Jury selection will take place on Tuesday, with opening statements probably on Wednesday. As part of the trial, the jury will be taken to see the Sarah’s Trace houses owned by the plaintiffs. Right now, it looks like that visit will take place Thursday.

You can find an archive of all the stories written about this case on EG News here.


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