Peeler v. KVH Industries, Inc.

Filing 88

ORDER: Defendant's Motion in Limine 57 is GRANTED in part and DENIED in part as detailed herein. Plaintiff's Motion in Limine 70 is GRANTED in part and DENIED in part as detailed herein. Signed by Judge Virginia M. Hernandez Covington on 1/13/2014. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID PEELER,
Plaintiff,
v.

Case No. 8:12-cv-1584-T-33MAP

KVH INDUSTRIES, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court in consideration of
Defendant KVH Industries, Inc.’s Motion in Limine (Doc. # 57)
and Plaintiff David Peeler’s Omnibus Motion in Limine (Doc.
# 70), both filed on December 5, 2013.
ripe for the Court’s review.

Both motions are now

For the reasons that follow,

the Motions are granted in part and denied in part as detailed
herein.
I.

Background
KVH

Industries

designs

and

manufactures

satellite

communication systems for mobile users on moving platforms
such as boats, buses, and motor homes.
31-1 at 4).

(Palmer Dep. Doc. #

On January 29, 2003, Peeler entered into a

Manufacturer’s Representative Agreement with KVH, by which
KVH engaged Peeler as a technical trainer and independent

contractor.
trainer,

(Agreement Doc. # 32-2 at 2).

Peeler

was

responsible

for

As a technical

visiting

various

distributors who bought products from KVH and educating the
distributors’

employees

on

the

process

operating, and repairing KVH products.

of

installing,

(Peeler Dep. Doc. #

30-1 at 13).
The Agreement provided that KVH would pay Peeler “on all
technical

training

performed

in

the

Territory

to

RV,

Automotive, entertainment coach, OEM, mass merchant, dealers,
and not to exclude any additional pre-approved accounts, a
Commission . . . based on percentage of dealer/account sales.”
(Agreement Doc. # 32-2 at 3).

The Agreement additionally

provided that “[t]he Commission will be considered earned
when

[KVH]

completion

receives
by

the

the

end

of

Technical
each

Training

month,”

Report

and

that

upon

“[t]he

Commission will be paid to [Peeler] by the 20th of each month
for the most recently ended month.”

(Id.).

In conjunction

with these obligations, the Agreement required KVH to send to
Peeler, “[o]n or before the 15th of each month, . . . a
statement

of

account

showing

the

quantity

of

trainings

completed by Peeler . . . during the month most recently ended
and the amount of commission due . . . thereon.”

2

(Id.).

From January of 2003 to March of 2004, KVH paid Peeler
$135,827.95 in training commissions.
# 32-4 at 2).
different

(Payment Invoice Doc.

In April of 2004, Peeler and KVH agreed to a

payment

arrangement,

a

Contractor

Outline,

in

accordance with which Peeler received a consistent monthly
salary of $5,500 per month plus expenses. (Contractor Outline
Doc. # 32-5 at 2; Peeler Dep. Doc. # 30-2 at 12).
dispute

the

reason

for

the

revised

payment

The parties
arrangement.

According to KVH, the “reason for the new agreement was
[Peeler’s] displeasure with the previous agreement, which did
not

include

reimbursement

of

any

form

for

the

expenses

incurred . . . in connection with [Peeler’s] services rendered
to KVH.”

(Mar. 30, 2005 Letter Doc. # 32-9 at 2).

Peeler,

however, contends that he “was okay with the way things were,”
and that he had not expressed concerns prior to 2004 about
the way he received payment from KVH.

(Peeler Dep. Doc. #

30-2 at 12).
KVH released Peeler as an independent contractor in
February of 2005.

(Id. at 25).

Peeler testifies that,

sometime in 2005 after his termination from KVH, a KVH sales
representative named Scott Czewski provided him with certain
“final reports” containing KVH’s internal sales information,
referred to as BAAN reports.

(Id. at 4; Peeler Dep. Doc. #

3

30-1 at 8-10).

Based on the details from those reports,

Peeler became concerned that KVH had not paid him the total
amount of commissions to which he was entitled under the
Agreement.

(Peeler Dep. Doc. # 30-2 at 4).

Peeler initiated the instant breach-of-contract action
in April of 2012 in Hernando County Circuit Court, after KVH
declined to pay Peeler’s allegedly unpaid back commissions.
(Doc. # 2).

On July 17, 2012, KVH removed the action to this

Court on the basis of diversity jurisdiction.

(Doc. # 1).

On July 25, 2013, the Court entered an Order denying both
parties’ motions for summary judgment (Doc. # 48), and in
September

of

2013,

this

Court

entered

an

Amended

Case

Management and Scheduling Order which set this case for the
January 2014 trial term (Doc. # 53).
Presently before the Court are both parties’ respective
Motions in Limine (Doc. ## 57, 70), each of which is ripe for
the Court’s review.

The Court has reviewed the Motions as

well as the relevant responses and is otherwise fully advised
in the premises.
II.

Legal Standard
“A

motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,

4

remains subject to reconsideration by the court throughout
the trial.”

In re Seroquel Prods. Liab. Litig., Nos. 6:06-

md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL 260989,
at *1 (M.D. Fla. Feb. 4, 2009).

“The real purpose of a motion

in limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence
which may irretrievably [a]ffect the fairness of the trial.
A court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds.”
Id. (internal quotation omitted).
A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.

See LSQ Funding Grp. v. EDS

Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012)
(citing Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No.
07-80172-CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5,
2008)).

“Denial of a motion in limine does not necessarily

mean that all evidence contemplated by the motion will be
admitted at trial.”

In re Seroquel, 2009 WL 260989, at *1

(internal quotation marks omitted).

“Instead, denial of the

motion means the court cannot determine whether the evidence
in question should be excluded outside the trial context.”
Id.

“The court will entertain objections on individual

5

proffers as they arise at trial, even though the proffer falls
within the scope of a denied motion in limine.”

Id.

The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
disturb

this

discretion.

Court’s

judgment

absent

a

clear

abuse

of

United States v. McLean, 138 F.3d 1398, 1403

(11th Cir. 1998); see also United States v. Jernigan, 341
F.3d 1273, 1285 (11th Cir. 2003) (“Inherent in this standard
is the firm recognition that there are difficult evidentiary
rulings that turn on matters uniquely within the purview of
the

district

documentary

court,
evidence

which
and

has
is

first-hand

physically

access

to

proximate

to

testifying witnesses and the jury.”).
III. Peeler’s Motion in Limine
Peeler seeks to preclude KVH from introducing at trial
evidence relating to: (1) the salaries of KVH’s corporate
executives, including KVH’s April 24, 2004, SEC filing; (2)
Peeler’s March 31, 2004, contract with KVH “or any other prior
contracts

not

exchanged

during

discovery”;

(3)

Peeler’s

termination in 2005; (4) the defenses of laches and statute
of limitations, as well as the applicability of Rhode Island
law and the ambiguity of the term “dealer/account sales”; (5)
testimony that KVH modified the relevant Agreement between

6

January 29, 2003, and March 31, 2004; and (6) accord and
satisfaction.

The Court will address each of these issues in

turn.
A.

Corporate Executive Salaries

Peeler

argues

that

KVH

should

be

precluded

from

introducing evidence – namely, KVH’s April 24, 2004, SEC
filing – to demonstrate to the jury “that Peeler’s commissions
are equal to or in excess of what [KVH’s] highest corporate
executives were paid in 2003.”

(Doc. # 70 at 4).

Peeler

argues that this evidence must be excluded under Federal Rules
of Evidence 401 and 403 because “[t]he salaries of the top
KVH

corporate

executives

have

no

relevance

to

the

construction, interpretation, or performance of the Agreement
[between Peeler and KVH].”

(Id.).

KVH responds that the executive salaries are relevant in
light of the testimony of former KVH executive vice president
Ian Palmer, which explained “that there were loosely imposed
limits or ceilings on the amount of commissions that outside
contractors might make and that KVH balanced the amount of
those commissions with what it would cost KVH to bring that
outside contractor on board as an employee.”
2) (citing Palmer Dep. Doc. # 31-1 at 26).

(Doc. # 82 at
KVH thus argues

that, “[b]ased on these considerations, it is reasonable to

7

provide the jury with a basis of comparison – what is Peeler
claiming was owed to him, but not paid, relative to the other
people in the KVH organization.”

(Id. at 3).

The Court

agrees.
In this breach-of-contract case, the Court has already
determined the relevant contract term “dealer/account sales”
to

be

ambiguous.

(See

Doc.

#

48

at

37-41).

Thus,

interpretation of this contract term presents a question of
fact, and the trier of fact may consider extrinsic evidence
in

an

attempt

evaluating

the

to

discern

surrounding

the

intent

of

the

parties

by

circumstances.

See

Inland

Am.

Retail Mgmt., LLC v. Cinemaworld of Fla., Inc., 68 A.3d 457,
464 (R.I. 2013).

The executive salaries at issue are one

component of the factual circumstances surrounding Peeler and
KVH’s execution of the relevant Agreement.

The Court thus

finds evidence of these salaries to be relevant under Rule
401, and further finds that the probative value of this
evidence is not substantially outweighed by the concerns
enumerated in Rule 403. Peeler’s Motion in Limine with regard
to the executive salaries is thus denied.
B.

Prior or Subsequent Contracts

Although Peeler argues broadly that “evidence regarding
prior or subsequent contracts including the 2004 Contractor

8

Outline should be excluded pursuant to Fed. R. Evid. 401 and
403,”

the

only

contract

specifically

addressed

in

this

context by either party is the 2004 Contractor Outline. (Doc.
# 70 at 6-8; Doc. # 82 at 3-5).

Peeler argues that the “2004

Contractor Outline would be relevant if Peeler possessed any
knowledge in April, 2004 of the actual commissions to which
he was entitled in 2003.

However, Peeler did not possess

knowledge of actual earnings until some point in 2005.” (Doc.
# 70 at 7).
Outline

Thus, Peeler contends that the 2004 Contractor

does

not

make

his

interpretation

of

the

Manufacturer’s Representative Agreement more or less probable
than it would be without the evidence because, “during the
time of the Agreement and for over a year afterwards, Peeler
was operating under the assumption that the Agreement was
properly paid.”

(Id.).

KVH argues, however, that “the terms of any prior and
post 2003 contractual arrangements between the parties are
relevant to the state of mind of both KVH and Peeler when
they negotiated the terms [of] the January 29, 2003 Agreement
. . . .”

(Doc. # 82 at 3-4).

In particular, “KVH expects

the testimony to establish that Peeler was consistently paid
per the terms of his Agreement, but was unhappy with the
sporadic and uneven nature of his commission payments.

9

As a

result, Peeler and KVH engaged in arms-length negotiations
regarding the terms of [the 2004 Contractor Outline] . . . .”
(Id. at 4).
As KVH aptly states: “Ultimately, it should be up to the
jury to decide whether or not the conduct or actions of the
parties during the entire course of their relationship have
bearing on the terms and interpretation of the Agreement at
issue . . . .”

(Id.).

The Court finds evidence of Peeler’s

other contracts to be a proper consideration for the jury in
determining the outcome of this action, as it sheds light on
the course of performance between the parties.

Accordingly,

as Peeler objects to this evidence solely on the basis of
relevance, the Court denies Peeler’s Motion in Limine as to
evidence of prior or subsequent contracts.
C.

Peeler’s Termination

Peeler next seeks to exclude evidence relating to the
2005 termination of Peeler’s independent contract with KVH,
arguing that “any such evidence . . . fails to meet the
standard for relevance under Fed. R. Evid. 401.”
at 9).

(Doc. # 70

Peeler also argues that this evidence “creates a

danger for unfair prejudice and confusion of the jury.”
at 10).
KVH responds by explaining:

10

(Id.

It is undisputed that Peeler first questioned his
commission structure with his manager, James
Labelle, in June 2003, but did not claim that his
commissions had been improperly calculated until
2005, following the termination of his contract.
The jury should be allowed to understand both the
date of termination and circumstances surrounding
that termination to consider fully Peeler’s motives
and decision to pursue his claims at that time.
(Doc. # 82 at 5).
Court

with

any

However, KVH has failed to provide the
authority

for

the

proposition

that

a

plaintiff’s “motive” for bringing suit is relevant in a
breach-of-contract case.
Nonetheless,

both

parties

express

an

intention

to

introduce evidence in this case regarding the justifiability
of Peeler’s delay in bringing this action.

If Peeler indeed

opens the door to evidence demonstrating the reasonableness
of his delay, the Court finds evidence of Peeler’s termination
appropriately admissible to establish a contextual time frame
on this issue.

As for Peeler’s argument that this evidence

creates a danger of unfair prejudice, the Court notes that
“[r]elevant evidence is inherently prejudicial; but it is
only unfair prejudice, substantially outweighing probative
value, which permits exclusion of relevant matter under Rule
403.”

United States v. Mills, 704 F.2d 1553, 1560 (11th Cir.

1983) (quoting United States v. McRae, 593 F.2d 700, 707 (5th
Cir. 1979)).

The Court finds that evidence of Peeler’s

11

termination will not so substantially outweigh the probative
value of this evidence.
However, the Court notes Peeler’s concern regarding two
particular emails relating to Peeler’s termination, which the
parties refer to as the “January 17, 2005 email (termination)”
and

the

“January

company).”

31,

2005

email

(Doc. # 70 at 8).

(Peeler

no

longer

with

Peeler argues that “neither of

these emails are written by Peeler or any designated witness
in

this

case

and

constitute

inadmissible,

out

of

court

statements offered to prove the truth of the matter asserted.”
(Id. at 9).

KVH fails to respond to this hearsay argument.

Without an opportunity to review the relevant documents,
and without further briefing as to whether KVH will indeed
offer these emails for the truth of the matters they assert,
the Court is unable to determine at this juncture whether the
emails are appropriately excludable as hearsay.
have

an

opportunity

to

raise

a

proper

Peeler will

objection

to

the

admissibility of these documents if KVH seeks to introduce
them at trial.

Accordingly, the Court denies Peeler’s Motion

with regard to evidence of Peeler’s termination.
D.

Legal Arguments Addressed in Summary Judgment Order

Peeler states that KVH “may attempt to argue at trial
and present evidence to the jury regarding the following: (a)

12

Plaintiff’s claim is barred by statute of limitations; (b)
Rhode Island law does not apply; (c) Plaintiff’s claim is
barred by the doctrine of laches; and (d) the Manufacturer’s
Representative Agreement is not ambiguous.”
10).

(Doc. # 70 at

Peeler argues that, because the Court “specifically

addressed

the

parties’

foregoing

summary

arguments”

judgment

motions,

in

its

KVH

Order

“should

on

the

not

be

permitted to present evidence that is contrary to the Court’s
Order.”

(Id. at 10, 12).

In response, KVH neglects to address the issue of statute
of limitations, application of Rhode Island law, or the
determination
ambiguous.

that

the

relevant

contract

language

is

The Court thus grants Peeler’s Motion with regard

to these issues.

KVH’s response instead focuses entirely on

the argument that “testimony and evidence regarding KVH’s
defense[ ] of laches should be considered by the jury,” and
that “Peeler’s argument that this Court’s decision precludes
KVH from proving the affirmative defense at trial is wrong.”
(Doc. # 82 at 5).
However,

KVH

offers

no

support

for

its

apparent

contention that the determination of whether laches should
bar Peeler’s claim in this case presents a proper question
for the jury.

To the contrary, the Supreme Court of Rhode

13

Island has explained that, “[b]ecause it is equitable in
nature, the applicability of the defense of laches in a given
case generally rests within the sound discretion of the trial
justice.”

Hazard v. E. Hills, Inc., 45 A.3d 1262, 1270 (R.I.

2012). Furthermore, with regard to Peeler’s delay in bringing
this action, KVH does not contend that any disputed facts
exist

which

would

require

the

introduction

of

certain

evidence at trial before the Court could properly determine
whether Peeler’s delay in bringing this action was negligent
or unreasonable.
KVH argues that “[t]he Court’s denial of KVH’s summary
judgment does not become the ‘law of the case,’ or provide
grounds to bar at trial the evidence submitted to the Court
during summary judgment. To the contrary, a denial of summary
judgment merely defers the matter until final hearing, in
this case – trial.”

(Doc. # 82 at 5).

To that end, KVH

argues that “[a] court may reconsider its ruling on a motion
for summary judgment and may correct an erroneous ruling at
any time before final judgment.”
marks omitted).

(Id.) (internal quotation

However, KVH has not filed a motion for

reconsideration with regard to this Court’s Order on the
parties’ summary judgment motions, nor has KVH identified
grounds for the Court to determine that its previous Order

14

constitutes an “erroneous ruling.”
disagrees

with

the

Court’s

Instead, KVH apparently

finding

that

laches

is

inapplicable in the present case, and seeks to re-submit its
argument to the jury in hopes of a different determination at
trial. As mentioned above, however, KVH provides no authority
to support the proposition that this question of law could be
properly “reconsidered” by a jury.

Accordingly, the Court

grants Peeler’s Motion in Limine to the extent that KVH may
not instruct the jury or otherwise comment on the potential
application of the doctrine of laches in this case.
Nonetheless, KVH is permitted to refer to the factual
circumstances of Peeler’s delay in bringing this action.
Otherwise, “KVH would be precluded from arguing that[,] given
the passage of time[,] ‘many of the preferred sources of
evidence that might once have assisted in ascertaining the
truth of the matters in controversy are now unavailable.’”
(Doc. # 82 at 6) (quoting Doc. # 48 at 35).

This is a

legitimate

that

appropriately

and
be

relevant

factual

presented

at

concern

trial.

It

would

may
be

inappropriate, by contrast, for KVH to inaccurately inform
the jury that it has the discretion to find, as a matter of
law, that Peeler’s claims are barred by the doctrine of laches
due to Peeler’s allegedly negligent delay in bringing this

15

action.

Such a determination rests within the discretion of

the trial court, and not with the jury.

KVH has offered no

authority to controvert this principle.

Thus, while KVH may

refer to the factual circumstances underlying Peeler’s delay
in bringing his claim, KVH may not instruct the jury or
otherwise

comment

on

doctrine of laches.

the

potential

application

of

the

Peeler’s Motion is granted to this

extent.
E.

Contract Modification

Peeler argues that no evidence regarding modification of
the

Manufacturer’s

permitted,

“as

KVH’s

Representative
30(b)(6)

Agreement

designee

provided

testimony that the contract was not modified.”
12).

should

be

binding

(Doc. # 70 at

In particular, Peeler cites to the following excerpts

from the deposition of Ian Palmer:
Q:

Do you recall, and by you I mean the
corporation recall, one way or the other[,]
whether there was any amendment to Exhibit 1
between January 29, 2003 and March 31, 2004?

A:

I do not recall.

Q:

Do you know of any amendment to Exhibit 1 to
this deposition between January 29, 2003 and
March 31, 2004?

A:

I do not.

Q:

As far as you know, Exhibit 1 to this
deposition is the only agreement in place

16

between Mr. Peeler and KVH between January 29,
2003 and March 31, 2004?
A:

Yes.
*

*

*

Q:

The second thing, you don’t have any – KVH has
no knowledge, no document and no knowledge of
any change or modification to the contract
that’s Exhibit 1 to this –

A:

We don’t have any records that reflect that,
correct.

(Doc. # 70 at 13).

Peeler argues that “KVH may not now assert

contract modification as a theory of this case in light of
this

binding

testimony

that

no

modification

occurred.”

(Id.).
KVH classifies Peeler’s chosen deposition excerpts as
“two deposition sound bites that were taken out of context
and that do not consider the entire content of Mr. Palmer’s
testimony.”

(Doc. # 82 at 7).

“[c]ontrary

to

modifications

to

Peeler’s
Peeler’s

KVH further responds that,

assertion

that

Agreement,

the

there

were

no

record

evidence

establishes that there certainly may have been modifications
to the Agreement between the parties.”
original).

(Id.) (emphasis in

“Specifically, although Palmer did testify that

he was not aware of any specific amendment made to Peeler’s
Agreement, Palmer also testified that it was ‘normal and

17

customary’ to ‘from time to time’ make amendments to the
outside
(Id.).

sales

and

training

representatives’

agreements.”

Palmer additionally testified as follows:

Q:

Why were those paid at 2.5 percent?

A:

More than likely, and other sales reps are
going to reflect this history as well, the
commission
percentage
changed
after
the
contract
was
originally
executed
which
occurred from time to time and on a fairly
regular basis as we worked with the sales reps
to make sure that their commissions were in
alignment, and this is an important point,
that they were in alignment with what it would
cost to hire that person as a direct employee.

(Palmer Dep. Doc. # 31-1 at 26).
Thus, the Court disagrees with Peeler’s characterization
of Palmer’s deposition testimony as “binding testimony that
no modification occurred.”

(Doc. # 70 at 13).

Furthermore,

the Court finds that this testimony was not so misleading as
to violate “the rule and philosophy against trial by ambush,”
as Peeler contends.

(Id. at 14).

Perfection is not required

of a Rule 30(b)(6) corporate designee-deponent.

See QBE Ins.

Corp. v. Jorda Enters., 277 F.R.D. 676, 690 (S.D. Fla. Jan.
30, 2012) (“Absolute perfection is not required of a 30(b)(6)
witness. The mere fact that a designee could not answer every
question on a certain topic does not necessarily mean that
the corporation failed to comply with its obligation.”).

18

However, the Court notes that KVH is bound to the answers
given by Palmer during his Rule 30(b)(6) deposition.

As

explained by QBE Insurance Corporation,
When a corporation’s designee legitimately lacks
the ability to answer relevant questions on listed
topics and the corporation cannot better prepare
that witness or obtain an adequate substitute, then
the “we-don’t-know” response can be binding on the
corporation and prohibit it from offering evidence
at trial on those points. Phrased differently, the
lack of knowledge answer is itself an answer which
will bind the corporation at trial.
277 F.R.D. at 690.

In the instance that KVH attempts to

provide testimony or evidence at trial which differs from the
answers provided during Palmer’s deposition, Peeler should
bring

the

matter

accordingly

to

declines

the
to

Court’s

attention.

completely

exclude

The
any

Court

evidence

regarding modification of Peeler’s Agreement, but remains
cognizant that KVH will be bound at trial by the answers
provided by Palmer during his 30(b)(6) deposition.
F.

Accord and Satisfaction

Peeler next states that “KVH may seek to comment to the
jury or otherwise present information to the jury in relation
to the affirmative defense of accord and satisfaction,” and
argues that “KVH should be estopped from arguing accord and
satisfaction, as KVH has continuously refused to acknowledge
that there was any breach of the Agreement.

19

Accordingly, [a]

. . . condition precedent for accord and satisfaction is
lacking.”

(Doc. # 70 at 15-16).

Additionally, Peeler argues

that “[t]he main issue with this defense . . . is that the
dispute between the parties did not arise until Peeler was
provided sales information from KVH’s [Enterprise Resource
Planning system] in 2005,” and “KVH’s only communications to
Peeler subsequent to 2005 were written denials of any breach
of contract.

None of the communications offered satisfaction

or even acknowledged the validity of Peeler’s claim.”

(Id.

at 16).
KVH counters that “sufficient evidence exists in the
record

to

establish

KVH’s

defense

of

accord

and

satisfaction.” (Doc. # 82 at 8). Specifically, KVH explains:
Peeler testified that in June 2003, he inquired of
his manager, James Labelle, as to the manner in
which his commissions were paid to him. Later in
2003, Peeler complained that he was having “a hard
time managing the variableness of commissions and
expenses.” Then, in March 2004, KVH met with Peeler
and agreed to move Peeler from a commission based
arrangement to one of a “fixed fee” arrangement.
After those negotiations, Peeler accepted a
“contractor outline” . . . and the benefits that
alternative arrangement provided to him.
The
testimony will establish that the parties intended
to resolve Peeler’s concerns regarding his existing
employment relationship by entering this new
agreement; and that thereafter, Peeler and KVH
performed in accordance with this new agreement.
(Id. at 8) (internal citations omitted).

20

The

Court

finds

Peeler’s

juncture of the proceedings.

argument

improper

at

this

As explained above, a motion in

limine is not the proper vehicle to resolve substantive
issues, to test issues of law, or to address or narrow the
issues to be tried.

Notably, Peeler does not cite a single

Federal Rule of Evidence to support his argument that evidence
relating to the defense of accord and satisfaction should be
excluded as inadmissible at trial.

It is thus apparent to

the Court that the relief Peeler seeks exceeds the proper
scope of a motion in limine.

The Court is not inclined to

entertain a motion in limine seeking resolution of arguments
suitably raised in a summary judgment motion. Peeler’s Motion
is accordingly denied with regard to the defense of accord
and satisfaction.
IV.

KVH’s Motion in Limine
KVH seeks to exclude the following evidence at trial:

(1) Testimony from KVH Sales Representatives, as well as
documentation

of,

or

references

to,

their

commission

structure or compensation; (2) testimony of attorney Stephen
Morrissey; (3) testimony of John Spaulding, the senior vice
president of marketing for Stag-Parkway; (4) introduction of
an unsigned April 1, 2004 Customer Agreement between KVH
Industries,

Inc.

and

River

Park,

21

Inc.;

(5)

any

and

all

references to any adverse inference against KVH; (6) any
references to Peeler’s claim for statutory interest; and (7)
any reference to Peeler’s claim for attorney fees.
57 at 1).

(Doc. #

The Court will proceed to address each of these

issues.
A.

Sales Representative Testimony and Documentation
1.

Compensation

KVH argues that the Court should preclude testimony
relating to the compensation arrangements of certain KVH
sales representatives.

(Doc. # 57 at 3).

“KVH expects that

Peeler will seek to elicit testimony from these individuals
to lend credence to Peeler’s commission payment theory.

KVH

further expects that Peeler will seek to elicit testimony
from these witnesses to interpret the terms of his agreement.”
(Id.) (emphasis in original).

KVH argues, however, that

“Peeler was a trainer, not a sales representative, for KVH.
. . . Accordingly, the manner in which sales representatives,
who

held

different

positions

and

had

different

responsibilities, were paid is wholly irrelevant to Peeler’s
compensation.”

(Id. at 4) (emphasis in original).

The Court finds KVH’s Motion particularly unconvincing
in light of KVH’s own argument in opposition to Peeler’s
Motion in Limine to exclude evidence of the salaries of KVH

22

corporate executives, discussed above.

In that context, KVH

argues that “it is reasonable to provide the jury with a basis
of comparison – what is Peeler claiming was owed to him, but
not

paid,

relative

to

the

other

people

in

the

KVH

organization. . . . [I]nformation concerning KVH executive
salaries during the time period of the [A]greement would only
assist in the interpretation of the Agreement between the
parties.”

(Doc. # 82 at 3).

The Court agrees with this

principle; thus, for precisely the reason identified by KVH
in the context of executive salaries, the Court finds that
the

salaries

details

of

regarding

KVH’s

sales

the

amount

representatives
as

well

as

the

–

including
commission

structure – are relevant and admissible under Rules 401 and
403.
Furthermore, Peeler argues that, “[f]or KVH to now take
the position that the sales representative commissions have
no bearing on Peeler’s commissions is disingenuous, at best.
It is an undeniable, mathematical fact that KVH used the sales
attributed to the sales representatives in order to calculate
Peeler’s commissions.” (Id.). Thus, the Court finds evidence
relating to the compensation of KVH’s sales representatives
to be at least as relevant as evidence relating to the
compensation of KVH’s executives.

23

Whether the commissions

paid

to

these

relationship

to

sales

representatives

KVH’s

method

of

had

any

calculating

further
Peeler’s

commissions is a question of fact for the jury to decide.
Accordingly, the Court denies KVH’s Motion in Limine with
regard to the sales representatives’ testimony relating to
their own compensation arrangements with KVH.
2.

Representatives’ Speculation as to Peeler’s
Agreement

Importantly,

the

Court’s

finding

that

KVH’s

sales

representatives may testify regarding their own compensation
arrangements with KVH does not condone testimony by those
sales

representatives

regarding

Peeler’s

Agreement.

KVH

expresses this concern in its Motion in Limine, requesting
that

the

Court

“exclude

any

testimony

from

sales

representatives concerning their ‘belief’ as to how Peeler
should have been paid or their interpretation of the terms in
Peeler’s Agreement.”

(Doc. # 57 at 5).

KVH argues that,

“absent evidence that any of these individuals participated
in any meetings or discussions concerning Peeler’s commission
or

compensation

structure,

these

‘witnesses’

lack

the

requisite personal knowledge to testify competently about the
matter.”

(Id.).

24

A non-expert witness “may testify to a matter only if
evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.”
Evid. 602.

Fed. R.

Accordingly, a sales representative may testify

as to how Peeler was paid only if evidence is first introduced
sufficient to support a finding that the particular sales
representative has personal knowledge of Peeler’s payment
arrangement.

Peeler’s vague assertion that “Mr. Yontosh and

Mr. Czewski are both aware as to how they themselves, and all
of the KVH representatives were paid in 2003 through April,
2004,”

is

insufficient

to

convince

the

Court

that

such

testimony on behalf of these sales representatives would be
appropriate.

Accordingly, the Court grants KVH’s Motion as

to the sales representatives’ speculation regarding Peeler’s
Agreement; mere speculation as to the meaning of the terms in
Peeler’s

Agreement

permitted.

by

However,

these
the

lay

Court

witnesses
will

will

allow

not

be

Peeler

an

opportunity to satisfy the requirements of Rule 602 at trial.
Peeler

additionally

argues

that

“Scott

Czewski,

Dan

Adams, and George Yontosh must be permitted to testify at
trial because they possess personal knowledge of Peeler’s
performance of technical training on behalf of KVH.”
# 85 at 8).

(Doc.

The Court agrees and declines to completely

25

exclude the testimony of these witnesses, as KVH requests.
However, the Court reiterates that any testimony regarding
technical training, like any testimony of a lay witness, must
be grounded in the witness’s personal knowledge of the matter.
The

Court

thus

denies

KVH’s

request

to

preclude

these

witnesses from testifying at trial.
B.

Testimony of Stephen Morrissey

KVH next requests that the Court exclude the testimony
of attorney Stephen Morrissey, “an attorney located in Rhode
Island, [who] represented Peeler and two former KVH Sales
Representatives . . . in their since[-]abandoned claims for
unpaid commissions against KVH beginning in 2005.”

(Doc. #

57 at 5).

KVH “anticipates that Peeler intends to call

Morrissey

to

communications

testify
with

KVH

regarding:
about

(1)

Peeler’s

or

Morrissey’s
other

sales

representatives’ claims and efforts to obtain documentation
from

KVH;

(2)

Morrissey’s

communications

with

Peeler

concerning his claims; or (3) the reasons why Morrissey did
not have the capability to represent Peeler or follow through
on his claims after 2006.”

(Doc. # 57 at 6).

KVH contends

that such testimony should be precluded, as it is “irrelevant,
cumulative, and unfairly prejudicial.”

26

(Id.).

Peeler responds that Morrissey “will be able to explain
KVH’s role in making it impossible for Peeler to bring a claim
in 2005.

This is relevant as to whether Peeler is entitled

to statutory prejudgment interest under Rhode Island law.”
(Doc.

#

85

at

9).

Furthermore,

Peeler

contends

that

Morrissey’s testimony is relevant to KVH’s “bad faith in
defending

this

claim,”

and

that

this

testimony

is

not

cumulative “because KVH’s litigation conduct is something of
which only Mr. Morrissey and Peeler’s other attorneys possess
personal knowledge.”

(Id.).

The Court acknowledges KVH’s argument that “Peeler and
Ian Palmer . . . have already authenticated the correspondence
between

Morrissey

and

KVH.

Those

letters

are

the

best

evidence of what was discussed between the parties at that
time.”

(Doc. # 57 at 6).

Indeed, to the extent Peeler seeks

to elicit from Morrissey’s testimony information regarding
the

content

of

this

written

correspondence,

the

Court

excludes such testimony in accordance with the best evidence
rule.

See Fed. R. Evid. 1002; Allstate Ins. Co. v. Swann, 27

F.3d 1539, 1543 (11th Cir. 1994).
Additionally, the Court recognizes KVH’s argument that,
“[t]o the extent Morrissey will be called to testify about
his communications with Peeler, any such testimony must be

27

excluded,” as such discussions are covered by the attorneyclient privilege, “and any attempt at the eleventh hour to
waive

privilege,

which

has

not

occurred

necessarily unfair and prejudicial.”

previously,

is

(Doc. # 57 at 7).

Peeler does not respond to KVH’s argument regarding
attorney-client privilege; instead, Peeler argues only that
Morrissey

should

be

allowed

to

testify

regarding:

(1)

Peeler’s delay in bringing his breach-of-contract claim and
(2) KVH’s bad faith in defending this claim.
9).

(Doc. # 85 at

Thus, as Peeler does not indicate that he intends to

introduce

testimony

as

to

Morrissey’s

privileged

communications with Peeler, the Court declines to analyze at
this juncture the hypothetical prejudice that such testimony
may cause to KVH.

Furthermore, the Court finds Morrissey’s

potential testimony regarding KVH’s alleged bad faith in
defending this action to be admissible as a corollary to both
parties’ expressed intentions to open the door to discussion
regarding Peeler’s delay in bringing his claim.

Thus, with

the exception of Morrissey’s testimony regarding the content
of the written correspondence mentioned above, KVH’s Motion
is denied as to the testimony of attorney Stephen Morrissey.
C.

Testimony of John Spaulding

28

KVH

next

Spaulding,

seeks

Senior

to

Vice

exclude

the

President

of

Parkway, Inc., a “major KVH client.”

testimony
Marketing

of

John

for

Stag

(Doc. # 57 at 8).

KVH

states that Peeler has identified Spaulding as a record
custodian

from

Stag

Parkway,

and

that

KVH

“expects

Mr.

Spaulding will be asked to testify about whether, during 2003
and 2004, Stag Parkway provided KVH reports detailing its
sales of KVH product[s] to ‘dealers downstream.’”

(Id.).

KVH argues, however, that such testimony must be excluded
because Spaulding “necessarily has no personal knowledge of
what Stag Parkway’s practices were during that period, since
he did not become employed by Stag Parkway until 2005, after
the January 29, 2003 to March 2004 period that is at issue in
this litigation.”

(Id.).

Peeler, however, argues that Spaulding “has declared
that

KVH

and

Stag

Parkway

have

maintained

dealings since his employment in 2005.

arms[-]length

Further, he will

testify that the reporting technology ultimately used to
provide reporting back to KVH was not in existence during the
period of the Agreement.”
asserts

that

this

(Doc. # 85 at 10).

testimony

regarding

Stag

Peeler thus
Parkway’s

“downstream sales” reporting practices since 2005 is relevant

29

because

it

makes

Peeler’s

interpretation

of

the

term

“dealer/account sales” more likely.
The

Court

will

permit

Spaulding’s

testimony

to

the

extent it complies with all applicable Federal Rules of
Evidence.

KVH’s suspicion that a witness may be asked to

testify regarding matters of which the witness lacks personal
knowledge does not warrant total exclusion of that witness’s
testimony.

If Peeler indeed seeks to elicit such testimony

from Spaulding in violation of Federal Rule of Evidence 602,
KVH may properly object at trial.
D.

Unsigned River Park Contract

KVH next seeks to exclude as a potential trial exhibit
“an

unsigned

purported

‘Customer

Agreement

[between]

KVH

Industries, Inc. and River Park, Inc., [e]ffective April 01,
2004.’”

(Doc. # 57 at 8).

KVH argues that this document

should be excluded “because it lacks foundation and cannot be
authenticated.”

(Id. at 9).

KVH acknowledges that its

corporate representative, Ian Palmer, “testified that KVH had
a contract in place with River Park during the relevant
timeframe,” but that Palmer “testified that he was unsure
whether the [relevant document] was a final version of the
[a]greement or whether the training provisions it contains
were in effect during the time of Mr. Peeler’s engagement as

30

KVH’s trainer.”

(Id.).

Finally, KVH additionally argues (1)

that the document is “irrelevant as it is outside the relevant
time period,” and (2) that the document “also constitutes
inadmissible hearsay since it presumably would be introduced
to establish the truth of the matter asserted: that KVH (i.e.,
Peeler) trained River Park.”

(Id.).

In response, Peeler does not directly address the issue
of authenticity, but argues that this alleged Contract does
not constitute hearsay because it falls within the scope of
Federal Rule of Evidence 801(d), which states in relevant
part:
(d)

Statements That Are Not Hearsay. A statement
that meets the following conditions is not
hearsay: . . .
(2)

An Opposing Party’s Statement.
The
statement is offered against an opposing
party and:
(A)

was made by the
individual
or
capacity; . . .

(C)

was made by a person whom the party
authorized to make a statement on
the subject; [or]

(D)

was made by the party’s agent or
employee on a matter within the
scope of that relationship and while
it existed; . . . .

Fed. R. Evid. 801(d)(2).

31

party in an
representative

Peeler

cites

to

the

deposition

of

Ian

Palmer

to

demonstrate that this document “was, in fact, drafted by Ian
Palmer.”

(Doc. # 85 at 13).

Specifically, upon being

presented with the document during his deposition, Palmer
testified as follows:
Q:

. . . Mr. Palmer, do you recognize the document
that we have in front of you?

A:

Yes, I did.

Q:

And what is it?

A:

It looks like the agreement that we put in
place between KVH Industries and River Park
starting back in 1999, but amended and
effective date of (sic) April 1st, 2004.
*

*

*

Q:

. . . [W]hile you were the vice president of
sales from 1999 through 2003 or 2004, there
was a contract in place, was there not,
between KVH and River Park?

A:

There was, yes.

Q:

It’s referenced right here?

A:

Yes.

Q:

And during that time period from 1999 through
2004 while you were vice president of sales,
did KVH have a contractual obligation like it
did as of March 31, 2004, to provide technical
training and support to River Park?
*

A:

*

*

I don’t recollect if that provision was in
that original contract and I’ll tell you that

32

I’m the one who wrote the contract and so I
knew it pretty well, but honestly I cannot
remember if there was a technical training
provision in that original contract. That was
a long – 1999, we’re getting – now we’re at 14
years ago that I wrote that contract.
(Palmer Dep. Doc. # 31-1 at 17-18).
There is more than one acceptable form of document
authentication.

See United States v. Caldwell, 776 F.2d 989,

1002 (11th Cir. 1985) (“While [testimony of a witness present
at the signing of a document] is certainly one manner of
authentication, . . . that method of authentication is simply
not available in many cases.

Rather, a document also may be

authenticated by circumstantial evidence.”).

In this case,

the Court finds Palmer’s statement that the document “looks
like the agreement that we put in place between KVH Industries
and

River

Park

starting

back

in

1999,

but

amended

and

effective date of (sic) April 1st, 2004,” to be sufficient
evidence for authentication in this instance, “in the absence
of any evidence of fabrication.”

Caldwell, 776 F.2d at 1003.

The Court is particularly convinced by Palmer’s recognition
of the document in light of his statement that he was “the
one who wrote the contract and so I knew it pretty well.”
(Palmer Dep. Doc. # 31-1 at 18).

33

Accordingly, the Court determines that this document is
relevant,

even

though

it

is

outside

the

time

period

of

Peeler’s Agreement, as it nonetheless bears on the parties’
respective positions regarding the amount of trainings Peeler
performed in this case.

The Court further finds that the

document is not excluded as hearsay because it meets the
requirements of Rule 801(d).

The Court finds that “[t]his

result comports with the function of Rule 901, which makes
the

Court’s

determination

of

authenticity

merely

a

preliminary evaluation and leaves the ultimate decision on
genuineness to the jury.”

Id.

KVH’s Motion is thus denied

as to the unsigned River Park Contract.
E.

Adverse Inference against KVH

In the Court’s July 25, 2013, Order on the parties’ cross
motions for summary judgment, the Court found that KVH’s
failure to retain certain documents related to this case did
not warrant an adverse inference in Peeler’s favor.

(Doc. #

48

adverse

at

18).

In

particular,

the

Court

found

an

inference would be inappropriate in the absence of evidence
that KVH had acted in bad faith.

Although not dispositive of

the issue, the Court also considered Peeler’s own failure to
keep related documentation in this matter.

34

(Id.).

KVH now moves “to preclude [Peeler] from essentially relitigating at trial [his] request for an adverse inference
against KVH based on the lack of certain documentation.”
(Doc. # 57 at 11).

KVH argues that Peeler “should be

precluded from affirmatively seeking an adverse inference at
trial, and also from making any statements or references
suggesting to the jury that they should infer bad faith or
reach any conclusions based on the absence of documentation
from KVH’s (sic) or its document retention efforts.”

(Id.).

Peeler responds that he “has given no indication that he
seeks an instruction regarding an adverse inference in this
matter,” and thus that “KVH’s motion in limine to exclude
references to adverse inferences should be stricken as moot.”
(Doc. # 85 at 14).

However, Peeler maintains that he “should

not be denied the right to[ ] refer to KVH’s lack of any
evidence

to

support

its

defenses,

namely

internal reports from its customers.”

KVH’s

(Id.). 1

lack

of

The Court

agrees.

1

Peeler additionally argues that “no evidence regarding any
adverse inference against Peeler should be allowed to be
presented by KVH, as there is no evidence that Peeler
intentionally destroyed documents in order to promote his
claim.”
(Doc. # 85 at 14).
However, because KVH has not
indicated its intention to move for such an inference, and
because Peeler has inappropriately raised this request in his

35

The Court’s determination in a previous Order that no
adverse inference is warranted against a party does not
preclude any argument at trial related to the facts upon which
the requested adverse inference might have been premised.

As

neither party asserts a desire to seek an adverse inference
at this stage of the litigation, the Court denies as moot
KVH’s Motion with regard to this issue.
F.

Peeler’s Claim for Statutory Interest

Peeler
prejudgment

argues

that

interest

he

pursuant

is

entitled

to

Section

to

statutory

9-21-10,

Rhode

Island General Laws, on any award of damages he may recover
at trial.

KVH moves the Court to exclude any mention of such

an award in front of the jury.

(Doc. # 57 at 11).

In

response, Peeler states that he “does not intend to try the
issue of an award of statutory prejudgment interest in front
of the jury and will amend his demonstratives to remove
prejudgment interest from the total damages calculations.”
(Doc. # 85 at 14).

Accordingly, because the parties agree

that mentioning the issue of prejudgment interest during the
trial would be inappropriate, the Court denies as moot KVH’s
Motion

in

Limine

as

to

Peeler’s

Claim

for

statutory

response rather than a separate motion, the Court declines to
address this issue herein.

36

prejudgment

interest.

However,

Peeler

is

nonetheless

permitted to demonstrate the reasonableness of his delay in
filing this lawsuit.
G.

Peeler’s Claim for Attorney Fees

KVH’s Motion in Limine seeks not only to preclude Peeler
from introducing evidence relating to attorney fees at trial,
but also seeks an order “strik[ing] the demand for fees from
Peeler’s Complaint” because no contractual or statutory basis
for an award of fees exists.

(Doc. # 57 at 12-13).

As the

present Motion in Limine is not the proper vehicle by which
this substantive motion to strike may be asserted, the Court
denies KVH’s request without prejudice.

The parties will

have an opportunity to fully brief the Court on the issue of
attorney fees after the conclusion of trial.
In response to KVH’s motion to preclude Peeler from
introducing evidence relating to attorney fees at trial,
Peeler argues that he “must be permitted to present evidence
of KVH’s bad faith in defense of this claim to support an
award of attorney’s fees,” although Peeler acknowledges that
“this is not an issue to be considered by the jury.”

(Doc.

# 85 at 16).
Because the Court has already determined that KVH’s
alleged bad faith in defending this action would be admissible

37

as a corollary to both parties’ expressed intentions to open
the door to discussion regarding Peeler’s delay in bringing
his claim, Peeler may introduce evidence to establish a
factual basis for this alleged bad faith.

However, as the

issue of attorney fees would be an improper consideration for
the jury, the Court grants KVH’s Motion to the extent it seeks
to preclude any mention of attorney fees during the trial.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant KVH Industries, Inc.’s Motion in Limine (Doc.
# 57) is GRANTED in part and DENIED in part as detailed
herein.

(2)

Plaintiff David Peeler’s Omnibus Motion in Limine (Doc.
# 70) is GRANTED in part and DENIED in part as detailed
herein.
DONE and ORDERED in Chambers in Tampa, Florida, this

13th day of January, 2014.

Copies: All Counsel of Record

38