Taylor et al v. University of the Cumberlands
MEMORANDUM OPINION & ORDER: First Motion [R. 107 at 2] is DENIED WITHOUT PREJUDICE. The communications between Dr. Taylor's counsel and Ms. Sue Wake are potentially relevant to bias and are an appropriate area for questioning by the Univ ersity. Second Motion [R. 107 at 2-3] is DENIED WITHOUT PREJUDICE. Third Motion [R. 107 at 4] is DENIED AS MOOT. Fourth Motion [R. 107 at 4-5] is DENIED WITHOUT PREJUDICE. First and Second Motion [R. 111 at 3-6] is DENIED WITHOUT PREJUDICE . Third Motion [R. 111 at 7-9] is DENIED WITHOUT PREJUDICE. Fourth Motion [R. 111 at 9] is DENIED AS MOOT. Fifth Motion [R. 111 at 9-10] is DENIED WITHOUT PREJUDICE. Sixth Motion [R. 111 at 11-12] is DENIED WITHOUT PREJUDICE. Seventh Motion [R. 111 at 12-15] is DENIED WITH PREJUDICE. First Motion [R. 106 at 3] is DENIED AS MOOT. Second and Third Motions [R. 106 at 3-4] are DENIED. First Motion [R. 108 at 1] is DENIED AS MOOT. Second Motion [R. 108 at 4-5] is GRANTE D. The Court OVERRULES the Universitys objections [R. 133 ] to Dr. Huff's testimony. Fourth Motion is GRANTED. Rulings on the University's Objections to the Taylors' Deposition Excerpts: First Objection [R. 133 ] is OVERRULED. See Section II.D. Second Objection [R. 133 ] is SUSTAINED. See Section II.D. Third Objection [R. 133 ] is SUSTAINED. Signed by Judge Gregory F. VanTatenhove on 01/09/2019.(KJA)cc: COR Modified to create link on 1/10/2019 (KJA).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
DR. JAMES TAYLOR and MRS. DINAH
UNIVERSITY OF THE
Civil No: 6:16-cv-109-GFVT
The Taylors filed motions in limine and objections to the University’s witness and exhibit
list. [R. 107; R.106.] The University did the same. [R. 111; R. 108.] At the Final Pretrial
Conference the Court resolved or reserved for later determination each of these motions. The
Court’s ruling on each of these motions is memorialized below.
Rulings on the Taylors’ Motions in Limine are as follows:
First Motion [R. 107 at 2] is DENIED WITHOUT PREJUDICE. The communications
between Dr. Taylor’s counsel and Ms. Sue Wake are potentially relevant to bias and are an
appropriate area for questioning by the University. Sperberg v. Goodyear Tire & Rubber Co.,
519 F.2d 708, 711 (6th Cir. 1975). However, the University is advised that it is currently
precluded from presenting the email communications between the legal assistant and Ms. Wake.
The probative value of those emails is substantially outweighed by unfair prejudice. Fed. R.
Evid. 403. If the Taylors open the door, however, these emails may become admissible at trial.
Second Motion [R. 107 at 2-3] is DENIED WITHOUT PREJUDICE. The factual
circumstance surrounding the notarization of the Disputed Agreement is an appropriate avenue
for questioning. Questions concerning the legality of Dr. Taylor signing for his spouse or the
legality of the process generally will not be permitted. Fed. R. Evid. 403. Whether the
document was properly notarized is irrelevant to whether the Disputed Agreement was approved
by the Board of Trustees. A lengthy inquiry into notarization would be wasteful and of only
limited probative value. The specific boundaries of the questioning will be reserved for trial.
Third Motion [R. 107 at 4] is DENIED AS MOOT. The University has agreed not to
comment on the Taylors’ election not to call Pete Smith as an expert witness. As discussed at
the Final Pretrial Conference, the University may be able to introduce Exhibits 135 and 136
during the examination of their own expert witness. However, any questions that invoke these
reports may not reference the absence or failure to call Pete Smith.
Fourth Motion [R. 107 at 4-5] is DENIED WITHOUT PREJUDICE. The University
should not to comment on the Taylors’ litigation strategy generally. However, they will be
granted leeway to ask about Dinah Taylor’s alleged contract for life and the failure to reduce it
writing. The nature and extent of this questioning will be determined during the trial.
Rulings on the University’s Motions in Limine are as follows:
First and Second Motion [R. 111 at 3-6] is DENIED WITHOUT PREJUDICE. The
Taylors will be allowed to present evidence of their past work performance. As noted in the
Court’s Order on Reconsideration, the Taylors allege that a lifetime contract was created, in part,
to lock in the goodwill they developed for the University through a lifetime of service. [R. 126.]
The University has also stated that its defense will include an allegation that the Disputed
Agreement is one that no reasonable party would bind itself to. Therefore, the Taylors must be
permitted to bring forward evidence that their performance justified such a contract. Similarly,
the Taylors evidence of charity to the University and good character is relevant, because it could
tend to make the validity of the Disputed Agreement likelier. Regardless, the Taylors ability to
present these types of evidence will not be unlimited and the Taylors are warned against
presenting cumulative evidence. Fed. R. Evid. 403.
Third Motion [R. 111 at 7-9] is DENIED WITHOUT PREJUDICE. The Taylors have
agreed that they will not present any evidence indicating the Taylors’ ages or health. If a
foundation exists, then the Taylors will be allowed to introduce evidence about the death of their
son. But this evidence cannot be introduced to evoke the jury’s sympathy. The propriety of this
evidence or questioning will be determined at the time of the trial.
Fourth Motion [R. 111 at 9] is DENIED AS MOOT. The Taylors have agreed not to
introduce evidence relating to emotional damages since they have abandoned this claim.
Fifth Motion [R. 111 at 9-10] is DENIED WITHOUT PREJUDICE. Again, the
University alleges that the Disputed Agreement with Dr. Taylor was so unreasonable that the
University could not have agreed to it. Dr. Cockrum’s performance and salary are relevant to
answering that defense. Indeed, Dr. Cockrum’s compensation serves a useful yard stick for
measuring reasonableness of the Taylors’ alleged contract. The extent of the presentation of this
evidence will be determined by the Court during the trial.
Sixth Motion [R. 111 at 11-12] is DENIED WITHOUT PREJUDICE. The Taylors are
advised against referring to the Disputed Agreement as anything that signals to the jury that a
contract was formed. Therefore, the Court’s preference is for the parties to refer to the alleged
agreement as a Disputed Agreement or similar synonym. This language reduces the risk that the
jury assumes the ultimate question.
Seventh Motion [R. 111 at 12-15] is DENIED WITH PREJUDICE. The Court has
reviewed the video deposition for Dr. Huff and finds his testimony was competent. The Federal
Rules of Evidence require the Court to look at Kentucky’s rules governing competency. Fed. R.
Evid. 601. And, Kentucky law assumes that Dr. Huff was competent unless he: “(i) lacked the
capacity to perceive accurately the matters about which he proposes to testify; (ii) lacks the
capacity to recollect facts; (iii) lacks the capacity to express himself so as to be understood [. . .]
directly [. . .]; or (iv) lacks the capacity to understand the obligation of a witness to tell the truth.”
KRE 601. Dr. Huff’s testimony elicits no concerns about any of these factors. Indeed, his
testimony exhibited forthrightness about what he could remember and what he could not. To
that point, he was able to accurately remember ministerial details and details relevant to this trial.
The University has not met the high burden required to disqualify a witness as incompetent.
Rulings on the Taylors’ Objections to the University’s Witness List and Testimony are as
First Motion [R. 106 at 3] is DENIED AS MOOT. The University has agreed not to call
Second and Third Motions [R. 106 at 3-4] are DENIED. The Taylors have not
demonstrated that they are prejudiced by the delayed disclosure. Even in cases of delayed
disclosure of an expert witness courts have allowed the expert to testify. Hayas v. Geico Gen.
Ins. Co., 2014 WL 5420004 (M.D. Fla. 2014). The potential that the Taylors would be
prejudiced by the delayed disclosure of a fact witness is low. And, in any event, the opportunity
to cross-examine Dr. Tony Hancock and Mr. Phillip Armstrong should cure any prejudice.
Rulings on the University’s Objections to the Taylors’ Witness List and Testimony:
First Motion [R. 108 at 1] is DENIED AS MOOT. The Taylors have agreed not to call
Second Motion [R. 108 at 4-5] is GRANTED. As an initial matter, the untimely
disclosure of Mrs. Siler is not fatal. As noted above, courts have allowed experts to testify even
when the opposing party failed to provide timely disclosure. Hayas, 2014 WL at 5420004. Any
possible prejudice to the University caused by the delayed disclosure of a character witness is
negligible, especially when weighed against the delayed disclosure of an expert witness.
However, as a rule character evidence is not allowed in civil cases. 21 Am. Jur. Proof of
Facts 3d 629 (Originally published in 1993). Three primary exceptions exist to this general
prohibition when: (i) character evidence is an essential element of the claim; (ii) the civil case
involves a quasi-criminal allegation against the defendant; and (iii) the evidence of good
character is necessary to prove a plaintiff’s claim. Id. None of these exceptions are implicated
here. First, character evidence does not form an essential element of a breach of contract claim.
Second, the Taylors are not defendants in this action. And, in any event, the University’s
defense that implies unsavory behavior on the part of Dr. Taylor does not transform it into a
quasi-criminal defense. Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266 (5th Cir. 1989).
Finally, this is not a case where the Taylors would be unable to prove their case but for character
evidence. Re Ferrill, 640 P.2d 489 (N.M. Ct. App. 1981) (holding character evidence was
necessary in a claim arise from a disputed will). The Taylors have produced testimony and
documents to support their claim outside of any extrinsic character testimony.
The Court OVERRULES the University’s objections [R. 133] to Dr. Huff’s testimony. 1
See also Section II.B. Many of the questions that the University objects to as leading were not
leading. [R. 108-1]. As the University properly notes Federal Rule of Evidence 611(c) allows
leading questions on direct examination to develop facts. Nothing in the record suggests that the
use of this device was unreasonable. At most, the Taylors leading questions helped to establish a
rudimentary factual background. And, Dr. Huff’s willingness to admit when he could not
remember a fact or detail shows that the process was not coercive.
Fourth Motion is GRANTED. The Taylors are not permitted to introduce Philip Blount’s
video deposition testimony or call him to the stand during their case-in-chief. As the
University’s expert witness, it would be overly prejudicial, confusing, and inefficient for the
Taylors to submit such evidence during their case-in-chief. Fed. R. Evid. 403. However, as an
important fact witness, the Taylors will be allowed to reference Mr. Blount’s deposition
testimony during their opening statement. They will also be allowed to play the entire deposition
during or before cross-examining Mr. Blount.
Rulings on the University’s Objections to the Taylors’ Deposition Excerpts:
First Objection [R. 133] is OVERRULED. See Section II.D.
Second Objection [R. 133] is SUSTAINED. See Section II.D.
Third Objection [R. 133] is SUSTAINED. The University has identified Jon Westbrook
as a defense witness. The University has also represented that he will be called to testify live
As amended by Plaintiffs’ Amendment to Witness List. [R. 137.]
during its case-in-chief. As such, Mr. Westbrook’s testimony should come during the
University’s presentation of evidence. Therefore, the Taylors are precluded from presenting Mr.
Westbrook’s video deposition testimony during their case-in-chief. As with Mr. Blount, it would
be overly prejudicial, confusing, and inefficient for the Taylors’ to present such evidence at that
time. Fed. R. Evid. 403. Of course, the Taylors’ will be allowed to reference Mr. Westbrook’s
testimony during their opening statement if they so choose.
This the 9th day of January, 2019.
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