Howard University v. Borders

Background

A bench trial was scheduled for September 28, 2022. Howard University and Larry Borders and Virginia Borders, referred to together as Defendants, each filed pretrial motions in limine. A motion in limine asks the court to decide before trial whether anticipated evidence should be admitted or excluded. The dispute involved Charles White’s artwork, Centralia Madonna.

Defendants’ motion to exclude Lisa Jones Gentry

Defendants asked the court to prevent Lisa Jones Gentry, a Howard employee and in-house attorney, from testifying. They argued that Howard failed to identify her in its initial disclosures and did not produce her for a deposition. Howard had agreed to produce her for a deposition, but her originally scheduled appearance was postponed because of family health issues. The parties did not reschedule it, and Defendants did not follow up.

The court denied the motion. It found that Defendants knew Jones Gentry’s identity and role from the beginning of the litigation, knew her email was central evidence, and had reason to believe she might testify. The court also found that any failure to supplement Howard’s disclosures would have been harmless because Defendants knew about her role and could cross-examine her at trial. The court further held that sanctions based on her failure to attend a deposition were unavailable because the record did not show that she literally failed to appear for a scheduled deposition, and no court order requiring her deposition had been violated.

Defendants’ motion for sanctions concerning art inventories

Defendants sought sanctions under Rule 37 of the Federal Rules of Civil Procedure based on Howard’s alleged failure to produce art-collection inventories prepared after 1976. They asked the court to establish that Howard knew or should have known in 1976 that the artwork was missing.

The court denied the motion. It ruled that Defendants had not served a document request specifically seeking inventories that did not include the artwork. It also found that Howard had served written responses and that no court order required Howard to produce the requested inventories. The court explained that, if Defendants believed Howard’s document production was incomplete, the proper procedure was a motion to compel, which Defendants did not file concerning these inventories.

Defendants’ motion to exclude expert testimony

Defendants asked the court to exclude the opinions of Howard’s expert, Russell Panczenko, under the rule governing expert evidence and under the standard associated with Daubert v. Merrell Dow Pharmaceuticals. Panczenko was expected to testify about the standard of care for college and university art galleries and whether Howard could reasonably have discovered before May 2020 that the artwork was missing.

The court denied the motion. It recognized that the judge in a bench trial serves both as the evidence gatekeeper and the factfinder, making it generally more efficient to hear the expert’s testimony and evaluate its reliability and weight on a fuller record. The court held that allegations in Howard’s complaint about a 1976 inventory and the artwork’s absence were judicial admissions, meaning factual assertions in the pleading that Howard normally could not contradict. However, the court did not decide at this stage what inferences should be drawn from those admissions or whether Panczenko’s report ultimately satisfied the expert-evidence rule.

Howard’s motion to exclude evidence made irrelevant by summary judgment

Howard asked the court to bar evidence about Howard’s title to the artwork, possible ways the artwork could have been transferred, the whereabouts of other Howard artworks, and alleged negligence in securing, monitoring, or entrusting the artwork. Defendants agreed that, after the court’s March 1, 2022 summary judgment order, the remaining issue was their affirmative defense of laches, which concerns alleged unreasonable delay. Defendants argued that evidence about what Howard could have discovered in 1976 remained relevant to that defense.

The court denied Howard’s motion. It held that relevance under the evidence rules is broad and that the challenged evidence could affect the court’s evaluation of the laches defense. Because the trial was to be a bench trial, the court also considered the risk of excluding potentially useful evidence greater than the risk of admitting evidence that might later prove only marginally relevant.

Howard’s motion concerning which side would present first

Howard asked the court to require Defendants to present their case first because Defendants bore the burden of proving their affirmative defense. The court treated the motion as moot because Defendants agreed to present their case first, subject to Howard making certain identified representatives available for live examination during Defendants’ case.

Howard’s motion concerning the 2019 Sotheby’s appraisal

Howard asked the court to exclude evidence and argument concerning a 2019 Sotheby’s appraisal because the artwork was not included in the list of works submitted to Sotheby’s. The court denied the motion. It held that the evidence could support an inference that Howard knew the artwork was missing by 2019, and therefore may have learned that fact before 2019.

Howard’s motion concerning Panczenko’s testimony before he testified

Howard’s request to exclude Panczenko’s testimony before he testified was unopposed and was treated as moot because Defendants would present their case first and said they did not intend to offer Panczenko’s testimony during their case.

Disposition

The conclusion states: “Plaintiffs’ and Defendants’ motions in limine are DENIED.” The Clerk was directed to close Docket Nos. 64 and 66–68.