Howard University v. Borders

Background

A bench trial was scheduled for September 28, 2022. Howard University and Larry Borders and Virginia Borders each filed motions in limine, meaning pretrial motions asking the court to rule on the admissibility or use of anticipated evidence. The opinion addressed the pending motions.

Defendants’ motion to preclude Lisa Jones Gentry

The defendants sought 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 failed to produce her for a deposition. Jones Gentry had supervised an investigation into the ownership and history of Centralia Madonna, communicated Howard’s position about the artwork to Sotheby’s, participated in a meeting about its provenance, and submitted a declaration to the court. Howard later identified her as a trial witness who would testify about when Howard first learned that the artwork was no longer in its possession.

The court denied the motion. It concluded that the defendants knew Jones Gentry’s identity, role, and possible relevance throughout the litigation, including because her email had been central evidence. Therefore, Howard did not have to supplement its disclosures; alternatively, any violation would have been harmless because the defendants knew of her role and could cross-examine her at trial.

The court also rejected the argument that Jones Gentry should be excluded because she did not appear for a deposition. Her appearance on the noticed date had been excused, the defendants never followed up to reschedule, and the record did not show that she literally failed to appear for a deposition session. The court further found no basis for sanctions under the rule governing violations of court orders because there was no order requiring the deposition and no violation of a court order.

Defendants’ motion for sanctions concerning inventories

The defendants sought sanctions based on Howard’s alleged failure to produce art-collection inventories created 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 found that the defendants had not served a document request specifically seeking inventories that did not include the artwork. Howard had served written responses and had told the defendants that it did not believe the broader inventories were relevant. If the defendants wanted to require Howard to search for and produce those materials, the proper procedure was a motion to compel, which they did not file for the inventories. The court also found no basis for sanctions for violating a court order because no court order required production of the inventories.

Defendants’ motion to exclude expert Russell Panczenko

The defendants asked the court to exclude the testimony of Howard’s expert, Russell Panczenko, under the rule governing expert evidence and the standards from Daubert v. Merrell Dow Pharmaceuticals. They challenged his qualifications, methods, relevance, and reliance on a book. Howard offered Panczenko’s testimony about the standard of care for college and university art galleries and whether Howard reasonably could have been expected to discover before May 2020 that the artwork was missing.

The court denied the motion. It explained that in a bench trial the judge is both the gatekeeper who evaluates admissibility and the factfinder who evaluates credibility. Because the court had already reviewed Panczenko’s report, it found it more efficient to hear live testimony and cross-examination and then decide what weight, if any, to give his opinions.

The court separately held that allegations in Howard’s complaint about a 1976 inventory and the artwork’s absence were judicial admissions—factual assertions in a pleading that ordinarily bind the party that made them. Howard could not contradict those allegations. The court did not, however, decide at that stage what inferences should be drawn from them or whether Panczenko’s report ultimately satisfied the expert-evidence requirements.

Howard’s motion concerning evidence after 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-owned artworks, and alleged negligence in securing, monitoring, or entrusting the artwork. Howard argued that the court’s summary judgment order had left only the defendants’ affirmative defenses of laches for trial. The defendants agreed that laches was the remaining issue but argued that evidence about what Howard could have discovered in 1976 remained relevant.

The court denied Howard’s motion. It stated that relevance under the evidence rules is broadly defined and that evidence should not be excluded at the threshold if a chain of inferences could affect the information considered by the factfinder. In the bench-trial setting, the court determined that admitting the evidence would not unduly prolong the proceedings, even if some of it later proved only marginally relevant.

Howard’s motion concerning the order of presentation

Howard asked that the defendants present their case first because they bore the burden of proof on their affirmative defense. The parties agreed that the defendants would present their case first, subject to Howard making certain representatives available for live examination during the defendants’ case. The court therefore found the motion moot and stated that the defendants would present their case first subject to those commitments.

Howard’s motion concerning the 2019 Sotheby’s appraisal

Howard asked the court to exclude evidence and argument concerning a 2019 Sotheby’s appraisal that did not list Centralia Madonna. Howard argued that the omission did not establish when Howard learned the artwork was missing or that Howard could have traced it to the defendants at that time.

The court denied the motion. It held that, if the defendants established that the appraisal list included works by Charles White and was limited to artworks worth more than $10,000, the omission could support an inference that Howard knew the artwork was missing in 2019 and therefore learned of its absence before then.

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

Howard separately moved to exclude Panczenko’s testimony before he testified. The motion was unopposed and moot because the defendants would present their case first and stated that they did not intend to offer Panczenko’s testimony during their case.

Disposition

The opinion concludes: “Plaintiffs’ and Defendants’ motions in limine are DENIED.” The clerk was directed to close Docket Numbers 64 and 66 through 68. The order did not decide the ultimate merits of the parties’ dispute over the artwork; it resolved pretrial evidence, testimony, and sanctions issues.