2008CA2359 - Louisiana Court of Appeal, First Circuit

NOT DE51GNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2008 CA 2359
JERRY LEE BALDWIN
VERSUS
THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA
SYSTEM THE UNIVERSITY OF LOUISIANA AT LAFAYETTE
NELSON SCHEXNAYDER INDIVIDUALLY AND IN HIS CAPACITY AS
DIRECTOR OF ATHLETICS FOR THE UNIVERSITY OF LOUISIANA AT
LAFAYETTE
Judgment Rendered
On
JUN 3 0 2009
Appeal from the Nineteenth Judicial District Court
In and For the Parish of East Baton Rouge
State of Louisiana
Docket No 509 900
Honorable Donald R Johnson
Eric L
Judge Presiding
Counsel for Plaintiff
Register
G Karl Bernard
Jerry
Appellee
Lee Baldwin
New Orleans Louisiana
and
Marshall J Simien Jr
Lake Charles
Lawrence E
Stephen
Louisiana
Counsel for Defendants Appellants
Marino
J Oats
Board of
Supervisors for the University
of Louisiana System and Nelson
Schexnayder
Robin L Jones
George O Luce
Special Asst Attorneys General
Lafayette Louisiana
BEFORE
uM
JRRo
f
15
PARRO McCLENDON AND WELCH ll
4
CC
llCu
5
AR
McCLENDON J
Plaintiff
Baldwin
Jerry Lee
filed
against defendants
suit
Supervisors for the University of Louisiana System Board
at
alleging several
of Athletics for the ULL
from his
employment After finding merit in
two million dollars in
damages
the
supervisor
Finding
more
vacate the
than
some
Board
one
were
of the claims the
judgment in favor of plaintiff
consequential
and remand for
judgment
The
dismissed
error
a new
of
as
Director
stemming from termination
exception of ULL All claims against ULL
defendants with the
its
A
of action
causes
Board
University of Louisiana
Schexnayder individually and in his capacity
and Nelson
Lafayette ULL
the
the
jury awarded
rendered
was
over
against
separate entity from
as a
remaining defendants appealed
that interdicted the fact
finding
we
process
trial
FACTUAL AND PROCEDURAL BACKGROUND
In December of 1998 Mr
ULL
26
His formal contract
2001
after three
head coach
was
Baldwin
his
as
the head football coach at
approved by the Board in April of 1999
losing football
However
employed
was
salary
Mr Baldwin
seasons
was
was
On November
relieved of his duties
as
paid throughout the remaining term of his
contract
On
and
July 21 2003 Mr Baldwin filed
negligent infliction
abuse of
rights
By
2004 Mr Baldwin
that
an
alleging
breach of contract
tortious interference with
amending and supplemental petition filed
a
on
intentional
contract
found
racial discrimination
2005 the defendants filed
some
and
September 17
a
motion for summary
judgment asking
plaintiffs claims be dismissed On the discrimination claim the trial court
reasons
the
suit
of emotional distress
alleged
On March 21
a
issues
or
claims that
are
in its oral
disputed but I m of the opinion
that
system of the administration at the university separated its employment relationship
with
Mr
Baldwin for
reasons
that
are
not
illegal
or
dismissing the racial discrimination claim with prejudice
order
2005
By
an
certify
as
final the
signed
on
unlawful
was
February 24 2006 the trial
A
signed
court
partial judgment
on
November 21
granted
a
motion to
partial judgment dismissing the racial discrimination claim and
plaintiff appealed that judgment
Subsequently
2
the trial court denied defendants
motion for summary
emotional distress
ruling
on
rights
judgment dismissing
Mr
Baldwin
unclear
asserted
was
that
and breach of contract
Mr Baldwin
Douglas Corporation
v
ULL s
The
appealed the grant of
on
appeal
for the
reasons
actually based
partial summary judgment
correctness of the
McDonnell
was
negligent infliction of
or
his racial discrimination claim
and that the termination
pretextual
In
on race
we
firing
were
reviewing the
followed the
analysis from
Green 411 U S 792 93 S Ct 1817 36 L Ed 2d
1973
Initially
we
found that Mr Baldwin had
of racial discrimination
African American
Louisiana State
was
the claims of intentional
tortious interference with contract
appeal
On
case
on
the claim of abuse of
the summary
668
judgment
his
Specifically
background
as a
presented to the trial court
he offered evidence to show that he
judgment
nondiscriminatory
was
replaced by
defendants offered what
reasons
for the removal
comprising Mr Baldwin
particularly in light of
a
s
pending
s
at
white male
evidentiary showing
tenure and the
NCAA rule that
on
the motion
they considered to be legitimate and
pointed to the three losing
significant drop
required
a
a
in game attendance
higher
Defendants also
record and the low attendance combined to create
level of attendance
argued that the win loss
budget crisis that demanded
an
change in the head football coaching position
In response to ULL
reasons
a
Defendants
for ULL to maintain its Division l A status
immediate
was an
high school football coach and assistant coach
We then noted that to counter Mr Baldwin
seasons
prima facie
University LSU qualified him for the position of head coach at ULL he
removed from his duties and he
for summary
a
offered
by
ULL
s
counter
were
Mr
Baldwin
not the true
argued to the trial court that the
reasons
and
were
merely pretextual
As
support Mr Baldwin highlighted evidence that he believed undermined ULL s claim of
nondiscriminatory
After
our
reasons
review
this court held that Mr
Baldwin had established that many
issues of material fact remained and thus the trial court erred in
judgment dismissing
We reversed and remanded to
the claim of racial discrimination
the trial court for further
proceedings
Baldwin
3
granting the summary
v
Board
of
Supervisors for
University of Louisiana System 2006 0961 pp 11 12 La App 1 Cir 5 4 07
961
So 2d 418 424 25
After
2007 the
trial
a
the merits of the claims which
on
jury found
as
was
held between October 9 18
follows
On the claim of racial discrimination
the
jury answered
no
to
concerning whether the Board terminated Plaintiff Jerry Baldwin because of his
However the
a
jury answered yes to question 2
whether
on
1
question
Coach Baldwin
race
s race was
determining factor in his termination by the Board
On the claim for breach of contract
contract was breached
answered
the
to
yes
rights
questions 5 b 5
question 4 that the breach
to
not in bad faith
a
summary
a
finding
of
question appearing at the end of
question 5 which directed the jury to respond affirmatively if it had answered yes
grounds in 5
a
d
On the issue of interference with
a
contract
the form memorialized
jury to all of the interrogatories outlining the elements necessary for
finding
the claim that is
on
summary
to
was
and 5 d three of the valid bases for
c
The jury checked yes
to anyone of the listed
the
jury found in question 3 that the
question 5 whether the claim of abuse of rights had been proved the jury
On
abuse of
but found in
the
6
a c
The verdict form
interrogatory that directed the jury to
questions 6
a c
The
answer
on
interrogatories
summary
by
yes
affirmative
question 6 also contained
yes
if it had answered
a
yes
jury checked yes
On the issue of intentional infliction of emotional distress the
to the
an
a
7 a c
jury answered
comprising the elements of the claim and
question which again required
affirmative
an
answer
if 7
no
a c
no
to the
had been
answered in the affirmative
On
recorded
the issue
a
yes
of
negligent infliction of emotional distress
vote to all of the elements
questions 8
type of summary question
4
a e
and
the verdict form
yes
to the
same
Finally in question 9 the jury answered
Under
damages
awarded
plaintiff
After the
be
polled
As
question 10
total of
a
plaintiff
suffered
the
jury
1
read in open court the defendants asked that the jury
was
result of the
a
to whether the
listing the various categories of damages
2 002 676 37
jury verdict
yes
poll
inconsistencies in the verdict form
some
were
revealed
When asked to recall their votes
on
question 6 the interference with
to two of the
requisite elements for the claim
claim
one
juror voted
voted
no
to all of the element
could not recall how
The
produced
also
no
polling
to
a
they voted
on
judgment in
2008
defendants filed
was
Notwithstanding
juror
on
question 6
negligent infliction of emotional distress claim question 8
accordance with the
October 18 2007
on
The motion
one
Specifically four jurors voted
of the requisite elements
Court
the
the
contract
questions and to the summary question and two jurors
result inconsistent with the verdict form
one or more
The
no
a
a
denied
and
signed
on
jury s verdict
April
4 2008
was
rendered in
After rendition
on
Open
January 2
motion to correct the verdict to conform to the
jury polling
Subsequently defendants also filed
a
the Verdict
JNOV
or
for
a new
trial
In
a
motion for
Judgment
part defendants argued that
jury incorrectly found that the defendants had discriminated against Mr Baldwin
based
on race
The trial court denied the motion
court stated that the
assessment of the
On
case
credibility
was
almost
Defendants
In the
denying the motion the trial
totally about credibility
and
the
jury s
appealed
appeal defendant appellants assigned multiple
errors
to the
jury s finding
against defendants
on
various claims
finding for plaintiff
on
the racial discrimination claim and the lack of nine affirmative
including confusing
or
inconsistent responses in
votes for the two claims covered in
questions 6 and 8 of the verdict form
defendants
errors
1
assigned
A copy of the actual
the
jury
following
verdict form is attached
and
as
argued
Appendix A
5
that these
errors
In addition
prevented
the
jury from reaching
a
fair and
impartial verdict
requires reversal
which
possibly
or
remand
By allowing Dr William Davis and Mr Max Emfinger to testify
1
as
plaintiff s
experts the trial court abused its discretion
By excluding testimony sought by defendants
2
on
the issue of
firing practices
at
other schools the trial court abused its discretion and
3
A structural
defendants
error was
peremptory strike to
that she had been
a
committed when the trial court refused to grant
black prospective juror who had
unresolved belief
an
racially discriminated against by her white supervisor
STANDARD OF REVIEW
On
the
appeal
review for the
appellate court
findings
of fact
the manifest
uses
Stobart
process has been tainted
verdict
or
judgment
by
of the
some
v
Black
review with
1
p
1304
determinable from
a
or
structural
6 28 96
La
676 So 2d
the
and
a
fair resolution
cold record and may require
a
p
7
just and proper
La
11 17 95
Denmiss
663
Diez
v
6 23 95
So 2d 720
2001 1231
a
de
novo
657 So 2d 1066
IP Timberlands
95 1958 95 1593 95 1691
Kemmerly
p
1067
on
1067
the record
McLean
of the
issues may
9
La
La
at 1067
1 Cir
review
or
Savin
1991
1070 71
v
be
App 1 Cir 6 21 02
Allstate
a new
writ denied
trial is
94 1089
95 1883
Operating Company
10 27 95
6
not
a
In those cases
remand for
App 1 Cir 5 23 95
La
v
novo
conflicting evidence
Schwegmann Giant Supermarkets Inc
Corporation 93 1637 p 35
writs denied
v
1 Cir
App
deprived the
first hand view of the witnesses
Company 579 So 2d 453 457 58 La App
appellate court must decide whether
more
that
finding
Notwithstanding the preference for de
presented at trial See Jones 95 2530 at p 1 676 So 2d
Insurance
error
judgment
in fact intensive cases with
of the evidence
preponderance
However where the fact
and renders
novo
La 1986
complete record
a
legal
Transportation
presumption of correctness and the record is complete the
95 2530
Hunter 495 So 2d 1298
La 1993
material
appellate court reviews the record de
Jones
dearly wrong standard of
State Department of
v
Development 617 SO 2d 880 882
and
error
Limited
657 So 2d 282
661 So 2d 1348
822 So 2d 722
La
see
v
304
Adeola
728
writs
2002 2354
denied
La
11 15 02
829 SO 2d 438 and 2002 2413
11 22 02
La
829
So 2d 1054 Savin 579 So 2d at 457 58
DENIAL OF PEREMPTORY CHALLENGE
During the questioning of the prospective jurors
that she
was a
black female and that
racial discrimination
discrimination
experience she answered
conflict
discrimination
asserted
which
was
so
from
employee she had been the victim of
yes
the
a
similar to Mr
argued that the candidate
racial
of
Mr
a
Baldwin
was
on
the candidate
excuse
her
The
race
who
was
then
juror
In Alex
v
Rayne Concrete Service 2005 1457 2005 2344 2005 2520 p 15
1 26 07
art 795C
response
being challenged based
agreed with Mr Baldwin and refused to
ll La
In
s
claim
on
challenge to the defendants request to have the prospective juror
trial court
n
unresolved
s
Baldwin
He
as a
peremptory challenge based
candidate
excused
seated
of the candidates stated
When asked if she could set aside her
the defendants asserted
stemming
Batson
a
state
by her white supervisor
Subsequently
possible
as a
one
951 SO 2d 138 150
n
ll
our
supreme court held that LSA C Cr P
governing Batson challenges in criminal cases
was
applicable to civil
cases
Louisiana Code of Criminal Procedure article 795C states that
C No
peremptory challenge made by the state or the defendant shall be
based solely upon the race or gender of the juror If an objection is
made that the state or defense has excluded a juror solely on the basis of
race or gender
and a prima facie case supporting that objection is made
by the objecting party the court may demand a satisfactory race or
gender neutral reason for the exercise of the challenge unless the court
is satisfied that such reason is apparent from the voir dire examination of
the juror Such demand and disclosure if required by the court shall be
2
made outside of the hearing of any juror or prospective juror
footnote
added
Additionally in Alex 2005 1457 2005 2344 2005 2520 at p 15 951 So 2d at
150 51
the supreme court
reviewing
a
Batson
provided the following three step analysis to be used in
challenge to
a
peremptory strike
First the trial court must determine whether the defendant has made
prima facie showing that the prosecutor exercised
2
Acts 2008
before
No 669
1
made the
changes
shown in brackets
us
7
a
a
peremptory challenge
The
changes
do not affect the
case
showing is made the burden shifts to
the prosecutor to present a race neutral explanation for striking the juror
in question Although the prosecutor must present a comprehensive
reason the second step of this process does not demand an explanation
that is persuasive or even plausible so long as the reason is not
inherently discriminatory it suffices
on
the basis of
Second if the
race
the court must then determine whether the defendant has
Third
carried his burden of
proving purposeful discrimination This final step
involves evaluating the persuasiveness of the justification proffered by the
prosecutor but the ultimate burden of persuasion regarding racial
motivation rests with and never shifts from the opponent of the strike
peremptory challenge
The basis for the
for
a
challenge for
but must be
cause
more
Alex 2005 1457 2005 2344 2005 2520 at pp
n
12
The
152 53
discriminatory intent
La
App 1 Cir
offered
734 So 2d 693
99
8 18 99
740 So 2d 787 801
these
l0
commits
are
951 So 2d at 150
structural
a
manifestly
n
same
a
18 19 951 So 2d at 152
12
deemed
race
State
Burns
v
99 0829
neutral
racially neutral ground
v
Inc
32 121
p
unless
98 0602
La
p
9 24 99
due
Alex
l0
If
a
Batson
errs
and
747
Generally the
for the
peremptory
20
App
Thus the trial court
2005 1457 2005 2344
challenge
impedes the right to
wrongfully grants
occurs
20
La
2 Cir
King
great deference
error
a
the
is denied in
a
fair and
a
Batson
rulings will
s
not
2005 2520 at p
the trial court
error
impartial trial Alex
challenge
Similarly if the
a
defect in the
Through the granting of the challenge the party
legitimate peremptory challenge may be subjected to juror bias and the
impediment to
a
juror is denied service
12 5 07
a
citing State
which
error
jury selection process also
asserting
gut feeling
or a
2005 2344 2005 2520 at pp 22 24 951 So 2d at 155 56
2005 1457
trial court
be
required
challenges often revolve around factual determinations
be overturned absent manifest
n
n
reasons
Arkla Lubricants
v
findings of the trial court
14
17
intuition
King 604 So 2d 661 666 La App 1 Cir 1992
v
Matthews
Because
mere
704 writ denied
possibility of bias in favor of plaintiffs is
challenge
than
should
inherent in those
was
19
2
So 2d 1114 State
reasons
strike may be less than that
or
fair and
impartial trial may be erected
See Munch
972 So 2d 1249
1251 52
as
when
a
Backer
2004 1136
pp
4 5
writ denied
2007 2477
La
3 7 08
v
909
8
La
prospective
App
4 Cir
977 So 2d
After
a
peremptory challenge
the
on
of the
review
Matthews
32 121 at p
the
of the white
race
caused
20
jurors and
as
However
asserted
more
question of bias
than intuition
reasonable basis
candidate
even
race
if
assumed
neutral
a
to
believe
reason
a
In
we
was
the
find
we
evidence that
no
that
find
a
nothing
a
white
peremptory challenge solely
supervisor based
for their
the
possibility of bias
challenge
remained
by defendants
2004 1136 at p 4 972 So 2d at 1251 52
More
Under these
race
neutral
They had
despite
a
the
particular facts defendants
reason
for the
challenge and
find that the trial court
importantly
we
process and creates the
was
clearly wrong
in
recognize that in this particular
possibility
2004 1136 at pp 4 5
of
See Munch
Burns 98 0602 at p 20 734 So 2d at 704
jury selection appears to be the type of structural
See Munch
on race
put her experience aside during the trial In addition
plaintiff failed to meet his burden to show purposeful discrimination
challenge
black
prima facie showing Mr Baldwin did not sufficiently rebut the
asserted
we
a
light of the similarity of the claims the defendants
plausible specific and legitimate
Therefore
as
in the record to
similarity of the claim that is
unsupported feeling
or an
belief that she could
s
we
provided
the
It
s race
employee who asserted unfair treatment by
that raised the
We further note that
fact involved in the unresolved claim
s race was a
supervisor
the basis of the candidate
state
but rather
by the candidate s discrimination
740 So 2d at 801
seated
is clear that the
discrimination
race
support a prima facie showing that defendants exercised
on
it
being systematically excluded
were
Certainly the candidate
was
were
applicable law
the
impermissible
on
conflict
or
several other African Americans
African Americans
and
not based
was
possibility of bias
experience
record
error
granting the Batson
case
the defect in the
that taints the fact
finding
impermissible prejudice against the defendants
972 So 2d at 1252
Alex
2005 1457
2005 2344
2005 2520 at pp 22 24 951 So 2d at 155 56
QUALIFICATION
Defendants
witnesses
Mr Max
the trial court
assigned
error
OF EXPERT WITNESS
to the trial court
Emfinger and Dr William Davis
failed to
s
as
qualification
experts
of two of
plaintiff s
Defendants argue that
perform its gatekeeping function of excluding unreliable and
9
irrelevant
defendants assert that Mr
Specifically
expert testimony
only high school players and not college players individually
defendants do not believe that Mr Emfinger
area
terminating college football coaches
in the method of
versus
allowing
a
but argue that he
of administration
coach to
resign
that had not been researched
personal
to meet the
requirements of Daubert
U S 579
113 S Ct 2786
La 1993
or
S Ct 1167
all
one
the
expert
or
analyzed sufficiently
526
Inc
509
628 So 2d 1116
Foret
v
firing
opinion in those
Davis
tested
Carmichael
v
which
1999
s
U
137
147
119
applied Daubert Foret principles
to
expert testimony not only scientific opinion
In Louisiana LSA C E art 702
If scientific technical
to understand the evidence
or
or
provides
other
as
form of
an
or
opinion
to determine
a
fact in issue
Federal Rules of Evidence
Daubert
or
a
education
witness
may
analysis
702 is
virtually identical to its
Rule 702 the Louisiana
which
admissibility while recognizing
that the
charged
allows
a
the detailed
with the
expert testimony is
Company Ltd
more
duty
not
526 U S at 152
of
2001 1231 at p
7
flexible
standard
performing
gatekeeping
a
but also
119 S Ct at 1176
2796
Daubert
see
for
determining
analysis in which the trial court must engage
only relevant
822 So 2d at 727
provision in the
Supreme Court adopted and applied
Department 2007 0156 p 3 La App 1 Cir 11 2 07
Although
as an
testify thereto in the
source
satisfy its gatekeeping function Foret 628 So 2d at 1121 23
trial court is
qualified
otherwise
Because LSA C E art
the
follows
specialized knowledge will assist the trier of fact
expert by knowledge skill experience training
to
as an
the consequences of
and State
1993
Company Ltd
1174 143 L Ed 2d 238
qualified
not
Merrell Dow Pharmaceuticals
v
125 L Ed 2d 469
Kumho Tire
or
on
defendants admit his
to defendants Dr
According
areas was a
give his opinion
to
was
Thus
or as a team
As to Dr Davis
competitiveness of the ULL team in question
expertise in the
qualified
was
Emfinger rated
Daubert
Under Daubert the
function to
reliable
Devall
v
Kumho Tire
Baton
Rouge Fire
979 So 2d 500 502
509 U S at 592 93
ensure
Adeola
113 S Ct at
specifically dealt with expert scientific testimony the United
10
Supreme Court determined that the Daubert analysis is equally applicable
States
expert testimony Kumho Tire Company Ltd
To
be
ensure
grounded
a
in methods and
procedures of science rather than just subjective belief
assessment that the
testimony is scientifically valid and
In
applied
considerations
as
and has been tested
2
review and
publication
whether the
509
follows
2007 0156 at pp 3 4 979 So 2d at 502
the Court
whether
determine
to
whether the
whether the
3
theory
whether there is
is
methodology
s at 593 94
U
1
or
a
expert
theory
s
Daubert
reasoning and
the
can
in
properly be applied
or
technique
can
be
technique has been subjected to peer
known
generally accepted
113 S Ct at 2796 97
the court
Daubert 509
to the facts at issue
methodology underlying the testimony is scientifically valid and
to the facts at issue
or
methodology underlying the
or
expert testimony is reliable
whether
illustrative
enumerated
be
can
reasoning
113 S Ct at 2795 96 Devall
determining
is admitted
Accordingly before expert testimony
preliminary
U S at 589 93
s at 147 119 S Ct at 1174
U
reliability the Daubert standard requires that the expert s opinions
unsupported speculation
must make
526
to all
or
potential rate of
in the scientific
error
and
4
community Daubert
Devall 2007 0156 at p 4 979 So 2d at 502
03
In
cases
with
non
scientific
experts the Daubert analysis
the trial court should consider the Daubert factors that
serve as
useful
measures
Company Ltd
based
on
at 152
court must ascertain if the witness
Ltd
119 S Ct at 1176
personal experience and study
characterizes the
practice of
526 U S at 152
an
or on
scientific
reasonably applicable and
employed the
Whether the
or
same
and
Kumho Tire
expert opinion is
professional studies the trial
level of intellectual
expert in the relevant field
Kumho Tire
rigor that
Company
119 S Ct at 1176
The decision to admit
or
exclude
expert testimony is within the sound discretion
of the trial court
Its
clearly
Devall 2007 0156 at p
erroneous
be tailored
judging the reliability of the expert s opinion
in
526 U S
are
can
judgment will not be disturbed by
4
Comments 1988 d
11
an
appellate
979 So 2d at 503
court unless it is
LSA C E art
702
Prior to trial defendants filed
a
motion in limine to exclude the
defendants also
objected
Davis
Subsequently
plaintiff
as
experts including Mr Emfinger
hearing
on
the motion
appeal
At the end of the
Davis and Mr
on
defendants made
testimony of Dr
to other witnesses to be called
By memorandum
essentially the
same
at the
support and
in
arguments offered
hearing the trial court denied the motion in limine
by
as
on
to Dr
Emfinger but stated that the court would review the qualifications at trial
voir dire and revisit the
objections at that time
MAX EMFINGER
When Mr
Emfinger
parties conducted
the
a
was
called
Daubert
as a
witness at trial the
style hearing
on
the
issue
qualifications In part Mr Emfinger testified that he had acted
ranking high school players according
He issued
years
opinions through his
and he had offered his
opinion
on
rankings
whole
football
Plaintiff tendered Mr
Emfinger
s
scout and had been
on
ESPN and in several
Emfinger
as an
sporting magazines
never
assessed
a
team
expert in the quality of the college
players and the collective quality of the ULL team that Mr Baldwin inherited in
the future
1999
Mr
business to which many schools subscribed
Although he felt qualified to rank the players he admittedly had
as a
of
as a
excused and
was
ability to play college football for several
to their
own
jury
and the
prospects of
success
After
importance of recruiting
counsel for both sides
for that team based
the trial court
on
the level of the
players
hearing the questioning and arguments by
Mr
accepted
Emfinger
as an
expert in the first
category only that is assessment of the quality of the players and the collective talent
of the team
The
jury
was
then returned to the courtroom and the voir dire process
was
repeated for the benefit of the jury
was
only tendered and accepted in the first category the quality of the football players
and the collective
From
trial
our
and the
cannot
After
quality of the ULL team that
extensive review of the
questioning of Mr
questioning by both sides Mr Emfinger
Mr Baldwin inherited
hearing
Emfinger
on
on
the motion in limine the voir dire at
direct and
say that the trial court abused its discretion in
tendered
and
denying
defendants
objections
experience in the field of ranking high school
12
The
on cross
examination
accepting Mr
witness
players
not
we
Emfinger
had
1
only
on
as
extensive
their
past
performance but also
his opinions accepted by those recruiting players for college
2
football
recruitment and
in the field
Emfinger
s
opinion of their ability and talent for succeeding in college
his
on
3
recognized
been
expert by others recognized
as an
adequately reliable
as
testimony
as
experienced
and
providing
as
especially considering the
accept
Mr
See
LSA C E art 702
Additionally the defendants through questioning
opinion by highlighting the speculative
on
scientific
non
assistance to the trier of fact
some
Devall 2007 0156 at pp 2 5 979 So 2d at 502 03
s
reporting
the trial court had sufficient information before it to
Thus
character of the field
Emfinger
or
allowed to attack Mr
were
nature of any
ranking system and the
inability to scientifically test such rankings until the player had successfully performed
the
on
field
college
assessment the
at trial
Emfinger had not previously done
on
cross
examination
exposed the weaknesses in
too much latitude in the area of
allowing Mr Emfinger
performance
were
as a
whole
the record does not
support
2007 0156 at pp 4 5 979 So 2d at 503
Company 93 1132 pp
denied 95 0292
3 4
La 3 24 95
a
collective
a
retroactively assessing team
finding that the defendants
Emfinger s testimony when reviewed in toto
unduly prejudiced by Mr
Devall
collective
While the trial court may have erred
assessment and the unknown effect of variables
in
a
questioning by defendants during voir dire in the presence of the jury
later
and
Although Mr
La
Rivere
1 Cir 10 7 94
App
v
See
Union Pacific Railroad
647 So 2d 1140
1144
writ
651 So 2d 295
DR WILLIAM DAVIS
Plaintiff
requested
athletic director and
between
an
director
specifically
manner
in which
the coach
a
in
hearing and he
a
Davis be
a
coach
implications of
s
was
a
subjected to
a
as an
the duties and
a
and
or
on
jury and again before the jury
13
responsibilities of
an
was an
athletic
appropriate
communicates that
method of termination
qualifications
lengthy
expert in the relationship
the traditional and
football coach
particular
speCific expertise
also
accepted
football program
university terminates
and the
Emfinger Dr Davis
the
that Dr
news
to
As with Mr
issue at the in limine
initial voir dire out of the presence of
During the trial plaintiff established that Dr Davis had
an
impressive educational
background and extensive experience in administration at the college level While
serving
president
as
Chancellor
of
he
L5U
had
at his schools and others
director
the
on
college
coaches
the
he had
career
university level
or
only served for about
and had
More
never
one
served
was
based
investigation
number
a
or
conducted
and that his
career
not directed
as an
importantly in the specific
or
other research
sought
or seen
resign
consequences of the two
as
an
or
to determine if his
athletic
or
to determine how
and
they
he had
writings
on
the
his
not
no
The record
on
was
held
directors
he
had
types of terminations
had
was
versus
no
was
sufficient to
as an
specific
qualify him
effects
on a
as
However the
14
The
of
or
been
the
as
tendered
After the voir
in academia
dispute is whether
expert in the process of firing
coach from
to be reliable
or
tendered
firing
a
resignation To
versus
expert under the Daubert Foret analysis the witness
question must be shown
not
to find any studies
accepted by the trial court
as an
a
knowledge of any existing
again accepted
was
never
resignations
appeal substantiates Dr Davis extensive experience
football coach and the
in
jury Dr Davis
by
researched the
or
He testified that he had
general oversight of various athletic programs
background
polls and had
opinion
investigated
subject and had not attempted
dire in the presence of the
area
at
area
personal view
including the question of termination methods and their consequences
qualify
athletic
actually affected by the
were
expert before in the field of firings
After the initial voir dire Dr Davis
his
as an
any follow up studies of coaches who had been fired
types of terminations
consequences of those two
area was
He had conducted
on common sense
different methods of termination
tendered
opinion in that
majority of other administrators
coaches allowed to
and in
year
directly participated in the termination of only three head football
during his long
subject and
studies
responsibility for the athletic
ultimate
appeal choice and methods of terminations and their ramifications Dr Davis
on
testified that he had
on
However
college football coach early in his
interim
the
as
including football and had worked with the NCAA and the athletic directors
programs
issue
and
oversight
including his tenure
colleges
chancellor of various
or
s
opinion in the
quality of the factual basis for the
The
opinion determines the reliability
investigation
and
must be
Carrier
research
or
whether scientific
than
more
opinion must have been subjected to study
just his
own
or
personal sufficient
subjective belief
App 1 Cir 9 23 97
at 2795
unsupported speculation
or
City of Amite 2008 1092 p 4 La App 1 Cir 2 13 09
v
Devall 2007 0156 at pp 3 4 979 So 2d at 502
La
to render it reliable
to be reliable
701 So 2d 475 478
Miramon
see
Bradley 96 1872 p 6
v
Daubert
6 So 3d 893 897
509 U S at 590
113 S Ct
opinion must be supported by appropriate validation
the
ie
goo d groun d s
In this
case
Dr
Davis
issues at the heart of the
instead of
another
coaching position
highly disputed
issues
investigations
even
or
and caused him
critical to two
damaged by being fired
damage in other ways
admittedly
was
preliminary surveys
Such
or some
an
his
personal
own
polls to provide
or
indicia of
unsupported opinion
can
His
opinion
view
those
on
without
some
any
demonstrable
Devall 2007 0156 at pp
reliability
Carrier 2008 1092 at p 4 6 So 2d at 897
trier of fact
was
resign and whether the firing prevented him from obtaining
foundation for his conclusions
3 4 979 So 2d at 502
key witness whose testimony
whether Mr Baldwin had been
case
allowed to
being
was a
provide
no
Miramon
assistance to the
96 1872 at p 6
701 So 2d at 478
Unfortunately the
placed
an
unwarranted
subjective opinions
erroneous
level
Where the
of
designation
importance
testimony of
a
as
on
an
expert in the disputed
unsubstantiated
and
to
fairly determine
the facts is not
only negatively impacted but is interdicted
Franklin
2005 1814
7 8
94
0206
such
La 2 17 06
cases
a
It is
App
however
12 22 05
924 So 2d 1021
2001 1231
undisputed that the trial
examination
1 Cir
remand may well be
So 2d at 94 Adeola
3
La
Franklin
writ denied
2006
93 1132 at p 4 647 So 2d at 1144
3
right
See Franklin
2005 1814 at p
court cannot
to control the nature extent
deprive
examination in the interest of
at p 8 822 So 2d at 727
v
8
In
928
p 9 822 So 2d at 728
court has the
the trial
928 So 2d 90
Rivere
required
admittedly
key witness is deemed unreliable the
possibility of prejudice is significantly increased and the jury s ability
pp
areas
a
litigant
of the
and character of
procedural right
of
cross
cross
judicial economy and other well intentioned motives Adeola 2001 1231
Here based on our ruling on Dr Davis qualification as an expert we need not
15
JURY VERDICT
Defendants assert two
that the
jury s
answers
errors
to the
based
on
the
First defendants argue
jury verdict
question of racial discrimination
were
confusing
or
Secondly the trial court erred in failing to recognize the absence of the
misleading
requisite number of votes for
a
finding in favor of plaintiff
on
two of the
causes
of
action
Louisiana Code of Civil Procedure article 1813
provides
A The court may submit to the jury together with
general verdict written interrogatories upon one
as
follows
appropriate forms for
a
issues of fact
or more
the decision of which is necessary to a verdict The court shall give such
explanation or instruction as may be necessary to enable the jury both to
interrogatories and to render a general verdict and
the court shall direct the jury both to make written answers and to render
make
a
to the
answers
general
verdict
B The court shall inform the
arguments
to the
jury
intends to submit to the
parties within
of the
general
a
reasonable time
verdict form
prior
to their
and instructions it
jury and the parties shall be given
a
reasonable
opportunity to make objections
C When the
general
shall direct the
verdict and the
answers are
harmonious
the court
entry of the appropriate judgment upon the verdict and
answers
D When the
answers are
consistent with each other but
one or more
is
inconsistent with the
judgment
verdict
or
verdict
or
general verdict the court may direct the entry of
in accordance with the answers notwithstanding the general
may return the jury for further consideration of its
may order a new trial
E When the
answers are
inconsistent with each other and
likewise inconsistent with the
entry
of
answers
Based
on
the
new
a
general
JNOV and render
trial
options
statutory language
or
one or more
is
jury for further consideration of its
when
answers
to the
verdict the trial court has three
interrogatories
options
judgment in accordance with the specific
return the matter to the
and
verdict the court shall not direct the
judgment but may return the
or may order a new trial
inconsistent with the
grant
general
answers
jury for further consideration
is within the sound discretion of the trial court
However
are
The court may
answers
order
a
The choice of
if the trial court
fully examine the argument that the trial court exceeded its authority in limiting cross examination to
protect the privacy of certain individuals As for the argument directed to another witness we first note
that a trial court s privacy concerns can be protected in other ways without necessarily limiting cross
examination but find no undue prejudice
The majority of the information sought by defendants to
contradict the disputed opinions was eventually presented through other cross examination and the
testimony of defendants witnesses
16
enters
the
in
judgment
answers to
the
conformity with the general verdict despite the inconsistency with
interrogatories the trial court commits reversible
94
Diez
error
1089 at pp 3 5 657 So 2d at 1069
VERDICT RACIAL DISCRIMINATION
Under Louisiana law
refuse to hire
or
to
it is unlawful for
any individual
discharge
against any individual with respect
of
privileges
national
federal law
LSA R S
125 l
Ed 2d 407
1817
Vaughn
between
23 332 A l
a
otherwise to
compensation
s
or
i
ntentionally
fail
or
intentionally discriminate
his terms
race
color
Racial discrimination
Mary
1993
McDonnell
Edel
v
Honor Center
s
conditions
religion
or
sex
is also unlawful
Hicks 509 U S
v
or
under
federal court
113 S Ct 2742
502
Douglas Corporation 411 U S 792 93 S Ct
918 F 2d 517
5th Cir
federal and state anti discrimination
consider
to
pursuant to Title VII of the Civil Rights Act of 1964 and subsequent
See St
legislation
or
employer
because of the individual
employment
origin
to his
an
Based
1990
laws
on
the
state courts may
commonality
appropriately
interpretation of federal statutes to resolve similar questions
s
concerning Louisiana statutes and the proper burden of proof sequence
Central Louisiana Electric Company Inc
97 1232
p
3
La
Hicks
v
App 1 Cir 5 15 98
712 So 2d 656 658
The
establish
a
plaintiff claiming discrimination has the initial burden of proof and must
prima facie
case
by showing that 1 he
3
position
not
a
he
was
the
Vaughn
burden
nondiscriminatory
shifts
reason
is
mere
pretext
Corporation 411 U S
a
The
racial
the
class
McDonnell
to
for its action
a
2
minority
was
See St
he
filled
Mary
was
by
s
a
qualified for the
person who
Honor Center
was
509
Douglas Corporation 411 U S at 802
If the
defendant
the
may meet this initial burden
plaintiff
position
918 F 2d at 521
plaintiff must then show by
reason
4
protected minority
113 S Ct at 2747
93 S Ct at 1824
case
member of
was a
discharged and
member of the
s at 506
U
of discrimination
plaintiff establishes
who
must
articulate
If the defendant articulates such
a
prima facie
a
legitimate
a reason
the
preponderance of the evidence that the defendant s
Vaughn
at 802 04
918
F 2d
at
521
93 S Ct at 1824 26
17
see
McDonnell
However
Douglas
despite the shifting
burdens the ultimate burden remains with the
the adverse
Mary
s
employment action
Honor Center 509 U S at 506 08
In
contrast
to
the
where
cases
a
plaintiff
St
burden
has shown that
of
federal
proof requirements
developed
a
somewhat different
improper discrimination
analysis
of the
was one
conjunction with other
motivating factors for the negative employment action
in
legitimate factors
In Price Waterhouse
or
motives for the defendant
Hopkins 490 U S 228
109 S Ct
Supreme Court found that
exclusively refer to
adverse
use
of the
review
Rather
discrimination
cases
plaintiff has
actually
defendant may avoid
a
played
2007 1136
Mbarika
p
La 10 3 08
17
La
a
the
words
only
reason
also
for the
contemplated
legitimate and illegitimate
See Price Waterhouse
490 U S
at 239
appropriate sequence and burdens
from pure
in
pretext
The
cases
employment decision
an
decision
even
a
the
preponderance of the
if it had not taken the
490 U S at 258
109 S Ct
Supervisors of Louisiana State University
App 1 Cir 6 6 08
Thus
same
Price Waterhouse
992 So 2d 551
although proof
motivating factors shifts the burden
plaintiff s favor
was
of
both
reasons
motivating part
Board of
992 So 2d 1019
the United States
1989
finding of liability only by proving by
v
v
met his burden in a mixed motive case to show that
discriminatory factor into account
see
choice
distinguished
as
evidence that it would have made the
at 1795
the
of the
of all
mixed motive
Court held that after
104 L Ed 2d 268
The Court then outlined the
109 S Ct at 1785
to be used in
action
phrase because of in the federal statute did not
contributing to the employment decision
241
s
where the discrimination at issue
cases
employment action
consideration and
1775
for
reason
113 S Ct at 2747 48
pretext
pure
to show that the true
impermissible discriminatory factor
federal statutes has
jurisprudence interpreting
for
the
was
plaintiff
it does not
Only if the defendant is unable
562 writ denied
that discrimination
2008 1490
was one
automatically resolve the
of the
case
in
to meet its burden to show that the
employment action would have been taken regardless of
race
can
the
plaintiff be
successful
In 1991
Civil
Rights
two years after Price Waterhouse
Acts of 1866 and 1964 to
provide that
18
Congress amended the federal
an
illegal discriminatory action is
complaining party demonstrates
established when the
national origin
practice
affirmative defense is available if the
action in the absence of the
2
9 2000e 2
If
m
2
federal
B
party proves
a
m
impermissible motivating factor
excuse
a
a
limited
42 U S c
42
9
it reduces the
liability
available remedies and excludes the remedy of damages
5 g
or
show that it would have taken the
can
the defense does not
Although
B
employer
sex
though other
even
specific change in the wording of section 2000e 2
violation under the
2000e 5 g
42 U S c
religion
color
race
motivating factor for any employment practice
was a
factors also motivated the
same
that
U S c
9 2000e
Louisiana however chose not to amend its statute to include the 1991
ii
i
changes and maintained only the broader because of language
In Louisiana this court has
analysis for pretext
Waterhouse
or
a case
in mixed motive
and
See Mbarika
type analysis
However after
singular
cases
traditionally employed the
has been
cases
McDonnell
acknowledged
2007 1136 at p
17
of
use
a
Price
992 So 2d at 562
fully tried the burden shifting analysis
paramount importance to the appellate court
Douglas type
Instead the
ceases to
be of
inquiry becomes
whether the record contains sufficient evidence to support the conclusions reached by
the
jury
or
factfinder
908 So 2d 41
45
Seagrave
writ denied
v
the
jury instructions
on
2003 2272
2005 2349
denied 549 U S 822 127 S Ct 157
In its
Dean
La
3 17 06
166 L Ed 2d 38
La
App 1 Cir 6 10 05
925 So 2d 543
and cert
2006
the claim of racial discrimination
language from LSA R S 23 332 and stated that
the defendants have
7
p
the trial court cited
If you disbelieve the
reasons
that
given for their decision to take any employment action against the
plaintiff you may infer that the defendants took that action because of the plaintiff s
The court also notified the
race
the
only
reason
jury that the plaintiff need
for the termination
but would
motivating factor causing defendants to take
jury would then have
the evidence
that
not considered the
case
and
a
to consider whether the
they would have made the
plaintiff s
mixed motive
race
Thus
an
not prove that race was
have to prove that his
employment action against him
defendants
same
19
The
proved by preponderance of
decision
even
if the defendant had
the court gave instructions for
case
race was a
a
pretextual
finding in the verdict form
The first
terminated
because of
the
pretext
a
case
and
mixed motive
a
jury verdict form included
that
race was
absence of
a
despite
termination
determining factor
the final
serves as
support
a
the
considerations
that
finding
of
indeed find in favor of
parties
on
seem
plaintiff
was not
federal
despite
their
statute
In addition
jurisprudence
an
affirmative
4
on
the issue of
racial discrimination
to exhibit
a
continued
JNOV
was
or new
the
race
a
race
jury s answers
However based
on
or a new
belief that the
race was
a
4
the
trial
not
under
the
Louisiana
determining factor
statute
a
on
jury did
Apparently the
discriminatory claim That may be the
the evidence at trial
on
the
case
and
JNOV
under the
applicable
or a new
trial
albeit
an
the trial court appears to have
the issue
parties and the trial
court
incorrectly interpreted the
Although the amended federal statute provides that
an
the motion to conform the verdict to the
jury poll defendants primarily argued
of action not whether the jury found in favor of the plaintiff
Only in connection with the issue of attorney s fees did defendants argue that
on
some
of the
the Louisiana statute
termination
because of
same
by denying defendants request for
the verdict form
During the hearing
because
terminated
defendants motion for the JNOV
finding by the jury
beliefs
the lack of nine votes for
on
proceeded to
argument that the jury wrongly found racial discrimination
In those
responses
a
jury s
in the
answer
have
the claim of racial discrimination
on
but
argument essentially based
accepted
incomplete
the
the discrimination claim
parties incorrectly interpreted the singular finding that
sufficient alone to establish
case
despite the preliminary finding of
or
on
an
language
specifically that the finding of racial discrimination
and in their briefs to this court
amended
been
interrogatory appears to
defendants would
plaintiff
impermissible
arguments made in the court below
as
not
phrase from
because of
If that is the
assumption is correct the result is the
finding
all
is either
whether
negative determination
should be reversed
had
of the exact
That
interrogatory
theory of mixed motives
finding of
race
No matter which
do not
use
Baldwin
arise under the
case
determining factor
a
further
second
a
have been directed toward the
finding
Notwithstanding the
race
Mr
that
especially in light of the statement in Price Waterhouse that
the Louisiana statute
both
his
was
not because of
trial the defendants
causes
uses
race
the
language
because of
and
the
jury
fees could not be awarded under the statute
argued
that the
finding
answered
that the
In the motion for
of racial discrimination should be reversed
20
that
color
race
religion
encompass both
to pursue
one
1136 at p
origin
was
the
change
adopt
language
or
make
an
alternative
992 So 2d at 562
the trial court s
a
language and maintained
the
general language does
a
party may chose
argument See generally Mbarika 2007
particular the shifting
For mixed motive claims in
an
not the
appropriate guide
was
outlined in
jury instructions the jury responses to the two questions covering the
read
separately
or
together
cannot be read
as a
finding
in
plaintiff
After
for
in
Using the Price Waterhouse analysis which
racial discrimination claim
favor of
motivating factor for any
a
Certainly
burden analysis outlined in Price Waterhouse is
amended federal statute
demonstrates
complaining party
types of claims pretextual and mixed motive and
claim
17
national
or
of
because
general
more
sex
Louisiana did not
employment practice
the
the
action is established when
illegal discriminatory
reviewing the parties arguments and the trial court s denial of the motion
JNOV5 and
new
inconsistent with the
trial
we
judgment and
that is inconsistent with the
are
akin to
interrogatories
verdict and the
judgment
motion for JNOV
or new
So 2d at 1069
IP Timberlands
findings of the jury
conclude that the actual
a
judgment based
Thus
based
the
on
the trial court committed reversible
trial
6
See LSA CC P art 1972
on a
are
general verdict
inconsistency of the
error
in
denying the
Diez 94 1089 at pp 4 5 657
Operating Company 93 1637 at pp 32 34 657
So 2d at 303 04
VERDICT
If trial is
unless the
5
a
jury of twelve nine of the jurors must
parties stipulate otherwise
After
note
considering the arguments
that the grant of a JNOV is
See Pino
judgment
v
made
LSA C C P
art
1797B
render
a
verdict
The record before
we
own
La 3 18 94
to LSA C C P
pursuant
art
us
1811
on
the motion for JNOV
concur to
not the proper remedy to correct an error in the trial court s
Gauthier 633 So 2d 638 655 La App 1 Cir 1993 writs denied 94 0243
634 So 2d 858 and 94 0260
3 18 94
6
by
INADEQUATE AFFIRMATIVE VOTES
La
634 So 2d 859
we decide this assignment of error
primarily based on the inconsistency between the
and the jury interrogatories we also noted and considered plaintiff s statement that any
confusion in the jury interrogatories could have been objected to and corrected at the time that is
before the jury was dismissed
However in this case to the extent that the interrogatory on a
Although
judgment
determining
factor
is found to be
that misstates the law
the jury
poll
708 716 717
Thus
incomplete or misleading the error
legal error especially in light of the
See Berg v Zummo 2000 1699 p
the
is before the court
5
n
21
is
a
patent
and fundamental
one
motion to conform the verdict to
13
n
5
La 4 25 01
786 So 2d
contains
twelve
stipulation rescinding the requirement of nine votes
no
jurors had to
In this
to render
concur
affirmative responses shown
on
plaintiff s favor
insufficient
Similarly
on
support for the
the jury verdict form for questions 6 and 8
could not confirm the necessary
the
verdict in
polling of the jury demonstrated
case
contract claim
a
Thus nine out of the
vote
yes
on
Four
jurors
the elements of the interference with
question 8 less than nine affirmative votes
a
counted in
were
poll for the elements comprising the claim of negligent infliction of emotional
distress
Subsequent to the polling defendants filed their motion to correct the verdict to
conform to the
polling The trial court after hearing argument
on
the motion
found at
least nine affirmative votes had been cast in favor of the claims of interference with
negligent infliction of emotional distress in plaintiff s favor and denied the
contract and
motion
From
wrong in
our
on
this
finding nine affirmative votes
in favor of
was
review of the record
vote of the
plaintiff
point the trial court
The
entry of
questions 6 and 8
on
jury confirmed by the polling
clearly and legally
judgment that the court found
a
impermissibly inconsistent with the
was
Thus
was
pursuant to LSA C C P arts 1797 and
1813 the denial of the motion to conform the verdict constituted reversible
Diez
error
See
94 1089 at pp 4 5 657 So 2d at 1069
REVIEW OR REMAND
After
discovered
our
thorough review of the record and applicable legal precepts
more
than
not reflective of the
and material
intensive
a
error
case we
one
reversible
jury verdict
the Batson
cold record
and
a
fair
importantly
impartial
resolution
finding process
cannot
found
requires
witnesses
was
a
de
a new
novo
trial
can
one
structural
in this
tainted and
a
one
on a
on
in which the
review of this
meaningful
multiple credibility
first hand observation
by
a
fact
determination of
review would not be
be decided
22
judgment
Thus
errors
have
to a
than
more
fairly be reached based
type particularly dependent
qualified expert
we
and expert qualification
Under these circumstances
determinations of the
those from
More
find that the fact
preponderance of the evidence
ranging from juror selection
error
we
including
competent impartial jury
See Adeola
2001 1231 at p
So 2d at 1070 72
Savin
judgment and remand the
9
822 So 2d at 728
579 So 2d at 457 58
case
for
a new
Diez
94 1089 at pp
Therefore
we must
7 10
657
vacate the
triaL
CONCLUSION
For these
reasons
we
vacate the
proceedings consistent with this opinion
plaintiff Jerry
judgment
The costs of the
and remand for further
appeal
are
assessed to
Lee Baldwin
VACATED AND REMANDED
7
Having found
errors
necessitating
a
remand
we
pretermit defendants other assignments of error
23
v85000
1
DOCKET NO 509900
JERRY LEE BALDWIN
VERSUS
19TH JUDICIAL
DISTRICT
THE BOARD OF SUPERVISORS FOR
THE UNIVERSITY OF LOUISIANA
SYSTEM THE UNIVERSITY OF
PARISH OF EAST BATON ROUGE
LOUISIANA AT LAFAYETTE and
NELSON SCHEXNAYDER
and in his
capacity
individually
STATE OF LOUISIANA
Director of Athletics
as
for the UNIVERSITY OF LOUISIANA
AT LAFAYETTE
VERDICT FORM
I RACIAL DISCRIMINATION
1
Do you find
by
of the evidence that
preponderance
a
terminated
Defendant Board of Supervisors for the University of Louisiana System
Plaintiff Jerry Baldwin because of his race
V
Yes
2
Do you find
No
of the evidence that Coach Baldwin s race was a
of
factor in his termination by the Board of Supervisors for the University
by
a
preponderance
determining
Louisiana System
Yes
No
v
II
3
BREACH OF CONTRACT
of Supervisors for
preponderance of the evidence that Defendant Board
the University of Louisiana System breached its contract with Plaintiff Jerry Baldwin
Do you find
by
a
kYes
III
4
No
BAD FAITH BREACH OF CONTRACT
If you find
by
a
preponderance
of the evidence that Defendant breached its contract with
Plaintiff do you find that any such breach
Do not
answer
this
5
unless your
in bad faith
answer
to
Question
3
was
yes
lLLNo
Yes
IV
question
was
ABUSE OF RIGHTS
Do you find
a
by
a
preponderance
Supervisors for the University of Louisiana System and
Nelson Schexnayder had a right to terminate Plaintiff but terminated him solely
to harm him or with the predominant motive of harming him
Defendant
Board of
Yes
b
Defendant
No
Supervisors
Board of
Nelson
Schexnayder
terminating Plaintiff
preponderance of the
this mark
proved
T
I
c
ofthe evidence that
fairness
no
for the
University of Louisiana System and
legitimate interest to be gained by
that Plaintiff has proved this by a
serious and
If you believe
evidence mark yes
No
the
or was
iL Yes
right
to
terminate Plaintiff violated moral rules
or
elementary
in bad faith
No
FILED
OCT 1 8 2007
1
d
If you do not believe Plaintiff has
no
Yes
Exercising
had
X
q
r
Defendant Board of
d
to
right
the
allowed under the
purpose than the purposes
to any of Questions 5a
answer
answered No
to
6
a
different
contract
through
5d
was
then check
Yes
Yes
below
If you
all ofthe above then check No below
L Yes
V
terminate Plaintiff for
and
No
Yes
If your
500 1
for the University of Louisiana System
Supervisors
Schexnayder exercised
Nelson
A1
No
INTERFERENCE WITH CONTRACT
Do you find
by
a
preponderance of the
Supervisors for
the University of Louisiana System to breach the contract or to make performance
of the contract more burdensome difficult or impossible
Defendant Nelson
a
Schexnayder intentionally
lead the Board of
No
L Yes
outside the scope of his authority and
If you
did not think that his actions were in the best interests of the University
the
evidence
mark
believe that Plaintiff has proved this by a preponderance of
If you do not
If you do not believe Plaintiff has proved this mark no
yes
no
believe that Plaintiff proved both parts of this question mark
Defendant Nelson
b
Schexnayder
Plaintiff
c
was
damaged by breach
contract was more
V
answer
answered
No
was
acting
No
Yes
If your
evidence that
burdensome
Yes
of the contract
by
difficult or impossible
or
the fact that
performing
the
No
to all of Questions 6a
through
to any ofthe above then
6c
was
Yes
then check
Yes
below
If you
below
check No
No
L Yes
VI INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
7
Do you find
by
a
of the evidence that
preponderance
Supervisors for the University of Louisiana
representative Nelson Schexnayder was extreme and
The conduct of Defendant Board of
a
System through
its
outrageous at any time
No
L Yes
Plaintiff suffered
b
Yes
severe
as a
result of that conduct
pLNo
Defendant Board of
c
emotional distress
Supervisors
for the
University
of Louisiana
System desired
emotional distress upon Plaintiff or knew that severe emotional
distress would be certain or substantially certain to result from its conduct
to
inflict
severe
Yes
If your
answer to
answered
No
all of
LNo
Questions
7a
through
to any of the above then
Yes
7c
was
Yes
check No below
1L No
2
then check
Yes
below
If you