TIG Insurance Company v. Missionary Oblates of Mary Immaculate

U.S. District Court, District of Minnesota February 20, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

TIG Insurance Company, f/k/a File No. 20-cv-2261 (ECT/JFD)
Transamerica Insurance Company,

Plaintiff and Counter
Defendant,

v. OPINION AND ORDER

Missionary Oblates of Mary Immaculate,
f/k/a The Reverend Oblate Fathers,

Defendant and Counter
Claimant,

and

Doe Nos. 86, 329, and 330,

Counter Defendants and
Intervenors.
________________________________________________________________________
Trial in this case begins Monday, February 26, 2023. See ECF No. 171. In
anticipation of trial, TIG Insurance Company and Doe Nos. 86, 329, and 330 have filed
motions in limine. TIG has filed six motions, see ECF Nos. 192–93, 195–98, and the Does
have filed one motion, see ECF No. 206. Missionary Oblates of Mary Immaculate joins
the Does’ motion, see ECF No. 212, and joins the Does’ responses to TIG’s motions, see
ECF Nos. 226–231. This order addresses all motions.
TIG’s Motion No. 1 – ECF No. 192
TIG moves, “pursuant to Evidence Rules 402 and 403, to preclude Intervenors and
Oblates from offering into evidence an umbrella insurance policy issued to Oblates by
Integrity Insurance Company for the period June 1, 1979–December 31, 1980 (the
‘Integrity Policy’ . . .) and any percipient or expert testimony relating thereto.” ECF No.
192 at 1.1 In TIG’s view, the Integrity Policy is not relevant to any issue in the case, and

if it was, the admission of the policy or testimony regarding the policy would waste time
and confuse or mislead the jury. Id. This motion will be denied.
Under Federal Rule of Evidence 401, evidence is relevant if it has “any tendency to
make a fact more or less probable than it would be without the evidence” and “the fact is
of consequence in determining the action.” “[E]vidence relevance is a low bar.” Cottrell

ex rel. Wal-Mart Stores, Inc. v. Duke,

829 F.3d 983, 997

(8th Cir. 2016). Evidence that is
not relevant is inadmissible at trial. Fed. R. Evid. 402. Relevant evidence may be excluded
when “its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

Here, the Integrity Policy is relevant. Considered alongside the Oblates’ purchase
of umbrella policies in effect from 1973 to 1978, the Integrity Policy (in effect from 1979
to 1980) tends to show that the Oblates intended to include an umbrella policy in their
insurance program. That, along with other admitted evidence, might reasonably lead a
juror to conclude that the Oblates intended to purchase umbrella coverage during the 1978–

1979 period. At trial, TIG may advocate its view that the Integrity Policy should not be

1 Page citations are to pagination assigned by CM/ECF, appearing in a document’s
upper right corner, not to a document’s original pagination.
given any weight through witness examination and argument, thus minimizing the risks of
unfair prejudice and juror confusion.
TIG’s Motion No. 2 – ECF No. 193

TIG moves “to exclude from evidence any testimony from [the Oblates’ corporate
representatives] Carrie Huff or Rufus Whitley regarding a purported ‘cash disbursements
journal’ . . . including the meaning of handwritten markings and annotations therein.” ECF
No. 193 at 1. Huff and Whitley lack personal knowledge regarding the journal’s contents.
Therefore, TIG argues, “Rule 602 . . . prohibits the use of Huff’s and Whitley’s testimony

to authenticate the journal or establish its purported meaning and significance.”

Id.

at 3–
4. The Does represent that Huff and Whitley will testify only to authenticate the journal,
not to explain the document’s contents. ECF No. 218 at 2. This motion will be denied to
the extent it seeks exclusion of Huff and Whitley’s authentication-directed testimony; it
will be granted to the extent it seeks exclusion of their testimony regarding the journal’s

meaning and significance.
This motion—and specifically TIG’s lack-of-personal-knowledge argument—
implicate two evidence concepts. The first is the general requirement that a fact witness
testify on personal knowledge: “A 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.” Fed. R. Evid. 602. The second—also raised in TIG’s Motion No. 3—is the so-
called “ancient documents rule.” Under this rule, the proponent of an ancient document—
that is, a document that “is at least 20 years old when offered,” Fed. R. Evid.
901(b)(8)(C)—authenticates the document by showing the document “is in a condition that
creates no suspicion about its authenticity” and “was in a place where, if authentic, it would
likely be.” Fed. R. Evid. 901(b)(8)(A), (B). A witness whose testimony is offered to
authenticate an ancient document need not possess personal knowledge regarding the

document’s contents. See id.; see also Century Indem. Co. v. Marine Group, LLC, No.
3:08-cv-1375-AC,

2015 WL 13673517

at *2 (D. Or. Oct. 29, 2015) (“St. Paul’s contention
that an ancient document requires a witness with personal knowledge of the information
contained in the document inserts into the rule a requirement the rule does not impose.”).
Once authenticated, the general rule is that a statement in an ancient document is not

excluded by the rule against hearsay. Fed. R. Evid. 803(16).
Here, Huff and Whitley’s lack of personal knowledge regarding the journal’s
contents means they may not testify on that subject. In other words, as the Does concede,
Huff and Whitley could not properly testify regarding the meaning or significance of any
journal entry. At the same time, however, Huff and Whitley’s lack of personal knowledge

regarding the journal’s contents does not prevent either of them from testifying in support
of the journal’s authenticity under Rule 901(8).
TIG’s Motion No. 3 – ECF No. 195
With its third motion, TIG seeks outright exclusion of the cash disbursements
journal under Rules 802, 803, 901, 1002, and 403. ECF No. 195 at 1. TIG identifies three

justifications for this motion: (1) that the journal is hearsay; (2) that the Does are not
capable of authenticating the journal; and (3) that the absence of a witness with personal
knowledge regarding the journal’s contents would leave the jury to speculate—or be
misled—regarding the journal’s significance, if any. Id. at 3. This motion will be denied.
Begin with the authentication question. As noted in analyzing TIG’s second motion,
the journal’s more-than-twenty-years-old age makes it an “ancient document” for purposes
of Rule 901(b)(8), and it may be authenticated by testimony showing that it “is in a

condition that creates no suspicion about its authenticity” and “was in a place where, if
authentic, it would likely be.” Fed. R. Evid. 901(b)(8)(A), (B).2 To determine whether an
ancient document creates no suspicion about its authenticity, a court should ask not about
the reliability of the document’s contents, but “whether the condition of the item provides
reason to doubt that the item is what it is purported to be.” 31 Charles Alan Wright and

Victor J. Gold, Federal Practice and Procedure: Evidence § 7113 (2d ed. 2021). “This
necessarily focuses attention on matters intrinsic to the item that raise suspicions such as
erasures, missing parts, misspellings, changes in handwriting, unusual format,
anachronistic content, and a freshness of appearance that belies age.” Id. Determining
whether a document was in a place it would likely be involves a fact-specific, common-

sense inquiry. See id. “For example, where the item is purported to be a document written
by a particular individual, evidence that it was found in the custody of that individual,
where his possessions were located, or in some other place identified with the individual
may be sufficient to satisfy the provision.” Id.; see United States v. Habteyes,

356 F. Supp. 3d 573

, 581–83 (E.D. Va. 2018) (finding that ledger showing distribution of weapons to

Ethiopian revolutionaries had been properly authenticated as ancient document).

2 Because the Does rely only on the ancient-records hearsay exception to justify the
journal’s admission, TIG’s separate argument that the business-records exception does not
apply, see ECF No. 195 at 4–8, need not be addressed.
TIG has not shown that the Does will be unable to authenticate the journal as an
ancient document in the way Rule 901(b)(8) requires. TIG does not question the journal’s
more-than-twenty-years-old age. TIG does not seem to argue that the journal’s physical

condition raises suspicions concerning its authenticity. Huff testified that the journal was
found “in the Central Province records collection in DC.” ECF No. 199-3 at 8. Whitley
testified that Oblates financial records, if they existed, would have been kept in St. Paul,
then moved to Washington, D.C., and then moved to San Antonio. ECF No. 199-4 at 9. It
makes sense that an Oblates cash-disbursements journal from the late-1970s would be

found in the Oblates’ archives. It is true that testimony concerning the location of the
journal’s discovery is not specific. But I conclude that this testimony is enough to show at
least that the Does may be able to introduce evidence at trial that, in turn, may reasonably
justify a finding that the journal was found in a place it would likely be.
Apart from Rule 901(b)(8)’s three listed elements, TIG argues that the journal

cannot be authenticated as an ancient document because no witness has sufficient
knowledge regarding the document’s creation, maintenance, or purpose. To support the
idea that this sort of knowledge is necessary to authenticate an ancient document, TIG cites
Kalamazoo River Study Group v. Menasha Corp.,

228 F.3d 648

 (6th Cir. 2000).  There, a 
witness—a Michigan Department of Natural Resources employee—attempted at trial to 

authenticate a “purported[ ] EPA report,” as an ancient document.  Kalamazoo River Study 
Grp., 228 F.3d . at 661.  The witness “was unable to state with certainty that the document 
was even prepared by the EPA; he could only state that it was his belief that the document 
‘was a page out of an EPA report if I recall correctly,’” and he could “not establish why 
the document was in the [DNR’s] files.”

Id. at 662

.  The district court determined that the 
document had not been authenticated and excluded it.

Id.

  On abuse-of-discretion review, 
the Sixth Circuit affirmed.

Id.

                                          

This argument, and TIG’s reliance on Kalamazoo River Study Group, are not 
persuasive.  (1) Rule 901(b)(8) identifies three relatively straightforward elements essential 
to  authenticating  an  ancient  document.    Requiring  a  witness  to  testify  on  personal 
knowledge regarding an ancient document’s creation, maintenance, or purpose is not 
among them.  Sixth Circuit cases decided after Kalamazoo River Study Group do not 

impose or add this requirement.  See United States v. Mandycz,

447 F.3d 951, 966

 (6th Cir. 
2006) (affirming district court decision to admit Soviet interrogation records as ancient 
documents); see also LensCrafters, Inc. v. Wadley,

248 F. Supp. 2d 705

, 739–40 (M.D. 
Tenn. 2003), amended in part (Feb. 26, 2003), aff’d sub nom. LensCrafters, Inc. v. 
Robinson,

403 F.3d 798

(6th Cir. 2005) (“These exhibits are more than 20 years old and

were produced in response to a subpoena issued to the Tennessee Optometric Association.
Thus, they indisputably satisfy the second and third requirements for authentication under
Fed. R. Evid. 901(b)(8).”). The better answer, then, is that Rule 901(b)(8) does not require
testimony based on a witness’s personal knowledge regarding an ancient document’s
creation, maintenance, or purpose to authenticate the document. (2) If some evidence

regarding an ancient document’s creation, maintenance, or purpose were essential to
authentication, that evidence seems present here in the journal itself. For example, the
document includes the heading “Cash Disbursements Journal” on its pages, and it includes
a title page that reads: “Oblates Fathers Central Province USA.” See ECF Nos. 199-5; 223-
6. (3) Kalamazoo River Study Group is distinguishable. There, the court reviewed a mid-
trial decision to exclude evidence based on trial testimony. Here, TIG seeks pre-trial
exclusion based on its argument that the Does will not be able to authenticate the journal

as an ancient document. TIG has not made that showing. Whether the Does carry their
authentication burden at trial remains to be seen.
TIG’s hearsay and prejudice objections may be addressed briefly. In view of Rule
803(16), TIG’s hearsay objection is not persuasive. As noted, upon authentication, Rule
803(16) says that an ancient document is not excluded by the rule against hearsay.

Assuming there are no other exclusion-worthy problems, the document is admitted into
evidence and is fair game for attorney argument and perhaps expert testimony. TIG’s Rule
403 concern—that the jury may be misled into giving the journal weight it does not
deserve—may be addressed through the testimony of TIG’s witnesses, cross-examination
of the Does’ witnesses, and attorney argument.

TIG’s Motion No. 4 – ECF No. 196
TIG moves to exclude all opinions and testimony of the Does’ proffered insurance
expert, Professor Jeffrey E. Thomas. ECF No. 196 at 1. Rule 702 governs the admissibility
of expert testimony. That rule provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the proponent demonstrates to the court
that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;

(d) the expert’s opinion reflects a reliable application of the
principles and methods to the facts of the case.

See also Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579

 (1993).  “District courts have 
wide latitude in determining whether an expert’s testimony is reliable.”  Olson v. Ford 
Motor Co.,

481 F.3d 619

, 626 (8th Cir. 2007).  There are a number of factors courts may 
consider in determining whether an expert’s testimony is the product of “reliable principles 
and methods,” including:                                                  
     (1) whether the theory or technique can be (and has been)       
     tested; (2) whether the theory or technique has been subjected  
     to  peer  review  and  publication;  (3)  whether  the  theory  or 
     technique has a known or potential error rate and standards     
     controlling  the  technique’s  operation;  and  (4)  whether  the 
     theory  or  technique  is  generally  accepted  in  the  scientific 
     community.                                                      

Smith v. Cangieter,

462 F.3d 920, 923

 (8th Cir. 2006).  “This evidentiary inquiry is meant 
to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as 
the particular case demands.  Unrein v. Timesavers, Inc.,

394 F.3d 1008, 1011

 (8th Cir. 
2005) (citation omitted).  As long as the evidence indicates that the expert evidence is 
reliable and relevant, “no single requirement for admissibility” governs.

Id.

  “As a general 
rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the 
admissibility, and it is up to the opposing party to examine the factual basis for the opinion 
in cross-examination.”  Bonner v. ISP Techs., Inc.,

259 F.3d 924, 929

 (8th Cir. 2001) 
(quotation  omitted).    But  the  court  must  exclude  an  expert’s  opinion  if  it  “is  so 
fundamentally unsupported that it can offer no assistance to the jury.”

Id.

 at 929–30 
(quotation omitted).  “Expert testimony is inadmissible if it is speculative, unsupported by 
sufficient facts, or contrary to the facts of the case.”  Marmo v. Tyson Fresh Meats, Inc.,

457 F.3d 748, 757

 (8th Cir. 2006).  Furthermore, “under Daubert and Rule 403 of the 
Federal Rules of Evidence, the probative value of the expert testimony must not be 
substantially  outweighed  by  the  danger  of  unfair  prejudice,  confusion  of  issues,  or 
misleading the jury.”  United States v. Solorio-Tafolla,

324 F.3d 964, 966

(8th Cir. 2003).
Professor Thomas is the Daniel L. Brenner Faculty Scholar, Professor of Law, and

Associate Dean for Strategic Initiatives and Graduate Programs at the University of
Missouri–Kansas City School of Law, where he teaches insurance law, among other
subjects. ECF 199-6 at 7, 9. Previously, Professor Thomas served at the University of
Missouri-Kansas City School of Law as assistant professor from 1993–1999, as associate
professor from 1999–2004, and as full professor since 2004. Id. at 9. During that time,

Professor Thomas also taught insurance law as a visiting faculty member at the University
of Connecticut School of Law and as an adjunct professor at Loyola Law School in Los
Angeles. Id. Professor Thomas also has served as a Fulbright lecturer on insurance law at
the Nankai University Department of Law in Tianjin, China. Id. Professor Thomas’s
publications include dozens of journal articles, treatises, supplements, and continuing legal

education materials regarding insurance law, see id. at 10–16, and he has presented on
dozens of insurance-related subjects, see id. at 16–21. Professor Thomas has served several
professional insurance-law organizations, including as a member of various insurance-
related committees and task forces of the Tort Trial and Insurance Practice Section of the
American Bar Association, an Honorary Fellow of the American College of Coverage
Counsel, an Adviser to the Restatement of the Law of Liability Insurance project. Id. at 7,
22. Professor Thomas earned his law degree from the University of California, Berkeley,

and his undergraduate (Bachelor of Arts) degree from Loyola Marymount University. Id.
at 9–10.
In his report, Professor Thomas offers the following opinions:
a. Oblates purchased an umbrella policy from TIG for the
policy period of June 1, 1978, to June 1, 1979, with policy
limits of $5,000,000 per occurrence and an Annual
Aggregate (where applicable) of $5,000,000.

i. The umbrella policy provided excess coverage above a
primary policy issued by TIG providing blanket liability
and personal injury coverage from June 1, 1976, to June
1, 1979, policy number 8695711.

ii. This umbrella policy very likely provided coverage for
any claims covered by the primary policy issued by TIG
applicable to that policy period (policy number
8695711) that were in excess of the primary limits.

b. The insurance purchased by Oblates from TIG for policy
periods that cover more than one year under insurance
industry custom and practice would apply their limits for
each policy year.

Id. at 2.
Whether Professor Thomas’s testimony should be excluded presents a close
question. Professor Thomas’s qualifications are not the problem. He possesses extensive
specialized insurance-law and insurance-industry knowledge. This specialized knowledge
is reflected throughout Professor Thomas’s curriculum vitae, particularly in the list of
insurance-law related journal articles he has authored and treatises he has edited. See id.
at 10–13. Professor Thomas’s specialized insurance knowledge extends to “insurance
industry custom and practice.” Id. at 3. Certainly in the abstract, expertise of the kind
Professor Thomas possesses would help the jury in this case to understand the evidence

and determine a fact in issue. A juror reasonably might be expected to understand
insurance basics. But after that, insurance law and practice can get complicated pretty
quickly, and it seems unreasonable to presume that a juror would be familiar with the
insurance industry customs and practices at issue here. The gaps TIG has identified in the
materials Professor Thomas reviewed are not so great as to warrant exclusion but go instead

to the credibility of Professor Thomas’s testimony. Bonner,

259 F.3d at 929

.   
What  makes  this  issue  difficult  is  that  Professor  Thomas’s  report  does  not 
consistently draw an explicit link between his insurance expertise and his opinions.  For 
example, as I understand it, Professor Thomas opines that handwritten notes on the 
declarations page of the TIG umbrella policy covering June 1, 1977, to June 1, 1978, show 

TIG issued a like policy covering June 1, 1978, to June 1, 1979.  ECF No. 199-6 at 3.  As 
support for this assertion, Professor Thomas asserts: “In the process of obtaining a new 
policy, it is common for the insurance producers to use the prior policy’s declaration page 
as a basis for identifying the terms of the new policy because the new policy often has the 
same  or  similar  coverages  for  the  next  policy  period.”

Id.

Fair enough. But the

handwritten notes central to this opinion go beyond merely using the prior policy’s
declarations page as a coverage reference point, and Professor Thomas does not describe a
clear link between his specialized insurance knowledge and notations of this sort.
Essentially this same criticism could be made of Professor Thomas’s opinions that the
alleged 1978–1979 umbrella policy used a premium-finance arrangement similar to the
1977–1978 policy and that the 1978–1979 policy likely provided the same coverage as the
1977–1978 policy—that is, the connections Professor Thomas draws in his report seem

more factual- than expert-grounded.
Regardless, the better decision, I think, is not to exclude Professor Thomas’s
testimony on this basis. Though Professor Thomas’s report does not consistently draw
explicit links between his expertise and his opinions, it is reasonable to infer that Professor
Thomas’s opinions depend on those links. There is no suggestion that the report does not

comply with Federal Rule of Civil Procedure 26(a)(2)(B)(i). And in his deposition,
Professor Thomas added testimony more clearly connecting the dots between the record
evidence, his insurance expertise, and his opinions. See, e.g., ECF No. 199-2 at 11–12.
For all these reasons, then, TIG’s motion to exclude Professor Thomas’s opinions and
testimony will be denied.

TIG’s Motion No. 5 – ECF No. 197
TIG moves to preclude Does 86, 329, 330, and 155 from testifying at trial. ECF
No. 197 at 1. To recap, there are two issues to be tried. TIG describes the issues as follows:
“(i) whether the Oblates knew or should have known, before Fitzgerald abused the
Intervenors, that his past abuse of children would likely recur if action was not taken; and

(ii) whether TIG issued an alleged June 1, 1978–June 1, 1979 umbrella policy to the
Oblates.” Id. at 3. TIG argues that any testimony the Does might provide would not be
relevant to either issue, that the Does lack personal knowledge regarding either issue, that
their testimony would be unfairly prejudicial, and that any testimony concerning the
reasonableness or negotiations of the Does’ Miller-Shugart agreements would violate
stipulations made among the Does, the Oblates, and TIG. See id. at 3–4. This motion will
be denied in part and granted in part.

TIG’s motion will be denied to the extent the Does’ testimony concerns the
circumstances of their abuse and necessary introductory testimony. This testimony is
relevant in two ways. First, it places the issues to be tried in context. Fitzgerald’s abuse
of the Does is this case’s origin. Second, the testimony will be relevant to whether the
Oblates knew or should have known from Fitzgerald’s past abuse that he would abuse

again. The similarity or dissimilarity of the circumstances of Fitzgerald’s past abuse as
compared with the circumstances of his abuse of the Does “has a[] tendency to make” the
fact of the Oblates’ knowledge “more or less probable than it would be without the
evidence.” Fed. R. Evid. 401(a). The potential the Does’ testimony on these matters holds
for unfair prejudice or jury confusion may be addressed through cross-examination, lawyer

argument, and instructions, including perhaps a limiting instruction. Beyond that, TIG’s
motion will be granted. The Does have not shown why their testimony regarding other
matters—for example, their injuries, their monetary damages, other consequences of
Fitzgerald’s abuse, etc.—might be relevant to the two issues to be tried.
TIG’s Motion No. 6 – ECF No. 198

TIG moves to exclude the opinions and testimony of the Does’ child-sexual-abuse
history expert, Professor Philip Jenkins. ECF No. 198 at 1. Professor Jenkins is
Distinguished Professor of History and Co-Director for the Program on Historical Studies
of Religion, Institute for Studies of Religion at Baylor University, positions he has held
since 2012. ECF No. 199-10 at 2, 19. From 1980 to 2011, Professor Jenkins taught in
various capacities at Pennsylvania State University, where he remains Emeritus Edwin Erle
Sparks Professor of Humanities. Id. at 2. Professor Jenkins holds B.A., M.A., and Ph.D.

degrees in history from the University of Cambridge. Id. at 19. He has published “thirty
sole-authored books and over one hundred book chapters and refereed articles, in addition
to numerous book reviews and journalistic articles.” Id. at 2. Professor Jenkins has
“researched and published on a number of different topics in the areas of history (including
church history), as well as criminal justice and criminology, violent crime, social theory,

and social problems,” and he has “published on changing concepts of sexual abuse and
molestation in American history” and “sexual abuse by clergy.” Id.
In his report, Professor Jenkins offers the following opinions:
1. Attitudes to child sexual abuse and molestation have changed
dramatically over time, and so have the kinds of response
thought necessary or appropriate. This historical context is
critical to understanding the responses of organizations or
institutions responding to incidents of child sexual abuse.

2. During the years from the mid-1950s through the mid-1970s,
the best expert and professional opinion about child sexual
abuse systematically minimized or trivialized the scale and
severity of child sexual abuse, and recommended responses
that in retrospect appear extremely and unreasonably mild and
non-interventionist.

3. That trivialization of sexual abuse extended to minimizing the
likelihood that offenders would repeat their acts, especially if
they had been offered any kind of therapy or treatment.

4. Changing social and therapeutic attitudes to adult
homosexuality had the wholly unintended consequence of
raising confusion about the appropriate response to cases in
which adult men abused or molested underage teenage boys.
Particularly during the 1970s, this contributed to the larger
tendency to trivialize the response to adult sex offenders, and
to minimize the harm to victims.

5. In cases that came to light prior to 1980, under the opinions
and standards recommended by the best secular expert opinion
prevailing at the time, in no instance in those years could or
should the Order have been aware that there was a substantial
probability of reoffending.

6. From the mid-1980s, the Oblates became aware of other
misconduct allegations made against Fr. Fitzgerald, and they
should have intervened forcefully to minimize his
opportunities to commit abusive acts.

Id. at 5. Based on these opinions, Professor Jenkins concludes:
During the 1960s and 1970s, the Oblates order became aware
of two acts of sexual misconduct alleged against Fr. Fitzgerald.
According to the scholarly and professional standards
prevailing in these years, neither of those acts would or should
have been understood as constituting a likelihood of future
repetition.

Id. at 18.
There are three problems with Professor Jenkins’s proffered testimony that together
warrant its exclusion. (1) It is difficult to understand how most of the proffered testimony
“will help the [jury] to understand the evidence or to determine a fact in issue.” Fed. R.
Evid. 702(a). The fact issue to be tried “is whether a reasonably prudent person in the
Oblates’ position knew or should have known that Fitzgerald’s abuse of the Intervenors
was substantially probable as a result of the continuing exposure caused by the Oblate’s
actions.” TIG Ins. Co. v. Missionary Oblates of Mary Immaculate, No. 20-cv-2261
(ECT/JFD),

2023 WL 7001760

, at *5 (D. Minn. Oct. 24, 2023).  As the Eighth Circuit 
explained in Diocese of Winona v. Interstate Fire & Casualty Co., this question is answered 
by determining the insured’s knowledge of its agent’s past acts of sexual abuse and then 
answering whether, based on that knowledge, the insured knew or should have known that 
future abuse was highly likely to occur.

89 F.3d 1386

, 1392–96 (8th Cir. 1996). Most of

the opinions Professor Jenkins describes in his report address matters that seem unrelated—
or are at least quite tangential—to this fact question. These opinions describe society’s
changed attitudes regarding child sexual abuse, trivialization of sexual abuse, and “mild
and non-interventionist” organizational responses to reports of sexual abuse. ECF No. 199-
10 at 5. Accept that these opinions accurately describe historical patterns. These historical

patterns do not answer the to-be-tried questions. Accepting that an organization in the
1960s was more likely to trivialize its agents’ acts of sexual abuse, for example, says
nothing about the extent of that organization’s knowledge of those acts; it just suggests
that, regardless of what the organization knew, it was more likely to trivialize that
knowledge. And accepting the idea that an organization’s historical tendency to trivialize

acts of child sexual abuse might reduce the perceived risk of future harm posed by the
perpetrator or perpetrators of those acts cannot be reconciled with the Eighth Circuit’s
approach to the issues in Diocese of Winona.
(2) One of Professor Jenkins’s opinions might help the jury understand the Oblates’
knowledge of the risks raised by Fitzgerald’s past abuse, but this opinion is not “based on

sufficient facts or data.” Fed. R. Evid. 702(b). As I understand it, Professor Jenkins would
testify that the prevailing view prior to 1977 (or perhaps 1980) was that sexual abusers of
children were unlikely to reoffend if they received any kind of therapy or treatment. ECF
No. 199-10 at 5, 9, 10–12. Professor Jenkins does not connect this opinion to this case’s
facts, however. He does not, for example, identify evidence showing that the Oblates held
this view,3 or that the Oblates arranged for Fitzgerald to undergo therapy or treatment
directed at his history of child sexual abuse. Without this link, the better answer is that this

opinion lacks sufficient factual support to be applied to this case or to admit this aspect of
Professor Jenkins’s proffered testimony at trial.
(3) A portion of Professor Jenkins’s proffered testimony does not reflect the
application of reliable principles and methods. Fed. R. Evid. 702(c), (d). In the final
section of his report, Professor Jenkins reviews the allegations regarding Fitzgerald’s acts

of child sexual abuse (on which TIG will rely at trial to show the Oblates’ knowledge and
the substantial probability of Fitzgerald’s abuse of the Does). See ECF No. 199-10 at 13–
17. Professor Jenkins opines that this evidence does not show the Oblates possessed the
requisite knowledge or the substantial probability of future abuse. The problem is that
almost all of Professor Jenkins’s analysis of this evidence is merely factual and reflects no

connection to his expertise as an historian. He analyzes this evidence in the same way a
juror might (or the same way the Does’ lawyer might argue it should be understood). The
analysis of the Sisseton, South Dakota incidents is representative. There, Professor Jenkins
explains why he concludes that Fitzgerald’s relocation away from Sisseton did not result
from allegations of sexual misconduct:

The chain of causation here must be examined carefully. In the
words of the Complaint for Declaratory Relief in the present

3 Professor Jenkins acknowledged in his deposition that he has no “basis to believe
that the Oblates’ administration in the 1960s or 1970s were looking at or were familiar with
secular literature in the areas of psychology, psychiatry, sexual activity, [or] psychosexual
activity.” ECF No. 199-11 at 5.
case, “Upon information and belief, the Oblates’ Provincial
became aware of Father Fitzgerald’s alleged abuse of these
minors and responded by assigning him to a new position
within the Diocese of Duluth.” The phrasing suggests that the
new assignment was a direct consequence of the abuse, and its
discovery: the Provincial “responded.” However, it is not clear
that this move was in any sense connected with the sexual
allegation. Indeed, it is far from certain that the order accepted
the genuineness of that allegation, still less its seriousness.
Superiors were aware that Fitzgerald had reported some
possible issue or conflict, but the available evidence suggests
that they did not understand it as an instance of abuse or
molestation.

There were ample grounds for the order to have moved
Fitzgerald away from Sisseton, quite apart from any sexual
allegation. At the time of the alleged offenses, Fitzgerald was
involved multiple disputes and factional fights, as would
frequently occur throughout his career, in various settings, but
which were in no way connected to sexual misbehavior. Over
the years following this alleged incident at Sisseton, various
figures within the Oblates wrote about problems that Fitzgerald
had encountered, including his handling of money, and
personal conflicts. There are also several references to
personal issues that Fitzgerald faced, including his
disappointments in his career and his professional life. His
difficulties in dealing with authority are often mentioned.
Although the passage comes from a letter written much later,
in 1989, many earlier episodes confirm the message that “when
[Fitzgerald] gets involved in administration things can become
complicated very quickly. Many times his own personal
finances become intertwined with ministry finances, and this
can obviously lead to difficulties and misunderstandings . . .
we have spoken to him at various times concerning his
administrative and financial style.” In 1992, Provincial James
Deegan wrote that, “Currently, Father Fitzgerald’s personal
file is one of the largest ones we have on any of our community
members. His file indicates a history of difficult relationships
with parishioners, misunderstandings over financial
management of parishes, and a pervasive feeling that he has
never been accepted by his Oblate superiors.” In the specific
case of Tekakwitha House, a feud between another priest and
the order of nuns active on the premises had created a
thoroughly toxic work environment for everyone present.

Id.

 at 14–15 (footnotes omitted).  This analysis does not depend at all, either explicitly or 
implicitly, on Dr. Jenkins’s history expertise.  To the extent Dr. Jenkins’s analysis of this 
evidence elsewhere draws some connection between the factual record and his expertise, 
see, e.g., id. at 13 (asserting that 1960s-era literature would not have referred to Fitzgerald’s 
act of tearing “the lower half of the swimsuit of a girl aged eight to ten” as “assault, abuse, 
or molestation”), these connections are too few and too far removed from the issue to be 
tried to justify their admission.                                         
             The Does’ Motion No. 1 – ECF No. 206                    
The  Does  seek  to  exclude  evidence  of  two  prior  alleged  acts  committed  by 

Fitzgerald—the 1963 Henry, Illinois incident and the 1966 or 1967 Sisseton, South Dakota 
incident.  ECF No. 206 at 1–2.  These acts were described in the order addressing TIG’s 
summary-judgment  motions.    Missionary  Oblates  of  Mary  Immaculate,

2023 WL 7001760

, at *2–3.  The Does argue that these prior incidents did not result in “bodily 
injury” as Minnesota insurance law defines that term and are therefore not similar to the 

bodily-injury-causing abuse they suffered.  ECF No. 206 at 3–4.  This motion will be 
denied.  It is true that Minnesota law interprets “bodily injury,” when used in an insurance 
policy, to require physical injury and not to include nonphysical harm.  See Missionary 
Oblates of Mary Immaculate,

2023 WL 7001760

, at *10–14.  But sexual abuse incidents 
that do not cause physical injury are nonetheless relevant to showing whether future sexual 

abuse—injury-causing or not—is substantially probable.

ORDER

Therefore, based on the foregoing, and on all the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               

1.   TIG’s Motion in Limine No. 1 to Preclude Introduction into Evidence of the 
Integrity Policy [ECF No. 192] is DENIED.                                 
2.   TIG’s Motion in Limine No. 2 to Preclude Introduction into Evidence of 
Corporate Representative, Non-Personal Knowledge Testimony Regarding Oblates’ Cash 
Disbursements Journal [ECF No. 193] is DENIED to the extent it seeks exclusion of Huff 

and Whitley’s authentication-directed testimony and GRANTED to the extent it seeks 
exclusion of their testimony regarding the journal’s meaning and significance. 
3.   TIG’s Motion in Limine No. 3 to Preclude Introduction into Evidence of 
Cash Disbursements Journal [ECF No. 195] is DENIED.                       
4.   TIG’s Motion in Limine No. 4 to Exclude Opinions and Testimony of Jeffrey 

E. Thomas [ECF No. 196] is DENIED.                                        
5.   TIG’s Motion in Limine No. 5 to Preclude Testimony at Trial by Intervenors 
and Doe 155 [ECF No. 197] is DENIED to the extent the Does’ testimony concerns the 
circumstances of their abuse and necessary introductory testimony and GRANTED in all 
other respects.                                                           

6.   TIG’s Motion in Limine No. 6 to Exclude Opinions and Testimony of 
Professor Philip Jenkins [ECF No. 198] is GRANTED.                        
7.   Intervenors’ Motion in Limine to Exclude Evidence of the 1960s Incidents 
[ECF No. 206] is DENIED.                                                  
Dated: February 20, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

TIG Insurance Company, f/k/a File No. 20-cv-2261 (ECT/JFD)
Transamerica Insurance Company,

Plaintiff and Counter
Defendant,

v. OPINION AND ORDER

Missionary Oblates of Mary Immaculate,
f/k/a The Reverend Oblate Fathers,

Defendant and Counter
Claimant,

and

Doe Nos. 86, 329, and 330,

ex rel. Wal-Mart Stores, Inc. v. Duke,

829 F.3d 983, 997

1979 period. At trial, TIG may advocate its view that the Integrity Policy should not be

to authenticate the journal or establish its purported meaning and significance.”

Id.

document’s contents. See id.; see also Century Indem. Co. v. Marine Group, LLC, No.
3:08-cv-1375-AC,

2015 WL 13673517

356 F. Supp. 3d 573

, 581–83 (E.D. Va. 2018) (finding that ledger showing distribution of weapons to

Ethiopian revolutionaries had been properly authenticated as ancient document).

228 F.3d 648

 (6th Cir. 2000).  There, a 
witness—a Michigan Department of Natural Resources employee—attempted at trial to 

authenticate a “purported[ ] EPA report,” as an ancient document.  Kalamazoo River Study 
Grp., 228 F.3d . at 661.  The witness “was unable to state with certainty that the document 
was even prepared by the EPA; he could only state that it was his belief that the document 
‘was a page out of an EPA report if I recall correctly,’” and he could “not establish why 
the document was in the [DNR’s] files.”

Id. at 662

.  The district court determined that the 
document had not been authenticated and excluded it.

Id.

  On abuse-of-discretion review, 
the Sixth Circuit affirmed.

Id.

                                          

This argument, and TIG’s reliance on Kalamazoo River Study Group, are not 
persuasive.  (1) Rule 901(b)(8) identifies three relatively straightforward elements essential 
to  authenticating  an  ancient  document.    Requiring  a  witness  to  testify  on  personal 
knowledge regarding an ancient document’s creation, maintenance, or purpose is not 
among them.  Sixth Circuit cases decided after Kalamazoo River Study Group do not 

impose or add this requirement.  See United States v. Mandycz,

447 F.3d 951, 966

 (6th Cir. 
2006) (affirming district court decision to admit Soviet interrogation records as ancient 
documents); see also LensCrafters, Inc. v. Wadley,

248 F. Supp. 2d 705

, 739–40 (M.D. 
Tenn. 2003), amended in part (Feb. 26, 2003), aff’d sub nom. LensCrafters, Inc. v. 
Robinson,

403 F.3d 798

(6th Cir. 2005) (“These exhibits are more than 20 years old and

(d) the expert’s opinion reflects a reliable application of the
principles and methods to the facts of the case.

See also Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579

 (1993).  “District courts have 
wide latitude in determining whether an expert’s testimony is reliable.”  Olson v. Ford 
Motor Co.,

481 F.3d 619

, 626 (8th Cir. 2007).  There are a number of factors courts may 
consider in determining whether an expert’s testimony is the product of “reliable principles 
and methods,” including:                                                  
     (1) whether the theory or technique can be (and has been)       
     tested; (2) whether the theory or technique has been subjected  
     to  peer  review  and  publication;  (3)  whether  the  theory  or 
     technique has a known or potential error rate and standards     
     controlling  the  technique’s  operation;  and  (4)  whether  the 
     theory  or  technique  is  generally  accepted  in  the  scientific 
     community.                                                      

Smith v. Cangieter,

462 F.3d 920, 923

 (8th Cir. 2006).  “This evidentiary inquiry is meant 
to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as 
the particular case demands.  Unrein v. Timesavers, Inc.,

394 F.3d 1008, 1011

 (8th Cir. 
2005) (citation omitted).  As long as the evidence indicates that the expert evidence is 
reliable and relevant, “no single requirement for admissibility” governs.

Id.

  “As a general 
rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the 
admissibility, and it is up to the opposing party to examine the factual basis for the opinion 
in cross-examination.”  Bonner v. ISP Techs., Inc.,

259 F.3d 924, 929

 (8th Cir. 2001) 
(quotation  omitted).    But  the  court  must  exclude  an  expert’s  opinion  if  it  “is  so 
fundamentally unsupported that it can offer no assistance to the jury.”

Id.

 at 929–30 
(quotation omitted).  “Expert testimony is inadmissible if it is speculative, unsupported by 
sufficient facts, or contrary to the facts of the case.”  Marmo v. Tyson Fresh Meats, Inc.,

457 F.3d 748, 757

 (8th Cir. 2006).  Furthermore, “under Daubert and Rule 403 of the 
Federal Rules of Evidence, the probative value of the expert testimony must not be 
substantially  outweighed  by  the  danger  of  unfair  prejudice,  confusion  of  issues,  or 
misleading the jury.”  United States v. Solorio-Tafolla,

324 F.3d 964, 966

(8th Cir. 2003).
Professor Thomas is the Daniel L. Brenner Faculty Scholar, Professor of Law, and

b. The insurance purchased by Oblates from TIG for policy
periods that cover more than one year under insurance
industry custom and practice would apply their limits for
each policy year.

to the credibility of Professor Thomas’s testimony. Bonner,

259 F.3d at 929

.   
What  makes  this  issue  difficult  is  that  Professor  Thomas’s  report  does  not 
consistently draw an explicit link between his insurance expertise and his opinions.  For 
example, as I understand it, Professor Thomas opines that handwritten notes on the 
declarations page of the TIG umbrella policy covering June 1, 1977, to June 1, 1978, show 

TIG issued a like policy covering June 1, 1978, to June 1, 1979.  ECF No. 199-6 at 3.  As 
support for this assertion, Professor Thomas asserts: “In the process of obtaining a new 
policy, it is common for the insurance producers to use the prior policy’s declaration page 
as a basis for identifying the terms of the new policy because the new policy often has the 
same  or  similar  coverages  for  the  next  policy  period.”

Id.

Fair enough. But the

3. That trivialization of sexual abuse extended to minimizing the
likelihood that offenders would repeat their acts, especially if
they had been offered any kind of therapy or treatment.

2023 WL 7001760

, at *5 (D. Minn. Oct. 24, 2023).  As the Eighth Circuit 
explained in Diocese of Winona v. Interstate Fire & Casualty Co., this question is answered 
by determining the insured’s knowledge of its agent’s past acts of sexual abuse and then 
answering whether, based on that knowledge, the insured knew or should have known that 
future abuse was highly likely to occur.

89 F.3d 1386

, 1392–96 (8th Cir. 1996). Most of

The chain of causation here must be examined carefully. In the
words of the Complaint for Declaratory Relief in the present

Id.

 at 14–15 (footnotes omitted).  This analysis does not depend at all, either explicitly or 
implicitly, on Dr. Jenkins’s history expertise.  To the extent Dr. Jenkins’s analysis of this 
evidence elsewhere draws some connection between the factual record and his expertise, 
see, e.g., id. at 13 (asserting that 1960s-era literature would not have referred to Fitzgerald’s 
act of tearing “the lower half of the swimsuit of a girl aged eight to ten” as “assault, abuse, 
or molestation”), these connections are too few and too far removed from the issue to be 
tried to justify their admission.                                         
             The Does’ Motion No. 1 – ECF No. 206                    
The  Does  seek  to  exclude  evidence  of  two  prior  alleged  acts  committed  by 

Fitzgerald—the 1963 Henry, Illinois incident and the 1966 or 1967 Sisseton, South Dakota 
incident.  ECF No. 206 at 1–2.  These acts were described in the order addressing TIG’s 
summary-judgment  motions.    Missionary  Oblates  of  Mary  Immaculate,

2023 WL 7001760

, at *2–3.  The Does argue that these prior incidents did not result in “bodily 
injury” as Minnesota insurance law defines that term and are therefore not similar to the 

bodily-injury-causing abuse they suffered.  ECF No. 206 at 3–4.  This motion will be 
denied.  It is true that Minnesota law interprets “bodily injury,” when used in an insurance 
policy, to require physical injury and not to include nonphysical harm.  See Missionary 
Oblates of Mary Immaculate,

2023 WL 7001760

, at *10–14.  But sexual abuse incidents 
that do not cause physical injury are nonetheless relevant to showing whether future sexual 

abuse—injury-causing or not—is substantially probable.

ORDER

Therefore, based on the foregoing, and on all the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               

1.   TIG’s Motion in Limine No. 1 to Preclude Introduction into Evidence of the 
Integrity Policy [ECF No. 192] is DENIED.                                 
2.   TIG’s Motion in Limine No. 2 to Preclude Introduction into Evidence of 
Corporate Representative, Non-Personal Knowledge Testimony Regarding Oblates’ Cash 
Disbursements Journal [ECF No. 193] is DENIED to the extent it seeks exclusion of Huff 

and Whitley’s authentication-directed testimony and GRANTED to the extent it seeks 
exclusion of their testimony regarding the journal’s meaning and significance. 
3.   TIG’s Motion in Limine No. 3 to Preclude Introduction into Evidence of 
Cash Disbursements Journal [ECF No. 195] is DENIED.                       
4.   TIG’s Motion in Limine No. 4 to Exclude Opinions and Testimony of Jeffrey 

E. Thomas [ECF No. 196] is DENIED.                                        
5.   TIG’s Motion in Limine No. 5 to Preclude Testimony at Trial by Intervenors 
and Doe 155 [ECF No. 197] is DENIED to the extent the Does’ testimony concerns the 
circumstances of their abuse and necessary introductory testimony and GRANTED in all 
other respects.                                                           

6.   TIG’s Motion in Limine No. 6 to Exclude Opinions and Testimony of 
Professor Philip Jenkins [ECF No. 198] is GRANTED.                        
7.   Intervenors’ Motion in Limine to Exclude Evidence of the 1960s Incidents 
[ECF No. 206] is DENIED.                                                  
Dated: February 20, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court

Reference

Status: Unknown