This is an age discrimination case involving a 70 year old who worked for the Hamblen County School public schools. She alleges that her employer constructively discharged her in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”) and the Americans with Disabilities Act, 42 U.S.C. § 12101(“ADA”). The District Court addressed the specific facts of this case in its Memorandum Opinion and Order addressing HCBOE's motion for summary judgment [Doc. 98].

In its first Motion in limine [Doc. 71], HCBOE asks the Court to prohibit certain “improper opinion testimony of Plaintiff King.” [Doc. 71, pg. 1]. Specifically, it alleges that King stated in her deposition that “Most of the people I think that Ms. Dyke [the School principal] has hired have been younger people.” Id. It claims that because King could not recall any specific names, her opinion in this regard cannot be “rationally based on her perception.” Id. at 2. It also claims that the probative value of King's opinion testimony in this regard is substantially outweighed by a danger of unfair prejudice, confusing the issues and misleading the jury, citing Fed.R.Evid. 403.

King claims that excluding King's testimony is premature. King notes that Dr. Dyke testified that all nine individuals she has hired have, in fact, been younger than King. King insists that she can lay the proper foundation for the admission of this testimony at trial, and that her testimony is rationally based on her perception. Regarding the Rule 403 analysis, King argues that her testimony is probative on the issue of discriminatory intent.

Relevant evidence is admissible. Fed.R.Evid. 402. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401.

Evidence that King was replaced by a younger worker is undeniably relevant to her ADEA claim. An allegation that the plaintiff was replaced by a younger individual supports an inference of discrimination only if the difference in age is significant. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012). In this case, the age difference is more than ten years which is significant. Id. at 284. The Court finds that, at this point in the litigation, it would be premature to exclude outright King's opinion in this regard. At trial, King can attempt to lay a proper foundation for the District Court to address its admissibility. Moreover, from this vantage point, the probative value on the issue of discriminatory intent is not outweighed by any of the Rule 403 factors of undue prejudice, confusing the issues, or misleading the jury. Accordingly, HCBOE's Motion in limine regarding King's testimony is respectfully DENIED.

*2 HCBOE also moves to exclude the testimony of Michele Faucett. Faucett has testified that “[i]t seems ... principals usually want to hire younger teachers.” HCBOE claims that Faucett's opinion was really just a “feeling” because she could not come up with a single name [Doc. 71, pg. 3]. Thus, HCBOE argues that there is no rational basis for her opinion. HCBOE also insists that the probative value of her opinion is substantially outweighed by a danger of unfair prejudice, confusing the issues and misleading the jury, citing Fed.R.Evid. 403.

In response, King notes that Faucett simply could not recall the names of the individuals at that time. “I don't know their names. I'd have to look them up. Go to the website you'll see them” was Faucett's response to not being able to recall the names. [Doc. 75, pg. 2].

As with the testimony of King, Faucett should be able to offer this opinion at trial with the proper foundation. It is relevant to the issue of discriminatory intent, and its probative value is not outweighed by any of the Rule 403 factors. HCBOE's motion in limine regarding Faucett's testimony is respectfully DENIED.

HCBOE also requests this Court to prevent King from testifying about what her son told her what Dr. Dale Lynch said to a police officer. Such evidence is obviously hearsay. King cannot testify about what her son told her about what Dr. Lynch said to Police Officer Michael Hurt when Hurt asked Dr. Lynch him about what was happening at the school to King. King does not dispute that. However, King argues that it may call Officer Hurt to testify about what Dr. Lynch to him. HCBOE's motion in this regard is GRANTED.

HCBOE requests the Court to exclude what it describes as “inappropriate opinion testimony of lay witnesses” [Doc. 76]. HCBOE objects on the grounds that this testimony “steps beyond lay witness perception and into expert testimony” in violation of Fed.R.Evid. 701–703 [Doc. 76, pg. 2]. It claims that these witnesses are not qualified to provide testimony in the field of “medicine, human resources or even education management.” Id.

King intends to call witnesses who will testify that King was not a good “fit” for the CDC assignment. For example, Cindy Boyd, a former co-worker, was asked if King was “a good fit” for the CDC classroom.[1]Stephanie Menees, a former co-worker, was asked about whether King was a “good fit” for the CDC classroom. Michelle Faucett will testify of the makeup of the children in the CDC classroom for the 2012-13 school year. She has more than 30 years of experience in education and over 10 years in special education. She will testify that the job was “very physically demanding” and required changing some of the children's diapers.

Fed.R.Evid. 701 provides:

In distinguishing proper lay testimony from expert testimony, the Sixth Circuit has noted that “lay testimony results from a process of reasoning familiar in everyday life, whereas an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field.” United States v. White, 492 F.3d 380, 401 (6th Cir. 2007) (internal quotation marks and citation omitted). Thus, a lay witness may testify, for example, that “a footprint in snow looked like someone had slipped, or that a substance appeared to be blood[,]” but cannot testify that “skull trauma caused the bruises on a victim's face.” Id. (internal quotation marks and citation omitted). In applying Rule 701, “the modern trend among courts favors the admission of opinion testimony, provided that it is well founded on personal knowledge and susceptible to specific cross-examination.” United States v. Valdez–Reyes, 165 Fed.Appx. 387, 392 (6th Cir. 2006) (unpublished) (internal quotation marks and citation omitted).

*3 In this case, the testimony offered by King's witnesses regarding her fitness for the rigors of the CDC room are not “based on scientific, technical, or other specialized knowledge.” One does not need a degree in medicine or educational management to appreciate the challenges of a special-needs classroom. The rigors of the CDC classroom necessarily vary from year to year with the changing needs of the students. This testimony King offers appears to be based upon “a process of reasoning familiar in everyday life,” i.e., their observation of the needs of the particular children in the CDC room and their understanding of King's ability to manage those needs given their knowledge of her physical limitations. Their testimony is proper lay opinion testimony and is admissible. HCBOE's Motion in Limine [Doc. 76] is DENIED.

HCBOE has moved the Court to exclude from evidence the affidavits of Michele Faucett and Plaintiff King based on Fed.R.Evid. 801, claiming that the affidavits are inadmissible hearsay. King responds that it included the affidavits of Faucett and King on her exhibit list for purposes of Fed.R.Evid. 801(1)(b) should either witness's motive or credibility be questioned at trial or if either witness's recollection needed refreshing. It appears there is no dispute about the purpose of the affidavits and the extent to which they can be used. To the extent HCBOE seeks to exclude King from simply introducing the affidavits in her case-in-chief, the motion is GRANTED. However, King may otherwise utilize these affidavits consistent with Fed.R.Evid. 801(1)(b) or to refresh a witnesses' recollection pursuant to Fed.R.Evid. 803(5).

HCBOE seeks to prohibit King from introducing evidence of alleged lost wages from January 1, 2014 to the date of trial and any front pay [Doc. 79, pg. 1]. In support of this request, HCBOE argues that King failed to properly supplement her discovery responses with her 2014 tax return in a timely manner. HCBOE argues that the sanction of exclusion of this evidence is mandatory, citing Bessemer & Lake R.R. Co. v. Seaway, 596 F.3d 357 (6th Cir. 2010).

Rule 26(e) requires a party who has responded to discovery requests to supplement or correct its disclosures in a timely manner. Rule 37(c) notes that where a party fails to supplement as required by Rule 26(e), the party is not allowed to use that information at trial unless the failure was “substantially justified or is harmless.”

In this case, HCBOE asked King for all her “federal tax returns from 2011 through the present.” King supplied her tax returns from 2011 through 2013, which was the last year she had at the time she responded to the discovery request. On June 22, 2015, King filed her 2014 tax return. This showed total earnings from annuities and retirement benefits at $5,673.00, which was $43.00 more than she had earned in 2013, and $193.00 in wages, tips and salary, which was $605.00 less than she earned in 2013. For 2015, counsel for King advised the Court that she did not earn any wages and has not filed a 2015 tax return.

The Court is not persuaded that Bessemer would mandate the sanction HCBOE seeks. In Bessemer, the plaintiff sought lost profit in the amount of over $1.6 million dollars, but only provided a spreadsheet with its lost gross revenue. Bessemer was uncooperative in providing any cost information to permit the defendant to actually calculate lost profits. This evidence was crucial to the defense. The defendant's expert opined that he could not even offer an opinion on lost profits given the inadequacy of the information Bessemer provided. The district court found Bessemer violated Rule 26 and struck the evidence. In affirming the district court, the Sixth Circuit held that “[g]iven Bessemer's chronically inadequate disclosures and given their relevance to the lost-profits claim, the district court did not abuse its discretion in finding that Bessemer failed to satisfy Rule 26.” Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 368 (6th Cir. 2010).

*4 In this case, we have no such obstinate behavior. To be sure, King failed to timely supplement her discovery response with her 2014 tax return. But her failure to do so in this instance is harmless based on the insignificance of the differences in the amount of her income for 2014 as compared to the year prior. For 2015, she did not file a return because she lacked sufficient earnings. She cannot be compelled to produce something that does not exist. The Court finds Bessemer distinguishable in that it dealt with much more egregious behavior than is presented here. Accordingly, HCBOE motion in limine [Doc. 79] is DENIED.[2]

HCBOE has filed objections to King's deposition designations. King designated all of the depositions, both discovery depositions and ones taken for proof. At the hearing, King clarified his position that the only depositions he intends to use are the ones the parties took for proof, that is Dr. Michael Tan and Dr. Russell Huntsinger and perhaps Ms. Cindy Boyd, given she is located over 100 miles away from the courthouse. At the hearing, King explained that she designated the entirety of the depositions not taken for proof for the purposes of being able to use the depositions to refresh a witness' memory.

King need not designate portions of depositions if her only intended use is to refresh a witness's recollection at trial. Fed.R.Civ.P. 32(a)(2) provides that “[a]ny party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.” For those depositions, designations are not necessary and HCBOE's objections are MOOT given King's intended use of those depositions.

That leaves Dr. Tan's and Dr. Huntsinger's depositions. HCBOE has objected to King introducing Dr. Tan's discovery deposition, noting that it has no objection Dr. Tan's deposition for proof [Doc. 80, pg. 4]. The parties agreed that Dr. Tan's discovery deposition would be taken prior to his deposition for proof. Certainly, King could have used Dr. Tan's answers in his discovery deposition during his questioning of him in his deposition for proof. But she cannot simply introduce the discovery deposition in addition to the deposition for proof. The Court finds that Dr. Tan's discovery deposition should be excluded. For the same reason, Dr. Huntsinger's discovery deposition should be excluded. HCBOE's motion is GRANTED.

HCBOE has filed a motion in limine to exclude the admission of King's x-ray images of her spine/back taken at Lakeway Regional Hospital, claiming that it violates Fed.R.Evid. 802, which excludes hearsay evidence. HCBOE argues that Dr. Tan is the only expert identified by King, who treated her back, and they have already taken his deposition for proof. At that deposition, King did not introduce the x-ray images. HCBOE claims that to introduce the x-ray without going through Dr. Tan, who ordered it and testified about the x-ray report, would be unfair. Moreover, HCBOE claims that it is not clear that, even if the x-ray was authenticated, that Dr. Tan actually reviewed it.

King claims that Dr. Tan ordered the x-ray and, at his deposition, did not have a copy of the image itself. He did have a copy of the x-ray report interpreting the x-ray image. Dr. Tan testified about King's severe levoscoliosis based on his review of the x-ray report and opined that her condition was quite severe. King argues that the x-ray should be admitted for a number of different reasons. First, an x-ray is not a statement, it is a picture, and therefore, King argues, it is not hearsay. Second, King says the x-ray is admissible because it is a record of a regularly conducted business activity pursuant to Fed.R.Evid. 803(6). Rule 803(6) requires the testimony of the custodian or another qualified witness to authenticate the record. Third, King says the x-ray is admissible under Rule 803(4) which provides that “[a] statement that ... is made for—and is reasonably pertinent to—medical diagnosis or treatment; and ... describes medical history; past or present symptoms or sensations; their inception; or their general cause.”

*5 The issue is whether King can use the custodian of the x-ray to introduce the image itself. X-rays, like other exhibits, before they may be admitted into evidence, must be verified and authenticated, that is, the accuracy and correctness of the x-rays need to be proven by laying a proper foundation. See Fed.R.Evid. 901(“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is”).[3]

The Court finds that the x-ray should be excluded for two reasons. First, an x-ray is not like a photograph from which a lay person could testify about the accuracy of what it represents. Experts are necessary to properly interpret x-rays. Showing the jury an x-ray of King's back without an expert to explain exactly what the jury is seeing fails to satisfy Rule 901's authentication requirements. It is true Dr. Tan spoke of King's back condition, but that is not the same as explaining what the actual x-ray depicts. Second, King did not introduce the x-ray through Dr. Tan. If he had, HCBOE could have cross-examined him about his testimony regarding the x-ray and what it showed. Instead, King only had Dr. Tan address the x-ray report and not the x-ray. It would now be unfair for King to introduce the x-ray and claim that it supports Dr. Tan's testimony without HCBOE being able to cross-examine Dr. Tan. Accordingly, HCBOE's motion in limine [Doc. 81] is GRANTED.

HCBOE has filed a motion in limine to prohibit the introduction of King's medical provider notes designated as Exhibits 17, 18 and 19. [Doc. 82]. It claims that such notes are hearsay, that King could not authenticate them, and that any testimony regarding their contents would constitute expert testimony.

King has attached the actual Exhibits as [Doc. 95-1]. The first is a note from Jody Fletcher, PMHNP-BC (the designation for a Board Certified Nurse Practitioner) from Cherokee Health System that King “is currently under my medical care and may not return to work at this time. Please excuse EVELYN from 1 week(s) beginning 9/24/2012. She may return to work on 10/12/2012. Activity is restricted as follows: light duty....” [Doc. 95-1, pg 1]. The second is a note from Cherokee Health Systems requesting that King be excused form work from September 17, 2012 through September 24, 2012. The final exhibit is a note from Healthstar Physicians, P.C. indicating that King has been under “my care from 8/22/12 to 8/23/12 and is able to return to ... work [on] 8/24/2012.” It is signed by “C Murrell, LPN.”

In response, King insists that she is not offering the documents for the truth of the matter asserted, but to explain the impact they had on her as the reader. In other words, she missed work because she was just following doctor's orders, not because she did not want to work. King also claims that these notes are admissible under Fed.R.Evid. 803(4)(b) that excludes from the definition of hearsay statements that “describes medical history, past or present symptoms or sensations; their inception; or their general cause.[4]” Regarding authentication, King argues that King can authenticate those documents as they were provided to her directly by her medical provider.

*6 The Court finds these “doctor notes” are simply being offered to show why King believed she needed to be off of work for the dates in question. She is not offering any of these notes for the truth of the matter asserted. She can testify as to their authenticity as she received them from her medical provider. These notes are relevant to explain the reason for King's absence. Indeed, later HCBOE actually required King to bring in a doctor's excuse for any absences. Accordingly, HCBOE's motion in limine is DENIED.

HCBOE files this motion in limine to prohibit King from calling witness Michele Faucett, who was an HCBOE employee [Doc. 83]. It claims that it asked for any text messages between King and any employee of HCBOE. King said she had none. However, at Faucett's deposition, Faucett stated that she texted King “regularly.” HCBOE cries foul and asks the Court to exclude Faucett as a witness as a sanction pursuant to Fed.R.Civ.P. 37(c) for a failing to supplement her discovery responses and Rule 37(e) for failing to preserve electronically stored information.

In response, on April 7, 2016, King's counsel advised HCBOE that King had “communicated with Ms. Faucett by text message in the past, but she has no specific recollection of deleting messages from Ms. Faucett or anyone else” [Doc. 83, pg. 2]. On April 12, 2016, King produced a string of text messages between herself and Faucett from March 2016. Those texts related to the scheduling of Faucett's deposition and were not substantive.

King further claims that HCBOE's discovery requests did not ask her to produce the texts between herself and Faucett, just to summarize them. The actual discovery requests are as follows:

The first issue is whether King has failed to comply with its duty to respond to discovery requests. Request four (4) deals with text messages that “in any way concern the incidents alleged in the Complaint.” Request five (5) deals with any communication “concerning your separation from employment with” HCBOE including communication with current of former employees. Request 16's scope is similarly limited to text messages that pertain to “employment, finances, Hamblen Schools, current Hamblen schools employees, former Hamblen schools employees, this litigation and/or the disorders alleged in the Complaint.” These requests do not ask for all of King's texts, but only those that fall within its limiting terms. HCBOE has not demonstrated the existence of any of those texts that were not provided.

*7 Interrogatory 18, however, does request “narrative summaries of any communication between you and any former or current Hamblen Schools employee since your departure.” King's text messages to Faucett would fall under the scope of this discovery request. King objected to this discovery request as overly broad, and no motion to compel was filed. Subject to that objection, King stated that she “recently spoke with Ms. Faucett regarding the circumstances of her reassignment to the Special Education homeroom.”

To further buttress her claim that her failure to supplement or disclose regarding interrogatory 18 has not prejudiced HCBOE at all, King has attached the affidavit of Faucett. Faucett, the one HCBOE claims King texted and failed to disclose, swears in her affidavit that while she has “occasionally communicated with Evelyn King via text message over the past 2 years, these discussions were personal in nature, and did not relate to either: Ms. King's prior employment with [HCBOE]; the employees of HCBOE; or Ms. King's finances” [Doc. 93-1]. She goes on to claim that the only communication in which she discussed the lawsuit “was the occasion of when there was some confusion as to whether or not my deposition was going to take place as scheduled.” Id. HCBOE presents nothing to contradict this. This Court finds that no Rule 37 sanction is appropriate under these circumstances.

Moreover, the Court does not find that King spoliated any evidence. To show spoliation, a party must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. See Adkins v. Wolever, 692 F.3d 499, 503-04 (6th Cir. 2012). As an initial matter, HCBOE points to no text messages that King deleted that she had an obligation to preserve. It presented no evidence that King and Faucett texted about the facts of this lawsuit. To the contrary, Faucett claims that none of the texts between them related to the lawsuit except for one that only pertained to scheduling a deposition. Further, there is simply no allegation that King destroyed text messages that would have been relevant to HCBOE's defense “such that a reasonable trier of fact could find that it would support that ... defense.” Id. Thus, to sanction King for this conduct would not be appropriate under these circumstances. Accordingly, HCBOE's motion in limine [Doc. 83] is DENIED.

King has filed a motion in limine [Doc. 85] to prevent certain testimony of HCBOE's witnesses, namely Dr. Kimberly Dyke, Ms. Cynthia Boyd, Ms. Lisa Cloud, and Ms. Stephanie Menees, and the presentation of the affidavit of Cynthia Boyd from being presented to the jury.

Dr. Dyke claims that she reassigned King from the office to the classroom for a non-discriminatory reason. She claims that King did not have the necessary clerical skills to work in the main office at Alpha, a conclusion she came to based on her conversations with Lisa Cloud, Monica Rucker and Brenda Lee.

King argues that what Dr. Dyke heard from these other employees is hearsay and should be excluded. HCBOE explains that these statements are not being offered for the truth of the matter asserted. Rather, they are being offered to explain Dr. Dyke's reasoning behind her reassigning King to the regular classroom.

*8 “ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Hearsay is not admissible unless a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court provide otherwise. Fed.R.Evid. 802. “A statement that is not offered to prove the truth of the matter asserted but to show its effect on the listener is not hearsay.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009).

HCBOE claims that these statements are the reasons why Dr. Dyke reassigned King. They address Dr. Dyke's motive in the reassignment and are not offered for the truth. The Court agrees. They are not offered to prove that King was not a good worker in the office, but address the reasons for the reassignment. Therefore, these statements are not hearsay and are admissible.

Ms. Cynthia Boyd testified in her deposition that King had a poor attitude, used rude and harsh language to children when they came to the office, would raise her voice to them, that Dr. Price [the principal prior to Dr. Dyke] thought that King spent too much time “doing e-mails” [Doc. 85-2, pg. 5]. Ms. Boyd testified, however, that she has never spoken with Dr. Dyke and never met her. [Docs. 85-2, 85-3].

Ms. Stephanie Menees testified about hearing about complaints of King's interaction with a child at the cafeteria. [Doc. 85-4, pg. 5-6]. She “heard things from parents” that King was heavy-handed in how she disciplined children in the cafeteria. [Doc. 85-4, pg. 8]. Menees did not disclose that information to Dr. Dyke. [Doc. 85-4, pg. 8-9]. Menees also testified that she was aware of a complaint that involved King expecting a child to finish their lunch when they did not want to and the child's parent complained to the school office. [Doc. 85-4, pg. 9]. This, however, was while Dr. Price was principal, and this complaint was never relayed to Dr. Dyke. [Doc. 85-4, pg. 9]. Regarding King's involvement in the CDC room, Menees testified that she was aware of King refusing to assist in changing a child's soiled diaper. [Doc. 85-4, pg. 11].

Ms. Lisa Cloud recalled their being parental complaints about King being rude to them on the phone, that on one occasion King made a child eat all of his lunch. [Doc. 85-5, pg. 8]. Like Menees, Cloud did not advised Dr. Dyke about any of these complaints. [Doc. 85-5, pg. 8]. She noted that King complained about her job more than most teacher's assistants, but Cloud did not advise Dr. Dyke about these complaints. [Doc. 85-5, pg. 9].

HCBOE claims that the “[t]estimony by the Plaintiff's co-workers is crucial to understand the Plaintiff's overall attitude, work ethic, and performance.” Regarding Menees' and Cloud's testimony, HCBOE claims that “having the testimony of co-workers [who] witnessed the Plaintiff's daily work life and circumstances that eventually led to her being reassigned” is key to its case. It claims that testimony regarding King not wanting to help change diapers goes to its defense that King wanted a new assignment because she thought the special education job was beneath her, not because of any physical limitations.

The Court is skeptical about the admissibility of most of this evidence. There is no doubt that testimony about King's attitude in the workplace is relevant. But many of these incidents noted by these witnesses are isolated parental complaints about King's behavior toward children that occurred prior to Dr. Dyke's employment as the school principal. Those incidents do not suggest King did not like her job or did not want to work there. It is not unusual for parents to complain about how things are being handled at the school or how a teacher is disciplining a student. That does not mean that the teacher performs poorly, or for that matter, does not like her job.

*9 That said, testimony about King's job performance in the CDC room is certainly relevant and admissible. For example, Menees' claims that King refused to help change soiled diapers when she was assigned to the CDC room is relevant to HCBOE's claimed defense that King's real motive in wanting out of the CDC room was not health related but based on a desire not to perform the duties attendant to the job itself. The same is true of Cloud's testimony that King complained about her job as a teaching assistant. But the balance of the testimony the Court finds unlikely to be admissible. However, it cannot exclude the evidence without HCBOE attempting to lay a foundation for its admissibility at trial. Therefore, the Court finds that the prudent path is to defer the ruling on this motion for the District Court to address at trial.

Accordingly, King's motion in limine [Doc. 85] is DEFERRED.

King moves the Court to strike certain portions of the testimony of Dr. Huntsinger, King's treating cardiologist. Specifically, she asks to strike Dr. Huntsinger's testimony that he noted no work restrictions for King in 2010-2012. King claims that Dr. Huntsinger nor King's prior cardiac physicians were asked to evaluate King's work abilities or to even address whether work restrictions were appropriate. Thus, she argues his testimony should be stricken.

HCBOE notes that this deposition was for proof and King's counsel did not object to this testimony. It argues that King has waived any objections it has to Dr. Huntsinger's opinion in this regard. Second, HCBOE argues that this testimony simply clarified the scope of Dr. Huntsinger's care, not ask his opinion about King's work restrictions. Indeed, Dr. Huntsinger only testified that he did not observe any work restrictions in the medical records.

Fed.R.Civ.P. 32(d) addresses the waiver of objections relating to the use of depositions in court proceedings. It provides that “[a]n objection to a deponent's competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.” In this case, the objection to Dr. Hunsinger's testimony was not waived.

The Court finds that Dr. Huntsinger's was asked if there were any work restrictions in the chart. He observed none. He was subject to cross-examination. The testimony is proper, and King's motion in limine in this regard is DENIED.

The second aspect of King's motion is to exclude Dr. Huntsinger's testimony about the need for a future ablation procedure. He indicated that he had no way to predict whether King would need this procedure. However, he noted that “certainly, with her history, that's usually where we end up going.” [Doc. 86, pg. 3]. No objection was made at the deposition for proof. HCBOE claims that evidence that shows that her heart condition is not cured is “crucial to ... showing that Plaintiff is not due back or front pay beyond 2014.” [Doc. 88, pg. 4].

Dr. Huntsinger testified that he offered his opinions within a reasonable degree of medical certainty. [Doc. 88-2, pg. 11]. He is also clear that he cannot predict with absolute certainty whether King will need a future cardiac ablation procedure, but that is not the standard. The Court finds that this aspect of Dr. Huntsinger's testimony is proper, and King's motion in limine [Doc. 86] in this regard is DENIED.

SO ORDERED.

The CDC assignment is King's assignment to the special-needs classroom.

HCBOE noted that the Court could grant an off-set as a sanction for failure to timely disclose the 2014 tax return assuming that the jury awards damages. The undersigned declines the invitation, but notes it for the benefit of the District Court.

Fed.R.Evid. 901(b) provides a list of examples “of evidence that satisfies that requirement” and includes in (b)(9) “[e]vidence describing a process or system and showing that it produces an accurate result.” The Advisory Committee Notes to this Rule provide that “[e]xample (9) is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. X rays afford a familiar instance.” In fact, “x-rays and other forms of medical imaging usually must be authenticated under Rule 901(b)(9) since no person can directly perceive what these devices purport to depict.” Wright & Gold, Federal Practice and Procedure: Evidence, § 7114 (2000).

Contrary to King's contentions, they are not admissible under Rule 803(4)(b). The rule states in relevant part: