Morrison V Buffalo Board Of Education

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

YAMILETTE WILLIAMS,
Plaintiff,
Case # 15-CV-255-FPG
v.
DECISION AND ORDER
BUFFALO BOARD OF EDUCATION, et al.,

Defendants.

FAITH ANDREA MORRISON,
Plaintiff,
Case # 15-CV-800-FPG
v.
DECISION AND ORDER
BUFFALO BOARD OF EDUCATION, et al.,

Defendants.

INTRODUCTION
In these related breach of contract actions, Plaintiffs Faith Andrea Morrison and Yamilette
Williams allege that they were terminated by the Buffalo City School District on the erroneous
ground that they did not maintain the proper certification for their positions.1 Plaintiffs sue the
Buffalo Board of Education, Buffalo Public Schools, the City School District of the City of
Buffalo, Pamela Brown (then the Superintendent for the District), Darren Brown (then the Talent
Management Director for the District), Sharon Belton-Cottman (a school board member), Mary
Guinn (then the deputy Superintendent), Florence Johnson (a school board member), Mary Ruth
Kapsiak (a school board member), John Licata (a school board member), Jason M. McCarthy (a
school board member), Barbara Seals Nevergold (a school board member), Carl Paladino (a school
board member), James M. Sampson (a school board member), and Theresa Harris-Tigg (a school

1 Because Plaintiffs and Defendants in both actions are represented by the same counsel, and the issues are
substantially the same, the Court addresses both matters in a single Decision & Order.
board member). A jury trial regarding these matters is scheduled to begin on July 28, 2025.
Defendants have filed five motions in limine, and Plaintiffs have requested that the Court take
judicial notice of an amicus brief submitted to this Court by the New York State Education
Department. The Court resolves the motions below.

LEGAL STANDARD
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S.
38, 40 n.2 (1984). The moving party bears the burden of establishing that the evidence is
inadmissible for any purpose and is therefore properly excluded on a motion in limine. Starmel v.
Tompkin, 634 F. Supp. 3d 41, 44 (N.D.N.Y. 2022). A court considering a motion in limine may
reserve decision until trial, “so that the motion is placed in the appropriate factual context.” Id.
(quoting Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011)). Further, the
court’s ruling on a motion in limine is preliminary, and “subject to change” as the case unfolds.
Luce, 469 U.S. at 41.

DISCUSSION
I. Defendants’ Motion to Preclude Plaintiffs’ Claims for Consequential Damages
Defendants move to preclude Plaintiffs’ claims for consequential damages. ECF No. 163-
12 at 6.2 They argue that New York law prevents Plaintiffs from seeking consequential damages
for various reasons, including that New York law prevents claims for consequential damages based
on hypothetical future income. Id. at 8. Under New York law, when a breach of contract occurs,
“a breaching party is liable for all direct and proximate damages which result from the breach.”
Tractebel Energy Marketing, Inc. v. AEP Power Marketing, Inc., 487 F.3d 89, 110 (2d Cir. 2007).

2 For ease of reference, and because the submissions in both actions are largely identical, the Court will cite the filings
in No. 15-CV-800.
However, the damages “must be not merely speculative, possible, and imaginary, but they must
be reasonably certain and such only as actually follow or may follow from the breach of the
contract.” Id. (emphasis in original). To recover consequential damages for “breach of contract
under New York law, a plaintiff must make three showings: [i] the damages were caused by the

breach; [ii] the damages are provable with reasonable certainty; and [iii] the damages were within
the contemplation of the parties at the time of contract.” Atias v. Sedrish, 133 F. App’x 759, 760
(2d Cir. 2005) (summary order). Further, “certainty” as to the amount of damages is an essential
element of consequential damages. Tractebel Energy Marketing, Inc., 487 F.3d at 110. Therefore,
“[i]n addition to proving that the existence of damages is reasonably certain . . . a party claiming
consequential damages must also prove the amount of damage with ‘reasonable certainty.’” Id. at
111 (quoting Kenford Co., Inc. v. Cty. of Erie, 493 N.E.2d 234, 234 (N.Y. 1986)).
Plaintiffs argue that they are seeking consequential damages based on loss of professional
reputation due to the breach of contract, which has led to Plaintiffs being unable to find work in
their desired fields. ECF No. 168 at 13. Plaintiffs also argue that they can prove that their inability

to find work in their desired fields has been caused by the breach and that these damages were
foreseeable at the time they entered into the contract at issue. Id. at 16–17. While the Court is
skeptical of Plaintiffs’ contentions that their inability to find employment in their desired field for
the past eleven years is the direct result of Defendants’ alleged breach of contract and that these
damages were foreseeable when the contract was entered into, it need not reach these issues
because Plaintiffs have not provided sufficient evidence of the amount of damages with reasonable
certainty.
Here, Plaintiffs have argued that but for Defendants’ termination of their employment, they
would have received the management level positions they desired, and they seek damages based
on the estimated salaries for these positions. See ECF No. 155 at 1. They have also claimed that
they would have become superintendents of schools somewhere by 2018 but for their termination
and seek damages based on the estimated salaries for those positions. Id. As explained above, to
be entitled to consequential damages, a plaintiff must prove the amount of damages with

reasonable certainty—that is, they must prove the amount of damages is not merely speculative,
possible, or imaginary. See Tractebel Energy Marketing, Inc., 487 F.3d at 110. Identifying an
amount of damages based on estimated salaries for hypothetical future jobs that Plaintiffs may
have obtained is insufficient to establish the amount of damages with reasonable certainty because
such an estimation is speculative, at best.3 See Schonfeld v. Hilliard, 218 F.3d 164, 172 (2d Cir.
2000) (holding that projections based upon “a multitude of assumptions” that require “speculation
and conjecture” and few known factors do not provide the requisite certainty as to the amount of
consequential damages). Consequently, Defendants’ motion to preclude consequential damages is
granted.
II. Defendants’ Motion to Preclude Expert Testimony

Defendants move to preclude testimony from Dr. Peter Loehr, Dr. Ronald Reiber, and
anyone from the New York State Education Department. ECF No. 163-12 at 9. As an initial matter,
the Court has precluded Plaintiffs’ claims for consequential damages, and therefore, Defendants’
motion is granted insofar as Plaintiffs are precluded from providing expert testimony related to the
calculation of consequential damages.
Additionally, as for Defendants’ motion to preclude testimony from anyone from the New
York State Education Department, Plaintiffs have not identified anyone from the New York State

3 The Court acknowledges that Plaintiffs have identified an expert and that their calculation of consequential damages
is based on his opinion and methodology. See ECF No. 155. However, Plaintiffs’ reliance on an “expert” to identify
hypothetical jobs and to estimate salaries based on those positions does not make the calculation reasonably certain
because, as explained above, the basis for the estimation is speculative.
Education Department who will provide testimony at the trial. Therefore, Defendants’ motion to
preclude such testimony is denied without prejudice. To the extent Defendants seek to preclude
other evidence from the New York State Education Department, that issue is addressed in Section
III, infra. The Court now turns to Defendants’ other arguments as to Dr. Loehr and Dr. Reiber.

a. Defendants’ First Argument
First, Defendants argue that Dr. Loehr’s testimony should be precluded because the subject
matter of the case is not beyond the jury’s understanding and therefore, all expert testimony is
inadmissible.4 ECF No. 163-12 at 10. Plaintiffs respond that Dr. Loehr will offer testimony on
topics which are beyond the knowledge of the average juror such as “how an ‘internship certificate’
functions, what a ‘Transitional D’ certificate is, or how school districts typically supervise and
evaluate administrators under those credentials.” ECF No. 168 at 19.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It requires for
admissibility, among other things, that “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.”

Fed. R. Evid. 702(a). Put differently, “[e]xpert testimony must be helpful to the jury in
comprehending and deciding issues beyond the understanding of a layperson.” DiBella v. Hopkins,
403 F.3d 102, 121 (2d Cir. 2005). The Court agrees with Plaintiffs that the subject matter of the
case includes issues that may be beyond the understanding of the average juror. Therefore, the
Court rejects Defendants’ argument that the subject matter of the case only pertains to issues within
the average juror’s understanding.

4 Defendants also make this argument as to Dr. Reiber. However, it is unclear to what extent his opinion could be
offered as to any issue other than the calculation of consequential damages. As the Court has already precluded any
testimony as to such calculation, it will not address Plaintiffs’ arguments as to admissibility of Dr. Reiber’s testimony
related to the calculation of such damages, which are the only arguments they offer in response to Defendants’ subject
matter argument. To the extent Dr. Reiber’s opinion will be offered for any other reason, the Court reserves its decision
on that issue until trial.
b. Defendants’ Second Argument
Second, Defendants argue that Dr. Loehr and Dr. Reiber are not qualified to give expert
opinions in this case. ECF No. 163-12 at 12. As for Dr. Loehr, they argue that he has no past
experiences that qualify him to offer the opinions Plaintiffs seek to introduce into evidence and

that his experience mainly focuses on sexual abuse cases. Id. As for Dr. Reiber, Defendants argue
that he has no qualifications in education. Id. Defendants also argue that Dr. Loehr should not be
allowed to offer opinions about the meaning and history of the New York State Education
Department’s regulations and requirements, as he has demonstrated no qualifications to offer those
opinions. ECF No. 163-12 at 15. Additionally, Defendants argue that the parties to this action are
more qualified than Dr. Loehr to speak to their understanding and experience with the New York
State Education Department regulations and requirements. Id.
The Court rejects this argument on the basis that it is underdeveloped and lacks specificity.
Simply put, Defendants’ vague assertions about the experts’ qualifications are insufficient for the
Court to conclude that Dr. Loehr and Dr. Reiber are inherently unqualified to offer any opinions

relevant to this case. Defendants are free to raise these arguments again at trial or address them via
voir dire. Nevertheless, they should be prepared to specifically identify and discuss legal authority
in support of the specific opinion they seek to preclude. Further, they should be prepared to identify
specific deficiencies in the experts’ qualifications and explain why those deficiencies make them
unqualified to give the challenged testimony.
c. Defendants’ Third Argument
Third, Defendants argue that Dr. Loehr offers “no standards, no requirements, no scientific
knowledge or expertise, or explanation as to what he would offer.” ECF No. 163-12 at 13.
Specifically, Defendants argue that an expert basing his opinion solely on experience must do more
than conclusorily state that his experience led him to a particular opinion. Id. Here, Defendants
argue that Dr. Loehr has not given any basis for his opinions other than his prior experience. Id.
Plaintiffs respond that Dr. Loehr has provided two affidavits providing the basis of his knowledge,
education, and experience for his proposed testimony. ECF No. 168 at 24.

Again, the Court rejects this argument as underdeveloped. Defendants are correct that Dr.
Loehr must do more than state that his experience led him to a particular conclusion. However,
Defendants fail to point to any specific instance where Dr. Loehr conclusorily states that his
opinion is based on his experience and instead, rely on broad generalizations about his testimony.
Again, Defendants are free to raise this argument again at trial or address it via voir dire, but they
should be prepared to point to specific instances of Dr. Loehr not properly giving a basis for his
opinions.
d. Defendants’ Fourth Argument
Finally, Defendants argue that the substance of Dr. Loehr’s and Dr. Reiber’s testimony
renders their testimony inadmissible. Specifically, they argue that Dr. Loehr’s and Dr. Reiber’s

testimony will (1) include opinions that Defendants breached the employment agreements,
usurping the role of the jury; and (2) improperly offer testimony as to state of motivation, state of
mind, or future outcomes. ECF No. 163-12 at 12, 15. Defendants also argue that to the extent Dr.
Loehr’s testimony is offered for the purpose of constructing a factual narrative based upon record
evidence, that is inadmissible. Id. at 14.
Plaintiffs aver that Dr. Loehr and Dr. Reiber will not testify that Defendants breached the
employment agreements or offer impermissible testimony as to state of motivation, state of mind,
or future outcomes. ECF No. 168 at 23–25. Further, at this time, there is no indication that Dr.
Loehr’s testimony is offered solely for the purpose of constructing a factual narrative based upon
record evidence. As such, the admissibility of the testimony will depend on factors which are better
addressed at trial, and the Court reserves its decision until then.
III. Defendants’ Motion to Preclude Extrinsic Evidence from the New York State
Education Department

Defendants argue that Plaintiffs should be precluded from offering any “extrinsic
evidence” as to the New York State Education Department’s amicus brief, affidavits, or Appeal of
Coughlin. ECF No. 163-12 at 19. First, they argue that this evidence should be excluded because
these matters are not relevant to any material issue in the case. Id. Second, they argue that the
evidence is not offered in an admissible form because it is hearsay and/or undisclosed “expert”
testimony in inadmissible “lay” format. Id. at 23; ECF No. 169 at 10. Third, they argue that any
value the evidence offered would be outweighed by the prejudice to Defendants in terms of
potential juror confusion under Federal Rule of Evidence 403. ECF No. 163-12 at 23.
Plaintiffs first respond that the evidence is relevant because the contract language at issue
is ambiguous. ECF No. 168 at 27. Thus, they argue that the consideration of extrinsic evidence is
permissible and that the New York State Education Department’s amicus brief and decision in
Appeal of Coughlin are probative evidence of the meaning of the contract language at issue. Id.
Second, Plaintiffs argue that the amicus brief and Appeal of Coughlin are in admissible form.
Specifically, they argue that they (1) are not hearsay so long as they are not being used to prove
the truth of the matter asserted; (2) are admissible under Federal Rule of Evidence 803(8) as public

records; and (3) are admissible under Federal Rule of Evidence 803(24) given their highly
probative value and trustworthiness. Id. at 28–29. Alternatively, they argue that Plaintiffs could
elicit the substance of these materials through expert testimony. Id. at 29. Finally, Plaintiffs argue
that any potential prejudice identified by Defendants could be remedied by a limiting jury
instruction. Id. at 30.
Ultimately, the admissibility of evidence from the New York State Education Department
is going to depend on what it is offered for and how it is offered. Plaintiffs have identified various
ways in which they could offer it in an admissible form and for an admissible purpose. Further,
the Court agrees with Plaintiffs that depending on what the evidence is offered for and how it is

offered, any prejudice identified by Defendants could potentially be remedied by a jury instruction.
As such, the Court reserves its decision until trial when it can better assess the issue.
IV. Defendants’ Motion to Dismiss the Claims Against the Individual Defendants
Defendants argue that Plaintiffs have asserted a breach of contract claim against all named
Defendants, but that Plaintiffs’ employer was the school district, not the individual school board
members or district employees. ECF No. 163-12 at 24. Defendants argue that Plaintiffs have failed
to assert any legitimate basis for individual contractual liability as to Pamela Brown, Darren
Brown, Sharon Belton-Cottman, Mary Guinn, Florence Johnson, Mary Ruth Kapsiak, John Licata,
Jason M. McCarthy, Barbara Seals Nevergold, Carl Paladino, James M. Sampson, and Theresa
Harris-Tigg and therefore, no breach of contract claims lies against any of these Defendants. Id.

Plaintiffs agree to dismiss the claims against Sharon Belton-Cottman, Mary Guinn, Florence
Johnson, Mary Ruth Kapsiak, John Licata, Jason M. McCarthy, Barbara Seals Nevergold, Carl
Paladino, James M. Sampson, and Theresa Harris-Tigg. ECF No. 168 at 31. Consequently, those
Defendants are dismissed from this case.
As for Dr. Pamela Brown and Dr. Darren Brown, Plaintiffs state that they will consent to
the dismissal of the claims against them so long as the Defense stipulates and agrees to permit
Plaintiffs to call Dr. Pamela Brown and Dr. Darren Brown as witnesses. ECF No. 168 at 31.
Defendants responded that they “would be willing to discuss the Plaintiffs proposal should the
Court feel it appropriate or necessary.” ECF No. 169 at 11. Given the imminence of the trial in
these cases, the Court finds Plaintiffs’ position reasonable. Therefore, if Defendants agree to
Plaintiffs’ proposal or otherwise reach an agreement regarding the dismissal of Dr. Pamela Brown
and Dr. Darren Brown, the Court will dismiss Dr. Pamela Brown and Dr. Darren Brown as
Defendants. Otherwise, they will remain Defendants in these actions to ensure their presence at

trial.
V. Defendants’ Motion to Preclude Plaintiffs from Relitigating Previously Decided
Issues

Defendants move to preclude Plaintiffs from relitigating issues previously decided by the
Court’s Decisions and Orders. ECF No. 163-12 at 26. Plaintiffs respond that Defendants’ motion
is vague and fails to specify any issues that have been previously litigated. ECF No. 168 at 31. The
Court agrees with Plaintiffs. Absent any identification of specific issues that have been previously
decided, the Court cannot evaluate the merits of Defendants’ motion. As such, the Court denies
the motion without prejudice.
VI. Plaintiffs’ Request for the Court to Take Judicial Notice of Amicus Brief Submitted
by the New York State Education Department

Because the Court has reserved decision about the admissibility of the amicus brief
submitted by the New York State Education Department, it also reserves decision on Plaintiffs’
request for the Court to take judicial notice of the brief.
CONCLUSION
For the reasons above, the parties’ motions in limine and other requests are resolved as
stated herein. The Clerk of Court is directed to terminate Sharon Belton-Cottman,5 Mary Guinn,

5 Sharon Belton-Cottman is only named as a Defendant in 15-CV-255 and thus should only be terminated as a
Defendant in that action.
Florence Johnson, Mary Ruth Kapsiak, John Licata, Jason M. McCarthy, Barbara Seals Nevergold,
Carl Paladino, James M. Sampson, and Theresa Harris-Tigg as Defendants in these actions.
IT IS SO ORDERED.
Dated: July 22, 2025 Au.
Rochester, New York .
HQN/FRANK P. GE I, JR.
United States District Judge
Western District of New York