R.m.r., by His Natural Parent and Next Friend, P.a.l.,plaintiff-appellant, v. Muscogee County School District; Herman Larry Carr,defendants-appellees, 165 F.3d 812 (11th Cir. 1999)

Thirteen-year-old R.M.R. was sexually molested at school by his music teacher. R.M.R. then brought this suit against the Muscogee County School District ("Muscogee"), alleging that Muscogee was vicariously liable for this abuse under Title IX of the Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as amended at 20 U.S.C. § 1681 (1994)) ("Title IX") and under 42 U.S.C. § 1983.¹  The jury returned a verdict in favor of Muscogee. Robbie and his mother appeal, claiming that the district court erred by: (1) denying their motion to compel discovery of certain student records before trial, (2) barring certain testimony of other witnesses at trial, and (3) improperly excluding a last-minute witness who was not listed in the pretrial order. We affirm the district court's judgment for the reasons set forth below.

In 1993, R.M.R. was a student at Richards Middle School, where he attended a boys chorus class taught by Herman Larry Carr. Carr had been teaching at the school since 1982, and he was both well-respected by other teachers and well-liked by the students. Carr and R.M.R. shared a particularly strong rapport; Carr had shown special interest in R.M.R.'s music instruction, and R.M.R. thought of Carr as his "idol." Consequently, when Carr asked R.M.R. to come to school on a student vacation day, March 12, 1993, to assist with some work, R.M.R. readily agreed.

While the two were alone in Carr's office on March 12, Carr molested R.M.R.; he pulled R.M.R. down onto his knee and held R.M.R. against his chest. Carr then touched R.M.R.'s groin with his hand, and moved R.M.R.'s hand onto Carr's own groin. Moments later there was a noise in the adjoining room, and Carr threw R.M.R. off his lap.

R.M.R. did not immediately tell anyone about the incident. Around Friday, April 23, however, he told both his girlfriend and Mrs. Becker, the mother of another friend, about the attack.²  Then on Monday, April 26, accompanied by his girlfriend, R.M.R. explained to the school counselor what Carr had done. The school counselor immediately reported the incident to the principal, William Arrington. The next morning, Arrington confronted Carr with R.M.R.'s claim and when Carr did not deny the charges, Arrington suspended him from teaching classes. Later that same day, Carr directly admitted to the Muscogee superintendent that he had molested R.M.R. The superintendent gave Carr the option of resigning or facing termination, and on May 4 Carr tendered his resignation.

Meanwhile, the word had spread around the school that R.M.R. was responsible for Carr's suspension. Some students speculated about what had happened, and frequently told R.M.R. that they believed he was lying. Arrington did not inform the students or their parents that Carr had confessed to the attack.

Carr was arrested for child molestation on May 19. The arrest, including the fact that R.M.R. was Carr's accuser, received considerable media attention. On May 20, R.M.R. left the school, and on May 29, he and his mother moved from Georgia to Alabama.

Appellants filed this suit on July 17, 1994. The complaint alleged that Carr's sexual harassment interfered with R.M.R.'s school activities and was sufficiently severe and pervasive to constitute a hostile school environment in violation of Title IX.³  The complaint asserted that Muscogee was liable under Title IX because it knew or should have known that Carr had molested boys in the past, and therefore constituted a danger to the children entrusted to his care.⁴  Despite knowledge of Carr's proclivity to molest boys, the complaint asserted, Muscogee failed to take action to protect R.M.R.

The complaint also alleged that Carr's sexual contact violated R.M.R.'s "constitutional right to be free from intrusion into his body and the right to be free from the infliction of unnecessary pain." Because Carr engaged in this sexual contact while acting under color of state law, Muscogee was liable under 42 U.S.C. § 1983.⁵ 

In defense to appellants' claims, Muscogee responded that it did not know, and could not reasonably have known, that Carr posed a danger to children. Consequently, it was not liable for Carr's misconduct.

In order to prove that Muscogee had prior knowledge of Carr's propensity to molest children, appellants decided to contact each of Carr's former students and ask whether Carr had molested them. To accomplish this goal, appellants served on Muscogee a set of discovery requests, including the following interrogatories:

2. Identify by title each document, including, but not limited to, class rolls, which lists the names of students who were enrolled in each class [taught by Carr]. State the location of each such document, each form in which it exists (i.e., paper record, computer file, etc.), and the name of its custodian.

3. Identify by title each document, including, but not limited to, student directories, containing "directory information" such as name, address, and/or phone number, which lists the names of students who were enrolled in each class [taught by Carr]. State the location of each such document, each form in which it exists (i.e., paper record, computer file, etc.), and the name of its custodian.

Appellants also served on Muscogee a request to produce all documents identified in response to these two interrogatories.

Muscogee responded to Interrogatory 2 and the corresponding request for document production by identifying and producing grade books that listed the name of each student taught by Carr. In response to Interrogatory 3 and its corresponding document request, however, Muscogee objected that the discovery request was "overly broad, burdensome, and is not reasonably calculated to lead to the discovery of admissible evidence." Subject to that objection, Muscogee identified rolodex cards for each student taught by Carr between 1988 and 1993. Muscogee refused, however, to produce the rolodex cards.⁶  Appellants moved the district court to compel production of the cards but the court denied the motion, concluding that the discovery request was "overly broad."

The case went to trial before a jury on September 23, 1996. On the second day of trial, in the absence of the jury, appellants proffered the testimony of several students and parents that they had publicly supported Carr after he resigned, and that they had believed that R.M.R. was lying about the molestation. Appellants argued that this testimony bolstered their claim that Muscogee's failure to announce that Carr had admitted to the molestation "poisoned [the] community atmosphere" against R.M.R. because it "allowed this belief to fester in the community that Mr. Carr was innocent...." According to appellants, this poisoned community atmosphere was one element of the hostile school environment that was caused by Carr's abuse and that drove R.M.R. out of Richards Middle School and eventually out of Georgia. The district court excluded appellants' proffer as irrelevant.

On the third day of trial, after appellants had rested their case and Muscogee had presented most of its defense--four of its six witnesses (including Arrington)--appellants moved the court for leave to reopen their case in order to call a witness whom they had not listed in the pretrial order. This witness, D.L.J., had appeared at the courthouse that morning, after hearing about the case in the media. D.L.J. had been a student in Carr's class in 1984, and, according to D.L.J., had been molested by Carr approximately fifty times. D.L.J. claimed that he repeatedly told Arrington about this sexual abuse.

Muscogee opposed appellants' motion, arguing that allowing D.L.J. to testify without first giving it an opportunity to depose him and conduct whatever investigation might be required to rebut his testimony would be highly prejudicial. The district court agreed, and therefore denied appellants' motion.

After Muscogee rested its case, appellants attempted to call D.L.J. to the stand to rebut Arrington's testimony. Arrington had testified (during Muscogee's case) that he " [a]bsolutely [did] not" have prior notice that "Carr had previously engaged in any behavior similar to what R.M.R. was saying was done...." Muscogee objected, reiterating the argument it made in opposition to appellants' motion for leave to reopen their case. The court sustained their objection.

Appellants presented no rebuttal, and the evidence was closed. Following counsels' summations and the court's instructions, the jury returned a verdict for Muscogee.

Appellants raise three claims on appeal. First, appellants contend that the district court abused its discretion by denying their motion to compel production of the student rolodex cards. According to appellants, identifying other victims was crucial in order to prove that Muscogee had prior notice of Carr's propensity to molest children. Second, appellants contend that the court improperly barred students and parents from testifying that they had believed R.M.R. was lying. Appellants argue that this testimony was relevant to show that Carr's abuse created a hostile school environment. Third, appellants contend that the court abused its discretion when it barred D.L.J. from testifying. According to appellants, the court should have allowed D.L.J. to testify because his testimony was particularly important, and because appellants could not have discovered his identity before he arrived at the courthouse.

Appellants first challenge the court's denial of their motion to compel production of the student rolodex cards. Appellants had requested that Muscogee produce student directories and other documents containing the addresses and phone numbers of Carr's former students.⁷  Although Muscogee had identified student rolodex cards in response to this document request, the court upheld Muscogee's objection to this request as being overly broad. We review a court's refusal to compel discovery under an abuse of discretion standard. See Borden, Inc. v. Florida E. Coast Ry. Co., 772 F.2d 750, 756-57 (11th Cir. 1985). We find no such abuse here.

Appellants argue that they were required to prove that Muscogee knew or should have known that Carr posed a danger to his students in order for their claim against Muscogee to succeed. Consequently, it was vital for appellants to find other students who were molested by Carr and ask whether they had reported Carr's sexual abuse to Muscogee officials. Because student directories that listed the address and phone number of former students would have helped appellants find these potential witnesses, appellants contend that the document request for student directories was reasonably calculated to lead to admissible evidence.

Furthermore, appellants assert that they needed student directories (such as the rolodex cards) to find Carr's former students. Although Muscogee produced grade books that included the names of Carr's students, appellants argue that they could not locate most of Carr's former students using these grade books alone. The grade books listed students by the names that they used when they attended Richards Middle School. Many of those students, however, used different names by the time the case went to trial.⁸  Consequently, appellants argue, they successfully contacted only ten percent of Carr's former students based on the names listed in the grade books.

We conclude, however, that the district court did not abuse its discretion by refusing to compel production of the student rolodex cards, because the requested discovery was overly broad. Appellants' purpose in requesting this discovery was to learn the identity of students who had complained to Muscogee that Carr sexually abused them. Although appellants requested the addresses and phone numbers of hundreds of students in order to gain this information, there was a much narrower and less burdensome manner of discovery available: appellants could have asked, by interrogatory, for the names (as well as the addresses and phone numbers) of all students who complained that Carr sexually abused them. Only if Muscogee balked at this request would appellants have been justified in requesting student directory information for all of Carr's former students. See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir. 1990) (concluding that district court did not abuse discretion by denying appellants' request for all of defendant's confidential personnel files, because "focused discovery could have been employed" in order to discover the relevant information).

Furthermore, we note that appellants never informed the district court that they were able to locate only ten percent of Carr's former students using the grade books. In their motion to compel discovery of the rolodex cards, appellants argued that the rolodex cards were discoverable because they would lead to admissible evidence, but they did not argue that the cards were necessary to find that evidence. We cannot assume that the district court would have turned a deaf ear to that argument, had appellants presented it to the court. Consequently, we affirm the district court's denial of appellants' motion to compel discovery of the student rolodex cards.

Second, appellants claim that the district court abused its discretion by excluding as irrelevant the proffered testimony of students and parents who had publicly supported Carr after he resigned.⁹  These students and parents had written letters to law enforcement agencies, the grand jury (while considering whether to indict Carr for child molestation), and prosecutors, among others, stating that they believed R.M.R. was lying about the molestation. Although the students and parents had written these letters after R.M.R. left Richards Middle School, this testimony was relevant, appellants argue, because their opinion of Carr's guilt was "telling of the attitude which existed while R.M.R. was there that forced R.M.R. to leave school." The proffered testimony therefore supported the claim that Muscogee's failure to announce that Carr had confessed "poisoned [the] community atmosphere" against R.M.R. According to appellants, this atmosphere was part of the hostile environment that was caused by Carr's abuse.

We find no merit in appellants' assertion that exclusion of this testimony constituted such an abuse. We assume arguendo that Muscogee could be held liable for creating a hostile environment based on the abusive comments of students and parents that were actually conveyed to R.M.R. while he attended Richards. Appellants, however, did not contend that these students and parents conveyed their opinions to R.M.R., or that they voiced their opinions before he left Richards. Rather, whatever they had to say in letters to the grand jury, prosecutors, or law enforcement officers was said after R.M.R. left the school. Their comments, therefore, could not have created a hostile school environment. Consequently, the proffered opinions of parents and students were wholly irrelevant, and were rightly excluded by the district court.¹⁰ IV.

Third, appellants claim that the district court improperly barred D.L.J. from testifying. A district court's decision to exclude a witness not listed on the pretrial order is reviewable only for abuse of discretion. See Fabrica Italiana Lavorazione Materie Organiche S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th Cir. 1982). We have previously stated that an appellate court that is reviewing the decision to exclude a witness should consider: (1) the importance of the testimony, (2) the reason for the failure to disclose the witness earlier, and (3) the prejudice to the opposing party if the witness had been allowed to testify. See id.

Appellants assert that the court should have allowed D.L.J. to testify because his testimony was of crucial importance. If D.L.J. was allowed to testify, he would have stated that Carr molested him approximately fifty times, and that he repeatedly told Arrington about the abuse. Consequently, D.L.J.'s testimony would have refuted Muscogee's assertion that its officials did not have prior notice of Carr's propensity to molest children. Appellants argue that the importance of D.L.J.'s testimony outweighed any prejudice that would have resulted to Muscogee because D.L.J. was not listed on the pretrial order.

Furthermore, appellants contend that D.L.J. should not have been excluded because appellants had a good excuse for failing to discover his identity before he appeared on the third day of trial: at the time of trial, D.L.J. went by a different name from that which he used as a student at Richards Middle School. Although D.L.J. used his middle name while attending Richards, at the time of the trial he instead was using his first name. Consequently, appellants failed to locate D.L.J. from the grade books produced by Muscogee.¹¹ 

We conclude, however, that the court did not abuse its discretion in excluding D.L.J.'s testimony. It would have been extremely prejudicial to Muscogee to allow D.L.J. to testify. If Muscogee had received notice before the trial that Jordan would testify, Muscogee could have structured its defense to counter what D.L.J. had to say. By the time D.L.J. was discovered, however, Muscogee had already presented most of its defense to the jury. Had D.L.J. been allowed to testify in the middle of Muscogee's presentation of its case, it would have disrupted the flow of Muscogee's defense, and forced Muscogee to scramble at the last minute to counter his testimony.

Appellants had several options available that would have minimized the prejudice to Muscogee. First, after appellants discovered D.L.J. they could have requested that the court grant a continuance. This option would have allowed Muscogee the opportunity to depose D.L.J., investigate D.L.J.'s story, prepare cross-examination, and find witnesses to rebut his testimony. A continuance, in short, would have provided Muscogee the opportunity to counter D.L.J.'s testimony in some meaningful way. Second, appellants could have requested a mistrial. This option would have allowed both parties to investigate D.L.J.'s claims and reargue their case from the beginning, taking D.L.J.'s testimony into account.

Appellants, however, eschewed both of these less prejudicial alternatives. Instead, they presented the judge with a narrow choice: allow D.L.J. to testify immediately--and thus deny Muscogee the opportunity to depose him and prepare cross-examination--or exclude his testimony entirely.^12 12 In light of the extreme prejudice to Muscogee if D.L.J. were allowed to testify, as well as appellants' failure to move for a continuance or request a mistrial in an effort to ameliorate the prejudice to Muscogee, we conclude that the district court did not abuse its discretion in barring D.L.J.'s testimony.¹³ 

For the forgoing reasons, the district court's judgment is AFFIRMED.