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Jung v. George Washington University

May 26, 2005; as amended September 14, 2005

KWANGHO JUNG, APPELLANT,
v.
GEORGE WASHINGTON UNIVERSITY, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA3412-97). (Hon. Shelley F. Bowers, Motions Judge). (Hon. Gregory E. Mize, Trial Judge).

The opinion of the court was delivered by: Wagner, Chief Judge

Petition for rehearing denied September 14, 2005

Argued May 3, 2001

Before WAGNER, Chief Judge, and FARRELL, Associate Judge, and PRYOR, Senior Judge.

Appellant, Kwangho Jung, commenced this action against George Washington University (the University) alleging violations of the District of Columbia Human Rights Act (the Act)*fn1 and breach of a settlement agreement in connection with the University's termination of his candidacy for a Doctor of Philosophy Degree (Ph.D.). The trial court granted judgment as a matter of law on Jung's retaliation claim, and a jury returned a verdict in favor of the University on Jung's claim of discrimination under the Human Rights Act. On appeal, he argues that the trial court erred in granting judgment as a matter of law on the retaliation claim, in making certain evidentiary rulings, and in instructing the jury.*fn2 We affirm.

I. Factual Background

According to the evidence at trial, Jung, who was born in Korea, received his bachelor's degree in Political Science and his master's degree in International Relations from Kyungpook National University in Korea.*fn3 In the fall of 1991, Jung entered the University's Graduate School of Arts and Sciences and began a course of study leading to a Ph.D.*fn4 Jung majored in International Relations and minored in Comparative Politics.

Jeffrey Henig, Chair of the Political Science Department at the University, testified that the requirements for Jung to continue to the dissertation portion of the Ph.D. program included successful completion of course work and passing a comprehensive written and oral examination. Henig also testified that a candidate for the degree at the University is given two chances to pass the comprehensive examination, but a second failure results in termination from the program. Jung testified that he was aware of this policy. Jung fulfilled the prerequisites for taking the comprehensive examination, but he received a failing grade on the comprehensive exam in May 1994 and again in November 1994. Therefore, the University terminated him from its Ph.D. program.

Jung filed his first lawsuit against the University in 1995 alleging discrimination on the basis of race and national origin in violation of the District of Columbia Human Rights Act, breach of contract and wrongful termination of candidacy for the Ph.D. degree, breach of covenant of good faith and fair dealing, negligent misrepresentation and promissory estoppel. On December 18, 1995, the parties settled the case, and pursuant to the terms of their Settlement Agreement, Jung was reinstated into the Ph.D. program and allowed to take the comprehensive examination a third time. In September 1996, Jung took the comprehensive examination and again received a failing grade.

For Jung's third comprehensive examination, four University professors served on the evaluation committee: Dr. Maurice A. East, Dr. Martha G. Finnemore, Dr. Henry Nau and Dr. James M. Goldeiger (for the written portion only). Each of them testified at trial. Dr. East testified that there are no written or objective standards for guiding members of the executive committee in evaluating oral or written comprehensive examinations. He testified that based on grades in the classes and performance on oral and written comprehensive examinations, "we have to make an overall judgment, has this person shown the skills and analytic capabilities to write an acceptable dissertation." Dr. East also testified that the evaluation committee "look[s] for a cogent grasp of the field of knowledge, which includes the ability to relate different ideas; . . . the ability to analyze in a sophisticated manner; [and] the ability to discriminatingly compare and contrast various ideas and concepts, and to make arguments." In addition, Dr. East testified that the comprehensive examination covers a body of knowledge that is not identical to the courses, and therefore, the degree candidate is given a supplemental reading list and encouraged to work independently and in groups.

Dr. East also testified that the committee individually grades the written portion of the comprehensive examination and assesses the oral portion as a group and makes a judgment about the grade. He said that the grades for the comprehensive exam are pass, bare pass, minimum pass, or fail. Dr. East further testified that because of Jung's failure on the written portion of the examination, he thought it would take a "Herculean effort" by Jung in the oral examination to convince him that Jung was capable of continuing in the Ph.D. program. According to Dr. East, Jung's analysis was weak, and he did not demonstrate an ability to compare and contrast as clearly and cogently as expected. He further testified that Jung "was unable to take the analysis and answer the questions that were asked . . . by the members of the committee to our satisfaction."

In testimony, Dr. Finnemore explained that a student receives one grade for the comprehensive examination; that the written and oral portions are assessed together; and that high performance on one part can provide balance where the performance on the other part is weak. According to Dr. Finnemore, Jung's written essays on two of the four questions were incoherent, and he failed to show an understanding of the theories he was required to compare and analyze.

Dr. Goldeiger testified that he gave Jung a failing grade on the written examination because his answers to the first three of four questions were unsatisfactory, although the answer to the fourth was more thoughtful. Dr. Nau testified that Jung showed no ability to apply the relevant theories on the written examination, for which all committee members gave a failing grade. He testified that after the orals there was a clear sense that this was not a passing exam.

II. Exclusion of Expert Testimony

Jung argues that the trial court erred in refusing to allow him to present the testimony of expert witnesses, Dr. Bruce Vaughn and Dr. Sanghyun Yoon. These witnesses, he contends, would have testified that his performance on the examination was sufficient for a passing grade and that his performance on the comprehensive examination was superior to that of two Caucasian-Americans. Jung contends that the trial court's ruling was erroneous because: (1) it violated the law of the case doctrine, and (2) the evidence was otherwise admissible.

A. Law of the Case Doctrine Argument

Jung argues that the trial judge erred in making an evidentiary ruling excluding the evidence during trial because the pre-trial judge had made a contrary ruling in denying the University's motion in limine seeking to exclude this evidence. "'The law of the case doctrine prevents relitigation of the same issue in the same case by courts of coordinate jurisdiction.'" Johnson v. Capital City Mortgage Corp.,723 A.2d 852, 857 (D.C. 1999) (quoting Johnson v. Fairfax Vill. Condo., IV Unit Owners Ass'n, 641 A.2d 495, 503 (D.C. 1994)) (other citation omitted). Generally, the doctrine is applicable when: (1) the prior ruling has "sufficient finality"; and (2) the earlier ruling is not clearly erroneous considering any new facts or a change in substantive law. Id. (citing Fairfax Vill., 641 A.2d at 503) (quoting Kritsidimas v. Sheskin, 411 A.2d 370, 372 (D.C. 1980)).

The doctrine is not applicable here because the earlier in limine ruling was not of sufficient finality to invoke its application. "[R]ulings on motions in limine normally are considered provisional, in the sense that the trial court may revisit its pre[-]trial evidentiary rulings"in the context of the presentation of the evidence in the case. United States v. Marino, 200 F.3d 6, 11 (1st Cir. 1999) (citation omitted), cert. denied, 529 U.S. 1137 (2000). This court has observed that: "[L]ong ago, it was decided that interlocutory rulings do not settle the law of a case and are not conclusive or binding on the trial judge, who has the ultimate responsibility of deciding the case on the merits." Sowell v. Walker, 755 A.2d 438, 444 (D.C. 2000) (quoting District of Columbia v. Faison, 278 A.2d 688, 690 (D.C. 1971) (in turn quoting McNeill v. Jamison, 116 A.2d 160, 161 (D.C. 1955)). Although this court has not addressed squarely whether a pre-trial evidentiary in limine ruling is such an interlocutory ruling, other courts have so held. See, e.g., Malinovsky v. Court of Common Pleas, 7 F.3d 1263, 1266 n.2 (6th Cir. 1993) (noting that a motion in limine is an interlocutory order under Ohio law); State v. Cole, 71 S.W.3d 163, 175 (Mo. 2002) (ruling in limine is interlocutory, subject to change during trial and requiring attempt to present the evidence to preserve the issue for appeal), cert. denied, 537 U.S. 865 (2002); State v. Lamb, 365 S.E.2d 600, 608 (N.C. 1988) (ruling on motion in limine is interlocutory and subject to change "if circumstances develop which make it necessary"). We have observed that an interlocutory ruling, "by hypothesis is not final, and therefore subject to reconsideration prior to the entry of a final judgment." Williams v. Vel Rey Props., Inc., 699 A.2d 416, 419 (D.C. 1997) (citation omitted).

The determination of the relevance and admissibility of evidence depends on the context of the issues raised and evidence presented at trial. Therefore, application of law of the case principles to restrict the trial court's discretion to revisit pre-trial evidentiary rulings made without the benefit of relevant considerations appearing after further development of the record would be particularly inappropriate. Under the law of the case doctrine, the trial judge is not bound by earlier final rulings of another judge where new facts arise. In re Barlow, 634 A.2d 1246, 1248 n.3 (D.C. 1993) (citing United States v. Davis, 330 A.2d 751, 755 (D.C. 1975)). As we have observed:

[w]hile it is highly desirable that a judge show respect for prior rulings made by another judge in the same case, and should not lightly depart from them, the ultimate responsibility rests on the judge to whom the case is assigned for trial on the merits. If the trial judge is strongly convinced . . . that a preliminary or interlocutory ruling made by another judge was clearly erroneous, the trial judge is not bound to follow that ruling.

Id. (quoting Davis, 330 A.2d at 755 (in turn quoting Faison, supra, 278 A.2d at 690)). Application of the foregoing principles support the trial court's decision to revisit the issue of the qualifications of the experts to render an opinion on specific issues in the context of the trial.

In this case, the motions judge denied, without a requested hearing, the University's motion to exclude the testimony of Jung's experts, Dr. Bruce Vaughn and Dr. Sanghyun Yoon. Although the motions judge had available the depositions of the proffered experts at the time of its ruling, the University argued before the trial court that it had additional information and should have an opportunity to conduct a voir dire of the experts during the trial. Dr. Vaughn indicated that his resume required updating, although Jung's counsel suggested that the update was not significant. Jung's counsel conceded that she intended to have the witnesses testify about their expert qualifications in order for the jury to understand the basis for the opinions and to assess their credibility. The trial court was persuaded that it should not be foreclosed from considering this ...


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