Cross

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

THE NORTHWESTERN MUTUAL LIFE

INSURANCE COMPANY,

Plaintiff,

v. Case No: 2:23-cv-851-JES-DNF

MARY RHUDE CROSS, as

guardian of A.C., a minor,

J.C., a minor, and L.C., a

minor; and ANY UNKNOWN

CHILDREN of Chaundre K.

Cross,

Defendants.

MARY RHUDE CROSS, as

guardian of A.C., a minor,

J.C., a minor, and L.C., a

minor,

Counter-Claimant,

v.

THE NORTHWESTERN MUTUAL LIFE

INSURANCE COMPANY,

Counter-Defendant.

FINAL PRETRIAL CONFERENCE ORDER

This case came before the Court on January 30, 2026, for a

final pretrial conference. The case will be governed by the

following:

(1) The operative pleadings in this case are the Complaint

(Doc. #1) in which The Northwestern Mutual Life Insurance

Company (“Northwestern Mutual”) seeks rescission of a

certain life insurance Policy on the life of Dr. Chaundre

K. Cross (“Dr. Cross”) based on misrepresentations by Dr.

Cross in his insurance application (Count I) and seeks a

declaratory judgment finding that Dr. Cross died by suicide

(Count II); 1 the Amended Answer, Affirmative Defenses,

Counterclaim and Renewed Demand For Jury Trial (Doc. #54)

in which Mary Rhude Cross (“Cross”) opposes the requested

relief in the Complaint, raises certain affirmative

defenses, and brings a Counterclaim against Northwestern

Mutual for breach of the insurance contract for denying the

claim for benefits under the Policy, repudiating obligations

under the Policy, and trying to rescind the Policy; and the

Answer and Affirmative Defenses to Counterclaim (Doc. #55)

in which Northwestern Mutual asserts the Policy was void ab

initio because of the misrepresentations by Dr. Cross and

that Dr. Cross died by suicide as affirmative defenses.

1 In the Complaint (Doc. #1), Northwestern Mutual raises its

claims for relief against both Cross and “ANY UNKNOWN CHILDREN of

Chaundre K. Cross.” At trial, the parties should be prepared to

explain whether (1) any unknown children of Chaundre K. Cross

remain as a party to this case, and (2) whether the Court should

dismiss this defendant.

(2) Cross filed a Motion For Jury Trial, To Realign The

Parties and to Sit Advisory Jury for Equitable Issues (Doc.

#80), to which Northwestern Mutual’s Response and Motion to

Bifurcate Trial (Doc. #89) was filed. Both motions are

denied. The case shall proceed as follows: The crux of the

case is the Counterclaim breach of contract claim by Cross

against Northwestern Mutual. For simplicity’s sake before

the jury, Cross will be referred to as the plaintiff and

Northwestern Mutual will be referred to as the defendant at

trial. Counsel for Cross will proceed first with an opening

statement, followed by counsel for Northwestern Mutual’s

opening statement. Counsel for Cross will call witnesses

first, followed by witnesses called by counsel for

Northwestern Mutual. Closing arguments will be in the

following order: Counsel for Cross; Counsel for Northwestern

Mutual; Counsel for Cross; Counsel for Northwestern Mutual.

“Even though the ‘substantive dimension’ of a claim

brought in federal court may be governed by state law, ‘the

right to a jury trial in federal courts is to be determined

as a matter of federal law.’” Ford v. Citizens & S. Nat.

Bank, Cartersville, 928 F.2d 1118, 1121 (11th Cir. 1991),

quoting Simler v. Conner, 372 U.S. 221, 222 (1963). The

case will be tried before a jury as to the breach of contract

claim2 and the declaratory judgment claim.3 The rescission

claim will be tried by the Court simultaneously with the

jury trial.4 The jury will be provided with fairly detailed

factual interrogatories for its determination, the answers

to which will be binding on the Court as to its determination

of rescission.5

2 It is clear that a breach of contract claim seeking monetary

damages is a legal claim for which a party is entitled to a jury

trial. Stewart v. KHD Deutz of Am. Corp., 75 F.3d 1522, 1526

(11th Cir. 1996). Northwestern Mutual does not dispute that Cross

is entitled to a jury trial on the breach of contract counterclaim.

(Doc. #89, p. 2.)

3 The right to a jury trial in a declaratory judgment action

depends on whether there would have been a right to a jury trial

had the action proceeded without the declaratory judgment

mechanism. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504

(1959). While a declaratory judgment action can be either legal or

equitable, in this case it is a legal action because “[t]he issue

on which Northwestern Mutual seeks declaratory relief (whether Dr.

Cross’s death was a suicide) is subsumed in Cross’s breach-of-

contract counterclaim.” (Doc. #89, p. 2, n.1.) Northwestern

Mutual does not dispute that Cross is entitled to a jury trial on

the declaratory judgment claim. (Doc. #89, p. 2.)

4 “[T]he federal law is clear that an action for rescission

is equitable, triable by the court without a jury.” Phillips v.

Kaplus, 764 F.2d 807, 812 (11th Cir. 1985). “An action for

rescission is an equitable proceeding, and as such it carries no

right to a jury trial.” Scheurenbrand v. Wood Gundy Corp., 8 F.3d

1547, 1551 (11th Cir. 1993). A cause of action under Fla. Stat.

§ 627.409 is a cause of action for rescission. United Auto. Ins.

Co. v. Salgado, 22 So. 3d 594, 599 (Fla. 3d DCA 2009) (“The

statutory right to rescission is set forth in section 627.409.”);

Miguel v. Metro. Life Ins. Co., 200 Fed. Appx. 961, 965 (11th Cir.

2006) (“In Florida, rescission of an insurance policy on the basis

of a misstatement or omission in the insurance application is

governed by Fla. Stat. Ann. § 627.409.”).

5 “Of course, when legal and equitable issues are tried

together and overlap factually, the Seventh Amendment requires

that “’all findings necessarily made by the jury in awarding [a]

(3) The parties indicated they will provide an updated joint

exhibit list and a witness list(s). Any new joint exhibit

list and witness list shall be filed promptly and, in any

event, no later than the Wednesday before trial.

(4) During voir dire the Court intends to read a concise

statement summarizing the case to the prospective jurors,

followed by the question whether any juror knows anything

about the case prior to coming to court. The parties are

encouraged to file a proposed concise statement no later

than the Friday before the beginning of trial.

(5) The Court will select a jury of six jurors plus one

“alternate.” At voir dire, each side will have three

preemptory challenges, plus one additional challenge for

the alternate juror. As explained at the final pretrial

conference, no back-striking will be allowed. Counsel

verdict to [a party on legal claims] are binding on ... the trial

court” when it sits in equity.’” Brown v. Alabama Dept. of

Transp., 597 F.3d 1160, 1184 (11th Cir. 2010)(citation omitted.)

“When legal and equitable actions are tried together, the right to

a jury in the legal action encompasses the issues common to both.

When a party has the right to a jury trial on an issue involved in

a legal claim, the judge is of course bound by the jury's

determination of that issue as it affects his disposition of an

accompanying equitable claim.” Lincoln v. Bd. of Regents of Univ.

Sys. of Georgia, 697 F.2d 928, 934 (11th Cir. 1983)(citations

omitted). A portion of the factual issues underlying the breach of

contract claim include that Northwestern Mutual breached the

contract by attempting to rescind it, which overlap with the facts

necessary to establish a right to rescind.

will be allowed to make brief, follow-up inquiry of jurors

after the Court concludes its voir dire.

(6) Cross has not sought permission for counsel’s staff or

witnesses to bring electronic devices into the courthouse

for trial. If she anticipates the need for electronic

devices, such a request should be made by motion.6

(7) Trial will be held beginning Tuesday February 23, 2026,

at 9:00 a.m in Courtroom 6A. It is anticipated that trial

will take six to eight days.

(8) The anticipated witnesses at trial are those to be

identified in the respective amended witness lists. No

additional witness will be allowed without specific

permission of the Court.

(9) With the consent of the parties, jurors will be allowed

to take notes.

(10) Jurors will be allowed to pose questions to any witness

by writing the question and handing it to the Court, who

will confer with counsel prior to allowing the question.

(11) Northwestern Mutual filed a Motion in Limine Re: Death

Certificate (Doc. #93), to which Defendants’ Response (Doc.

6 The Court previously entered an Order granting in part and

denying in part Northwestern Mutual’s “Motion to Permit Passage

into Courthouse with Electronics and Equipment for Use During

Pretrial Conference and During Trial” on January 29, 2026 (Doc.

#119.)

#107) was filed. The Death Certificate for Dr. Cross

contains a section captioned “CAUSE OF DEATH AND INJURY

INFORMATION” which states “manner of death: could not be

determined” and “cause of death . . . lost at sea.”

Northwestern Mutual argues that the “lost at sea” is

hearsay and likely to cause unfair prejudice and confusion

because the Florida agency issuing the Death Certificate

does not have proof that Dr. Cross was actually lost at

sea since it did not investigate his disappearance. (Doc.

#93, pp. 2-3.) The Death Certificate is a public record

excluded from the definition of hearsay by Fed. R. Evid.

803(9) (“The following are not excluded by the rule against

hearsay, regardless of whether the declarant is available

as a witness: . . . A record of a birth, death, or

marriage, if reported to a public office in accordance with

a legal duty.”) There is no dispute that Dr. Cross is not

alive. Stating that the manner of death “could not be

determined” and the cause of death was “lost at sea” does

not support any of the possibilities as to actual cause of

death (homicide, suicide, natural, accidental). Neither

party may argue that the Death Certificate established one

manner of death over another. Fed. R. Evid. 803(8)

provides that public records are not excluded by the

hearsay rule “unless the sources of information or other

circumstances indicate lack of trustworthiness.” Fed. R.

Evid. 803(8). The statements on the Death Certificate do

not lack trustworthiness – everyone in this case agrees

that Dr. Cross is deceased and was “lost at sea,” even

though they disagree on the manner of his death. The motion

is denied.

(12) Cross filed Defendant’s Motion in Limine Regarding

Death of Dr. Cross (Doc. #94) seeking to prohibit

introduction of evidence or argument suggesting that Dr.

Cross is or could still be alive. Northwestern Mutual

filed a Notice of Non-Opposition (Doc. #108) stating that

it does not intend to argue at trial that Dr. Cross is

alive. Accordingly, the motion is denied as moot.

(13) Cross filed her Motion in Limine Regarding Payout of an

Unrelated $1.6 Million Policy (Doc. #95), to which

Northwestern Mutual filed an Opposition (Doc. #110.)

Cross seeks to prohibit anyone from mentioning that

Northwestern Mutual had paid out on a prior $1.6 million

life insurance policy on Dr. Cross’s life. As Cross

concedes, “the fact that Northwestern issued a prior policy

for $1.6 million is relevant, . . ..” (Doc. #95, p. 5.)

The Court concludes that evidence of the payout on this

policy is relevant to the case, is not prejudicial, and

will not confuse the jury. Indeed, precluding such

evidence would tend to confuse the jury and leave hanging

the obvious question of what happen in regard to that

policy. The motion is denied.

(14) Northwestern Mutual filed its Motion in Limine Re:

Expert Opinions (Doc. #97), to which Cross filed her

Response (Doc. #115.) Northwestern Mutual seeks to

preclude Vera Dolan, Cross’s expert witness, from

testifying about (a) Northwestern Mutual’s decision to

issue the Policy and whether that decision was correct;

(b) whether Northwestern Mutual can rescind or waived its

right to rescind the Policy; and (c) any testimony about

post-claim underwriting, fraud, or bad faith. It seems

clear that Ms. Dolan may give testimony on at least some

aspects of these topics, and the Court cannot formulate a

meaningful order providing guidance in an in limine order.

The motion is denied, without prejudice of course to

counsel raising objections to specific questions.

(15) Cross filed her Motion in Limine to Enforce "I Don't

Know" Responses of Corporate Representative and Prohibit

Speculative Testimony on Underwriting Issues (Doc. #99),

to which Northwestern Mutual filed a response (Doc. #109).

In essence, the motion seeks to preclude Adam Heiderman or

anyone else from giving testimony contrary to that given

by Heiderman in his deposition as a Rule 30(b)(6) designee

of Northwestern Mutual. Cross does not need a gag order to

ensure that Heiderman maintains his prior answers.

Regardless of Heiderman’s presence at trial, Cross may read

the Rule 30(b)(6) deposition to the jury. Rule 32(a)(3)

(formerly Rule 32(a)(2)) “permits a party to introduce the

deposition of an adversary as part of his substantive proof

regardless of the adversary's availability to testify at

trial.” Coughlin v. Capitol Cement Co., 571 F.2d 290, 308

(5th Cir. 1978).7 Additionally,

an organization's deposition testimony

is “binding” in the sense that whatever

its deponent says can be used against

the organization. But Rule 30(b)(6)

testimony is not “binding” in the sense

that it precludes the deponent from

correcting, explaining, or

supplementing its statements. Nothing

in the text of the Rule or in the

Advisory Committee notes indicates that

the Rule is meant to bind a corporate

party irrevocably to whatever its

designee happens to recollect during

her testimony. Of course, a party whose

testimony “evolves” risks its

credibility, but that does not mean it

has violated the Federal Rules of Civil

Procedure.

Keepers, Inc. v. City of Milford, 807 F.3d 24, 34–35 (2d

Cir. 2015) (footnotes omitted.) If Cross calls Heiderman

as a witness, she may confront him with any inconsistencies

7 The Eleventh Circuit has adopted as binding precedent all

Fifth Circuit decisions issued before October 1, 1981. Stein v.

Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

from his deposition testimony, which would become

substantive evidence and not just impeachment. The motion

is denied.

(16) Cross filed a Motion in Limine to Prohibit Testimony by

Jason Kestly Outside his Personal Knowledge (Doc. #100), to

which Northwestern Mutual filed a response (Doc. #109.)

Kestly was a designated Rule 30(b)(6) witness for

Northwestern Mutual who testified as to what the corporation

would or would not do if it had known certain things. His

testimony is inconsistent with Heiderman’s in some respects.

Cross argues that a lack of personal knowledge precludes

Kestly from testifying to these matters. A corporate

representative designated to speak for the corporation on a

certain matter can obtain personal knowledge from others

within the corporation or corporate documents. Roberts v.

Direct Gen. Ins. Co., 337 So. 3d 889, 892 (Fla. 2d DCA 2022);

Lloyd v. Midland Funding, LLC, 639 Fed. Appx. 301, 305 (6th

Cir. 2016).

“Obviously it is not literally possible

to take the deposition of a

corporation; instead, ... the

information sought must be obtained

from natural persons who can speak for

the corporation.” Thus, a rule 30(b)(6)

designee does not give his personal

opinions, but presents the

corporation's “position” on the topic.

When a corporation produces an employee

pursuant to a rule 30(b)(6) notice, it

represents that the employee has the

authority to speak on behalf of the

corporation with respect to the areas

within the notice of deposition. This

extends not only to facts, but also to

subjective beliefs and opinions.

Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433

(5th Cir. 2006) (footnotes and citation omitted.) “Thus,

if a rule 30(b)(6) witness is made available at trial, he

should be allowed to testify as to matters within corporate

knowledge to which he testified in deposition.” Id. at 434.

The motion is denied.

(17) Cross filed a Motion to Allow Trial Witnesses to Testify

Remotely, or Alternatively to Permit Trial Depositions (Doc.

#116), which was opposed by Northwestern Mutual. Rule 43(a)

provides:

At trial, the witnesses’ testimony must

be taken in open court unless a federal

statute, the Federal Rules of Evidence,

these rules, or other rules adopted by

the Supreme Court provide otherwise.

For good cause in compelling

circumstances and with appropriate

safeguards, the court may permit

testimony in open court by

contemporaneous transmission from a

different location.

Fed. R. Civ. P. 43(a).

“The most persuasive showings of good cause and

compelling circumstances are likely to arise when a witness

is unable to attend trial for unexpected reasons, such as

accident or illness, but remains able to testify from a

different place.” Fed. R. Civ. P. 43(a) advisory

committee's note to 1996 amendment. The Court does not find

that Cross has presented sufficient good cause or compelling

circumstances. The circumstances offered to justify the

out-of-court transmission of testimony (e.g. the proffered

witnesses’ work and school schedules) were entirely

foreseeable and yet nothing was done during discovery to

alleviate the concern.

The accompanying advisory committee note to Rule 43

further provides, in pertinent part that contemporaneous

transcription of live testimony may only occur under

compelling circumstances because “[t]he opportunity to judge

the demeanor of a witness face-to-face is accorded great

value in our tradition.” Id. Here, the Court will not

preclude the jury from properly judging the demeanor of

these witnesses in order to accommodate circumstances that

came as no surprise to either witness. Accordingly, the

Motion (Doc. #116) is denied.

DONE and ORDERED at Fort Myers, Florida, this __ 3rd___ day

of February 2026.

J E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record