# Cross

> District Court, M.D. Florida · February 3, 2026

URL: https://www.frixlaw.com/law-library/cases/11299546

## Case

- **Full name:** The Northwestern Mutual Life Insurance Company v. 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
- **Court:** District Court, M.D. Florida
- **Decided:** February 3, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11299546. Public record. Not legal advice.