                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0488n.06

                                            No. 19-5031


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Aug 19, 2020
 APPALACHIAN REGIONAL HEALTHCARE,                         )
                                                                               DEBORAH S. HUNT, Clerk
 INC.,                                                    )
                                                          )
         Plaintiff-Appellee,
                                                          )
                                                          )       ON APPEAL FROM THE
 v.
                                                          )       UNITED STATES DISTRICT
                                                          )       COURT FOR THE EASTERN
 U.S. NURSING CORP.,
                                                          )       DISTRICT OF KENTUCKY
         Defendant-Appellant.                             )
                                                          )


BEFORE:        ROGERS, KETHLEDGE, and LARSEN, Circuit Judges.

       ROGERS, Circuit Judge. Appalachian Regional Healthcare, Inc. (Appalachian) and U.S.

Nursing Corp. (U.S. Nursing) were co-defendants in an earlier state court suit. They both settled

with the plaintiffs in that state court proceeding, and Appalachian now seeks indemnity from U.S.

Nursing for its settlement payment based on the contract between these two entities. As part of its

contract with Appalachian, U.S. Nursing agreed to indemnify and defend Appalachian for the

negligence of any U.S. Nursing employee that was assigned by U.S. Nursing to Appalachian. After

a jury trial on the indemnity claim, the jury found U.S. Nursing liable under the contract for the

costs Appalachian incurred in defending and settling the state court lawsuit. But U.S. Nursing

complains on appeal that the district court made numerous errors during the proceeding below.

U.S. Nursing alleges that the district court improperly precluded it from defending itself on a

critical issue in the case based on the collateral estoppel doctrine, allowed Appalachian to introduce

undisclosed expert testimony, admitted settlement discussions as proof of the reasonableness of
No. 19-5031, Appalachian Regional Healthcare, Inc. v. U.S. Nursing Corp.


Appalachian’s settlement in the state court litigation, and admitted the amount of U.S. Nursing’s

own settlement in the state court litigation as proof of the reasonableness of Appalachian’s

settlement. U.S. Nursing’s assertion that the district court erred in its collateral estoppel ruling is

correct, but U.S. Nursing’s other arguments are unpersuasive.

       The state court litigation stemmed from a horrific injury that Ralph Profitt, a maintenance

worker at a sawmill, sustained on October 2, 2007. Profitt was attempting to repair machinery at

the sawmill when the machinery unexpectedly activated and collapsed on his back, causing a

severe spinal injury. Profitt’s co-workers rushed him to the hospital in a truck, where he was lifted

by an unidentified female nurse into a wheelchair and pushed into the emergency room (ER)

without any stabilization of his injured spine. In addition to suing the manufacturer and installer

of the machinery, Profitt and his wife sued Appalachian, U.S. Nursing, and the three female nurses

who were staffing the ER that night. Profitt alleged that his injuries were exacerbated when the

nurse who moved him from the truck to the ER failed to stabilize and immobilize him. Two of the

nurses that Profitt sued were employed by Appalachian, Sheila Hurt and Roxanne Parsons, and

one of the nurses sued was employed by U.S. Nursing and supplied to Appalachian under a staffing

agreement, Constance Foote. Profitt asserted that Appalachian was vicariously liable for Hurt,

Parsons, and Foote’s actions and that U.S. Nursing was vicariously liable for Foote’s actions. The

Profitts sought approximately $23.5 million in compensatory and punitive damages.

       The state court granted summary judgment to Appalachian on all claims against it except

for the claim of vicarious liability for the nurses’ negligent actions. The state court also granted

an unopposed motion for summary judgment in favor of Hurt and Parsons, and later prohibited

any party from arguing or introducing evidence that Hurt or Parsons was the nurse who came out

of the ER to assist Profitt. Further, the manufacturer and installer of the equipment settled with



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the Profitts for about $3 million. This left Appalachian, U.S. Nursing, and Foote as remaining

defendants. Appalachian remained as a defendant on the theory of vicarious liability for Foote’s

actions.

       After eight years of litigation and on the eve of trial, Appalachian settled with the Profitts

for $2 million on April 1, 2016. At this point, Appalachian had spent approximately $1 million in

defense costs. U.S. Nursing also separately settled with the Profitts for $1.1 million later that same

day.

       Subsequently, Appalachian sought to enforce U.S. Nursing’s indemnity obligations under

the staffing agreement, but U.S. Nursing refused to reimburse Appalachian. This led Appalachian

to file suit in federal district court alleging that U.S. Nursing breached its duty to defend and

indemnify Appalachian. Appalachian asserted four claims against U.S. Nursing: (1) that U.S.

Nursing breached its duty to defend Appalachian in the Profitt litigation; (2) that U.S. Nursing

breached its duty to indemnify Appalachian for the costs it incurred in defending and settling the

Profitt litigation; (3) that U.S. Nursing breached the implied covenant of good faith and fair dealing

relating to its obligation to obtain insurance coverage for malpractice claims; and (4) common-law

indemnity. Appalachian voluntarily dismissed its common-law indemnity claim and the district

court dismissed Appalachian’s claim for breach of the covenant of good faith and fair dealing. The

two remaining claims for breach of the duties to indemnify and defend went to trial.

       To succeed on the indemnity claim, the district court declared that Appalachian must prove:

(1) that Nurse Foote performed a negligent or intentional act; (2) that Appalachian was subject to

liability or suffered damage; (3) that Nurse Foote’s act proximately caused Appalachian’s damage;

and (4) that Appalachian’s settlement was reasonable. The case was tried in two phases. Phase 1

focused on the identity of the female nurse who transported Profitt into the ER and whether the



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nurse’s conduct was negligent. Phase 2 dealt with whether Appalachian’s $2 million settlement

was reasonable.

       Prior to trial, Appalachian moved in limine to preclude U.S. Nursing from arguing that

either Hurt or Parsons was the nurse who transported Profitt to the ER; the motion was based on

the state court’s grant of summary judgment dismissing the claims against Hurt and Parsons. The

district court granted Appalachian’s motion and prohibited U.S. Nursing from introducing any

evidence or arguing to the jury that either Hurt or Parsons was the nurse who transported Profitt

into the ER. The district court determined that U.S. Nursing was precluded from making such

arguments because the issue had been litigated in the state court proceeding and the state court had

granted summary judgment in favor of Hurt and Parsons. The district court reasoned that U.S.

Nursing “had a full and fair opportunity in state court to respond to the nurses’ motion for summary

judgment and to present evidence indicating that either nurse moved Profitt,” and rejected U.S.

Nursing’s argument that it did not have an incentive to litigate the issue.

       Subsequently, U.S. Nursing asked the court to reconsider this decision. U.S. Nursing

argued for the first time that it was prohibited from objecting to Hurt and Parsons’ summary

judgment motion because it was a co-defendant. However, the court could not find any legal

support for this assertion that a defendant cannot oppose a summary judgment motion filed by

another co-defendant. U.S. Nursing also presented another new argument: that it did not have an

opportunity to fully litigate the issue of whether Hurt or Parsons moved Profitt because U.S.

Nursing as a co-defendant could not appeal the summary judgment ruling dismissing Hurt and

Parsons. But the district court rejected this argument, too. The court stressed that U.S. Nursing

chose not to litigate the issue when it had the opportunity to do so, which prohibited it from raising




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the matter on appeal, regardless of whether a defendant can appeal the dismissal of a co-defendant.

Accordingly, the district court denied U.S. Nursing’s motion to reconsider.

       During phase 1 of the trial, the jury heard evidence regarding the identity of the nurse who

transported Profitt into the ER. Profitt and one of the men who accompanied Profitt to the hospital,

David English, testified that they believed Foote was the nurse in question. Although Foote denied

that she was the nurse who transported Profitt into the ER and stated she might have been with

another patient when Profitt was at the hospital, Appalachian’s Chief Nursing Officer, Ellen

Wright, explained that the medical records from that night indicated that Foote’s treatment of other

patients would not have precluded her from transporting and attending to Profitt. U.S. Nursing

objected at various points to Wright’s testimony, alleging that her testimony ventured into the

realm of expert testimony, but the district court largely overruled these objections. The court

reasoned that Wright was testifying as to what the medical records showed and opining on the

level of care that the other patients likely required based on her knowledge of the practices and

procedures of the hospital based on her position as Chief Nursing Officer. The district court

explicitly warned that Wright could not offer opinions more generally on the proper standard of

care. At the end of phase 1, the jury found that Foote was the nurse who transported Profitt into

the ER and that Foote acted negligently in doing so.

       During phase 2 of the trial, the jury heard evidence regarding Appalachian’s settlement.

As part of Appalachian’s evidence that its settlement was reasonable, Appalachian presented

statements made during a January 21, 2016 meeting in which Appalachian and U.S. Nursing’s

lawyers and representatives discussed settlement estimates and potential exposure prior to settling

with the Profitts. Although U.S. Nursing moved in limine to preclude statements from this meeting

from being admitted at trial, the district court denied this motion as premature at least in part



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because the court was not entirely clear on what statements were at issue. The court also

determined that the January 21, 2016 meeting was not a settlement meeting because the Profitts

were not present, and therefore Federal Rule of Evidence 408 prohibiting the admission of

statements made during settlement negotiations about a claim “to prove or disprove” the validity

or amount of the claim or for impeachment purposes did not apply. Even if the January 21, 2016

meeting did constitute a settlement negotiation, the court nonetheless determined that Rule 408

did not prohibit Appalachian from using the statements to prove the reasonableness of its

settlement in the case below. U.S Nursing did not object at trial to the admission of these

statements.

       Further, the court admitted U.S. Nursing’s $1.1 million settlement with the Profitts.

Appalachian used this evidence as part of its argument that its $2 million settlement was

reasonable, as U.S. Nursing’s $1.1 million settlement was in addition to the amount Appalachian

settled for. At the conclusion of phase 2, the jury found that Appalachian’s settlement and defense

costs were reasonable. Ultimately, the court entered judgment in favor of Appalachian in the

amount of $2,823,522.71, plus prejudgment interests and costs.

       U.S. Nursing now appeals several of the district court’s decisions. First, U.S. Nursing

challenges the district court’s order giving preclusive effect to the state court’s ruling that neither

Hurt nor Parsons transported Profitt into the ER. Second, U.S. Nursing alleges that the district

court erred in admitting Wright’s testimony. Third, U.S. Nursing contends that the district court

erred in admitting evidence from the January 21, 2016 meeting in which Appalachian and U.S.

Nursing’s lawyers and representatives discussed settlement estimates and potential exposure prior

to settling with the Profitts. Fourth, U.S. Nursing claims that the district court erred in admitting

the amount of its settlement with the Profitts. U.S. Nursing’s first contention that the district court



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incorrectly applied the collateral estoppel doctrine is correct, but U.S. Nursing’s other arguments

are without merit.

                                                  I.

        The district court erred in giving preclusive effect to the state court’s summary judgment

ruling that neither Hurt nor Parsons was the nurse who transported Profitt into the ER. Reviewing

that determination de novo, see Stemler v. Florence, 350 F.3d 578, 585 (6th Cir. 2003), we

conclude that U.S. Nursing did not have a full and fair opportunity to litigate this issue at the state

court level.

        We must give the state court’s judgment the same preclusive effect as that decision would

be given under the law of the state in which the judgment was rendered. Migra v. Warren City

Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). We must therefore look to Kentucky law on

collateral estoppel to determine whether the district court was correct in precluding U.S. Nursing

from arguing that Hurt or Parsons was the nurse in question. Anderson v. City of Blue Ash, 798

F.3d 338, 350 (6th Cir. 2015) (quotations, brackets, and citation omitted). Under Kentucky law, a

party is precluded from arguing about an issue if: (1) the party to be bound was a party in the first

case; (2) the issue in the second case is the same as the issue in the first case, (3) the issue was

actually litigated, (4) the issue was actually decided, and (5) the decision on the issue in the prior

action was necessary to the court’s judgment and adverse to the party to be bound. Miller v. Admin.

Office of Courts, 361 S.W.3d 867, 872 (Ky. 2011); Yeoman v. Kentucky, 983 S.W.2d 459, 465

(Ky. 1998). The rule contemplates an inquiry into “whether the judgment in the former action was

in fact rendered under such conditions that the party against whom [issue preclusion] is pleaded

had a realistically full and fair opportunity to present his case.” Moore v. Kentucky, 954 S.W.2d

317, 319 (Ky. 1997) (citing Sedley v. City of West Buechel, 461 S.W.2d 556, 559 (Ky. 1970)).



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Kentucky law also inquires whether preclusion serves the “principles of justice and fairness.”

Berrier v. Bizer, 57 S.W.3d 271, 281 (Ky. 2001). We understand U.S. Nursing’s argument

essentially to be based on whether it had a “realistically full and fair opportunity to present [its]

case” and whether preclusion serves the “principles of justice and fairness,” given that the

summary judgment was not legally “adverse” to it.

       U.S. Nursing did not have a full and fair opportunity to litigate the issue at the state court

level. In short, U.S. Nursing had no legally protected interest in opposing the state court’s grant

of summary judgment for Hurt and Parsons. This lack of “standing” is reflected in Kentucky cases

that over the years have consistently held that a defendant may not appeal a co-defendant’s

dismissal. These cases have so held both before and after Kentucky adopted comparative

negligence. Also, although the cases largely deal with multiple defendants who could each have

jointly caused the injury, they apply a fortiori to cases like this one where the harm could have

been caused by only one of the alleged tortfeasor-defendants. The defendant’s lack of a legal

interest to oppose dismissal of a claim against a co-defendant logically means there was no full

and fair opportunity to litigate the co-defendant’s liability for collateral estoppel purposes in the

former litigation, and collateral estoppel accordingly does not apply. Several Kentucky high court

decisions support this conclusion.

       Kentucky courts have long held that “[i]t is a universal rule that a joint tort-feasor against

whom judgment has been rendered will not be heard to complain on appeal, especially in the

absence of cross-appeal, that judgment was not obtained against a codefendant to the suit or that

the suit was dismissed as to a codefendant.” Martin v. Ackman, 110 S.W.2d 437, 438–39 (Ky.

1937) (citations omitted). As the Kentucky Court of Appeals explained in Jenkins v. Best, 250

S.W.3d 680, 685–87 (Ky. Ct. App. 2007), this rule survived both the adoption of comparative



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negligence and the ensuing adoption of the Kentucky apportionment statute. The rationale for

these decisions is not some appeal-specific doctrine, such as a requirement of finality, but rather

that the defendant seeking to appeal had no legal interest in keeping the co-defendant in the suit in

the first place. Thus, the court in Jenkins reasoned:

               The claim that Dr. Best and University Associates [dismissed co-
       defendants] are directly liable to Jenkins [plaintiff] is her [plaintiff’s] claim to
       assert. When that claim was denied, it was her right to appeal the decision.
       However, Dr. Farmer and Baptist Hospital [remaining defendants] are no more
       entitled to appeal the trial court’s denial of Jenkins’ claim than they would have
       been to file it in circuit court in the first place.
               Because we find that Dr. Farmer and Baptist Hospital have no standing or
       right to appeal the trial court’s denial of Jenkins’ claims against Dr. Best and
       University Associates, their appeals shall be dismissed.

Id. at 687 (emphasis added). See also Dwyer Concrete Lifting of Lexington, Inc. v. Alchemy Eng’g,

Inc., No. 2009-CA-001970, 2013 WL 375471, at *2 (Ky. Ct. App. Feb. 1, 2013). Accordingly, a

defendant does not have a legal interest in stopping its co-defendant’s dismissal just to keep the

co-defendant in the damages pool.

       It is true that cases like Martin, Jenkins, and Dwyer involved defendants who were

potentially jointly liable, unlike the present case where only one of the three nurses could have

been a tortfeasor. But that distinction cuts against Appalachian rather than in its favor. In cases

like Martin, Jenkins, and Dwyer, the appellants made the losing argument that because they sought

to share their potential liability with co-defendants through common-law indemnity or

apportionment, they had a sufficient interest in keeping them in the lawsuit. Neither U.S. Nursing

nor Foote, in contrast, had any possible right, common-law or otherwise, to recover from the

remaining defendants. All they wanted was to point the finger at the other nurses. In that situation,

the holdings of cases like Martin, Jenkins, and Dwyer that a defendant has no standing to keep a

co-defendant in the lawsuit apply even more strongly, not less.


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       If one defendant could not challenge the dismissal of a co-defendant in a negligence case,

it follows that for collateral estoppel purposes the defendant did not have a full and fair opportunity

to argue that co-defendant’s negligence.

       This conclusion finds support in Kentucky high court decisions, albeit from the time before

non-mutual collateral estoppel was adopted in Kentucky, involving the same procedural scenario.

The Court of Appeals of Kentucky (then the Kentucky high court), reasoned as follows:

                The general law on the question at bar is summarized in the Restatement of
       the Law of Judgments, Section 82, page 386, with an Illustration on page 387:
                ‘* * * where a person is injured by the concurrent negligence of two
       tortfeasors who are joined in one action, the fact that each of them attempts to show
       that the other was solely responsible for the accident or that the other alone was
       negligent does not make the issue of negligence res judicata in subsequent
       proceedings between them, where the liability of one to the other does not depend
       upon his liability to the injured person * * *.
                ‘Illustration: 1. A and B are driving automobiles, which collide. C, a
       passenger in B’s car, sues A and B. Whether the judgment is in favor of or against
       C as to either or both A and B, the issues as to negligence or other element of the
       cause of action are not res judicata in a subsequent action by A against B for damage
       to his car.’
                The rules of res judicata are based upon an adversary system of procedure
       designed for the purpose of giving persons an opportunity to litigate claims against
       each other. As a consequence, persons who have not had an opportunity of
       litigating between themselves the correctness of a determination which is the basis
       of a judgment for or against them are not concluded by such a determination in a
       subsequent action between them. Unless they were adversaries in the action in
       which the judgment was entered, the judgment merely adjudicates the rights of the
       plaintiff against each defendant, leaving unadjudicated the rights of the defendants
       between themselves.
                In our present Civil Code of Practice there is no provision for cross-claims
       in tort actions by one defendant against another, and as a consequence no judgment
       could be given one defendant against the other in the action by Johnson’s
       administratrix against Rucker and Clark’s administratrix. In a colloquial sense,
       each defendant had acted adversely to the other in pleading the death of Johnson
       was caused solely by the negligence of the other, but their action did not constitute
       them adverse parties, ‘those who, by the pleadings, are arrayed on opposite sides.’
       Under our present procedure, Rucker and Clark’s administratrix could not be on
       ‘opposite sides’ from each other in the action brought against them by Johnson’s
       administratrix . . . It is not enough that they, by their separate answers, deny liability
       and claim that the accident was due to the negligence of the other, as such pleading
       only goes to answering the claim of the plaintiff, and tenders no issue to which the

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       other defendant may demur or reply to or join issue upon so as to settle the liability
       one to the other.’

Clark’s Adm’x v. Rucker, 258 S.W.2d 9, 9–11 (Ky. 1953) (citations omitted). This case has been

cited with approval in the context of claim preclusion by the modern Supreme Court of Kentucky,

speaking unanimously:

       This Court long ago held “that a judgment against codefendants is not conclusive
       as between themselves with respect to their rights and liabilities toward each other
       unless an issue was made between them or the parties in the second action were
       adversary parties in the first action.” Brown Hotel Co. v. Pittsburgh Fuel Co., Ky.,
       311 Ky. 396, 224 S.W.2d 165, 168 (1949); see also Clark’s Adm’x v. Rucker, Ky.,
       258 S.W.2d 9 (1953). Appellant and the Elliotts were co-defendants in the original
       action brought by Cox; and the causes of action underlying this appeal have never
       been adjudicated. Accordingly, Appellant is not barred from his claims against the
       Elliotts for breach of contract, indemnification, and unjust enrichment, pursuant to
       the doctrine of res judicata.

Buis v. Elliott, 142 S.W.3d 137, 141 (Ky. 2004).

       To be sure, the old issue-preclusion cases are different in that they preceded the adoption

of non-mutual collateral estoppel by the Kentucky high court in 1970. See Sedley, 461 S.W.2d at

559. In other words, before 1970, issue preclusion could not be invoked by a non-party to the

earlier case. (Also, while Buis came later, in 2004, it involved claim preclusion, which continues

to be unavailable to a non-party to the previous case. See Buis, 142 S.W.3d at 139–41; see also

Miller, 361 S.W.3d at 871–73.) The relevance of the Clark’s Adm’x holding, then, depends upon

whether its adversariness requirement was superseded by the elimination of the mutuality

requirement (i.e., by eliminating the requirement that the party asserting issue-preclusion have

been a party in the prior case), or whether the adversariness requirement survived as a requirement

with respect to the party in the earlier case who actually did lose on the issue. If the adversariness

requirement survived, it did so as part of the element of non-mutual issue preclusion that the

estopped party have had a “full and fair opportunity to litigate” the issue. If the “full and fair


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opportunity to litigate” is to serve as a fair substitute for the requirement that the party claiming

issue preclusion have been a party to the previous case, it is hard to see why the adversariness

required to subject a prior party to mutual estoppel should not apply at a minimum to subject a

party who lost the issue in question in an earlier case to non-mutual estoppel.

        More recently, the Supreme Court of Kentucky has stated as much. In order for issue

preclusion to operate as a bar to further litigation, “‘the decision on the issue in the prior action

must have been necessary to the court’s judgment’ and adverse to the party to be bound.” Miller,

361 S.W.3d at 872 (emphasis added). The Miller opinion relied in turn upon Moore, which

“gathered from Sedley” the following essential elements of collateral estoppel: “(1) identity of

issues; (2) a final decision or judgment on the merits, (3) a necessary issue with the estopped party

given a full and fair opportunity to litigate; [and] (4) a prior losing litigant.” Moore, 954 S.W.2d

at 319 (citing Sedley, 461 S.W.3d at 559) (emphasis added). In the present case, the state court’s

summary judgment was not “adverse to” U.S. Nursing, and U.S. Nursing was not a “prior losing

litigant.”

        Our conclusion that collateral estoppel does not apply is further buoyed by the Restatement

of Judgment’s recognition that lack of availability of appellate review is an exception to collateral

estoppel. Restatement (Second) of Judgments § 28(1) (Am. Law Inst. 1982). Kentucky courts

have turned to the Restatement when analyzing collateral estoppel. See, e.g., Yeoman, 983 S.W.2d

at 465; Bd. of Educ. of Covington v. Gray, 806 S.W.2d 400, 403 (Ky. Ct. App. 1991).

        It is true that the state trial court ruled, presumably on the basis of law of the case, that U.S.

Nursing could not point the finger at Hurt and Parsons, in light of the court’s earlier unopposed

grant of summary judgment in their favor. As a matter of determining what decisions to follow to

determine the law of Kentucky, however, we of course follow the decisions of the Kentucky



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Supreme Court and the Kentucky Court of Appeals when in conflict with an unpublished

evidentiary ruling of a state trial court made one week before the case settled out. The district

court in this case, moreover, explicitly declined to rely on the state court’s evidentiary ruling as a

matter of collateral estoppel.

       Accordingly, the district court erred in determining that collateral estoppel applied because

U.S. Nursing did not have a full and fair opportunity to litigate the issue as an adverse litigant.

Because phase 1 of the trial below focused in large part on the identity of the female nurse who

transported Profitt into the ER, and the district court is of course familiar with the evidence

presented in that proceeding, we remand for the district court to determine in the first instance

whether or not the error in granting the in limine motion requires a new trial.

       We recognize that our collateral estoppel analysis is not presented in precisely the same

terms as those used by U.S. Nursing, which has focused narrowly on whether it could have

appealed the summary judgment grant. These differences, however, do not amount to a failure to

raise the determinative question regarding collateral estoppel in this case: whether U.S. Nursing

was precluded by collateral estoppel from pointing the finger at Hurt and Parsons because it lacked

a full and fair opportunity to litigate their status as the actual tortfeasor. U.S. Nursing did make

the argument that it lacked appellate standing to challenge the state court’s grant of summary

judgment for Hurt and Parsons and therefore it could not be deemed to have had a full and fair

opportunity to litigate the issue in state court. At a status conference hearing on the collateral

estoppel issue on May 25, 2018, U.S. Nursing repeatedly stressed that Kentucky law prohibited it

from appealing the grant of summary judgment in favor of Hurt and Parsons as part of its argument

that the district court should reconsider its exclusion of any argument that Hurt or Parsons was the




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nurse in question. Also, U.S. Nursing put forth this argument in its one-page filing in support of

its motion to reconsider. Accordingly, U.S. Nursing did not waive this argument.

                                                II.

       The district court did not abuse its discretion in admitting Wright’s testimony as lay opinion

testimony. Testimony based on particularized knowledge gained through personal experience,

especially by virtue of one’s position in a business, as was the case with Wright, is treated as lay

opinion. United States v. Kerley, 784 F.3d 327, 336–37 (6th Cir. 2015). Wright’s testimony was

based on her review of the applicable medical records and knowledge and experience as

Appalachian’s Chief Nursing Officer. Her testimony did not run afoul of Rule 701(c)’s prohibition

on lay witnesses giving opinion testimony based on scientific, technical, or other specialized

knowledge within the scope of expert testimony. See Fed. R. Evid. 701(c).

       U.S. Nursing objected multiple times during Appalachian’s direct examination of Wright.

First, U.S. Nursing objected to Appalachian’s question about whether there was anything about

the condition of the other patients in the ER, besides Profitt, that would require the nurses to be

occupied in the event an emergency occurred. The district court held a bench conference to fully

assess U.S. Nursing’s reason for objecting. The court clearly articulated that Wright could not

offer any opinion on the proper standard of care, which would veer into expert witness territory,

but could give testimony on the hospital’s practices and procedures based on her knowledge and

experience as Appalachian’s Chief Nursing Officer and could testify about what the medical

records show. After this objection was overruled, Wright responded that “[b]ased on the review

of the charts and documentation that is in the charts, there was very minimal nursing interventions

documented in either of the other charts.” Appalachian followed by asking whether the chart that

Wright had made of the times the nurses entered when they administered procedures to the other



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patients besides Profitt reflected whether the nurses were treating the other patients at the time

Profitt was in the ER. Wright responded that “there [wa]s no documentation in either of the other

two patients’ charts during the time frame that Mr. Profitt was in the emergency room.” Also,

Wright opined that this would indicate that there were not nurses in the other patients’ rooms while

Profitt was in the ER. This testimony was based on Wright’s review of the nurses’ documentations

in the medical records. Such testimony was also based on her particularized knowledge of the

hospital’s policies for treating patients depending on their condition, which was gained by virtue

of her position as Appalachian’s lead nursing official. This testimony was not “specialized

knowledge” within the purview of Rule 702, as Wright did not opine generally about nursing

standards of care. See Kerley, 784 F.3d at 336–37.

       Next, U.S. Nursing objected when Appalachian asked about a patient’s chart that Foote

initialed prior to Profitt’s arrival at the ER and then initialed again after Profitt had left the ER.

Foote initialed the other patient’s chart at 2010, 2015, 2020, 2025, 2230, and 2240. Appalachian

asked Wright about the gap in time documented on the other patient’s chart between 2025 and

2230, during which time Profitt was in the ER. Specifically, Appalachian inquired whether “based

on the normal practices at [Wright’s] hospital, Connie Foote would likely have been in the room

with Mr. Profitt?” Wright responded “[y]es” after the court overruled U.S. Nursing’s objection on

the matter. Wright then answered affirmatively when Appalachian asked whether the time entries

showing when the nurses were treating other patients indicated that Foote would not have been

preoccupied with another patient and would have been able to go outside to meet Profitt and take

him into the ER. As the district court explained during its bench conference regarding this

objection, Wright’s testimony here was based on her study of the medical records that the hospital

has maintained and her familiarity with the nursing practices and procedures of the hospital. This



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was not improper expert testimony. To the extent that U.S. Nursing believed Wright’s testimony

could be called into question because she was not present that night to know whether Foote was in

the room with Profitt or attending to another patient, the district court explicitly informed U.S.

Nursing that would be proper to raise on cross-examination, which U.S. Nursing did.

       Finally, U.S. Nursing objected to Appalachian’s question regarding whether there would

have been any reason that a nurse would have needed to be in the room with one of the other

patients rather than attending to Profitt based on the normal practice at the hospital and Profitt’s

condition. The court overruled this objection. Wright responded:

       Based on looking at both of the other patients’ charts and the lab work and the x-
       rays and their vital signs and the nursing assessments of both of those patients, there
       is no indication that any nurse would have been in that room doing any specific
       procedure that required any amount of time, given that you had a critical patient
       that needed immediate interventions, and it took more than one nurse to render
       them.

Again, this testimony was based on Wright’s knowledge and experience from her role as

Appalachian’s Chief Nursing Officer and her review of the applicable medical records. See Kerley,

784 F.3d at 336–38. Her testimony focused on her review of the patients’ records, which indicated

they were in non-emergent condition, and her comparison of those patients’ records to Profitt’s

emergent condition. She further founded her testimony in Appalachian’s policies and procedures

for when a trauma patient is admitted to the ER. This was lay testimony and did not run afoul of

Rule 701(c).

       Thus, the district court did not abuse its discretion in admitting this testimony from Wright.

This was lay opinion testimony and did not venture into expert testimony.

                                                III.

       U.S. Nursing’s argument that the district court should not have permitted evidence from

the parties’ January 21, 2016 meeting regarding the potential settlement of the Profitts’ claim is

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also unpersuasive. U.S. Nursing failed to preserve its objection to these discussions and these

statements were admitted for a purpose other than to “prove or disprove the validity or amount of

a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” Fed. R. Evid.

408.

       U.S. Nursing did not preserve its evidentiary objection to the admission of discussions from

the January 21, 2016 meeting. U.S. Nursing moved in limine prior to trial to have these statements

excluded, but the district court denied this motion. The district court denied this motion as

“premature.” The district court explained:

       FRE 408 prohibits the admission of statements made during settlement negotiations
       about a claim “to prove or disprove” that claim or for impeachment purposes. The
       January 21, 2016 meeting was not a settlement meeting. The Profitts were not even
       present. Further, to the extent the meeting was a settlement negotiation, it dealt
       with the Profitts’ claims in the state-court action. Rule 408 does not prohibit
       Appalachian from using the statements in this action to prove its claims here. It is
       unclear precisely what statements are at issue. Thus, the Court is unable to weigh
       the probative value and potential prejudice of the statements. As discussed above,
       however, any statements regarding whether Nautilus would cover a verdict against
       Appalachian that Appalachian was aware of at the time it settled are more probative
       than prejudicial as to the reasonableness of the settlement.

This ruling’s explicit declaration that U.S. Nursing’s motion was being denied as “premature”

indicates that the ruling was qualified and left open the opportunity for U.S. Nursing to object to

the introduction of these statements at trial. In determining the proper standard of review for a

district court’s evidentiary ruling on a motion in limine, we have recognized that “if the trial court

has made an explicit and definitive ruling on the record of the evidentiary issues to be decided,

and has not indicated that the ruling is conditioned upon any other circumstances or evidence, then

counsel need not renew the objection at the time the evidence is offered . . . in order to preserve

the error for appeal . . . However, if the court’s ruling is in any way qualified or conditional, the

burden is on counsel to raise objection to preserve error.” United States v. Poulsen, 655 F.3d 492,



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510 (6th Cir. 2011) (quoting United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)). U.S.

Nursing never renewed its objection at trial. Accordingly, we apply plain error review given the

tentative nature of the district court’s ruling and U.S. Nursing’s failure to object at trial to preserve

error.

         U.S. Nursing’s assertion that the district court directly ruled on Rule 408’s application and

only potentially deferred its ruling on admissibility based on other grounds, such as relevancy,

reads the district court’s opinion too narrowly. The district court’s statement that it was denying

U.S. Nursing’s motion as “premature” was not circumscribed to only some aspects of the motion.

The ruling never said that only some of U.S Nursing’s arguments in support of its objection could

be appropriately raised later. Instead, the court’s clear declaration that the motion was denied as

“premature” demonstrated that all of U.S. Nursing’s objections to the admission of the statements

from the January 21, 2016 meeting could be appropriate later. Thus, U.S Nursing needed to object

at trial to preserve error, which it did not do.

         Assuming, without deciding, that the January 21, 2016 meeting statements regarding the

potential value of the Profitts’ claim, the parties’ potential exposure, and the strategy to try to settle

the dispute occurred during settlement discussions, the district court did not commit plain error in

admitting them because these statements were not admitted for a prohibited purpose. Rule 408

precludes “conduct or a statement made during compromise negotiations about the claim” to

“prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent

statement or a contradiction.” Fed. R. Evid. 408. These statements were not admitted for the

precluded purpose of proving the validity or amount of the disputed claim. Appalachian and U.S.

Nursing are not arguing in this litigation about the validity or amount of the Profitts’ claim, which

was the disputed claim at issue during the settlement discussions. Instead, Appalachian used these



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statements to support the reasonableness of its settlement with the Profitts. The reasonableness of

the settlement, which is necessary for Appalachian to succeed on its indemnity claim, is distinct

from the validity and amount of the Profitts’ claim.          Parties take numerous factors into

consideration beyond the validity of a claim or amount of that claim in determining whether to

settle and how much to settle for. Parties may even reasonably decide to settle a claim that they

do not believe is valid based on the risks associated with proceeding to trial. The statements

regarding the assessment of the potential value of the Profitts’ claim and the co-defendants’

potential exposure was relevant to the reasonableness of Appalachian’s settlement. Accordingly,

the district court did not commit plain error in admitting these statements, as Rule 408 explicitly

permits courts to admit such statements for purposes other than to address the validity or amount

of a claim. Fed. R. Evid. 408(b).

                                                IV.

       Finally, the district court did not abuse its discretion in permitting Appalachian to introduce

into evidence the amount of U.S. Nursing’s settlement with the Profitts. Courts frequently consider

the settlements that have occurred in similar cases as a relevant factor in evaluating a settlement’s

reasonableness. Also, the admission of U.S. Nursing’s settlement did not violate Rule 408.

       The district court did not err in determining that U.S. Nursing’s settlement was admissible

because U.S. Nursing faced a similar claim as Appalachian. U.S. Nursing and Appalachian both

faced negligence claims in the Profitts’ state court suit based on a nurse’s negligent transportation

of Profitt into the ER. The parties therefore faced extraordinarily similar claims arising out of the

same underlying conduct. Courts commonly consider settlement amounts in similar cases. See,

e.g., Visteon Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., No. CIV. 07-12250, 2008 WL

2026131, at *2 (E.D. Mich. May 12, 2008); PPG Indus., Inc. v. Cent. Indus. Maint., Inc., No.



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No. 19-5031, Appalachian Regional Healthcare, Inc. v. U.S. Nursing Corp.


05CV1193, 2006 WL 2087529, at *3 n.2 (W.D. Pa. July 25, 2006); Vetter v. Subotnik, 844 F.

Supp. 1352, 1355 (D. Minn. 1992). Although the parties may have faced some different risks in

considering whether to settle or go to trial, such consideration is frequently different across cases—

even in cases that bear striking similarities to one another. Thus, this factor does not demonstrate

that the district court abused its discretion in admitting the amount of U.S. Nursing’s settlement as

a settlement amount in a similar matter.

       U.S. Nursing’s argument that its settlement was irrelevant to the reasonableness of

Appalachian’s settlement because U.S. Nursing’s settlement occurred after Appalachian’s

settlement is also unavailing. Evidence of U.S. Nursing’s settlement was admitted as evidence of

a settlement that occurred in a similar matter. Therefore, the timing of when U.S. Nursing’s

settlement occurred compared to when Appalachian’s settlement occurred did not render the

settlement amount inadmissible.

       Also, U.S. Nursing’s contention that the admission of its settlement violated Rule 408 is

unpersuasive. For the reasons explained in Part III, this settlement amount was not admitted to

prove the validity or amount of the Profitts’ claim, it was admitted to show the reasonableness of

Appalachian’s settlement.

                                                 V.

       For the reasons stated above, we reverse the district court’s collateral estoppel decision but

affirm the district court’s other decisions. We remand to the district court for further proceedings

in accordance with this opinion.




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