Page:Michael Foundation, Inc. v. Urantia Foundation v. McMullan.pdf/14

 disappearance in 1979. Newsom would have testified that she examined the journals twenty years earlier while researching a history that she was writing about the Urantia movement. The district court excluded the evidence on the ground that it would unfairly surprise Michael Foundation, Michael Foundation contends that the admission of the secret journals would have been prejudicial to it because the Joint Pre-trial Report did not adequately prepare it for the testimony, which Urantia Foundation offered four and one-half days into trial, after Michael Foundation had rested.

We agree. Urantia Foundation’s contention that Michael Foundation would not have been unfairly surprised seems disingenuous, given that Urantia Foundation’s own counsel claimed ignorance of Newsom’s potential testimony as to the purported secret journals until the Friday night before the Monday morning on which Urantia Foundation offered her testimony. Urantia Foundation points to the Final Joint Pre-trial Report, which indicated that Newsom would testify “as to the matter in which ‘The 50 Years’ anniversary document was prepared, matters relating to the origin of The Urantia Book.” Urantia Foundation asserted that this adequately prepared Michael Foundation for Newsom’s testimony. But that report was prepared before even Urantia Foundation’s own counsel knew of the existence of the purported secret journals; given the particular nature of the proffered testimony, it therefore appears likely that Michael Foundation did not receive adequate notice.

Exelusion of evidence at trial is within the sound discretion of the trial court; thus “an evidentiary ruling will be reversed only on a showing that the trial court abused its discretion.” Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1456 (10th Cir.1990) (citation omitted). Newsom’s testimony was announced well into the trial, after Michael Foundation had rested. It concerned the contents of purported secret journals, purportedly kept in locked filing cabinets, until their purported mysterious disappearance over twenty years ago, and purportedly contained evidence highly injurious to Michael Foundation’s case. Suffice it to say that we do not find the district court’s exclusion of Newsom’s testimony to have been an abuse of its broad discretion.

III.

Viewing the evidence in the light most favorable to Michael Foundation, we find that substantial evidence supports the jury’s determination that The Urantia Book is neither a composite nor a commissioned work. We therefore AFFIRM the district court’s denial of Urantia Foundation’s renewed motion for judgment as a matter of law. Because the trial court did not abuse its broad discretion in excluding, on grounds of unfair surprise, the testimony of Barbara Newsom as to the contents of purported secret journals, we AFFIRM the district court’s denial of Urantia Foundation’s motion for a new trial.

McWILLIAMS, Senior Circuit Judge, dissenting.

In my view, the district court erred in denying Urantia Foundation’s motion for judgment, n.o.v. I hold that the Urantia Foundation’s renewal copyright is valid and enforceable as a matter of law. See Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir.1997).