Marland et al v. Asplundh Tree Expert

Filing 118

MEMORANDUM DECISION AND ORDER granting in part and denying in part Defendant's 73 Motion to Preclude Plaintiffs' Counsel at Trial from Inquiring into Dr. Carol Anderson's Expert Opinions in Unrelated Litigation. Signed by Judge Ted Stewart on 12/20/2016. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT K. MARLAND and JENNIFER D.
MARLAND, as conservators for the minor
child, J.S.M.,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO PRECLUDE PLAINTIFFS’
COUNSEL AT TRIAL FROM INQUIRING
INTO DR. CAROL ANDERSON’S
EXPERT OPINIONS IN UNRELATED
LITIGATION

Plaintiffs,
v.
ASPLUNDH TREE EXPERT CO., a
Pennsylvania corporation,

Case No. 1:14-CV-40 TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on Defendant’s Motion to Preclude Plaintiffs’ Counsel at
Trial from Inquiring into Dr. Carol Anderson’s Expert Opinions in Unrelated Litigation. For the
reasons discussed below, the Court will grant the Motion in part and deny it in part.
Defendant retained Dr. Carol Anderson to conduct a full neuropsychological evaluation
of Plaintiff J.S.M. Dr. Anderson has opined “that there is no clear or compelling evidence to
suggest that the electrical accident resulted in brain injury or related deficits in [J.S.M.]’s case.” 1
Dr. Anderson concluded that she did “not believe that a neurocognitive disorder [was]
appropriate in [J.S.M.]’s case, as I cannot say to a reasonable degree of neuropsychological
probability that the 2009 accident caused cognitive deficits or adversely affected his
development.” 2

1

Docket No. 73 Ex. 1, at 17.

2

Id. at 18.

1

During the deposition of Dr. Anderson, Plaintiffs’ counsel extensively examined Dr.
Anderson on her work in an unrelated case where a family was exposed to carbon monoxide. 3
Dr. Anderson was retained by the family and, after conducting an examination of three children
who had been exposed to carbon monoxide, concluded that they had mild neurocognitive
disorders. It appears that Plaintiffs’ counsel intends to attack Dr. Anderson’s credibility by
comparing her findings in that case to her findings with respect to J.S.M. Defendant seeks to
exclude Dr. Anderson’s prior opinions under Federal Rule of Evidence 403.
Rule 403 provides that the Court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Defendant argues that any probative value of Dr. Anderson’s prior
opinions are substantially outweighed by the danger of confusing the issues, misleading the jury,
and wasting time.
Evidence related to Dr. Anderson’s credibility is certainly relevant. However, Dr.
Anderson’s credibility can be impeached without delving into the details of the prior case. Such
questioning poses a substantial danger of confusing the issues, misleading the jury, and wasting
time. Therefore, the Court will preclude Plaintiffs’ counsel from examining Dr. Anderson on her
opinions in the prior matter. That being said, the Court will permit counsel to impeach Dr.
Anderson based on the source of her payment in this case and others, and will also allow counsel
to briefly examine Dr. Anderson concerning whether she has diagnosed brain injuries in
individuals with similar or lesser injuries than those suffered by J.S.M. Those areas can be
3

Id. Ex. 2, at 120:16–147:24.

2

pursued generally without the need for either party to resort to an in-depth analysis of Dr.
Anderson’s prior opinions. By so ruling, the Court does not intend to limit Plaintiffs’ counsel
from exploring any other relevant line of inquiry unrelated to Dr. Anderson’s opinions in the
prior case.
It is therefore
ORDERED that Defendant’s Motion to Preclude Plaintiffs’ Counsel at Trial from
Inquiring into Dr. Carol Anderson’s Expert Opinions in Unrelated Litigation (Docket No. 73) is
GRANTED IN PART AND DENIED IN PART.
DATED this 20th day of December, 2016.
BY THE COURT:

Ted Stewart
United States District Judge

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