Marland et al v. Asplundh Tree Expert

Filing 183

MEMORANDUM DECISION AND ORDER granting in part and denying in part Plaintiffs' Motions in Limine 1 through 4 (Docket Numbers 123 , 124 , 125 , and 126 ). Signed by Judge Ted Stewart on 1/31/2017. (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 PLAINTIFFS’
MOTIONS IN LIMINE 1 THROUGH 4

Plaintiffs,
v.

Case No. 1:14-CV-40 TS

ASPLUNDH TREE EXPERT CO., a
Pennsylvania corporation,

District Judge Ted Stewart

Defendant.

This matter is before the Court on Plaintiffs’ Motions in Limine 1 through 4 (Docket Nos.
123, 124, 125, and 126). For the reasons discussed below, the Court will grant the Motions in
part and deny the Motions in part.
I. BACKGROUND
Plaintiffs seek to exclude specified testimony of the following witnesses: Allen Johnson,
VerNaun Gines, Brent Thomas, and Tyler Parkin. Each of these witnesses are employees of
Bountiful City Light and Power (“BCLP”) and are identified as “will call witnesses” in
Defendant’s pre-trial disclosures. Each of the witnesses also prepared a memorandum related to
the incident at issue, which are also included in Defendant’s pre-trial disclosures. In each of their
memoranda, the witnesses reference statements allegedly made by Lyle Henderson, the owner of
the property where the tree that caused the incident at issue was located, and/or Mr. Henderson’s
tenants. The alleged statements suggest that Mr. Henderson and/or his tenants did not want the
subject tree trimmed or removed.

1

Plaintiffs argue that the specified testimony of each of the above-mentioned witnesses
should not be admitted because it is not based on personal knowledge in violation of Rule 602 of
the Federal Rules of Evidence and because it is hearsay in violation of Rules 801 and 802. The
Court will address these arguments as they apply to the disputed testimony of each witness.
II. DISCUSSION
Rule 602 of the Federal Rules of Evidence states that “[a] witness may testify to a matter
only if evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” “This standard is not difficult to meet. A court should exclude
testimony for lack of personal knowledge ‘only if in the proper exercise of the trial court’s
discretion it finds that the witness could not have actually perceived or observed that which he
testifies to.’” 1 However, Rule 602 “does not govern the situation of a witness who testifies to a
hearsay statement as such, if he has personal knowledge of the making of the statement.” 2
Therefore, to the extent the witness’ testimony is of an out-of-court statement, and not the
underlying facts of the statement, the testimony is admissible if it does not violate the rule
against hearsay.
Rule 801(c) defines hearsay as an out-of-court statement offered “in evidence to prove
the truth of the matter asserted.” A “statement” is defined as “a person’s oral assertion, written

1

United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014) (quoting
United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)).
2

Fed. R. Evid. 602 advisory committee’s note to 1972 amendment; see also Gutierrez de
Lopez, 761 F.3d at 1132 (“If, however, the witness merely has personal knowledge of an out-ofcourt statement offered to prove the fact asserted in that statement—but not the underlying fact—
then his or her testimony must comply with the hearsay rule.”); Bryant v. Farmers Ins. Exch.,
432 F.3d 1114, 1123 (10th Cir. 2005) (“The proper objection would be hearsay, as the
documents are out-of-court statements offered for the truth of the matter asserted.”).

2

assertion, or nonverbal conduct, if the person intended it as an assertion.” 3 Hearsay is not
admissible unless expressly permitted by federal statute, the Federal Rules of Evidence, or “other
Rules prescribed by the Supreme Court.” 4
A. ALLEN JOHNSON
Plaintiffs reference the following statements contained in Mr. Johnson’s memorandum in
support of their Motion to limit Mr. Johnson’s testimony:
While listening to Brent [Thomas] talk to Mr. Henderson, I had the impression
that this was not their first discussions regarding the removal or trimming of his
trees. Brent expressed our concerns for safety and his reluctance to let us either
remove or trim the required amount away from the power line in the past. 5
In discussing the removal of the trees on July 2, 2009, Brent told me that he had
never talked to Mr. Henderson before the evening of June 30, 2009. His
understanding that he had not wanted to remove the trees had come from
VerNaun and his memory of a past outage. 6
I talked to VerNaun about his previous conversations with Mr. Henderson. He
remembered the trees, but was not clear on his conversations with Mr. Henderson.
He only seemed to remember that they didn’t want the undergrowth trimmed and
didn’t want them removed. He was unclear if it was the owner of the duplex or
the tenant that he had talked to. 7
First, Plaintiffs argue that Mr. Johnson’s purported testimony and memorandum violates
Rule 602 of the Federal Rules of Evidence because he did not have first-hand knowledge of the
conversations that took place between Mr. Henderson and/or Mr. Henderson’s tenants and the
BCLP employees. The Court finds that Mr. Johnson’s memorandum complies with Rule 602
because Mr. Johnson’s statements reflect the events and conversations he witnessed first-hand.
3

Fed. R. Evid. 801(a).

4

Fed. R. Evid. 802.

5

Docket No. 123 Ex. A, at 3.

6

Id.

7

Id. at 4.

3

Notably, Plaintiffs dispute only the portions of Mr. Johnson’s memorandum that discuss out-ofcourt statements made by Mr. Henderson or his tenants. To the extent Mr. Johnson seeks to
testify about these statements, Rule 602 is not the proper analysis. Mr. Johnson may offer
testimony of his co-workers’ out-of-court statements if Defendant can show the testimony does
not violate the rule against hearsay.
1. Mr. Henderson’s statements
Defendant argues that Mr. Johnson’s testimony regarding his coworkers’ conversations
with Mr. Henderson is permissible because the testimony (1) will show Mr. Henderson made a
prior inconsistent statement, which is not hearsay under Rule 801(d)(1)(A) of the Federal Rules
of Evidence and (2) qualifies as an opposing party statement, which is also not hearsay according
to Rule 801(d)(2) of the Federal Rules of Evidence.
Defendant asserts that Mr. Henderson told the BCLP employees that he would not allow
BCLP to trim or remove the subject tree. Mr. Henderson later stated, in his deposition, that he
gave BCLP permission to do “whatever need[ed] to happen.” 8 Defendant therefore argues that
Mr. Henderson’s statements to the BCLP employees are admissible because such statements
qualify as prior inconsistent statements allowed by Rule 801(d)(1)(A).
Rule 801(d)(1)(A) provides that a statement is not hearsay if “[t]he declarant testifies and
is subject to cross-examination about a prior statement, and the statement . . . is inconsistent with
the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other
proceeding or in a deposition.” “Ordinarily a witness is regarded as ‘subject to cross-

8

Docket No. 141 Ex. A, at 4.

4

examination’ when he is placed on the stand, under oath, and responds willingly to questions.” 9
“Thus, [Rule 801(d)(1)(A)] applies only to prior statements given under oath.” 10 Mr.
Henderson’s alleged statements to the BCLP employees were not made while Mr. Henderson
was “subject to cross examination.” Therefore, Rule 801(d)(1)(A) does not allow Mr. Johnson to
repeat those statements as substantive evidence. 11
Defendant also argues that Mr. Henderson is a party opponent and, therefore, his prior
statements are not hearsay under Rule 801(d)(2). Rule 801(d)(2) provides a statement is not
hearsay where “[t]he statement is offered against an opposing party and . . . was made by the
party in an individual or representative capacity.” Mr. Henderson, however, is not and has never
been a party to this case.
Defendant cites Messler v. Phillip, 12 to support its contention that Mr. Henderson should
be treated as an opposing party because Defendant seeks to apportion fault to Mr. Henderson.
Messler, however, is readily distinguishable. In Messler, a Colorado state court found that a co-

9

United States v. Torrez-Ortega, 184 F.3d 1128, 1132 (10th Cir. 1999) (quoting United
States v. Owens, 484 U.S. 554, 561 (1988)); United States v. Silverstein, 737 F.2d 864, 867 (10th
Cir. 1984) (“The rule applies only to prior statements of a witness who testifies at a trial or
hearing subject to cross-examination.”).
10
Silverstein, 737 F.2d at 867 (10th Cir. 1984); see also United States v. Moreno, 271 F.
App’x 767, 769 (10th Cir. 2008) (“Even assuming that the police report was a prior statement
inconsistent with the detective’s trial testimony, it was not a statement ‘given under oath . . . at a
trial, hearing, or other proceeding.’”); United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988)
(“And because [the witness’] prior statements were given under oath and he was subject to crossexamination at trial, the prior inconsistent statements were not hearsay, and were admissible as
substantive evidence”).
11
Although Mr. Henderson’s statements are not admissible as substantive evidence under
Rule 801(d)(1)(A), they may be admissible as impeachment evidence. Moreno, 271 F. App’x at
769 (“If a witness’s prior statements are not made under oath, the statements are admissible only
to impeach or discredit the witness”) (internal quotation marks omitted).
12

867 P.2d 128, 135 (Colo. App. 1993).

5

defendant in a negligence case who failed to appear at trial and subsequently had a default
judgment entered against him was no longer a party to the case and thus did not qualify as an
“opposing party” for purposes of Rule 801(d)(2). The court of appeals explicitly refused to
reverse this decision, but did advise the trial court to take a second look at the issue on remand,
finding that statements by the co-defendant “may be admissible” where the trial court had not yet
resolved an issue potentially involving the co-defendant. 13 The language of the appellate court
suggests that if the trial court determined the co-defendant was not an actual party to the case,
Rule 801(d)(2) would not apply. Mr. Henderson is not an actual party opponent on any issue
remaining in this case. Messler is therefore neither controlling nor persuasive. The Court finds
that Mr. Henderson is not an actual party opponent and therefore Rule 801(d)(2) does not allow
Mr. Johnson to testify about Mr. Henderson’s alleged statements to the BCLP employees.
2. Mr. Thomas’ statements
Defendant argues that Mr. Johnson’s statements regarding his discussion with Mr.
Thomas is not hearsay because the statements will be offered to show that there was a
conversation about removing the tree almost immediately after the incident, and not for the truth
of matter asserted.
The portions of Mr. Johnson’s memorandum disputed in Plaintiffs’ Motion that reference
statements by Brent Thomas include the following: “Brent expressed our concerns for safety and
[Mr. Henderson’s] reluctance to let us either remove or trim the required amount away from the
power line in the past” 14; “Brent told me that he had never talked to Mr. Henderson before the

13

Id. at 135.

14

Docket No. 123 Ex. A, at 3.

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evening of June 30, 2009” 15; and “[Brent’s] understanding that he had not wanted to remove the
trees had come from VerNaun and his memory of a past outage.” 16
As previously mentioned, Defendant seeks to prove that Mr. Henderson would not allow
Defendant to properly trim or remove the subject tree. The referenced portions of Mr. Johnson’s
memorandum regarding Mr. Thomas’ conversation with Mr. Henderson plainly support
Defendant’s contention that Mr. Henderson did not want the subject tree removed or trimmed to
excess. It is therefore difficult for the Court to believe that these statements are not offered for
the truth of the matter asserted. Should Defendant wish to produce evidence that Mr. Thomas
and Mr. Johnson had a conversation shortly after the incident took place, Defendant may ask
either or both of the witnesses about this conversation. Mr. Johnson’s testimony regarding
statements made by Brent Thomas is hearsay and therefore inadmissible.
However, because Mr. Thomas is also listed as a “will call witness” for the trial, Mr.
Thomas may testify regarding his statements to Mr. Henderson and his impressions of Mr.
Henderson’s wishes regarding the subject tree. Therefore, these portions of Mr. Johnson’s
memorandum will not be excluded if Defendant can lay foundation to admit Mr. Johnson’s
memorandum and if Mr. Thomas provides testimony consistent with these statements.
3. Mr. Gines’ statements
Defendant argues that Mr. Johnson’s memorandum should be allowed because the
memorandum constitutes a “recorded recollection” and a “record of a regularly conducted

15

Id.

16

Id.

7

activity” both of which constitute an exception to the rules against hearsay under Rules 803(5)
and 803(6) of the Federal Rules of Evidence.
A recorded recollection is “a record that: is on a matter the witness once knew about but
now cannot recall well enough to testify fully and accurately; . . . was made or adopted by the
witness when the matter was fresh in the witness’s memory; and . . . accurately reflects the
witness’s knowledge.” 17
Mr. Johnson’s memorandum contains the following statements allegedly made by
VerNaun Gines:
I talked to VerNaun about his previous conversations with Mr. Henderson. He
remembered the trees, but was not clear on his conversations with Mr. Henderson.
He only seemed to remember that they didn’t want the undergrowth trimmed and
didn’t want them removed. He was unclear if it was the owner of the duplex or
the tenant that he had talked to. 18
Notably, Mr. Johnson, the person creating the memorandum, is not the same person who
observed the underlying events. The Tenth Circuit has held that “past recollection is admissible
where it is the product of an oral report of facts by one witness to another who writes them
down” if “each participant in the chain testifies at trial as to the accuracy of his or her piece of
the chain.” 19 Therefore, the fact that Mr. Johnson did not personally observe the alleged
statements by Mr. Henderson and/or his tenants is not determinative. However, Mr. Gines’
statements to Mr. Johnson do not meet the standards of Rule 803(5) because they were not made
while the underlying conversation with Mr. Henderson was “fresh in [Mr. Gines’] memory.” The
conversation Mr. Gines recalled occurred well before his statements to Mr. Johnson, such that he
17

Fed. R. Evid. 803(5) (emphasis added).

18

Id. at 4.

19

United States v. Hernandez, 333 F.3d 1168, 1178−79 (10th Cir. 2003).

8

was “unclear” on both the precise substance of the conversation and the identity of the
participants in the conversation. The portions of Mr. Johnson’s memorandum regarding his
conversations with Mr. Gines are therefore not admissible under the recorded recollection
exception.
Finally, Defendant argues that it will lay the foundation at trial to show that Mr.
Johnson’s memorandum is admissible as a “record of a regularly conducted activity” and is
therefore admissible as an exception to the rule against hearsay under Rule 803(6).
To fall within this exception, a document must (1) have been prepared in the
normal course of business; (2) have been made at or near the time of the events it
records; and (3) be based on the personal knowledge of the entrant or of an
informant who had a business duty to transmit the information to the entrant. 20
Defendant cannot lay foundation to admit the portions of Mr. Johnson’s memorandum
regarding his conversation with Mr. Gines as a business record because the statements made by
Mr. Gines were not made or recorded “at or near the time of the events it records.” 21 “Timeliness
is essential because ‘any trustworthy habit of making regular business records will ordinarily
involve the making of the record contemporaneously.’” 22 As previously discussed, the
statements Mr. Gines made to Mr. Johnson referenced a conversation Mr. Gines had with Mr.
Henderson and/or his tenants at a previous time. Mr. Gines’ admittedly unclear memory of the
conversation is sufficient evidence to show that the length of time between the event and the

20

Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1017 (10th Cir. 2004) (internal quotation
marks and citations omitted).
21
Id.
22

Abascal v. Fleckenstein, 820 F.3d 561, 565 (2d Cir. 2016) (quoting United States v.
Strother, 49 F.3d 869, 876 (2d Cir.1995)).

9

recording of the event was not close enough to meet the timeliness element of the business
records exception.
Neither the “recorded recollection” nor the “record of regularly conducted activity”
exceptions to the rules against hearsay are applicable to this portion of Mr. Johnson’s
memorandum concerning his conversation with Mr. Gines. However, these exceptions may
apply to the remaining portions of Mr. Johnson’s memorandum if Defendant can lay sufficient
foundation.
Lastly, Mr. Gines’ alleged out of court statements reference other out-of-court statements
made by Mr. Henderson and/or his tenants. If the hearsay testimony itself contains a hearsay
statement, “a hearsay exception must apply to each link of the chain.” 23 Therefore, even if the
Court found the above discussed rules of evidence applied to the challenged portions or the
memorandum, the Court would not be able to admit Mr. Gines’ statements to Mr. Johnson
because Defendant failed to argue the admissibility of each “link.”
For the aforementioned reasons, the Court holds that Mr. Johnson’s testimony will be
limited to his personal impressions regarding the subject tree and incident. Mr. Johnson will not
be allowed to testify of statements made by Mr. Gines because said testimony would amount to
impermissible hearsay. Further, if Defendant is able to lay sufficient foundation to admit Mr.
Johnson’s memorandum as evidence at trial, the following paragraph in Mr. Johnson’s
memorandum will be excluded:
6. I talked to VerNaun about his previous conversations with Mr. Henderson. He
remembered the trees, but was not clear on his conversations with Mr. Henderson.
He only seemed to remember that they didn’t want the undergrowth trimmed and
23

Regan-Touhy v. Walgreen Co., 526 F.3d 641, 650 (10th Cir. 2008) (citing Fed. R. Evid.

805).
10

didn’t want them removed. He was unclear if it was the owner of the duplex or
the tenant that he had talked to. 24
B. VERNAUN GINES
Plaintiffs reference the following statements contained in Mr. Johnson’s memorandum in
support of their Motion to limit Mr. Gines’ testimony:
In discussing the removal of the trees on July 2, 2009, Brent told me that he had
never talked to Mr. Henderson before the evening of June 30, 2009. His
understanding that he had not wanted to remove the trees had come from
VerNaun and his memory of a past outage. 25
I talked to VerNaun about his previous conversations with Mr. Henderson. He
remembered the trees, but was not clear on his conversations with Mr. Henderson.
He only seemed to remember that they didn’t want the undergrowth trimmed and
didn’t want them removed. He was unclear if it was the owner of the duplex or
the tenant that he had talked to. 26
Plaintiffs also reference the following statement from Mr. Gines’ memorandum:
I do not remember who we received permission from [in] the past to trim trees but
I do remember they wanted as much as possible left for shade. 27
First, Plaintiffs argue that testimony from Mr. Gines as well as the above referenced
portions of Mr. Gines’ memorandum violate Rule 602 because Mr. Gines could not recall who
he spoke to regarding the tree trimming and removal. The Court finds that Mr. Gines’ anticipated
testimony and memorandum comply with Rule 602 because Mr. Gines’ statements reflect only
the matters he personally observed. Plaintiffs dispute the portions of Mr. Gines’ testimony that
discuss out-of-court statements. To the extent Mr. Gines’ testimony involves out-of-court

24

Docket No. 123 Ex. A, at 4.

25

Docket No. 124 Ex. A, at 3.

26

Id. at 4.

27

Id. Ex. B, at 2.

11

statements, Rule 602 is not the proper analysis. Mr. Gines may offer testimony of the out-ofcourt statements if Defendant can show the testimony does not violate the rules of evidence
against hearsay.
1. Mr. Gines’ testimony consistent with Mr. Johnson’s memorandum
As with Mr. Johnson, Defendant argues Mr. Gines should be able to testify of Mr.
Henderson’s alleged statements because (1) the testimony would contradict a prior inconsistent
statement and is therefore not hearsay under Federal Rule of Evidence 801(d)(1)(A) and (2) Mr.
Henderson is an opposing party and therefore any of his statements are not subject to the rule
against hearsay under Federal Rule of Evidence 801(d)(2). For the same reasons discussed
above, the Court rejects these arguments.
2. Mr. Gines’ testimony consistent with his own memorandum
Defendant argues Mr. Gines’ testimony that he did not receive permission to remove the
subject tree is not a specific statement and is therefore not hearsay. The Court agrees. Mr. Gines
testimony regarding his understanding that BCLP was not given permission to remove trees does
not contain an out-of-court statement and is therefore not impermissible hearsay.
3. Mr. Gines’ memorandum
Defendant argues that Mr. Gines’ memorandum is admissible because the memorandum
is both a recorded recollection and a record of regularly conducted activity under Rules 803(5)
and 803(6) of the Federal Rules of Evidence. For the same reasons discussed above, the portion
of Mr. Gines’ memorandum reading, “I do not remember who we received permission from [in]
the past to trim trees but I do remember they wanted as much as possible left for shade” is not
admissible under the “recorded recollection” exception or the “record of regularly conducted

12

activity” exception. The statement references a conversation that took place well before the date
the memorandum was created, such that Mr. Gines could not recall the specifics of the
conversation. Therefore, the statement does not meet the timeliness requirement of either a
recorded recollection or a record of regularly conducted activity. Again, if Defendant is able to
show sufficient foundation, these exceptions may allow the remainder of Mr. Gines’
memorandum to be admitted into evidence at trial.
The Court holds that Mr. Gines will not be allowed to testify regarding specific
statements made to him by Mr. Henderson, Mr. Henderson’s tenants, or any other third party.
Furthermore, the statement reading “I do remember they wanted as much as possible left for
shade” shall be excluded as impermissible hearsay if Mr. Gines’ memorandum is admitted at
trial. Mr. Gines may, however, testify about his impressions of the situation surrounding the
trimming and removal of the subject tree, including his belief that BCLP was not permitted to
trim or remove the subject tree.
C. BRENT THOMAS
Plaintiffs reference the following statements contained in Mr. Johnson’s memorandum in
support of their Motion to limit Mr. Thomas’ testimony:
Brent expressed our concerns for safety and his reluctance to let us either remove
or trim the required amount away from the power line in the past. 28
In discussing the removal of the trees on July 2, 2009, Brent told me that he had
never talked to Mr. Henderson before the evening of June 30, 2009. His
understanding that he had not wanted to remove the trees had come from
VerNaun and his memory of a past outage. 29

28

Docket No. 125 Ex. A, at 3.

29

Id.

13

Plaintiffs also reference the following statement from Mr. Thomas’ memorandum:
I also indicated to him very firmly that these trees have been a nuisance to the
power department for many years and felt like it was time that the trees are
removed. 30
Plaintiffs argue that testimony from Mr. Thomas consistent with the above statements in
Mr. Johnson’s memorandum would violate Rule 602 because Mr. Thomas’ knowledge of
BCLP’s interactions with Mr. Henderson prior to the incident is based solely on his
conversations with Mr. Gines. The Court finds that Mr. Thomas’ testimony and memorandum
comply with Rule 602 because Mr. Thomas’ statements reflect his personal observations.
Plaintiffs dispute the portions of Mr. Thomas’ testimony that discuss out-of-court statements. To
the extent Mr. Thomas seeks to testify about out-of-court statements regarding events or
conversations he did not witness, Rule 602 is not the proper analysis. Mr. Thomas may repeat
out-of-court statements in trial if Defendant can show the statements do not violate the rule
against hearsay.
Defendant explains that Mr. Thomas will testify only of his conversation with Mr.
Henderson. Mr. Thomas may testify of his statements to Mr. Henderson during their
conversation. However, Mr. Thomas may not testify of the out-of-court statements Mr.
Henderson made to him because these statements would be hearsay.
Defendant next argues Mr. Thomas’ testimony that Mr. Henderson was reluctant to allow
BCLP to remove the tree after the accident is not hearsay because it is not a specific statement.
The Court agrees. To the extent Mr. Thomas is able to present his testimony in terms of his
impressions of Mr. Henderson’s wishes, the Court will allow the testimony as non-hearsay.
30

Id. Ex. B, at 3.

14

However, Mr. Thomas will not be allowed to state that Mr. Henderson made any specific
statements of “reluctance” as such testimony would amount to impermissible hearsay.
Finally, Defendant argues that it will lay foundation to show that Mr. Thomas’
memorandum is admissible as a recorded recollection and a record of regularly conducted
activity under Rules 803(5) and 803(6) of the Federal Rules of Evidence. The challenged portion
of Mr. Thomas’ memorandum does not contain the same timeliness issues as the memorandums
of Mr. Johnson and Mr. Gines. Therefore, if Defendant lays sufficient foundation, the
memorandum may be admitted under these exceptions.
D. MR. TYLER PARKIN
Mr. Parkin wrote a memorandum on July 2, 2009, after the incident took place. However
the subject of the memorandum is Mr. Parkin’s memory of events that took place at the subject
residence in November of 2004. Plaintiffs reference the following statements contained in Mr.
Parkin’s memorandum in support of their Motion to limit Mr. Parkin’s testimony:
The reason why is the trees were just getting into the secondary wires therefore
we knocked on the door to notify the tenants that we would like to trim the trees.
To our knowledge they declined for us to trim the trees any further. They didn’t
want them any lower. 31
To my knowledge we asked the home owner at 743 West 3200 South during this
job if we could trim his tees and they didn’t want them any lower. 32
Plaintiffs argue that testimony from Mr. Parkin would violate Rule 602 because Mr.
Parkin could not remember if he personally spoke with anyone at the residence or if he received
his information from another BCLP employee. The Court finds that Mr. Parkin’s memorandum

31

Docket No. 126 Ex. A, at 2.

32

Id.

15

complies with Rule 602 because Mr. Parkin’s memorandum reflects only his personal
observations. To the extent Mr. Parkin’s testimony contains out-of-court statements, Rule 602 is
not the proper analysis. Mr. Parkin may offer testimony of out-of-court statements if Defendant
can show the testimony does not violate the rule against hearsay.
Defendant argues that Mr. Parkin’s testimony that BCLP was not given permission to
trim or remove the subject trees does not contain an out-of-court statement and is therefore not
hearsay. The Court agrees. Mr. Parkin may testify regarding his understanding of the
circumstances of BCLP’s tree trimming efforts in November of 2004, so long as that testimony
does not involve any specific out-of-court statements made by another individual.
Defendant argues that to the extent Mr. Parkin does testify of out-of-court statements
made by Mr. Henderson or his tenants, such testimony is not hearsay because (1) the statements
directly contradict a prior inconsistent statement as allowed by Rule 801(d)(1)(A) of the Federal
Rules of Evidence and (2) Mr. Henderson is a party opponent and thus his out-of-court
statements are not hearsay under Rule 801(d)(2) of the Federal Rules of Evidence. For the same
reasons the Court rejected these arguments above, the Court again rejects these arguments as
they apply to Mr. Parkin.
Finally, Defendant argues that Mr. Parkin’s memorandum is admissible because the
memorandum is both a recorded recollection under Rule 803(5) of the Federal Rules of Evidence
and a record of regularly conducted activity under Rule 803(6) of the Federal Rules of Evidence.
Mr. Parkin’s memorandum presents a timeliness issue which precludes its admissibility under
the aforementioned rules.

16

The events Mr. Parkin describes in his memorandum—written in 2009—took place in
2004. Such a time gap unmistakably falls outside the requirements of Rules 803(5) and 803(6).
Therefore, Mr. Parkin’s memorandum is not admissible at trial.
The Court holds that Mr. Parkin may not testify of any out-of-court statements made by
another BCLP employee, Mr. Henderson, or Mr. Henderson’s tenants. Further, Mr. Parkin’s
memorandum shall be excluded from trial. Mr. Parkin may testify of his impressions regarding
BCLP’s efforts to trim and remove trees at the subject property in November of 2004.
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motions in Limine 1 through 4 (Docket Nos. 123, 124, 125,
and 126) are GRANTED in part and DENIED in part.
DATED this 31st day of January, 2017.

BY THE COURT:

Ted Stewart
United States District Judge

17