Marland et al v. Asplundh Tree Expert
MEMORANDUM DECISION AND ORDER denying Plaintiffs' 178 Motion in Limine No. 16 to Preclude Defendant's Witnesses from Testifying that Industry Standards Did Not Require Defendant to Remove the Subject Tree. Signed by Judge Ted Stewart on 2/3/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT K. MARLAND and JENNIFER D.
MARLAND, as conservators for the minor
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION IN LIMINE NO. 16 TO
PRECLUDE DEFENDANT’S WITNESSES
FROM TESTIFYING THAT INDUSTRY
STANDARDS DID NOT REQUIRE
ASPLUNDH TO REMOVE THE SUBJECT
ASPLUNDH TREE EXPERT CO., a
Case No. 1:14-CV-40 TS
District Judge Ted Stewart
This matter is before the Court on Plaintiffs’ Motion in Limine No. 16 to Preclude
Defendant’s Witnesses from Testifying that Industry Standards did not Require Asplundh to
Remove the Subject Tree (Docket No. 178). For the reasons discussed below, the Court will
deny the Motion.
In its Trial Brief, Defendant has expressed its intent to produce evidence “that industry
standards did not require the removal of the tree, and Bountiful City’s own standards for tree
removal did not require removal of the tree.” 1 Plaintiffs seek to preclude such evidence, arguing
that Defendant has failed to adequately disclose any witness who will testify on these matters.
Plaintiffs’ expert has opined that Defendant violated industry standards by failing to
remove the subject tree. However, during his deposition, Mr. Gilmore acknowledged that ANSI
standards gave the trimmer the option to either prune or remove a tree that was growing directly
under a power line. Several witnesses, including Mr. Gilmore, have identified ANSI standards
Docket No. 166, at 2.
as establishing the standards for the industry. Thus, the issue of whether industry standards
require removal of a tree directly under a power line has clearly been identified as an issue in this
case. Further, Defendant has presented evidence through its non-retained expert witnesses that
industry standards do not necessarily require removal of a tree directly underneath a power line.
For instance, in his deposition Edward Boyd made a distinction between a tree growing into a
power line and one that was to the side of a power line. 2 He stated that a Siberian elm growing
on the side of a power line could be trimmed back and need not be removed. 3 Given this
testimony, even assuming that Defendant’s expert disclosures were deficient, any failure is
harmless given the lack of surprise or prejudice to Plaintiffs. 4
Plaintiffs also seek to exclude testimony concerning BCLP’s internal standards. The
Court finds that the subject of BCLP’s internal standards is a factual one and is not subject to
expert disclosure requirements. Therefore, Defendant will not be precluded from eliciting
testimony on this topic. Defendant has identified witnesses who will testify as to those
standards. Moreover, to the extent that testimony concerning BCLP’s policies does constitute
expert testimony, Brent Thomas specifically discussed their policies concerning tree removal in
his deposition. Mr. Thomas stated that BCLP would remove a tree when it was directly under a
power line and it was a tree that would need to get trimmed again in two or three years. 5 Thus,
Docekt No. 176 Ex. 6, at 72:13–25
Id.; see also id. at 73:7–18.
See Fed. R. Civ. P. 37(c).
Docket No. 177 Ex. 6, at 15:2–5 (stating “we would remove the tree if it’s directly
under and it’s a tree that will two years or three years later need to be trimmed again”); id. at
78:13–19 (“I have always, in my direction, given them the ability that if a tree needs to be
removed, to remove it. And what would constitute a tree needing to be removed is if it’s directly
Plaintiffs can demonstrate no surprise or prejudice as to BCLP’s policies concerning removals.
Therefore, exclusion is not required.
It is therefore
ORDERED that Plaintiffs’ Motion in Limine No. 16 to Preclude Defendant’s Witnesses
from Testifying that Industry Standards did not Require Asplundh to Remove the Subject Tree
(Docket No. 178) is DENIED.
DATED this 3rd day of February, 2017.
BY THE COURT:
United States District Judge
underneath a power line and we’re going to have to continually come back to trim it, better to
remove it if we can get the permission.”).
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