Marland et al v. Asplundh Tree Expert

Filing 199

MEMORANDUM DECISION AND ORDER denying Plaintiffs' 176 Motion in Limine No. 14 Re: Defendant's Non-Retained Expert Edward Boyd. 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
child, J.S.M.,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION IN LIMINE NO. 14 RE:
DEFENDANT’S NON-RETAINED
EXPERT EDWARD BOYD

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’ Motion in Limine No. 14 Re: Defendant’s
Non-Retained Expert Edward Boyd (Docket No. 176). For the reasons discussed below, the
Court will deny the Motion.
I. BACKGROUND
Defendant designated Edward Boyd as both a fact witness and a non-retained expert
witness. In its expert disclosures, Defendant states that Mr. Boyd’s opinion testimony will be
consistent with his deposition testimony. In its opposition to Plaintiffs’ Motion for Summary
Judgment, Defendant submitted a declaration from Mr. Boyd. Defendant’s trial brief states that
Mr. Boyd will provide testimony consistent with that declaration. Plaintiffs argue that the
declaration violates the standards of Rule 26 and should therefore be stricken. In the alternative,
Plaintiffs request an order from the Court precluding Mr. Boyd from testifying on matters not
discussed during his deposition.

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II. DISCUSSION
An expert witness who has not been retained “may both testify as a fact witness and also
provide expert testimony” so long as the parties disclose these witnesses as provided in Rule
26(a)(2)(C) of the Federal Rules of Civil Procedure. 1 Rule 26(a)(2)(C) requires the parties to
disclose only “(i) the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705 and (ii) a summary of the facts and opinions to which
the witness is expected to testify.” The advisory committee notes of the 2010 amendment state
that a disclosure under Rule 26(a)(2)(C) is “considerably less extensive than the [retained expert]
report required by Rule 26(a)(2)(B)” and further warns courts to “take care against requiring
undue detail.” 2 Courts have found the requirements to be relatively minimal. 3 Generally, if the
party provides “a brief account that states the main points” 4 and effectively “obviate[s] the
danger of unfair surprise,” 5 the disclosures will meet the 26(a)(2)(C) requirements. Notably, in
contrast to retained expert reports, the advisory committee note explains that “the Rule
26(a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the

1

Fed. R. Civ. P. 26(a)(2)(C) advisory committee’s note to 2010 amendment.

2

Id.

3

See Thompson v. Gammon, No. 12-CV-0276 MCA/SMV, 2015 WL 11117310, at *3
(D.N.M. Feb. 25, 2015) (finding the following summary, “however perfunctory,” to be
sufficient: “Mr. Forsberg is a fact witness who may offer testimony considered expert in nature.
He and his wife Barbara have lived on Walking Rain Road since 1987. He is expected to testify
that the dirt track is sketchy and never used as a road, and building it into a useable road to the
Gammon property would be almost impossible.”).
4

Nicastle v. Adams Cty. Sheriff’s Office, No. 10-CV-00816-REB-KMT, 2011 WL
1674954, at *1 (D. Colo. May 3, 2011).
5

Hayes v. Am. Credit Acceptance, LLC, No. 13-2413-RDR, 2014 WL 3927277, at *2 (D.
Kan. Aug. 12, 2014).
2

witness will present.” 6 Fact testimony unrelated to the expert opinions need meet only the initial
disclosure requirements of Rule 26(a)(1)(A).
Rule 26(a)(1)(A) requires the parties to disclose only “the name and, if known, the
address and telephone number of each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party may use to support its claims or
defenses, unless solely for impeachment.” These disclosures should be “complete and detailed” 7
and should “indicat[e] briefly the general topics on which such persons have information” in
order to “assist other parties in deciding which depositions will actually be needed.” 8
In its initial disclosures, Defendant clearly listed Edward Boyd as an “individual likely to
have discoverable information,” provided Mr. Boyd’s address and telephone number, and
included a brief statement regarding the information Defendant expected Mr. Boyd to produce in
relation to the case. 9
In Defendant’s initial expert disclosures, Defendant disclosed Mr. Boyd’s testimony as
follows:
Mr. Boyd has been the Asplundh Regional Supervisor since 2005. Mr. Boyd was
previously disclosed in Asplundh Tree Expert Co.’s Rule 26(a) Initial Disclosures
and has been deposed in this action. To the extent Mr. Boyd [may] be called at
trial and asked to interpret or opine regarding Asplundh tree trimming policies
and practices, tree trimming practices in general, his experience regarding policies
6

Rule 26(a)(2)(B) duty to disclose “extends to any facts or data ‘considered’ by the
expert in forming the opinions to be expressed, not only those relied upon by the expert.” Fed. R.
Civ. P. 26 advisory committee’s note to 2010 amendment.
7

Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004) (quoting Crouse Cartage Co. v.
National Warehouse Investment Co., No. IP02-071CTK, 2003 WL 23142182, at *1 (S.D. Ind.
2003)).
8

See Fed. R. Civ. Pro. 26(a)(1)(A) advisory committee’s notes on 1993 amendment.

9

Docket No. 156 Ex. A, at 3.

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and practices of Bountiful City Light & Power and other municipalities or
electrical companies he has worked for, or tree trimming adjacent to power lines,
or Asplundh’s business relationship with Bountiful City Power Company in the
years preceding the accident through present, he is being disclosed as a nonretained expert witness. 10
Defendant’s Second Supplemental Expert Disclosures specified that Mr. Boyd’s expert
testimony would be “consistent with the contents of his deposition.” 11 Defendant’s Trial Brief
states that Mr. Boyd will testify regarding, among other things, information consistent with his
Declaration submitted in opposition to Plaintiffs’ Motion for Summary Judgment.
At summary judgment, Plaintiffs disputed the following statements in that Declaration:
(1) “There are no industry standards that require removal of a tree if it is growing to the side of
the power line” 12; and (2) “If a homeowner in Bountiful refused a request to remove a fastgrowing tree that was underneath a power line with branches growing in the power line,
Bountiful City would have Asplundh trim the tree during the cycle, but not remove the tree.” 13
First, testimony regarding industry standards is expert testimony and therefore this
information must have been referenced in Mr. Boyd’s deposition to be admissible under the
parties’ agreement. Defendant points to specific lines of Mr. Boyd’s deposition testimony where
he discussed the industry standards of trimming and removing trees growing around power
lines. 14 The Court finds that these portions of Mr. Boyd’s testimony put Plaintiffs on notice that
Boyd would opine regarding the industry standards of trimming trees growing under and next to

10

Docket No. 139 Ex. A, at 6.

11

Docket No. 176 Ex, B, at 3.

12

Docket No. 66, at 10.

13

Id.

14

Docket No. 187 Ex. A.

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power lines. Mr. Boyd’s testimony on this matter is therefore admissible at trial. Second, what
BCLP would have directed Asplundh to do if a homeowner refused removal is a factual issue
unrelated to Mr. Boyd’s expert opinion and is therefore admissible as fact testimony.
Plaintiffs alternatively seek to limit Mr. Thomas’ testimony to those facts contained in his
deposition. However, as set forth above, the Rule 26(a)(2)(C) disclosure obligation does not
apply to facts unrelated to the witness’ expert opinions. Therefore, the Court will not limit Mr.
Thomas’ testimony, except as it relates to his expert opinions.
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion in Limine No. 14 Re: Defendant’s Non-Retained
Expert Edward Boyd (Docket No. 176) is DENIED.
DATED this 3rd day of February, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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