Marland et al v. Asplundh Tree Expert

Filing 200

MEMORANDUM DECISION AND ORDER denying Plaintiffs' 174 Motion in Limine No. 13 to Limit the Testimony of Defendant's Non-Retained Expert Allen Johnson. 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. 13 TO LIMIT
THE TESTIMONY OF DEFENDANT’S
NON-RETAINED EXPERT ALLEN
JOHNSON

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

Case No. 1:14-CV-40 TS
District Judge Ted Stewart

Defendant.

This matter is before the Court on Plaintiffs’ Motion in Limine No. 13 to Limit the
Testimony of Defendant’s Non-Retained Expert Allen Johnson (Docket No. 174). For the
reasons discussed below, the Court will deny the Motion.
I. BACKGROUND
Defendant has designated Allen Johnson as both a non-retained expert witness and a fact
witness. In its Trial Brief, Defendant states that Mr. Johnson will testify regarding, among other
things, Bountiful City Light & Power (“BCLP”)’s settlement with Plaintiffs. 1 Plaintiffs request
an order from the Court precluding Mr. Johnson from testifying about BCLP’s settlement
because the subject was not listed in Defendant’s expert disclosures.
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

1

Docket No. 174 Ex. B.

1

26(a)(2)(C) of the Federal Rules of Civil Procedure. 2 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 witness will present.” 3 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” 4
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.” 5
Mr. Johnson’s testimony regarding BCLP’s settlement with Plaintiffs is fact testimony
that is unrelated to any expert opinions and is therefore subject only to the Rule 26(a)(1)(A)
witness disclosure requirements, not the Rule 26(a)(2)(C) requirements. The Court finds that
Defendant met the requirements of Rule 26(a)(1)(A)’s initial disclosures in regards to Mr.
Johnson’s fact testimony. Defendant identified Mr. Johnson as a witness and provided his
contact information as well as the areas on which he had knowledge. The Court therefore holds
that Mr. Johnson may testify regarding BCLP’s settlement with Plaintiffs.

2

Fed. R. Civ. P. 26 advisory committee’s note to 2010 amendment.

3

Id. 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.” Id.
4

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)).
5

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

2

III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion in Limine No. 13 to Limit the Testimony of
Defendant’s Non-Retained Expert Allen Johnson (Docket No. 174) is DENIED.
DATED this 3rd day of February, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

3