Marland et al v. Asplundh Tree Expert

Filing 202

MEMORANDUM DECISION AND ORDER granting in part and denying in part Plaintiffs' Motions in Limine Nos. 10 and 17 (Docket Nos. 139 and 179 ). 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 GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTIONS IN LIMINE NOS. 10 AND 17

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 Numbers 10 and 17
(Docket Nos. 139 and 179). For the reasons discussed below, the Court will grant the Motions in
part and deny them in part.
Defendant has designated Rodney Bracewell, Edward Boyd, Ron Burge, Kent Gines,
VerNaun Gines, Layne Hartvigsen, Allen Johnson, Tyler Parkin, and Brent Thomas as both fact
witnesses and non-retained expert witnesses. In its expert disclosures, Defendant states that these
witnesses will testify only to the matters discussed in their respective depositions. Plaintiffs
request an order from the Court precluding these witnesses from testifying to matters not
included in their depositions.
A witness who has not been retained “may both testify as a fact witness and also provide
expert testimony.” 1 To present expert testimony at trial, the parties must timely identify these
witnesses and meet the disclosure requirements of Rule 26(a)(2)(C) of the Federal Rules of Civil

1

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

1

Procedure. 2 For non-retained experts, Rule 26(a)(2)(C) requires the parties to provide 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.”
Plaintiffs argue that the plain language of this Rule dictates that any opinions and facts
not included in Defendant’s Rule 26 expert disclosures are not admissible at trial and, therefore,
Defendant’s experts’ testimony is limited to both the facts and opinions in their depositions. The
Court agrees that the witnesses’ testimony regarding their expert opinions must be limited to
those opinions and supporting facts that are contained in their depositions. However, the
advisory committee note to the 2010 amendment of Rule 26(a)(2)(C) makes clear that in regards
to non-retained experts, “[t]he (a)(2)(C) disclosure obligation does not include facts unrelated to
the expert opinions the witness will present.” 3 Therefore, the Court finds no basis to limit fact
testimony from Defendant’s witnesses that is unrelated to their disclosed expert opinions.
The Court therefore holds that Defendant’s non-retained expert witnesses may not testify
about expert opinions and/or facts supporting those opinions that are not stated in their
depositions. However, the witnesses may testify of facts not included within their depositions so
long as those facts are unrelated to the witnesses’ expert opinions.

2

Id.

3

Id.; see also Little Hocking Water Ass’n, Inc. v. E.I. DuPont de Nemours & Co., No.
2:09-CV-1081, 2015 WL 1105840, at *3 (S.D. Ohio Mar. 11, 2015) (noting the difference
between the fact disclosure requirements for non-retained experts and retained experts under
Rule 26).

2

Plaintiffs also request the Court order Defendant to limit its retained expert testimony to
that contained in Defendant’s expert disclosures. The Court has seen no evidence suggesting
Defendant’s retained experts will state any facts that do not form the basis of their opinions or
opine beyond the subjects clearly stated in their reports. The Court therefore declines to grant
Plaintiffs’ request.
It is therefore
ORDERED that Plaintiffs’ Motions in Limine Nos. 10 and 17 (Docket Nos. 139 and 179)
are GRANTED in part and DENIED in part.
DATED this 3rd day of February, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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