Elhannon, LLC et al v. The F.A. Bartlett Tree Expert Company

Filing 251

OPINION AND ORDER granting in part and denying in part 214 Motion in Limine to Exclude Evidence of "Banned" or "Illegal" Chemical Applications. Signed by Judge William K. Sessions III on 11/19/2018. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

ELHANNON LLC, et al.
Plaintiffs,
v.
THE F.A. BARTLETT TREE EXPERT
COMPANY,
Defendant.

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Case No. 2:14-cv-262

OPINION AND ORDER
Now before the Court is Defendant’s motion in limine to
exclude Plaintiff from introducing evidence of Defendant’s
alleged use of an “illegal” or “banned” chemical on Plaintiff’s
tree nursery property. Defendant asserts that such evidence is
inadmissible under Federal Rules of Evidence (“FRE”) 401 and 403
because it is irrelevant, highly inflammatory and prejudicial,
and likely to cause jury confusion. For the reasons set forth
below, Defendant’s motion is denied in part and granted in part.
Background
This case arose from a contract and fraud dispute between
Plaintiffs Elhannon Wholesale Nurseries, LLC; Elhannon Wholesale
Nurseries, LLC; and Elhannon Wholesale Nurseries, Inc.
(collectively “Elhannon”) and Defendant F.A. Bartlett Tree
Expert Company (“Bartlett”). Bartlett originally filed an action
in small claims court and Elhannon subsequently filed this case.

Elhannon’s principal allegation is that Bartlett failed to
perform under a series of contracts entered into between
Elhannon and Bartlett, for Bartlett to design and implement a
pest management program for Elhannon’s entire tree nursery.
Elhannon alleges that Bartlett employees underserviced the
nursery, leading to a large scale outbreak of disease and
insects on its trees; that Bartlett applied chemicals that were
not approved for use in Elhannon’s nursery in order to attempt
to control an incipient outbreak; and that Bartlett falsified
its records to give the impression that it was doing more work
at Elhannon than it actually performed.
This motion concerns the use of the Xytect 2F imidacloprid
insecticide by Bartlett at Elhannon’s tree nursery. The label
for this insecticide lists the active ingredient as
“Imidacloprid, 1-[(6-Chloro-3-pyridinyl)methyl)-N-nitro-2imidazolidinimine . . . 21.4%”; with the remaining 78.6%
consisting of “other ingredients.” ECF 214-2 at 2. The label
also says that this insecticide is “not for use at . . .
nurseries,” and that “[i]t is a violation of Federal law to use
this product in a manner inconsistent with its labeling.” ECF
No. 214-4 at 4. Other insecticides, not marketed under the
Xytect 2F brand name, with identical chemical compositions are
authorized for use at nurseries in New York, and have been as
early as May 2010. ECF 214-2 at 3.
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On the back side of the contracts between the parties, it
states: “Bartlett Tree Experts will be responsible for the
proper application of any spray formulation that is commonly
used in the business.“ ECF No. 218-4 at 3.
Xytect 2F was sprayed at Elhannon’s nursery on at least
three different occasions. The first known application occurred
in 2011, when Xytect 2F was sprayed on 109 copper beach trees.
ECF 214-1 at 6. Elhannon’s principal, D. James Sutton, testified
at his deposition that of the 109 “severely infested” trees that
were sprayed with Xytect 2F on this occasion, only 17 were
“lost.” ECF 214-1 at 8. Sutton remarked “Imidacloprid works.
Don’t get me wrong.” Id. The second known spraying of Xytect 2F
happened in May 2013. Xytect 2F was applied to an unspecified
number of “[b]ig oaks . . . covered in scale.” Id. at 9. Sutton
testified that Xytect 2F had been effective in ridding the trees
of scale in this instance. Id. The third application of Xytect
2F had been on a block of red maple trees in September 2013 and
this application was also successful in ridding the trees of
infection. Id. at 11.
Sutton has also testified that Elhannon, at that point in
time, had not “suffered harm because of Bartlett’s use of banned
or elicit[sic] chemicals.” ECF 214-1 at 4. However, a former
Bartlett employee, Jason Graham, who had completed work at
Elhannon on behalf of Bartlett, testified at his deposition that
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selling trees containing banned chemicals could possibly create
liability for Elhannon. ECF No. 223-1 at 6-7. Graham also
testified that he was ordered to use Xytect 2F at Elhannon
because Bartlett management knew that their other sprays were
not working. ECF No. 223-1 at 188-89.
Elhannon’s Amended Complaint makes multiple mentions of
Bartlett’s use of “illegal chemicals,” “banned chemicals,” and
“illegal spraying” at the Elhannon nursery. ECF 27 at ¶¶ 37, 49,
51, 53, 68, 77, 97, 100, 123, 130, 132, and 133. The Amended
Complaint alleges that these “illegal” applications of the
“banned” chemical, imidacloprid, support its claims of Fraud in
the Performance, Breach of Contract, and Negligence.
Bartlett has also mentioned these applications in its court
documents. In its July 24, 2017 Supplemental Responses to
Plaintiff’s Requests for Admission, Bartlett admitted that
during the course of Bartlett’s work at Elhannon, Bartlett made
“illegal sprays, drenches, or applications of chemicals at the
Nursery.” ECF No. 137-4 at 11.
Discussion
A. Admissibility Under Federal Rule of Evidence 401
Under Federal Rule of Evidence (“FRE”) 401, “[e]vidence is
relevant if . . . it has any tendency to make a fact more or
less probable than it would be without the evidence.” Fed. R.
Evid. 401. “[T]he definition of relevance under Fed. R. Evid.
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401 is very broad.” United States v. Certified Envtl. Servs.,
Inc., 753 F.3d 72, 90 (2d Cir. 2014).
Bartlett argues that evidence of the application of Xytect
2F is irrelevant under FRE 401 because “Elhannon has conceded
that it has not suffered harm because of Bartlett’s use” of
imidacloprid. ECF 214 at 4.
Elhannon contends that evidence of the Xytect 2F sprayings
is “material, relevant, and probative under” FRE 401. ECF No.
223 at 7. Elhannon asserts that the evidence is relevant to both
liability and damages. For liability, Elhannon claims that
Bartlett’s use of this insecticide is highly probative not only
to show breach of contract, but also to show that Bartlett knew
it was in breach of contract. According to Elhannon, Bartlett
used this insecticide “in a desperate attempt to cover for its
failure in controlling pests under the IPM contracts they had
sold to Elhannon.” ECF 223 at 1. Former Bartlett employee Jason
Graham testified that he was ordered to use Xytect 2F at
Elhannon because Bartlett management knew that their other
sprays were not working. ECF No. 223-1 at 188-89, 223-2 at 1516.
Elhannon also argues that evidence of these sprayings is
relevant to damages: “For liability reasons, Elhannon selfreported to the New York [Department of Environmental
Conservation (“DEC”)] that illegal chemicals had been used on
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its property, and its understanding is that the DEC’s
investigation is still ongoing. It is not clear whether Elhannon
is free from regulatory liability in New York.” ECF 223 at 6.
However, Bartlett contends that this assertion is merely
speculative and contradicts the deposition testimony of Sutton.
ECF No. 229 at 5-6.
Given the broad mandate of FRE 401, this evidence is
probative. Bartlett’s own contracts stated that it would be
responsible for “the proper application of any spray formulation
that is commonly used in the business.“ ECF No. 218-4, ECF 223
at 3-4. Using an insecticide that has not been approved for use
at commercial nurseries is certainly relevant to this point.
Additionally, Bartlett’s spraying of Xytect 2F indicates that
Bartlett knew the other sprays were not working. Accordingly,
evidence of the Xytect 2F applications is relevant under FRE
401.
B. Admissibility Under Federal Rule of Evidence 403
Under Federal Rule of Evidence 403, a court “may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury.” Fed. R. Evid. 403.
“Application of this Rule requires a balancing analysis, and the
trial judge has broad discretion to weigh the probative value of
the evidence against the negative factors.” Li v. Canarozzi, 142
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F.3d 83, 88 (2d Cir. 1998). “In weighing the probative value of
evidence against the dangers and considerations enumerated in
Rule 403, the general rule is that the balance should be struck
in favor of admission.” S.E.C. v. McGinnis, No. 5:14-CV-6, 2015
WL 5643186, at *14 (D. Vt. Sept. 23, 2015) (quoting United
States v. Dennis, 625 F.2d 782, 797 (8th Cir.1980)).
Bartlett argues that evidence of the use of imidacloprid
would be prejudicial and inflammatory: “[i]n the popular
imagination, a ‘banned’ or ‘illegal’ chemical is a harmful one.
But by Elhannon’s own admission, this chemical has not caused
harm, and, conversely, it has been effective.” ECF 214 at 5.
Thus, because of its “undue tendency to suggest a decision on an
improper basis,” this evidence should be excluded. Id. (quoting
Preda v. Catch Ball Prod. Corp., 162 F.3d 1148 (2d Cir. 1998)).
According to Bartlett, evidence of these applications would also
cause jury confusion, because “the only ‘illegality’ was that
the brand of imidacloprid used by Bartlett – Xytect 2F – was not
authorized for nursery use in New York State.” ECF No. 214 at 7.
The unauthorized used in question “concerns a labeling or
branding issue, and not a public-health concern based on the
chemical properties of the insecticide.” Id.
Elhannon asserts that Bartlett has not fairly assessed the
probative value of the evidence at issue and that the probative
value of this evidence is not outweighed by dangers of prejudice
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and confusion. ECF 223 at 7. Elhannon points to A.I.A. Holdings,
S.A. v. Lehman Bros., No 97 Civ. 4978 (LMM), 2002 WL 31655287
(S.D.N.Y. Nov. 21, 2002). The court in A.I.A. Holdings denied a
motion to exclude the term “rat trading” from use at trial,
because the defendant himself used the term to describe his
activities. Here, Elhannon observes that Bartlett had used and
adopted these terms “for three years. It is only now, on the eve
of trial, that Bartlett is running away from these terms.” ECF
No. 223 at 8.
Bartlett suggests a compromise: if Elhannon is allowed to
refer to Bartlett’s application of imidacloprid during trial,
they should not be allowed to label the chemical “banned” or
“illegal,” but rather say that Bartlett “used a brand of
imidacloprid not registered for use on nurseries in New York
State.” ECF 214 at 6.
This language is an appropriate resolution. It allows
Elhannon to bring in relevant evidence but wards off the
possibility of unfair prejudice. It gives a more accurate
picture of the legal state of imidacloprid, which was legal for
use in nurseries under some brand names but not others.
Referring to Xytect 2F as “banned” or “illegal” would create an
unfair prejudicial effect that would substantially outweigh the
evidence’s probative value. Thus, the Court will allow Elhannon
to bring in evidence of applications of Xytect 2F, but will not
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allow Elhannon to refer to the insecticide as “banned” or
“illegal.” Elhannon may explain that the brand name of
insecticide used was not registered for use in nurseries in New
York State.
Conclusion
For the reasons set forth above, Defendant’s motion in
limine is denied in part and granted in part.
DATED at Burlington, in the District of Vermont, this 19th
day of November, 2018.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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