United States District Court, D. Utah
SCOTT K. MARLAND and JENNIFER D. MARLAND, as conservators for the minor child, J.S.M., Plaintiffs,
ASPLUNDH TREE EXPERT CO., a Pennsylvania corporation, Defendant.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION TO EXCLUDE THE IMPROPER OPINIONS OF PLAINTIFFS'
Stewart United States District Judge.
matter is before the Court on Defendant's Motion to
Exclude the Improper Opinions of Plaintiffs' Rebuttal
Expert. For the reasons discussed below, the Court will deny
and Defendant have each retained experts to opine on the
cause of the failure of the tree limb that led to the
injuries in this case. Plaintiffs retained Jaak Gilmore. Mr.
Gilmore opined, in pertinent part, that Defendant failed to
follow industry standards by failing to remove the subject
limb or, alternatively, improperly trimmed the subject tree
by making a stub cut.
designated Dr. Daniel Marion. Dr. Marion opined that decay
where the branch connected with the trunk, rather than at
where the stub cut was made, resulted in the breakage of the
limb. Dr. Marion also responded to Mr. Gilmore's
opinions. Dr. Marion opined that the stub cut “appears
to be an attempt to avoid exacerbating disease or
decay.” Dr. Marion stated that, had the entire
branch been removed, it would have led to a branching pattern
that would have a “high probability of
failure.” He also noted that “the presence of
completely decayed branches at the point of contact with the
trunk would have almost ensured the spread of decay into
newly formed branches and trunk area.”
Dr. Marion's report, Plaintiffs designated Benjamin
Harris as a rebuttal expert to contradict or rebut Dr.
Marion's expert report. Mr. Harris' report contains
three opinions. First, Mr. Harris challenged the opinion of
Dr. Marion that “the tissue generating decay entered
base branch epicormic stems sometime prior to the 2005
intentional stub cut.” Defendant concedes that this is
proper rebuttal and does not seek exclusion of this opinion.
Mr. Harris disagreed with Dr. Marion's statement that the
arborist who made the stub cut did so “to avoid
contacting an area of stained wood at the base of the branch
that may have been a bacterial
infection.” Mr. Harris stated that, not only does such
a cut violate ANSI standards, it was also unjustified. Mr.
Harris explained that “[i]f the discolored area was
indeed a bacterial infection, it only covered a small portion
of the circumference of the branch and was not likely a
threat to the health or structural integrity of the
Mr. Harris addressed Dr. Marion's opinion that, had the
branch been removed in 2005, “multiple watersprouts
would have still formed along the main stem and resulted in a
branching pattern similar to the one on the broken
branch.” Mr. Harris stated that while multiple
watersprouts would likely have formed, “they would not
have grown as fast as the regrowth that occurred on the stub
cut.” Mr. Harris explained that “[t]rees
produce a growth hormone called auxin in the branch tips that
moves down the branch, inhibiting the growth of branches and
watersprouts below the tip. With a stub cut, no auxin is
produced for a few seasons and watersprouts that form grow
uninhibited and faster than watersprouts that form on a
parent branch where the auxin is
Rule of Civil Procedure 26(a)(2)(D)(ii) provides for the
disclosure of expert witnesses that are “intended
solely to contradict or rebut evidence on the same subject
matter identified by another party.” “The proper
function of rebuttal evidence is to contradict, impeach or
defuse the impact of the evidence offered by an adverse
party.” “Testimony offered only as
additional support to an argument made in a case in chief, if
not offered ‘to contradict, impeach or defuse the
impact of the evidence offered by an adverse party, ' is
improper on rebuttal.”
argues that Mr. Harris' second and third opinions merely
add support for Mr. Gilmore's opinions and, as such, are
improper rebuttal opinions. The Court disagrees. Mr.
Harris' opinions directly address the opinions expressed
in Dr. Marion's report and explain why, according to Mr.
Harris, Dr. Marion's conclusions are incorrect. While
there is some overlap between Mr. Harris' opinions and
those of Mr. Gilmore, the Court cannot conclude that such
overlap warrants the exclusion of Mr. Harris' testimony.
However, the Court will limit his testimony to true rebuttal
and will not permit him to merely restate the opinions of Mr.
that Defendant's Motion to Exclude the Improper Opinions
of Plaintiffs' Rebuttal Expert (Docket No. 76) is DENIED.
 Docket No. 76 Ex. 3, at 17.