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Marland v. Asplundh Tree Expert Co.

United States District Court, D. Utah

December 27, 2016

SCOTT K. MARLAND and JENNIFER D. MARLAND, as conservators for the minor child, J.S.M., Plaintiffs,
v.
ASPLUNDH TREE EXPERT CO., a Pennsylvania corporation, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFFS' EXPERTS THAT J.S.M. WILL NEED TWENTY ADDITIONAL SURGERIES AND LASER THERAPY IN THE FUTURE

          TED STEWART UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion to Exclude the Testimony of Plaintiffs' Experts that J.S.M. will need Twenty Additional Surgeries and Laser Therapy in the Future. For the reasons discussed below, the Court will grant the Motion in part and deny it in part.

         I. BACKGROUND

         Plaintiffs have retained Sheryl Wainwright, a registered nurse and certified life care planner, to develop a life care plan for J.S.M. and to estimate the costs of his future needs. That life care plan includes, in pertinent part, $740, 669.60 for an additional twenty surgeries and $278, 250.00 for laser therapy treatments after those surgeries. Defendant argues that no medical evidence supports these treatments and seeks exclusion of testimony related to them.

         II. DISCUSSION

         Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Rule 702 imposes a gatekeeper obligation on the Court to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”[1] The Court must fulfill its gatekeeping duty by making specific findings on the record.[2] “Specifically, the court must first determine whether an expert is qualified by knowledge, skill, experience, training, or education to render an opinion. Second, if the court determines that a witness is qualified, it must then determine whether her opinions are reliable.”[3]

         A. TWENTY ADDITIONAL SURGERIES

         “It is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.”[4] Defendant contends that there are not sufficient facts to support Ms. Wainwright's life care plan costs associated with ...


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