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Marland v. Asplundh Tree Expert Co.

United States District Court, D. Utah

January 13, 2017

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.



         This matter is before the Court on Defendant Asplundh Tree Expert Co.'s Motion to Exclude the Testimony of Plaintiffs' Engineering Expert. For the reasons discussed below, the Court will grant Defendant's Motion in part. Specifically, Dr. Kimbrough will be allowed to testify regarding his “ground potential” theory, the physics of the accident, and the general types of injuries that can be inflicted by a downed power line. However, the Court will exclude Dr. Kimbrough's testimony regarding electrical current passing through J.S.M.'s head, as well as Dr. Kimbrough's opinion regarding how electricity can alter the brain.

         I. BACKGROUND

         The parties agree that on June 30, 2009, a tree limb broke in Bountiful City, fell on an electrical transmission line carrying 7200 volts, that the line severed and fell into the yard, and that the minor J.S.M. suffered injuries as a result. The parties disagree about the extent of J.S.M.'s injuries, and especially whether J.S.M. suffered any kind of brain or neuropsychological injury.

         Plaintiffs retained Scott Kimbrough, Ph.D., to perform a forensic examination of the physics of the event. Dr. Kimbrough has a Ph.D. in Control Systems and has degrees in Thermal Sciences and Mechanics.

         In his report, Dr. Kimbrough first opined that the tree limb caused the power line to fall, and offered an explanation of how the limb caused the wire to sever. Second, Dr. Kimbrough opined that the possible range of current passing through J.S.M.'s body was around 2.8 amps and the power absorbed by his body would be 3, 920 watts, with about 1400 volts directly across J.S.M.'s body and the remaining 5600 volts across the ground. These estimations assume that the wire came in direct contact with J.S.M.'s body.

         Third, Dr. Kimbrough opined that J.S.M. narrowly survived contact with a line that would typically cause a violent death, and theorized that the reason J.S.M. survived was because a relatively high ground resistance must have existed, or that J.S.M. was separated from the ground by a high resistance substance. Again, this opinion assumes that the line came in direct contact with J.S.M.'s body. Dr. Kimbrough went on to explain various ways that electricity can damage the human body.

         In his deposition, Dr. Kimbrough provided new reference material and introduced an alternative explanation of how the event occurred; specifically, that the power line came into contact with the ground rather than J.S.M., and that electricity traveled through the ground to J.S.M. While Dr. Kimbrough stated in deposition that he believes his new theory may be more likely, he did not abandon his original theory.

         Dr. Kimbrough also opined in his deposition that based on photographs he has seen, combined with testimony that J.S.M. was found lying on the ground, an electrical current path would have passed through aspects of J.S.M.'s head.

         Defendant asks the Court to exclude Dr. Kimbrough's testimony at trial under Federal Rules of Evidence 401, 402, 403, and 702 and under Federal Rules of Civil Procedure 26 and 37.



         Generally, any witness a party intends to use at trial to present expert testimony under Federal Rule of Evidence 702 must provide a written report.[1] This report must contain a complete statement of all opinions the witness will express and the basis and reasons for them, the facts or data considered by the witness in forming them, and any exhibits that will be used to summarize or support them, among other things.[2] One purpose for this rule is to allow opposing parties “a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other expert witnesses.”[3]

         As a general rule, non-compliance with Rule 26(a) results in the exclusion of that expert's testimony at trial.[4] However, Federal Rule of Civil Procedure 37(c)(1) “permits district courts to admit expert witness testimony despite a party's failure to comply with Rule 26(a), as long as the violation is ‘justified or harmless.'”[5] In making this determination, the Court weighs four factors: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.”[6]

         First, Dr. Kimbrough's alternative theory regarding the line touching the ground rather than J.S.M. (the “ground potential theory”) should not cause much prejudice or surprise. Defendants agree that the power line fell into the backyard where J.S.M. was playing and that electricity from that wire caused injury to J.S.M. Dr. Kimbrough's theory that the electricity may have passed through the ground into J.S.M. instead of from J.S.M. into the ground is not the type of additional opinion that would unfairly prejudice and surprise. However, Dr. Kimbrough's additional opinion that an electrical current passed through aspects of J.S.M.'s head is both surprising and prejudicial to Defendant. Dr. Kimbrough's original report only contained a general statement that electricity can alter the interaction of nerve cells, including the neurons in the brain.

         Second, Dr. Kimbrough's opinion that an electric current passed through J.S.M.'s head was unforeseen and came months after Defendant's deadline for designating rebuttal experts had passed, giving Defendant no opportunity to retain an expert to rebut this new opinion. While Defendant may prepare a cross-examination of Dr. Kimbrough's new opinion, without a rebuttal expert, Defendant can do little to cure the prejudice caused by the new opinion.

         Third, there is no reason to believe that the admission of the ground potential theory would disrupt trial. However, the probability that the admission of Dr. Kimbrough's recent opinion regarding the electrical current in J.S.M.'s head will disrupt trial is less clear. The issue of whether J.S.M. suffered a brain injury has become an important dispute in this case, and Defendant has very little time before trial to address Dr. Kimbrough's new opinion through the coordination of expert testimony or by any other means. With trial less than one month away, it would be disruptive to allow Dr. Kimbrough to update his report and to allow Defendant to seek a rebuttal expert. Fourth, there is no indication that Dr. Kimbrough's late opinions were made in bad faith or that Plaintiffs willfully withheld these opinions until Dr. Kimbrough's deposition.

         Weighing these factors, the Court finds that admission of Dr. Kimbrough's ground potential theory is harmless, but that Dr. Kimbrough's new opinion regarding the electrical current in J.S.M.'s head is neither justified nor harmless under Rule 37(c)(1). Therefore, Dr. Kimbrough will be precluded from opining that an electrical current passed through J.S.M.'s head.[7]


         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 ...

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