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 GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE THE
TESTIMONY OF PLAINTIFFS' ENGINEERING EXPERT
STEWART DISTRICT JUDGE.
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.
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.
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
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.
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
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.
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.
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.
FEDERAL RULES OF PROCEDURE 26 AND 37
any witness a party intends to use at trial to present expert
testimony under Federal Rule of Evidence 702 must provide a
written report. 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. 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
general rule, non-compliance with Rule 26(a) results in the
exclusion of that expert's testimony at
trial. 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.'” 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
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
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.
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.
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.
FEDERAL RULE OF EVIDENCE 702
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
(d) the expert has reliably applied the principles and
methods to the ...