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Marland v. Asplundh Tree Expert Co.

United States District Court, D. Utah

January 31, 2017

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 PLAINTIFFS' MOTIONS IN LIMINE 1 THROUGH 4

          TED STEWART UNITED STATE'S DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs' Motions in Limine 1 through 4 (Docket Nos. 123, 124, 125, and 126). For the reasons discussed below, the Court will grant the Motions in part and deny the Motions in part.

         I. BACKGROUND

         Plaintiffs seek to exclude specified testimony of the following witnesses: Allen Johnson, VerNaun Gines, Brent Thomas, and Tyler Parkin. Each of these witnesses are employees of Bountiful City Light and Power (“BCLP”) and are identified as “will call witnesses” in Defendant's pre-trial disclosures. Each of the witnesses also prepared a memorandum related to the incident at issue, which are also included in Defendant's pre-trial disclosures. In each of their memoranda, the witnesses reference statements allegedly made by Lyle Henderson, the owner of the property where the tree that caused the incident at issue was located, and/or Mr. Henderson's tenants. The alleged statements suggest that Mr. Henderson and/or his tenants did not want the subject tree trimmed or removed.

         Plaintiffs argue that the specified testimony of each of the above-mentioned witnesses should not be admitted because it is not based on personal knowledge in violation of Rule 602 of the Federal Rules of Evidence and because it is hearsay in violation of Rules 801 and 802. The Court will address these arguments as they apply to the disputed testimony of each witness.

         II. DISCUSSION

         Rule 602 of the Federal Rules of Evidence states that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” “This standard is not difficult to meet. A court should exclude testimony for lack of personal knowledge ‘only if in the proper exercise of the trial court's discretion it finds that the witness could not have actually perceived or observed that which he testifies to.'”[1] However, Rule 602 “does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement.”[2]Therefore, to the extent the witness' testimony is of an out-of-court statement, and not the underlying facts of the statement, the testimony is admissible if it does not violate the rule against hearsay.

         Rule 801(c) defines hearsay as an out-of-court statement offered “in evidence to prove the truth of the matter asserted.” A “statement” is defined as “a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.”[3] Hearsay is not admissible unless expressly permitted by federal statute, the Federal Rules of Evidence, or “other Rules prescribed by the Supreme Court.”[4]

         A. ALLEN JOHNSON

         Plaintiffs reference the following statements contained in Mr. Johnson's memorandum in support of their Motion to limit Mr. Johnson's testimony:

While listening to Brent [Thomas] talk to Mr. Henderson, I had the impression that this was not their first discussions regarding the removal or trimming of his trees. Brent expressed our concerns for safety and his reluctance to let us either remove or trim the required amount away from the power line in the past.[5]
In discussing the removal of the trees on July 2, 2009, Brent told me that he had never talked to Mr. Henderson before the evening of June 30, 2009. His understanding that he had not wanted to remove the trees had come from VerNaun and his memory of a past outage.[6]
I talked to VerNaun about his previous conversations with Mr. Henderson. He remembered the trees, but was not clear on his conversations with Mr. Henderson. He only seemed to remember that they didn't want the undergrowth trimmed and didn't want them removed. He was unclear if it was the owner of the duplex or the tenant that he had talked to.[7]

         First, Plaintiffs argue that Mr. Johnson's purported testimony and memorandum violates Rule 602 of the Federal Rules of Evidence because he did not have first-hand knowledge of the conversations that took place between Mr. Henderson and/or Mr. Henderson's tenants and the BCLP employees. The Court finds that Mr. Johnson's memorandum complies with Rule 602 because Mr. Johnson's statements reflect the events and conversations he witnessed first-hand. Notably, Plaintiffs dispute only the portions of Mr. Johnson's memorandum that discuss out-of-court statements made by Mr. Henderson or his tenants. To the extent Mr. Johnson seeks to testify about these statements, Rule 602 is not the proper analysis. Mr. Johnson may offer testimony of his co-workers' out-of-court statements if Defendant can show the testimony does not violate the rule against hearsay.

         1. Mr. Henderson's statements

         Defendant argues that Mr. Johnson's testimony regarding his coworkers' conversations with Mr. Henderson is permissible because the testimony (1) will show Mr. Henderson made a prior inconsistent statement, which is not hearsay under Rule 801(d)(1)(A) of the Federal Rules of Evidence and (2) qualifies as an opposing party statement, which is also not hearsay according to Rule 801(d)(2) of the Federal Rules of Evidence.

         Defendant asserts that Mr. Henderson told the BCLP employees that he would not allow BCLP to trim or remove the subject tree. Mr. Henderson later stated, in his deposition, that he gave BCLP permission to do “whatever need[ed] to happen.”[8] Defendant therefore argues that Mr. Henderson's statements to the BCLP employees are admissible because such statements qualify as prior inconsistent statements allowed by Rule 801(d)(1)(A).

         Rule 801(d)(1)(A) provides that a statement is not hearsay if “[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” “Ordinarily a witness is regarded as ‘subject to cross- examination' when he is placed on the stand, under oath, and responds willingly to questions.”[9]“Thus, [Rule 801(d)(1)(A)] applies only to prior statements given under oath.”[10] Mr. Henderson's alleged statements to the BCLP employees were not made while Mr. Henderson was “subject to cross examination.” Therefore, Rule 801(d)(1)(A) does not allow Mr. Johnson to repeat those statements as substantive evidence.[11]

         Defendant also argues that Mr. Henderson is a party opponent and, therefore, his prior statements are not hearsay under Rule 801(d)(2). Rule 801(d)(2) provides a statement is not hearsay where “[t]he statement is offered against an opposing party and . . . was made by the party in an individual or representative capacity.” Mr. Henderson, however, is not and has never been a party to this case.

         Defendant cites Messler v. Phillip, [12] to support its contention that Mr. Henderson should be treated as an opposing party because Defendant seeks to apportion fault to Mr. Henderson. Messler, however, is readily distinguishable. In Messler, a Colorado state court found that a co- defendant in a negligence case who failed to appear at trial and subsequently had a default judgment entered against him was no longer a party to the case and thus did not qualify as an “opposing party” for purposes of Rule 801(d)(2). The court of appeals explicitly refused to reverse this decision, but did advise the trial court to take a second look at the issue on remand, finding that statements by the co-defendant “may be admissible” where the trial court had not yet resolved an issue potentially involving the co-defendant.[13] The language of the appellate court suggests that if the trial court determined the co-defendant was not an actual party to the case, Rule 801(d)(2) would not apply. Mr. Henderson is not an actual party opponent on any issue remaining in this case. Messler is therefore neither controlling nor persuasive. The Court finds that Mr. Henderson is not an actual party opponent and therefore Rule 801(d)(2) does not allow Mr. Johnson to testify about Mr. Henderson's alleged statements to the BCLP employees.

         2. Mr. Thomas' statements

         Defendant argues that Mr. Johnson's statements regarding his discussion with Mr. Thomas is not hearsay because the statements will be offered to show that there was a conversation about removing the tree almost immediately after the incident, and not for the truth of matter asserted.

         The portions of Mr. Johnson's memorandum disputed in Plaintiffs' Motion that reference statements by Brent Thomas include the following: “Brent expressed our concerns for safety and [Mr. Henderson's] reluctance to let us either remove or trim the required amount away from the power line in the past”[14]; “Brent told me that he had never talked to Mr. Henderson before the evening of June 30, 2009”[15]; and “[Brent's] understanding that he had not wanted to remove the trees had come from VerNaun and his memory of a past outage.”[16]

         As previously mentioned, Defendant seeks to prove that Mr. Henderson would not allow Defendant to properly trim or remove the subject tree. The referenced portions of Mr. Johnson's memorandum regarding Mr. Thomas' conversation with Mr. Henderson plainly support Defendant's contention that Mr. Henderson did not want the subject tree removed or trimmed to excess. It is therefore difficult for the Court to believe that these statements are not offered for the truth of the matter asserted. Should Defendant wish to produce evidence that Mr. Thomas and Mr. Johnson had a conversation shortly after the incident took place, Defendant may ask either or both of the witnesses about this conversation. Mr. Johnson's testimony regarding statements made by Brent Thomas is hearsay and therefore inadmissible.

         However, because Mr. Thomas is also listed as a “will call witness” for the trial, Mr. Thomas may testify regarding his statements to Mr. Henderson and his impressions of Mr. Henderson's wishes regarding the subject tree. Therefore, these portions of Mr. Johnson's memorandum will not be excluded if Defendant can lay foundation to admit Mr. Johnson's memorandum and if Mr. Thomas provides testimony consistent with these statements.

         3. Mr. Gines' statements

         Defendant argues that Mr. Johnson's memorandum should be allowed because the memorandum constitutes a “recorded recollection” and a “record of a regularly conducted activity” both of which constitute an exception to the rules against hearsay under Rules 803(5) and 803(6) of the Federal Rules of Evidence.

         A recorded recollection is “a record that: is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; . . . was made or adopted by the witness when the matter was fresh in the witness's memory; and . . . accurately reflects the witness's knowledge.”[17]

         Mr. Johnson's memorandum contains the following statements allegedly made by VerNaun Gines:

I talked to VerNaun about his previous conversations with Mr. Henderson. He remembered the trees, but was not clear on his conversations with Mr. Henderson. He only seemed to remember that they didn't want the undergrowth trimmed and didn't want them removed. He was unclear if it was the owner of the duplex or the tenant that he had talked to.[18]

         Notably, Mr. Johnson, the person creating the memorandum, is not the same person who observed the underlying events. The Tenth Circuit has held that “past recollection is admissible where it is the product of an oral report of facts by one witness to another who writes them down” if “each participant in the chain testifies at trial as to the accuracy of his or her piece of the chain.”[19] Therefore, the fact that Mr. Johnson did not personally observe the alleged statements by Mr. Henderson and/or his tenants is not determinative. However, Mr. Gines' statements to Mr. Johnson do not meet the standards of Rule 803(5) because they were not made while the underlying conversation with Mr. Henderson was “fresh in [Mr. Gines'] memory.” The conversation Mr. Gines recalled occurred well before his statements to Mr. Johnson, such that he was “unclear” on both the precise substance of the conversation and the identity of the participants in the conversation. The portions of Mr. Johnson's memorandum regarding his conversations with Mr. Gines are therefore not admissible under the recorded recollection exception.

         Finally, Defendant argues that it will lay the foundation at trial to show that Mr. Johnson's memorandum is admissible as a “record of a regularly conducted activity” and is therefore admissible ...


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