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Marland v. Asplundh Tree Expert Co.

United States District Court, D. Utah

June 15, 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 DENYING DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL OR REMITTITUR, AND GRANTING PLAINTIFFS' MOTION FOR THE INCLUSION OF PRE-JUDGMENT INTEREST, POST-JUDGMENT INTEREST AND COSTS IN THE FINAL JUDGMENT

          Ted Stewart United States District Judge

         This matter is before the Court on Defendant Asplundh Tree Company's Renewed Motion for Judgment as a Matter of Law, or, in the Alternative, Motion for a New Trial or Remittitur, and on Plaintiffs Scott and Jennifer Marland's Motion for the Inclusion of Pre-Judgment Interest, Post-Judgment Interest and Costs in the Final Judgment. For the reasons set forth below, the Court will deny Defendant's Motion and grant Plaintiffs' Motion.

         I. BACKGROUND

         Plaintiffs Scott and Jennifer Marland (collectively, “Plaintiffs”) initiated suit against Defendant Asplundh Tree Company (“Defendant”) on behalf of their minor child, J.S.M., who was electrocuted by a severed powerline.

         Defendant is a tree trimming company specializing in pruning trees near powerlines. Bountiful City Light and Power (“BCLP”), the owner of the powerline at issue, entered into a contract with Defendant in which Defendant agreed to assist BCLP with line clearance. Pursuant to its contract with BCLP, Defendant trimmed two large Siberian elm trees at Lyle Henderson's property, located at 741 West 3200 South in Bountiful, Utah, on September 27, 2005. One of these Siberian elm trees produced a branch which broke from the tree and landed across the powerline at issue. On June 30, 2009, the fallen branch caused the powerline to sever and fall into the backyard of Wendy Marland, where J.S.M.-then two years old-was playing. The fallen line electrocuted J.S.M. and caused him to suffer severe injuries.

         Beginning on February 7, 2017, the Court conducted a ten-day jury trial regarding the alleged fault of Defendant in causing J.S.M.'s injuries. Plaintiffs argued that Defendant was negligent in failing to remove or recommend removal of the subject tree and/or in failing to properly trim the subject tree to prevent excessive regrowth, and that its negligence was the cause of J.S.M.'s injuries. Defendant argued that it was not negligent and, even if it were, its negligence was not the cause of J.S.M.'s injuries. Defendant further argued that BCLP, Lyle Henderson, and Wendy Marland were at fault for J.S.M's injures. Defendant sought to apportion fault to each of these non-parties accordingly.

         On February 13, 2017, upon the conclusion of Plaintiffs' case-in-chief, Defendant made an oral motion for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure on the basis that Plaintiffs had failed to present sufficient evidence to show Defendant was negligent. Alternatively, Defendant moved for partial judgment as a matter of law on the basis that Plaintiffs' evidence was insufficient to support an award for lost future earning capacity. The Court denied the motion.[1]

         On February 21, 2017, the matter was submitted to the Jury. Later that evening, the ten-person empaneled Jury returned a verdict in the amount of $3, 401, 739.00 in favor of Plaintiffs. The Jury awarded $429, 424.00 for future impairment to earning capacity; $1, 950, 000.00 for non-economic damages, and $1, 022, 315.00 for past and future medical expenses. The Jury found Defendant was 100% at fault and apportioned no fault to BCLP, Lyle Henderson, or Wendy Marland.

         II. STANDARDS OF REVIEW

         A. JUDGMENT AS A MATTER OF LAW

         Under Rule 50(a)(1) of the Federal Rules of Evidence, a court may grant a motion for judgment as a matter of law when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”[2] In considering a motion for judgment as a matter of law, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.”[3] “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”[4] Thus, “a motion for a judgment as a matter of law is cautiously and sparingly granted, ”[5] and “is improper unless the evidence so overwhelmingly favors the moving party as to permit no other rational conclusion.”[6]

         A party that has made a motion for judgment as a matter of law under Rule 50(a) prior to a jury verdict may renew that motion under Rule 50(b) after judgment is rendered. However, the “the renewed motion's scope is restricted to issues developed in the initial [Rule 50(a)] motion.”[7]

         B. NEW TRIAL

         Rule 59(a)(1)(A) provides that a new trial may be granted “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.”[8]“In deciding a new trial motion based on insufficiency of the evidence, a district court must analyze whether the verdict ‘is clearly, decidedly or overwhelmingly against the weight of the evidence.'”[9]

         C. REMITTITUR

         A district court may reduce a jury award under the doctrine of remittitur if the jury's award of damages is “so grossly excessive as to shock the judicial conscience.”[10] However, “[a] district court abuses its discretion in ordering a remittitur ‘when the size of the verdict turns upon conflicting evidence and the credibility of witnesses.'”[11] The Jury's award should therefore stand “so long as it is not so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial.”[12]

         III. DISCUSSION

         Defendant first argues it should be granted judgement as a matter of law because no reasonable jury could have concluded that Defendant breached its duty of care. Alternatively, Defendant argues it should be granted partial judgment as a matter of law regarding the damages award related to J.S.M.'s purported brain injury. If the Court denies Defendant's request for judgment as a matter of law, either in whole or in part, Defendant moves for a new trial on all grounds raised in Defendant's motion for judgment as a matter of law and additionally moves for a new trial on the issue of fault apportionment. Finally, Defendant moves for an order of remittitur or a new trial to determine damages.

         A. BREACH OF DEFENDANT'S DUTY OF CARE

         At trial, Plaintiffs argued Defendant was liable for J.S.M.'s injuries under a theory of negligence. Therefore, in accordance with Utah law, Plaintiffs were required to present evidence that (1) Defendant owed J.S.M. a duty of care; (2) Defendant breached that duty of care; (3) J.S.M.'s injury was proximately caused by Defendant's breach; and (4) J.S.M. suffered damages as a result of the injury.[13]

         Defendant argues that it should be granted judgment as a matter of law or, in the alternative, a new trial because no reasonable jury could have found that Defendant breached its duty of care. At trial, Plaintiffs presented evidence that Defendant breached its duty of care by failing to remove or recommend removal of the subject tree and/or improperly pruning the subject tree by performing a stub cut on the branch that caused the accident. Defendant argues that (1) Plaintiffs presented no evidence establishing that Asplundh's failure to remove the tree breached its duty of care; and (2) the circumstantial evidence presented at trial established that BCLP made the stub cut, not Asplundh.

         Plaintiffs presented sufficient evidence by which the Jury could reasonably infer that Defendant breached its duty in not removing the tree or recommending removal of the tree. At trial, Plaintiffs introduced an invoice showing that Defendant trimmed two trees on Lyle Henderson's property on September 27, 2005.[14] Defendant does not dispute that it trimmed the subject tree on this date. It is also not disputed that Defendant needs permission from both BCLP and the property owner before it can remove a tree. The notes section of the invoice did not include a recommendation that the subject tree be removed. Defendant did not introduce any evidence suggesting it did recommend removal. The Jury could therefore reasonably infer that Defendant assessed and pruned the tree in question and did not recommend its removal.

         Plaintiffs relied on their expert witness, Jaak Gilmore, to support the theory that Defendant's failure to remove the tree or recommend removal was a breach of its duty of care. Mr. Gilmore is a certified arborist who has worked in the tree trimming business for twenty-three years.[15] Mr. Gilmore testified that, based on his review of the evidence-which included around 300 photos, two police reports, and the agreement between Defendant and BCLP[16]-the tree at issue should have been removed.[17] Mr. Gilmore explained that he would have removed the tree based on the fast-growing nature of the tree, the tree's proximity to the side of the powerline, and the wording of the contract between BCLP and Asplundh.[18]

         Defendant argues that Mr. Gilmore's testimony is insufficient to establish that Defendant breached its duty of care because Mr. Gilmore testified that the ANSI 3000 standards create the industry standards for tree pruning and also testified that the ANSI standards do not require removal of a fast growing tree growing to the side of powerline.[19] This argument is not persuasive. This Court has held that evidence of industry standards does not conclusively establish the legal standard of care, but instead serves as evidence to consider in assessing the standard of care.[20] Therefore, that ANSI 3000-the industry standards-may not require removal of all fast growing trees situated to the side of a powerline does not, as a matter of law, establish that Defendant's failure to remove or recommend removal of this particular tree was not a breach of its duty of care. Here, Mr. Gilmore testified the tree should have been removed and based his conclusion on his experience, the contract between the parties, and the location and species of the tree. This testimony provides an evidentiary basis on which the Jury could reasonably find that Defendant breached its duty of care in failing to remove or recommend removal of the tree.

         Even if Plaintiffs had not presented sufficient evidence to show that Defendant breached its duty by failing to remove or recommend removal of the tree, Plaintiffs presented sufficient evidence on which the Jury could rely to find Defendant breached its duty of care by pruning the subject branch with a stub cut.

         Mr. Gilmore testified that photos of the subject branch taken after the accident revealed that the branch had received a stub cut.[21] He further testified that making a stub cut is against industry standards.[22] Referring to the photos taken at the property after the accident, Mr. Gilmore testified he was able to identify where the stub cut had been made.[23] Mr. Gilmore concluded that, based on the length the branch had grown from the point of the stub cut and the standard rate of growth for a Siberian elm, the stub cut was made around the same time Defendant pruned the subject tree.[24]

         Mr. Gilmore further testified that, upon his review of the evidence, he found no documentation or other evidence that BCLP had pruned the tree after Asplundh.[25] BCLP employees confirmed that no documentation could place BCLP at Lyle Henderson's property between September 27, 2005, and the date of the accident.[26]

         Defendant argues that it is entitled to judgment as a matter of law because “[t]he fact that Asplundh trimmed the tree in September of 2005, coupled with Mr. Gilmore's rough estimate, does not outweigh the significant testimony placing BCLP . . . at Mr. Henderson's property.”[27]As previously discussed, for purposes of a judgment as a matter of law, the Court cannot weigh the evidence. The Court may only determine whether the non-movant provided some evidentiary basis to support the jury verdict. Mr. Gilmore's testimony is sufficient to provide the Jury with an evidentiary basis to find that Defendant breached its duty of care by failing to recommend removal of the tree and by improperly trimming the tree. The Court therefore denies Defendant's renewed Motion for judgment as a matter of law on the issue of liability.

         Unlike a motion for judgment as a matter of law, motions for a new trial allow the district court to weigh the evidence presented at trial. As previously noted, however, a court is not to disturb the jury's verdict absent clear, decided, or overwhelming evidence to the contrary.

         At trial, Defendant presented testimony that BCLP, not Asplundh, was more likely to have made the stub cut on the subject branch because BCLP made regular visits to Mr. Henderson's property to restore power, [28] BCLP's line crews frequently make stub cuts when restoring power to a line or when requested by the landowners, [29] and because BCLP often trimmed trees out of a bucket truck as opposed to climbing through the trees to trim them like Asplundh.[30]

         Though this evidence presented by Defendant may support a finding that BCLP, not Asplundh, performed the stub cut, the evidence does not clearly, decidedly, or overwhelmingly outweigh the evidence presented by Plaintiffs. Plaintiffs presented evidence that Asplundh trimmed the subject tree in 2005, that no concrete evidence could place BCLP at Mr. Henderson's property between the time Defendant's crew trimmed the trees and the accident, and that the tree growth from the stub cut showed that the stub cut was performed around the time Defendant trimmed the subject tree. The Court therefore denies Defendant's request for a new trial on the basis of liability.

         B. DAMAGES RELATED TO BRAIN INJURY

         Defendant next moves for partial judgment as a matter of law regarding damages related to J.S.M.'s alleged brain injury. Defendant alternatively moves for a new trial on the same grounds.

         Plaintiffs' evidence supporting that J.S.M. suffered a brain injury was primarily provided by the expert testimony of Dr. Sam Goldstein, a board certified practicing pediatric neuropsychologist with an extensive list of specialty certifications and publications.[31] Defendant argues that Dr. Goldstein's testimony does not support the Jury's verdict awarding damages for a brain injury because (1) Dr. Goldstein is not a medical doctor and therefore is not qualified to diagnose J.S.M. with a brain injury, and (2) Dr. Goldstein's conclusion that J.S.M. will not be able to attend graduate school is not sufficiently connected to the evidence at trial.

         First, as previously stated, a renewed motion for judgment as a matter of law is limited to the subject matter raised in the movant's first motion for judgment as a matter of law. At the close of Plaintiffs' case-in-chief, Defendant orally moved for judgment as a matter of law and partial judgment as a matter of law. Relevant here, Defendant challenged the sufficiency of Dr. Goldstein's opinion that J.S.M. would not obtain certain advanced degrees. Defendant's oral motion did not challenge Dr. Goldstein's qualifications to opine on whether J.S.M. suffered injury to his brain as a result of the electrocution. Dr. Goldstein's qualifications are therefore not properly before the Court.

         Defendant argues that excluding this argument from consideration employs an overly strict interpretation of the case law. Defendant correctly states that preserving an issue for review in a motion for judgment as a matter of law at the close of evidence does not require “[t]echnical precision, ” but need only “adequately notify the court of issues being raised.”[32] However, Defendant has not met this standard. “While Rule 50 ‘does not require technical precision in stating the grounds of the motion, it does require that they be stated with sufficient certainty to apprise the court and opposing counsel of the movant's position with respect to the motion.'”[33] “Thus, the moving party must ‘specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.'”[34]

         Defendant argues that its challenge to Dr. Goldstein's conclusions regarding J.S.M.'s ability to earn advanced degrees sufficiently notified the Court and the opposing party that Defendant challenged Dr. Goldstein's testimony and therefore effectively preserved the issue of Dr. Goldstein's qualifications. Defendant's Reply memorandum includes several citations in support of this argument. However, none of the cited cases offer support for the proposition that challenging the testimony of a particular witness on one issue will preserve all issues related to the testimony of the same witness.[35]

         While Defendant did challenge the sufficiency of Dr. Goldstein's testimony to support the conclusion that J.S.M. would not obtain certain advanced degrees, Defendant did not mention any objection to Dr. Goldstein's qualifications to testify regarding J.S.M.'s likelihood of brain injury such that the Court and Plaintiffs were aware of Defendant's position on the matter. Therefore, the issue of Dr. Goldstein's qualifications was not preserved for consideration.

         Even accepting Defendant's argument that the issue was properly preserved, Defendant's underlying argument that Dr. Goldstein is not qualified to testify regarding the existence of a brain injury fails. Dr. Goldstein is an expert in the field of pediatric neuropsychology. He has a bachelor's degree in psychology, a master's degree in physiological psychology, and a PhD in school psychology.[36] Dr. Goldstein is currently a nationally certified school psychologist and the only board certified pediatric neuropsychologist in the State of Utah. His clinical work primarily consists of consulting and treating children with developmental, genetic, and injury-related cognitive problems.[37] Dr. Goldstein testified that he personally examines 150 to 200 people- primarily children-a year, about half of which have suffered a brain injury.[38] In addition to his clinical work, Dr. Goldstein has authored textbooks, trade books, and test manuals in the field of neuropsychology that are used around the country in both academic and clinical settings.[39]

         Additional testimony presented at trial by both parties further supports that neuropsychologists are qualified to offer an opinion on the existence of a brain injury. Plaintiffs' expert Dr. Judith Gooch, a medical doctor specializing in medicine and rehabilitation, testified that a neuropsychological evaluation “is a good way” to evaluate a subject's thinking and emotional abilities and figure out “if there is a problem.”[40] Defendant's own expert Dr. Brandon Zielinski, a pediatric neurologist, testified that he can and will refer patients to neuropsychologists to determine if their cognition has been affected.[41] Given Dr. Goldstein's extensive experience in the field of pediatric neuropsychology, specifically as it relates to assessing and treating cognitive injures, the Court finds Dr. Goldstein is qualified to offer an expert opinion that J.S.M. suffered a brain injury as a result of the accident.

         Dr. Goldstein testified that he based his conclusions on a review of J.S.M.'s medical records, information provided by J.S.M.'s parents and teacher, J.S.M.'s family history, and a five-hour neuropsychological examination.[42] He explained in some depth the testing administered during J.S.M.'s neuropsychological examination. The administered testing measures the subject's abilities, knowledge, and skills.[43] The various tests produce scores, which Dr. Goldstein then analyzes. J.S.M. scored well above average in areas mostly related to “acquired knowledge, ” such as receptive vocabulary, expressive vocabulary, and verbal comprehension.[44] These types of skills are largely dependent upon the child's environment.[45]Given these strengths exhibited by J.S.M., Dr. Goldstein testified that he would expect J.S.M. to score equally high in areas related to abilities and skills, absent “any intervening variable.”[46]However, many of J.S.M.'s scores reflective of his achievement and abilities were lower than expected.[47] Dr. Goldstein then sought to determine the cause of this unexpected disparity. Dr. Goldstein testified that there is no history of learning disability, attention problems, or developmental problems in JSM's family that would explain the discrepancy.[48] Notably, J.S.M.'s biological family has an impressive academic history. However, understanding the details of J.S.M.'s electrocution, Dr. Goldstein concluded that, to a reasonable degree of neuropsychological probability, the disparity was due to a brain injury caused by the electrocution.[49]

         Dr. Gooch's testimony also supports Dr. Goldstein's conclusion. Dr. Gooch reviewed Dr. Goldstein's findings and testified that the types of cognitive and psychological issues exhibited by J.S.M. are “typically seen in people with injury to the brain.”[50] She further testified that “high voltage electrical injury can and often does cause injury to the brain.”[51]

         The above testimony provides sufficient grounds by which the Jury could reasonably find that J.S.M. suffered an injury to the brain as a result of his electrocution. To support the claim that J.S.M. did not suffer a brain injury, Defendant relied on the opinion of Dr. Zielinski. Dr. Zielinski testified that, based on his review of J.S.M.'s medical records and an independent examination of J.S.M., J.S.M. had not suffered a brain injury.[52] This testimony does not clearly, decidedly, or overwhelmingly outweigh the evidence supporting the Jury's findings. As such, Defendant has not provided grounds for a new trial regarding J.S.M.'s alleged brain injury.

         Next, Defendant argues Dr. Goldstein's testimony does not support the conclusion that J.S.M. will not be able to attend graduate school. Dr. Goldstein testified that, at the time he tested J.S.M., J.S.M. had average abilities.[53] He opined that as J.S.M. ages, his development will remain average in comparison to his peers. Dr. Goldstein further testified that only two to five percent of the population obtain an advanced degree, and that J.S.M.'s current neuropsychological abilities and academic scores do not support the prediction that J.S.M. will be able to obtain a post-graduate degree.[54] He also testified that the areas in which J.S.M. scored low are much more powerful predictors of a person's success.[55]

         Ultimately, Dr. Goldstein concluded that, absent the electrocution, he would expect that all of J.S.M.'s scores would be consistent with the high scores he received in the areas related to knowledge.[56] This conclusion is further supported by J.S.M's family's impressive academic history and Dr. Goldstein's testimony that the education level of a person's biological parents is the best single predictor of the level of achievement a child will obtain.[57]

         Defendant argues the conclusion that J.S.M. will not attend graduate school as a result of the electrocution is not sufficiently supported by Dr. Goldstein's trial testimony, and therefore, the Jury must have relied on impermissible speculation in awarding damages for lost future earning capacity. The Court has previously ruled that the information on which Dr. Goldstein relied and referenced in his expert report was sufficiently connected to his ultimate conclusion that J.S.M.'s scholastic opportunities will be limited as a result of the accident.[58] Dr. Goldstein referenced and elaborated on the same information to reach the same conclusions in his trial testimony. Dr. Goldstein's testimony is therefore sufficient to provide the Jury with an evidentiary basis to find that, it is more likely than not that J.S.M. is not able to obtain certain advanced degrees. Accordingly, the Court denies Defendant's request for partial judgment as a matter of law on the issue of J.S.M.'s alleged brain injury.

         Regarding Defendant's request for a new trial on this issue, Defendant's evidence rebutting the testimony of Dr. Goldstein regarding J.S.M.'s inability to earn a graduate degree was limited to Dr. Zielinski's testimony that it is unlikely J.S.M. suffered a brain injury. As previously discussed, Dr. Zielinski's testimony does not clearly outweigh the evidence presented by Plaintiffs. The ...


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