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Elhannon, LLC v. F.A. Bartlett Tree Expert Co.

United States District Court, D. Vermont

November 19, 2018

ELHANNON LLC, et al. Plaintiffs,


          William K. Sessions III District Judge

         Now before the Court is Defendant's motion in limine to exclude Plaintiff from introducing evidence of Defendant's alleged use of an “illegal” or “banned” chemical on Plaintiff's tree nursery property. Defendant asserts that such evidence is inadmissible under Federal Rules of Evidence (“FRE”) 401 and 403 because it is irrelevant, highly inflammatory and prejudicial, and likely to cause jury confusion. For the reasons set forth below, Defendant's motion is denied in part and granted in part.


          This case arose from a contract and fraud dispute between Plaintiffs Elhannon Wholesale Nurseries, LLC; Elhannon Wholesale Nurseries, LLC; and Elhannon Wholesale Nurseries, Inc. (collectively “Elhannon”) and Defendant F.A. Bartlett Tree Expert Company (“Bartlett”). Bartlett originally filed an action in small claims court and Elhannon subsequently filed this case. Elhannon's principal allegation is that Bartlett failed to perform under a series of contracts entered into between Elhannon and Bartlett, for Bartlett to design and implement a pest management program for Elhannon's entire tree nursery. Elhannon alleges that Bartlett employees underserviced the nursery, leading to a large scale outbreak of disease and insects on its trees; that Bartlett applied chemicals that were not approved for use in Elhannon's nursery in order to attempt to control an incipient outbreak; and that Bartlett falsified its records to give the impression that it was doing more work at Elhannon than it actually performed.

         This motion concerns the use of the Xytect 2F imidacloprid insecticide by Bartlett at Elhannon's tree nursery. The label for this insecticide lists the active ingredient as “Imidacloprid, 1-[(6-Chloro-3-pyridinyl)methyl)-N-nitro-2-imidazolidinimine . . . 21.4%”; with the remaining 78.6% consisting of “other ingredients.” ECF 214-2 at 2. The label also says that this insecticide is “not for use at . . . nurseries, ” and that “[i]t is a violation of Federal law to use this product in a manner inconsistent with its labeling.” ECF No. 214-4 at 4. Other insecticides, not marketed under the Xytect 2F brand name, with identical chemical compositions are authorized for use at nurseries in New York, and have been as early as May 2010. ECF 214-2 at 3.

         On the back side of the contracts between the parties, it states: “Bartlett Tree Experts will be responsible for the proper application of any spray formulation that is commonly used in the business.“ ECF No. 218-4 at 3.

         Xytect 2F was sprayed at Elhannon's nursery on at least three different occasions. The first known application occurred in 2011, when Xytect 2F was sprayed on 109 copper beach trees. ECF 214-1 at 6. Elhannon's principal, D. James Sutton, testified at his deposition that of the 109 “severely infested” trees that were sprayed with Xytect 2F on this occasion, only 17 were “lost.” ECF 214-1 at 8. Sutton remarked “Imidacloprid works. Don't get me wrong.” Id. The second known spraying of Xytect 2F happened in May 2013. Xytect 2F was applied to an unspecified number of “[b]ig oaks . . . covered in scale.” Id. at 9. Sutton testified that Xytect 2F had been effective in ridding the trees of scale in this instance. Id. The third application of Xytect 2F had been on a block of red maple trees in September 2013 and this application was also successful in ridding the trees of infection. Id. at 11.

         Sutton has also testified that Elhannon, at that point in time, had not “suffered harm because of Bartlett's use of banned or elicit[sic] chemicals.” ECF 214-1 at 4. However, a former Bartlett employee, Jason Graham, who had completed work at Elhannon on behalf of Bartlett, testified at his deposition that selling trees containing banned chemicals could possibly create liability for Elhannon. ECF No. 223-1 at 6-7. Graham also testified that he was ordered to use Xytect 2F at Elhannon because Bartlett management knew that their other sprays were not working. ECF No. 223-1 at 188-89.

         Elhannon's Amended Complaint makes multiple mentions of Bartlett's use of “illegal chemicals, ” “banned chemicals, ” and “illegal spraying” at the Elhannon nursery. ECF 27 at ¶¶ 37, 49, 51, 53, 68, 77, 97, 100, 123, 130, 132, and 133. The Amended Complaint alleges that these “illegal” applications of the “banned” chemical, imidacloprid, support its claims of Fraud in the Performance, Breach of Contract, and Negligence.

         Bartlett has also mentioned these applications in its court documents. In its July 24, 2017 Supplemental Responses to Plaintiff's Requests for Admission, Bartlett admitted that during the course of Bartlett's work at Elhannon, Bartlett made “illegal sprays, drenches, or applications of chemicals at the Nursery.” ECF No. 137-4 at 11.


         A. Admissibility Under Federal Rule of Evidence 401

          Under Federal Rule of Evidence (“FRE”) 401, “[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence.” Fed.R.Evid. 401. “[T]he definition of relevance under Fed.R.Evid. 401 is very broad.” United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 90 (2d Cir. 2014).

         Bartlett argues that evidence of the application of Xytect 2F is irrelevant under FRE 401 because “Elhannon has conceded that it has not suffered harm because of ...

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