United States District Court, D. Vermont
ELHANNON LLC, et al. Plaintiffs,
THE F.A. BARTLETT TREE EXPERT COMPANY, Defendant.
OPINION AND ORDER
William K. Sessions III District Judge
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
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.
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
. . . 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.
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.
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.
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
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
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.
Admissibility Under Federal Rule of Evidence 401
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).
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 ...