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Bloome v. Joshua'S Haven, Inc.

United States District Court, S.D. Mississippi, Western Division

December 4, 2019




         This matter comes before the Court on Defendant Joshua's Haven, Inc. (“Joshua's Haven”)'s Motion to Exclude the Testimony and/or Report of Plaintiff's Expert Wes Hopper (Doc. 42), Plaintiff Robert Bloome (“Bloome”)'s Response (Doc. 47), and Joshua's Haven's Reply (Doc. 48). Having read the motion, memoranda in support, the applicable statutory and case law, and being otherwise fully informed in the premises, this Court finds that the Defendant's Motion should be DENIED.


         This case arises out of an injury that occurred at Joshua's Haven, an exotic animal sanctuary in Liberty, Mississippi. Susan Williams (“Williams”) serves as the Director of Joshua's Haven. Bloome lives on the premises of Joshua's Haven and has worked with Williams as a volunteer for several years, since the beginning of the animal sanctuary. Will Robinson (“Robinson”) also worked as a volunteer at the sanctuary at the time of the accident.

         On or about June 26, 2017, Bloome and Robinson were cutting down a large tree - on oak, that was approximately 60 or 70 feet tall - on the premises of the animal sanctuary. To do so, Bloome and Robinson used chainsaws, wedges, and a Bobcat skid steer provided by Joshua's Haven. Bloome instructed Robinson to place the Bobcat at the trunk of the tree, intending to push the tree in the direction they planned for it to fall. However, instead of falling in the intended direction, the tree began to slide off the stump. Once a tree begins to slide, it is completely disconnected and can fall in any direction. Robinson yelled for Bloome to run, and Bloome - not knowing where to go - ran away from Robinson's voice. Bloome did not escape the drop area and the tree fell on him. The Plaintiff brings this action alleging that Joshua's Haven acted negligently and was the direct and proximate cause of his injuries and damages.

         Bloome designated Wes Hopper as an expert witness. Hopper is a professional, certified arborist who has been trained in the field of arboriculture and tree care techniques. Hopper Dep. [ECF 47-4] at p. 6:4-8. Tree care techniques includes cutting down trees, which Hopper has done throughout his career. See id. at p. 6:11-17. Hopper is an owner-operator of Urban forestry, a full-service tree care company that also provides training classes regarding tree care throughout the country. See id at p. 7:5-9.


         Defendant Joshua's Haven moves to exclude the expert testimony and/or report of Wes Hopper, claiming that: (1) Hopper had no Methodology and/or had insufficient facts and data for his opinion, and (2) that Hopper's opinions and testimony will not aid the finder of fact and/or they are nothing more than a legal conclusion. The Court will address each issue in turn.

         Methodology and Data

         The trial court must analyze the relevance and reliability of an expert's testimony. To do so, the court evaluates a list of factors as presented in the Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, Inc. Those factors include: (1) testing and testability; (2) peer-review and publication; (3) the existence of a known or discernible rate of error and/or standards governing the application of the technique; and (4) general acceptance in the relevant field of expertise. See e.g., 509 U.S. 579 (1993). However, these factors do not necessarily apply in all situations. The Supreme Court clarified the trial court's approach to determining the reliability of an expert's testimony, stating that:

“the test of reliability is ‘flexible,' and the Daubert factors neither necessarily nor exclusively apply to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-142 (1999). Although the Supreme Court suggests that the Daubert standard is flexible, the district court should “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Hobbs v. Legg Mason Inv. Counsel & Trust Co., N.A., No. 3:09-cv-9-SA-DAS, 2011 WL 304421, at *3 (N.D. Miss. Jan. 25, 2011)(quoting Kumho Tire Co., 526 U.S. at 152). “[T]he heart of Daubert is relevance and reliability. As long as some reasonable indication of qualifications is adduced, the court may admit the evidence without abdicating its gatekeeping function. After that qualifications become an issue for the trier of fact, rather than the court in its gatekeeping capacity.” Rushing v. Kansas City Southern, 18 F.3d 496, 507 (5th Cir. 1999).

         Therefore, the court must look to this specific expert and his proposed testimony. In this case, the expert testimony pertains to the standards for tree care and the procedure for cutting down trees. The expert relies on the American National Standards Institute (“ANSI”) to present nationally approved proper safety techniques and procedure. As the Plaintiff asserts, “this case does not involve [] mathematical calculations or experimentation like a products liability case or accident reconstruction in a motor vehicle collision case… the methodology applied here was to review the facts available and then compare that to standard practice for cutting down trees.” [ECF 47] at p. 6. This Court agrees with the Plaintiff's characterization of the case and the role of the expert's testimony. The expert is clearly evaluating the accident to determine whether Robinson and Bloome were experienced or had the appropriate knowledge to undertake cutting down a large tree. Hopper is also testifying, independent of Bloome and Robinson's capabilities, to the proper procedure for cutting down trees and the danger involved in such an enterprise.

         Joshua's Haven raises several concerns regarding the data used by Hopper. Namely, that Hopper did not go to the scene of the accident, that he does not know the height or diameter of the tree, the size of the chainsaw used, the wind conditions the day of the accident, or if there were any hollow or rotten spots in the tree. In addition, Hopper did not speak with Will Robinson, but only spoke to Bloome. As such, the Defendant argues that Hopper cannot state whether the decisions and the procedure ...

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