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DJ Coleman, Inc. v. Nufarm Americas

February 25, 2010

DJ COLEMAN, INC. PLAINTIFF,
v.
NUFARM AMERICAS, INC., DEFENDANT.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE TESTIMONY OF DR. BRIAN JENKS

Before the Court is the Defendant's "Motion to Exclude Testimony of Brian Jenks" filed on February 4, 2010. See Docket No. 76. The Plaintiff filed a response in opposition to the motion on February 18, 2010. See Docket No. 81. For the reasons set forth below, the Court denies the Defendant's motion in limine.

I. BACKGROUND

This is a products liability action arising out of damage to the plaintiff's, DJ Coleman, Inc.'s, sunflower crop in 2007. DJ Coleman alleges that the crop damage was caused by the herbicide Assert(r) which is manufactured by the defendant, Nufarm Americas, Inc. The witness that is the subject of the pending motion is a weed scientist.

II. STANDARD OF REVIEW

Rule 701 of the Federal Rules of Evidence governs the admission of opinion testimony by lay witnesses. Rule 701 provides:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.*fn1 "A witness may provide lay opinion testimony 'about facts within his or her range of generalized knowledge, experience, and perception.'" US Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 690 (8th Cir. 2009) (quoting United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003)). "'While the ordinary rule confines the testimony of a lay witness to concrete facts within his knowledge or observation, the [c]court may rightly exercise a certain amount of latitude in permitting a witness to state his conclusions based upon common knowledge or experience.'" Espino, 317 F.3d at 797 (quoting United States v. Oliver, 908 F.2d 260, 264 (8th Cir. 1990)). "Lay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events." United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001).

III. LEGAL DISCUSSION

Nufarm moves to exclude "the exhibits, reports, studies, PowerPoint presentations, opinions and deposition testimony" of Dr. Brian Jenks "that are related in any way to scientific opinions or conclusions or testing results, and to exclude Jenks from participating further in this case as to these matters." See Docket No. 76. Nufarm contends that Dr. Jenks's testimony is inadmissible because he has no personal knowledge of the state or condition of DJ Coleman's 2007 sunflower crops and was not disclosed as an expert witness to testify on such matters.

DJ Coleman has designated Dr. Jenks as a lay witness in this case under Rule 701. Dr. Jenks has been a weed scientist for North Dakota State University (NDSU) for the last eleven years. See Docket No. 30-8, p. 2. He has a bachelor's and master's degree in agronomy from Utah State University and a doctorate from the University of Nebraska. See Docket No. 30-8, p. 2. Dr. Jenks is stationed at NDSU's Research Extension Center in Minot, North Dakota. As part of his duties as a weed scientist, Dr. Jenks conducts research on crop varieties and pest management (insects, diseases, and weeds). See Docket No. 30-8, p. 2.

Dr. Jenks is familiar with the herbicide Assert(r) and has used it in his studies on sunflowers to control wild mustard:

Q. [Counsel for Nufarm]: What about -- what's efficacious mean, the term you just used.

A. [Dr. Jenks]: Okay. Efficacious means, for example, that in the case of Assert, that it will control the weeds. That it will control certain weeds. It has a specific use intended. And one of the ways that we use Assert is to control wild mustard or mustard species in sunflower. And so by ...


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