United States District Court, D. Montana, Billings Division
FLAGSTONE DEVELOPMENT LLC an Arizona limited liability company, Plaintiff,
ROCKY MOUNTAIN TIMBERLANDS, LLC, a Montana corporation Defendant.
E.HADDON UNITED STATES DISTRICT JUDGE
Court ordered, on April 20, 2016, that each party file with
the Court Fed.R.Civ.P. 26(a)(2) reports of liability and
damage experts by May 13, 2016. Plaintiff timely filed the
report of James R. Foley ("Foley"), dated April 13,
2011, and a letter authored by John C. Breslo
that disclosed Sheryl Sacry, CPA ("Sacry") as a
damages witness. Attached to Breslo's letter is
Sacry's C.V. and a series of spreadsheets and tables
purporting to calculate Plaintiffs expected profits from the
development of the 30 Mile Ranch.
trial limited to the only remaining claim in this case,
breach of contract, was commenced on April 24, 2017. At that
trial, the jury determined by general verdict that Defendant
had materially breached the Buy-Sell Agreement between
Flagstone Development LLC and Rocky Mountain Timberlands,
LLC.The final unresolved issue is determination
of any damages to Plaintiff resulting from such a breach.
status conference held on July 20, 2017, the Court
tentatively ruled that neither Foley nor Sacry would be
allowed to testify at the damages trial because Foley's
report failed to comply with Fed R. Civ. P. 26(a)(2) and
Sacry did not submit a report at all. The Court invited the
parties to submit motions and briefs, not supplemental expert
reports, directed to the admissibility of Foley's and
Sacry's testimony before making its final ruling.
Accordingly, Defendant filed its statement of position on
July 27, 2017, and Plaintiff filed its statement of position
on July 28, 2017.
to Plaintiffs July 28, 2017, statement of position was a
supplemental report from Foley dated July 26, 2017. Extension
of the May 13, 2016, deadline to file expert reports was
neither sought nor granted.
Daubert, the trial court must act as a
'gatekeeper' to exclude junk science that does not
meet Federal Rule of Evidence 702's reliability standards
by making a preliminary determination that the expert's
testimony is reliable.""[Daubert] requires
a court to admit or exclude evidence based on its scientific
reliability and relevance.. .. Thus, an expert's
'inference or assertion must be derived by the scientific
method' to be admissible." Further, "expert
testimony [must] relate to scientific, technical or other
specialized knowledge, which does not include unsubstantiated
speculation and subjective beliefs."
April 13, 2011, report does not comply with the requirements
of Fed.R.Civ.P. 26(a)(2)(B)(iv) and (v): it makes no mention
of his prior publications, if any. It fails to list the cases
in which he was retained as an expert. Moreover, Foley's
proposed testimony would not be appropriate under Fed.R.Evid.
702(c) and (d): the report does not reveal what methods and
principals, if any, he used to form his opinions or whether
such methods and principals were reliable. It leaves the
Court unable to determine if such methods and principals were
reliably applied. Instead, it purports to be based on
Foley's prior experience and subjective beliefs. Expert
opinions formed from such bases are inappropriate under
Daubert and will not be allowed at trial. The July
26, 2017, supplemental report submitted without authorization
of the Court will be disregarded.
proposed expert testimony is similarly inappropriate under
Daubert and Fed.R.Evid. 702 (b), (c), and (d).
Breslo's letter states that Sacry's opinions are
supported by the pro formas she prepared in the original 30
Mile Ranch Investment Prospectus. However, neither the letter
nor the attachments divulge the facts or data upon which the
opinions are based. Further, Breslo's letter and its
attachments do not disclose what methods and principals, if
any, were applied by Sacry in calculating projected profits
or whether such methods and principals were reliable.
Consequently, the Court is unable to determine if such
methods and principals were reliably applied. Such opinions
based on undisclosed facts, methodology, and principals do
not allow the Court to examine the soundness of the
expert's conclusions under Daubert and will not
be allowed at trial.
expert testimony of James R. Foley and Sheryl Sacry, CPA is
EXCLUDED. Neither will be permitted to testify as an expert
witness at trial.