United States District Court, D. Montana, Billings Division
BRYAN M. TARTER, Plaintiff,
THRONE LAW OFFICE, P.C. and JACOB T. HASEMAN, Defendants.
P. WATTERS UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Bryan Tarter' s Motion
to Exclude S. Thomas Throne as a "Hybrid''
Liability Expert. (Doc. 25). Tarter argues that Throne is not
a true "hybrid'' fact-expert and
Defendants failed to comply with Rule 26(a)(2)(B), so
Throne's testimony should be excluded. Defendants argue
that Tarter's motion is untimely, it is
unsupported by Fed. R. Civ. Pro. 26, and misrepresents
Throne's knowledge of the case. For the reasons set forth
below, the Court grants Tarter' s motion in
part and denies the motion in part.
the Court's amended scheduling order, the parties
simultaneously disclosed their liability experts by the
Court's deadline of September 28, 2018. (Doc. 26-1).
Defendants disclosed two witnesses who may provide
"hybrid' 'expert testimony. (Doc.
26-1). The defense witness at issue in this motion is S.
Throne. Defendants' disclosure states that Throne may
provide opinion testimony regarding whether Haseman's
representation of Tarter met the standard of care. (Doc. 26-1
at 2). He may also opine, based on his experience in
understanding energy companies' financial viability, that
Arch's 2016 bankruptcy was unforeseeable because the
company appeared to be financially sound in 2011.
(Id.). Finally, Throne may opine, based on
Haseman's notes, billing records, and other case file
documents, that Haseman thoroughly discussed every aspect of
the land-sale transaction with Tarter, and that every
critical aspect of the transaction was discussed with,
explained to, and understood by Tarter. (Id. at 3).
is the founder and managing partner of the Throne Law Firm.
(Doc. 29 at ¶ 2). He was deposed as a fact witness in
this case on January 24, 2018. Throne has practiced law in
Wyoming for 35 years, primarily in the energy and natural
resources field. (Doc. 26-1 at 2). As the managing partner,
Throne testified that he is, to some degree, aware of and
involved in, all firm projects. (Doc. 28-1 at 41:6-42:1).
respect to the Tarter land-sale transaction with Arch Coal in
2010-2011, Throne testified that he "generally
remember[ed] the transaction." (Id. at 12:25-:
13-2). Throne testified that he recalled "having
periodic conversations with [Haseman] about the
transaction," but could not remember specifics.
(Id. at 12:25-13:6). Haseman testified that although
Throne was not personally involved in the negotiations with
Arch, "[Throne] was definitely aware of what was going
on and how the deal was structured and how it looked because
we discussed that." (Doc. 28-2 at 199:19-23).
testified that his role with Haseman in the Arch
land-transaction was to "coach, as needed," but
that his coaching was not needed. (Doc. 26-4 at 16:21-17:2).
Throne has no recollection of any general discussions with
Haseman about the transaction, did not review any of the
draft or final sale documents that Tarter ultimately signed,
did not participate in any phone calls between Haseman and
Tarter regarding the transaction, and was not present for any
of the meetings between Haseman and Tarter. (Doc. 26-4 at
14:21-22:14). Throne was not involved in the June 21, 2011
meeting with Haseman, Tarter and Arch Coal's land
representatives when the Sale and Purchase Agreement was
finalized. (Id. at 13:2-9). Throne's only
recollection is that the meeting happened. (Id. at
on Throne's deposition testimony, Tarter argues that
Throne's opinions must be excluded because Throne had
little to no involvement representing Tarter in 2011. As a
result, Tarter argues that Throne's opinions are not
based on Throne's personal knowledge or observations, nor
were they developed while representing Tarter. Tarter asserts
that Throne's opinions are instead second-hand
evaluations of the evidence in anticipation of trial,
qualifying him as a retained expert. Because Defendants did
not disclose Throne as a retained expert, Tarter argues
Throne's opinions must be excluded altogether.
argue that the court should deny Tarter's motion because
it is untimely, it is unsupported by Fed. R. Civ. Pro. 26,
and it misrepresents Throne's knowledge of the case.
of the Federal Rules of Civil Procedure requires parties to
disclose the identity of any expert witness. If the expert is
"one retained or specially employed to provide expert
testimony in the case or whose duties as the party's
employee regularly involve giving expert testimony," the
disclosure must be accompanied by a written report
(i) a complete statement of all opinions the witness will
express and the basis ...