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Tarter v. Throne Law Office P.C.

United States District Court, D. Montana, Billings Division

February 12, 2019

BRYAN M. TARTER, Plaintiff,
v.
THRONE LAW OFFICE, P.C. and JACOB T. HASEMAN, Defendants.

          ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Relevant Background

         Under 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.

         Thomas 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).

         Throne 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).

         With 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).

         Throne 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 15:10-13).

         Based 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.

         Defendants 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.

         II. Legal Standard

         Rule 26 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 containing:

(i) a complete statement of all opinions the witness will express and the basis ...

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