United States District Court, D. Montana, Butte Division
W. Molloy, United States District Judge.
case arises out of a dispute between the parties regarding
the production and sale of commercial-grade garnet. Plaintiff
Apex Abrasives, Inc. ("Apex") alleges that
following its construction of a garnet processing facility in
Glen, Montana, it was forced to cease operations and
liquidate its inventory because WGI Heaving Minerals, Inc.
and WGI Heavy Minerals, LLC (collectively "WGI")
violated their purchase agreement. WGI objects to Apex's
expert disclosure for Julie Fagenstrom and seeks to
exclude her from offering expert testimony at trial. (Doc.
208.) Argument on the motion was heard on March 28, 2019.
Ultimately, the inadequacy of Ms. Fagenstrom's expert
disclosure excludes her expert testimony at trial, but she is
permitted to testify as a fact witness.
are required to make their expert disclosures at the time and
in the manner ordered by the Court. Goodman v. Staples
The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir.
2011). If a party fails to properly disclose this
information, the party cannot use the non-disclosed
information at trial "unless the failure was
substantially justified or is harmless." Fed.R.Civ.P.
37(c)(1); Yeti by Molloy, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The parties
were reminded of this potential sanction in the Scheduling
Order, which states: "An inadequate report or disclosure
may result in exclusion of the expert's opinions at trial
even though the expert has been deposed." (Doc. 205 at
26(a)(2) provides for disclosures by two types of expert:
those retained or specifically employed to give expert
testimony in a case, Fed.R.Civ.P. 26(a)(2)(B), and those who
are not retained or specially employed, but who nonetheless
may provide expert testimony, Fed.R.Civ.P. 26(a)(2)(C). An
expert who falls into the first category is required to
provide an expert report. Fed.R.Civ.P. 26(a)(2)(B). An expert
who falls into the second category, however, need only
provide disclosures stating both "the subject matter on
which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705  and ... a
summary of the facts and opinions to which the witness is
expected to testify." Fed.R.Civ.P. 26(a)(2)(C)(i), (ii).
Julie Fagenstrom was disclosed as a non-retained expert under
Rule 26(a)(2)(C). While WGI does not dispute that the
disclosure adequately states the subject matter of her
anticipated testimony, Fed.R.Civ.P. 26(a)(2)(C)(i), it argues
the disclosure fails to provide a summary of the facts and
her opinions, Fed.R.Civ.P. 26(a)(2)(C)(ii). Ms.
Fagenstrom's disclosure states:
Fagenstrom provided bookkeeping and accounting services for
Apex Abrasives. She is a Nelson family member and it's
[sic] not receiving compensation for participating as a
witness in this case.
The Subject Matter on Which Ms. Julie Fagenstrom Is Expected
to Present Evidence under Federal Rule of Evidence 702, 703,
1. Apex Accounting and Ledger Entries
Summary of the Facts and Opinions to Which [Ms. Julie
Fagenstrom]  Is Expected to Testify
1. Ms Fagenstrom [sic] will rely on her experience and
knowledge as an accountant; and her personal knowledge of
Apex' [sic] financial and production records and related
2. Based on the foregoing, Ms. Fagenstom will testify
regarding funds Apex was forced to borrow to sustain
operations during the contract period when WGI did not
purchase the minimum specified tonnages, which borrowed funds
are due and owing to the private lender.
3. Based on the foregoing, Ms. Fagenstom will testify
regarding the expenditure and loss of invested capital to
design, construct, and permit the mill. In connection with
this testimony she will opine regarding the value of the
company and the effect Apex's breach of contract had on
4. Based on the foregoing, Ms. Fagenstom will offer opinion
testimony regarding the profit Apex could have expected to
make on the sale of minimum tonnages specified in the
parties' marketing agreement based upon conservative
production costs of four cents per pound.
5. Based on the foregoing, Ms. Fagenstom will testify
regarding revenue generated from the sale of tungsten as a
by-product of garnet production and offer opinion testimony
regarding the amount of revenue Apex lost because WGI failed
to purchase the ...