United States District Court, D. New Mexico
BAR J SAND & GRAVEL, INC., a New Mexico corporation, Plaintiff,
FISHER SAND & GRAVEL CO., a North Dakota corporation, doing business in New Mexico through its division SOUTHWEST ASPHALT & PAVING, Defendant.
MEMORANDUM OPINION AND ORDER
amended counterclaims, Defendant Fisher Sand & Gravel Co.
(“Fisher”) asserts that Plaintiff Bar J Sand
& Gravel, Inc. (“Bar J”) made
misrepresentations that forced Fisher to abandon a stockpile
of material that Fisher could have otherwise sold. Doc. 46 at
26-31. Fisher intends to have its Vice President, Michael
Moehn, testify about the value of this stockpiled material.
In its motion to strike (Doc. 159), Bar J argues that such
testimony constitutes expert testimony, that Fisher did not
provide sufficient disclosure regarding such testimony and,
therefore, the Court should prohibit the testimony. Because
Moehn's testimony will be subject to cross-examination
and constrained by the disclosure provided by Fisher, the
Court will not prohibit Moehn from testifying as to the value
of the stockpiled material. Accordingly, the Court denies Bar
J's motion to strike.
litigation stems from a supply agreement between Bar J and
Fisher. Bar J's ability to enter into such a contract
derived from a sand and gravel mining lease an entity not a
party to this case, Bar J Trucking, Inc., had with the Pueblo
of San Felipe. Doc. 38 at 3, doc. 46 at 2. In Count I of its
amended counterclaims, Fisher asserts that Bar J
misrepresented to Fisher that the lease between Bar J
Trucking and San Felipe Pueblo would be renewed when, in
fact, Bar J knew it would not. Doc. 46 at 23-31. As a result,
Fisher alleges the non-renewal came as a surprise that caused
it to abandon material it had stockpiled on Pueblo land. If
sufficient notice of the non-renewal had been provided,
Fisher claims it would have removed the stockpile, sold the
stockpile, or reduced production so that there would have
been no stockpile at the time the lease between Bar J
Trucking and the Pueblo expired. Doc. 46 at 23, 27.
intends to present evidence of the value of this stockpiled
material through its vice-president, Michael Moehn. Fisher
designated Moehn as a Fed.R.Civ.P. 30(b)(6) witness (Doc. 167
at 3) and provided an “Expert Disclosure on
Fisher's Affirmative Claims” regarding Moehn's
expected damages testimony (Doc. 159, Exh. A). Specifically,
the expert notice stated:
Pursuant to Rule 26(a)(2)(C), Mr. Moehn will testify
regarding the amount of damages that Fisher sustained as a
result of having been forced by Bar J S&G to abandon a
large stockpile of materials in or around January 2015.
Specifically, Mr. Moehn will testify about the value of the
inventory that Fisher was forced to abandon as well as the
economic losses incurred by Fisher.
Mr. Moehn will testify that the value of the inventory that
Fisher was forced to abandon was $3, 094, 964.08. Mr.
Moehn's testimony regarding the value of the inventory is
based on his knowledge of the materials that were abandoned
and the value of those materials.
Mr. Moehn will testify that Fisher's economic losses were
$2, 551, 573.44. Mr. Moehn's testimony regarding
Fisher's economic losses is based on his knowledge of the
costs associated with the production of the materials that
were abandoned as well as the amounts of the materials.
Doc. 159, Exh. A. Bar J argues that this expert notice is
deficient and, as a result, requests the Court to strike the
disclosure and prohibit Moehn from testifying regarding the
value of the stockpiled inventory and about Fisher's
economic losses that resulted from abandoning this inventory.
of Bar J's motion to strike turns on whether Moehn is an
expert witness and, if he is, whether he is the type
described in Fed.R.Civ.P. 26(a)(2)(C), for whom limited
disclosure is required, or the type described in Fed.R.Civ.P.
26(a)(2)(B), for whom more comprehensive disclosure is
required. The Court easily concludes that Moehn's
testimony is not the type for which comprehensive disclosure
is required under Rule 26(a)(2)(B). Whether Moehn's
testimony constitutes lay witness opinion testimony or expert
testimony governed by Rule 26(a)(2)(C) is a closer question.
The Court need not resolve this latter question, however, as
it concludes that, regardless of which applies, Moehn's
testimony should not be prohibited.
26(a)(2)(B) applies to experts “retained or specially
employed to provide expert testimony in the case or one whose
duties as the party's employee regularly involve giving
expert testimony.” The Rule requires such experts to
prepare a written report that meets a number of listed
requirements. Fed.R.Civ.P. 26(a)(2)(B)(i)-(vi). The record
does not support a finding that Fisher employed or retained
Moehn to provide expert testimony or that Moehn's duties
regularly involve giving expert testimony. Rather, the record
indicates that Moehn's regular duties during the time
period in question included valuing the material Fisher
produced and determining how much inventory to keep on hand.
See Doc. 167 Exh. 4 at 2-4, Exh. 6 at 2-6; Doc.
170-2 at 2-3. Thus, Moehn's testimony is not subject to
the requirements of Rule 26(a)(2)(B).
to whether Moehn's anticipated testimony constitutes lay
witness opinion testimony or expert testimony governed by
Rule 26(a)(2)(C), the Court initially notes that Fisher
designated Moehn as a company representative pursuant to
Fed.R.Civ.P. 30(b)(6). It asserts that Moehn “was
actively involved in all aspects of the operation of the
Mine, including but not limited to the sales prices, the
financials, and the production.” Doc. 167 at 8.
Further, Fisher presents evidence that part of Moehn's
responsibilities included pricing material and determining
how much inventory to keep on hand. Id. at 8-9.
Thus, Moehn appears to be the employee Fisher believes is
most qualified to assess the value of the stockpiled
reply, Bar J disputes Fisher's assessed value of the
stockpile. It argues that the stockpile is actually waste
material. Doc. 170 at 3, 9. Bar J further attacks
Fisher's valuation of the stockpile by noting that
Fisher's valuation purportedly averages the value of
various products without providing the underlying data to
support its calculations -- thereby rendering its average
valuation unreliable. Doc. 170 at 2, 4, 7. Bar J also argues
Fisher's valuation is unreliable because no market
actually existed for the stockpiled material Fisher claims it
could have sold. Doc. 170 at 3. All of this may provide
fertile ground for the cross-examination of Fisher's
representative, Moehn, who will testify about how Fisher
valued the stockpiled material. That Bar J has such avenues
for cross-examination, however, does not mean that
Moehn's testimony should be excluded on the basis that
Fisher failed to provide sufficient disclosure of his
asserts that its damages are based on factual information it
provided Bar J as part of its initial disclosures and that
support for these damages does not require expert testimony.
Doc. 167 at 1. It claims that it only declared Moehn to be an
employee expert out of an abundance of caution. Id.
Moehn's damage testimony, it argues, “is not based
on any scientific, technical, or other specialized
knowledge” but rather on Moehn's “personal
knowledge of Fisher's operations at the Mine . .