Dorchester Minerals LP v. Chesapeake Exploration LLC

Filing 191

OPINION AND ORDER denying Chesapeake's 175 motion to exclude the expert testimony of Sowards and Harper; and granting Chesapeake's 183 motion to strike Soward's 2/7/2017 report. Signed by Judge J. Leon Holmes on 2/24/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DORCHESTER MINERALS, LP
v.

PLAINTIFF
No. 4:12CV00461 JLH

CHESAPEAKE EXPLORATION, LLC

DEFENDANT

OPINION AND ORDER
Before the Court are two motions by Chesapeake Exploration, LLC. Chesapeake moves the
Court to strike an expert report produced by Dorchester Minerals, LP, pursuant to Federal Rule of
Civil Procedure 37. Chesapeake also moves to exclude both of Dorchester’s experts from trial
pursuant to Federal Rule of Evidence 702. Chesapeake’s motion to strike is granted, but its motion
to exclude is denied.
In the final scheduling order, this Court ordered that the parties disclose and issue expert
reports by December 12, 2016. Document #170. Nearly two months after the deadline for expert
reports had passed and only a month before trial was to commence, Dorchester sent Chesapeake a
report from its expert, Rodney Sowards. Chesapeake asks the Court to strike this report under Rule
37(c). It contends that the report, supported by a database that exceeds 4,000 pages, presents a new
methodology for calculating damages.

Dorchester disputes that the report presents a new

methodology and argues that allowing the report’s use at trial is harmless because the report merely
applies “basic arithmetic functions of addition, subtraction, multiplication, and division.”
Dorchester, however, does not attempt to offer a justification for its late submission.
Rule 37(c)(1) provides sanctions for a party that “fails to provide information or identify a
witness as required by Rule 26(a) or (e).” Under the Rule, “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.” The Eighth Circuit directs courts to consider the
following four factors when determining whether to exclude testimony from an expert not made
known in compliance with a final scheduling order: (1) the reason the party fails to name the
witness; (2) the importance of the testimony; (3) the amount of time the opposing party needs to
properly prepare for the testimony; and (4) whether a continuance would in some way be useful.
Amplatz v. Country Mut. Ins. Co., 823 F.3d 1167, 1172 (8th Cir. 2016) (noting that same factors are
applied to untimely supplemental expert reports). Dorchester has provided the court with no reason
for its failure to timely disclose the report. It has argued that the newness of the report is attributable
to “basic arithmetic” on which expert testimony would not be required. It is unclear how much time
Chesapeake would need in order to prepare for the testimony, but the report is supported by more
than 4,000 pages of data and calculations. Even if the new information is simply the application of
basic arithmetic, the sheer volume of the numbers would require significant time and attention to
digest. And if the new information is simply basic arithmetic, why wasn’t it done before the expert
report deadline of December 12? Why did it take two months after the deadline to perform and
submit this basic arithmetic? Finally, this case was commenced in the summer of 2012. It is an old
case, and the Court has already granted motions to continue the trial. On September 6, 2016, this
Court granted a continuance but informed both parties in that order that no further continuances
would be granted. Document #167. Phase Two of this case will be tried on March 6, 2017. Expert
reports were exchanged in December and rebuttal reports were exchanged in January. All experts
have been deposed. The deadline for completing discovery has passed. We are now only six
business days from trial. The admission of this report so late in a case that has been going on for

2

so long would be unfair to Chesapeake. Chesapeake’s motion to strike Sowards’s February 7, 2017
report is granted.
Chesapeake also moves to exclude the testimony of Dorchester experts Sowards and Rick
Harper. Chesapeake argues that these experts base their opinion “on false assumptions that render
it unreliable under the standards set forth by Daubert and Rule 702.” Document #176 at 1. The
Court will take this motion under advisement pending trial and whether the testimony meets the
requirements of Rule 702 and Daubert if necessary when making findings of fact and conclusions
of law. Chesapeake’s motion to exclude the expert testimony of Sowards and Harper is denied.
CONCLUSION
For the foregoing reasons, Chesapeake’s motion to strike Sowards’s February 7, 2017 report
is GRANTED, but its motion to exclude the expert testimony of Sowards and Harper is DENIED.
Documents #175 and #183.
IT IS SO ORDERED this 24th day of February, 2017.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

3