Free Motion in Limine - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

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Filed 02/15/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) THE OSAGE TRIBE OF INDIANS OF OKLAHOMA,

Electronically Filed: February 15, 2006 No. 99-550L (into which has been consolidated No. 00-169L) Judge Emily C. Hewitt

DEFENDANT'S MOTION IN LIMINE REGARDING THE PROPOSED TESTIMONY OF LUCIAN L. MORRISON Plaintiff's witness list (filed January 12, 2006) indicates that Mr. Lucian L. Morrison is "expected to testify about his experience and knowledge regarding the administration of mineral trusts." Osage Nation's Witness List at 4. Based on the deposition of Mr. Morrison and representations from Plaintiff's counsel, it is Defendant's understanding that Mr. Morrison's testimony will primarily consist of his experience managing several private mineral trusts, including the procedures he would follow to verify oil volumes and prices related to oil royalty payments. For the reasons set forth herein, Defendant moves to preclude Mr. Morrison from testifying about his experience and knowledge regarding the administration of trusts. Mr. Morrison does not have personal knowledge of any factual matters relevant to this case. Further, Mr. Morrison has an extensive history of testifying as an expert witness. Plaintiff is attempting to introduce expert testimony through Mr. Morrison, in violation of the Court's September 1, 2005, Order and RCFC 26(a)(2)(B). I. ARGUMENT 1

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A. Mr. Morrison Does Not Have Personal Knowledge of Any Factual Matters Relevant to this Case. Mr. Morrison simply does not have personal knowledge of factual matters relevant to this case. During his deposition on February 13, 2006, Mr. Morrison testified that he does not know the meaning of the terms "Tranche One leases" or "Tranche One months;" he does not have personal knowledge of the Tranche One leases and months; he knows "nothing about" the Osage mineral estate and trust; he does not have any knowledge about the Osage Agency's administration of the Osage estate mineral trust; and he did not have any pre-existing knowledge of the issues in this litigation prior to meeting with the Osage Nation's attorneys. See February 13, 2006, Deposition of Mr. Morrison ("Morrison Dep.") at 5:19-5:24, 49:13-49:20, 50:16-50:25 (Attached as Exhibit 1). Further, Mr. Morrison testified that he does not have expertise in "the United States government acting as a trustee" and his experience with mineral trusts relates to private entities. Id. at 43:23-44:13. He also has not managed a mineral trust that includes Indian leases. Id. at 98:498:5, 104:24-104:25. Mr. Morrison's experience with private trusts is not relevant to this litigation involving the Federal Government and an Indian Tribe. The trust relationship between the Federal government and the Indians is unique and distinctive. Navajo Tribe of Indians v. United States, 9 Cl. Ct. 227, 251 (1985) (citing Seminole Nation v. United States, 316 U.S. 286, 296 (1942).) In discussing the application of law governing private trustees and the rules governing a breach of fiduciary duty by the fiduciary to the beneficiary in the context of the relationship between the Federal government and the Indians, the Supreme Court stated: "While these undoubtedly provide useful analogies...they cannot be regarded as finally dispositive of the issues." Navajo Tribe, 9 Cl. Ct. at 251 (quoting Nevada v. United States, 463 U.S. 110, 127 (1983)). In fact, in the absence of a specific assumption of fiduciary duties, the 2

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Government should not be presumed to act in the same capacity as a private trustee. Wright v. United States, 32 Fed. Cl. 54, 57 (1994). Consequently, Mr. Morrison's knowledge of private trusts does not have any relevance in this case. B. Plaintiff is Attempting to Introduce Expert Testimony Through Mr. Morrison in Violation of the Court's September 1, 2005, Order and RCFC 26(a)(2)(B).

Plaintiff is disingenuously attempting to characterize Mr. Morrison as a fact witness when he is clearly an expert witness who must have disclosed an expert report months ago under RCFC 26(a)(2)(B) and this Court's September 1, 2005, Order. RCFC 26(a)(2)(B) states that when a witness is "retained or specially employed to provide expert testimony in the case" he must disclose an expert report that includes the complete statement of all his opinions and the basis for his opinion, data considered by the witness, as well as other matters. Significantly, pursuant to the Court's September 1, 2005, Order, Defendant must have disclosed its expert reports by September 30, 2005, and its rebuttal reports by November 23, 2005. Mr. Morrison, however, has never disclosed an expert report to Defendant and Mr. Morrison was not identified as a potential witness until January 12, 2006. Mr. Morrison is an expert witness in the guise of a fact witness. As set out above, he does not have any personal knowledge of facts relevant to this case. Further, during his deposition on February 13, 2006, Mr. Morrison testified to the following: he is receiving his standard hourly fee of $460 an hour in this case, including for his time at the deposition; he attended law school and took trust classes; he has lectured on the topic of trusts; he as testified as an expert witness approximately 40 times and nearly all of these cases relates to alleged breaches of fiduciary duty. Morrison Dep. at 9:16-9:19, 15:25-16:23, 21:10-21:18, 22:12-22:16, 25:6-25:15. Further, although Mr. Morrison attempted to characterize his understanding of his expected testimony at trial as what he has done 3

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in the mineral trust context regarding pricing and volume of oil, id. at 51:16-51:24, he also previously testified that he was asked to provide an "opinion" on the same topics, id. at 46:17-48:21. No matter how Plaintiff or Mr. Morrison choose to characterize his expected testimony at trial, Mr. Morrison's deposition testimony clearly indicates that he is an expert witness with no prior personal knowledge of any facts relevant to this litigation. II. CONCLUSION For all the foregoing reasons, the Court should preclude Mr. Morrison from testifying about his experience and knowledge regarding the administration of mineral trusts.

SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division

s/ Brett D. Burton BRETT D. BURTON United Sates Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Counsel of Record for Defendant

s/ Martin J. LaLonde MARTIN J. LALONDE KEVIN WEBB United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0247 Fax: (202) 353-2021 4

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Attorneys for Defendant

OF COUNSEL: Elisabeth Brandon Brenda Riel Attorneys Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 Washington, D. C. 20240 Telephone: (202) 208-4218 Fax: (202) 208-3490 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Services U.S. Department of the Treasury 401 14th Street, S.W. Room 552A Washington, D.C. 20227 Telephone: (202) 874-6877 Fax: (202) 874-6627

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