Silhouette three oil pumpsA well driller brought suit against the defendants to recover money for his well drilling services. The defendants counterclaimed, alleging the plaintiff violated the Idaho Consumer Protection Act (ICPA).

One of the defendants met with the plaintiff in June 2007 to discuss drilling a well. At the meeting, they discussed the well location and conditions of the drilling services. The driller told the defendant the charges, and he agreed. The parties didn’t have a written contract.


The parties also met to execute an Idaho Department of Water Resources (IDWR) permit to start drilling. The permit allowed the driller to a to drill a “domestic well for a single-family residence,” and proposed a maximum well depth of 200 feet.  It required the plaintiff to cease drilling and contact IDWR “if a bottom hole temperature of 85 F. or greater [is] encountered.”

The plaintiff began drilling on June 12, and he first hit the water at 85 feet. He continued to hit the water at 128–131 feet and 148–153 feet. He kept going, and at approximately 600 feet, the temperature of the water rose to 85 degrees. He didn’t stop drilling or contact IDWR. The temperature continued to increase and at 836 feet reached a temperature of 91.5 degrees.

On August 9, the driller told the defendant that, while drilling, he encountered low temperature geothermal (LTG) conditions, but didn’t explain the legal or monetary significance of reaching those conditions. The driller thought they should keep drilling deeper, or they would have to return to an upper level and would risk perforating the case and ruining the well. The defendants agreed.  The plaintiff contacted IDWR the same day and informed the department that he had encountered LTG conditions and that he wanted to drill deeper to complete the well.

A week later, the plaintiff completed an Application for Drilling Permit, which proposed a new well with a maximum depth of 1000 feet and an anticipated bottom hole temperature of 85 degrees to 212 degrees. The application was approved by IDWR, and the plaintiff started to drill again. On September 26, when the driller completed drilling, the well was 1130 feet deep, and the water was 102 degrees.

At a meeting with IDWR and the driller, the defendants first were told the ramifications of having an LTG well. They weren’t able to reach a resolution regarding completion of the well, and the plaintiff billed a total of $50,665 for his drilling and construction services. The defendants made two payments of $10,000 each, but then the plaintiff sued the defendants to recover the balance of $30,665. The defendants counterclaimed, seeking recovery for breach of contract and unjust enrichment, and for violation of the ICPA.  The plaintiff, they said, failed to tell them of the industry standard regarding the use of sand screens and by continued to drill deeper even after he encountered cold water at shallower depths, which was more costly.

While the case was awaiting trial, IDWR conducted an administrative proceeding to address the defendants’ unwanted LTG well. It concluded that the well should be abandoned in light of the expiration of the drilling permit, the parties’ deteriorated relationship, and the unwillingness of the driller to do any more work until he was paid in full. IDWR solicited bids from licensed well drillers to complete the closure of the well, and Down Rite Well Drilling was selected. The plaintiff and defendant split the closure fee of $13,000.

The plaintiffs then hired Down Rite to drill a new well on their property. Down Rite drilled a productive domestic cold-water well 40 feet from the original well site to a depth of 320 feet for $18,000.

Prior to trial, the court addressed a motion by the plaintiff to exclude the defendants’ expert witness, ES, a Registered Professional Geologist. Plaintiff argued that the defendant’s expert’s opinions were not timely disclosed. Although the court saw merit in the late disclosure argument, it held that ES’s testimony would assist the court with well drilling practices. The court held that ES could testify, but would not be allowed to voice any opinions on the plaintiff’s conduct.

At trial, the district court held that plaintiff violated the ICPA and awarded the defendant actual damages of $27,500. The plaintiff appealed, arguing that the district court erred in allowing ES to testify as an expert witness.

Responding to the plaintiff’s interrogatories, the defendants properly disclosed that ES would testify, but they didn’t indicate what he would testify about or the basis of his testimony until the morning of the hearing—just days before trial. In any event, the district court judge felt “ES [had] the ability to give the court an education, not only that would benefit the defendants but also the plaintiff.” Ultimately, the court held the expert would be allowed to testify about the scientific and technical aspects of drilling, but that the plaintiff could object ES addressed his conduct.

On appeal, the plaintiff argued that ES’s testimony should have been excluded by the district court and that allowing the expert to testify was reversible error. The plaintiff said the defendants’ counsel didn’t comply with I.R.C.P. 26(e) by failing to amend their interrogatory responses to include the subject matter of ES’s testimony. As a result, he shouldn’t have been allowed to testify. The plaintiff also claimed that even if the court properly allowed ES to testify, his testimony didn’t conform to the limited scope authorized by the judge.

Justice Jim Jones of the Supreme Court of Idaho wrote in his opinion that Rule 26 requires that parties “seasonably supplement” their discovery responses to any question that directly addressed the identity of an individual expected to be called as an expert witness at trial, the subject matter of the expert’s testimony, and its substance. If a party doesn’t do this, the trial court may exclude the testimony of witnesses or the admission of evidence not disclosed. Rule 26 “unambiguously imposes a continuing duty to supplement responses to discovery with respect to the substance and subject matter of an expert’s testimony.” However, “[w]hether to exclude undisclosed expert testimony pursuant to I.R.C.P. 26(e)(4) is committed to the sound discretion of the trial court.”

Justice Jones and the Supreme Court held that the district judge did not err in allowing ES to testify about scientific and technical information in order to educate the court. First, the district court recognized that the decision whether to allow ES to testify was discretionary. Second, Justice Jones explained that the trial court acted within the boundaries of its discretion, as Rule 26 states “the trial court may exclude the testimony” of an expert not properly disclosed. The “may” in Rule 26, the judge reasoned, gives the trial court the ability to weigh the prejudice of undisclosed testimony versus the value of the testimony—it does not require exclusion of testimony not properly disclosed. Third, the court carefully tailored its decision to allow ES to testify.

Justice Jones also stated that the trial testimony not only indicated that ES stayed within the boundaries of the judge’s pre-trial ruling, but it also evidenced that the district judge and counsel for the defendants reminded ES not to give his opinion regarding the plaintiff’s conduct. For example, when ES took the stand, the defendants’ counsel stated:

Mr. ES, one thing. As part of some pretrial discussions that we had, we’re not going to have you testify or offer any opinions with regard to [the plaintiff]. And so as you go through these explanations, it would be helpful to helping us, the court and everyone else understand, but remember we talked about that, and please be conscious of that as you testify.

What was more, the plaintiff’s counsel only objected to one statement made by ES in over 60 pages of trial testimony, and that objection was overruled. As such, the trial transcript indicated that ES stayed within the confines of the court’s pretrial order, and the judgment of the district court on the expert testimony was affirmed.

By Kurt Mattson, J.D. and LLM

Duspiva v. Fillmore, 293 P.3d 651 (Idaho Jan. 23, 2013).