Court Finds Construction Expert’s Valuation Testimony Crosses the Line

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Court: United States District Court for the Northern District of Georgia, Rome Division
Jurisdiction: Federal
Case Name: United States ex rel. TVA v. Easements & Rights-of-Way
Citation: 2018 U.S. Dist. LEXIS 111467

A defendant landowner sought to testify as a lay witness regarding construction and land valuation. However, the court found the defendant’s proposed testimony fell under the purview of expert testimony as defined by Rule 26(a)(2)(C), rendering the opinions inadmissible.

Facts

The defendant owned a 374.28-acre property consisting of two residential lots and an agricultural lot used for farming. In 2013, the plaintiff, Tennessee Valley Authority (TVA), announced plans to construct a new power line that would cross all three pieces of the defendant’s land. TVA filed a complaint and “Declaration of Taking” to acquire permanent easements and rights-of-way on 15.66 acres of the defendant’s land. The court’s purpose for a jury trial was to determine just compensation for the defendant’s land. The defendant sought to testify as a lay witness and submit a report about residential development construction and valuation of his land using comparable sales data analyses. The plaintiff moved to exclude this testimony claiming the defendant’s report qualified as expert testimony, not lay opinion, and should have been declared as construction expert witness testimony from the outset of trial.

The Construction Expert Witness

The defendant held an engineering degree from Georgia Tech, had worked in the farming and residential real estate business for many years, and had formerly worked in a municipal building code department. The plaintiff argued that this precluded the defendant’s testimony from qualifying as merely lay witness opinion.  The plaintiff asserted that the defendant’s testimony on property valuation based on subdivided residential land values specifically designated him as a construction expert witness. The plaintiff pleaded that this misclassification of the defendant’s testimony violated Federal Rule of Civil Procedure 26(a)(2)D by failing to disclose his proposed testimony with all his other expert declarations.

The defendant argued that he was not a construction expert witness, but rather, a lay witness who would testify in accordance with Rule 701. Additionally, the defendant argued that even if his testimony was construction expert witness testimony, the disclosure requirements of Rule 26(a)(2)C) are significantly less stringent than those of Rule 26(a)(2)B). Finally, the defendant argued that, although some of the evidence that he intended to provide contained construction expert opinions, the plaintiff waived any objection to that testimony by failing to file a motion on Daubert.

Discussion

The plaintiff noted that in United States ex rel. TVA v. An Easement & Right-of-Way Over 6.09 Acres of Land the court made a tangible distinction between expert testimony and lay testimony under Rule 701 and held that if a landowner’s testimony of value relied on technical or specialized knowledge, it would be considered as expert testimony and would not be admissible under Rule 701. The plaintiff also contended that disclosure of an expert opinion is necessary to file a Daubert motion and the defendant’s failure to do so meant there was no need to file one.

The court thought it was clear that the defendant’s proposed testimony would cross the line of being an admissible lay opinion testimony on valuation and would count as expert testimony. The court believed that the defendant could not circumvent his disclosure requirements by trying to disguise as a lay testimony what was really an expert testimony. The court was of the opinion that the plaintiff was correct in noting that the defendant may not present testimony on the grounds of his subjective personal value of the property in question, noting that “the owner’s qualification to testify does not change the market value concept and permit him to substitute a ‘value to me’ standard for the accepted rule, or to establish a value based entirely upon speculation,” citing United States v. Sowards.

Held

The plaintiff’s motion to exclude the proposed construction expert witness testimony by the defendant was granted.