United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE
these eminent domain cases, both parties have moved to
exclude or limit the testimony of the other side's expert
witnesses under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence
702. Plaintiff Sabal Trail has moved to exclude the testimony
of the defendant-landowners' appraiser, Matthew Ray. (No.
3:16-cv-277-J-34JBT, Doc. 76; No. 3:16-cv-300-J-34PDB, Doc.
81; No. 3:16-cv-302-J-34PDB, Doc. 75; No.
3:16-cv-317-J-34MCR, Doc. 72) (“Ray Daubert Mo
t ions”). Sabal Trail has also moved to exclude the
testimony of Joshua Harris, Ph.D., a real estate economist
whom the landowners hired to assist with valuation. (No.
3:16-cv-277-J-34JBT, Doc. 75; No. 3:16-cv-300-J-34PDB, Doc.
79; No. 3:16-cv-302-J-34PDB, Doc. 68; No.
3:16-cv-317-J-34MCR, Doc. 71) (“Harris Daubert
Mot ions”). The landowners have responded to both the
Ray Daubert Motions and the Harris Daubert
Motions. (No. 3:16-cv-277-J-34JBT, Doc. 96; No.
3:16-cv-300-J-34PDB, Doc. 99; No. 3:16-cv-302-J-34PDB, Doc.
91; No. 3:16-cv-317-J-34MCR, Doc. 92) (“Ray
Daubert Responses”); (No. 3:16-cv-277-J-34JBT,
Doc. 93; No. 3:16-cv-300-J-34PDB, Doc. 96; No.
3:16-cv-302-J-34PDB, Doc. 86; No. 3:16-cv-317-J-34MCR, Doc.
89) (“Harris Daubert Responses”).
the landowners have filed cross Daubert motions to
exclude or limit the testimony of Sabal Trail's
appraiser, Chad Durrance. (No. 3:16-cv-277-J-34JBT, Doc. 85;
No. 3:16-cv-300-J-34PDB, Doc. 89; No. 3:16-cv-302-J-34PDB,
Doc. 78; No. 3:16-cv-317-J-34MCR, Doc. 81) (“Durrance
Daubert Mo t ions”). Sabal Trail has responded
to the Durrance Daubert Motions. (No.
3:16-cv-277-J-34JBT, Doc. 94; No. 3:16-cv-300-J-34PDB, Doc.
97; No. 3:16-cv-302-J-34PDB, Doc. 87; No.
3:16-cv-317-J-34MCR, Doc. 90) (“Durrance
Daubert Responses”). Thus, the motions are ripe
for a decision.
reasons set forth below, the Court will grant in part, and
deny in part, Sabal Trail's motions to exclude Matthew
Ray's testimony, defer ruling on the motions to exclude
Dr. Harris's testimony, and deny the landowners'
motions to exclude Chad Durrance's testimony.
to the Natural Gas Act and a Certificate of Public
Convenience and Necessity, Sabal Trail sought to condemn
easements on the landowners' property to install a
natural gas pipeline. The properties are rural tracts of land
in Hamilton County and Suwannee County, Florida, which are
generally suitable for residential or agricultural use. In
June 2016, the Court granted partial summary judgment in
favor of Sabal Trail on its right to condemn the easements
and granted its request for a preliminary injunction, which
together allowed Sabal Trail to take immediate possession.
About a year later, the Court held that state substantive law
provides the federal rule for measuring just compensation in
these proceedings. E.g., Sabal Trail
Transmission, LLC v. 1.127 Acres of Land in Hamilton
Cnty., Fla., No. 3:16-cv-263-J-20PDB, 2017 WL 2799352
(M.D. Fla. Jun. 15, 2017). See also Sabal Trail
Transmission, LLC v. Real Estate, 255 F.Supp.3d 1213
(N.D. Fla. 2017) (superseded to correct scrivener's
error). Here, that means the landowners are entitled to what
the Florida Constitution calls “full
compensation.” Fla. Const. art. X, § 6(a). The
cases are now at the stage where a jury must determine the
amount of compensation owed to the landowners for the
landowners hired two experts in preparation for the trials on
full compensation. The first, Matthew Ray, is an appraiser
who has provided opinions regarding the value of the
condemned easements and severance damages. The second, Dr.
Joshua Harris, is a real estate economist who surveyed 23
real estate agents or brokers regarding their opinions on the
effect a natural gas pipeline would have on property values
(something commonly referred to as a “contingent
valuation” survey in academic literature). Dr. Harris
also reviewed literature on the impact that overhead power
transmission lines, natural gas pipelines, and pipeline
accidents purportedly have on property values. The essence of
Dr. Harris's testimony is that public awareness of
pipeline accidents would cause the average buyer to be less
willing to buy land situated over a pipeline. Dr. Harris does
not, however, offer any opinion about the compensation owed
for any specific property.
Sabal Trail hired its own expert appraiser, Chad Durrance.
Mr. Durrance has arrived at his own opinions regarding the
value of the condemned easements and certain other damages.
Trail moves to exclude Mr. Ray's and Dr. Harris's
opinions under Daubert and Rule 702 of the Federal
Rule of Evidence (Rule(s)). In doing so, Sabal Trail argues
that their opinions are not the result of reliable methods or
based on reliable facts and data. Sabal Trail also argues
that their opinions are unduly prejudicial under Rule 403
because they threaten to make the health and safety risks of
a pipeline rupture an improper feature of the trials.
Trail filed similar motions to exclude the opinions of Mr.
Ray and Dr. Harris in Sabal Trail Transmission, LLC v.
3.921 Acres of Land in Lake County, Florida, No.
5:16-cv-178-JSM-PRL (M.D. Fla.), Doc. 50, Doc. 51 (the
“Sunderman Groves case”). The Honorable James S.
Moody, Jr., granted both motions based on many of the
arguments raised by Sabal Trail in the instant motions.
Id., Doc. 71 (“Moody Daubert
Order”). Likewise, Sabal Trail filed similar
Daubert motions in Sabal Trail Transmission, LLC
v. 0.981 Acres of Land in Levy County, Florida, No.
1:16cv97-MW/GRJ (N.D. Fla.), Doc. 48, Doc. 49. There, the
Honorable Mark Walker resolved the Daubert motions
differently. With the exception of three portions of Mr.
Ray's opinions, Judge Walker denied both motions.
Id., Doc. 69 (“Walker Daubert
Order”). Thus, he admitted Dr. Harris's opinions as
well as parts of Mr. Ray's opinions, but ruled that (1)
Mr. Ray could not us e the term s “probable dam age
radius” or “probable impact radius” in his
testimony, (2) Mr. Ray could not testify about potential
future land use regulations, and (3) Mr. Ray's severance
damage study was improper because it double-counted the value
of the easements. Id. Finally, Sabal Trail filed
similar Daubert motions in Sabal Trail
Transmission, LLC v. 7.593 Acres of Land in Hamilton County,
Florida, No. 3:16-cv-276-J-32JRK, Doc. 69, Doc. 70. The
Honorable Timothy J. Corrigan granted in part, and denied in
part, Sabal Trail's motion to exclude Mr. Ray's
testimony, and deferred ruling on whether and to what extent
Dr. Harris's testimony should be excluded. Id.,
Doc. 109 (“Corrigan Daubert Order”).
Judge Corrigan ruled that Mr. Ray's testimony w as
inadmissible to the extent he (1) used a “potential
impact radius” to measure severance damages, (2) used
terms such as “probable damage radius” or
“potential blast radius” in his appraisal, (3)
double-counted the value of the easements in his appraisal,
(4) failed to appraise parts of the property burdened by a
preexisting easement in their encumbered condition, and (5)
included certain “additional damages” that were
not recoverable as a matter of Florida law. Id. at
4-10 & n.3. Judge Corrigan denied the remainder of
Sabal Trail's Daubert motion with respect to Mr.
Ray. Id. at 6. As for Dr. Harris, Judge Corrigan
deferred ruling on the Daubert motion until he heard
a pretrial proffer, but indicated he may limit Dr.
Harris's testimony about literature concerning pipeline
accidents that have occurred elsewhere. Id. at 10.
landowners also have filed Daubert motions seeking
to exclude the testimony of Sabal Trail's appraiser, Mr.
Durrance. The thrust of the Durrance Daubert Motions
is threefold: (1) Mr. Durrance uses the wrong legal standard
to the extent he suggests that market value is the exclusive
standard for measuring full compensation, (2) Mr. Durrance
uses the wrong legal standard to the extent he employs a
“before-and-after” method of valuation (which the
landowners argue is the standard under federal common law)
rather than a “taking-plus-damages” standard
(which the landowners argue is the standard under Florida
law), and (3) Mr. Durrance's market data consists of
paired sales that are too dissimilar.
landowners have filed similar Daubert motions
challenging Mr. Durrance's opinions in other cases.
However, it appears that the only court to address these
issues thus far is Judge Moody in the Sunderman Groves case.
No. 5:16-cv-178-JSM-PRL, Doc. 94. There, Judge Moody
summarily denied the motion without comment. Id.,
Doc. 98 at 3; Doc. 100 at 27.
702 of the Federal Rules of Evidence (Rule(s)) provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. In Daubert, the Supreme Court
explained that Rule 702 imposes an obligation on the trial
court to act as gatekeeper to ensure that any and all
scientific testimony or evidence is not only relevant, but
reliable. 509 U.S. at 589. The Supreme Court extended
Daubert's holding to non-scientific expert
testimony in Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999). To determine the
admissibility of expert testimony, a trial court must
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of
fact through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004) (quoting City of Tuscaloosa v.
Harcros Chems., Inc., 158 F.3d 548 (11th Cir. 1998)).
The “burden of establishing qualification, reliability
and helpfulness” lies with the party offering the
expert opinion. See McClain v. Metabolife Int'l,
Inc., 401 F.3d 1233, 1238 (11th Cir. 2005) (quoting
Frazier, 387 F.3d at 1260).
evaluating the reliability of a method as required by
Daubert, the Supreme Court has suggested that a
trial court consider certain factors, including: (1) whether
the theory or technique can be, and has been, tested; (2)
whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of
error; and (4) whether the theory has attained general
acceptance in the relevant scientific community. See
Daubert, 509 U.S. at 593-94. These factors are not
exhaustive, and the Eleventh Circuit has also considered
whether an expert relied on anecdotal evidence such as case
reports; temporal proximity; and improper extrapolation.
See Allison v. McGhan Med. Corp., 184 F.3d 1300,
1312 (11th Cir.1999). The Court's inquiry under Rule 702
must focus on the methodology, not conclusions, but the Court
is not required to admit opinion testimony only connected to
existing data by an expert's unsupported assertion.
See Daubert, 509 U.S. at 595; Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997).
addition to determining the reliability of proposed expert
testimony, Daubert instructs that under Rule 702 the
Court must determine whether the evidence or testimony
assists the trier of fact in understanding the evidence or
determining a fact in issue. See Daubert, 509 U.S.
at 591. This consideration focuses on the relevance of the
proffered expert testimony or evidence. The Supreme Court
explained that to satisfy this relevance requirement, the
expert testimony must be “relevant to the task at
hand.” Daubert, 509 U.S. at 591. Because
expert testimony does not assist the trier of fact unless it
has a justified relation to the facts, the Eleventh Circuit
has opined that “there is no fit where a large
analytical leap must be made between the facts and the
opinion.” McDowell v. Brown, 392 F.3d 1283,
1299 (11th Cir. 2004) (citing Joiner, 522 U.S. at
146) (finding too great an analytical gap between data
suggesting that one type of cancer was caused in mice and the
conclusion or opinion that such data established causation of
another type of cancer in humans).
proponent of expert testimony need not show that the opinion
is correct, but only that more likely than not the opinion is
reliable. See Allison, 184 F.3d at 1312. Thus,
absolute certainty is not required. See Jones v. Otis
Elevator Co., 861 F.2d 655, 662 (11th Cir. 1988)
(citations omitted). However, the expert must know
“facts which enable him to express a reasonably
accurate conclusion instead of mere conjecture or
speculation.” Id. An expert's assurances
that he has used generally accepted scientific methodology
are insufficient. See McClain, 401 F.3d at 1244.
Sabal Trail's Motion to Exclude Matthew Ray's
Issues in Common ...