United States of America v. Land in Madison County Alabama et al

Filing 37

MEMORANDUM OPINION and ORDER that the motion to exclude is GRANTED, and the expert report of Scott Maddox is EXCLUDED; Defendant, P&C Development, LLC, is ORDERED to file Mr. Maddox's amended report by 5/22/2015; Defendant is further ORDERED to tender Scott Maddox for deposition on a date, and at a time, convenient for plaintiffs counsel within 21 days after that filing as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/11/2015. (AHI)

FILED
2015 May-11 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
UNITED STATES OF
AMERICA, upon the relation
and for the use of the
TENNESSEE VALLEY
AUTHORITY,
Plaintiff,
vs.
AN EASEMENT AND RIGHTOF-WAY OVER 4.95 ACRES
OF LAND, MORE OR LESS, IN
MADISON COUNTY,
ALABAMA, P & C LAND
DEVELOPMENT, LLC,
DARRIN ISBELL, and
SOUTHPOINT BANK,
Defendants.

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) Civil Action No. 5:14-cv-00241-CLS
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MEMORANDUM OPINION AND ORDER
This matter is before the court on the motion to exclude expert testimony filed
by plaintiff, the United States of America.1 Upon consideration of the briefs and
evidentiary submissions, this court concludes that the motion should be granted.
I. LEGAL STANDARDS
Analysis of the admissibility of expert testimony must begin with Federal Rule
1

Doc. no. 26 (Motion to Exclude).
1

of Evidence 702, which provides that:
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 (2014).2 The Eleventh Circuit requires district courts to “conduct
an exacting analysis of the foundations of the expert opinions to ensure they meet the
standards for admissibility under Rule 702.” United States v. Abreu, 406 F.3d 1304,

2

The version of Rule 702 in effect prior to Dec. 1, 2011 read as follows:

If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702 (version prior to Dec. 1, 2011). The Advisory Committee’s comments state that
the language of Rule 702 was amended as part of the restyling of the Evidence Rules to make them
more easily understood, and to make style and terminology consistent throughout the rules. The
changes were intended to be stylistic only. There was no intent to change any result in any ruling
on evidence admissibility.
2

1306 (11th Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004)) (internal quotation marks and emphasis omitted). The analysis has three
parts: that is, district courts are required to assess whether
(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 [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993)]; 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) (en banc) (quoting
City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 542, 562 (11th Cir. 1998))
(alteration supplied); see also, e.g., Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir.
2005) (same).
[T]he objective of that requirement is to ensure the reliability and
relevancy of expert testimony. It is to make certain that an expert,
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration
supplied). “The inquiry . . . is a flexible one,” because “[m]any factors will bear on
the inquiry, and . . . [there is no] definitive checklist or test.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593–94 (1993) (alterations supplied). Even so,
factors that may be relevant for consideration include:

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(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) “in the case of a particular scientific technique, . . . the
known or potential rate of error,” and (4) whether the theory or
technique is generally accepted by the relevant scientific community.
Hendrix ex rel. G.P. v. Evenflo Company, Inc., 609 F.3d 1183, 1194 (11th Cir. 2010)
(quoting Daubert, 509 U.S. at 592–94); see also Rink, 400 F.3d at 1292 (discussing
the foregoing factors in the context of assessing an expert’s particular scientific
technique).
II. DISCUSSION
This action arose from the taking by plaintiff, the United States, upon the
relation and for the use of the Tennessee Valley Authority, of a permanent easement
and right-of-way over property owned by defendant P&C Land Development, LLC
(hereinafter “defendant”), and located in Madison County, Alabama.3 The easement
and right-of-way covers approximately 4.95 acres, and divides defendant’s 73-acre
tract into three contiguous parcels of approximately 4.95 acres, 10.89 acres, and 57.56
acres, respectively.4
Defendant hired Scott Maddox to perform a before-and-after appraisal of the
market value of the 73-acre tract in April of 2014, in order to determine the amount

3

See doc. no. 2 (Declaration of Taking).

4

See doc. no. 27-1 (Maddox Appraisal), at 50.
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of just compensation owed for the taking.5 Maddox determined that the entire 73-acre
tract had a market value of $1,100,000 before the taking.6 He also determined that
the 10.89-acre parcel had a market value of $0.00 after the taking, and the 57.56-acre
parcel had a market value of $863,400 after the taking, for a total value of $863,400.7
Notably, Maddox did not appraise the after-taking value of the 4.95-acre parcel,
because he mistakenly believed that plaintiff took a fee simple interest in that parcel.8
In fact, plaintiff took only an easement and right-of-way.9 That mistake of fact also
affected Maddox’s appraisal of the 10.89-acre parcel. In his deposition, Maddox
testified that, if he had known that plaintiff took only an easement and right-of-way
in the 4.95-acre parcel, he would not have appraised the after-taking value of the
10.89-acre parcel at $0.00.10
Plaintiff contends that Maddox’s opinions should be excluded because they are
based upon a mistake of fact.11 It is clear that a court may exclude expert testimony
that is predicated upon a mistake of fact. See, e.g., Fed. R. Evid. 702(d) (stating that
an expert witness’s opinion must be based upon “the facts of the case”); McDowell

5

Id. at 5.

6

Id. at 6.

7

Id. at 53.

8

Doc. no. 27-2 (Maddox Deposition), at 69.

9

Doc. no. 2 (Declaration of Taking) ¶ 1.

10

See doc. no. 27-2 (Maddox Deposition), at 70.

11

See doc. no. 27 (Plaintiff’s Brief on Motion to Exclude), at 8–9.
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v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (holding that the expert opinion must
fit the facts of the case); E.E.O.C. v. Freeman, 778 F.3d 463, 467 (4th Cir. 2015)
(holding that certain mistakes in an expert’s analysis rendered it “outside the range
where experts might reasonably differ”) (quoting Kumho, 526 U.S. at 153); Guillory
v. Domtar Industries, Inc., 95 F.3d 1320, 1331 (5th Cir. 1996) (“Expert evidence
based on a fictitious set of facts is just as unreliable as evidence based upon no
research at all.”). Accordingly, this court concludes that Maddox’s appraisal report
is due to be excluded as unreliable.
Defendant requests leave to file an amended expert report, based upon
Maddox’s corrected understanding of the interest taken by plaintiff in the 4.95-acre
parcel.12 Discovery in this action closed on March 13, 2015.13 Even so, no trial date
has been set, and the court will grant defendant’s request, provided that defendant
provides plaintiff an opportunity to depose Maddox concerning the rationale for his
amended report. Cf. Ferguson v. Bombardier Services, Corp., 244 F. App’x 944, 950
(11th Cir. 2007) (holding that a district court did not abuse its discretion in allowing
a party to file an amended expert report after the close of discovery because the
amended report was filed eight months before the trial); Ramos-Barrientos v. Bland,
728 F. Supp. 2d 1360, 1369 (S.D. Ga. 2010) (allowing a party to file an amended
12

See doc. no. 29 (Defendant’s Response to Motion to Exclude), at 2.

13

See doc. nos. 24, 25.
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expert report after the close of discovery on the condition that the opposing party be
allowed an opportunity to depose the expert after that filing).
III. CONCLUSION AND ORDERS
In accordance with the foregoing, it is ORDERED that the motion to exclude
is GRANTED, and the expert report of Scott Maddox is EXCLUDED. Defendant,
P&C Development, LLC, is ORDERED to file Mr. Maddox’s amended report on or
before May 22, 2015. Defendant is further ORDERED to tender Scott Maddox for
deposition on a date, and at a time, convenient for plaintiff’s counsel within 21 days
after that filing.
DONE and ORDERED this 11th day of May, 2015.

______________________________
United States District Judge

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