United States of America v. St. Clair et al

Filing 83

ORDER denying 67 Motion to Exclude Expert Witness Testimony, by Judge Raymond P. Moore on 2/26/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 11-cv-02857-RM-KLM
UNITED STATES OF AMERICA,
Plaintiff,
v.
LAVERNE ST. CLAIR and
BEVERLY ST. CLAIR,
Defendants.

ORDER

THIS MATTER is before the Court on Plaintiff United States’ Motion to Exclude Expert
Witness Testimony (“Motion”) (ECF No. 67) pursuant to Fed.R.Evid. 702. The Motion seeks to
preclude Defendants’ two land surveyor experts from offering certain opinions in support of
Defendants’ contention they own the 7.856 acres of land upon which Plaintiffs rely on their
claims for ejectment and trespass. Upon consideration of the Motion, Defendants’ Response,
Plaintiff’s Reply, the Court file, and the applicable law, the Plaintiff’s Motion is denied for the
reasons stated below.
While the Greeks skillfully prevailed against the City of Troy with the Trojan horse,
Plaintiff, while equally skillful, may not prevail against Defendants, through the dismissal of
their experts, with a Rule 702 Motion. As Defendants accurately surmised, Plaintiff’s Rule 702

Motion is a Rule 561 motion in disguise, and the time for the filing of such motions has long
passed. Here, Plaintiff essentially seeks a determination that, as a matter of law, certain general
rules of survey must apply. Whether such rules must apply under the facts and circumstances of
this case, however, is more properly brought before the Court as a motion for summary
judgment. Plaintiff had an opportunity to do so. It may not do so again now.
Next, Plaintiff’s Motion relying on the fundamental principles of surveying is premised
on the contention that Defendants’ experts’ failure to follow such principles renders their
methodology of determining ownership of the disputed acres unreliable. The flaw in Plaintiff’s
contention is that such principles not only must but also can be applied. Defendants’ experts
contend that, in light of the underlying facts and circumstances upon which they rely – many of
which are hotly contested – one or more of such principles should not and cannot be applied. In
light of the issues, the disputed facts and data, and Defendants’ proffered theory of their case, at
this time the Court is not persuaded that such evidence should be precluded as unreliable. This
determination does not, however, prohibit Plaintiff from raising the issue at trial should it
determine to do so based on the evidence presented.
Finally, this matter is to be tried to the Court as the fact finder. “[W]hile Daubert’s2
standards must still be met, the usual concerns regarding unreliable expert testimony reaching a
jury obviously do not arise when a district court is conducting a bench trial.” Attorney General
of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 779 (10th Cir. 2009). Accordingly, it is

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Fed.R.Civ.P. 56.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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ORDERED that Defendant United States’ Motion to Exclude Expert Witness Testimony
(ECF No. 67) is hereby DENIED.
DATED this 26th day of February, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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