Amaya v. City of San Antonio

Filing 63

ORDER GRANTING IN PART 53 Motion to exclude Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOSEPH AMAYA,
Plaintiff,
vs.
CITY OF SAN ANTONIO,
Defendant.

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Cv. No. 5:12-CV-00574-DAE

ORDER GRANTING IN PART DEFENDANT’S MOTION TO EXCLUDE
EXPERT
On August 11, 2014, the Court heard oral argument on Defendant
City of San Antonio’s (the “City”) second Motion to Exclude Plaintiff Joseph
Amaya’s (“Plaintiff”) expert witness. (Dkt. # 53.) Edward L Bravenec, Esq.,
appeared at the hearing on the behalf of Plaintiff, and Judith D. Sanchez, Esq., and
Savita Rai, Esq., appeared on behalf of the City. After careful consideration of the
memoranda in support of and in opposition to the Motion, and in light of the
parties’ arguments at the hearings, the Court, for the reasons that follow, GRANTS
IN PART the City’s Motion to Exclude Expert Testimony.

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BACKGROUND 1
This suit arises out of the March 14, 2008 emergency demolition of
Plaintiff’s Property. On June 11, 2012, Plaintiff filed his Original Complaint 2
against the City asserting claims for violations of (1) Chapter 6, Article VIII, § 6175 of the City’s Code of Ordinances; (2) Chapter 214 of the Texas Local
Government Code; (3) Article 1, § 17 and § 19 of the Texas State Constitution; and
(4) 42 U.S.C. § 1983 for the deprivation of rights secured by the Fourth, Fifth, and
Fourteenth Amendments. 3 (Dkt. # 1.)
On March 1, 2013, the Court entered a scheduling order, requiring
Plaintiff to file his designation of testifying expert witnesses and to serve the City
with materials required by Federal Rule of Civil Procedure 26(a)(2)(B) by June 3,
2013. (Dkt. # 20.) On May 30, 2013, Plaintiff filed an unopposed motion to
modify the scheduling order. (Dkt. # 30.) The Court granted the motion,
extending the deadline to designate experts to June 10, 2013.
On June 10, 2013, Plaintiff filed his designation of expert witnesses
with the Court. (Dkt. # 31.) Plaintiff included a list of expert witnesses, the

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For a detailed recitation of the facts, see the Court’s Order on the City’s Motion
to Dismiss at Docket No. 60.
2
Plaintiff subsequently filed an Amended Complaint on November 8, 2013. (Dkt.
# 50.)
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The only claims remaining are Plaintiff’s claims brought pursuant to § 1983.
(See Dkt. ## 47, 60.)
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curriculum vitea of each expert, and brief descriptions of each expert’s intended
testimony. (Id.) The next day, the City moved to exclude Plaintiff’s experts,
arguing that Plaintiff failed to serve the City with materials in compliance with
Rule 26(a)(2)(B) as required by the scheduling order. (Dkt. # 32.) Specifically,
the City stated that Plaintiff did not serve it with
a written report prepared and signed by the witness containing a
complete statement of all opinions the witness will express, the basis
and reasons for them, the data or other information considered by the
witness in forming them, any exhibits that will be used to summarize
or support them, the witnesses’ qualifications, including a list of all
publications authored in the previous ten years, a list of all other cases
in which, during the previous four years, the witness testified as an
expert at trial or by deposition, and a statement of the compensation to
be paid for the study and testimony in the case.
(Id. at 2.) Plaintiff responded by arguing that his failure to serve the City
with the requisite documents under Rule 26 (a)(2)(B) was harmless error and
that he was not required to submit expert reports for each non-retained
expert. (Dkt. # 33.)
On October 9, 2013, the Court heard oral arguments on all pending
motions, including the City’s first motion to exclude Plaintiff’s experts. (Dkt. #
46.) Although the Court acknowledged that Plaintiff failed to serve the City with
written expert reports as required by Rule 26, the Court denied the City’s motion
without prejudice. (Id.) At oral argument, the Court instructed Plaintiff to serve
the City with expert witness designations in compliance with Rule 26 within 45

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days. (Id.)
On November 25, 2013, Plaintiff emailed a written expert report to
the City. (See Dkt. # 53.) The expert report contained an appraisal of the Property
executed by Mr. Brett Weatherbie. (Id.) The next day, the City filed a second
motion to exclude Plaintiff’s experts, arguing that, once again, Plaintiff failed to
comply with Rule 26 (a)(2)(B). (Id.) On December 6, 2013, Plaintiff filed a
response. (Dkt. # 55.)
DISCUSSION
Expert witness testimony is governed by Federal Rule of Civil
Procedure 26(a)(2) in unison with Federal Rule of Evidence 702, 703, and 705.
Rule 26(a)(2) outlines the procedural requirements of disclosure, while Rules 702,
703, and 705 address the qualifications of the expert witness and the substance of
the testimony.
The City first argues that Plaintiff failed to comply with Rule
26(a)(2)(B). However, because the Court, for the reasons stated below, strikes the
expert report, the Court need not address the Rule 26(a)(2)(B) issue.
Next, the City contests the substance of Mr. Weatherbie’s testimony.
Thus, the Court must conduct an analysis under Federal Rule of Evidence 702 to
address the qualifications of the expert witness and the substance of the testimony.
Federal Rule of Evidence 702 permits expert testimony if
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(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. This rule lays responsibility on the court to “ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993).
District courts are required to act as “gatekeepers,” ensuring that
expert testimony meets the standards of Rule 702. Wilson v. Woods, 163 F.3d
935, 937 (5th Cir. 1999). In this role as gatekeeper, the district court must
determine that “an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” Id. at 597. The gatekeeping role ensures that that an
expert witness “employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Seatrax, Inc. v.
Sonbeck Int’l, Inc., 200 F.3d 358, 372 (5th Cir. 2000) (quoting Kumho Tire Co.,
Ltd., 526 U.S. at 152) (internal quotations omitted); see also Kinnison v. City of
San Antonio, CIVA SA-08-CV-421-XR, 2009 WL 3768442 (W.D. Tex. Nov. 5,
2009).
In its role as gatekeeper, the district court must determine at the outset

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whether the expert’s proposed testimony will “assist the trier of fact to understand
the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591. “This
condition goes primarily to relevance.” Id. “Expert testimony which does not
relate to any issue in the case is not relevant and, ergo, non-helpful.” Id. (quoting 3
Weinstein & Berger ¶ 702[02], p. 702–18; see also United States v. Downing, 753
F.2d 1224, 1226 (3d Cir. 1985) (“An additional consideration under Rule 702—
and another aspect of relevancy—is whether expert testimony proffered in the case
is sufficiently tied to the facts of the case that it will aid the jury in resolving a
factual dispute.”).
“Expert testimony is admissible only if the proponent demonstrates
that: (1) the expert is qualified; (2) the evidence is relevant to the case; and (3) the
evidence is reliable.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988–89 (5th Cir.
1997).
In his appraisal, Mr. Weatherbie states that the appraisal was
conducted under the hypothetical condition that as of the effective
“retrospective” date of appraisal the subject property was improved
with a renovated 1,200 square foot single family residence and
associated improvements. The hypothetical residence and associated
improvements exhibit renovations commensurate with renovations
exhibited by properties located in the immediate market area, the
comparable sales outlined in this report and in-line with the
construction characteristics exhibited by a good quality, one-story,
single family older residence as described in the Marshall & Swift
Residential Cost Handbook.
(Dkt. # 53-1 at 3.) Mr. Weatherbie appraised the Property using the “Cost
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Approach” and the “Sales Comparison Approach.” Using the “Sales Comparison
Approach,” Mr. Weatherbie establishes that the “retrospective market value of the
[Property] . . . under the hypothetical condition that the [Property] was improved
with a renovated 1,200 square foot single family residence and associated
improvements, as of March 14, 2008, is [$235,000.]” (Id.) The “Sales
Comparison Approach” that used sales data of similarly sized homes in the area
surrounding the Property to establish the estimate for the retrospective market
value for a renovated house. (Id. at 28–34.)
Mr. Weatherbie also used a “Cost Approach” to estimate that the
“depreciated replacement cost new of the improvements [as] $162,687.” (Id. at
35.) The cost approach is derived by
estimating the value of the site plus the current cost to replace the
improvements, less accrued depreciation in all forms
The indicated value of the Cost Approach is derived by estimating the
value of the site plus the current cost to replace the improvements,
less accrued depreciation in all forms. Replacement cost is the cost to
construct, at current prices, the subject improvements using modern
materials and current standards, designs and layouts. The principle of
substitution is basic to this approach. The principal of substitution
affirms that no prudent investor would pay more for a property than
an amount for which the site can be acquired and for which the
improvements can be constructed. The construction cost applicable to
the subject hypothetical improvements have been estimated using the
Marshall & Swift Valuation Service Handbook.
(Id.) By adding this estimate to the estimated value of the vacant lot, which Mr.
Weatherbie estimates is $60,000 as of March 14, 2008, Mr. Weatherbie estimates
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that the “retrospective market value” of the Property under the “Cost Approach” is
$235,000. (Id.)
In its Motion, the City challenges Mr. Weatherbie’s appraisal,
arguing that he addressed the incorrect measure of damages as a matter of law.
(Dkt. # 53 ¶ 2.1.) Specifically, the City contends that “the standard of damages in
a case like this is based on the difference in market value of the property as it
existed before the demolition and after the demolition, and not on the value of the
property assuming it had been renovated.” (Id.) Further, the City contends that
because Mr. Weatherbie’s appraisal is based on a hypothetical post-renovation
value and does not include the cost of renovation, the evaluation would not assist
the jury in determining the pre-demolition value of the property. (Id. ¶¶ 2.1–2.2.)
In response, Plaintiff contends that Mr. Weatherbie’s opinion is
relevant because
it is not beyond the average juror to perform simple subtraction, a
juror should be able to arrive at the pre-deprivation value by
comparing the empty lot value to the projected improvement value,
subtracting the amount of damage caused to the structure by fire (such
testimony provided through those who saw the property before the
demolition).
(Dkt. # 55 ¶ 4.)
Under settled Texas law, the measure of damages for injuries to real
property is the difference in market value of the real property immediately before
the injury and its market value immediately after the injury. City of Texarkana v.
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Reagan, 247 S.W. 816, 818 (1923); City of El Paso v. W.E.B. Investments, 950
S.W.2d 166, 171 (Tex. App. 1997) (noting that trial court erred in disregarding a
decision from a jury based on instruction for damages to calculate the measure of
damages as the difference between the fair market value of the property
immediately prior to the demolition and the fair market value of the property after
its demolition); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 218 (Tex.
2001) (noting jury instruction on damages); City of Waco v. Roddey, 613 S.W.2d
360, 366 (Tex. Civ. App.—Waco 1981, writ dism’d) (“[T]he proper measure of
recovery by plaintiff for damages to realty is the difference in market value of the
reality immediately before the injury and its market value immediately after the
injury.”).
Thus, because the measure of damages is well settled, the issue is
whether the expert’s testimony allows a fact-finder to ascertain the difference in
market value of the real property immediately before the injury and its market
value immediately after the injury. See Kinnison, 2009 WL 3768442, at *4
(assessing whether an estimated post-improvement value could be used to allow
the trier of fact to determine the pre-deprivation market value).
The trier of fact determines pre-demolition market value by
“considering the factors which would reasonably be given weight in negotiations
between a seller and a buyer.” Kinnison v. City of San Antonio, SA-08-CV-4219

XR, 2010 WL 743795 (W.D. Tex. Mar. 2, 2010) (quoting City of Pearland v.
Alexander, 483 S.W.2d 244, 247 (Tex. 1972)). “[E]vidence should be excluded
relating to remote, speculate, and conjectural uses, as well as injuries, which are
not reflected in the present market value of the property.” Id. (quoting Tex. Elec.
Serv. Co. v. Campbell, 336 S.W.2d 762 (Tex. 1960)). “Evidence of the factors that
increase or diminish the present market value is admissible, not as a measure of
damages or as a specific item of damage, but to allow the jury to arrive at the
correct measure, the lessened value of the tract.” State v. McCarley, 247 S.W.3d
323, 338 (Tex. App. 2007) (internal quotations omitted).
Here, Mr. Weatherbie’s appraisal does not establish the
pre-demolition market value. In his appraisal, Mr. Weatherbie states that the
purpose of the appraisal is to
estimate the “retrospective” market value of the fee simple estate
interest in the 0.1997 acre, or 8,699 square foot residential lot “as if
vacant” and the “retrospective” market value of the subject property
under the hypothetical condition that as of the effective
“retrospective” date of appraisal the subject property was improved
with a renovated 1,200 square foot single family residence and
associated improvements.
(Dkt. # 53-1 at 2.)
The appraisal states that the “retrospective” market value of the
Property “under the hypothetical condition that the subject property was improved
with a renovated 1,200 square foot single family residence and associated
improvement, as of March 14, 2008 is [$235,000].” (Id.) This value does not
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purport to establish, nor can it establish, that the Property had a pre-demolition
market value of $235,000.
For a post-renovation market value to be relevant to the
pre-demolition market value, it would need to be lessened by a renovation estimate
based upon sufficient facts or data. See Kinnison v. City of San Antonio, SA-08CV-421-XR, 2010 WL 743795 (W.D. Tex. Mar. 2, 2010). However, although Mr.
Weatherbie asserts that the “estimated physically depreciated replacement cost new
is [$162,687],” his estimate does not take into account the market value of the
Property as it stood immediately prior to demolition, but rather assumes the costs
based upon the value of a vacant lot. (Dkt. # 53-1 at 35.)
Additionally, Plaintiff argues that the “basis for the cost of the
assumed renovations, as explained in the [appraisal,] is the Marshal & Swift
Residential Cost Handbook, and the Expert’s education, experience, and training.”
(Dkt. # 55 ¶ 2.) However, Plaintiff fails to address the fact that the appraisal does
not even include an estimated cost to renovate the pre-demolition Property, but
rather only assumes the construction cost of a post-renovation quality house from
the ground up.
Plaintiff’s assertion that “a juror should be able to arrive at the
pre-deprivation value by comparing the empty lot value to the projected
improvement value, subtracting the amount of damage caused to the structure by
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fire (such testimony provided through those who saw the property before the
demolition)” (Dkt. # 55 ¶ 4) fails to recognize that this speculative calculation
would considerably increase the risk of confusing the jury.
The court in Kinnison addressed this issue, recognizing it is the
court’s role to ensure that the testimony would not mislead the jury. There, the
court explained that if the expert witness was “allowed to testify on his report
based on the refurbished value of the property, Plaintiff could receive a windfall as
the refurbished value alone does not account for the costs necessary to conduct the
refurbishment or the feasibility of refurbishment.” 2009 WL 3768442. Again,
“sufficient facts of data to assess the refurbished value of the home . . . alone—
without an explanation as to how refurbishment costs impacted his analysis—is
insufficient to assess the pre-demolition fair market value of the home.” Id.
Plaintiff asserts that the City “demands that Plaintiff’s Expert to
literally travel backwards in time and space; that he be able to visit the property
before the City demolished it in order to more accurately determine the cost of
renovating it.” (Dkt. # 55 ¶ 3.) Plaintiff fails to recognize that the pre-demolition
market value could be determined through less burdensome avenues than time
travel. Plaintiff improperly considers the post-renovation valuation as the only
means of deciphering the pre-demolition market-value. However, he could have
attempted to establish the pre-demolition market value without using a
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post-renovation estimate and estimated renovation cost. 4
For the reasons stated above and for those discussed at the hearing,
the Court (1) GRANTS IN PART the City’s Motion, and STRIKES the expert
report of Mr. Weatherbie.
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART the City’s
motion to exclude Plaintiff’s expert witness and STRIKES the expert report of Mr.
Weatherbie. The Court hereby GRANTS Plaintiff fifteen (15) days from the date
of the Order in which to file an amended expert report. An amended expert report
shall be filed on or before Tuesday, August 26, 2014.
IT IS SO ORDERED.
DATED: San Antonio, Texas, August 11, 2014.

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For example, Plaintiff could have hired an appraiser to estimate the market value
of the house based on the previous purchase price in light of inflation and 2008
market values of similar houses in the area. Additionally, Plaintiff could have
attempted to establish the 2008 market value through insurance estimates,
photographs of the fire damage, and other evidence of the pre-demolition condition
of the house.
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