Mountain Valley Pipeline, LLC v. 5.88 Acres of Land, Owned by Wendell Wray Flora and Mary McNeil Flora
MEMORANDUM OPINION AND ORDER granting in part and denying in part 36 Motion in Limine; denying 37 Motion in Limine; granting 38 Motion in Limine; denying 16 Motion for Partial Summary Judgment; denying 18 Motion to Exclude Defendants' Experts; granting in part and denying in part 19 Motion in Limine. Signed by Judge Elizabeth K. Dillon on 03/31/2021. (sln)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
MOUNTAIN VALLEY PIPELINE, LLC,
5.88 ACRES OF LAND, OWNED BY
WENDELL WRAY FLORA AND MARY
Civil Action No. 7:19-cv-00225
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Mountain Valley Pipeline (MVP) is constructing an interstate natural gas pipeline.
MVP commenced a condemnation action under the Natural Gas Act, 15 U.S.C. § 717 et seq., to
acquire a permanent easement and temporary easements on numerous properties, including this
property located in Roanoke County. On March 7, 2018, the court entered an order in the primary
condemnation case, Mountain Valley Pipeline LLC v. Easements to Construct, Case No. 7:17-cv492 (W.D. Va.) (Dkt. No. 635), granting MVP immediate possession of the easement on this
property. The trial of this matter was scheduled to begin on April 8, 2020, but it was continued
generally because of COVID-19.
MVP filed two motions in limine (Dkt. Nos. 19 and 25), a motion for partial summary
judgment on the issue of whether there is unity of use between the larger and smaller parcel (Dkt.
No. 16), and a motion to exclude the testimony of Dennis Gruelle and Sean Horne, defendants’
expert witnesses (Dkt. No. 18). At the hearing on these motions, MVP’s second motion in limine
(Dkt. No. 25) was resolved by agreement of the parties, and the court dismissed that motion as
moot. (Dkt. No. 29.) The court also determined that defendants did not oppose the exclusion of the
matters set forth in parts six (examination of Thompson concerning vacated order), seven (evidence
of settlement offers and communications), and eight (evidence of amounts paid for easements on
other properties) of MVP’s motion in limine (Dkt. No. 19), so the motion is granted as to those
matters. At the hearing, the court took the following under advisement: parts one through five of
MVP’s first motion in limine (Dkt. No. 19), MVP’s motion to exclude expert testimony (Dkt. No.
18), and MVP’s motion for partial summary judgment on the issue of the larger parcel (Dkt. No.
Also before the court are motions in limine filed by the Floras (landowners / defendants): (1)
an omnibus motion pertaining to various topics, discussed herein (Dkt. No. 36); (2) a motion
pertaining to the highest and best use of the subject property (Dkt. No. 37); and (3) a motion to
exclude evidence of an alleged assault of an MVP agent by landowner Mary Flora (Dkt. No. 38.)
For the reasons stated below, MVP’s motion for partial summary judgment is denied;
MVP’s motion to exclude expert testimony is denied; MVP’s motion in limine is granted in part and
denied in part; landowners’ omnibus motion in limine is granted in part and denied in part;
landowners’ motion pertaining to highest and best use is denied; and landowners’ motion to exclude
evidence of an alleged assault is granted. Of course, with regard to motions in limine, the court may
revisit these rulings at trial, depending on the evidence elicited and the context in which the
evidence is offered.
MVP has condemned easements over a 55.91-acre tract owned by the Floras, identified in
the main pipeline case complaint as MVP Parcel No. VA-FR-017.21 (the Condemned Tract). The
easements generally run along the northern and southwestern boundaries of the land. (Appraisal
Report of Wesley Woods (Woods Report) 27–28 of 147, Dkt. No. 17-2.) The Condemned Tract is
used for farming and is improved by a farmhouse and outbuildings. (Id. at 47.)
The Floras also own a separate, one-acre tract of land (the Residence Tract) that is improved
by a single-family residence, is fenced around the perimeter, and has deeded access to the highway.
(Appraisal Report of Jared L. Schweitzer (Schweitzer Report) 38 of 180, Dkt. No. 17-1.) The
Condemned Tract surrounds and engulfs the Residence Tract. (Woods Report 27.) The
Condemned Tract is used for farming, and the Residence Tract is used for a single-family residence.
(Woods Report 48, 62.) The Residence Tract and the Condemned Tract used to be in the same
tract, but, according to the deeds, the Residence Tract has been a separate tract since 1978. (See
Dkt. No. 23-2 (December 11, 1978 Deed).) According to landowners’ appraiser, the parcels were
“separated in 1988 to benefit from the County’s land use program which minimizes property tax on
farmed land.” (p. 7 of 34 Dkt. 17-3.) According to landowners’ brief, the Flora family split the
house from the farm in 1988 for estate planning and land use reasons. It appears, the properties have
always been, and still are, used together as a working farm. The house is on a separate parcel for
reasons other than actual use, and the Floras live on and work the farm every day. The well for the
house is on the farm parcel. MVP is not taking an easement on the Residence Tract.
Defendants’ appraiser, Gruelle, contends that the highest and best use of the Condemned
Tract and the Residence Tract is for residential development. According to Gruelle, the highest and
best use involves changing lines to sell lots of five to fifteen acres, including a lot with the
farmhouse and a lot with the residence. (Appraisal Report of Dennis Gruelle (Gruelle Report) 17 of
34, Dkt. No. 17-3.) Defendants’ plan for residential development involves creating new lot lines,
developing private well and septic for each proposed lot, and a driveway for access. (Report of
Sean Horne 2–3 of 6, Dkt. No. 17-4.)
MVP’s appraisers, Schweitzer and Woods, find that the highest and best use for the
Condemned Tract is residential development, but they opine that single-family residence is the
highest and best use for the Residence Tract. (Schweitzer Report 38–40; Woods Report 62–66.)
A. Legal Standards
The motions present various issues of just compensation in eminent domain cases as well as
issues involving the qualification of experts and their reliability and relevance. Legal standards
regarding the same are set forth herein.
1. Just compensation for partial permanent takings, including severance damages
The Takings Clause of the Fifth Amendment prohibits the taking of private property without
just compensation. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005). When the
government condemns private property for a public purpose, it must pay just compensation for that
property. Just compensation is the monetary equivalent of the property taken, and the federal courts
have employed the concept of “fair market value” to determine the condemnee’s loss. United States
v. 564.54 Acres of Land, 441 U.S. 506, 510–11 (1979); Almota Farmers Elevator & Warehouse Co.
v. United States, 409 U.S. 470, 473–74 (1973).
Unless otherwise proscribed by Congress, federal law governs “questions of substantive
right, such as the measure of compensation” for federal courts in condemnation proceedings.
United States v. Miller, 317 U.S. 369, 379–80 (1942). See also Tenn. Gas Pipeline Co. v.
Permanent Easement for 1.7320 Acres, No. 3:cv-11-028, 2014 WL 690700 (M.D. Pa. Feb. 24,
2014) (unpublished) (concluding that federal law applies in determinations of just compensation
under the Natural Gas Act). The Fourth Circuit defines just compensation in a case of partial taking
as “the value of the land taken plus the depreciation in the market value of the remainder.” United
States v. 97.19 Acres of Land, 582 F.2d 878, 881 (4th Cir. 1978) (citing W. Va. Pulp & Paper Co. v.
United States, 200 F.2d 100, 104 (4th Cir. 1952)). Moreover, “value [of the condemned land] is to
be ascertained as of the date of taking.” Miller, 317 U.S. at 374.
In W. Va. Pulp & Paper, the Fourth Circuit recognized the well-settled principle that
“whenever there has been an actual physical taking of a part of a distinct tract of land, the
compensation to be awarded includes not only the market value of that part of the tract
appropriated, but the damage to the remainder resulting from that taking, embracing, of course,
injury due to the use to which the part appropriated is to be devoted.” 200 F.2d at 102. The court
recognized that the landowner was damaged not only by the loss of the land, but also by the
proposed use that caused depreciation to the remainder, and therefore was entitled to be awarded a
sum that “would put it in as good position pecuniarily as it would have been if its property had not
been taken.” Id. at 103. The measure of this sum was “the value of the land taken plus the
depreciation in the market value of the remainder due to the use made of the part taken.” Id. at 104.
See also 97.19 Acres of Land, 582 F.2d at 881 (citations omitted) (explaining that severance
damages to the remainder, if any, are measured as “the difference in market value of the residue
before and after the taking”).
2. Damages for perceived market negative influences
In a previous opinion, this court analyzed the law with regard to testimony about damages
resulting from perceived market negative influences, such as the perceived danger, or unsafe nature,
of pipelines. See Mountain Valley Pipeline, LLC v. 1.23 Acres of Land Owned by Eagle’s Nest
Ministries, Inc., Civil Action No. 7:18-cv-00610 (W.D. Va.), Dkt. No. 55; Mountain Valley
Pipeline, Inc. v. 6.50 Acres of Land Owned by Sizemore Inc. of Va., Civil Action No. 7:18-cv-00612
(W.D. Va.), Dkt. No. 66. The court will not repeat that entire analysis here, but merely incorporates
it by reference. By way of summary, the court held that, to be admissible, an expert’s opinions with
regard to some hazard incident to the use of the property taken must be supported by some evidence
that the hazards are reasonably probable and more than just speculative. Moreover, there must be a
nexus between those hazards and/or the public perception in the marketplace—specifically, the
marketplace for that property—and a diminution in value of the property. In other words, there
must be a causal link between the hazard inherent in the taking and a direct loss in the marketplace.
United States v. 760.807 Acres of Land, 731 F.2d 1443, 1448 (9th Cir. 1984); see also Atl. Coast
Pipeline LLC v. 0.07 Acres, No. 3:18-cv-00006, 2019 WL 2527571, at *14–17 (W.D. Va. June 19,
2019) (excluding an expert environmental professional’s opinion about a natural gas pipeline’s
effect on property value because the analysis was not linked to the specific property’s value and was
therefore irrelevant to the determination of just compensation).
3. Just compensation for temporary taking
Just compensation for a temporary taking is limited to the market rental value of the
property subject to the temporary taking. See United States v. Banisadr Bldg. Joint Venture, 65
F.3d 374, 378 (4th Cir. 1995); see also Mountain Valley Pipeline, LLC v. 1.89 Acres of Land,
Owned by Briarwood Dev’t, LLC, Civil Action No. 7:19-cv-00078, 2019 WL 6467833, at *3 (W.D.
Va. Dec. 2, 2019). Defendant bears the burden of proving the amount of just compensation. See
United States v. 69.1 Acres, 942 F.2d 290, 292 (4th Cir. 1991).
4. Expert testimony
Federal Rule of Evidence 702 and the standards established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern admissibility of expert testimony. Rule
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
(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.
Before considering whether a proffered expert’s testimony is reliable, the court first
determines whether the witness qualifies as an expert. A witness may qualify as an expert on the
basis of “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The expertise
must relate to the areas in which the expert is expressing opinions. See Thomas J. Kline, Inc. v.
Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989). Exclusion should occur only where all bases for
expertise are lacking with regard to the issue for which the opinion is offered, and a proffered expert
“need not be precisely informed about all details of the issues raised in order to offer an opinion.”
Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (quoting Thomas J. Kline, Inc., 878 F.2d at 799).
While the test for exclusion may be a “strict one,” Kopf, 993 F.2d at 377, some type of
relevant expertise is nonetheless required. For example, where experience is one of the bases for a
witness’s expertise, the witness must “explain how [his] experience leads to the conclusion reached,
why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably
applied to the facts.” Radiance Found., Inc. v. Nat’l Ass’n for the Advancement of Colored People,
27 F. Supp. 3d 671, 674 (E.D. Va. 2013) (alteration in original) (citations omitted). Additionally, a
witness’s expertise must be tailored, to some degree, to the specific opinions offered and the
particular facts in the case; general expertise or knowledge on a broad topic or general field may be
insufficient, depending on the facts of a case. Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d
378, 391–92 (D. Md. 2001) (“The fact that a proposed witness is an expert in one area, does not
ipso facto qualify him to testify as an expert in all related areas.”) (citing Oglesby v. Gen. Motors
Corp., 190 F.3d 244, 247 (4th Cir. 1999)).
After ensuring that an individual qualifies as an expert, this court has an obligation under
Daubert to act as a gatekeeper and ensure that any testimony concerning scientific, technical, or
other specialized knowledge offered in support of a party’s claim is “not only relevant, but reliable.”
509 U.S. at 589; Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting same). The
proponent of the testimony must establish its admissibility, although it need not prove its expert’s
theory is correct. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001); Md. Cas. Co.
v. Therm–O–Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998). First, the trial court must ask whether
proffered scientific evidence is valid and reliable. United States v. Barnette, 211 F.3d 803, 815 (4th
Cir. 2000). Second, the court asks whether the evidence will help the trier of fact, which is
generally a question of relevance, or “fit.” The court must ask if, assuming the evidence is reliable,
it will “assist the trier of fact to understand or determine a fact in issue.” Md. Cas. Co., 137 F.3d at
783 (quoting Daubert, 509 U.S. at 592).
The court’s role in limiting expert testimony is important: “due to the difficulty of
evaluating their testimony, expert witnesses have the potential to be both powerful and quite
misleading.” Cooper, 259 F.3d at 199 (citations omitted). Indeed, “given the potential
persuasiveness of expert testimony, proffered evidence that has a greater potential to mislead than to
enlighten should be excluded.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.
1999). Importantly, “[t]he gatekeeping role of the district court is particularly pronounced in
condemnation proceedings under Rule 71.1.” United States v. 33.92356 Acres of Land, 585 F.3d 1,
8 (1st Cir. 2009).
5. Summary judgment
Summary judgment should be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 1 A material fact is one that
“might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass,
242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A dispute of material fact is “genuine” if sufficient evidence favoring the non-moving
party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248–49.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. Celotex, 477 U.S. at 323. Once the moving party makes this showing, however, the
opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other
means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(c), 56(e). All inferences must be viewed in a light most favorable to the nonmoving party, but the nonmovant “cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th
B. MVP’s Motion for Partial Summary Judgment regarding Unity of Use / Larger Parcel
Fair market value is determined by considering the property’s “highest and best use,” which
is the “highest and most profitable use for which the property is adaptable and needed or likely to be
needed in the reasonably near future.” Olson v. United States, 292 U.S. 246, 255 (1934); see also
United States v. 1.604 Acres of Land, 844 F. Supp. 2d 668, 679 (E.D. Va. 2011). “In order for a
landowner to claim just compensation based on a proposed use, there must be evidence that the use
is reasonably probable within the reasonably near future––and hence, not a speculative use.” 1.604
Acres of Land, 844 F. Supp. 2d at 679 (citing Olson, 292 U.S. at 255–57). To determine the highest
Rule 56 applies in this case because the rule governing condemnation proceedings in federal court (Rule
71.1) has no provisions governing summary judgment. See Fed. R. Civ. P. 71.1(a); United States v. Tree Removal
Rights, NO. 3:17-CV-128-DMB-RP, 2018 WL 6072008, at *1 (N.D. Miss. Nov. 19, 2018).
and best use, the appraiser must analyze whether the use is (1) physically possible, (2) legally
permissible, (3) financially feasible, and (4) maximally productive. Id. Each appraiser in this case
analyzed these factors.
The parties agree that the highest and best use of the Condemned Tract is for residential
development but disagree about the Residence Tract. Defendants’ experts opine that the
Condemned Tract and the Residence Tract should be valued together; MVP’s experts maintain that
they should be valued separately, with the highest and best use of the Residence Tract still being
single-family residential. Each appraisal includes the appraiser’s reasons for his conclusion, and
each appraisal includes a larger parcel analysis.
As this court set forth in Atl. Coast Pipeline, LLC v. 0.07 Acre, More or Less, in Nelson Cty.,
Virginia, 396 F. Supp. 3d 628, 633–34 (W.D. Va. 2019),
One of the working rules to do substantial justice in eminent domain
proceedings “is that a parcel of land which has been used and treated
as an entity shall be so considered in assessing compensation for the
taking of part or all of it.” United States v. Miller, 317 U.S. 369,
374-75, 63 S.Ct. 276, 87 L.Ed. 336 (1943). “The larger parcel may
be all of one parcel, part of a parcel, or several parcels, depending
to varying degrees on unity of ownership, unity of use, and
contiguity.” (Dkt. 81-6 (Harvey Report) at 20 (quoting Michael
McKinley, Review Theory and Procedures: A Systematic Approach
to Review in Real Property Valuation, at 56 (Chicago Appraisal
Institute 2015))). In condemnation, the larger parcel is “the tract or
tracts of land which are under the beneficial control of a single
individual or entity and have the same, or an integrated, highest and
best use.” (Dkt. 90 at 3 (quoting J.D. Eaton, Real Estate Valuation
in Litigation, at 76 (2d ed. The Appraisal Institute 1995))).
Here, it is undisputed that there is unity of ownership and contiguity. The question is
whether the tracts have the same or integrated highest and best use, and the experts disagree. As
this court has noted, this is an issue for the court to decide. MVP v. 1.81 Acres of Land (Jones II),
Civil Action No. 7:19-cv-00151, 2019 WL 4007924, at *1 (W.D. Va. Aug. 23, 2019) (citing Fed. R.
Civ. P. 71.1(h)(1) and collecting cases).
Neither “non-contiguousness” nor “non-use” is fatal to a theory combining separate tracts.
See United States v. 105.40 Acres in Porter Cty., State of Ind., 471 F.2d 207, 211 (7th Cir. 1972).
Instead, the “relevant question . . . [is] whether in the ‘reasonably near future’ there was a
‘reasonable probability’ of the lands in question being put to their ‘highest and best use’ in
combination with the main tract so as to affect their market value.” Id. (quoting United States v.
Powelson, 319 U.S. 266, 275–76 (1943)); see also United States v. Certain Land Situated in the
City of Detroit, 188 F. Supp. 2d 747, 757 (E.D. Mich. 2002) (the “reasonable probability of
condemned property being combined with other tracts in the reasonably near future for some
unitary use is also the standard applicable for determining whether such a unitary use may be
considered the ‘highest and best use’ of the condemned property”).
It is undisputed that the current use of the Residence Tract is for single-family residence;
this is presumed to be the highest and best use of the tract. United States v. 69.1 Acres, 942 F.2d
290, 292 (4th Cir. 1991) (“In the absence of proof to the contrary, the highest and best use of
property is presumed to be its current use.”); MVP v. 1.89 Acres (Briarwood), Civil Action No.
7:19-cv-00078, 2019 WL 6467833, at *3 (W.D. Va. Dec. 2, 2019). To overcome this presumption,
defendants must show that there is a “reasonable probability that the separate tracts would have
been combined for such integrated use.” United States v. Mattox, 375 F.2d 461, 463 (4th Cir.
Defendants offered evidence, through their experts, that the Residence Tract could be
subdivided along with the Condemned Tract at some point in the future. They assert that builders
and developers would naturally want to control the entire parcel for increased flexibility and utility.
Their appraiser analyzed whether the use is (1) physically possible, (2) legally permissible, (3)
financially feasible, and (4) maximally productive.
MVP has failed to meet its burden to show that there is no genuine issue of material fact in
dispute regarding the larger parcel and highest and best use. A review of the record in a light most
favorable to defendants shows that the appraisals clearly demonstrate a genuine dispute of fact. For
these reasons, the court concludes that MVP’s motion for partial summary judgment (Dkt. No. 16)
is denied. At trial, the court will hear from the experts, make a determination regarding the issue,
and instruct the jury accordingly.
C. MVP’s Motion to Exclude Experts
MVP moves to exclude expert testimony by Gruelle and Horne on highest and best use for
the same reasons stated in its motion for partial summary judgment. For the reasons stated above,
this motion (Dkt. No. 18) is denied
D. MVP’s Motion in Limine
1. Evidence of subdivision plans
MVP seeks to exclude evidence of a conceptual subdivision prepared for this litigation for
the reasons stated in its motion to exclude defendants’ experts. MVP did not assert any other reason
in its motion. Because the motion to exclude defendant’s experts is denied, this motion, as to
subdivision plans, is denied for the same reasons.
2. Evidence of fear of pipelines and claims that many buyers would not purchase the
Property because of the Pipeline
MVP also moves to exclude expert testimony on the fear associated with gas pipelines.
Gruelle’s report makes various statements pertaining to fear and stigma associated with pipeline
easements based on interviews with brokers who stated that “many buyers are afraid of a gas
pipeline” and “do not want to look at properties with gas pipelines.” (Gruelle Report 30.) The
court has excluded this type of evidence before and does so again in this case because “[t]here is no
evidence linking the alleged diminution of these property sales to fear and stigma as opposed to
other factors.” MVP v. 10.67 Acres (Doe Creek), Civil Action Nos. 7:18-cv-00609, 7:18-cv-00611,
2019 WL 5929283, at *7 (W.D. Va. Nov. 12, 2019). Also, “anecdotal conversations relating to
various fears or perceptions, without foundation, are entirely insufficient as a basis for expert
testimony.” MVP v. 1.81 Acres (Jones I), Civil Action No. 7:19-cv-00151, 2019 WL 3945272, at
*6 (W.D. Va. Aug. 21, 2019).
3. Claims that the Pipeline is dangerous or unsafe and evidence of other pipeline
accidents or incidents
The court has repeatedly excluded this type of evidence and does so again in this case. See
Doe Creek, 2019 WL 5929283, at *7 (W.D. Va. Nov. 12, 2019) (excluding evidence because expert
did not “rely on market evidence connecting pipeline safety, accidents, and fear and stigma
associated with pipeline easements to diminution in value”); Baker, 2019 WL 4306981, at *5
(excluding evidence about high consequence areas (HCAs) and the potential impact radius of an
explosion area in the event of a pipeline rupture because there is no “evidence that any hazard is
reasonably probable and there is no causal link between any hazard, or perception thereof, and a
diminution in value of the property”); Jones I, 2019 WL 3945272, at *5 (excluding testimony
because “an expert’s opinions with regard to some hazard incident to the use of the property taken
must be supported by some evidence that the hazards are reasonably probable and more than just
speculative. Moreover, there must be a nexus between those hazards and/or the public perception in
the marketplace . . . and a diminution in value of the property”).
4. Evidence of alleged impact and possible damages from construction
Gruelle’s report also comments on the alleged impact of temporary construction activities,
such as the “uncertain” impact of “existing springs, wells, drainage and (especially in sloping areas)
soil compaction.” (Gruelle Report 29.) First, the court notes that speculative testimony about
“uncertain” future consequences is not admissible testimony. Additionally, because “compensable
loss in the eminent domain context is limited to risks that are inherent in the easement,” Doe Creek,
2019 WL 5929283, at *7, this evidence is excluded. See also Baker, 2019 WL 4306981, at *8.
5. Evidence of other appraisals
MVP notes that Gruelle’s report refers to various conclusions and opinions of other
appraisers. Defendants oppose the exclusion of only one of those opinions: an appraisal by Samuel
Long prepared for the purpose of estimating security on the subject Property. In Lucki, the court
left open the possibility that such evidence could be admissible. MVP v. 1.85 Acres (Lucki), Civil
Action No. 7:19-cv-00147, 2020 WL 1067001, at *8 (W.D. Va. Mar. 5, 2020). Again, the court
will not exclude this appraisal “merely because it was an appraisal of the Property for purposes of
setting the amount of security, which is the only argument made by MVP in its motion. If the
appraisal is shown to be relevant and a proper foundation for its admission into evidence is made,
then it will not be excluded because it was for purposes of setting security.” Id. Also, as before, the
court “makes no finding at this point whether the appraisal is a party-opponent admission.” Id. The
court also reserves ruling on whether the security appraisal is inadmissible hearsay. With regard to
these matters, the court denies the motion without prejudice.
E. Landowners’ Omnibus Motion in Limine
1. View of the property
Landowners move for a jury view of the subject property during trial. MVP does not object.
While a jury view is not required by law, the court agrees that an in-person jury view is helpful,
where practicable, because the jury is to determine the just compensation for the taking. Thus, the
court will grant the motion for a jury view subject to the conditions during the trial dates regarding
logistics (including, but not limited to, access to the property, weather, and transportation), security
(including, but not limited to, the health and safety of the jurors, parties, counsel, and court
personnel), and time constraints. Should the court determine that an in-person jury view is not
practicable at the time of trial, then the parties will have the opportunity to use photographs, or prerecorded or live video.
2. Opening and closing
Landowners move to open and close at trial because they bear the burden of proof. MVP
does not oppose this motion, which is granted.
3. Evidence of project itself
In this motion, landowners complain that MVP seeks to exclude evidence of its own project.
Landowners wish to present evidence of the text on pipeline markers, including statements about
emergencies, in order to show that the pipeline represents an inherent risk and is subject to
explosion if an accident occurs. (Dkt. No. 36 at 3–4.) MVP does not object to evidence that there
will be pipeline markers on the property, but it does object to any statements on the markers
warning about emergencies or accidents. Gruelle does not describe the statements or warnings on
the markers, nor does he attempt to establish a link between the markers and an actual diminution in
The court, without objection by MVP, will allow evidence that there are, or will be, pipeline
markers on the property. Regarding landowners’ desire to introduce evidence of the text on the
markers, MVP and landowners have failed to provide the court with information about the text on
the markers. Lacking this information, the court denies the motion regarding this issue without
F. Landowners’ Motion in Limine Regarding Highest and Best Use
Landowners ask the court to rule as a matter of law, on a motion in limine, that the two
parcels be considered together under the larger parcel doctrine and that and that the highest and best
use of the property is for residential use. As the court has noted, there are genuine disputes of
material fact. Additionally, this is a motion in limine and not a motion for summary judgment. The
motion (Dkt. No. 37) is denied.
G. Landowners’ Motion in Limine to Exclude Evidence of Alleged Assault
Landowners seek to exclude evidence of charges against defendant Mary Flora for
assaulting an MVP security contractor, and any resulting guilty plea entered by Ms. Flora. MVP
agrees “not to introduce evidence of any charge or conviction of Ms. Flora if defendants do not call
her as a witness.” (Dkt. No. 42.) With that understanding, landowners’ motion (Dkt. No. 38) is
For the reasons stated herein, MVP’s motion for partial summary judgment (Dkt. No. 16) is
DENIED; MVP’s motion to exclude expert testimony (Dkt. No. 18) is DENIED; MVP’s motion in
limine (Dkt. No. 19) is GRANTED IN PART and DENIED IN PART as follows – it is denied as to
part one (evidence of subdivision plans), it is granted as to part two (fear of pipelines and claims
that buyers will not purchase), it is granted as to part three (evidence of danger and other accidents),
it is granted as to part four (evidence of alleged impact and possible damages from construction), as
to part five (evidence of other appraisals) it is granted without objection as to appraisals by persons
other than Mr. Long and denied without prejudice as to appraisals by Mr. Long, it is granted
without objection as to parts six (examination of Thompson concerning vacated order), seven
(evidence of settlement offers and communications), and eight (evidence of amounts paid for
easements on other properties); landowners’ omnibus motion in limine (Dkt. No. 36) is GRANTED
IN PART and DENIED IN PART as follows – it is granted as to a jury view (subject to conditions
on the trial dates), it is granted as to the right to open and close, and it is granted without objection
as to the fact of pipeline markers on the property, and it is denied without prejudice as to the text on
the pipeline markers; landowners’ motion pertaining to highest and best use (Dkt. No. 37) is
DENIED; and landowners’ motion to exclude evidence of an alleged assault (Dkt. No. 38) is
GRANTED without objection.
The clerk is directed to provide a copy of this memorandum opinion and order to counsel of
Entered: March 31, 2021.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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