Court Grants B&D Motion to Exclude Property Expert

Beveridge & Diamond, P.C., June 9, 2008

On June 5, 2008, the United States District Court for Southern District of New York granted a motion in limine prepared by Beveridge & Diamond, P.C. (“B&D”) to exclude the testimony of a property expert retained by homeowner plaintiffs in a case involving alleged environmental contamination.  In Re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation (Tonneson, et al. v. Sunoco, Inc., et al., 03 Civ. 8284 and Basso, et al. v. Sunoco, Inc., et al., 03 Civ. 9050), No. 1:00-1898 (Scheindlin, J.).  The Court held that the expert’s testimony failed to meet the admissibility requirements of Federal Rule of Evidence 702 and the seminal U.S. Supreme Court case Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) and its progeny.  For a copy of the Opinion and Order, click here.

The plaintiffs, property owners with private drinking water wells, claimed that their properties had suffered a diminution in value due to alleged contamination of their private wells by the gasoline additive MTBE.  In support of their position, plaintiffs proffered the expert testimony of a local real property appraiser.  Based on plaintiffs’ testimony and various market data presented in a single two-page table, the expert summarily concluded that the value of each of plaintiffs’ properties had uniformly decreased by 15% for single-family dwellings and by 20% for multi-family dwellings. 

Agreeing with the defendants, the Court held that the expert testimony was inadmissible under Rule 702 and Daubert because the appraiser failed to follow any professionally accepted methodology and failed to connect his conclusions to the data purportedly considered.  The Court was “unable to discern any method -- much less a reliable method -- that [the expert] used to reach his conclusion” regarding the loss in plaintiffs’ property values from alleged contamination.  Slip Op. at 8.  Specifically, the expert had failed to demonstrate his compliance with the standards governing his profession (i.e., the Uniform Standards of Professional Appraisal Practice).  Id. at 11-12.  Instead, the expert had “merely compiled market data and then offered his conclusions, yet . . . failed to explain the relationship between the two.”  Id. at 9. 

The Court also found that the expert had “selectively chosen data to highlight” while ignoring data that contravened his ultimate conclusion and failing to offer adequate support for his conclusions.  Id. at 10-11, 13.  The Court noted that the opinions offered were “connected to existing data only by the ipse dixit of the expert,” and found it “obvious” that the expert had “failed to employ the same level of intellectual rigor that characterizes the practice of an expert in [property appraisal].”  Id. at 11, 14.

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For more information, please contact Dan Krainin at (212) 702-5417 or dkrainin@bdlaw.com; Gary Smith at (415) 262-4045 or gsmith@bdlaw.com; or James Auslander at (202) 789-6009 or jauslander@bdlaw.com.