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United States v. 8.11 Acres of Land, More or Less In County of Grand, Colorado

United States District Court, D. Colorado

August 5, 2019



          Raymond P. Moore Judge

         This action has been filed by the United States under its powers of eminent domain on behalf of the Western Area Power Association in connection with the Granby Pumping Plant -Windy Gap Transmission Line Rebuild project. The United States condemned approximately 8.11 acres that are a part of a larger parcel of land (the “Larger Parcel”) owned by Defendant Lambright, LLC (“Lambright”) in Grand County, Colorado. Before the Court now is Lambright's Motion to Limit Testimony of Gregory T. Gerken (ECF No. 68) filed pursuant to Fed.R.Evid. 702 and 403.

         I. BACKGROUND

         The parties are well versed with the background of this case so it will not be repeated here. In summary, at issue in this case is just compensation for the property taken by the United States which expands a pre-existing powerline. In a partial taking, when the United States acquires only part of a unitary holding, just compensation must reflect not only the property interest acquired, but also any compensable change in the value of the remainder. United States v. Miller, 317 U.S. 369, 376 (1943).

         Mr. Gerken is the United States' expert witness. Lambright seeks to exclude Mr. Gerken's opinion that the new powerline did not reduce the value of the remainder of the Larger Parcel at all. Relying on several arguments, Lambright contends Mr. Gerken's opinion is excludable under Fed.R.Evid. 702 and 403.


         Federal Rule of Evidence 702 (“Rule 702”) requires a district court to ensure that an expert's testimony is admitted only if it is reliable and relevant. Bill Barrett Corp. v. YMC Royalty Co., LP, 918 F.3d 760, 770 (10th Cir. 2019) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)). To do so, the court follows three steps.

         First, the court must decide “whether the proffered expert is qualified ‘by knowledge, skill, experience, training, or education' to render an opinion.” Bill Barrett Corp, 918 F.3d at 770 (quoting Rule 702).

         Next, if the expert is sufficiently qualified, the court “‘must determine whether the expert's opinion is reliable by assessing the underlying reasoning and methodology, as set forth in Daubert.'” Id. (quoting United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc)). In doing so, the court considers 1) whether “the testimony is based on sufficient facts or data”; 2) whether it “is the product of reliable principles and methods”; and 3) whether “the expert has reliably applied the principles and methods to the facts of this case.” Fed.R.Evid. 702(b)-(d).

         There are many factors which may bear on whether expert testimony is based on sound methods and principles, including the following: “whether the theory or technique has (1) been or can be tested, (2) been peer-reviewed, (3) a known or potential error rate, (4) standards controlling the technique's operation, and (5) been generally accepted by the scientific community.” Etherton v. Owners Ins. Co., 829 F.3d 1209, 1217 (10th Cir. 2016). “‘The focus, of course, must be solely on principles and methodology, not on the conclusions they generate.'” Id. (quoting Daubert, 509 U.S. at 595). And, where a court concludes there is too great an analytical gap between the data and opinion offered, it is not required to admit such opinion evidence. Schulenberg v. BNSF Railway Co., 911 F.3d 1276, 1283 (10th Cir. 2018).

         Finally, after reliability, the court evaluates whether the testimony is relevant. “Relevant evidence” is defined as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. That is, whether the testimony properly “fits” in the case. “‘Fit is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.'” Etherton, 829 F.3d at 1223 (quoting Daubert, 509 U.S. at 591).

         Where the expert testimony meets the standards of Rule 702, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. “[G]aps or inconsistencies in an expert's reasoning may go to the weight of the expert evidence, not to its admissibility.” Cook v. Rockwell Int'l Corp., 580 F.Supp.2d 1071, 1085 (D. Colo. 2006). Moreover, the proponent of the testimony “need not prove that the expert is undisputably correct.” Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)). “[I]t is the specific relation between an expert's method, the proffered conclusions, and the particular factual circumstances of the dispute, and not asymptotic perfection, that renders testimony both reliable and relevant.” Bitler, 400 F.3d at 1234.

         The trial court has discretion to determine “how to perform its gatekeeping function under Daubert.” Bill Barrett Corp., 918 F.3d at 770 (emphasis in original). A Daubert hearing is not mandated. Id.

         III. ...

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