United States District Court, D. Colorado
Raymond P. Moore Judge
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
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).
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.
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.
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).
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.
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).
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).
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.
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.