United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S [sic] AMENDED MOTION TO
DISQUALIFY THE PLAINTIFF'S [sic] EXPERT PURSUANT TO FRE
702, AND FRE 703 MOTION FOR THE COURT TO APPOINT AN EXPERT(S)
PURSUANT TO 104 TO ADDRESS THE SOUNDNESS OF PLAINTIFF'S
[sic] EXPERT'S METHODOLOGY
E. Blackburn United States District Judge
matter before me is Defendant's [sic]
Amended Motion To Disqualify the
Plaintiff's [sic] Expert Pursuant to FRE
702, and FRE 703 Motion for the Court To Appoint an Expert(s)
Pursuant to 104 [sic] To Address the
Soundness of the Plaintiff's [sic]
Expert's Methodology [#217],
filed June 1, 2018. I deny the motion.
in this case are landowners who allege defendants'
operation of a commercial recreational marijuana grow
operation adjacent to their land violates the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1962(c), 1964(c)
& (d). I already have granted summary judgment in favor
of plaintiffs on the issue whether defendants' actions
violate RICO. (See Order Re: Summary Judgment
Motions ¶ 1.a. at 15 [#230], filed August 1, 2018.)
Remaining for consideration by the jury are the other two
elements of a successful RICO claim: (1) whether plaintiffs
suffered injury to their business or property; and (2)
whether defendants' violation was a cause of that injury.
See Safe Streets Alliance v. Hickenlooper, 859 F.3d
865, 881 (10th Cir. 2017).
support of those determinations, plaintiffs proffer the
expert testimony of Stephen Billings, an associate professor
of real estate at CU-Boulder who holds a doctorate in urban
economics and applied econometrics. To estimate the impact of
defendants' operation on plaintiffs' property, he has
performed a meta-analysis of existing literature on land uses
which he posits would produce noises and smells comparable to
what properties located near a commercial marijuana grow
might experience. Based on that analysis, he concludes
plaintiffs' median estimated depreciation on their three
properties is slightly more than $24, 000.
seek to preclude Dr. Billings from testifying as an expert
witness in the trial of this case. Their motion is governed
by Rule 702 of the Federal Rules of Evidence, which provides
[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 if: (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
Fed. R. Evid. 702. As interpreted by the Supreme Court, Rule
702 requires an expert's testimony be both reliable, in
that the witness is qualified to testify regarding the
subject, and relevant, in that it will assist the trier in
determining a fact in issue. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct.
2786, 2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance
Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210
(10th Cir. 2004). An expert may be qualified by
“knowledge, skill, experience, training, or
education” to offer an opinion on an issue relevant to
the case. Fed.R.Evid. 702(a). See also 103 Investors I,
L.P. v. Square D Co., 470 F.3d 985, 990 (10th
Cir. 2006). An expert opinion is reliable when it is based on
sufficient facts or data, employs a methodology generally
deemed reliable in the expert's field, and properly
applies such methods to the facts of the case. See
Fed. R. Evid. 702(b), (c), & (d); United States v.
Crabbe, 556 F.Supp.2d 1217, 1222-23 (D. Colo. 2008).
by these principles, I have broad discretion in determining
whether expert testimony is sufficiently reliable and
relevant to be admissible. Truck Insurance Exchange,
360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214
F.3d 1235, 1243 (10thCir. 2000). The overarching
purpose of the court's inquiry is “to make certain
that the expert . . . employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Goebel v. Denver and
Rio Grand Western Railroad Co., 346 F.3d 987, 992
(10th Cir. 2003) (quoting Kumho Tire, 119
S.Ct. at 1176). Generally, “rejection of expert
testimony is the exception rather than the rule.”
United States v. Nacchio, 519 F.3d 1140, 1154
(10th Cir. 2008), vacated in part on rehearing
en banc, 555 F.3d 1234 (10th Cir. 2009).
See also Fed. R. EVID. 702 (2000 Advisory Comm.
Notes). “Vigorous 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, 113
S.Ct. at 2798.
motion is long on argument, but woefully short on authority
or analysis. Indeed, it barely satisfies the requirement of
D.C.COLO.LCivR 7.1(d) that “a motion involving a
contested issue of law shall . . . be supported by a
recitation of legal authority in the motion.”
Nevertheless, to the extent defendants advance discrete,
intelligible arguments, they suggest Dr. Billings should be
precluded from testifying because (1) he is not qualified to
offer opinions on the subject of land valuation; (2) his
methodology is not generally accepted; and (3) his opinions
are unreliable and irrelevant. None of these arguments has
contention that Dr. Billings is not qualified to testify as
to the alleged diminution in value of plaintiff's land
because he is not an expert in land valuation is specious.
Nothing in the federal rules suggests that only one type of
training or experience qualifies an expert to offer an
opinion on a particular topic. With respect to land value in
particular, a landowner herself may offer testimony as to the
value of her land as a “skilled witness.”
See Fed. R. Evid. 702, Adv. Comm. Notes, 1972
Dr. Billings is not a land appraiser, he has education and
experience in applied economics with a focus on real estate.
He has studied and written on a variety of topics examining
different housing markets and the valuation of housing in
relation to various non-structural attributes of the location
or condition of the property. Such considerations are the
basis of the hedonic price method (“HPM”), a
particular way of assessing the value of a piece of property
which forms the theoretical foundation of the papers Dr.
Billings reviewed in formulating his opinions in this
case. Dr. Billings has experience in the use and
application of this method. There thus is no basis on which
to conclude Dr. Billings is not qualified to offer the
opinions stated in his expert report. Any deficiencies
defendants perceive in the fact that he is not a licensed
real estate appraiser are matters that go to the weight, not
the admissibility, of his testimony, and can be thoroughly
explored on cross-examination.
defendants also claim Dr. Billings's methodology is
“not commensurate with other experts and professionals
in the field, ” they present nothing to substantiate
this statement, which appears blatantly untrue in any event.
Indeed, defendants do not appear to be questioning the
validity vel non of HPM,  but rather claiming that a
marijuana grow is sui generis and therefore not
comparable to landfills or airports, the two land uses to
which Dr. Billings analogized defendants' operation. That
assertion is not self-evident, however, and defendants offer
not a shred of proof to buttress their bare assertions that,
for example, unlike a landfill, their operation
“contains odor control systems” and “does
not vent to the outside.” That the jury ultimately may find
such differences compelling provides no basis for precluding
Dr. Billings from testifying in the first instance.
and as an overarching theme running throughout their motion,
defendants challenge the relevance and reliability of Dr.
Billings's opinions. In one iteration, this argument
suggests Dr. Billings's analysis is fatally flawed
because it considers studies of the impacts of various land
uses on the valuation of residential properties, whereas
plaintiffs' land is zoned for agricultural use. This
argument ignores evidence that, regardless of local zoning
ordinances, plaintiffs maintain a residence on their land and
that such use is consistent with the protective covenants
applicable to their properties. Regardless, though Dr.
Billings's opinions are based on allegedly imperfect
comparisons between residential and agricultural properties,
or between a marijuana grow operation and the commercial uses
which were used as comparators, those discrepancies affect
only the weight of his opinions, not their admissibility.
Dr. Billings did not visit the site and relied on
plaintiffs' descriptions of conditions on the land
provides no justification for precluding his testimony
either. Indeed, the rules specifically contemplate that
“[a]n expert may base an opinion on facts or data in
the case that the expert has been made aware of or personally
observed.” Fed.R.Evid. 703. See also United States
v. Chapman, 839 F.3d 1232, 1238 (10thCir.
2016). Thus, “[u]nlike an ordinary witness, an expert
is permitted wide latitude to offer opinions, including those
that are not based ...