Court vacates rulings on experts after settlement

Peter Vieth//March 9, 2020

Court vacates rulings on experts after settlement

Peter Vieth//March 9, 2020

wdvaA federal judge has vacated an opinion on the handling of expert witnesses after the parties settled and together requested the opinion be removed from the record.

The judge had excluded experts on both sides of a property valuation dispute based on findings of unreliable methodology.

The parties announced they had reached agreement on compensation for property being taken for a natural gas pipeline and urged the judge to vacate her expert witness rulings. Vacating the judge’s opinion and order “promotes settlement of these and other cases,” the parties said in a joint motion.

U.S. District Judge Elizabeth K. Dillon agreed in a Nov. 20 order, directing the clerk to remove the opinion and order from the dockets of the pipeline cases and from the court’s electronic filing system.

Dillon’s now-vacated opinion is Mountain Valley Pipeline LLC v. 10.67 acres of land, owned by Doe Creek Farm Inc. (VLW 019-3-537).

Pipeline easements

The 300-mile MVP project would move natural gas from northwestern West Virginia to southern Virginia. Opposition and regulatory delays have delayed the expected completion date and pushed up cost estimates.

MVP filed a condemnation action to acquire both permanent and temporary easements on private property, including Doe Creek Farm in Giles County. The farm is an apple orchard that serves as a wedding venue, according to its website. It also has a kennel, according to the judge’s opinion.

The federal court allowed easements on the property in March 2018 and a trial on just compensation for the takings was set for Nov. 19, 2019.

Daubert rulings

The landowners objected to several of MVP’s proffered experts and MVP objected to one designated expert for the landowners. On Nov. 12, Dillon applied a Daubert analysis and found experts on both sides should be excluded.

Dillon agreed with the landowners that an MVP expert’s “sales comparison approach” to property valuation was unreliable because of flaws in the three comparison sales he used.

Likewise, the judge agreed with MVP that a “paired sales analysis” used by the landowners’ expert failed to adjust for differences in property values in separate real estate markets.

Interlocutory decision

On the eve of trial, the parties reached settlement on just compensation and asked the judge to vacate the expert rulings. An interlocutory order of a trial court is subject to a lighter burden than a final order, the parties contended. They cited a 2004 Fourth Circuit opinion for the proposition that the court can vacate an interlocutory order “when it is equitable to do so.”

Stephen J. Clarke of Norfolk, one of the attorneys for the landowners, acknowledged the experts might be used in other pipeline condemnation cases.

Vacating the order will “alleviate the burden of the experts of addressing the Order in future cases,” the parties acknowledged in their joint motion.

They pointed out Dillon’s rulings were interlocutory in nature and could have been revisited at trial.

“The rulings on expert testimony were subject to further motions, rulings and appeals. As a result of the settlement, however, the cases are concluded, and the opportunity for revision in the normal course is lost,” the parties said.

“Vacating the Order promotes settlement of these and other cases,” the parties continued. “The parties will not be required to continue to litigate or appeal to keep adverse interlocutory rulings from becoming final. This will save time, expense, and judicial resources,” the lawyers wrote.

“The Order involves the application of settled law to the facts of these cases. The Court did not announce any new principles for other cases. Because the Order is specific to these cases, the rights of the public will not be adversely affected by vacating the Order,” the parties said.

Vacatur refused

U.S. District Judge Norman K. Moon refused to vacate opinions at the request of settling parties in two cases resolved more than 10 years ago.

One case involved an attorney who claimed he was defamed by an insurance company’s statements about his handling of an appeal. Moon reasoned that other courts might rely on his rulings applying a litigation privilege. He denied the parties’ motion to vacate his opinion.

Moon later denied a similar motion in a case where he awarded benefits and fees in a long-term disability case.

The “public interest in preserving the integrity of the judiciary and conserving judicial resources outweighs Defendants’ private interest in vacating the Court’s opinions,” Moon wrote.


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