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Experts excluded in condemnation damages action

Virginia Lawyers Weekly//September 15, 2022

Experts excluded in condemnation damages action

Virginia Lawyers Weekly//September 15, 2022

Where one expert for the landowner in a condemnation damages trial offered an opinion that was not reliable, a second expert’s opinion was not adequately supported by data and a third expert’s report did not disclose his actual opinions or the supporting facts and data, the three experts were excluded from testifying at the trial.


Mountain Valley Pipeline, or MVP, commenced a condemnation action to acquire permanent and temporary easements on numerous properties, including a property located owned by Grace Minor Terry. Before the court are: (1) MVP’s motion to exclude expert testimony by Dennis Gruelle, Linda DeVito and Larry Florin; (2) MVP’s motion to exclude Terry’s testimony; (3) MVP’s motion for summary judgment and (4) MVP’s omnibus motion in limine.


MVP argues that Gruelle’s appraisal is not reliable. The court agrees. First, Gruelle makes no mention whatsoever of the pre-existing old logging road over which MVP’s easement runs. Because Gruelle makes no mention of the road, his report contains no opinion as to effect of the existing road on the pre-take value of the larger parcel.

Similarly, his evaluation of the properties to which he compares the larger parcel for a pre-take value does not include an analysis of the effects of this existing logging road or information as to why such an analysis is not required. Also, regarding the pre-take value of the larger parcel, said to be $865,000, Gruelle uses only one comparator property subject to a conservation easement.

While no part of the pipeline is being built on the Terry property, Gruelle finds that the property is damaged because the pipeline corridor on other property will be “part of the view vista” for the property. Gruelle’s analysis in this regard is fundamentally flawed.

Gruelle also finds that the east side of Honeysuckle Road is not suitable for development because of “noise and use of the permanent access road.” However he makes no mention of noise and use of Honeysuckle Road (a public road) and the old logging road that already exist. Finally, Gruelle errs in assuming that the entire width of MVP’s access easement is permanent and calculating just compensation based upon that assumption.


DeVito’s letter opinion states that the pipeline project “serves to reduce marketability, desirability, and [the] ability to sell [the] property for the highest gain.” The letter does not provide any supporting market data. Therefore, it will be excluded.


According to defendant, Florin will testify as to the “reasonable probability of rural residential subdivision” and “the highest and best use of mountainside property and its market demand.” Defendant has not disclosed Florin’s actual opinions on these subjects or the facts and data that support his opinions.


The court finds that there is no rational basis for Terry’s opinion that the conservation easement and MVP’s access easement affect the property equally. Additionally, Terry’s alternate opinion on value after the taking, based on the two sales on Green Hollow Road, is likewise inadmissible. To the extent Terry’s testimony is not based on her personal knowledge of the property, it will be also be excluded. She will, however, be entitled to testify about her property and her valuation of the property pre-take.

Summary judgment

Given that Terry will be allowed to testify regarding the pre-take value of her property, there is an issue of fact as to the amount of just compensation for the permanent access easement. Thus, MVP’s motion for summary judgment will be denied in part.

Terry, however, offers no evidence of the value of the temporary access easement. As such, MVP’s valuation is unopposed and undisputed. So the court will grant MVP’s motion for summary judgment as to the temporary access road easement and award Terry $55 for the same.

Motion in limine

The court will preclude evidence of fear of pipelines and claims that buyers would not purchase the property because of the pipeline. Claims that the pipeline is dangerous or unsafe and evidence of other pipeline accidents or incidents will also be precluded. Gruelle’s comments filed on the FERC docket will be excluded as inadmissible hearsay and because they are not linked to diminution of market value.

Evidence of alleged effects from construction will be excluded because these possible impacts are not inherent in the easement. Similarly, evidence of possible utility corridor, evidence of settlement offers and communications and evidence of amounts paid for easements on other properties are excluded.

MVP’s motion to exclude expert testimony granted. MVP’s motion to exclude testimony by Grace Terry granted in part, denied in part. MVP’s motion for summary judgment granted in part, denied in part. MVP’s motion in limine granted.

Mountain Valley Pipeline LLC v. 0.32 Acres of land owned by Grace Minor Terry, Case No. 7:21-cv-00099, Sept. 7, 2022. WDVA at Roanoke (Dillon). VLW 022-3-392. 21 pp.

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