Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
Where two of the landowners’ experts in a condemnation damages suit provided opinions that were unreliable, and a third expert failed to provide a required report, they were excluded from the trial.
Mountain Valley Pipeline, or MVP, is constructing an interstate natural gas pipeline. MVP commenced a condemnation action under the Natural Gas Act to acquire permanent and temporary easements on numerous properties, including the property at issue in this case. Pending in this matter are MVP’s motion to exclude expert testimony and MVP’s omnibus motion in limine.
MVP contends that Gruelle’s valuation opinion is inadmissible because it violates the “well-established rule that, where part of an owner’s land is taken, just compensation does not include any diminution in value of the remainder caused by the use of adjoining land of others for the same project.” The court agrees. The just compensation assured by the Fifth Amendment to an owner, a part of whose land is taken for public use, does not include the diminution in value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking.”
Gruelle’s opinion is also unreliable for other reasons. For example, Gruelle does not consider the fact that the easement lies over an existing access road to a neighboring property. Gruelle’s assumption that the access road changes the highest and best use of the property — from “high-end” residential development with a “national market” to single-family residential use — is completely unsupported.
Gruelle does not offer, for example, paired sales or studies that isolate the effect of an access road, and he does not provide data that an access road prevents residential development. Moreover, Gruelle’s report fails to acknowledge that the entire width of the access easement is not permanent.
Finally, for his after value, Gruelle uses sales of properties suitable only for single-family residential because of lack of road frontage, steep topography or high voltage transmission lines. These conditions are not analogous to an access road that already exists. Gruelle also cites paired-sales studies, but the studies he cites are to properties encumbered by a natural gas pipeline, not an access road.
Larry Florin and Linda DeVito
Landowners disclose that Florin has opinions on the “reasonable probability of rural residential subdivision” and the “highest and best use of mountainside property and its market demand. Florin also purports to testify that “road easements for private rights-of-way are inconsistent and incompatible with high-end rural residential development for the loss of privacy and views.”
Defendants argue that Florin was not required to provide a report because he was not “retained or specially employed to provide expert testimony in the case.” However Florin is “specially employed” under this rule because he has no personal involvement in the facts giving rise to the case, regardless of whether he is compensated or volunteers. Therefore, he was required to provide a report under Rule 26(a)(2)(B). Florin’s opinions will be excluded.
Similar to Florin, Ms. DeVito does not provide any facts or data to support her opinion that the access easement “serves to reduce marketability, desirability, and salability of the property.” Therefore, her testimony will be excluded.
Motion in limine
Because defendants have not linked fear of pipelines to a diminution of value, evidence of fear is inadmissible. As to claims that buyers would not purchase the property, such claims will be excluded because “anecdotal conversations relating to various fears or perceptions, without foundation, are entirely insufficient as a basis for expert testimony.” For similar reasons, the court excludes evidence based on claims that the pipeline is dangerous or unsafe and evidence of other pipeline accidents or incidents.
Gruelle cites comments filed on the FERC docket by opponents of the pipeline. MVP moves to exclude this evidence as hearsay and unreliable evidence that an expert cannot reasonably rely upon under Rule 703. Landowners do not respond to this motion, which will be granted.
Gruelle states that the access easement will cause soil disruption and compaction and increased noise. But evidence of soil disruption and compaction is inadmissible because this possible impact is not inherent in the easement. Evidence of temporary impacts, including evidence that noise levels will increase during construction of the pipeline, is also not admissible.
MVP moves to exclude this evidence because the possibility of a utility corridor is speculative and there is no evidence that it affects the market value of the property. Landowners do not oppose this motion, which will be granted. Finally landowners do not oppose the motion to exclude examination of Joseph E. Thompson concerning a vacated order, evidence of settlement offers and communications and evidence of amounts paid for easements on other properties.
Plaintiff’s motion to exclude expert testimony granted. Plaintiff’s omnibus motion in limine granted.
Mountain Valley Pipeline LLC v. 2.20 Acres of Land, by Frank H. Terry Jr., Case No. 7:20-cv-00136, Sept. 1, 2023. WDVA at Roanoke (Dillon). VLW 023-3-532. 14 pp.