Continental Retail, LLC v. County of Hennepin

ANDERSON, G. BARRY, Justice

(concurring).

Because I agree that Continental’s challenge to the qualifications of the County’s expert witness, Shelagh Stoerzinger, is precluded from appellate review as a result of Continental’s failure to bring the *404appropriate post-trial motion, I concur with the majority opinion. It is also not clear that the ultimate result in this dispute would have been different had the court declined to admit the expert testimony, and we need not decide that issue here.

That said, I write separately to emphasize that, while the tax court has significant discretion in the admission of expert witness testimony, that discretion is not unlimited.1 Here, for unexplained reasons, the tax court allowed expert testimony from the County’s witness on issues related to detrimental real estate conditions in the face of an almost complete failure of proof by the County that the witness was in any way qualified to testify on these issues.

How complete was that failure? Not only did the witness admit she had no experience in appraising properties with detrimental conditions, apart from conversations she claims to have had with unidentified peers, the only evidence in the record of an attempt to bolster her qualifications was her testimony that she read a book on the topic and watched an interview with the book’s author on the internet.

The County, no doubt sensing trouble here, attempted to rehabilitate its own witness by asking the witness a standard, routine question in dealing with expert witnesses, specifically: “[D]o you know whether this book is a book that appraisers rely upon in determining detrimental conditions?” The response by the witness is remarkable: “I don’t know.” Nevertheless, the witness was allowed to testify as to detrimental conditions issues.

It is no surprise, then, given this failure of proof, when faced with a challenge to the witness’s qualifications to testify as an expert, the County confined its defense, such as it was, to one sentence: “Respondent’s expert also indicated and testified that she undertook the appropriate steps to complete the assignment competently, thus complying with the Competency Rule of USPAP and her testimony was accepted by the Tax Court.”

Because of the procedural barrier to appeal here, and other issues on appeal, I do not quarrel with the decision of the *405majority not to analyze the expert witness testimony issue in detail. I write separately to join in the decision of the court but also to emphasize that this decision does not erode our evidentiary requirements for the admission of expert witness testimony as found in the Minnesota Rule of Evidence and our case law.

. Expert opinion is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” and the "witness [is] qualified as an expert by knowledge, skill, experience, training, or education.” Minn. R. Evid. 702.

The qualification question has been the subject of review in our court and the Minnesota Court of Appeals. See, e.g., Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-62 (Minn.1998) (finding no abuse of discretion when district court excluded opinion of witness who, despite “extensive” experience with horses, had no experience diagnosing equine lameness of the sort at issue in the case, stating that the horse’s history of lameness "underscores the complex nature of [its] current lameness and the need for competent expert opinions on the causation of such lameness”); Kastner v. Wennerskirschen, 295 Minn. 391, 395, 205 N.W.2d 336, 338 (1973) (finding no abuse of discretion in district court decision to exclude opinion of witness who, while qualified to diagnose the presence of a disease in animals, was not necessarily qualified to render opinion on causation and onset of the disease); cf. Noske v. Friedberg, 713 N.W.2d 866, 872 (Minn.App.2006), rev. denied (Minn. July 19, 2006) (noting that, while law professor's expertise in professional responsibility was “arguably relevant” in malpractice case against criminal defense attorney, the professor's "lack of practical or academic experience in the criminal-law area” would undercut admissibility at trial); Block v. Target Stores, Inc., 458 N.W.2d 705, 709-10 (Minn.App.1990), rev. denied (Minn. Sept. 28, 1990) (finding reversible error in district court determination of architect as unqualified to give expert testimony regarding safety and design issues in retail store when architect had "practical experience and special knowledge” of safety and design issues).