Mississippi Transportation Commission v. Dennis McLemore

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2001-CA-01039-SCT

MISSISSIPPI TRANSPORTATION COMMISSION

v.

DENNIS McLEMORE AND TAMMY McLEMORE

DATE OF JUDGMENT: 3/28/2001
TRIAL JUDGE: HON. MILLS E. BARBEE
COURT FROM WHICH APPEALED: DESOTO COUNTY SPECIAL COURT OF
EMINENT DOMAIN
ATTORNEYS FOR APPELLANT: RICHARD G. NOBLE
HOLLAMAN MARTIN RANEY
OFFICE OF THE ATTORNEY GENERAL BY:
BILLY DON HALL
ATTORNEY FOR APPELLEES: TAYLOR D. BUNTIN
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
DISPOSITION: REVERSED AND REMANDED -10/16/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1. This eminent domain case arises from the Special Court of Eminent Domain of DeSoto County,

where a jury awarded Dennis and Tammy McLemore total compensation and damages in the amount of

$1,370,000. Because the testimony of Rip Walker, the McLemores’ expert appraisal witness, fails to

satisfy the Frye standard or the modified Daubert standard for the admissibility of expert witness

testimony, the trial court erred in denying MTC’s motion in limine and in admitting Walker’s testimony. The
judgment of the trial court is therefore reversed, and this case is remanded for a new trial, consistent with

this opinion.

FACTS

¶2. The McLemores owned 1,980 acres of land in DeSoto County, Mississippi. Responding to

increased growth in DeSoto County and development in Tunica County, the Mississippi Transportation

Commission (“MTC”) planned to construct an interstate highway between U.S. Interstate 55 at Hernando

and U.S. Highway 61 at Robinsonville. The proposed interstate crosses the McLemores’ DeSoto County

property. Because it was unable to obtain the required 174-acre portion of the McLemores’ DeSoto

County property (“McLemore property”) through negotiations, the MTC instituted this eminent domain

action.

¶3. Seeking to condemn the McLemore property for use in the proposed project, the MTC on

November 30, 1999, filed a complaint for the organization of a Special Court of Eminent Domain in

DeSoto County. After a trial, the jury returned a verdict in favor of the McLemores, and the trial court

entered judgment on the verdict. The MTC subsequently filed a motion for judgment notwithstanding the

verdict, remittitur, or a new trial, which the trial court denied. The MTC raises the following issues in this

appeal:

I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
IN FAILING TO APPLY THE FRYE STANDARD TO EXCLUDE
THE UNRELIABLE TESTIMONY OF RIP WALKER, THE
McLEMORES’ EXPERT APPRAISAL WITNESS, WHEN THE
COURT DENIED MTC’S MOTION IN LIMINE AND DENIED
MTC’S MOTION FOR NEW TRIAL AND/OR REMITTITUR.

II. WHETHER THE JURY VERDICT WAS THE RESULT OF THE
TRIAL COURT’S ERROR IN ADMITTING SPECULATIVE AND
TOTALLY UNRELIABLE DAMAGE TESTIMONY BY THE
McLEMORES’ APPRAISAL WITNESS.

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 III. WHETHER THIS COURT WILL ABANDON THE FRYE
STANDARD AND ENDORSE AND ADOPT THE
DAUBERT/KUMHO STANDARDS SO THAT A TRIAL JUDGE CAN
ENSURE THAT ALL EXPERT TESTIMONY AND EVIDENCE IS
NOT ONLY RELEVANT, BUT RELIABLE.

STANDARD OF REVIEW

¶4. Our well-settled standard of review for the admission or suppression of evidence is abuse of

discretion. Haggerty v. Foster, 838 So. 2d 948, 958 (Miss. 2002). Moreover, a motion in limine

should be granted only if “(1) the material or evidence in question will be inadmissible at a trial under the

rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material

will tend to prejudice the jury.” Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss. 1988).

Furthermore, the admission of expert testimony is within the sound discretion of the trial judge. Puckett

v. State, 737 So.2d 322, 342 (Miss. 1999). Therefore, the decision of a trial judge will stand “unless we

conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.

DISCUSSION

¶5. The MTC argues that we should abandon the general acceptance test set forth in Frye v. United

States, 293 F. 1013, 1014 (D.C. Cir. 1923), for determining the admissibility of expert witness testimony

in favor of the rule stated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed. 2d 469 (1993), as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct.

1167, 143 L.Ed.2d 238 (1999). We agree. Walker’s testimony failed to satisfy either the Frye standard

or the modified Daubert standard; therefore, his testimony should have been excluded.

I. ADOPTION OF THE DAUBERT/KUMHO TIRE RULE AS THE
STANDARD FOR ADMISSIBILITY OF EXPERT WITNESS
TESTIMONY

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¶6. The analysis for admission of expert testimony is enumerated in the Mississippi Rules of Evidence,

Rule 702, as amended on May 29, 2003. The amended rule states that:

If scientific, technical or other specialized knowledge will assist the trier of fact to
understand or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the
case.

M.R.E. 702 (emphasis added). Rule 702, as amended, is identical to Rule 702 of the Federal Rules of

Evidence.

¶7. Under Rule 702, expert testimony should be admitted only if it withstands a two-pronged inquiry.

Kansas City S. Ry. v. Johnson, 798 So. 2d 374, 382 (Miss. 2001). First, the witness must be qualified

by virtue of his or her knowledge, skill, experience or education. Id. (citing M.R.E. 702). Second, the

witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding

or deciding a fact in issue. Id. In addition, Rule 702 “does not relax the traditional standards for

determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of

knowledge.” M.R.E. 702 cmt.

¶8. Prior to its amendment earlier this year, the comment to M.R.E. 702 quoted the well-known Frye

test, noting that Rule 702 did not “relax the requirement that the scientific principle from which the expert’s

opinion is derived ‘must be sufficiently established to have gained general acceptance in the particular field

to which it belongs.’” M.R.E. 702 cmt. (repealed 2003) (quoting Frye, 293 F. at 1014). Our previous

cases recognize this Court’s long adherence to the Frye rule despite the adoption of M.R.E. 702 and

major changes in federal evidence law. See, e.g., Kansas City, 798 So. 2d at 382 (citing Gleeton v.

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State, 716 So.2d 1083, 1087 (Miss. 1998)). In deciding whether the field has gained “general

acceptance,” we have previously asked:

Is the field of expertise one in which it has been scientifically established that due
investigation and study in conformity with techniques and practices generally accepted
within the field will produce a valid opinion? Where the answer to this question is in the
affirmative, we generally will allow expert testimony.

House v. State, 445 So. 2d 815, 822 (Miss. 1984). Further, we have stated that “[t]he facts upon

which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as

distinguished from mere guess or conjecture.” Hickox v. Holleman, 502 So. 2d 626, 638 (Miss. 1987)

(quoting Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534, 540 (1972)). However, we have made

clear that under the Frye standard, “it is not necessary that one offering to testify as an expert be infallible

or possess the highest degree of skill; it is sufficient if that person possesses peculiar knowledge or

information regarding the relevant subject matter which is not likely to be possessed by a layman.”

Kansas City, 798 So. 2d at 382 (quoting Hooten v. State 492 So. 2d 948 (Miss. 1986)).

¶9. In 1993, the United States Supreme Court declared that the Federal Rules of Evidence supersede

the Frye general acceptance test. Daubert v. Merrell Dow Pharms., Inc., 509 U.S.579, 587, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993). Despite this major change in federal evidence law, Mississippi has

continued to apply Frye. See Kansas City, 798 So. 2d at 382.

¶10. In Daubert, the Court concluded that the “general acceptance” test is inconsistent with other

evidentiary provisions that strive to prevent the admission of unreliable or irrelevant scientific testimony.

Daubert, 509 U.S. at 589. The rigidity of the “general acceptance” test also conflicts with the liberal

goals of the Federal Rules which include reducing the traditional barriers to opinion testimony. Id. at 588-

5
89 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S. Ct. 439, 450, 102 L.Ed. 2d

445 (1988)).

¶11. However, the Court determined that a federal trial court retains authority to review scientific

evidence to determine admissibility. Id. at 589. The trial court is vested with a “gatekeeping

responsibility.” Id. The trial court must make a “preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology

properly can be applied to the facts in issue.” Id. at 592-93. Preliminary questions of witness

qualifications, privileges and admissibility of evidence are resolved pursuant to Rule 104(a) and 104(b).

Id. at 592. The trial judge determines whether the testimony rests on a reliable foundation and is relevant

in a particular case. Id. at 589. There must be a “valid scientific connection to the pertinent inquiry as a

precondition to admissibility.” Id. at 592. The party offering the expert’s testimony must show that the

expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs

or unsupported speculation. Id. at 590.

¶12. Moreover, the Court in Daubert determined that abandoning the general acceptance test does

not result in jury confusion from “absurd and irrational pseudoscientific assertions,” since “[v]igorous cross

examination, presentations of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.” Id. at 595-96 (citing Rock

v. Arkansas, 483 U.S. 44, 62, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37 (1987)). If evidence is deemed

insufficient for a reasonable juror to conclude that the position is more likely than not true, the trial court

can direct a judgment or grant summary judgment. Id. at 596 (citing Fed. R. Civ. P. 50(a), 56). These

6
well-established, traditional devices provide better safeguards than full exclusion of testimony which meets

the standards of Rule 702. Id.

¶13. The Court in Daubert adopted a non-exhaustive, illustrative list of reliability factors for determining

the admissibility of expert witness testimony. Id. at 592-94. The focus of this analysis “must be solely on

principles and methodology, not on the conclusions they generate.” Id. at 595. These factors include

whether the theory or technique can be and has been tested; whether it has been subjected to peer review

and publication; whether, in respect to a particular technique, there is a high known or potential rate of

error; whether there are standards controlling the technique’s operation; and whether the theory or

technique enjoys general acceptance within a relevant scientific community. Id. at 592-94. The

applicability of these factors depends on the nature of the issue, the expert’s particular expertise, and the

subject of the testimony. Kumho Tire, 526 U.S. at 151. The Daubert Court emphasized that the

reliability inquiry contemplated by Rule 702 “is a flexible one.” Daubert, 509 U.S. at 594. In Kumho

Tire, the Court illustrated such flexibility in that:

It might not be surprising that in a particular case, for example, that a claim made by a
scientific witness has never been the subject of peer review, for the particular application
at issue may not have ever interested any scientist. Nor, on the other and, does the
presence of Daubert’s general acceptance factor help show that an expert’s testimony
is reliable where the discipline itself lacks reliability, as, for example, do theories grounded
in any so-called generally accepted principles of astrology or necromancy.

Kumho Tire, 526 U.S. at 151. Therefore, the Court determined that it could “neither rule out, nor rule

in, for all cases and for all time the applicability of the factors mentioned in Daubert” because “[t]oo much

depends upon the particular circumstances of the particular case at issue.” Id. at 150. Thus, the trial court

has “considerable leeway in deciding in a particular case how to go about determining whether particular

expert testimony is reliable.” Id. at 152. That is, the Daubert factors should be considered “where they

7
are reasonable measures of the reliability of expert testimony.” Id. Furthermore, neither Daubert nor the

Federal Rules of Evidence requires that a court “admit opinion evidence that is connected to existing data

only by the ipse dixit of the expert,” as self-proclaimed accuracy by an expert an insufficient measure

of reliability. Id. at 157 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139

L.Ed. 2d 508 (1997)).

¶14. The Court’s holding in Daubert was specifically limited to scientific expert testimony since the

testimony at issue in that case was “scientific” in nature. Kumho Tire, 526 U.S. at 147. However, the

Court in Kumho Tire concluded that a trial court’s basic “gatekeeping responsibility” applies to the

admissibility of expert testimony based on “technical” and “other specialized” knowledge. Id. Analyzing

the language of Rule 702, the Court concluded that the word “knowledge” and not the words that modify

it “establishes a standard of evidentiary reliability.” Id. at 148 (quoting Daubert, 509 U.S. at 589-90).

¶15. In addition, the Court in Kumho Tire noted that the evidentiary rationale that supports trial courts’

gatekeeping responsibilities is not limited to scientific knowledge. Id. When stating opinions, an expert

is given greater latitude than a lay witness under the assumption that an expert’s opinion is reliably based

on knowledge and experience particular to a chosen discipline. Id. However, whether testimony is based

on professional studies or personal experience, the “gatekeeper” must be certain that the expert exercises

the same level of “intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at

152.

¶16. Thus, to summarize, the analytical framework provided by the modifiedDaubert standard requires

the trial court to perform a two-pronged inquiry in determining whether expert testimony is admissible under

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Rule 702. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002). The modified Daubert

rule is not limited to scientific expert testimony - rather, the rule applies equally to all types of expert

testimony. Kumho Tire, 526 U.S. at 147. First, the court must determine that the expert testimony is

relevant - that is, the requirement that the testimony must “‘assist the trier of fact’ means the evidence must

be relevant.” Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir. 2002) (citing Fed. R. Evid. 702).

Next, the trial court must determine whether the proffered testimony is reliable. Pipitone, 288 F.3d at

244. Depending on the circumstances of the particular case, many factors may be relevant in determining

reliability, and the Daubert analysis is a flexible one. Id. Daubert provides “an illustrative, but not an

exhaustive, list of factors” that trial courts may use in assessing the reliability of expert testimony. Id.

¶17. In applying the modified Daubert rule, Mississippi’s federal courts have recognized that the

gatekeeping role of federal trial courts is taken seriously. Hammond v. Coleman Co., 61 F. Supp. 2d

533, 537 (S.D. Miss. 1999), aff’d mem. 209 F.3d 718 (5th Cir. 2000). Moreover, there is universal

agreement that the Daubert test has effectively tightened, not loosened, the allowance of expert testimony.

61 F. Supp. 2d at 537.

¶18. Daubert/Kumho Tire analysis has been used to exclude a medical doctor’s testimony on the

cause of fybromyalgia. Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999). Because of the many

types of experts and expertise, the application of Daubert is fact specific and appropriately uses relevant

factors to determine reliability. Id. at 311.

¶19. After eliminating other possible causes, the expert in Black concluded that a fall at Food Lion was

the cause of the patient’s fibromyalgia. Id. at 314. This conclusion was based on an improper exercise

in scientific logic and the unacceptable fallacy of post-hoc propter-hoc reasoning. Id. A scientifically

9
reliable conclusion on causation was not possible since the doctor did not know the exact process or

factors triggering the disease. Id. A conclusion for which there was no underlying medical support was not

vindicated by the use of general methodology in the medical field. Id. A “standard of meaningless high

generality rather than boring in on the precise state of scientific knowledge in this case” could not render

a proper determination. Id.

¶20. The Fifth Circuit has applied Daubert to expert testimony in an eminent domain proceeding.

United States v. 14.38 Acres of Land, More or Less Situated in Leflore County, State of

Mississippi, 80 F.3d 1074 (5th Cir. 1996). The district court refused to admit expert testimony of Rip

Walker1 and Rogers Varner regarding severance damages resulting from an exercise of eminent domain.

The opinions were deemed “speculative and not based on reliable foundations” providing “no aid to the

finder of fact in determining just compensation in this case.” Id. at 1076 (citing 884 F. Supp. 224, 227

(N.D. Miss. 1995)). The experts expressed uncertainty about the extent of flooding on the property in the

event of heavy rainfall resulting in the district court’s decision that the burden to demonstrate a diminution

in the value of the landowner’s property was not met. Id. at 1077. This application of the reliability test

was overly stringent. Id.

¶21. The trial court’s role as gatekeeper is not intended as a replacement for the adversary system. Id.

The admission of expert assessment of value must be cautiously determined because of the expert’s critical

role in the evaluation of the strong interests of both property owners and governments in just compensation.

Id. at 1077. Absent other grounds to exclude, an expert’s testimony is presumptively admissible when

1
This is the same Rip Walker as in the case at bar.

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relevant and reliable. Id. Not entirely speculative, nor unreliable, the experts’ testimony was not

inadmissible because of their inability to predict the extent of flooding. Id. at 1079.

¶22. This Court has consistently refused to apply the reasoning of Daubert and its progeny in evaluating

the admissibility of expert witness testimony under the previous version of M.R.E. 702. Kansas City, 798

So. 2d at 382 (citing Gleeton v. State, 716 So. 2d 1083, 1087 (Miss. 1998); Crawford v. State, 716

So. 2d 1028, 1046 (Miss. 1998); Polk v. State, 612 So. 2d 381, 390 (Miss. 1992)). While we

concluded in Humphrey v. State, 759 So. 2d 368, 384 (Miss. 2000), that the Frye standard of general

acceptance is “time proven,” M.R.E. 702 was amended earlier this year, and the comment to the current

rule states:

[T]he Supreme Court clearly recognizes the gate keeping responsibility of the trial court
to determine whether the expert testimony is relevant and reliable. This follows the 2000
adoption of a like amendment to Fed. R. Evid., 702 adopted in response to Daubert v.
Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). It is important to
note...that the factors mentioned in Daubert do not constitute an exclusive list of those to
be considered in making the determination: Daubert’s “list of factors was meant to be
helpful, not definitive.” Kumho, 526 U.S. at 151.

M.R.E. 702 cmt. Notably, the comment makes no mention of Frye or the general acceptance test. Thus,

the current version of Rule 702 recognizes that the Daubert rule, as modified, provides a superior

analytical framework for evaluating the admissibility of expert witness testimony.

¶23. Considering this Court’s recent May 29, 2003, adoption of revised Rule 702 with the additional

language found in the federal rule, this Court today adopts the federal standards and applies our amended

Rule 702 for assessing the reliability and admissibility of expert testimony. This standard recognizes the

distinction between lay and expert witnesses. Like the Federal Rules, our rules grant wide latitude for

experts to give opinions even when the opinions are not based on the expert’s firsthand knowledge or

11
observations. With a focus on relevance and reliability, this approach is superior to the “general

acceptance” test in Frye, because the Frye test can result in the exclusion of relevant evidence or the

admission of unreliable evidence.

¶24. The gatekeeping function of the trial court is consistent with the underlying goals of relevancy and

reliability in the Rules. Daubert ensures that the relevancy requirements of the rules are properly

considered in an admissibility decision. Rule 702 gives the judge “discretionary authority, reviewable for

abuse, to determine reliability in light of the particular facts and circumstances of the particular case.”

Kumho Tire, 526 U.S. at 158.

¶25. We are confident that our learned trial judges can and will properly assume the role as gatekeeper

on questions of admissibility of expert testimony. The modified Daubert test does not require trial judges

to become scientists or experts. Every expert discipline has a body of knowledge and research to aid the

court in establishing criteria which indicate reliability. The trial court can identify the specific indicia of

reliability of evidence in a particular technical or scientific field. Every substantive decision requires

immersion in the subject matter of the case. The modified Daubert test will not change the role of the trial

judge nor will it alter the ever existing demand that the judge understand the subjects of the case, both in

terms of claims and defenses. We are certain that the trial judges possess the capacity to undertake this

review.

II. ADMISSIBILITY OF RIP WALKER’S APPRAISAL TESTIMONY

¶26. The central issue of this appeal concerns a component of Walker's appraisal, referred to at trial as

the 750-foot line of damage method (“750-foot line method”). Because it completely fails to satisfy the

modified Daubert rule, we conclude that Walker’s testimony was inadmissible. In addition, we also find

that Walker’s testimony fails to satisfy the requirements of the abandoned Frye rule.

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 A. APPLICATION OF THE MODIFIED DAUBERT
STANDARD

¶27. First, the Mississippi Rules of Evidence define relevant evidence as that which has “any tendency

to make the existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” M.R.E. 401. If the proffered evidence has any

probative value at all, Rule 401 favors its admission. Holladay v. Holladay 776 So. 2d 662, 676 (Miss.

2000). That is, “the threshold for admissibility of relevant evidence is not great. Evidence is relevant if it

has any tendency to prove a consequential fact.” Whitten v. Cox, 799 So. 2d 1, 15 (Miss. 2000).

Walker’s testimony regarding damages and the methods he used in determining damages was clearly

relevant in this eminent domain action. Therefore, Walker’s testimony satisfies the first prong of the

modified Daubert standard.

¶28. Second, in our following reliability analysis we do not intend to set forth a generic checklist of

factors that our state courts shall use in every instance where parties present expert witness testimony.

Rather, we choose to follow the lead of the federal courts, using the illustrative Daubert factors for

guidance and leaving the determination of which reliability factors are applicable in particular cases to the

sound discretion of our learned trial judges. As our cases instruct, we review a trial judge’s decision to

admit expert witness testimony for abuse of discretion. See Puckett v. State, 737 So.2d at 342.

Because the application of the modified Daubert rule is fact-specific, a review of Walker’s trial testimony

is necessary for our analysis. Walker used the 750-foot line method to determine the “after value” of a

portion of the McLemores’ property. Walker reasoned that the McLemore property abutting the

proposed interstate right-of-way would be most affected by the proposed construction. Thus, Walker

concluded that “there is a certain amount of [the McLemore] land . . . that would be less desirable and

13
consequently have less value that it did before.” Based on this reasoning, Walker projected an imaginary

area, “kind of a buffer between the interstate right-of-way and where the new construction would be,...that

would be less desirable” after construction of the interstate.

¶29. In determining the boundary of the so-called buffer zone, Walker concluded that there is a certain

distance from the right-of-way at which the proposed construction no longer has an adverse effect on the

property’s desirability. According to Walker, this point is at “a distance of . . . between five hundred and

a thousand feet” from the proposed interstate right-of-way. Arbitrarily splitting the difference, Walker

concluded that the McLemore property within 750 feet of the proposed interstate would be more adversely

affected than the rest of the property. According to his subsequent calculations, Walker determined that

the buffer zone area consisted of 317 acres. Consequently, under Walker’s theory, these 317 acres

suffered more damage than the rest of the McLemore property.

¶30. Prior to trial, the MTC submitted a motion in limine requesting that the trial court exclude Walker’s

anticipated testimony regarding the 750-foot line method. The trial judge denied the MTC’s motion,

reasoning that “[w]e are in . . . a new era of eminent domain . . . and . . . if there are experts who testify

with some basis their opinions are to be weighed by the jury as is the credibility of their testimony.” During

the course of the trial, the MTC repeatedly objected to Walker’s testimony regarding his 750-foot line

method.

¶31. After describing to the jury his 750-foot line method and the results obtained from his calculations,

Walker gave the following curious testimony regarding his appraisal method:
Q: Mr. Walker, is the
method that you have
performed this appraisal,
is it according to
generally accepted
appraisals standards and
you understand them?

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 A: Well, I think, I think that we have got some issues here with what those standards
are. And my opinion is that we have got a situation that is fairly rare and new,
especially – just eminent domain itself is new. But this is what I consider breaking
new ground in that there is a situation here where I think there is no question that
the after value is affected by this highway. And in determining how much you want
to try to use accepted standards and methodology that has been in the past, but
when this is maybe the first time that something like this has happened or at least
the first time it has happened this particular way, there is problem with using
methods that have been used in the past, because they just not there.

¶32. In addition, Walker testified to the following facts on cross-examination: (1) the method he

employed in his appraisal is, to his knowledge, not printed in any textbook; (2) the method is not taught in

seminars; (3) the 750-foot line method is unique to the McLemore appraisal; (4) the 750-foot line method

is not “a principle of any kind”; and (5) the 750-foot line method was not taught in any of the courses

Walker completed to obtain his appraiser's licenses in Mississippi, Tennessee, and Arkansas.

¶33. Unlike his expert testimony in United States v. 14.38 Acres of Land, Walker’s testimony in

this case is entirely speculative. None of the illustrative factors approved by the United States Supreme

Court in Daubert and Kumho Tire weigh in favor of allowing Walker’s testimony here. Therefore, it

is clear that Walker’s testimony was inadmissible and should have been excluded.

¶34. First, it is apparent that Walker’s 750-foot line method has not been tested in the appraisal field

since Walker himself testified that his appraisal method was unique to the McLemore appraisal. Moreover,

it is clear that Walker’s theory cannot be tested. Under the theory, there is some portion of the McLemore

property that will be more adversely affected by the construction than the rest of the property. This portion

abuts the proposed interstate and extends a distance of between 500 and 1000 feet onto the McLemore

property. Walker concluded that this most affected portion of the property terminates at a distance of 750

feet from the interstate right-of-way. This theory cannot be tested since the location of the imaginary

boundary line is not based on any principle. Walker merely split the difference between 500 and 1000 feet.

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In other words, Walker could have chosen to locate the line at 813 feet or 698 feet instead of 750 feet.

This theory is clearly not capable of being tested since Walker simply chose the 750-foot offset at random.

¶35. Second, there is no evidence that Walker’s theory has been the subject of any peer review. It is

also evident from the record that the theory has not been the subject of any publication. Walker himself

testified that the theory is not printed in textbooks or taught in courses and seminars.

¶36. Third, there is a high potential rate of error associated with Walker’s theory. Again, the key to

Walker’s theory is the placement of the imaginary buffer zone boundary line. There is no evidence that the

location of this line is based on anything more than Walker’s speculation. Thus, there is a very real and high

potential for error associated with the 750-foot line method.

¶37. Fourth, there is no evidence of standards that control the operation of Walker’s 750-foot line

method. As discussed, supra, Walker arbitrarily chose to use 750 feet as the offset instead of another

random distance. In essence, Walker’s speculation alone determines the location of the buffer zone

boundary line; therefore, it is clear that there are, in fact, no standards that control this method.

¶38. Finally, Walker himself testified the method was unique to the McLemore appraisal. If this method

is peculiar to a single appraisal, that the appraisal community has not adopted this method. Therefore, it

is clear that this theory is not generally accepted in the appraisal field.

¶39. Walker’s testimony was inadmissible under the modified Daubert standard since it wholly fails

to comport with the non-exhaustive, illustrative list of factors set out in Daubert and Kumho Tire. The

trial court therefore clearly erred in admitting Walker’s testimony. Because we reverse and remand this

case for a new trial, we need not consider MTC’s second assignment of error.

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 B. APPLICATION OF THE ABANDONED FRYE
STANDARD.

¶40. Although we expressly reject the Frye standard today, it should be noted that Walker’s testimony

was inadmissible even under the abandoned Frye rule. As we interpreted it, Frye stood for the

proposition that expert testimony would be allowed only if it was based on a principle that was generally

accepted in the particular field in question. Obviously, a theory or method is not generally accepted when

it is unique to a particular situation, not taught or discussed in courses or textbooks, “breaks new ground,”

and is not used by other practitioners in that particular field. It is clear that Walker’s testimony was

inadmissible even under the abandoned Frye test. Therefore, even under the rule we abandon today,

Walker’s testimony should have been excluded.

CONCLUSION

¶41. We conclude that Rip Walker’s expert testimony regarding the “750-foot line method” was entirely

speculative, failing to satisfy either the “Frye test” or our newly adopted “modified Daubert test,” as set

out in this Court’s May 29, 2003, amendment to Rule 702, thus such testimony was inadmissible.

Accordingly, we reverse the trial court’s judgment and remand this case to the trial court for a new trial

consistent with this opinion.

¶42. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER AND COBB, JJ., CONCUR. McRAE, P.J., EASLEY
AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND
CARLSON, JJ., NOT PARTICIPATING.

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