United States Court of Appeals,
Fifth Circuit.
No. 95-60387
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
14.38 ACRES OF LAND, MORE OR LESS SITUATED IN LEFLORE COUNTY, STATE OF
MISSISSIPPI, Defendant,
and
Joseph C. COKER, III, Defendant-Appellant.
April 18, 1996.
Appeal from the United States District Court for the Northern District of Mississippi.
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:
In this eminent domain action, the district court granted the Government's motion in limine
to exclude expert testimony regarding severance damages claimed by appellant, Joseph Coker, III,
as a result of the Government's taking of an easement over a portion of his property. Having
excluded the testimony, the trial court issued a final judgment awarding Coker an amount stipulated
to by the parties solely as just compensation for the portion of the property subject to the easement
and an uneconomic remnant. Because we find that the trial court abused its discretion in excluding
the expert testimony concerning the alleged decrease in value of the remaining property as a result
of the Government's taking, we vacate the district court judgment and remand for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
James C. Coker, III, owns approximately 350 acres located along the Yazoo River in Leflore
County, Mississippi. The property, part of a tract bought by his family in 1935, contains Coker's
residence and out-buildings, and is used for the farming of cotton, soybeans and corn. In 1938,
private landowners constructed a levee that protected the majority of Coker's property from rising
waters of the Yazoo River. The levee has since been maintained by area landowners and government
entities, including the Leflore County Board of Supervisors and the United States Army Corps of
Engineers.
In order to build a new levee in connection with the Upper Yazoo Project, the United States,
on May 20, 1992, filed a complaint and declaration of taking in the Northern District of Mississippi
to condemn 14.38 acres of the Coker pro perty along its western and northern boundaries. The
property was taken for the public purpose of providing "flood control in Yazoo River Basin,
Mississippi, and for other uses incident thereto, in connection with the construction, operation and
maintenance of the Upper Yazoo Project as part of the Yazoo Basin Headwater Project, Upper River
Basin, Mississippi...." Record at 2 (Complaint ¶ 3). The estate taken by the United St ates is a
perpetual and assignable right and easement in the land to construct, maintain, repair, operate, patrol
and replace a flood protection levee, public roads and highways, and public utilities, reserving to the
owner such rights and privileges in the land as may be used without interfering with such or
preexisting easements. Id. (Complaint ¶ 4). The location of the new levee places the remainder of
Coker's property on the unprotected side of the levee, between the levee and the Yazoo River.
According to Coker, local, state and federal governments will no longer contribute to the upkeep of
the old levee, and the cost of maintenance will fall on Coker.
The United States originally deposited with the court the sum of $12,500.00 as just
compensation for the easement, an amount subsequently increased by the sum of $3,150.00. Joseph
Coker appeared to assert his interest in the determination of just compensation for the taking,
contending primarily that the construction of the new levee has decreased the value of his remaining
property because the apparent increased likelihood of flooding on the land has lowered its market
value.
In his Exhibit and Witness List, Coker listed himself, Rip Walker, James Hooper, Rogers
Varner and Bill Roberts as his anticipated or possible witnesses at trial. R. at 263-64. Prior to the
trial of this matter, however, the Government filed a motion in limine to exclude expert testimony
by Rogers Varner and Rip Walker, Coker's engineering and real estate appraisal experts, respectively.
Varner is a civil engineer who received a Bachelor of Science degree in Civil Engineering from the
University of Mississippi and a Masters of Engineering from Tulane University and who previously
worked as a civil engineer for the United States Army Corps of Engineers. He stated in his expert
report that based on his review of United States Geological Survey maps, data from the Corps of
Engineers regarding past flood events, and aerial photographs, Coker's property, located entirely on
the unprotected side of the new levee, was more likely to be damaged in a major flood than in
pre-project conditions, and that his inspection of the old levee revealed that it was in a state of failure
in parts and that it could not be repaired. In the event a flood breached the failing old levee, Varner
opined that the new levee system would insure that water would pond and stand on Coker's property.
Walker, who is licensed as a real estate broker in Mississippi, certified as a real estate appraiser in
Mississippi and Tennessee, and is a member of the Appraisal Institute, explained in his report that a
potential buyer of Coker's property would immediately note its location on the unprotected side of
the levee, as well as the fact of the levee's construction, and would perceive that the property was
likely to flood, despite the Corps of Engineer's position that its channelization of the river would
reduce the water level in the river and thus decrease the likelihood of flooding. Because of this
perceived risk of flooding, Walker concluded that the property's market value had decreased as a
result of the taking. Based largely on his analysis of sales of agricultural land on protected and
unprotected sides of levees, as well as discussions with other appraisers, brokers and lenders, Walker
concluded, in part, that the lands used for cotton farming would now be marketable as less valuable
soybean-farming property, and that the risk of flooding would decrease the value of the residence by
approximately $20 per square foot or require the construction of a ring levee around the house
costing approximately $60,000.
The district court granted the Government's motion in limine. The court concluded that the
expert opinions of Varner and Walker lacked sufficient foundation under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), finding that these
expert opinions "are speculative and not based on reliable foundations and thus would be of no aid
to the finder of fact in determining just compensation in this case." 884 F.Supp. 224, 227
(N.D.Miss.1995). In reaching this determination, the lower court appears to have focussed on the
uncertainty that both experts expressed about the extent of flooding on Coker's property in the event
of heavy rainfall. Id. Having excluded expert testimony on the value of Coker's property, the district
court concluded that no competent evidence remained to be considered and therefore Coker could
not meet his evidentiary burden in demonstrating a diminution in the value of his property.1 Id. at
228. The court consequently entered judgment in favor of Coker for $17,134.00, an amount
stipulated to by the part ies as just compensation for actual damages for the land taken and an
uneconomic remnant.2
DISCUSSION
Under the Fifth Amendment's takings clause, private property may not be taken for a public
purpose without "just compensation." U.S. Const. amend. V. Just compensation, as defined by the
Supreme Court, "includes all elements of value that inhere in the property, but it does not exceed
market value fairly determined." Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78
L.Ed. 1236 (1934). In this case, a partial taking has occurred, as the Government has acquired an
easement over a portion of Coker's property. When the Government has physically acquired through
its eminent domain powers a portion of a distinct tract of property, "the compensation to be awarded
includes not only the market value of that part of the tract appropriated, but the damage to the
remainder resulting from that taking, embracing, of course, injury due to the use to which the part
appropriated is to be devoted." United States v. Grizzard, 219 U.S. 180, 183, 31 S.Ct. 162, 163, 55
L.Ed. 165 (1911). The proper measure of damages in such a case is the difference between the value
of the parent tract before the taking and its value after the taking. United States v. 8.41 Acres of
Land, Situated in Orange County, State of Texas, 680 F.2d 388 (5th Cir.1982).
1
Although Coker clearly proposed in his pretrial witness list to introduce other testimony,
including his own, the district court does not appear to have considered this proposed testimony
in concluding that Coker had not met his evidentiary burden of proving a diminution in value of
the remainder of his property. Coker, however, does not raise the court's omission in this respect
as error.
2
The trial court reserved ruling on Coker's motion in limine to exclude anticipated testimony
of the Government.
The district court acknowledged these basic legal precepts, but concluded that the expert
testimony proposed to be introduced by the appellant was so lacking in reliability that it should be
excluded from evidence. Although a trial court is accorded a wide berth to determine the
admissibility of expert testimony, Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th
Cir.1991) (en banc ) (per curiam ), cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 506
(1992), we conclude that in this case the district court abused its discretion in excluding the
testimony.
Under the Federal Rules of Evidence, a qualified expert witness may testify "[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue...." FED.R.EVID. 702. The trial court is charged with making initial
determinations as to the admissibility of evidence. FED.R.EVID. 104(a). However, in determining
the admissibility of expert testimony, the district court should approach its task "with proper
deference to the jury's role as the arbiter of disputes between conflicting opinions. As a general rule,
questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that
opinion rather than its admissibility and should be left for the jury's consideration." Viterbo v. Dow
Chemical Co., 826 F.2d 420, 422 (5th Cir.1987). This is especially true in an eminent domain action,
in which "[e]xpert opinion testimony acquires special significance ... where the sole issue is the value
of condemned property." United States v. 68.94 Acres of Land, More or Less, Situate in Kent
County, State of Delaware, 918 F.2d 389, 393 (3rd Cir.1990). As the 68.94 Acres court observed:
The value of property taken by the Government, which is no longer on the market,
is largely a matter of opinion. Since there are no infallible means for determining with
absolute conviction what a willing buyer would have paid a willing seller for the condemnee's
property at the time of taking, eminent domain proceedings commonly pit the Government's
valuation experts against those of the landowner. Thus, the exclusion of one or all of either
party's proposed experts can influence substantially the amount of compensation set by the
factfinder. Not only does the landowner have a strong interest in receiving just compensation
for property, the public as well has vested interests in insuring that the Government does not
pay more than what the owner justly requires. Recognizing the critical role of expert
witnesses in these cases and the strong interest on both sides that compensation be just, trial
courts should proceed cautiously before removing from the jury's consideration expert
assessments of value which may prove helpful.
Id.
In this case, the district court determi ned that pursuant to the Supreme Court's recent
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), the proposed expert testimony of Rogers Varner and Rip Walker was based on
too flimsy a foundation to be admissible. The court found the testimony to be "speculative" because
both witnesses were tentative about the possibility of flooding on Coker's property and observed that
even so-called "anticipated damages" must be based on "substantial data then available." 884 F.Supp.
at 227. We think that the district court applied too stringent a reliability test in this regard. In
Daubert, the Supreme Court held that the common-law, "general acceptance" test for the
admissibility of novel scientific evidence articulated in Frye v. United States, 54 App.D.C. 46, 293
F. 1013 (1923), did not survive the advent of the Federal Rules of Evidence, and articulated standards
for determining the reliability of scientific expert testimony for purposes of admitting the evidence
at trial.3 The case did not otherwise work a seachange over federal evidence law. See United States
v. Sinclair, 74 F.3d 753, 757 (7th Cir.1996) ("Daubert does not create a special analysis for
answering questions about the admissibility of all expert testimony."). Rather, Daubert articulates
what the Federal Rules of Evidence, as well as a trial court's traditional role, already required—that
the trial court engage in the initial "gatekeeping" task of establishing whether proffered evidence is
sufficiently reliable and relevant, and thus presumptively admissible unless excludable on some other
ground. See Daubert, 509 U.S. at ----, 113 S.Ct. at 2799 ("the Rules of Evidence ... do assign to the
trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is
relevant to the task at hand."). As the Court in Daubert makes clear, however, the trial court's role
as gatekeeper is not intended to serve as a replacement for t he adversary system: "Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509
U.S. at ----, 113 S.Ct. at 2798.
3
Daubert expressly limited its discussion to the admissibility of scientific expert testimony. See
id. at ---- n. 8, 113 S.Ct. at 2795 n. 8; see also United States v. Sinclair, 74 F.3d 753, 757 (7th
Cir.1996) (Daubert provides a method for evaluating the reliability of witnesses who claim
scientific expertise."); Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2nd Cir.1994)
(Daubert sought to clarify the standard for evaluating "scientific knowledge' for purposes of
admission under FED.R.EVID. 702.").
In this case, the experts' inability to predict the extent of flooding to Coker's property as a
result of future heavy rains does not render their testimony entirely speculative and therefore
unreliable for purposes of admissibility. Indeed, common sense suggests that the Government would
not have gone to the expense of taking private property and erecting a levee for the purpose of "flood
control in Yazoo River Basin" were the possibility of flooding in the area mere "speculation and
conjecture." That prospective buyers of the property would have an increased fear of flooding,
thereby decreasing the market value of the property, is a matter that the fact finder may properly
consider in assessing the diminution, if any, of the property's value. In United States v. Robertson,
354 F.2d 877 (5th Cir.1966), this Court recognized the viability of claims for severance damages
based on the likelihood that prospective buyers would fear hazards arising from the Government's use
of condemned property. In that case, the Court observed:
Causes of diminution of market value, the construction of powerline carrying high
voltage electricity across a tract of land which create in the general public fears which make
the property less desirable and thus diminish the market value of the property are proper to
be considered, though as a separate item of damage might be too speculative and conjectural
to be submitted to the Court.
Id. at 881 (citations omitted); see also United States v. 33.5 Acres of Land, More or Less, in the
County of Okanogan, State of Washington, 789 F.2d 1396 (9th Cir.1986) (permitting severance
damages based on threatened invasion of knapweed); United States v. 760.807 Acres of Land, More
or Less, Situate in the City and County of Honolulu, State of Hawaii, 731 F.2d 1443, 1447 (9th
Cir.1984) ("if fear of a hazard would affect the price a knowledgeable and prudent buyer would pay
to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part
of just compensation."); United States ex rel. TVA v. Easement and Right of Way, 405 F.2d 305, 309
(6th Cir.1968) ("In the final analysis, we are concerned only with market value. Although these
studies may show objectively the complete safety of these structures, we are not convinced that
certain segments of the buying public may not remain apprehensive of these high voltage lines, and
therefore might be unwilling to pay as much for the [adjacent] property as they otherwise would.");
United States v. 2,877.37 Acres of Land in Harris County, Tex., 52 F.Supp. 696, 702 (S.D.Tex.1943)
(testimony to show severance damages based on "mental hazards" arising from fear of harm from
dams or levees built by government properly admitted); Florida Power & Light Co. v. Jennings, 518
So.2d 895, 898 (Fla.1987) ("[w]e join the majority of jurisdictions who have considered this issue
and ho ld that the impact of public fear on the market value of property is admissible without
independent proof of the reasonableness of the fear."); Ryan v. Kansas Power & Light Co., 249 Kan.
1, 815 P.2d 528, 533 (1991) (evidence of fear in marketplace admissible regarding value of property
without proof of reasonableness of fear); City of Santa Fe v. Komis, 114 N.M. 659, 845 P.2d 753,
756 (1992) (same); Criscuola v. Power Authority of the State of New York, 81 N.Y.2d 649, 602
N.Y.S.2d 588, 589, 621 N.E.2d 1195, 1196 (N.Y.1993) (same); Heddin v. Delhi Gas Pipeline Co.,
522 S.W.2d 886, 888 (Tex.1975) (fear in minds of buying public that is based in reason or experience
is relevant to proof of damages for depreciation of market value caused by fear).
Varner's opinion that flooding of the property is now more likely is based on his review of
maps, photographs and data, and his inspection of the property, as well as his experience as a civil
engineer.4 Walker's valuation of the property, predicated on the threat of flooding suggested by
Varner's opinion and the fact of the levee's existence itself, is based on his inspection of the property;
discussions with other appraisers, brokers and lenders; comparable sales; and his experience as a real
estate appraiser. The Government contends these bases are insufficient. It argues that Varner's
explanations of the effects of the new levee are "vague" and based on mere "possibility;" that
Walker's conclusion that the property can no longer be sold for cotton farming is belied by Coker's
continued production of cotton; that the fact that the property may exist in a floodplain has not been
altered by construction of the new levee; and that Walker's comparable sales, because based on the
assumption of flooding, are not truly comparable. The perceived flaws in the testimony of Coker's
experts are matters properly to be tested in the crucible of adversarial proceedings; they are not the
basis for truncating that process.
DECREE
4
Varner presently is employed as a commodities broker and the Government suggests that his
qualifications as an expert are "seriously questioned." The trial court did not determine that
Varner is unqualified, and as he is a registered professional engineer, with both a bachelors and
masters degree in engineering, it would seem that while Varner's present career may be fodder for
cross examination, it hardly constitutes grounds for finding him unqualified to testify.
For the forego ing reasons, the judgment of the district court is vacated and the matter is
remanded for further proceedings not inconsistent with this opinion.