This case concerns an alleged taking of nearly eighteen acres of real property within the bounds of the Lafitte Area Independent Levee District (“LAILD”) in Jefferson Parish, Louisiana.
CMP owns property within the boundaries of the LAILD in Jefferson Parish. As part of the Rosethorne Basin Lafitte Tidal Protection Levee Project, LAILD entered CMP’s property on or about May 27, 2024, to raise the height of an existing levee. Nearly three months later, on August 22, 2024, LAILD passed Resolution 495, which provided for the appropriation of the portion of CMP’s land containing the levee. CMP filed the suit against LAILD for failure to pay just compensation for a taking under the Louisiana Constitution.
Throughout the course of the underlying suit, CMP hired three experts, Baldwin R. Justice, Dr. Fred Fellner, and Dr. Malcolm Guidry to assist in calculating the value of its land occupied by LAILD. LAILD sought to exclude, or alternatively limit, the testimony of CMP’s expert witnesses.
Arborist Expert Witnesses
Frederick Joseph Fellner, Ph.D. worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. In this role, he was responsible for “all landscape construction” including “protection . . . pre, during and post construction” and oversaw “risk reduction for the protection of people and property from failure of trees.”
Dr. Malcolm M. Guidry is a consulting arborist with more than 30 years of experience in arboriculture, urban forestry, tree risk assessment, and forensic tree investigations. He has provided expert consulting services since 1991 in matters involving tree appraisal, tree health diagnosis, construction-related tree impacts, and urban forest management.
He is licensed as a consulting arborist in both Louisiana and Mississippi and is affiliated with professional organizations including the American Society of Consulting Arborists and the International Society of Arboriculture.
Baldwin R. Justice is a general certified real estate appraiser in Louisiana, Mississippi, Texas, Florida and Alabama, and he has extensive experience in the appraisal of nearly all property types in markets across our entire geographic coverage area. He has also been awarded the prestigious the MAI designation by the Appraisal Institute®. Finally, Justice has been qualified as an expert witness in the field of real estate appraisal and provided testimony in numerous local, state, federal, and Unites States Tax courts throughout the region.
LAILD did not challenge the qualifications of Justice, Fellner, or Guidry, nor did it argue that their expert reports are the products of unreliable methodology or principles. Instead, LAILD contended that the expert reports of Justice, Fellner, and Guidry are irrelevant because they applied an improper method of valuation and/or compensation.
Here, the Court found that the expert report of Justice, along with Fellner and Guidry’s joint report, are relevant to the issue of damages. All three experts opine on the valuation of the land taken by LAILD, and their reports will assist the jury in understanding the appropriate amount of compensation, if any, owed to CMP. Moreover, the Court found that the testimony based on the expert reports did not present a danger of unfair prejudice, will not confuse the issues, or mislead the jury.
The Court has found that LAILD engaged in an unconstitutional partial taking of CMP’s property and determined that CMP is entitled to recover damages pursuant to the theory of inverse condemnation under Louisiana law. Specifically, the Court reasoned that CMP would be entitled to present evidence relating to the “highest and best use” of the taken property, severance damages, and fair market value of the property.
In sum, the Court’s determination as to the legal standard for any damages undercuts LAILD’s argument, as such evidence is relevant for the jury in deciding the factual determination of damages. Because CMP’s expert reports enumerate damages consistent with those categories, the Court declined to exclude the testimony of the experts as to their expert reports under Rule 403. Importantly, to the extent that any portion of the reports are inconsistent with the Court’s legal determination of appropriate damages for a partial taking, the experts will be precluded from testifying as to those inconsistent parts of the reports.
Held
The Court denied LAILD’s motion to exclude, or alternatively limit, the testimony of CMP’s expert witnesses, Baldwin Justice, Dr. Fred Fellner, and Dr. Malcolm Guidry.
Key Takeaway
Even if evidence satisfies the requirements of Rule 702, other evidentiary rules, such as Rule 403, may still operate to exclude the evidence.
Case Details:
Case Caption:
CMP, L.L.C. V Board Of Commissioners For The Lafitte Area Independent Levee District
Docket Number:
2:24cv2298
Court Name:
United States District Court for the Eastern District of Louisiana
On December 9, 2021, Plaintiff Darryl Everson was driving in Montz, Louisiana, when he claimed that Defendant David Rugg (“Rugg”) negligently felled a tree along the roadway. The Plaintiff contended that the tree landed on his car, causing injuries to his back and neck. Additionally, Plaintiff alleged that Rugg was employed by Defendant Romesberg Trucking Inc. (“RTI”), which was covered by Nautilus Insurance Company. He asserted that RTI and Rugg failed to exercise reasonable care in their tree-cutting activities near an active roadway. Specifically, Plaintiff claimed that they did not provide warnings, did not monitor approaching vehicles, inadequately trained Rugg, and created a dangerous situation.
Defendants filed a Daubert motion to exclude the testimony of Plaintiff’s expert arborist, Frederick Fellner.
Meanwhile, the Plaintiff, too, filed a motion seeking to exclude the testimony of Defendants’ expert arborist, James Culpepper.
Arborist Expert Witnesses
Frederick Fellner
Frederick Joseph Fellner, Ph.D., worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. In this role, he was responsible for “all landscape construction” including “protection . . . pre, during and post construction” and oversaw “risk reduction for the protection of people and property from failure of trees.”
James Culpepper has been a licensed arborist since 1979. Among other experience, he spent 33 years with the Louisiana Forestry Commission, in positions such as the “Chief of Information, Education, and Urban Forestry.” Additionally, he founded an arboricultural consulting company specializing in “hazard tree assessments” and “tree protection planning.”
A. Defendants’ Motion to Exclude Fellner’s Testimony
i. Defendant’s Arguments
Defendants questioned Fellner’s qualifications, asserting he was “not a safety specialist but an arborist.” During his deposition, Fellner described his expertise as focusing on the evaluation and health of trees. Since his specialty did not encompass tree-cutting safety, Defendants contended he lacked the qualifications to assess Rugg’s safety measures.
Defendants also criticized Fellner’s methodology, deeming it unreliable for several reasons. First, they pointed out that he did not identify which tree species struck Plaintiff’s vehicle. This omission was significant, especially since he acknowledged in his deposition that species was crucial when cutting trees. Second, they noted that Fellner failed to adequately assess the weather conditions on the day of the incident. While he examined weather data, he did not attach this data to his report. Defendants argued that he relied on reports from Plaintiff’s attorney without verifying their accuracy.
Additionally, Defendants highlighted that Fellner never visited the accident site, despite expressing hope to do so during his deposition. They also noted that he struggled to recall essential case details, such as the road name and accident date, which raised doubts about his analysis. Moreover, they claimed he neglected to research any relevant executive orders or ordinances regarding debris cleanup following Hurricane Ida. Finally, they stated that his testimony lacked reliability, as he identified safety errors without referencing any specific legal provisions that Defendants failed to follow.
ii. Plaintiff’s Argument
Plaintiff opposed the motion to exclude Fellner’s testimony. He explained:
Fellner did, in fact, consider weather conditions.
Fellner could not identify the tree species because Defendants had improperly disposed of it.
Fellner’s choice not to investigate executive orders regarding tree removal was a valid decision to avoid giving legal opinions.
Fellner’s assertion that Defendants failed to meet industry safety standards would provide valuable assistance to the jury.
iii. Analysis
The Court determined that Fellner was qualified to provide expert testimony in this case. Although Defendants argued that his testimony should be excluded because he was “not a safety specialist but an arborist,” the Court found this claim to be inaccurate. According to his resume, Fellner had worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. His extensive experience in landscape construction and risk reduction for the protection of people and property from failure of trees made him suitable to discuss tree removal safety.
The Court acknowledged Defendants’ concerns regarding Fellner’s methodology but asserted that these concerns “affect the weight of the evidence rather than its admissibility.” Plaintiff provided reasonable explanations for Fellner’s alleged shortcomings, such as his inability to identify the tree species because the Defendants disposed of it.
At trial, Defendants could thoroughly cross-examine Fellner regarding his methodology and the assumptions he made. They had also retained a rebuttal expert to critique his testimony.
B. Plaintiff’s Motion to ExcludeCulpepper’s Testimony
i. Plaintiff’s Argument
Plaintiff argued that Defendants did not provide sufficient information regarding Culpepper’s qualifications. He noted that Culpepper only identified himself as a “Consulting Arborist” in his report. He claimed that Defendants had failed to demonstrate Culpepper’s qualifications to offer expert testimony. Additionally, Plaintiff stated that Defendants did not comply with Federal Rule of Civil Procedure 26(a)(2)(B). This rule requires parties to disclose expert qualifications, publications from the past ten years, previous cases, and compensation details.
Second, Plaintiff contended that Culpepper’s report lacked a clear methodology. He pointed out that the report contained only four paragraphs.
In the first paragraph, Culpepper mentioned that the time of the accident was unknown and that Plaintiff left the scene and later returned. Plaintiff argued that this information would not aid the jury, as witnesses would present the facts of the accident, and Culpepper’s comments had no relevance to his expertise.
In the second paragraph, Culpepper claimed there was no weather research in Fellner’s report and attached a weather report for December 9, 2021. Plaintiff countered that this claim was inaccurate, as Fellner’s report included the weather history for Kenner, LA. He noted that Fellner had also addressed and refuted Rugg’s assertion about wind causing the tree’s fall.
In the third paragraph, Culpepper merely quoted snippets from Fellner’s deposition without providing any analysis or opinions.
Lastly, in the fourth paragraph, he criticized Fellner for not visiting the accident site or identifying the tree species. Plaintiff noted that Fellner was retained years after the accident, making it impossible to identify the tree. He also pointed out that Culpepper did not mention visiting the scene himself.
Plaintiff argued that the Defense counsel could effectively cross-examine Fellner regarding these points, deeming Culpepper’s testimony unhelpful to the jury.
ii. Defendant’s Argument
Defendants opposed the motion, arguing that Plaintiff could have gathered more information about Culpepper and his testimony by deposing him, which Plaintiff did not do. They described Culpepper as a “veteran arborist” who had testified in fourteen cases, many involving falling trees. Defendants believed Culpepper’s testimony would help the factfinder by identifying flaws in Fellner’s methodology.
Additionally, Defendants provided Culpepper’s resume, a list of his publications, details of his trial experience, and a statement of his compensation. They emphasized that this information supported Culpepper’s qualifications and the relevance of his testimony.
iii. Analysis
Failure to Disclose
In this case, the Court decided not to exclude Culpepper’s testimony based on Defendants’ alleged failure to provide his resume. First, the Court lacked sufficient information to determine if Defendants met the timeliness requirements of Rule 26(a)(2)(D). This rule states that if evidence is intended to contradict another expert’s testimony, disclosures must occur within 30 days after the other party’s disclosure. The Court was unsure when Plaintiff disclosed information regarding Fellner, making it difficult to assess Defendants’ timeliness.
Furthermore, the Court noted that Plaintiff opted not to depose Culpepper. Plaintiff received the required information about Culpepper on September 9, 2024, nearly a month before the October 7, 2024 trial date. Thus, Plaintiff had adequate time to review the information and potentially depose Culpepper before trial. The Court concluded that any prejudice to Plaintiff was minimal. Since the Court permitted Plaintiff’s expert to testify, it also favored allowing Defendants’ expert to do so.
Daubert Analysis
The Court concluded that Culpepper was qualified to testify. He has qualified in several courts to offer expert testimony in cases where falling trees caused injuries or death.
Although Culpepper’s report was brief, the Court determined that his testimony was reliable. He possessed extensive experience in the industry, which would help the factfinder assess Fellner’s testimony. Moreover, Culpepper’s report demonstrated that he considered significant documentation when forming his opinions, indicating that his findings were not merely personal opinions. He reviewed incident reports, weather reports, statutes, and deposition testimony to prepare his report. The Court also noted that Plaintiff would have the opportunity to cross-examine Culpepper during the trial.
Plaintiff also argued that Culpepper unnecessarily recited facts about the case, such as Plaintiff allegedly leaving the scene of the accident. However, the Court held that if Culpepper began to discuss irrelevant details about the case during trial, the Court would consider objections at that time.
Held
The Court denied the Defendant’s motion to exclude Plaintiff’s arborist expert witness, Frederick Fellner as well as the Plaintiff’s motion to exclude Defendant’s arborist expert witness, James Culpepper.
Key Takeaway:
The Court allowed the testimony of both arborist expert witnesses, Frederick Fellner and James Culpepper, recognizing their qualifications and the relevance of their expertise.
The Court determined that Fellner’s extensive experience in landscape construction and risk reduction rendered him qualified to discuss tree removal safety, despite criticisms of his methodology.
Similarly, Culpepper’s long-standing background in forestry and prior experience as an expert witness provided him with the credibility necessary to assist the jury in evaluating Fellner’s analysis.
The Court observed that any concerns regarding the methodology employed by both experts concerned the weight of their evidence instead of their admissibility.
