Expert Witness Profiler

Category: Real Estate Appraisal Expert Witness

  • Real Estate Appraisal Expert Witness’ Valuation Opinions Admitted Despite Serious Concerns About the Methodology

    Real Estate Appraisal Expert Witness’ Valuation Opinions Admitted Despite Serious Concerns About the Methodology

    Plaintiff Old Gate Partners, LLC (“Old Gate”) alleged that Paddock is liable for contamination of a property (“the Property”) currently owned by Old Gate. Paddock retained Michael P. Hedden to provide valuation opinions of the Property’s “highest and best use and market value.”

    As a part of his analysis, he utilized an appraisal technique known as the sales comparison approach. Based on this approach, Hedden concluded that the Property’s market value was not less than $9 million as of May 2017 and not less than $10.37 million as of April 2023.

    Old Gate sought to exclude Hedden’s testimony on the grounds the he is unqualified

    On November 29, 2023, Old Gate filed its first motion to preclude Hedden’s testimony. Old Gate sought to exclude Hedden’s testimony on the grounds the he is unqualified, that certain of his proffered opinions are irrelevant, and that his analysis is unreliable.

    The Court granted the motion in part and denied it in part. Specifically, the Court rejected challenges to Hedden’s qualifications, and it excluded as irrelevant his opinions about Milford’s zoning intentions and entrepreneurial profit.

    The Court also excluded as unreliable Hedden’s valuation opinions of the Property. The Court concluded that his sales comparison analysis relied on “unclear, unsupported rationales”, and that Hedden failed to disclose “underlying data sufficient to replicate his analysis”.

    Hedden’s report provided “no discernable methodology” sufficient for the Court to understand how Hedden determined adjusted sale prices

    Further, the Court also found that Hedden had categorized certain adjustment factors using qualitative descriptors like “superior” or “inferior”, without ascribing quantitative dollar amounts or percentage adjustments. As a result, the Court reasoned, Hedden’s report provided “no discernable methodology” sufficient for the Court to understand how Hedden determined adjusted sale prices, and, ultimately, his 2017 and 2023 valuations.

    However, because Hedden could potentially clarify his methodology, the Court granted the Motion as to the valuation opinions without prejudice to Hedden filing an amended report that corrects the shortcomings identified by the Court.

    On June 19, 2024, Paddock filed an expert report supplement from Hedden. On August 13, 2024, Old Gate filed its second motion to exclude Hedden’s testimony.

    Old Gate argued that the supplement is insufficient to correct the infirmities identified by the Court in its prior Ruling, and that Hedden’s 2017 and 2023 valuation opinions should remain excluded.

    Real Estate Appraisal Expert Witness

    Michael P. Hedden has over 43 years of real estate appraisal, valuation and consulting experience. Hedden is a Managing Director and, in this role, specializes in providing valuation, litigation support, and expert testimony services as a knowledgeable real estate professional in all aspects of market analysis and valuation of real property. Michael has experience in the appraisal of industrial, commercial, residential, and special purpose property including hospitality, hospital, and healthcare facilities.

    Want to know more about the challenges Michael Hedden has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    In its prior Ruling, the Court provided leave for Hedden to file an amended report that explained, “with reasonable clarity and precision, the methodology that he used when he made his adjustments.” In his expert report supplement, Hedden included updated sales adjustment grids for his 2017 and 2023 valuations. Under the heading of “Cumulative Adjusted Price,” these grids replace the prior “Superior” and “Inferior” designations of the original report with percentage value adjustments. It appears to the Court that these percentage value adjustments are only at intervals of 5 percent, either 5 percent, 10 percent, 15 percent, or a dash, indicating no adjustment. In his narrative explanations for how he arrived at these intervals, Hedden largely relied on “his experience and professional judgment.”

    The Plaintiff has raised concerns about this disclosed methodology. The Court shares these concerns about whether Hedden’s selected numerical adjustments are “based on sufficient facts or data,” or whether these adjustments are subjective, speculative, or arbitrary.

    In the Court’s view, this raises serious concerns about whether Hedden’s experience and professional judgment can fill the gap between qualitative observations and quantitative adjustments to property valuations.

    However, because the parties are scheduled for a bench trial, the Court “has considerable discretion in admitting the proffered testimony.”

    The Court chooses to exercise that discretion here and will admit Hedden’s valuation opinions. In the Court’s view, Hedden’s supplemental report is sufficient to render his methodology discernable and understandable to the Court.

    Held

    The Court denied the Plaintiff’s second motion to preclude the testimony of Michael P. Hedden.

    Key Takeaway:

    Rather than delaying the case through a detailed scrutiny of Hedden’s property comparison adjustments, the Court will reserve judgment and decide “after the evidence is presented whether it deserves to be credited by meeting the requirements of Daubert and its progeny.”

    Old Gate is free to vigorously cross examine Hedden on the reliability of his valuations. Additionally, Old Gate may raise arguments at a later stage that Hedden’s testimony should be disregarded by the trier of fact because it fails to meet the threshold for admissibility under Daubert.

    Case Details:

    Case Caption: Old Gate Partners, Llc V. Paddock Enterprises, LLC
    Docket Number: 3:18cv1657
    Court: United States District Court for the District of Connecticut
    Order Date: November 22, 2024
  • Real Estate Appraisal Expert Witness’ Fair Market Value Testimony Admitted

    Real Estate Appraisal Expert Witness’ Fair Market Value Testimony Admitted

    Around 6:00 AM on April 16, 2022, a fire largely destroyed a two-story, wood frame house at 408 Oak St. in Saginaw, Michigan (the “Oak Street House”). Plaintiff Raphael Arnett owned the house, and Defendant Allstate Vehicle and Property Insurance Co. insured it.

    Two days after the fire, Plaintiff filed a claim with Defendant, seeking to recover his loss from the fire. On October 14, 2022, Defendant denied Plaintiff’s insurance claim after it concluded that the fire was not an accident but was intentionally set by Plaintiff. Defendant anticipated calling Paul Mabarak—a certified residential appraiser—to offer his expert opinion that the fair market value of the Oak Street House at the time of the fire had been $52,000.

    Plaintiff argued Defendant should be precluded from using this evidence at trial because (1) the fair market value is irrelevant under Rules 401 and 402, (2) the fair market value would mislead the jury under Rule 403, and (3) Mabarak’s opinion is inadmissible expert testimony under Rule 702.

    Real Estate Appraisal Expert Witness

    John Paul Mabara is a certified residential appraiser who works for Mayfield Appraisal Services.

    Get the full story on challenges to John Paul Mabara’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Court held that the evidence of the Oak Street House’s fair market value is relevant under Rule 401 because it increases the probability Defendant caused the fire, which would exclude his alleged loss from coverage under the express terms of his Policy.

    Plaintiff argued that evidence of the Oak Street House’s fair market value would “mislead” the jury “into believing the fair market value of the property is a component of [Plaintiff’s] damages.” But, the upcoming trial is limited solely to the underlying coverage issue, as both Parties have agreed to post-trial appraisal, as mandated by Michigan law. Therefore, Mabarak’s fair market value testimony raises no Rule 403 concerns, either. At bottom, Plaintiff has not shown that the fair market value of his House is “clearly inadmissible” on Rule 403 grounds.

    Plaintiff argued that Mabarak’s opinion would “not aid the trier of fact in understanding or determining any issue in the case.” Contrary to Plaintiff’s argument, even the most educated lay juror could not estimate the fair market value of Plaintiff’s house. But Mabarak—based on his specialized knowledge as a certified real estate appraiser—can, and has. As explained, the fair market value is relevant because it is nearly $200,000 less than Plaintiff’s Policy limit, which tends to show that Plaintiff may have had a financial motive to set the fire.

    Held

    The Court admitted the testimony of Paul Mabarak despite Plaintiff’s objections.

    Key Takeaway:

    In conclusion, Mabarak’s anticipated expert opinion is precisely the type that Rule 702 allows considering motive is one of several pieces of circumstantial evidence Defendant may permissibly point to in attempt to prove Plaintiff’s alleged loss is excluded from coverage under his Policy.

    Case Details:

    Case Caption: Arnett V. Allstate Vehicle And Property Insurance Company
    Docket Number: 1:23cv11138
    Court: United States District Court, Michigan Eastern
    Order Date: July 25, 2024
  • Real Estate Appraisal Expert Witness’ Valuation Excluding the Effect of the Pandemic Deemed Inadmissible

    Real Estate Appraisal Expert Witness’ Valuation Excluding the Effect of the Pandemic Deemed Inadmissible

    On August 16, 2021 (“Vesting Date”), the Plaintiff, the National Railroad Passenger Corporation (“Amtrak”), acquired the property at 260-270 Twelfth Avenue, New York, New York (New York County Block 675, Lot 1), through its power of eminent domain, as codified in 49 U.S.C. § 24311(a)(1), from the Defendant, 260 Twelfth Avenue Holdings, LLC. The acquisition was deemed necessary for Amtrak’s Hudson Tunnel Project, a part of the Gateway Project, involving the construction of two new rail tunnels under the Hudson River from New Jersey to New York.

    Amtrak claimed that it had already paid the Defendant $363,000,000 in principal as just compensation for the Property, representing the fair market value of the Property on the Vesting Date. This value was determined based on what a willing buyer would pay a willing seller at the time of the taking, taking into account the impact of the Covid-19 pandemic on the New York City real estate market. Amtrak, having made the just compensation payment, believed that the Defendant was not entitled to any additional compensation.

    On the other hand, the Defendant sought just compensation for Amtrak’s eminent domain taking of the property on August 16, 2021, in accordance with the Fifth Amendment to the United States Constitution, 49 U.S.C. § 24311, and the New York Constitution, N.Y. Const. art. I § 7. Specifically, the Defendant sought $247,000,000, representing the difference between the value of the Property on August 16, 2021, excluding the negative impact of the COVID-19 pandemic ($610,000,000), and the amount Amtrak had paid the Defendant for the Property to date ($363,000,000), excluding interest.

    To sum it up, the parties disputed whether the calculation of just compensation should consider the effect of the COVID-19 pandemic on the New York real estate market as of the Vesting Date. Amtrak urged the Court to restrict its analysis to the market value on the Vesting Date, while Defendants (“260 Twelfth Avenue”) contended that just compensation requires valuing the Property excluding the effect of the pandemic on market value.

    Plaintiff filed a motion to exclude any evidence or argument concerning the value of the condemned property (“Property”) on any date other than the date of taking (“Vesting Date”), and to preclude Defendants’ appraiser, Marc Nakleh from providing his opinion of the market value of the Property on any date other than the Vesting Date.

    Real Estate Appraisal Expert Witness

    Marc Nakleh started his real estate career in 2003 working as a residential sales agent focusing on investors looking to purchase property adjacent to the University of Florida. After two years, Nakleh made the switch from residential real estate to commercial real estate. He received his Master of Science in Real Estate degree at the University of Florida in 2006.

    Nakleh joined Cushman & Wakefield in September 2006. He was promoted to Associate Director in April 2009, Director in July 2010, Senior Director in April 2013, and further promoted to Executive Director in April 2018. Appraisal assignments have included office buildings, ground leases, vacant land, self-storage facilities, shopping centers, apartments, leaseholds, industrial properties and easement valuations. Nakleh’ s practice focuses on arbitration, litigation, and other complex assignments.

    Discussion by the Court

    The Court determined that in accordance with both federal and state law, it was mandated to establish the award of just compensation for the Property’s market value solely based on the Vesting Date. Any evidence regarding the property’s value on any other date was deemed irrelevant, and even if minimally relevant, the Court concluded that such information would be outweighed by the risk of causing unnecessary delays. It is black letter law that just compensation is “what a willing buyer would pay in cash to a willing seller at the time of the taking.” The Fifth Amendment to the United States Constitution precludes the taking of private property “without just compensation.” Accordingly, the Court must determine an amount of compensation that is “‘just’ both to an owner whose property is taken and to the public that must” foot the bill.

    The Court examined the principle that deviation from market value at the time of taking to determine just compensation is permissible only in specific circumstances, such as when market value is challenging to ascertain or would result in manifest injustice to the owner or the public. In the case of 260 Twelfth Avenue, the argument was made that valuing the property at a time when the pandemic had reduced the value of real estate in New York City allowed Amtrak to unfairly benefit at the property owner’s expense.

    The Court emphasized that the risk of “manifest injustice” would justify departing from the market value on the Vesting Date only if the owner demonstrated special conditions and hardships directly applicable to it. Despite the shocks experienced by the New York real estate market due to the pandemic, 260 Twelfth Avenue failed to show that it bore an unfair and disproportionate burden of the pandemic’s effects.

    The Court highlighted that market value, defined as the price at which property would change hands between a willing buyer and a willing seller, considering relevant facts, must be the primary measure of just compensation at the time of taking. The impact of the COVID-19 pandemic was deemed a relevant factor, and the Court acknowledged that market fluctuations, whether overcorrections or undercorrections, are inherent in the functioning of an efficient market.

    Addressing 260 Twelfth Avenue’s reliance on Great Depression-era cases, the Court deemed them irrelevant as the New York real estate market did not collapse entirely during the pandemic, making market value at the time of taking ascertainable. Additionally, the absence of a legislative directive from the New York state legislature to depart from the general rule further distinguished the current situation from the circumstances during the Great Depression. Ultimately, the Court concluded that 260 Twelfth Avenue did not suffer manifest injustice and had no basis to deviate from the established principles regarding just compensation.

    As for Amtrak’s Daubert motion directed toward the portions of Nakleh’s opinion relating to the value of the Property on a date other than the Vesting Date, the Court found that evidence regarding the Property’s value on a date other than the Vesting Date was irrelevant, expert testimony regarding the same was inadmissible pursuant to Federal Rule of Evidence 702.

    Held

    The Court granted Amtrak’s motion in limine to exclude evidence, testimony, or argument concerning the Property’s value on any date other than the Vesting Date, and its Daubert motion directed to Nakleh’s opinion regarding the same.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    The Court, guided by federal and state law, insisted on determining just compensation for the property solely based on the Vesting Date, deeming evidence of the property’s value on other dates irrelevant. Market value, defined as the price at the time of taking between a willing buyer and seller, was established as the primary measure of just compensation. While acknowledging the impact of the COVID-19 pandemic on market value, the Court emphasized that the property owner failed to show an unfair burden due to the pandemic. Arguments relying on Great Depression-era cases were dismissed as irrelevant, and a legislative directive to deviate from market value was absent. In response to Amtrak’s Daubert motion filed against Marc Nakleh, the Court found evidence regarding the property’s value on dates other than the Vesting Date irrelevant and thus inadmissible, granting the Daubert motion against those portions of Nakleh’s testimony which covered the Property’s value on any date other than the Vesting Date.

    Case Details

    Case Caption National Railroad Passenger Corporation (Amtrak) V. 78,441 Square Feet More Or Less Of Land And Improvements
    Docket Number 1:21cv5810
    Court United States District Court, New York Southern
    Citation 2024 U.S. Dist. LEXIS 17915
    Order Date February 1, 2024

  • Real Estate Appraisal Expert Witness Testimony about Diminution in Value of Insured Property Rejected

    Real Estate Appraisal Expert Witness Testimony about Diminution in Value of Insured Property Rejected

    Plaintiff Nichole Hertel sued State Farm Lloyds citing failure to pay insurance benefits following severe damage to her home during the February 2021 winter storm. Since filing suit, Plaintiff has sold and vacated her home.

    The Court issued a Scheduling Order in April 2023 which set a deadline of September 13, 2023, for Plaintiff to name her experts and furnish their reports. Despite the specified deadline, Plaintiff designated Michael Brubaker as an expert and submitted his expert report on December 18, 2023. Brubaker, an experienced appraiser, was intended to testify about the value of Plaintiff’s home at the time of sale and its hypothetical value if storm damages had been promptly remediated. Plaintiff sought an extension of the September 13, 2023 deadline such that Brubaker’s report and testimony could be admitted.

    In light of the untimely submission, Defendant State Farm Lloyds sought to exclude Brubaker’s report and testimony, arguing that they were both untimely and unreliable. The Court considered the motion alongside Defendant’s separate motion to exclude the testimony and opinions of other experts: All Peril Adjusting, LLC; Tom Cain; and Southeast Environmental Microbiology Laboratories. However, it was clarified that Plaintiff did not intend to present the testimony or opinions of these additional experts.

    The Court denied as moot any requests present in Defendant’s motion seeking exclusion of experts other than Brubaker. The primary issue before the Court was whether to exclude Brubaker’s testimony and opinions.

    Real Estate Appraisal Expert Witnesses

    Michael Brubaker is a highly experienced real estate appraiser and broker in Texas. He has held a Certified General Appraiser license in the state and is also a licensed real estate broker. Brubaker earned the prestigious SRA designation from the Appraisal Institute in 1988, demonstrating his expertise in residential appraising. He holds a Bachelor’s degree in Architecture from the University of Houston earned in 1981.

    Over his long career spanning more than 35 years, Brubaker has undertaken extensive education in the appraisal field including numerous courses and seminars offered by organizations like the Appraisal Institute. Brubaker is recognized as a leader in the appraisal community through his prior roles as an instructor, Director, and committee member for appraisal and real estate trade groups.

    Brubaker has performed valuations for purposes including eminent domain, litigation support, relocation, and lending. He has appraised both residential and commercial properties. Through his depth of experience, Brubaker has testified and been qualified as an expert witness in Texas Courts on multiple occasions. He counts major law firms and lenders among his past clients during his 30+ year career as an appraiser. Overall, Brubaker’s extensive qualifications and active involvement make him a recognized authority in the real estate appraisal field.

    Thomas “Tom” Cain is a Certified Real Estate Appraiser at Brubaker & Associates, Inc. Cain spent over 20 years as a financial advisor prior to becoming an appraiser. He hold a M.B.A from Baylor University and is a member of the Houston Association of Realtors, Texas Association of Realtors,National Association of Realtors as well as the Association of Texas Appraisers.

    Discussion by the Court

    During the hearing, the parties’ arguments were centered on the relevance of Mike Brubaker’s testimony regarding the diminution in value of Plaintiff Nichole Hertel’s home. Both parties acknowledged that Plaintiff’s insurance policy did not cover diminution in value. Plaintiff asserted that Brubaker’s testimony was pertinent to establishing her actual pecuniary loss.

    The Court referenced the case of Southwest Risk, L.P. v. Ironshore Specialty Ins. Co., 188 F. Supp. 3d 621, 629 (S.D. Tex. 2016), which clarified that, under Texas law, insured individuals cannot recover from their insurer if they have not suffered a pecuniary loss—meaning if the proceeds from the sale of their home had made them whole. However, the Court noted that the degree of Plaintiff’s actual pecuniary loss was not relevant, as Defendant had not raised a pecuniary loss argument. Moreover, Defendant explicitly stated during the hearing that it did not plan to raise a pecuniary loss argument at trial.

    At this stage, the Court found that Brubaker’s testimony was not relevant for two reasons: (1) Plaintiff’s insurance policy did not cover diminution in value, and (2) the diminution in value of Plaintiff’s home did not pertain to any pending legal issue in the case. The Court concluded that Brubaker’s testimony was not relevant given these circumstances. It was emphasized that if Defendant were to raise a pecuniary loss argument in the future, the Court would reconsider the relevance of Brubaker’s opinion.

    Held

    The Court denied Plaintiff’s motion to extend Plaintiff’s Expert Designation Deadline but granted Defendant’s motion to exclude the testimony of Michael Brubaker. A final decision has not been reached in this case by the Court considering the remaining issues involved in this case still await resolution.

    Key Takeaways:

    Both parties acknowledged that Plaintiff’s insurance policy did not cover diminution in value, a point that became pivotal in the arguments presented. Plaintiff contended that Brubaker’s testimony was crucial for establishing her actual pecuniary loss. The Court referenced the precedent set by Southwest Risk, L.P. v. Ironshore Specialty Ins. Co., emphasizing that under Texas law, insured individuals cannot recover from their insurer unless they have suffered a pecuniary loss—defined as not being made whole by the proceeds from the sale of their home. Despite Plaintiff’s stance, the Court deemed Brubaker’s testimony irrelevant for two primary reasons: the exclusion of diminution in value from the insurance policy coverage and its consequent lack of pertinence to any pending legal issue in the case. Notably, the Court clarified that the degree of Plaintiff’s actual pecuniary loss was not a relevant consideration at this stage, as Defendant had not raised a pecuniary loss argument and explicitly stated it had no intention to do so at trial. The Court concluded that Brubaker’s testimony was not relevant in the given circumstances, while leaving open the possibility of reconsideration if the Defendant were to introduce a pecuniary loss argument in the future.

    Case Details:

    Case Caption Hertel V. State Farm Lloyds
    Docket Number 4:22cv4448
    Court United States District Court, Texas Southern
    Citation 2024 U.S. Dist. LEXIS 14011
    Order Date January 26, 2024
  • Court admits expert testimony regarding restrictive covenants in public nuisance case

    Court admits expert testimony regarding restrictive covenants in public nuisance case

    Carolyn Stone as the owner of a home within the Lakeview Homes Addition subdivision (Subdivision) in Houston, Texas alleged that the Defendants Harley Marine Services, Harley Marine Gulf, and Harley Channelview Properties (collectively Harley) were operating a commercial barge business that violated the Subdivision’s deed restrictions prohibiting commercial activity. Stone claimed that Harley’s conduct diminished her property value and constituted a nuisance. 

    Peter Boecher had been chosen as an expert witness by Harley due to his expertise in matters related to land use and restrictive covenants to testify in this case regarding the current situation of these covenants in the subdivision. Stone designated rebuttal expert Mike Brubaker to testify on the same topics. Harley moved to exclude Brubaker’s testimony, arguing he was unqualified because he is not a land planner, citing failure to squarely rebut Boecher’s opinions as well as failure to identify the methodology which supported his opinion.

    Real Estate Expert Witness

    Mike Brubaker is a highly experienced real estate appraiser and broker in Texas. He has held a Certified General Appraiser license in the state and is also a licensed real estate broker. Brubaker earned the prestigious SRA designation from the Appraisal Institute in 1988, demonstrating his expertise in residential appraising. He holds a Bachelor’s degree in Architecture from the University of Houston earned in 1981.

    Over his long career spanning more than 35 years, Brubaker has undertaken extensive education in the appraisal field including numerous courses and seminars offered by organizations like the Appraisal Institute. Brubaker is recognized as a leader in the appraisal community through his prior roles as an instructor, Director, and committee member for appraisal and real estate trade groups.

    Brubaker has performed valuations for purposes including eminent domain, litigation support, relocation, and lending. He has appraised both residential and commercial properties. Through his depth of experience, Brubaker has testified and been qualified as an expert witness in Texas Courts on multiple occasions. He counts major law firms and lenders among his past clients during his 30+ year career as an appraiser. Overall, Brubaker’s extensive qualifications and active involvement make him a recognized authority in the real estate appraisal field.

    Peter Boecher is a highly experienced land planning and real estate consultant with over 35 years of expertise in areas including site selection, development feasibility, access planning, zoning, subdivision design, land ordinances, and eminent domain analysis. He holds the prestigious Counselor of Real Estate (CRE) designation, awarded to real estate professionals demonstrating the highest levels of competence and ethical standards. Boecher has been a certified planner with the American Institute of Certified Planners (AICP) since 1989, requiring continuing education to maintain this status. He is also a Registered Landscape Architect in Texas since 1981, which similarly necessitates ongoing continuing education.

    In 2019, Boecher joined EHRA engineering firm as a Senior Planner and Real Estate Counselor. He previously served in Planning Director roles at multiple firms. A frequent presenter, he has delivered seminars on land use, eminent domain, and planning topics for legal continuing education. Boecher has extensive experience providing expert witness testimony via deposition, trial, mediation, and other means regarding land use, eminent domain, planning, and real estate matters in county, state, and federal courts.

    Discussions by the Court

    Harley argued that Brubaker should be excluded as an expert witness because he was not qualified since he is not a land planner. Harley asserted that Brubaker failed to properly rebut the opinions of their expert, Peter Boecher, who is a land planner. Harley also contended that Brubaker did not identify the methodology he used to reach his opinions.  Harley accused Brubaker of applying arbitrary classifications to the uses within the Subdivision, suggesting a lack of objectivity in his analysis. Harley asserted that the testimony of Brubaker lacked relevance and he faltered in accounting for “obvious alternative explanations.”

    Judge Bray examined Brubaker’s background and experience in detail. He noted that Brubaker is a licensed real estate appraiser and broker with over 40 years of experience preparing neighborhood analyses. As part of these analyses, Brubaker inspected neighborhoods, reviewed land use, and examined deed restrictions. Judge Bray found these were the exact same types of tasks performed by Boecher. Although Brubaker is not a land planner, the Court determined he had the requisite expertise based on his professional experience.

    Judge Bray also reviewed Brubaker’s report and found he directly rebutted the opinions offered by Boecher. Since the purpose of designating Brubaker was to provide rebuttal testimony, the Court found him qualified for this role.

    Regarding methodology, Brubaker stated in his declaration that he performed his analysis consistent with the industry standard Fannie Mae Selling Guide. He explained this involved identifying neighborhood boundaries, characteristics, and land use through visual inspection and document review. The Court found Brubaker employed the same methodology as Boecher by touring the neighborhood, observing land use, and examining the deed restrictions. 

    Harley failed to provide sufficient evidence or argument to support their claim that Brubaker’s testimony was unreliable or that he failed to gather sufficient facts or data. Additionally, it appeared that Harley did not adequately identify what they believed were “obvious alternative explanations” that Brubaker should have considered when providing his testimony.

    Judge Bray determined Harley’s objections about Brubaker’s methodology went to the weight of his opinions rather than admissibility. The judge denied Harley’s motion to exclude Brubaker, finding him to be qualified and allowing his expert rebuttal testimony. Harley could raise specific objections at trial.

    Moreover, Harley moved to exclude or limit Carolyn Stone’s testimony under Federal Rule of Evidence 701.

    In her disclosures, Stone stated she would provide testimony about the value of her property under the Texas Property Owner Rule. Harley filed a motion asking the Court to limit Stone’s testimony to the parameters of this Rule. 

    Judge Bray outlined the key requirements of the Texas Property Owner Rule. He stated the testimony must refer to market value of the property, have a basis beyond just the owner’s opinion, and can be substantiated through evidence of sales, appraisals, tax valuations, and other factors.

    Since Stone had already agreed to testify as per the parameters of the Texas Property Owner Rule, the Court denied Harley’s motion as moot.

    Held

    In conclusion, Judge Bray denied Harley’s motions to exclude the expert testimony of Brubaker and limit the testimony of Stone. The Court found Brubaker was qualified as a rebuttal expert based on his experience. The judge also declined to limit Stone’s testimony since she had already agreed to follow the Texas Property Owner Rule. A final decision has not been reached in this case by the Court considering the remaining issues involved in this case still await resolution.

    Key takeaways

    This case demonstrates the importance of properly qualifying expert witnesses and establishing a reliable methodology. Harley challenged the qualifications of Stone’s rebuttal expert Brubaker because he was not a land planner like their expert Boecher. However, the Court found Brubaker’s 40+ years of experience inspecting neighborhoods and reviewing deeds as a real estate appraiser qualified him to opine on land use and deed restrictions. The Court also examined his methodology, which followed industry standards for neighborhood analysis, relied on document review, and involved inspecting the subdivision. His approach mirrored the methodology of Harley’s expert. While specific objections could be raised at trial, Brubaker was permitted to testify as a rebuttal expert. This shows experts can be qualified based on practical experience even if they do not have the same formal credentials as the opposing expert. However, they must employ a sound methodology reliably applied to the facts. Vague objections to qualifications or methodology will likely fail if the expert has substantive experience and explains their analytical approach. Specific objections may still be raised later regarding the weight given to the expert’s opinions.