Expert Witness Profiler

Tag: Real Estate

  • Real Estate Expert Not Allowed to Opine on Undue Hardship

    Real Estate Expert Not Allowed to Opine on Undue Hardship

    On September 24, 2024, Plaintiff Pharilyn Chhang filed the operative second amended complaint against Defendants West Coast and Sergio Madrigal, alleging causes of action under the Fair Housing Act (FHA), California Fair Employment and Housing Act (FEHA), wrongful eviction; invasion of private right to occupancy; and breach of duty. Plaintiff claimed that she is a disabled person who requires her emotional support animal, Onyx, to reside with her.

    Defendants intended to call Robert S. Griswold to testify as an expert witness “regarding the standard of care for a property owner/manager as it relates to accommodation requests, insurance issues and costs, ineligible risks and liability exposure and related issues.” However, Plaintiff filed a motion to exclude Griswold.

    Plaintiff also filed a motion to preclude Defendants’ expert witness Kevin J. Valine.

    Real Estate Expert Witness

    Robert Stephen Griswold is a recognized expert on management of all types of residential real estate. He has actively managed over 70,000 residential units and several million square feet of commercial, industrial, self-storage, and retail properties nationally in the last 40+ years.

    He is a 3-time graduate of the distinguished Marshall School of Business at the University of Southern California with a BS (’81), MBA (’86), and MSBA (2nd Masters) (’88) in real estate and related disciplines.

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

    Insurance Expert Witness

    Kevin J. Valine has more than 45 years of experience in the field of property/casualty insurance and risk management.

    He has been licensed by the California Department of Insurance to transact Property and Casualty insurance since 1983.

    Discover more cases with Kevin Valine as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    I. Robert Griswold

    The Court found that the standard of care is not relevant to the claims at issue. Additionally, the expert did not appear to have expertise in disability accommodations consistent with the claims herein, nor did it appear that the expert reviewed the insurance policy exclusions.

    As a result, the motion was granted as to Griswold’s opinions that Plaintiff’s request for an emotional support animal was denied on “legitimate grounds,” and that Defendants met the applicable standard of care in their ownership, operation, property management, and maintenance with respect to Plaintiff’s request. The motion was further granted as to Griswold’s opinion regarding undue hardship, the feasibility of a reasonable accommodation, and that Defendants acted reasonably by offering to temporarily allow Plaintiff to keep Onyx on the property while Plaintiff sought to relocate. Finally, the motion was granted as to Griswold’s opinion that allowing Plaintiff to keep Onyx on the property would have violated the insurance carrier’s exclusions.

    However, the Court denied the motion as to Griswold’s opinion that the property’s insurance could have been non-renewed or canceled for allowing an animal on a breed-restriction list; that permitting Plaintiff to keep such an animal would expose Defendants to financial repercussion; and that a loss of insurance would have imposed a significant burden on the property’s residents and occupants, subject to Defendants laying a proper foundation that the applicable insurance policy excluded the animal in question.

    II. Kevin Valine

    The Court also found that Valine’s opinions regarding the appropriate standard of care for a reasonably prudent insurance broker were not relevant to the claims at issue.

    Although Defendants argued at the hearing that Valine had opined that granting Plaintiff’s accommodation would have exposed Defendants to an “uninsured exposure to risk of catastrophic proportion,” that statement appeared within his broader analysis that “D&D met the standard of care for a reasonably prudent insurance broker.”

    As a result, the Court concluded that expert testimony on this issue is unnecessary, as it would not assist the trier of fact given the irrelevance of the standard of care.

    Held

    • The Court granted Plaintiff’s motion to preclude Defendants’ expert witness Kevin J. Valine.
    • The Court granted in part and denied in part Plaintiff’s motion to preclude Defendants’ expert witness Robert Griswold.

    Key Takeaway

    Certain expert opinions offered by Griswold and Valine were deemed inadmissible because the standard-of-care analysis had no bearing on the claims at issue.

    Case Details:

    Case Caption: Chhang V. West Coast USA Properties LLC
    Docket Number: 1:23cv1335
    Court Name: United States District Court, California Eastern
    Order Date: June 02, 2026
  • Testimony of Geology Expert Witnesses about the Environmental Remediation of the Property Admitted

    Testimony of Geology Expert Witnesses about the Environmental Remediation of the Property Admitted

    This breach of contract action arises from a series of agreements relating to real property located at 2497 Adam Clayton Powell Jr. Boulevard in Manhattan (the “Property”) that was contaminated by an oil spill (the “Spill”) originating from non-party ExxonMobil’s adjacent gas station.

    In February 2010, the Plaintiff, 2497 Realty Corp., executed the Contract of Sale of Membership Interests in 2497 Holding LLC, the no-party entity that owns the property, the buyer being Defendant, 2497 Partner LLC (the “Contract”).The parties thereafter amended the Contract to give Defendants sole control over remediation of the Property and settlement negotiations with ExxonMobil. The amendments also created a distribution plan (the “Waterfall”) for any proceeds received from a settlement agreement with ExxonMobil. In June 2011, ExxonMobil settled with 2497 Holding LLC for $1,500,000 (the “Settlement Agreement”).

    In the instant action, commenced in 2014, the Plaintiff alleged that the Defendants breached the Contract by failing to make distributions pursuant to the Waterfall. The key issue in dispute is whether, per the Contract, the Property has been remediated to “its highest and best use under applicable zoning laws, as the Purchaser shall determine in its sole and absolute discretion.” Both parties have commissioned expert reports that document the remediation of the Property.

    The Defendants filed a motion to preclude environmental experts, Andrew Lockwood and Derek Ersbak from testifying at trial. The Defendants argued that (i) the subject reports contain impermissible legal conclusions that reach the ultimate issue in the case; (ii) the Plaintiff’s experts are not qualified to opine on the “highest and best use” of the Property; and (iii) the subject reports fail to satisfy the disclosure requirements of Commercial Division Rule 13(c). 

    Geology Expert Witnesses

    Andrew Lockwood is a graduate of SUNY Potsdam, where he studied geology. He is a licensed Professional Geologist in New York and a licensed Environmental Professional in Connecticut. Moreover, he has over thirty (30) years of experience managing environmental remediation, including the investigation and remediation of land contaminated by gasoline, radiation, and poly fluoroalkyl substances (PFAS).

    Get the full story on challenges to Andrew Lockwood’s expert opinions and testimony with an in-depth Challenge Study

    Derek Ersbak is a graduate of SUNY Binghamton, where he studied biology. He is a licensed Professional Geologist in New York with twenty (20) years of experience in environmental due diligence, environmental compliance and state and federal remedial programs, including the federal Superfund cleanup law, New York’s Brownfield Cleanup Program, and regulations promulgated by New York City’s Office of Environmental Remediation.

    Want to know more about the challenges Derek Ersbak has faced? Get the full details with our Challenge Study report 

    Discussion by the Court

    The necessity of expert testimony in this case is beyond dispute as the subject matter—involving a technical analysis of environmental remediation efforts—is clearly beyond the ken of the typical juror. Moreover, the Court found unavailing the Defendants’ arguments that the Plaintiff’s expert geologists are not qualified to opine on the real estate development concept of “highest and best use,” and that the Contract grants the Defendants sole discretion to determine the highest and best use of the Property.

    The Defendants accurately observed, however, that the Plaintiff’s Reports also includes opinions that veer into contract interpretation and other legal conclusions. Since no expert witness is permitted to testify on matters of contract interpretation or other purely legal issues, the Court held that questions put to Lockwood and Ersbak at trial should be limited to the environmental condition of the Property without requesting opinions on particular legal obligations of the parties under the Contract.

    The Defendants further contended that the Plaintiff’s Reports and the testimony of Lockwood and Ersbak should be precluded because the expert disclosure provided by the Plaintiff did not comply with Commercial Division Rule 13(c) in that the Plaintiff’s Reports fail to list Ersbak and Lockwood’s recent publications and experience as expert witnesses. Moreover, the Defendants also took issue with Ersbak and Lockwood’s joint authorship of the Reply Report. The Court held that these arguments are without merit because there is no bar to jointly authored reports and preclusion of expert testimony based on noncompliance with Commercial Division Rule 13(c) is a question of judicial discretion.

    Held

    The Court denied Defendants’ motion to preclude the testimony and reports of the Plaintiff’s environmental experts, Andrew Lockwood and Derek Ersbak.

    Key Takeaway:

    The Plaintiff’s experts’ opinions are in keeping with the First Department’s reading of the contract language. They do not opine on the issue of what is or is not the theoretical highest and best use of the Property. Rather, they opine on the environmental remediation of the Property—an appropriate issue for expert testimony that is within their area of expertise—taking as their starting point the First Department’s aforementioned analysis of the Contract’s terms, the Property’s current zoning for commercial use, and the Defendants’ current use of the land for commercial purposes.

    Case Details:

    Case Caption: 2497 Realty Corp. V. Fuertes
    Docket Number: 151947/2014
    Court: Supreme Court of New York, New York County
    Order Date: August 21, 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.