Friday, November 04, 2005

More Dauber, er Daubert confusion from Nebraska Supreme Court; Supremes hold either that appraiser's opinions in condemnation action were admissible under Daubert "gatekeeper" standard and City's objections should go to weight and credibility, OR that Daubert issues dont matter in bench trials; You guessed right opinion by Columbia's own Mitzi-LermanCity of Lincoln v. Realty Trust Group, 270 Neb. 587 November 4, 2005. No. S-04-813. The City of Lincoln, Nebraska, sued to condemn property of Realty Trust to widen LIncoln's O Street. The property condemned included the right of access for one of two driveways that provided access to Realty Trust's property from O Street. Realty Trust offered over the City's objection expert opinion as to the diminished value the O STreet property would have after condemnation. The City objected on Daubert grounds. Supreme Court upholds trial court's admitting the testimony. ... The district court held an evidentiary hearing on the city's motion to determine whether to admit Spence's testimony. The city couched its argument as one directed to the reliability of Spence's testimony and sought exclusion under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001){adopting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993)rule}. Realty Trust argued that Daubert/Schafersman was not implicated and that the city's challenge to Spence's testimony was a conventional challenge directed to the foundation of Spence's opinion...The District Court overruled the City's motion to exclude the Def's expert and the City's trial objections. ... Falling back to cases preceding the Supremes adopting the Daubert standard, the Supremes note that "provided there is adequate foundation, materiality, and relevance, we have long accepted the comparables method for valuation as a valid approach, and we determine that we need not reconsider its validity on this occasion. See Wear v. State of Nebraska, 215 Neb. 69, 75, 337 N.W.2d 708, 713 (1983) (stating in eminent domain case that "evidence as to the sale of comparable property admissible as evidence of market value")." ... Maybe Daubert doesnt apply to condemnation proceedings, do you think? "In the area of condemnation, the courts have been especially reluctant to exclude expert opinions regarding damages under a Daubert analysis, noting that the gatekeeper function of Daubert is not intended to serve as a replacement for the adversary system. See, e.g., U.S. v. 14.38 Acres of Land, Sit. in Leflore Cty. MS, 80 F.3d 1074 (5th Cir. 1996)." ... Still Justice Lerman thinks the questioned testimony meets Daubert anyway "(Expert's) testimony was based on an accepted approach to appraisals, was relevant, and was designed to assist the trier of fact as to the controverted issues of values and damages. The district court did not abuse its discretion in receiving (expert's) testimony into evidence.See Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). " ... or are Daubert issues irrelevant in bench trials because Judges are soo good at distinguishing the good from the woodThe distinction between admissibility and weight, however, becomes critical. See Perry Lumber Co. v. Durable Servs., 266 Neb. 517, 667 N.W.2d 194 (2003). In a bench trial, an expert's testimony will be admitted under rule 702 and given the weight to which it is entitled. See, generally, Eicher v. Mid America Fin. Invest. Corp., ante p. 370, 702 N.W.2d 792 (2005) ... Trouble is, neither the Federal Rules of Evidence nor the State Evidence Code make distinctions between evidence for bench trial and evidence for jury trials. The Federal Circuit has dismissed these contentions, stating Daubert applies in all cases. See Seaboard Lumber Co. v. United States, 308 F.3d 1283 (Fed. Cir. 2002). Daubert on the Web: "In litigation over lumber companies' failure to perform timber sales contracts with United States, Court of Claims admits testimony from government expert, Scott Olmstead, re damages. Admissibility affirmed. Government urges that Daubert does not even apply in bench trials. It is true that bench trials pose no risk of jury confusion, but Daubert's requirements of relevance and reliability must still be satisfied. Here, however, government expert estimated damages by reference to time value of money, and companies themselves employed same basic methodology. Trial judge properly found that any deficiencies in expert's methods went "only to the fine tuning of a relatively minor credit," and did not abuse discretion in admitting testimony under circumstances. "

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