Pop quiz: in eminent domain valuation proceedings, may an owner who is not qualified as an expert witness testify about the value of her or his own property?
If you said “yes,” most courts would agree with you, either as percipient witness testimony or as lay expert testimony. As would the U.S. Court of Appeals for the Fourth Circuit in most circumstances. As the court noted, “federal courts routinely permit landowners to testify as to the value of their real property in eminent domain cases.”
But as shown in the court’s (unpublished) per curiam opinion in Mountain Valley Pipeline, LLC v. 0.47 Acres of Land, No. 20-1306 (Mar. 23, 2021), there are limitations.
There, the owner opposed the pipeline condemnor’s motion for summary judgment on valuation by submitting his counter-declaration in which he testified about the value of his own property. Did that create a triable issue of fact and thereby defeat the pipeline’s motion for summary judgment? Not to the District Court, which held that the owner’s declaration was not admissible and granted the pipeline’s motion. The Fourth Circuit affirmed.
How so, you ask? Didn’t you just say that this type of testimony is “routinely” admissible? What gives?
First, the court noted that the owner has the burden of proof at trial on valuation in federal takings. Which means that the owner has the burden of proof on summary judgment, even if she is the non-moving party. OK, we disagree with the notion that the owner should have the burden of proof on valuation, but that’s a bigger question and we’ll just accept it for our purposes here. As you know, on summary judgment, all the non-moving party need to in order to show a triable case is raise an issue of fact. You don’t have to be the more credible, the more reliable, or the more believable. Just someone testifying (a) that their version of the facts are genuinely different than those introduced by the moving party, and (b) those facts are “material.”
Here, the owner submitted his testimony about what he thought the easement the pipeline was taking was worth. But because his declaration “relied on technical or specialize knowledge properly within the domain of expert testimony[,]” it was “patently inadmissible.” Slip op. at 4. In short, he relied on (hearsay) and “speculation and conjecture” Slip op. at 5. Yes, the landowner’s “decades of familiarity with his property enabled him to form an opinion of its value based on comparable property sales[,]” slip op. at 5, but he also based his testimony on an undisclosed expert report:
As the Coffeys acknowledge, however, Coffey’s testimony was not based solely on such comparable sales. Instead, Coffey intended to testify regarding a technical valuation performed by an undisclosed expert. Coffey openly admitted that the opinion was not his own and that he lacked knowledge of much of the basis for the calculations about which he intended to testify.
“[T]he rationale which justifies landowners’ opinion testimony—i.e., their special knowledge of the property—does not extend to the mere repetition of another’s assessment of the property’s value.” United States v. 68.94 Acres of Land, 918 F.2d 389, 398 (3d Cir. 1990). Thus, whether providing an expert or a lay opinion, “[w]hat the owner is not allowed to do is merely repeat another person’s valuation.” Cunningham, 569 F.3d at 676.
Slip op. at 5. Mixing in his own conclusions with that of another “would be unduly speculative and unhelpful to the jury.” Slip op. at 6. Summary judgment affirmed, condemnor’s valuation is right as a matter of law.
But, we ask, what about the owner’s testimony about his own valuation, separate from that of the undisclosed expert? Didn’t the owner’s testimony, standing alone, create a triable issue of fact about valuation, and if the court believed that the hearsay/speculative stuff was too much for the jury to handle, couldn’t the court simply have disregarded it (or, in the context of a jury trial, prohibited the owner from testifying about what the undisclosed expert said, or issued a limiting instruction)?
Who knows, maybe the owner’s declaration was not so “clean,” and his own conclusions were so bound up with the expert’s conclusions that the court couldn’t separate them. That would have been nice to know, even in an unreported per curiam opinion (which at least is not precedent).