Limitations On Receipt Of Expert Testimony

In condemnation action, environmental planning expert testimony about whether electromagnetic fields (EMF) affected the market value of the remaining uncondemned property was excluded as not probative and as unfairly prejudicial, absent the expert showing that EMF levels affected public perceptions which impacted market value, in United States v. 87.98 Acres of Land More or Less in the County of Merced 530 F.3d 899 (9th Cir. June 24, 2008) (No. 06-15410)

Often the question of admitting expert testimony under FRE 702 focuses on setting appropriate limits. In part, this can reflect that in many specialities certain doctrines or practices may be found to have differing levels of reliability. A interesting example of this type of case arose in the circuit from which the original Daubert case was heard. In the case, the Ninth Circuit affirmed the trial judge's decision to allow an environmental planner's testimony about the public perceptions of the effects of EMFs among homeowners and buyers. The court also refused to let the expert testify on the specific EMF levels on the land at issue, as well as on the types of studies concerning EMFs for which residential developers routinely engaged her for advice.

In the case, Donn Campion owned more than 3,200 acres of land, which he planned to develop for public facilities, a golf course, a community village center, and residences. The government filed an eminent domain action for a 200-foot wide, three mile (Path 15) easement on this land for a power transmission line (about 87.98 acres). The central trial issue concerned the diminution of value of his land as a result of the easement allowing the power lines.

An expert appraiser for the government testified that Campion should be paid $76,518 as just compensation for the easement. Campion’s expert appraiser testified that the value of the land was $19.320 million and that this value of the land was diminished by the EMF easement. This expert was not allowed to testify that the mere existence of the electromagnetic fields (“EMFs”) reduced the value of the land.

Accordingly, Campion also proposed testimony by his environmental planning expert about: “(1) public perceptions of the effects of EMFs among residential homeowners and home buyers, (2) the extent and level of EMFs from the Path 15 line that reach beyond the easement into the rest of Campion’s property, and (3) the types of studies concerning EMFs for which developers routinely engage" the expert for an opinion. 87.98 Acres of Land, 530 F.3d at 903_.

The trial court allowed the environmental planning expert to testify, but restricted the scope of her examination. The court allowed expert opinion testimony about the first factor of public perception, but not the other two matters. According to the trial judge, the later two subjects were excluded as unfairly prejudicial. This was particularly of concern as the jury might believe EMFs cause health problems, when there was no evidence to support this conclusion, the court ruled. The jury concluded that the just compensation was $2,023,715, which Campion disputed on appeal in a challenge to the exclusion of the environmental planning expert testimony.

On the second of the three proffered issues, the circuit affirmed the exclusion of the expert testimony as lacking probative value and as unfairly prejudicial. Campion had not shown that “higher levels of EMF generate higher levels of buyer aversion and lower sale prices.” Consequently, expert testimony “about specific EMF levels has little to no probative value.” 87.98 Acres of Land, 530 F.3d at 906 (citing United States v. 760.807 Acres of Land, 731 F.2d 1443, 1449 (9th Cir. 1984) (“There is … no demonstrated causal link between the taking of the [buffer zone] and the severance damage of which the Trustees complain.”)) The trial court invited Campion to establish this connection before and during trial but the showing was never made.

On appeal, the circuit agreed with the trial court that the proffered expert testimony was unfairly prejudicial because the premise suggested the value was affected adversely by certain EMF levels without a showing that EMF levels affected public perceptions which impacted market value. There was a likelihood that the expert testimony would either “mislead or confuse the jury” because it would “invite inferences about EMF levels that were unsupported.”

On the third of the proffered issues, the circuit affirmed the exclusion of the environmental planning expert testimony concerning “EMF studies that developers had commissioned her to undertake or specific instances where she had advised developers about EMFs.” First, the expert testimony had “some probative value to the extent that it reflect[ed] the perceptions of developers in general concerning EMFs. When developers exhibit their anxiety by requesting computer models, those requests may illustrate a form of public perception.… [Expert] Sage’s computer models and studies are direct evidence that those public misapprehensions about EMF risk exist, at least in the view of developers.”

If there was any error, concluded the circuit, it was harmless.87.98 Acres of Land, 530 F.3d at[at 908. As for unfair prejudice, the circuit noted the possibility of some “undue effect,” but concluded that “[t]he balancing of factors for and against admissibility is close enough so that we cannot say that the district court abused its discretion in excluding this part of [expert] Sage’s testimony.” 87.98 Acres of Land, 530 F.3d at 907. Any error in excluding this evidence was harmless, since “[t]he perceptions of the developers with whom Sage came into contact were only one segment of the total evidence of public perceptions, and they were even a smaller segment of the overall evidence of diminished value, which included visual, auditory, and other factors.” 87.98 Acres of Land, 530 F.3d at 907

Federal Rules of Evidence