Recognizing "Special" Daubert Requirements?

In condemnation proceedings under Fed. R. Civ. P. 71.1, on just compensation issue, excluding defense expert testimony concerning valuation of the defendant’s property as unreliable, noting that the Daubert “gatekeeping role of the trial court is "particularly pronounced in condemnation proceedings under Rule 71.1" in United States v. 33.92356 Acres Of Land, 585 F.3d 1 (1st Cir. Sept. 11, 2009 (No. 08-2263)

In applying FRE 702 and the standards in Daubert, are any "special" gatekeeping requirements recognized for expert testimony applicable to certain causes of action? Cases occasionally refer to a special Daubert standard, but whether this really exists is often uncertain. Additional reliability standards in certain types of litigation may reflect simply the unusual or unique factual issues arising in certain types of litigation, not a heightened standard of reliability. In 2009, the Fifth Circuit noted what it called a "particularly pronounced" reliability standard for admission of expert valuation evidence in a land condemnation proceeding. The case illustrates the ambiguity between assumed special standards of reliability in land condemnation proceedings and the simple application of the Daubert standard that "reliable" science be reliably applied.

In the Fifth Circuit case, Defendant Piza-Blondet contested an award of $375,300 as compensation for the government condemnation of a 33.92356-acre tract which was being used by the federal government as the site of an FAA radio beacon. This happened when a dispute arose between the government and the defendant over the amount due under the government's lease of the land. As a result of the disagreement, the government indicated that it would initiate condemnation proceedings to acquire the land. The defendant's answer to the complaint in condemnation was to "concede[ ] the public purpose of the condemnation and the power of the government to take the property, disputing only the amount of just compensation." United States v. 33.92356 Acres Of Land, 585 F.3d at 3.

What complicated the just compensation issue were the legal requirements placed on the condemned land. As explained by the circuit:

For environmental reasons, the 34-acre parcel has been, and continues to be, restrictively zoned “LT-B2” (“B-2”) by the Puerto Rico Planning Board (“Board”). Because of this zoning, the uses of the land are restricted primarily to coastal protection, scientific investigation, passive recreation, fishing and the construction of fishermen's piers so long as they do not affect the surrounding mangroves. These uses are referred to as conservation and passive recreation. Most other uses of the land are forbidden without a variance or permit or some such permission from the Board and other regulatory bodies."
United States v. 33.92356 Acres Of Land, 585 F.3d at 3.

The government's estimate of $375,300 just compensation. was based on a “highest and best” use of the property under the applicable B-2 zoning. The defendant disagreed and sought a jury trial on the amount of just compensation due under Fed. R. Civ. P. 71.1(h) (now 71.1(h) - “In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when compensation must be determined ... by a jury when a party demands one within the time to answer....”). Ultimately the court decided to split the difference, concluding:

that “there is an issue of fact as to the unity of the highest and best use of the condemned parcel and the remnant, which is for the jury to decide. If the jury finds that there is unity of use, the ‘before and after’ method of valuation will be used. If the jury finds that the highest and best uses for the parcels are not the same, the segregated parcel will be evaluated as an independent parcel.”
United States v. 33.92356 Acres Of Land, 585 F.3d at 4 (citing trial record).

Applying these standards, the trial proceeded and ended with the defendant receiving only $375,300. The defendant appealed, claiming that the exclusion of his expert was erroneous. The Circuit disagreed. In explaining its conclusion, the circuit did not carefully distinguish between a faithful application of FRE and Daubert and application of some special standard. The circuit concluded that given the procedure reflected by FRE 72.1 the “[t]rial courts ... have a duty to screen evidence that is based on a speculative use of the property and exclude it from the jury's consideration...." Accordingly, "this court must decide whether the defendant's expert testimony satisfies Federal Rule of Evidence 702's relevance and reliability standards for its admissibility.” United States v. 33.92356 Acres Of Land, 585 F.3d at 4. The court concluded that those standards were not satisfied, since the defendant's proffered experts opinion was based on an assessment that "incorrectly zoned the property. As the expert failed to "establish that there is a reasonable probability that the zoning regulations would change or that the necessary permits would be granted in the reasonably near future .... [The expert's] opinion was not supported by any documentation and [was] contrary to the existing facts.

The Circuit did note several other circuits that might apply a special Daubert standard, including:

  • Fifth Circuit: United States v. 320.0 Acres of Land, 605 F.2d 762, 815 (5th Cir. 1979) ("At the very least, then, the trial judge has the responsibility under Rule 71A(h) [71.1] to screen the proffered potential uses and exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses. But should the trial judge go further and actually decide, from among various practicable and reasonably probable uses, what one use (or combination of uses) actually represents the highest and best use of the property for purposes of the just compensation determination? A number of cases indicate that he should not, that if the landowner's evidence is sufficient to show that a prospective use is feasible and reasonably probable, the landowner is then entitled to have that evidence considered by the jury (or the commission).")
  • Sixth Circuit: United States v. Certain Land Situated in Detroit 450 F.3d 205, 211 (6th Cir. 2006) ("The trial judge must make a preliminary determination that there is factual support for a finding by the jury that the 'property is adaptable and needed or likely to be needed in the reasonably near future' for the proposed use. Having found that there is evidence sufficient to support such a finding by the jury, the Court should then leave the question of adaptability and potential development to the jury. He need not be convinced that the landowner has established the development potential of the property for the proposed use by a preponderance of the evidence but only that the evidence is such that a jury could reasonably so find.")
  • Eighth Circuit: United States v. 341.45 Acres of Land, 633 F.2d 108, 111-112 (8th Cir. 1980) ("a proposed “use” requires a showing of reasonable probability that the land is both physically adaptable for such use and that there is a need or demand for such use in the reasonably near future. Our concern in this case is whether the landowners established that the proffered uses of the land were reasonably probable so as to avoid mere speculation and conjecture. * * * [T]he trial judge should screen the evidence concerning potential uses. Monroe, supra, 605 F.2d at 815. Then, the trial judge should decide whether 'the landowner has produced credible evidence that a potential use is reasonably practicable and reasonably probable within the near future * * *.” If credible evidence of the potential use is produced, the jury then decides “whether the property's suitability for this use enhances its market value, and, if so, by how much.”)
  • Supreme Court: United States v. Reynolds, 397 U.S. 14, 19-21 (1970) (“(a)t the very least” it is the responsibility of the trial judge 'under Rule 71A(h) [now 71.1] (FED.R.CIV.P.) to screen the proffered potential uses and exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses.”; Rule 71 ... “provides that, except for the single issue of just compensation, the trial judge is to decide all issues, legal and factual, that may be presented.”)

Federal Rules of Evidence