Redressing Erroneous Expert Testimony At Trial With A Curative Instruction

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Can erroneous expert testimony be cured at trial by a jury instruction? The Tenth Cirucit concludes that expert testimony under FRE 702 that was presented to the jury (regarding the basis for the expert's calculating "market rents" for pipeline-related easements) which the trial judge instructed the jury to disregard was sufficient to redress the erroneous portion of the expert's testimony, in Bison Pipeline, LLC, v. 102.84 Acres Of Land, 732 F.3d 1213 (10th Cir. Oct. 17, 2013) (No. 11–8052)

Even when expert testimony veers into matters that should have been excluded from trial, any error in admitting that testimony can be resolved by the judge providing jurors an instruction to disregard the testimony that should have been excluded. A Tenth Circuit case in which a jury would struggle to determine the value of pipeline-related easements through defendant's private property provides an example of how such corrective instructions can be made. It also privides an example of some alleged difficulties in providing the corrective instruction, as well as the wide discretion available to the court in taking such corrective steps.

Natural Gas Act Determinations

In the case, Bison, a natural gas pipeline operator, sued Barlow under the Natural Gas Act (15 U.S.C. § 717) to settle payment Bison would have to pay Barlow for various pipeline-related easements through 102.84 acres of Barlow Ranch land in Wyoming. Under the Act, state law set the measure of just compensation for such pipeline-related easements according to the state eminent domain law. In the forum state of Wyoming, the easement value involved assessing "prices and values paid for comparable easements or leases," where such transactions were "'arm's length' transaction[s] and not under compulsion." This technique differed from an alternative favored by some in the industry that would assess the "before-and-after valuation of the Easements" as well as the amount the buyer offered the seller prior to the litigation to settle the easement payment. Bison, 732 F.3d at 1218.

Expert Witness On Easement Value Assessment

After a three-day federal jury trial, the jury's verdict, based on the pipeline easement value, would involve plaintiff Bison paying land owner Barlow an initial amount, followed by annual assessments adjusted according to the Consumer Price Index. Bison disagreed with this assessment and appealed to the Tenth Circuit. Among other issues, on appeal the plaintiff claimed that the trial judge erroneously excluded a "brief" portion of the plaintiff's expert evidence concerning the easement value of the land Bison took. The challenged testimony involved the plaintiff's "expert appraiser," Widdoss. The judge excluded testimony that the expert witness provided before the jury. Specifically, the judge asked the expert a series of questions about the expert's appraisal methodology. Apparently, this concerned how to determine the fair market value of easement properties, whether the expert relied on reports by others to do this or made a determination of the property's value on his or her own. Bison, 732 F.3d at 1222.

Excluded Expert Testimony

The trial judge struck a portion of the expert testimony that the judge felt was inconsistent with the state scheme for calculation of the land's value. This "culminated with the court asking Widdoss, 'None of the leases in the entire state of Wyoming for pipeline easements [represent market rates]?' to which Widdoss responded, 'That's correct, none of them, not a single one.'” The trial judge decided to exclude this portion of the expert's testimony because it contradicted applicable state law as to how to determine the value of the property. As noted by the circuit:

Out of the presence of the jury the court opined that "[t]he conclusion and opinion that there are no arms-length agreements in not only Wyoming, but no other western state, seems to be a circumvention of [the court's ruling at the preliminary hearing regarding admissible evidence] through testimony by an expert." The following day, the court instructed the jury to disregard Widdoss's response that “he did not calculate market rents for the pipeline or the roadway easement or the meter site agreement, because he did not believe that there were any agreements in Wyoming or in other nearby states that represented market or arms-length transactions.”

Bison argues that the court's instruction “strongly signaled to the jury that Widdoss' opinions of value could not have been legally accepted,” and that “[t]he effect was to negate the probative value of his direct testimony as well,” thus “effectively buil[ding] a protective wall around Barlow's pipeline contracts, insulating the evidence from challenge.” We disagree. The district court's conclusion that Widdoss's excluded testimony was inconsistent with Wyoming law is consistent with the Wyoming Supreme Court's decision in Greencore. And Widdoss was allowed to testify that Barlow 's contract-income evidence did not reflect arm's-length transactions, and that Bison could not “walk away from the table,” resulting in a “one-sided, non-market situation.”
Bison, 732 F.3d at 1219 (citing Barlow Ranch, LP v. Greencore Pipeline Co., 301 P.3d 75, 94-95 (Wyo. 2013) (for "valuation of partial takings under Wyoming law,” the state law did not require an assessment of before-and-after valuation, the state statute “permits a landowner to use other pipeline contracts to prove the value of the property taken,” and a jury may award annual payments and impose a Consumer Price Index escalator in partial takings cases.”)).

Conclusion

The Bison case provides a demonstration of corrective instruction at trial to expert testimony. The case suggests by example of a rather specific corrective instruction, which apparently consisted of repeating the substance of the offending evidence, through the vehcile of a jury instruction.

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Federal Rules of Evidence
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