Mississippi Transp. Comm'n v. McLemore, No. 2001-CA-01039-SCT.

CourtUnited States State Supreme Court of Mississippi
Citation863 So.2d 31
Docket NumberNo. 2001-CA-01039-SCT.
PartiesMISSISSIPPI TRANSPORTATION COMMISSION v. Dennis McLEMORE and Tammy McLemore.
Decision Date16 October 2003

863 So.2d 31

MISSISSIPPI TRANSPORTATION COMMISSION
v.
Dennis McLEMORE and Tammy McLemore

No. 2001-CA-01039-SCT.

Supreme Court of Mississippi.

October 16, 2003.

Rehearing Denied January 22, 2004.


863 So.2d 33
Richard G. Noble, Hollaman Martin Raney, Office of the Attorney General by Billy Don Hall, attorneys for appellant

Taylor D. Buntin, Southaven, attorney for appellees.

EN BANC.

SMITH, Presiding Justice, for the Court.

¶ 1. This eminent domain case arises from the Special Court of Eminent Domain of DeSoto County, where a jury awarded Dennis and Tammy McLemore total compensation and damages in the amount of $1,370,000. Because the testimony of Rip Walker, the McLemores' expert appraisal witness, fails to satisfy the Frye standard

863 So.2d 34
or the modified Daubert standard for the admissibility of expert witness testimony, the trial court erred in denying MTC's motion in limine and in admitting Walker's testimony. The judgment of the trial court is therefore reversed, and this case is remanded for a new trial, consistent with this opinion

FACTS

¶ 2. The McLemores owned 1,980 acres of land in DeSoto County, Mississippi. Responding to increased growth in DeSoto County and development in Tunica County, the Mississippi Transportation Commission ("MTC") planned to construct an interstate highway between U.S. Interstate 55 at Hernando and U.S. Highway 61 at Robinsonville. The proposed interstate crosses the McLemores' DeSoto County property. Because it was unable to obtain the required 174-acre portion of the McLemores' DeSoto County property ("McLemore property") through negotiations, the MTC instituted this eminent domain action.

¶ 3. Seeking to condemn the McLemore property for use in the proposed project, the MTC on November 30, 1999, filed a complaint for the organization of a Special Court of Eminent Domain in DeSoto County. After a trial, the jury returned a verdict in favor of the McLemores, and the trial court entered judgment on the verdict. The MTC subsequently filed a motion for judgment notwithstanding the verdict, remittitur, or a new trial, which the trial court denied. The MTC raises the following issues in this appeal:

I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY THE FRYE STANDARD TO EXCLUDE THE UNRELIABLE TESTIMONY OF RIP WALKER, THE McLEMORES' EXPERT APPRAISAL WITNESS, WHEN THE COURT DENIED MTC'S MOTION IN LIMINE AND DENIED MTC'S MOTION FOR NEW TRIAL AND/OR REMITTITUR.

II. WHETHER THE JURY VERDICT WAS THE RESULT OF THE TRIAL COURT'S ERROR IN ADMITTING SPECULATIVE AND TOTALLY UNRELIABLE DAMAGE TESTIMONY BY THE McLEMORES' APPRAISAL WITNESS.

III. WHETHER THIS COURT WILL ABANDON THE FRYE STANDARD AND ENDORSE AND ADOPT THE DAUBERT/KUMHO STANDARDS SO THAT A TRIAL JUDGE CAN ENSURE THAT ALL EXPERT TESTIMONY AND EVIDENCE IS NOT ONLY RELEVANT, BUT RELIABLE.

STANDARD OF REVIEW

¶ 4. Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion. Haggerty v. Foster, 838 So.2d 948, 958 (Miss.2002). Moreover, a motion in limine should be granted only if "(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury." Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988). Furthermore, the admission of expert testimony is within the sound discretion of the trial judge. Puckett v. State, 737 So.2d 322, 342 (Miss.1999). Therefore, the decision of a trial judge will stand "unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id.

863 So.2d 35
DISCUSSION

¶ 5. The MTC argues that we should abandon the general acceptance test set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), for determining the admissibility of expert witness testimony in favor of the rule stated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). We agree. Walker's testimony failed to satisfy either the Frye standard or the modified Daubert standard; therefore, his testimony should have been excluded.

I. ADOPTION OF THE DAUBERT/KUMHO TIRE RULE AS THE STANDARD FOR ADMISSIBILITY OF EXPERT WITNESS TESTIMONY

¶ 6. The analysis for admission of expert testimony is enumerated in the Mississippi Rules of Evidence, Rule 702, as amended on May 29, 2003. The amended rule states that:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

M.R.E. 702 (emphasis added). Rule 702, as amended, is identical to Rule 702 of the Federal Rules of Evidence.

¶ 7. Under Rule 702, expert testimony should be admitted only if it withstands a two-pronged inquiry. Kansas City S. Ry. v. Johnson, 798 So.2d 374, 382 (Miss.2001). First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Id. (citing M.R.E. 702). Second, the witness's scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue. Id. In addition, Rule 702 "does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge." M.R.E. 702 cmt.

¶ 8. Prior to its amendment earlier this year, the comment to M.R.E. 702 quoted the well-known Frye test, noting that Rule 702 did not "relax the requirement that the scientific principle from which the expert's opinion is derived `must be sufficiently established to have gained general acceptance in the particular field to which it belongs.'" M.R.E. 702 cmt. (repealed 2003) (quoting Frye, 293 F. at 1014). Our previous cases recognize this Court's long adherence to the Frye rule despite the adoption of M.R.E. 702 and major changes in federal evidence law. See, e.g., Kansas City, 798 So.2d at 382 (citing Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998)). In deciding whether the field has gained "general acceptance," we have previously asked:

Is the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally will allow expert testimony.

House v. State, 445 So.2d 815, 822 (Miss. 1984). Further, we have stated that "[t]he facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture." Hickox v.

863 So.2d 36
Holleman, 502 So.2d 626, 638 (Miss.1987) (quoting Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534, 540 (1972)). However, we have made clear that under the Frye standard, "it is not necessary that one offering to testify as an expert be infallible or possess the highest degree of skill; it is sufficient if that person possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman." Kansas City, 798 So.2d at 382 (quoting Hooten v. State 492 So.2d 948 (Miss.1986))

¶ 9. In 1993, the United States Supreme Court declared that the Federal Rules of Evidence supersede the Frye general acceptance test. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Despite this major change in federal evidence law, Mississippi has continued to apply Frye. See Kansas City, 798 So.2d at 382.

¶ 10. In Daubert, the Court concluded that the "general acceptance" test is inconsistent with other evidentiary provisions that strive to prevent the admission of unreliable or irrelevant scientific testimony. Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The rigidity of the "general acceptance" test also conflicts with the liberal goals of the Federal Rules which include reducing the traditional barriers to opinion testimony. Id. at 588-89, 113 S.Ct. 2786 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988)).

¶ 11. However, the Court determined that a federal trial court retains authority to review scientific evidence to determine admissibility. Id. at 589, 113 S.Ct. 2786. The trial court is vested with a "gatekeeping responsibility." Id. The trial court must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786. Preliminary questions of witness qualifications, privileges and admissibility of evidence are resolved pursuant to Rule 104(a) and 104(b). Id. at 592, 113 S.Ct. 2786. The trial judge determines whether the testimony rests on a reliable foundation and is relevant in a particular case. Id. at 589, 113 S.Ct. 2786. There must be a "valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at 592, 113 S.Ct. 2786. The party offering the expert's testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation. Id. at 590, 113 S.Ct. 2786.

¶ 12. Moreover, the Court in Daubert determined that abandoning the general acceptance test does not result in jury confusion from "absurd and irrational...

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337 practice notes
  • Johnson v. State, NO. 2008-CT-00537-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 30, 2011
    ...Ct. at 189. 31.See Id. 32.Polk v. State, 612 So. 2d 381, 387 (Miss. 1992), overruled on other grounds by Miss. Transp. Comm'n v.Mclemore, 863 So. 2d 31, 39 (Miss. 2003) ("[w]ithout a showing of prejudice, this prong of the balancing test cannot weigh in favor of the defendant."). 33. Jenkin......
  • In re Silica Products Liability Litigation, No. MDL 1553.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 30, 2005
    ...the Federal Rule 702/Daubert standard for determining the admissibility of expert testimony. See Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 39 (Miss.2003) ("[T]his Court today adopts the federal standards and applies our amended Rule 702 for assessing the reliability and admissib......
  • Com. v. Smith, No. 436 CAP.
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 27, 2010
    ...v. Porter, 241 Conn. 57, 698 A.2d 739, 743 (1997); State v. Foret, 628 So.2d 1116, 1121 (La.1993); Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 35-40 (Miss. 2003); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862, 867 (2001); Robinson, 923 S.W.2d at 556; State v. Brooks, 16......
  • Ill. Cent. R.R. Co. v. Brent, NO. 2011-CA-01608-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 21, 2013
    ...(1) whether the witness is qualified, and (2) whether the testimony is relevant and reliable. Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 35 (Miss. 2003). Illinois Central disputes Mann's qualifications as an expert and the reliability of his testimony. In addition, Illinois Central ar......
  • Request a trial to view additional results
337 cases
  • Johnson v. State, NO. 2008-CT-00537-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 30, 2011
    ...Ct. at 189. 31.See Id. 32.Polk v. State, 612 So. 2d 381, 387 (Miss. 1992), overruled on other grounds by Miss. Transp. Comm'n v.Mclemore, 863 So. 2d 31, 39 (Miss. 2003) ("[w]ithout a showing of prejudice, this prong of the balancing test cannot weigh in favor of the defendant."). 33. Jenkin......
  • In re Silica Products Liability Litigation, No. MDL 1553.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 30, 2005
    ...the Federal Rule 702/Daubert standard for determining the admissibility of expert testimony. See Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 39 (Miss.2003) ("[T]his Court today adopts the federal standards and applies our amended Rule 702 for assessing the reliability and admissib......
  • Com. v. Smith, No. 436 CAP.
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 27, 2010
    ...v. Porter, 241 Conn. 57, 698 A.2d 739, 743 (1997); State v. Foret, 628 So.2d 1116, 1121 (La.1993); Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 35-40 (Miss. 2003); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862, 867 (2001); Robinson, 923 S.W.2d at 556; State v. Brooks, 16......
  • Ill. Cent. R.R. Co. v. Brent, NO. 2011-CA-01608-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 21, 2013
    ...(1) whether the witness is qualified, and (2) whether the testimony is relevant and reliable. Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 35 (Miss. 2003). Illinois Central disputes Mann's qualifications as an expert and the reliability of his testimony. In addition, Illinois Central ar......
  • Request a trial to view additional results

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