Mountain Valley Pipeline, LLC v. 1.30 Acres of Land, Civil Action No. 7:18-cv-00607

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Writing for the CourtBy: Elizabeth K. Dillon United States District Judge
Decision Date11 September 2019
Docket NumberCivil Action No. 7:18-cv-00607


Civil Action No. 7:18-cv-00607


September 11, 2019

By: Elizabeth K. Dillon United States District Judge


Plaintiff Mountain Valley Pipeline (MVP) is constructing an interstate natural gas pipeline. It commenced a condemnation action under the Natural Gas Act, 15 U.S.C. § 717 et seq., to acquire a permanent easement and temporary easements on numerous properties, including this property located in Montgomery County, Virginia, and owned by John and Suzanne Baker (collectively, Landowners). On March 8, 2018, the court entered an order in the primary condemnation case, Mountain Valley Pipeline LLC v. Easements to Construct, 7:17-cv-492 (W.D. Va.) (Dkt. No. 716), granting MVP immediate possession of the easements on this property. A trial on just compensation for the takings on the subject property is scheduled to begin on September 23, 2019.

MVP moves to exclude from the upcoming trial certain testimony of Steven Noble, Landowners' expert on just compensation, and testimony by one of the Landowners, John Baker, on the value of his property. MVP also filed an omnibus motion in limine to exclude: (1) claims that the pipeline is dangerous or unsafe; (2) evidence of other pipeline accidents or incidents; (3) evidence of appraisals of other properties; (4) evidence of settlement offers and communications;

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(5) evidence of amounts paid for easements on other properties; (6) evidence of alleged damages from construction or operation; and (7) subdivision plats, plans, and studies.

Landowners move to exclude certain testimony and evidence by MVP's real estate appraisal experts Samuel B. Long and Jared L. Schweitzer. Landowners' omnibus motion in limine seeks to exclude: (1) evidence of statistical probability of a rupture; (2) photographic evidence of reclamation efforts by MVP on other parcels; (3) evidence of impact studies proffered by MVP not included or referenced in the reports of its experts; (4) evidence of the impact or non-impact of gas distribution pipelines on other properties; (5) evidence of the prior purchase price of the subject parcels; (6) evidence of the tax-assessed value of the property; and (7) evidence associated with "Market Perception as Reported by Participants/Local Participants" referenced in the Miller Long Appraisal Report.

These matters have been fully briefed and were argued at a hearing. During the hearing, the parties stated that they reached an agreement regarding MVP's introduction of impact studies, MVP conceded that it would not be introducing evidence of tax assessed value and market perception, and Landowners withdrew their challenge to prior-purchase-price evidence. Therefore, the portions of Landowners' motions in limine related to these topics will be dismissed as moot. The parties also stated that they reached agreements on the introduction of settlement offers and amounts paid for easements on other properties, so the court will dismiss those portions of MVP's motion as moot. Various additional concessions and withdrawals occurred at the hearing, mentioned as necessary herein.

For the reasons set forth below, the court will deny Landowners' motions in limine and to exclude the testimony of Long and Schweitzer. The court will also grant in part and deny in part MVP's motion to exclude Noble's testimony, grant MVP's motion to exclude Baker's testimony

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to the extent the motion seeks to exclude expert testimony, and grant in part and deny in part MVP's motion in limine. Of course, the court may revisit these rulings at trial, depending on the evidence elicited and the context in which the evidence is offered.


A. Legal Standard

The motions present various issues of just compensation in eminent domain cases as well as issues involving the qualification of experts and their reliability and relevance. Legal standards regarding the same are set forth herein.

1. Just compensation for partial permanent takings, including severance damages

The Takings Clause of the Fifth Amendment prohibits the taking of private property without just compensation. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005). When the government condemns private property for a public purpose, it must pay just compensation for that property. Just compensation is the monetary equivalent of the property taken, and the federal courts have employed the concept of "fair market value" to determine the condemnee's loss. United States v. 564.54 Acres of Land, 441 U.S. 506, 510-11 (1979); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473-74 (1973).

Unless otherwise proscribed by Congress, federal law governs "questions of substantive right, such as the measure of compensation" for federal courts in condemnation proceedings. United States v. Miller, 317 U.S. 369, 379-80 (1942). See also Tenn. Gas Pipeline Co. v. Permanent Easement for 1.7320 Acres, No. 3:cv-11-028, 2014 WL 690700 (M.D. Pa. Feb. 24, 2014) (unpublished) (concluding that federal law applies in determinations of just compensation under the Natural Gas Act). The Fourth Circuit defines just compensation in a case of partial taking as "the value of the land taken plus the depreciation in the market value of the

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remainder." United States v. 97.19 Acres of Land, 582 F.2d 878, 881 (4th Cir. 1978) (citing W. Va. Pulp & Paper Co. v. United States, 200 F.2d 100, 104 (4th Cir. 1952)). Moreover, "value [of the condemned land] is to be ascertained as of the date of taking." Miller, 317 U.S. at 374.

In West Virginia Pulp and Paper, the Fourth Circuit recognized the well-settled principle that "whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted." 200 F.2d at 102. The court recognized that the landowner was damaged not only by the loss of the land, but also by the proposed use that caused depreciation to the remainder, and therefore was entitled to be awarded a sum that "would put it in as good position pecuniarily as it would have been if its property had not been taken." Id. at 103. The measure of this sum was "the value of the land taken plus the depreciation in the market value of the remainder due to the use made of the part taken." Id. at 104. See also 97.19 Acres of Land, 582 F.2d at 881 (citations omitted) (explaining that severance damages to the remainder, if any, are measured as "the difference in market value of the residue before and after the taking").

2. Damages for perceived market negative influences

In a previous opinion, this court analyzed the law with regard to testimony about damages resulting from perceived market negative influences, such as the perceived danger, or unsafe nature, of pipelines. See Mountain Valley Pipeline, LLC v. 1.23 Acres of Land Owned by Eagle's Nest Ministries, Inc., Civil Action No. 7:18-cv-00610 (W.D. Va.), Dkt. No. 55; Mountain Valley Pipeline, Inc. v. 6.50 Acres of Land Owned by Sizemore Inc. of Va., Civil Action No. 7:18-cv-00612 (W.D. Va.), Dkt. No. 66. The court will not repeat that entire analysis

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here, but merely incorporates it by reference. By way of summary, the court held that, to be admissible, an expert's opinions with regard to some hazard incident to the use of the property taken must be supported by some evidence that the hazards are reasonably probable and more than just speculative. Moreover, there must be a nexus between those hazards and/or the public perception in the marketplace—specifically, the marketplace for that property—and a diminution in value of the property. In other words, there must be a causal link between the hazard inherent in the taking and a direct loss in the marketplace. United States v. 760.807 Acres of Land, 731 F.2d 1443, 1448 (9th Cir. 1984); see also Atl. Coast Pipeline LLC v. 0.07 Acres, No. 3:18-cv-00006, 2019 WL 2527571, at *14-17 (W.D. Va. June 19, 2019) (excluding an expert environmental professional's opinion about a natural gas pipeline's effect on property value because the analysis was not linked to the specific property's value and was therefore irrelevant to the determination of just compensation).

3. Expert testimony

Federal Rule of Evidence 702 and the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern admissibility of expert testimony. Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

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Before considering whether a proffered expert's testimony is reliable, the court first determines whether the witness qualifies as an expert. A witness may qualify as an expert on the basis of "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. The expertise must relate to the areas in which the expert is expressing opinions. See Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989). Exclusion should occur only where all bases for expertise are lacking with regard to the issue for which the opinion is offered, and a proffered expert "need not be precisely informed about all details of the issues...

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