New England Telephone Operations, LLC v. Town of Acworth, 031218 NHSUP, 220-2012-CV-100

Docket Nº:220-2012-CV-100
Opinion Judge:Richard B. McNamaram, Presiding Justice.
Party Name:New England Telephone Operations, LLC d/b/a FairPoint Communications NNE v. Town of Acworth, et al
Case Date:March 12, 2018
Court:Superior Court of New Hampshire

New England Telephone Operations, LLC d/b/a FairPoint Communications NNE


Town of Acworth, et al

No. 220-2012-CV-100

Superior Court of New Hampshire, Merrimack

March 12, 2018



Richard B. McNamaram, Presiding Justice.

These consolidated cases are set to be tried during the week of April 23, 2018. The Plaintiff, New England Telephone Operations, LLC, d/b/a FairPoint Communications NNE ("FairPoint") has filed a Motion in Limine to Preclude Purported Geology Opinions of Towns' Specially Retained Appraisers. The Defendant Towns of Durham, Belmont and Hanover (the "Towns") have objected. For the reasons stated in this Order, the Motion is DENIED.


These consolidated actions concern taxation of poles, conduits and other similar personal property located throughout municipalities in New Hampshire. As a provider of telecommunication services, FairPoint owns poles, conduit, and other related personal property located within each of the named municipalities. The municipalities are permitted to assess two types of ad valorem property tax on FairPoint's property: (1) a tax measured by the value of FairPoint's use and occupation of the public rights-of-way assessed pursuant to RSA 72:6; and (2) a value tax measured by the value of FairPoint's poles and conduit assessed pursuant to RSA 72:8-a. Essentially, the litigation involves the methodology for taxation of FairPoint by all of the municipalities and towns in New Hampshire in which it owns property.

In 2012, FairPoint brought suit against all of the municipalities in the State in which it owns property challenging taxation of its property. All of the cases were transferred to this Court by the Chief Justice of the Superior Court.1 All of them raise similar, but not identical claims. Over the course of the litigation, the Court has made a number of administrative orders in order to expedite the litigation. In April 2013, this Court entered a management order, in substance requiring defense counsel to coordinate their filing to reduce expense and streamline handling of the case. The parties drafted a Joint Litigation Schedule which the Court approved. By Order dated May 12, 2014, the Court consolidated the actions into a "test case" structure in which certain municipalities would act as representative municipalities to allow an order on the claims made by FairPoint to be entered which would be applicable to all of the municipalities.

Eventually, the parties cross moved for summary judgment and this Court entered an Order dated December 14, 2015 granting and denying the various motions in part. The parties then decided to select certain cases for trial which raised all of the various factual scenarios in the litigation, so that following this Court's final Order, the other cases can be settled or these cases can be appealed to the New Hampshire Supreme Court. Discovery on the merits has proceeded, and the cases involving the selected Towns, Durham, Belmont and Hanover, appear to be ready for trial. Counsel have advised the Court that the only issue to be litigated will be the value of FairPoint's property, and that both sides are expecting to present their case through one expert witness each, an appraiser. FairPoint has moved in limine to exclude opinions of the Towns' expert, George E. Sansoucy, P.E.


A hearing was held on the FairPoint's Motion on March 5, 2018. The parties advised the Court that since FairPoint's equipment does not produce income and is not salable, the only method of appraisal used by either expert to value the property will be the replacement cost method. FairPoint asserts that Sansoucy should not be allowed to testify because he "purports to offer expert opinions about and based upon subsurface geological conditions, but lacks the expertise to do so . . . ." (FairPoint's Mot. in Limine, ¶ 1.) FairPoint argues that Sansoucy explains that the installation cost of the pole is a significant consideration for purposes of valuing the poles, and if ledge boring is required because the poles are being placed in bedrock, that is often one of the largest cost components of a pole installation. (Id. ¶ 6.) Sansoucy asserts in his expert report that approximately 10% of the poles in Durham, Hanover, and Belmont would require a ledge boring machine to drill a hole before a pole could be installed because of the existence of subsurface ledge. (Id. ¶¶ 10, 11.) According to FairPoint, this testimony is so unreliable that it should be excluded from trial. The Towns object.


The parties have not addressed the standard the Court should use in making a pretrial determination of expert appraisal testimony at length. FairPoint argues that an expert must be qualified by knowledge, skill, experience, training, or education, in accordance with New Hampshire Rule of Evidence 702. (Id. ¶ 18.) FairPoint argues that expert opinions are admissible "only after it is has been shown to the satisfaction of the court that the testimony is based upon sufficient facts or data; is the product of reliable principles and methods; the witness's applied the principles and methodology liability to the facts of the case." (Id. ¶ 20.) FairPoint argues that "the New Hampshire Supreme Court, adopting the flexible test set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), has directed trial courts to 'place special emphasis on 4 factors: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of a particular technique; and (4) the Frye general acceptance test . . . See also RSA 516:29-a.'" (Id. ¶ 20 n.1.)

The Towns also assert that the analysis the Court must undertake is that set forth by Daubert: "The New Hampshire Supreme Court has been clear in ruling on Daubert motions that '[t]he trial court functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert's testimony.' Baxter v. Temple, 157 N.H. 280, 284 (2008)." (Towns' Obj. to Mot. in Limine ¶ 12.)

The New Hampshire Supreme Court has suggested that RSA 516:29-a is applicable to an appraiser's testimony. See Gray v. Commonwealth Land Title Ins. Co., 162 N.H. 71, 77 (2011).2 RSA 516:29-a provides in relevant part that: I. A witness shall not be allowed to offer expert testimony unless the court finds:

(a) Such testimony is based upon sufficient facts or data;

(b) Such testimony is the product of reliable principles and methods; and

(c) The witness has applied the principles and methods reliably to the facts of the case.

II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that:

(1) Have been or can be tested;

(2) Have been subjected to peer review and publication;

(3) Have a known or potential rate of error; and

(4) Are generally accepted in the appropriate scientific literature.

(b) In making its findings, the court may consider other factors specific to the proffered testimony.

RSA 516:29-a essentially incorporates Daubert's standards. Baxter, 157 N.H. at 284, 298; see also Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 614 (2002) (applying the Daubert framework to evaluate the reliability of expert testimony under N.H. R. Ev. 702); Osman v. Lin, 169 N.H. 329, 335 (2016) (noting that "[p]ortions of RSA 516:29-a codify principles outlined by the Supreme Court in Daubert"). In State v. Langill, 157 N.H. 77, 85 (2008), the Supreme Court stated that section II of the statute "unambiguously codifies the four Daubert factors we applied in Baker Valley, 148 N.H. at 614, 616, and section I (b) codifies Daubert's requirement that the court preliminarily assess 'whether the reasoning or methodology underlying the testimony is scientifically valid.'" Noting that it was not clear that section I(c) also merely codifies principles...

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