Rural Water Dist. No. 4 v. City of Eudora, Kan.
| Decision Date | 09 March 2009 |
| Docket Number | Case No. 07-2463-JAR. |
| Citation | 604 F.Supp.2d 1298 |
| Parties | RURAL WATER DISTRICT NO. 4, DOUGLAS COUNTY, KANSAS, Plaintiff, v. CITY OF EUDORA, KANSAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
John W. Nitcher, Riling, Burkhead & Nitcher, Chtd., Lawrence, KS, Michael D. Davis, Steven M. Harris, Doyle Harris Davis & Haughey, Tulsa, OK, Michael Colby Kirkham, Sanders Conkright & Warren LLP, Overland Park, KS, for Plaintiff.
Curtis L. Tideman, David R. Frye, Jeffrey R. King, Lathrop & Gage, LC, Overland Park, KS, for Defendant.
Plaintiff Rural Water District No. 4, Douglas County, Kansas ("Rural"), filed this Complaint under 42 U.S.C. § 1983, claiming that it is protected under 7 U.S.C. § 1926(b), which gives it the right to provide water service to its service area. Rural claims that defendant City of Eudora ("City") violated § 1926 by annexing certain properties within its service area and proceeding to enforce the provisions of K.S.A. § 12-527, allowing the City to purchase Rural's assets. Rural seeks damages, a declaratory judgment, and an injunction. The City filed a counterclaim for tortious interference with a business advantage, fraud, abuse of process, and for declaratory relief.1
Before the Court is the City's Motion for Summary Judgment (Doc. 150), Rural's Motion for Partial Summary Judgment (Doc. 151), and a host of related motions. The City seeks summary judgment on Rural's § 1983 claim, declaratory, and injunctive relief claims and on its declaratory counterclaims. Rural moves for judgment on its § 1983 claim, its declaratory relief claim, and its injunctive relief claim. Rural also seeks judgment on the City's counterclaims and affirmative defenses.
The Court has broad discretion in deciding whether to admit expert testimony.2 Fed.R.Evid. 702 provides that a witness who is qualified by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, "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."3
The proponent of expert testimony must show "a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation."4 In order to determine whether an expert opinion is admissible, the Court performs a two-step analysis. "[A] district court must [first] determine if the expert's proffered testimony ... has `a reliable basis in the knowledge and experience of his discipline.'"5 Second, the district court must further inquire into whether the proposed testimony is sufficiently "relevant to the task at hand."6 An expert opinion "must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation ... absolute certainty is not required."7 And it is not necessary to prove that the expert is "indisputably correct," but only that the "method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements."8
Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 702:(1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community.9 But "the gatekeeping inquiry must be tied to the facts of a particular case."10
It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.11 The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.12 In this case, the parties have agreed that a hearing is not necessary, and rest on their written submissions. The Court has carefully reviewed the exhibits filed with the motion and believes this review is sufficient to render a decision upon the motion to exclude without conducting an oral hearing.
Defendant does not contest the qualifications of plaintiff's expert, but rather insists that the testimony is unreliable and that some of his opinions are outside the scope of his proposed testimony. Plaintiff counters that Connell's opinion is reliable as it is in line with defendant's expert testimony on the issue.
Connell intends to testify that K.S.A. § 12-527 is a mandatory statute and that when the City annexed portions of Rural, it was required to purchase Rural's property. Rural claims that the mandatory nature of § 12-527 makes it clear that the City "curtailed or limited" its right under § 1926(b), the ultimate issue for the Court to decide and the issue presented to the trier of fact.
K.S.A § 12-527 provides that:
(a) Whenever a city annexes land located within a rural water district organized pursuant to the provisions of K.S.A. 82a-612 et seq., and amendments thereto, the city shall negotiate with the district to acquire title to all facilities owned by the water district and used for the transportation or utilization of water distribution to the water district benefit units within the area annexed by the city. Title shall vest in or become the property of the city upon payment by the city to the water district of the reasonable value of such property, as agreed upon by the governing body of the city and the board of directors of the district. If the district is unable to reach agreement with the city on the reasonable value for such facilities, then the reasonable value shall be determined in the following manner:
(1) The district and the city shall each select one qualified appraiser and the two appraisers so selected shall then select a third appraiser for the purpose of conducting appraisals so as to determine reasonable value of the property, facilities and improvements of the district annexed by the city.
(2) The agreement or decision of at least two of the three appraisers shall be the fair market value presented to the city for payment and the district for acceptance.
(3) If either the district or the city is dissatisfied with the decision of the appraisers, then the district or the city may institute an action in the district court to challenge the reasonableness of the value determined by the appraisers.
The Tenth Circuit has provided that "while expert witnesses may testify as to the ultimate matter at issue ... this refers to testimony on ultimate facts: testimony on ultimate questions of law, i.e., legal opinions or conclusions, is not favored."13 This is exactly what plaintiff intends to do with its expert witness. In his declaration of report,14 Connell states that he is an attorney with substantial experience in litigating § 1926(b) actions. He states that he is "very familiar with 7 U.S.C. § 1926(b) and its application in response to municipal encroachments." In his opinion, Connell explores the legislative history and opines about the purposes of § 12-527. In fact, his opinion is actually a "brief" in support of plaintiff's position on the meaning of § 12-527, an issue hotly contested in this case. He ends his opinion with the conclusion that the City's threatening letters and mandatory language of § 12-527, in his "personal and legal opinion," means that the "Water District not only had a right, but an affirmative duty to file for federal protection from the City's actions of threatening the taking of Water District rights in contradiction of its Federal protection."15
Connell's testimony is nothing more than his "legal" opinion as to the law. In fact, Connell acknowledges that courts disfavor such testimony by citing to Specht v. Jensen,16 Tenth Circuit precedent on this issue. Any opinion on the legal effect of § 12-527 on the protection under § 1926(b) is a question of law for the Court. Accordingly, defendant's motion is granted.
Challis is apparently highly skilled and qualified to give expert testimony. Challis has a bachelors degree in civil engineering and a masters degree in structural engineering. He has thirty-three years of experience, with an emphasis on design, project management, computer analysis, and has worked with seven other water districts, in the past or present. He holds professional licenses in Kansas, Missouri, and Nebraska. Being a licensed engineer, however, does not mean that Challis possesses sufficient knowledge to testify about any engineering issue.17 Challis proposes to testify regarding the Garber Property and Rural's ability to make "service available" in that area.18 Challis's testimony is as follows:
(1) that in general, a property owner or developer such as the Garber Property would request water service some four to six months prior to development of the project; (2) that in larger scale project developments involving one or more lots, the property developer constructs the on-site facilities and then conveys those facilities and structures to the water district; (3) generally, the property developer pays for "all, part, or none of any off-site facilities" necessary in providing water service to the area;19 (4) that when the request for water was made, Rural had the ability to service the area because it had sufficient lead time to develop and complete engineering...
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Opinion
...outcome, the evidence is admissible for whatever weight the jury may see it to give it. Rural Water District No. 4 v. City of Eudora , 604 F.Supp.2d 1298 (D. Kan. 2009). Ordinarily, lay witness testimony must be based on concrete facts within the witness’s perception. This perception requir......
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Opinion
...outcome, the evidence is admissible for whatever weight the jury may see fit to give it. Rural Water District No. 4 v. City of Eudora , 604 F.Supp.2d 1298 (D. Kan. 2009). Ordinarily, lay witness testimony must be based on concrete facts within the witness’s perception. This perception requi......
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Lay & Expert
...outcome, the evidence is admissible for whatever weight the jury may see fit to give it. Rural Water District No. 4 v. City of Eudora , 604 F.Supp.2d 1298 (D. Kan. 2009). Ordinarily, lay witness testimony must be based on concrete facts within the witness’s perception. This perception requi......