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Powell v. Tosh

United States District Court, W.D. Kentucky

March 8, 2013

TERRY POWELL, et al., Plaintiffs
v.
JIMMY TOSH, et al., Defendants

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For Terry Powell, Rhonda Free, Gerald Freeman, William Castleberry, Darrin Chapman, Tammy Chapman, Jamey Powell, Wilford Ham, Teresa McMullin, Michael Jordan, Kandis Jordan, Jerry Thompson, Tommy Powell, Bridget Powell, Lia Thompson, Terry Allen, Denita Allen, Kevin Groves, Larry Pearson, Kathy Pearson, Plaintiffs: Diana Riddick, LEAD ATTORNEY, Benton, KY; Elizabeth R. Bennett, LEAD ATTORNEY, Louisville, KY; John S. Harbison, LEAD ATTORNEY, Colchester, VT; Randal A. Strobo, W. Henry Graddy, IV, LEAD ATTORNEYS, W.H. Graddy & Associates, Midway, KY; Jerome P. Prather, William R. Garmer, Garmer & Prather PLLC, Lexington, KY; Richard H. Middleton, Jr, Stephen A. Sael, The Middleton Firm, LLC, Savannah, GA.

For Brenda Jordan, Bradley Hall, Karen Hall, Plaintiffs: Elizabeth R. Bennett, LEAD ATTORNEY, Louisville, KY; John S. Harbison, LEAD ATTORNEY, Colchester, VT; Randal A. Strobo, W. Henry Graddy, IV, LEAD ATTORNEYS, W.H. Graddy & Associates, Midway, KY; Jerome P. Prather, William R. Garmer, Garmer & Prather PLLC, Lexington, KY; Richard H. Middleton, Jr, Stephen A. Sael, The Middleton Firm, LLC, Savannah, GA.

For Jimmy Tosh, Defendant: Drew B. Meadows, John William Walters, LEAD ATTORNEYS, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Richard H. Middleton, Jr, LEAD ATTORNEY, The Middleton Firm, LLC, Savannah, GA; Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Brian Scott Jones, Reminger Co., LPA - Louisville, Louisville, KY; Debbie S. Champion, Rynearson Suess Schnurbusch & Champion, LLC, St. Louis, MO; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Tosh Farms, LLC, Tosh Farms General Partnership, Defendants: Drew B. Meadows, John William Walters, LEAD ATTORNEYS, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Brian Scott Jones, Reminger Co., LPA - Louisville, Louisville, KY; Debbie S. Champion, Rynearson Suess Schnurbusch & Champion, LLC, St. Louis, MO; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Pig Palace, LLC, Shiloh Hills, LLC, Tosh Pork, LLC, Defendants: Drew B. Meadows, John William Walters, LEAD ATTORNEYS, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Bacon by Gosh, Inc, Defendant: Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Brian Scott Jones, Reminger Co., LPA - Louisville, Louisville, KY; Debbie S. Champion, Rynearson Suess Schnurbusch & Champion, LLC, St. Louis, MO; Drew B. Meadows, John William Walters, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Eric Howell, Ron Davis, Heather Howell Davis, Defendants: Barry L. Dunn, LEAD ATTORNEY, Stoll Keenon Ogden PLLC - Louisville, Louisville, KY; Christopher E. Schaefer, Douglas C. Ballantine, Mark T. Hurst, LEAD ATTORNEYS, Stoll Keenon Ogden PLLC, Louisville, KY; Van F. Sims, LEAD ATTORNEY, Boswell Sims & Vasseur, PLLC, Paducah, KY.

OPINION

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MEMORANDUM OPINION AND ORDER

Thomas B. Russell, Senior United States District Judge.

This matter is before the Court upon the following motions to exclude the opinions and testimony of the several experts identified in this case:

(1) The Tosh Defendants [1] and Howell and Davis Defendants' [2] respective motions to exclude Plaintiffs' expert property appraiser Mary Clay, (Docket Nos. 357 & 351, respectively), to which Plaintiffs have responded, (Docket No. 401), and Defendants jointly have replied, (Docket No. 432);

(2) The Tosh Defendants' motion to exclude the Plaintiffs' expert property appraiser Rickie Spann, (Docket No. 349), joined by the Howell and Davis Defendants, (Docket No. 402), to which Plaintiffs have responded, (Docket No. 404), and Defendants jointly have replied, (Docket No. 432);

(3) Plaintiffs' motion to exclude the Tosh Defendants and Howell and Davis Defendants' expert property appraiser, Thomas Waldrop, (Docket No. 350), to which Defendants jointly have responded, (Docket No. 408), and Plaintiffs have replied, (Docket No. 429);
(4) The Tosh Defendants and Howell and Davis Defendants' respective motions to exclude Plaintiffs' expert Neil Webster, (Docket Nos. 341 & 345), to which Plaintiffs have responded, (Docket No. 412), and Defendants jointly have replied, (Docket No. 431);
(5) The Tosh Defendants and Howell and Davis Defendants' respective motions to exclude Plaintiffs' expert Thomas Card, (Docket Nos. 342 & 346), to which Plaintiffs have responded, (Docket No. 411), and Defendants jointly have replied, (Docket No. 430);
(6) The Tosh Defendants and Howell and Davis Defendants' respective motions to exclude Plaintiffs' expert Eric Winegar, (Docket No. 352 & 354), to which Plaintiffs have responded, (Docket No. 413), and Defendants jointly have replied, (Docket No. 442);
(7) Plaintiffs' motion to exclude Defendants' expert Kirk Winges, (Docket No. 348), to which Defendants have responded, (Docket No. 374), and Plaintiffs have replied, (Docket No. 437); and
(8) Plaintiffs' motion to exclude Defendants' expert Dwaine Bundy, (Docket No. 362), to which Defendants have responded, (Docket No. 373), and Plaintiffs have replied, (Docket No. 454).

Also before the Court are the following motions, which are related to the various motions to exclude expert testimony:

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(9) Defendants' " Joint Motion to Strike the Improper 'Declaration' of Eric Winegar," (Docket No. 443), to which Plaintiffs have responded, (Docket No. 470-1); and

(10) The Tosh Defendants and Howell and Davis Defendants' respective motions to strike or exclude Neil Webster's supplemental report, (Docket Nos. 381 & 377, respectively), to which Plaintiffs have responded, (Docket No. 456), and Defendants separately have replied, (Docket Nos. 466; 464).

These matters are now fully briefed and ripe for adjudication.

STANDARD FOR EXPERT TESTIMONY

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Rule 702 provides:

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.

In Daubert v. Merrell Dow Pharm., Inc., " the Supreme Court established a general gatekeeping obligation for trial courts to exclude from trial expert testimony that is unreliable and irrelevant." Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (alteration and internal quotation marks omitted) (quoting Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001) (applying Daubert, 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999))). The Court must determine whether evidence proffered under Rule 702 " both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. A key consideration is " whether the reasoning or methodology underlying the testimony is sufficiently valid." Id. at 592-93. The Supreme Court advises that the inquiry is " a flexible one," and that " [t]he focus . . . must be solely on principles and methodology, not on the conclusions they generate." Id. at 594-95. A testifying expert must " employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. But Daubert did not impose any new standard, other than that already found in the Federal Rules of Evidence, for the admissibility of the testimony of nonscientific expert witnesses. See id.; see also United States v. Velasquez, 64 F.3d 844, 850, 33 V.I. 265 (3d Cir. 1995) (noting that Daubert did not impose a new standard other than what is already set out in the Federal Rules of Evidence " for the admissibility of the testimony of nonscientific experts such as . . . real estate appraisers" ); United States v. Starzecpyzel, 880 F.Supp. 1027, 1040-41 (S.D.N.Y. 1995) (same).

Despite that there is no " definitive checklist or test" for meeting the standard of Rule 702, Daubert laid out a number of factors that typically " bear on the inquiry," including: whether the theory or method in question " can be (and has been) tested," whether it " has been subjected to peer review and publication," whether it has a " known or potential rate of error," and

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whether the theory or technique enjoys " general acceptance" in the " relevant scientific community." Daubert, 509 U.S. at 593-94. Although Daubert addressed scientific evidence, the Supreme Court in Kuhmo Tire Co. v. Carmichael held that a trial court may consider the Daubert factors for all types of expert evidence. Kumho Tire, 526 U.S. at 150. Thus, the Daubert factors are nonexhaustive and may not be pertinent in cases where " the relevant reliability concerns . . . focus upon personal knowledge or experience." [3] Id.; see also First Tenn. Bank Nat'l Ass'n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001).

The Sixth Circuit has developed further guidance on Rule 702 by recently outlining a number of " [r]ed flags that caution against certifying an expert." Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (citing Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009)). These include " reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity." Id. (citing Best, 563 F.3d at 177). Also, that a purported expert's testimony was prepared solely for litigation may also be grounds for exclusion. Id. (citing Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007)).

Where the testimony of a proffered expert is challenged for insufficient " factual basis, data, principles, methods, or their application . . . the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [his or her] discipline." Kumho Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592). The Court need not necessarily hold a Daubert hearing to determine the admissibility of expert testimony but, nonetheless, must ensure that the disputed testimony is both relevant and reliable. See Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000). Generally, " a trial judge . . . ha[s] considerable leeway in deciding whether particular expert testimony is reliable," Kumho Tire, 526 U.S. at 152; accord Conwood, 290 F.3d at 792; Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000), and his decision whether to admit expert testimony is reviewed for abuse of discretion, see Kumho Tire, 526 U.S. at 142; Newell Rubbermaid, 676 F.3d at 527; Hardyman, 243 F.3d at 258; see also Tamraz v. Lincoln Electric Co., 620 F.3d 665, 672 (6th Cir. 2010) (" Rule 702, we recognize, does not require anything approaching absolute certainty. And where one person sees speculation, we acknowledge, another may see knowledge, which is why the district court enjoys broad discretion over where

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to draw the line." (internal citations omitted)).

DISCUSSION

I. Plaintiffs' Expert Mary Clay

Plaintiffs have identified Mary Clay, a real estate appraiser, as an expert witness. The Tosh Defendants and Howell and Davis Defendants separately move to exclude the opinions of Clay and preclude her from testifying at trial. (Docket Nos. 357; 351, respectively.) The Court will begin by addressing the Tosh Defendants' arguments before moving to those presented by the Howell and Davis Defendants.

A. Tosh Defendants' Arguments

The Tosh Defendants raise four arguments why Clay's testimony should be excluded: (1) Clay has insufficient experience with Western Kentucky real estate and the effects of agricultural operations to testify as an expert in this matter; (2) Clay's analysis, methodology, and data are flawed and, thus, unreliable; (3) Clay's testimony is not relevant; and (4) Clay's opinion impermissibly takes " stigma" into account in calculating the diminution of value of the Plaintiffs' homes. ( See Docket No. 357-1.)

1. Clay's experience and qualifications

The Tosh Defendants begin by arguing that Clay does not possess the necessary expertise to render an expert appraisal opinion as to real property in Western Kentucky. According to these Defendants, Clay did not satisfy the competency standards set out in the Uniform Standards of Professional Appraisal Practice (USPAP) because (1) she was unfamiliar with the relevant geographic market and with the effects had on residential real property by the construction and operation of hog barns; and (2) although Clay was assisted by Ricky Spann, a local appraiser, Spann's involvement was insufficient to cure the deficiencies in Clay's competency.

Clay's lack of familiarity or experience appraising properties in Marshall County or in Western Kentucky does not necessarily make her unqualified to offer an expert opinion, nor does it necessarily render her opinion unreliable. The USPAP, which represents the prevailing professional standards for real property appraisal, provides: " Competency can be acquired in various ways, including, but not limited to . . . association with an appraiser reasonably believed to have the necessary knowledge and/or experience, or retention of others who possess the necessary knowledge and/or experience." (Docket No. 401-6, at 1.) Clay did just that by hiring Spann, a local residential real estate appraiser. Furthermore, Clay familiarized herself with the market by reviewing relevant data across a seven-year span between 2004 and 2011, which included more than 5,000 sales between 2006 and 2011 in the relevant Marshall County agricultural sector. ( See Docket No. 401-1, at 1.)

The Tosh Defendants are also critical of what they characterize as Clay's unfamiliarity with the valuation of property impacted by environmental damage--specifically, they argue she is unfamiliar with " the impacts on the value of residential real property based on odors from agricultural operations." (Docket No. 357-1, at 9.) But the argument that Clay is unfamiliar with the effects of agricultural odors misses the point. First of all, Clay represents herself as having " 25 years' experience performing damage studies," noting that she was appointed to a committee of the Appraisal Institute that developed the first seminar on the appraisal of environmentally-contaminated property. (Docket No. 401-1, at 1.) But, more importantly, she expressly disclaims her process for performing a damage study based on before-and-after

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values as not dependent on the particular source of the harm: " The relevant damage study is a reflection of market response, and is based on real estate market data, rather than the particular source of the harmful effects." (Docket No. 401-1, at 2.)

Finally, the Tosh Defendants' reliance on United States v. 12.94 Acres of Land in the Cnty. of Solano, 2009 WL 4828749 (E.D. Cal. Dec. 9, 2009), is, at best, misplaced. Even if an unpublished decision from the Eastern District of California were somehow binding on this Court, that case is not as similar to the present one as these Defendants suggest. The issue in 12.94 Acres was whether an expert appraiser's testimony was admissible in a federal condemnation proceeding. The district court held the appraiser's testimony was not because: " He did not investigate the requirements for valuing federally-condemned property . . . . did not evaluate the differences between state and federal condemnation requirements. . . . did not seek review or input from an appraiser with relevant federal condemnation experience. . . . did not read, reference, or rely on the rules or regulations for valuing federally-condemned property. . . . [and] did not review or rely on [the Uniform Appraisal Standards for Federal Land Acquisitions] when rendering his opinions . . . ." [WL] at *4. These considerations are inapplicable to the instant case.

To conclude, the Court is unpersuaded by the Tosh Defendants' contention that Clay's opinions must be excluded because of insufficient experience with either Western Kentucky real estate or the effects of agricultural operations. These arguments go more appropriately to the weight of Clay's testimony and are proper matters for cross-examination; they do not render Clay unqualified or her testimony unreliable.

2. Clay's data, analysis, and methodology

Second, the Tosh Defendants argue that Clay's analysis, methodology, and data are unreliable and, thus, must be excluded. ( See Docket No. 357-1, at 12-27. [4]) In this regard, the Tosh Defendants challenge the admissibility of Clay's opinions on several grounds, arguing: (1) Clay " cherry-picked" data that supported the Plaintiffs' goal of maximizing damages; (2) the 1.25 mile circle employed by Clay to delineate the affected area was arbitrarily drawn; (3) Clay's methodology and analysis are flawed and unreliable because the " before" or " unimpaired" values were calculated using a sales comparison approach, but the " after" or " impaired" values were calculated using various alternative approaches; and (4) the data used by Clay in reaching her conclusions is fundamentally flawed and arbitrarily selected, thus rendering her ultimate opinion unreliable. ( See Docket No. 357-1, at 13-27.)

In support of their first point--that Clay selectively chose data that would support the Plaintiffs' desired conclusion--the Tosh Defendants point to the sale of Lenette Bell's property at 4726 Brewers Highway, which is located one-half mile or less from the Ron Davis barns. According to these Defendants, Clay's conclusion that the properties within one-half mile from the hog barns suffered a 50% diminution in value is disproven by the fact that the Bell

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property sold in two separate parcels for a total price within approximately 5% of those parcels' total unimpaired value. The Plaintiffs refute this, arguing that the effective sale price, after seller concessions, shows an almost 11% diminution in value. ( See Docket No. 401, at 8-9.) Plaintiffs further point to the sale of William Castleberry's property at 2440 Wadesboro Road as showing a diminution of approximately 23%, which confirms the accuracy of Clay's 25% diminution estimate for that property.

Regardless, the Tosh Defendants' challenge seeks, in effect, to disprove Clay's conclusions and thereby show that her methodology in reaching those conclusions must necessarily be flawed. But the Court's role here is not to determine the correctness of Clay's opinion but instead simply whether it is based upon a reliable foundation. See In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529-30 (6th Cir. 2008). Therefore, this challenge goes more appropriately to the weight of Clay's testimony, which is a matter for cross-examination, and does not render her opinions unreliable.

Second, the Tosh Defendants argue that the 1.25 mile circle Clay drew to delineate the boundary for diminution in value was arbitrary and undercuts the reliability of her data. But Clay explained that the 1.25 mile radius was based on her review of relevant sales data and the evidence she found of diminution in market values. Ultimately, Clay's decision to draw a circle with a 1.25 mile radius is an issue for cross-examination and not a proper basis for excluding her testimony.

Third, these Defendants challenge the methodology employed by Clay in calculating the impaired values of Plaintiffs' property as " flawed and not generally accepted." (Docket No. 367-1, at 16.) They reason that because Spann used the sales-comparison approach to determine the unimpaired values, Clay's methodology in using several different appraisal methods to calculate the impaired values renders her opinion unreliable. The Tosh Defendants suggest that " there is no reason that Ms. Clay could not have utilized consistent approaches with respect to the impaired 'after' value she 'calculated' for each of the Plaintiffs' real properties." (Docket No. 357-1, at 19.) In this regard, they compare Clay to the two other expert appraisers in this case, Spann and Waldrop, who each used the sales-comparison approach. Additionally, they criticize Clay's use of " undocumented mental adjustments" rather than appraisal grids to document the adjustments made to each comparable sale, insisting this renders her opinions too subjective and lacking of indicia of reliability to be admissible. ( See Docket No. 357-1, at 21-23.)

Clay explained that she did not use the comparable sales adjustment grid method for calculating impaired values because the data set of sales in the area since the hog barns began operation was too small to determine reliable values. She further explained her use of various methods for calculating the impaired values as employing the most reliable method available in light of the available data for each property. The Tosh Defendants point to no standard that requires appraisers to use the same valuation method for determining before and after (or unimpaired and impaired) values, nor that requires appraisers to use the same method for calculating the after values of each property.

In a recent case, this Court dealt with an analogous challenge to before-and-after valuations. See Smith v. Carbide & Chems. Corp., 2009 WL 5184342 (W.D. Ky. Dec. 22, 2009). In that case, in which, ironically, the Tosh Defendants' expert Waldrop testified on behalf of the plaintiff, this Court rejected a challenge to the admissibility of the expert appraiser's opinion

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based on his use of differing approaches to determine the unimpaired and impaired value of real property. [WL] at *2. Instead, the Court concluded that any criticism of the expert appraiser's chosen approach " goes to the weight of [his] testimony and not admissibility," and thus " is a proper matter for cross-examination, but does not render [the expert's] opinions unreliable." Id. The same reasoning applies here.

The Court further concludes that the Tosh Defendants' criticism of Clay's " mental adjustments" as too subjective to be reliable is also unpersuasive. Clay explained these mental adjustments, which related only to the sales of two properties used as comparable sales, as too minimal to necessitate a detailed grid. That Clay discussed these adjustments and identified the criteria she used makes her expert opinion presents a wholly different scenario from that of the expert in the Northern District of New York decision relied on in the Tosh Defendants' Motion. Cf. Cayuga Indian Nation v. Pataki, 83 F.Supp.2d 318, 324-25 (N.D.N.Y. 2000) (excluding expert's testimony that was " based upon little more than his 'subjective feeling'" ). Thus, this issue, again, is one properly reserved for cross-examination and does not, in the Court's view, render Clay's opinions unreliable or warrant exclusion.

Fourth and finally, the Tosh Defendants argue that Clay's opinions should be excluded because the data she used was so fundamentally flawed that her ultimate opinion is rendered unreliable. In this regard, these Defendants take issue with Clay's use of sales data acquired from the county property valuation administrator (PVA), which they characterize as " hopelessly ambiguous." (Docket No. 357-1, at 25.) The Court is again unpersuaded. The issue of Clay selecting this data is, at best, one for challenging her testimony on cross-examination; it does not sway the Court to exclude her expert opinion on the basis of reliability.

3. Relevancy of Clay's testimony

The Tosh Defendants' third primary basis for excluding Clay's expert testimony is founded on their position that because her testimony is " based on unreliable data," it is irrelevant and will not assist the trier of fact in understanding the issue at hand. (Docket No. 357-1, at 27-29.) Though couched in terms of relevancy, this argument is essentially nothing more than a recap of these Defendants' other arguments--that Clay's opinions are unreliable, not based on sufficient facts or data, and not the product of reliable principles and methods. For the reasons previously discussed, the Court finds this argument unpersuasive and need not address it further.

4. Clay's inclusion of " stigma" in valuation

The Tosh Defendants' fourth principal challenge to Clay's expert opinions rests on her inclusion of stigma as a portion of her diminution valuation. ( See Docket No. 357-1, at 29-30.) Here, they argue that " [a]ny diminution in value attributable to stigma damages must be excluded as it is not, and can never be, a fact in issue [under Kentucky law]." (Docket No. 357-1, at 30.) In this regard, these Defendants are correct that Kentucky law requires proof of actual injury and that mere damage to reputation-- i.e., stigma--does not create a right to recovery. Smith v. Carbide & Chems. Corp., 226 S.W.3d 52, 55-56 (Ky. 2007). However, the Tosh Defendants are incorrect that stigma is not compensable.

In Smith v. Carbide & Chems. Corp., the Kentucky Supreme Court, answering certified questions of Kentucky law for the Sixth Circuit, differentiated between the right to recovery and the measure of damages,

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holding that although mere damage to the reputation of real property does not create a right to recovery, it may nonetheless factor into the measure of damages once actual injury is established. Id. Where a plaintiff has shown actual injury to real property, " the diminution in fair market value is a recognized measure of damages." Id. at 55 (emphasis omitted). Thus, Kentucky law merely prohibits recovery for damage to the reputation of land where there has been no actual injury to the property. See id. at 55-56. It follows that stigma damages may be included in the measure of damages despite not creating a right of recovery in and of itself. See id. at 55-56. Therefore, the Court is unpersuaded by the Tosh Defendants' argument that Clay's testimony must be excluded because she the cost of stigma in calculating the measure of damages to the Plaintiffs' properties.

The Tosh Defendants conclude with a final argument that Clay's inclusion of the cost of stigma requires exclusion under Fed.R.Evid. 403 because its probative value is substantially outweighed by the danger it will confuse and mislead the jury. ( See Docket No. 357-1, at 30.) The Court disagrees and finds no reason to exclude Clay's testimony on the basis that it would confuse or mislead the finder of fact. Thus, the Court finds this argument without merit.

* * *

For these reasons, the Court finds exclusion of Mary Clay's expert testimony not warranted under Fed.R.Evid. 702 and Daubert . Therefore, the Court will DENY the Tosh Defendants' Motion to Exclude. (Docket No. 357.)

B. Howell and Davis Defendants' Argument

The Howell and Davis Defendants separately move to exclude Clay's expert opinions along the lines of each of these Defendants' particular hog barn operations.

1. Clay's opinions regarding Ron Davis's barns at 4188 Brewers Hwy.

The Howell and Davis Defendants argue primarily that Clay's opinions on the alleged impact of Ron Davis's barns at 4188 Brewers Highway are not supported by sufficient data or a reliable methodology. In brief, the Court finds the issues raised by these Defendants go to the weight of Clay's testimony and are proper matters for cross-examination. In this regard, the Court's reasoning in Part I.A., supra, applies with equal force to the arguments presented by the Howell and Davis Defendants. Thus, the Court is not persuaded, as these Defendants contend, that Clay's testimony unreliable.

2. Clay's opinions regarding Heather Davis's barns on Lela Green Rd.

The Howell and Davis Defendants also move to exclude Clay's opinion that the barns located on Defendant Heather Davis's farm on Lela Green Road have caused a diminution in property values. ( See Docket No. 351, at 16-17.) Plaintiffs have not directly addressed this challenge in their response. ( See Docket No. 401.) On reviewing Clay's deposition testimony as it relates to Heather Davis's barns on Lela Green Road, the Court finds that Clay's opinion in this regard must be excluded. In her deposition, Clay acknowledges that she did not have sufficient data to conclude that there had been a diminution in value of the properties proximate to those barns. (Docket No. 351-6, at 23-27.) Clay further acknowledged that any conclusion relative to the Lela Green Road barns would be based on an extrapolation of the data for Ron Davis's barns and on the " assum[ption] that -- that you would

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find the same situation." (Docket No. 351-6, at 23-24.) Accordingly, the Court concludes that Clay's opinions lack sufficient data and a reliable foundation as to a diminution in property values relative to Heather Davis's barns on Lela Green Road. Thus, Clay's expert opinion in this regard cannot pass muster under Fed.R.Evid. 702 and must be excluded.

3. Clay's opinions regarding Eric Howell's barns on Wilkins Rd.

Finally, the Howell and Davis Defendants move to exclude Clay's opinions as to Defendant Eric Howell's barns located on Wilkins Road. ( See Docket No. 351, at 17.) They argue that during her deposition, Clay never mentioned having any knowledge of the existence or location of Eric Howell's barns, and that Clay has no data as to any diminution in property value in connection with those barns. Plaintiffs concede that " Clay has not disclosed any opinions relating to Mr. Howell's barn." (Docket No. 401, at 24.) The Court thus finds this issue is moot. However, although Clay is precluded from testifying as to any diminution in value relative to Eric Howell's barns on Wilkins Road, the Court finds no reason to preclude Clay from testifying as to her disclosed opinions regarding the impact of manure injections on property values generally.

* * *

For these reasons, the Howell and Davis Defendants' Motion to Exclude, (Docket No. 351), will be GRANTED IN PART and DENIED IN PART consistent with the Court's conclusions above.

II. Plaintiffs' Expert Rickie Spann

Plaintiffs have also identified Rickie Spann, another professional property appraiser, as an expert witness. The Tosh Defendants, joined by the Howell and Davis Defendants, move to exclude the opinions of Spann and preclude him from testifying at trial. (Docket Nos. 349 & 402.) Defendants do not challenge Spann's qualifications or the reliability of the valuation method he employed, and the Court finds no reason to question the admissibility of Spann's expert opinions on these grounds. Instead, Defendants argue that Spann's opinions should be excluded because his work was limited to the before or unimpaired values of the Plaintiffs' property and, thus, he could not testify as to any diminution in value. Because Spann's opinions do not relate to the after or impaired value, Defendants argue his opinions would be unhelpful to the trier of fact and should be excluded.

Certainly, the measure of damages for trespass or permanent nuisance is the diminution in the value of the property measured as the difference between the fair market value before and after the injury to the property occurs. See, e.g., Smith, 226 S.W.3d at 55-56; Ellison v. R& B Contracting, Inc., 32 S.W.3d 66, 69 & n.1 (Ky. 2000). Because Spann conducted appraisals of the Plaintiffs' properties to determine their before value, the Court finds his testimony will assist the trier of fact in calculating damages based on the Kentucky formula. That Spann's opinions relate only to the before value does not render them irrelevant. Moreover, Plaintiffs disclaim that Spann will testify as to either the after value or the diminution in value. (Docket No. 404, at 2, 4.) Thus, the Court is unpersuaded that Spann's expert opinions should be excluded on grounds of relevancy.

The Defendants other criticisms, presented only in passing, similarly ring hollow. Whether Spann " has little to no experience dealing with the negative impacts of residential property values based on their proximity to animal feeding operations," as Defendants suggest, is immaterial. Defendants concede " Spann has experience

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appraising homes in the Benton area," which relates precisely to his expert opinion as a professional appraiser in performing valuations of the unimpaired values. (Docket No. 349-1, at 6.) Thus, because Spann calculated only the unimpaired values and the subject of his proffered testimony is limited to those values, his experience " dealing with the negative impacts of residential property values based on their proximity to animal feeding operations" is beside the point, given that the unimpaired value is necessarily unaffected by such operations.

Accordingly, the Court finds no reason to exclude the proposed expert testimony of Spann as to the unimpaired values of the Plaintiffs' properties and will DENY the Defendants' respective Motions to Exclude. (Docket Nos. 349; 402.)

III. Defendants' Expert Thomas Waldrop

Defendants have identified Thomas Waldrop, a professional appraiser, as an expert witness. Plaintiffs do not challenge Waldrop's general qualifications as an appraiser of real property; rather, Plaintiffs assert that Waldrop's opinions are not based on sufficient facts or data and are not the product of reliable principles and methods. (Docket Nos. 350, at 1; 350-1, at 4.) Additionally, Plaintiffs challenge Waldrop's qualifications as an odor expert and as an expert on the construction and operation of hog barns. (Docket Nos. 350, at 1; 350-1, at 4.)

A. Challenges to Waldrop's Appraisal Data, Analysis, and Methodology

Plaintiffs challenge Waldrop's conclusions as not supported by sufficient facts or data, not reproducible, and unreliable.

To begin, Plaintiffs criticize Waldrop's analysis as based " on an arbitrarily chosen area of land," insisting that his data was insufficient to determine a change in the value of the Plaintiffs' properties. (Docket No. 350-1, at 5.) To this end, Plaintiffs argue that Waldrop's " sample area included very few properties outside of the known odor-affected area." (Docket No. 350-1, at 5.) But Plaintiffs base this " known area" on the conclusions reached by their own experts Mary Clay and Eric Winegar. ( See Docket No. 350-1, at 5.) At his deposition, Waldrop explained what facts and data he was relying upon in forming his opinion. He testified that he chose a roughly 3- by 3-mile area surrounding the Ron Davis farm in order to have enough " touches," meaning individual property listings or transactions, in order to conduct his analysis. Furthermore, he explained objectively why he chose that sample area and how he selected his " touches."

Upon review, the Court is unpersuaded by Plaintiffs' criticism of Waldrop's data gathering as subjective and arbitrary. Plaintiffs' experts' differing opinions as to the appropriate data set are irrelevant to the admissibility of Waldrop's testimony and cannot serve as a proper basis for excluding his opinions as based on insufficient facts or data. Waldrop's decision not to expand his assessment or include additional properties goes to the weight of Waldrop's testimony, which is a matter for cross-examination, and not to its admissibility. See Hancock v. Island Creek Coal Co., 2009 WL 973371, at *4 (W.D. Ky. Apr. 10, 2009) (finding expert's decision to survey only 2.66 acres of the plaintiff's property rather than the entire 25 acres went to the weight of his testimony and not its admissibility).

Plaintiffs next argue that Waldrop's opinions are not based upon a reliable method. (Docket No. 350-1, at 7.) In this regard, Plaintiffs criticize Waldrop's opinions

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as (1) not " consider[ing] any property for comparison outside the area which Plaintiffs' experts have already identified that there was an adverse impact in property values," and (2) making no hypothetical evaluations as to what the property values would have been had the hog barns not been present. (Docket No. 350-1, at 8.) As to Plaintiffs' first contention, again, the area identified by Plaintiffs' experts is immaterial to the reliability of Waldrop's methodology and the admissibility of his opinion.

Plaintiffs' second challenge to Waldrop's method faults him for making no hypothetical evaluations of what the property values would be in the absence of the hog barns and, thus, " ha[ving] no basis to determine whether there had been an effect on property values." (Docket No. 350-1, at 8.) Waldrop, however, directly refutes this assertion in his sworn affidavit, which Defendants included as an exhibit in responding to Plaintiffs' instant Motion:

In determining the unimpaired values for each of the 17 properties owned by the Plaintiffs, I utilized the sales comparison approach to determine their value. My unimpaired analysis was based on the hypothetical assumption that hog barns had not been constructed in the vicinity of the subject properties.

(Docket No. 408-4, at 1.)

Plaintiffs further challenge Waldrop as unable to state the basis of his conclusion that the hog barns had no effect on the Plaintiffs' property values. Here, they maintain Waldrop has been unable " to articulate any principle or method he relied on." (Docket No. 350-1, at 10.) Again, Waldrop has refuted this challenge. In his affidavit, Waldrop explains he could not use any of " the three traditional approaches to valuation (cost, income and direct sales comparison)" because of the nature of the 17 properties and insufficient data. [5] (Docket No. 408-4, at 2.) He goes on to explain the alternative approach he utilized, which he describes as " analysis of market conditions" ; how he identified and acquired his data for this approach; what his review entailed; and the method he used ...


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