United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Judge Norman K. Moon This is a condemnation action brought by
Atlantic Coast Pipeline, LLC (“ACP”) against
property in Nelson County, Virginia, and record owner Fenton
Family Holdings, LLC (“Fenton”). The condemnation
arises in connection with the construction of an
approximately 600-mile underground pipeline to transport
natural gas from West Virginia to Virginia and North
Carolina. A trial is scheduled to determine “just
compensation” regarding permanent easements related to
the construction and maintenance of the pipeline across a
portion of property owned by Fenton. (Dkt. 1 (Complaint)
moves to exclude the opinions and testimony of four of
Fenton's designated experts: (1) Paykon H. Sarmadi, an
architect, regarding improvements located on the property
(dkt. 76); (2) Thomas L. Stokes, Jr., regarding the
construction of the project, including safety implications
and impacts of construction (dkt.82); (3) Richard Paradis,
regarding noise and vibration impacts on the property (dkt.
78); and (4) Matthew P. Ray, an appraiser, regarding just
compensation for the taking (dkt. 80). For the reasons
set out below, the Court will (1) deny ACP's motion to
exclude the opinions and testimony of Sarmadi, (2) grant in
part and deny in part ACP's motion to exclude the
opinions and testimony of Ray, and (3) will grant ACP's
motions to exclude the opinions and testimony of Paradis and
FACTUAL AND PROCEDURAL BACKGROUND
an eminent domain case in which ACP seeks to acquire
permanent and (prior to ACP's June 11, 2019 Amended
Complaint) temporary easements across Fenton's
property to construct and maintain a natural gas pipeline.
The property contains improvements, including a bed and
breakfast (described by Fenton as “a high-end, boutique
bed and breakfast”). The easements are on a small
portion of a tract of land comprised of approximately 2.922
acres in Nelson County, Virginia. One issue is whether two
adjacent tracts owned by Fenton should be included in
determining just compensation.
the holder of a certificate of public convenience and
necessity issued by the Federal Energy Regulatory Commission,
has the substantive right to exercise eminent domain over and
condemn the easements set out in the Complaint. Fenton
granted access to ACP to exercise its right to immediate
entry, access, and possession of the easements, with the
determination of just compensation for the easements
deferred. (Dkt. 22 (Stipulation) ¶¶ 2-5). The
permanent easement is approximately 0.04 acre and triangular
in shape, consisting of a 50-foot easement from a corner of
Fenton's property and running along the adjacent sides. A
temporary easement of approximately 0.03 acre has been
deleted from the Amended Complaint. (Dkt. 1-4, Plat
(Complaint Ex. 4); Dkt. 127 (Amended Complaint)).
seeks just compensation, which its appraiser Matthew P. Ray
places at $3, 156, 847. (Dkt. 81-2 (Ray Report) at 80).
ACP's proffered expert William C. Harvey places just
compensation at $130, 300. (Dkt. 97-1 (Harvey Supplemental
Report) at 57).
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). Just
compensation is to be awarded for the value of the taking
plus any “severance damages” (i.e., the
difference between the market value of the residue before and
after the taking). Columbia Gas Transmission, LLC v. 76
Acres, More or Less, in Baltimore & Harford Cntys.,
Md., 701 Fed.Appx. 221, 228 (4th Cir. 2017)
(unpublished). The instant motions challenge Fenton's
designated experts pursuant to Fed.R.Civ.P. 26(a)(2) and
Fed.R.Evid. 402, 403, and 702.
Civ. P. 26(a)(2) requires the disclosure of expert testimony
during discovery and provides, in part, that each party must
disclose to the other party the identity of any witness it
may use at trial to present evidence under Rules 702, 703, or
705 of the Federal Rules of Evidence. With respect to an
expert witness, the disclosure must “be accompanied by
a written report prepared and signed by the witness.”
The report must include: (1) a complete statement of all
opinions to be expressed and the basis and reasons therefor;
(2) the facts or data considered by the witness in forming
opinions; (3) any exhibits to be used as a summary of or
support for the opinions; (4) the qualifications of the
witness and list of publications in the previous 10 years;
(5) a list of other cases in which the witness has testified
as an expert within the preceding four years; and (6) the
compensation to be paid the witness for study and testimony.
Fed.R.Civ.P. 26(a)(2)(B). Fed.R.Civ.P. 37(c)(1) provides that
if a party fails to disclose information required by Rule
26(a), the party is not allowed to use that information to
supply evidence on a motion, at a hearing, or at a trial,
unless such a failure is substantially justified or harmless.
To avoid exclusion, the non-disclosing party bears the burden
of establishing the failure was substantially justified or
harmless. Gomez v. Haystax Tech., Inc., 761
Fed.Appx. 220, 229 (4th Cir. 2019) (unpublished) (per
Evid. 702 provides that a witness who is qualified as an
expert “by knowledge, skill, experience, training, or
education, may testify” as to scientific, technical, or
other specialized knowledge if it will assist the trier of
fact. Such testimony, however, is only admissible 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 expert has
reliably applied the principles and methods to the facts of
the case.” Fed.R.Evid. 702. “[A] court may
consider whether the expert witness theory or technique: (1)
can be or has been tested; (2) has been subjected to peer
review and publication; (3) has a high known or potential
rate of error; and (4) is generally accepted within a
relevant scientific community.” Bresler v.
Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017)
(citation and internal quotation marks omitted); see
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 593-94 (1993). This list of factors is not exhaustive.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141
(1999). “[C]ourts may not evaluate the expert
witness' conclusion itself, but only the opinion's
underlying methodology.” Bresler, 855 F.3d at
Supreme Court in Daubert concluded that implicit in
Rule 702 is a district court's gatekeeping responsibility
“to ‘ensure that an expert's testimony both
rests on a reliable foundation and is relevant to the task at
hand.'” Nease v. Ford Motor Co., 848 F.3d
219, 229 (4th Cir. 2017) (quoting Daubert, 509 U.S.
at 597). If the expert meets this threshold, criticisms of
his or her testimony will go to its weight, not its
admissibility. See Bresler, 855 F.3d at 195-96. The
approach is not limited to the testimony of scientists but
applies “to testimony based on ‘technical'
and ‘other specialized' knowledge.” Kumho
Tire, 526 U.S. at 141 (applying Daubert to the
testimony of a mechanical engineer); see Fed. R.
Evid. 402 provides that, with certain exceptions, relevant
evidence is admissible. Fed.R.Evid. 403 provides that a court
“may exclude relevant evidence if its probative value
is substantially outweighed by a danger of . . . unfair
PAYKON H. SARMADI
moves to exclude the opinions and testimony of Paykon H.
Sarmadi (“Sarmadi”). (Dkt. 76). Fenton's Rule
26(a)(2) Disclosure states that Sarmadi, an architect with
Balzer & Associates, Inc., is expected to testify
regarding improvements located on the property as well as the
cost to reconstruct improvements and site work. The Rule
26(a)(2)(B) Report submitted by Sarmadi consists primarily of
an itemized list of materials and related prices as well as
labor and specified contingencies, which are used to obtain a
cost estimate to reconstruct the Inn. (Dkt. 77-1). The Report
does not directly opine on just compensation but is used by
Fenton's appraisal expert Matthew P. Ray in his opinion
on just compensation.
asserts two reasons for excluding Sarmadi's opinions and
testimony: (1) Sarmadi's alleged failure to comply with
the disclosure requirements of Fed.R.Civ.P. 26(a)(2)(B); and
(2) Sarmadi's opinions are inadmissible under
Fed.R.Civ.P. 702. The Court will deny ACP's motion to
exclude the opinions and testimony of Sarmadi.
asserts three grounds for its argument that Sarmadi failed to
comply with the requirements of Rule 26(a)(2)(B): (1) he did
not “prepare” the Expert Report; (2) he did not
include the basis and reasons for his opinions; and (3) he
did not include sufficient facts or data to support his
Rule 26(a)(2)(B): Written Report Prepared by Expert
26(a)(2)(B) provides that a party's disclosure must be
accompanied by a written report “prepared and
signed” by the proffered expert witness. ACP asserts
that Sarmadi did not “prepare” the Report,
contending the Report was in fact prepared by Sarmadi's
estimator Mark D. Pitts, who has not been designated as a
testifying expert and who stated in his deposition that after
the first three pages of the Report, what followed “all
appears from my report.” (Dkt. 84 at 4-6; Dkt. 77-4
(Pitts Depo.) at 22:8-11). Fenton counters that Sarmadi
prepared his Report and that ACP's argument ignores the
extensive work done by Sarmadi in reviewing, editing, and
correcting Pitts' initial work. (Dkt. 88 at 2).
writing a testifying expert's report is the preparation
of the substance writing of the report by someone other than
the expert purporting to have written it.” Trigon
Ins. Co. v. United States, 204 F.R.D. 277, 291
(E.D. Va. 2001). “Unquestionably, Rule 26 requires an
expert witness to prepare his own Rule 26 report.”
Id. Although an expert witness must
“prepare” the report, the expert is permitted to
use assistants. The framework the Court uses is summarized in
an opinion cited by ACP:
An expert witness is permitted to use assistants in
formulating his expert opinion, and normally they need not
themselves testify. The opposing party can depose them in
order to make sure they performed their tasks competently;
and the expert witness can be asked at his deposition whether
he supervised them carefully and whether his relying on their
assistance was the standard practice in his field. If the
requisite assurances are forthcoming, the assistants'
work need not be introduced into evidence. . . .
Analysis become more complicated if the assistants aren't
merely gofers and data gatherers but exercise professional
judgment that is beyond the expert's ken. (They
needn't, of course, be assistants. . . . it would make no
difference if they were independent experts.).
Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d
609, 612-13 (7th Cir. 2002) (citations omitted).
argues that the evidence shows that Pitts prepared the
Report, pointing to Pitts' deposition testimony noted
above as well as to Sarmadi's deposition testimony in
which he could not remember what several acronyms in the
Report stood for, did not know the name of the software
program used to prepare the Report, and stated that previous
projects Pitts reviewed would be “based on his
[Pitts'] data and experience.” (See Dkt.
77-3 at 169:21-170:1, 170:18-171:1).
relies on Weitz Co., LLC v. Lloyd's of London,
No. 4:04-CV-90353TJS, 2007 WL 7131908 (S.D. Iowa Sept. 28,
2007), where testimony of a weather expert was excluded when
the expert delegated the collection of weather data and the
writing of the report to an assistant. ACP argues that this
is the same scenario which occurs here. The court in
Weitz, however, observed that “[i]f the
[expert] had been involved, even to some limited extent, in
the underlying research, analysis or drafting of the report,
the court would view his apparent lack of knowledge as to
certain aspects of the report as a matter of weight.”
Weitz, 2007 WL 7131908, at *3 (citing Archer
Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d
850, 858 (8th Cir. 2004) (“Generally, the factual basis
of an expert's opinion goes to credibility of the
testimony, not admissibility.”)).
case, Sarmadi did not completely delegate the task and simply
sign the Report but was involved in various aspects of the
underlying research and production of the Report. Sarmadi and
Pitts spent 4-5 hours at the property site documenting
existing conditions, verifying drawings, determining the
quality of finishes and construction techniques, and talking
with Fenton Inn personnel. (See Dkts. 77-2 at 1-2;
77-3 at 31:3-33:16, 54:9-19). After Pitts inputted the
measurements and observations into a program to organize the
data, Sarmadi and his team reviewed the information, verified
its reasonableness, made edits, and confirmed its accuracy
based on measurements and notes Sarmadi (and Pitts) took
during the site inspection. (Id. at 79:14-80:1,
also testified that he checked “most” of the unit
costs using his own data, mainly in an effort to make sure
the big ticket items, “the things that would really
impact the cost of the project[, ] were correct.” (Dkt.
77-3 at 174:15-175:19). Although ACP claims that
Sarmadi's revisions to Pitts' cost estimate were
limited to “a mere ten of more than 200 line items,
” (dkt. 94 at 2), Sarmadi's review appears to
relate to major line items: custom work, exterior
calculations, flooring, roofing, concrete walls, door costs,
door and window quantities, pavers, and fireplaces.
(See Dkt. 88-2 at 112-122).
sure, Sarmadi used Pitts as a data gatherer but also for his
expertise in pricing. (Dkt. 77-3 at 174:15-18 (“The
reason Mark [Pitts] is part of the team is because of his
expertise and because he's involved in the pricing side
of things much more frequently.”)). This was disclosed
in the Report. (See Dkt. 77-2 at 1 (referencing
collaboration with a local construction estimator), 5
(profile of Pitts)). But Pitts' work would not appear to
be beyond Sarmadi's “ken” (i.e., his
expertise). And, as discussed above, Sarmadi was clearly
involved to varying degrees in the underlying research,
analysis, and drafting of the Report.
Court concludes, therefore, that Sarmadi's involvement
was sufficient to meet Rule 26(a)(2)(B)'s requirement
that the expert “prepare” the
Rule 26(a)(2)(B)(i): Disclosure of Basis and Reasons for
asserts that even if Sarmadi prepared the Report, he failed
to disclose the basis and reasons for his opinions as
required by Rule 26(a)(2)(B)(i). “Expert reports must
not be sketchy, vague or preliminary in nature. Expert
reports must include the ‘how' and ‘why'
the expert reached a particular result, not merely the
expert's conclusory opinions.” Brosville Cmty.
Fire Dep't, Inc. v. Navistar, Inc., No.
4:14-cv-00009, 2014 WL 7180791, at *3 (W.D. Va. Dec. 16,
2014) (quoting Salgado v. Gen. Motors Corp., 150
F.3d 735, 741 n.6 (7th Cir. 1998)).
argues that the Report itself contains no explanation of how
the line item amounts were calculated and that Sarmadi and
Pitts admitted the methodologies used to reach various line
item amounts were not disclosed in the Report. ACP points to
Sarmadi's testimony that he verified several of the line
item amounts by comparing them to a project on which he
previously worked but that methodology was not in the Report
because “[w]e consider most of that just an internal
process” and that his use of an aerial survey using
Google Earth imagery software was not part of the Report. ACP
also faults the Report for not disclosing that Pitts called
supply houses and checked his proprietary database to obtain
unit prices and for not disclosing Sarmadi's purported
comparative analysis based on another project.
litigant in federal court is plainly entitled under Rule
26(a)(2)(B) to be given information spelled out therein, and
none shoulder the burden to independently investigate and
ferret out that information as best they can and at the
expense of their client.” Carr v. Dees, 453
F.3d 593, 605 (4th Cir. 2006). Thus, an expert report should
be written in a manner that reflects the testimony the expert
is expected to give at trial. Sharpe v. United
States, 230 F.R.D. 452, 458 (E.D. Va. 2005). ACP
contends that it had to depose Sarmadi and Pitts without
knowing the basis for their opinions, and had no prior
knowledge that Sarmadi employed an aerial analysis, obtained
vertical dimensions, or performed a comparative analysis
using a prior project.
characterizes ACP's argument as being extreme as it
suggests Sarmadi should have disclosed every document he
reviewed and every step he took in completing his Report.
Fenton overstates ACP's position. Rather, as stated in
one of the opinions cited by Fenton, the expert report must
be “sufficiently detailed and complete enough to enable
adequate preparation by” the other party.
Sharpe, 230 F.R.D. at 458. Even so, Sarmadi's
Report described the methods he employed in some detail:
Following our site visit, observations of existing
conditions, conversations with Fenton Inn personnel and
collaboration with a local construction estimator, we have
prepared an estimated cost analysis broken into the various
constructions Divisions, in accordance with current industry
standards. The cost analysis is based on existing drawings
provided by the Fenton Inn ownership, field observations
documenting quality of work and deviations from the drawings
provided, and quantities of materials taken from the
field-verified existing drawings and site observations.
(Dkt. 88-1 at 1). The Report also discussed the
considerations which went in to preparing cost estimates of
the contingencies (contractor, design, and owner). (Dkt. 77-2
Court is troubled by Sarmadi's failure to disclose in his
Report specifically how the line item amounts were
calculated. The Court finds, however, that under the
circumstances of this case, including Sarmadi's limited
focus on the replacement cost of the Fenton Inn, the
disclosure of steps undertaken in identifying the quantity of
materials required, and the itemization of unit costs, is
sufficient to avoid exclusion on this ground.
Rule 26(a)(2)(B)(ii): Disclosure of Facts or Data
26(a)(2)(B)(ii) requires disclosure of “the facts or
data considered by the witness” in forming his or her
opinions. The phrase “facts or data” is meant to
be interpreted broadly to require disclosure of any material
considered by the expert, from whatever sources, that
contains factual ingredients. Fed.R.Civ.P. 26, advisory
committee's notes to 2010 amendments.
argues that Sarmadi failed to disclose the facts or data on
which he relied, in violation of Fed.R.Civ.P.
26(a)(2)(B)(ii). ACP asserts that Sarmadi failed to disclose
measurements taken during the site visit, sketches allegedly
prepared by Sarmadi showing discrepancies between the Fenton
Inn as designed and as-built, aerial photographs and other
photographs relied on by Sarmadi, and cost data allegedly
obtained by Pitts from suppliers and his database. In short,
ACP concludes that ...