Blake v. Columbia Gas Transmission, LLC

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

RICHARD L. BLAKE and

PENNY L. BLAKE,

Plaintiffs,

v. CIVIL ACTION NO. 3:19-0847

(consolidated with 3:19-859 through 873)

COLUMBIA GAS TRANSMISSION, LLC and

TRANSCANADA POWER CORP.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are two related motions in limine filed by Defendants

Columbia Gas Transmission, LLC and Transcanada Power Corp. First is Defendants’ Motion to

Exclude Plaintiffs from Offering Expert Testimony. ECF No. 30. Second is Defendants’ Motion

for Sanctions against some of Plaintiffs1 for failing to properly supplement their discovery

responses and properly and timely identify expert testimony. ECF No. 31. Plaintiffs oppose the

motions. For the following reason, the Court GRANTS both motions.

On May 1, 2020, Defendants served all Plaintiffs with a copy of their First Set of

Combined Discovery Requests. ECF No. 13. After reviewing the responses, Defendants believed

1This case is the lead case in a consolidated action. In their Motion for Sanctions,

Defendants only seek sanctions against Plaintiffs Richard L. and Penny L. Blake, Rexford D. and

Rhonda M. Castle, Cynthia Boyce, Jerald and Linda Rockwell, Jeffrey A. Maddox, and Wayne

and Diann Kelley. Throughout this Memorandum Opinion and Order, the Court will refer to

Plaintiffs generally with the understanding that the interrogatory responses at issue and the Motion

for Sanctions only applies to these specific Plaintiffs.

that some were deficient and requested they be supplemented. Plaintiffs supplemented their

responses, but Defendants remained unsatisfied. Following discussions between the parties,

Defendants ultimately filed a Motion to Compel on October 20, 2020. ECF No. 27. On November

12, 2020, the Honorable Cheryl A. Eifert, Magistrate Judge, granted Defendants’ motion and

ordered “Plaintiffs to serve full and complete responses to the disputed discovery requests on or

before November 30, 2020.” Order Granting Mot. to Compel (Nov. 12, 2020), ECF No. 29.

Although not indicated on the docket sheet, Plaintiffs apparently supplemented their responses on

the deadline. Still unsatisfied with the additional supplementation, Defendants filed the current

motions on February 1, 2021.

As this Court explained more fully in its earlier Memorandum Opinion and Order

entered on March 12, 2021, Plaintiffs own properties near a natural gas compressor station, and

they claim they suffered damages when Defendants made modifications and additions to the

facility. Blake v. Columbia Gas Transmission, LLC, No. CV 3:19-0847, 2021 WL 951705, at *1

(S.D. W. Va. Mar. 12, 2021). In their responses to Defendants’ interrogatories, Plaintiffs

personally estimated the value of their properties and estimated the change in value to their

properties following the changes to the compressor station. Plaintiffs also stated in their

interrogatory responses that the majority of their damages are general in nature and cannot be

itemized.

Given Plaintiffs’ responses, Defendants seek to preclude Plaintiffs from offering

their lay opinions as evidence of diminution of value. Defendants maintain such evidence is

inadmissible because an opinion as to the change in the value of real estate due to an external event

requires a technical analysis that must be established by expert testimony. As Plaintiffs never

disclosed an expert on the issue and the expert disclosure deadline was September 10, 2020,

Defendants argue any proposed expert testimony on the issue from Plaintiffs should be precluded.

Additionally, Defendants assert the Court should exclude evidence of special damages because

Plaintiffs have failed to adequately identify any.

In response, Plaintiffs argue that expert testimony is unnecessary because they

personally are qualified to testify as to the value and diminution of the value of their properties

under West Virginia, which “has long recognized the admissibility of a landowner’s opinion

concerning the value of his land.” W. Va. Dep’t of Transp. v. W. Pocahontas Props., L.P., 777

S.E.2d 619, 642 (W. Va. 2015) (footnote omitted). Plaintiffs maintain that testimony of property

value from landowners is permitted in West Virginia “because it is generally understood that the

opinion of the owner is so far affected by bias that it amounts to little more than a definite statement

of the maximum figure of his contention.” Id. (internal quotation marks and citation omitted).

Although the West Virginia Supreme Court has cautioned that a landowner does not have the right

“testify to grossly inflated values” id., Plaintiffs cite a number of West Virginia cases that generally

stand for the proposition that “a witness acquainted with the land and its situation . . . and

adaptability to particular purposes may give his opinion as to its value. He is not and need not be

regarded as an expert, but his evidence is competent, though its weight and credibility belong to

the jury.” Va. Power Co. v. Brotherton, 110 S.E. 546, 548 (W. Va. 1922) (citations omitted). See

also Smithson v. U.S. Fid. & Guar. Co., 411 S.E.2d 850, 859 (W. Va. 1991) (stating “we have

allowed the owner of property, both real and personal, to express an opinion of its value. This was

based on the assumption that an owner has some knowledge of his property’s worth.” (citations

omitted)); W. Va. Dep’t of Highways v. Fisher, 289 S.E.2d 213, 215 n.1 (W. Va. 1982) (stating “in

condemnation proceedings, a landowner may express his opinion concerning the value of his land”

(citations omitted); Toppins v. Oshel, 89 S.E.2d 359, 368 (W. Va. 1955) (“A witness who is

acquainted with the location and the character of land and its adaptability to particular purposes

may give his opinion as to its value and, though not an expert and not regarded as such, his evidence

relative to value is competent and its weight and its credibility are for the jury.” (citations

omitted)); Tenn. Gas Trans. Co. v. Fox, 58 S.E.2d 584, 589 (W. Va. 1950) (“A witness who is

acquainted with land, its location, its character and its adaptability to particular purposes, may give

his opinion as to its value. Though such a witness is not an expert, and is not regarded as such, his

evidence relating to value is competent and its weight and its credibility are questions for the

jury.”(citation omitted)); Syl. Pt. 2, Clay Cty. Ct. v. Adams, 155 S.E. 174 (W. Va. 1930) (“It is not

reversible error in a condemnation proceeding to permit the defendant to give his opinion as to

amount of damages he has sustained by reason of the taking, where he has given facts on which

his opinion is based, and where he has been fully cross-examined as to such facts.”). As this Court

sits over this action by virtue of diversity jurisdiction, Plaintiffs argue West Virginia substantive

law permits their testimony. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

U.S. 393, 417 (2010) (Stevens, J., concurring) (“It is a long-recognized principle that federal courts

sitting in diversity ‘apply state substantive law and federal procedural law.’” (quoting Hanna v.

Plumer, 380 U.S. 460, 465 (1965)).

As argued by Defendants, however, the precise issue before this Court is one of

evidence, not West Virginia substantive law, and the federal evidentiary rules apply. See id. Here,

Plaintiffs are attempting to introduce their personal testimony about how they believe the

modifications and changes to the compressor station impacted the value of their properties. Of the

interrogatory responses Defendants attached to their Motion for Sanctions, the responding

Plaintiffs all stated their properties had a value between $100,000 to $150,000 before the changes

were made.2 None of the responding Plaintiffs gave a more precise value. Plaintiffs also stated

that the “effective value” of their properties is now zero because no residential buyer would be

willing to purchase the properties.3 If a buyer was willing to purchase a property for rental

purposes, Plaintiffs stated they believe it would sell for as little as fifty percent of its original value.

Although the Court recognizes that West Virginia’s substantive law allows general

testimony about the value of property from owners and those acquainted with the property, the

proposed testimony of these Plaintiffs extends beyond those parameters. Specifically, Plaintiffs

want to testify that the original value of their properties was somewhere within a relatively broad

range of $50,000, leaving the jury to guess about the exact value, and then testify that their

properties became totally worthless in the residential buyer market. If the properties can be sold,

Plaintiffs guess the properties may be worth only half of the original value. Setting aside Plaintiff

Jeffrey A. Maddox for the moment, Plaintiffs do not give any foundation for their diminution

calculation other than their own self-serving conjecture about potential resale.

2With its Motion for Sanctions, Defendants attached the interrogatory responses from those

Plaintiffs they named in their motion. Ex. A, ECF No. 31-1; see supra note 1.

3The Court notes that Mr. Maddox’s interrogatory response was slightly different.

Although he said it is unlikely a residential buyer would want to buy the property, he did not opine

the value of the property was zero. Ex. A, ECF No. 31-1, at 25.

Not only does the Court find this proposed testimony wildly speculative, but it also

has the potential to confuse the jury about what, if any, damages Plaintiffs actually incurred.

Plaintiffs begin with an imprecise starting value and end with a range of one hundred to fifty

percent less that imprecise value. Such ambiguous testimony as to damages would make it

impossible for a jury to accurately calculate any damages, and the Court finds any probative value

such evidence may have is substantially outweighed by its prejudicial effect. See Fed.R.Civ.P. 403

(“Excluding Relevant Evidence”). Furthermore, the Court finds that a loss of value caused by a

specific factor, such as what occurred in this case, entails an analysis beyond the knowledge of

what a typical property owner or lay witness possesses. The Court acknowledges that average

homeowners likely know when they purchased their property, how much they paid for the property

and, under normal circumstances, they perhaps know what a current estimate of the value is.

However, when a specific factor is alleged to have changed and, thus, significantly depreciated the

value, a much more complicated analysis is necessary to determine what, if any, loss is attributable

solely to that particular change.

For instance, a calculation of what impact a specific event had on the value of a

piece of property may entail a pre- and post-comparative market analysis, with consideration of

whether other outside factors impacted the value. Property values often are affected by such things

as housing inventory levels, demand for housing, interest rates, area development, and alternative

uses for the property. Evaluating these various factors and determining their impact is simply not

something the average property owner can do. Instead, it requires an expert who is trained to make

such calculations and property appraisals. Compare Fed.R.Civ.P. 702 (describing expert witness

testimony), with Fed.R.Civ.P. 701 (“If a witness is not testifying as an expert, testimony in the

form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b)

helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c)

not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”);.

Thus, as the Court finds Plaintiffs’ testimony is likely to confuse the jury as to damage calculations

and, in any event, expert testimony is necessary as to a claim of diminution of value caused by a

specific event, the Court finds Plaintiffs’ lay opinions as to the impact the compression station

changes had on their property value is inadmissible.

With respect to Mr. Maddox, in his interrogatory responses he stated that he is a

real estate broker with extensive experience in the local real estate market, and based upon his

knowledge and experience, he opined as to the valuation of certain property both before and after

changes were made to the compression station. Defendants argue Mr. Maddox’s testimony also is

inadmissible because it falls within the scope of an expert opinion and he was not disclosed as an

expert. Given his representation, the Court agrees with Defendants that Mr. Maddox’s opinions

have all the hallmarks of expert testimony. However, as Plaintiffs never disclosed Mr. Maddox as

an expert witness, they denied Defendants the right to challenge his expertise or offer a specific

rebuttal expert. Under the circumstances, the Court finds it would be inherently unfair to

Defendants to allow Mr. Maddox to give what is tantamount to expert testimony when he was

never disclosed as one. Therefore, the Court finds Mr. Maddox’s testimony as to diminution of

value also is inadmissible.

Plaintiffs argue that, if the Court determines expert testimony is necessary, the

Court should excuse their shortcomings and failure to disclose an expert by the September 10,

2020 deadline because they believed they personally could testify about lost value under West

Virginia substantive law. Plaintiffs also assert the Court should find their failure to disclose an

expert was harmless under Rule 37(c) of the Federal Rules of Civil Procedure, asserting that

“[w]hether such testimony would be categorized as an ‘expert’ is a mere technicality.”4 Pls’ Resp.

in Opp. to Defs’ Mot. for Sanctions, at 8, ECF No. 32. The Court completely disagrees.

A failure to designate an expert and allow lay witnesses to testify as if they are

experts is not a “mere technicality.” In this case, Defendants contacted Plaintiffs before the expert

disclosure deadline and requested Plaintiffs’ interrogatory responses be supplemented. Although

Plaintiffs filed supplemental responses, Defendants informed Plaintiffs again—prior to the

deadline—that they believed the responses were inadequate and additional supplementation was

necessary. See Defs’ Mot. to Compel, at ¶4. The parties attempted to negotiate a resolution of their

dispute, but Defendants ultimately filed their Motion to Compel on October 20, 2020. The motion

was granted by the Magistrate Judge after Plaintiffs completely failed to respond or oppose it.

Although Plaintiffs supplemented their responses on the deadline set by the Magistrate Judge,

Plaintiffs provided Defendants with their speculative diminution calculations and vague answers

about damages, stating they are general in nature and cannot be itemized. At no point, does it

appear that Plaintiffs felt it necessary to designate an expert to specify and calculate any lost value

damage to their properties.

4Rule 37(c)(1) provides, in part: “If a party fails to provide information or identify a witness

as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to

supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified

or is harmless.” Fed.R.Civ.P. 37(c)(1), in part.

As previously stated, it is well established that, when a federal court’s jurisdiction

is based upon diversity, the Federal Rules of Evidence apply. It should not shock anyone that this

Court, as the gatekeeper of evidence at trial, must adhere to the federal evidentiary rules and permit

only that evidence the rules allow. Although Plaintiffs now seek to be excused from their

misunderstanding and ask the Court to allow them to testify because their testimony will not be a

surprise to Defendants, a lack of surprise is irrelevant when expert testimony on the issue is

required and Plaintiffs have not disclosed an expert. Moreover, for the reasons stated above,

Plaintiffs cannot simply give vague, wildly speculative calculations as to what they think their

damages are. Although Mr. Maddox might have qualified as an expert,5 the time for disclosing

him as an expert is long past. The Court finds Plaintiffs were provided more than sufficient time

to provide admissible evidence and their failure to understand the impact of the federal evidentiary

rules cannot excuse their shortcomings. Therefore, at this point in the proceedings, the Court will

not reset the discovery deadlines.

Accordingly, for the foregoing reasons, the Court GRANTS Defendants’ Motion

in Limine to Exclude Plaintiffs from Offering Expert Testimony (ECF No. 30), and Defendants’

Motion for Sanctions as to those Plaintiffs referenced in the motion. ECF No. 31. Plaintiffs shall

be precluded from disclosing an expert and offering any evidence of special damages and their

personal opinions as to diminution of the value of their properties.

5The Court makes no ruling on whether or not Mr. Maddox actually would qualify as an

expert as that issue is not before the Court.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented parties.

ENTER: September 17, 2021

Use

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

-10-