Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CMP, LLC CIVIL ACTION

VERSUS NO. 24-2298

BOARD OF COMMISSIONERS FOR THE SECTION: D (1)

LAFITTE AREA INDEPENDENT

LEVEE DISTRICT

ORDER AND REASONS

Before the Court is a Motion in Limine and Daubert/Article 702 Motion to

Exclude Plaintiff’s Expert Testimony Applying an Improper Measure of

Compensation for Appropriation, filed by Defendant Board of Commissioners for the

Lafitte Area Independent Levee District (“LAILD”).1 Plaintiff CMP, LLC (“CMP”)

Opposes the Motion.2 LAILD has filed a Reply,3 along with a Supplemental

Memorandum in Support of the instant Motion.4 After a careful review of the parties’

memoranda, the record, and the applicable law, the Court DENIES the Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns an alleged taking of nearly eighteen acres of real property

within the bounds of the Lafitte Area Independent Levee District in Jefferson Parish,

Louisiana.5 CMP owns property within the boundaries of the LAILD in Jefferson

Parish.6 As a part of the Rosethorne Basin Lafitte Tidal Protection Levee Project,

LAILD entered CMP’s property on or about May 27, 2024 to raise the height of an

1 R. Doc. 59.

2 R. Doc. 74.

3 R. Doc. 84.

4 R. Doc. 87.

5 R. Doc. 1.

6 Id.

existing levee.7 Nearly three months later, on August 22, 2024, LAILD passed

Resolution 495 that provided for an appropriation of the portion of CMP’s land

containing the levee.8 On September 20, 2024, CMP filed the instant suit against

LAILD for a failure to pay just compensation for a taking under the Louisiana

Constitution, the Fifth and Fourteenth Amendments, and 42 U.S.C. §1983.9

Throughout the course of the underlying suit, CMP hired three experts to

assist in calculating the value of its land occupied by LAILD. On June 23, 2025, Dr.

Fred Fellner and Dr. Malcolm Guidry, professional consulting arborists, issued a

single, joint report calculating the value of the trees and associated pulpwood located

on the tract of property taken by LAILD.10 According to Drs. Fellner and Guidry, “the

value of the trees removed to facilitate work to construct/modify levees and drainage

work resulted in the loss of approximately 1,400 tons of bottom land.”11 Using an

average market price of $12 per ton, Drs. Fellner and Guidry estimated that the total

loss equated to $16,048369.12 Thereafter, on June 27, 2025, Baldwin R. Justice issued

an Appraisal Report providing “an opinion of the ‘just compensation’ necessary to

place [CMP] in the ‘same pecuniary position’ as prior to the taking” of the land by

7 R. Doc. 1.

8 R. Doc. 50-1; R. Doc. 50-2.

9 R. Doc. 1.

10 R. Doc. 87-1.

11 Id. at p. 3.

12 Id. Specifically, Drs. Fellner and Guidry stated that “Based upon a range of prices we chose an

average market price of $12 per ton. The total loss, therefore, is calculated at 1,337.39 tons X 12 $/ton

= $16,048369.” Id. That final calculation appears to be a typographical or mathematical error which

does not impact this analysis.

LAILD.13 Mr. Justice concluded that the total just compensation owed to CMP, as a

result of the alleged taking by LAILD, was $3,755,000.14

On August 18, 2025, LAILD filed the instant Motion in Limine and

Daubert/Article 702 Motion to Exclude Plaintiff’s Expert Testimony Applying an

Improper Measure of Compensation for Appropriation, seeking to exclude, or

alternatively limit, the testimony of CMP’s expert witnesses Baldwin R. Justice, Dr.

Fred Fellner, and Dr. Malcolm Guidry.15 In the Motion, LAILD contends that:

Plaintiff identified and designated Justice as an expert in land value

appraising to determine the market value of property appropriated (and

already compensated) by LAILD. At Plaintiff’s direction, Justice offered

an appraisal report that seeks to independently determine

compensation due for the appropriation. Justice issues his report and

opinions, however, under the false assumption provided by Plaintiff that

the claim involves an ‘eminent domain’ or expropriation legal standard,

despite the fact that this case only involves the more restricted

compensatory scheme of an appropriation by an arm of the State of

Louisiana for the building of a levee. Accordingly, Plaintiff and Justice

advance an incorrect and legally impermissible measure of

compensation for this claim that is not only improper and irrelevant, but

would only serve to mislead or confuse the jury and unfairly prejudice

LAILD.16

Further, as it pertains to CMP’s witnesses Drs. Fellner and Guidry, LAILD

asserts that:

Dr. Fellner and Mr. Guidry opine that Plaintiff is entitled to loss of

bottom land pulp wood. Under Jarreau, the measure of compensation

for an appropriation is fair market value which ‘does not include loss

profits or other severance damages.’ If Dr. Fellner and/or Mr. Guidry are

allowed to testify that Plaintiff suffered loss of damages that he is not

legally entitled to recover, such testimony would be inherently not

helpful to the trier of fact and unreliable under Article 702. Moreover,

13 R. Doc. 59-5 at p. 4.

14 Id. at p. 6.

15 R. Doc. 59; R. Doc. 87.

16 R. Doc. 59 at p. 1.

such testimony would create a substantial danger of confusing the trier

of fact as to the scope of recoverable compensation. That represents

unfair and unnecessary prejudice to LAILD and the potential for a

miscarriage of justice. Therefore, Plaintiff’s experts Fred Fellner and

Malcolm Guidry should be excluded.17

CMP opposes the Motion and asserts that “LAILD’s motions proceeds [sic] from

a provably false premise in an effort to limit or exclude testimony from Plaintiff’s

expert witnesses, Baldwin R. Justice, MAI, Fred Fellner and Malcolm Guidry based

on their inaccurate contention that this matter solely constitutes an appropriation,

as opposed to an expropriation, thereby precluding the full measure of appropriate

damages owed to CMP.”18

CMP additionally contends that “LAILD offers no challenge to credentials, or

to the application of his methodology, by Mr. Justice, Mr. Fellner or Mr. Guidry.

Instead, for the two motions opposed herein, LAILD solely challenges all three

experts based on their inclusion of damages used for expropriation matters, and

contends that all three should (for some reason) be confined to an appropriation

analysis.”19

CMP further advances that “there is no doubt that CMP has properly advanced

an expropriation claim. Indeed, the claim was plead within the Complaint, and aligns

with the procedural facts leading up to the taking of CMP’s property.”20 Thus,

according to CMP, “expropriation was properly plead by CMP, and it is supported by

the underlying facts. An expropriation analysis, therefore, properly served as a part

17 R. Doc. 87 at p. 2.

18 R. Doc. 74 at p. 1. (emphasis removed).

19 Id.

20 Id. at p. 4.

of the expert report and analyses submitted by Baldwin Justice, MAI, Mr. Fellner

and Mr. Guidry. Exclusion or limitation of their opinions must be denied.”21

In Reply, LAILD claims that:

Plaintiff’s objections to the manner in which this appropriation took

place do not change the fact that it is and was an appropriation and

nothing more. Under the law of appropriation, the valuation of property

utilized for the purpose of building a levee or heightening a levee is the

more restrictive just compensation measure required by the Fifth

Amendment, which is the fair market value of the property at the time

of the appropriation, based on current use of the property, before the

proposed appropriated use, and without allowing for any change in

value caused by levee construction. Fair market value does not include

loss profits or other severance damages like loss timber or pulpwood,

and does not include speculative or remote uses for a property, like

business plans or highest and best use that were never brought into

fruition in over twenty years.22

Therefore, according to LAILD:

Plaintiff’s experts seek to opine as to damages that Plaintiff is simply

not entitled to under the law. With respect to Plaintiff’s arborists’

opinions, any losses for pulpwood are simply not included within the

ambit of fair market value and to allow introduction of testimony

concerning damages that Plaintiff is not entitled to is prejudicial to

LAILD and only serves to confuse the jury. With regard to fair market

value, both LAILD and Plaintiff’s appraiser experts did assess fair

market value. However, Plaintiff’s appraiser did not stop his analysis at

the appropriate measure of compensation. Rather, he went on to

appraise it as an inverse condemnation (as he was instructed to do so by

Plaintiff’s counsel) and included speculative severance damages and

consideration of the property’s purported ‘highest and best use’ even

though that exceeded current use. Given the law in this matter as to the

legal public servitude in place and the fact that this is an appropriation,

any testimony as to the wrong measurement of compensation and the

speculative nature and circumstances taken into account by Mr.

Baldwin in overinflating the valuation can do nothing more than confuse

the jury, mislead the jury and prejudice LAILD.23

21 Id. at p. 6.

22 R. Doc. 84 at p. 4.

23 Id. at pp. 4–5.

II. LEGAL STANDARD

The district court has considerable discretion to admit or exclude expert

testimony under Fed. R. Evid. 702,24 and the burden rests with the party seeking to

present the testimony to show that the requirements of Rule 702 are met.25 Rule 702

first requires that a witness is qualified “as an expert by knowledge, skill, experience,

training, or education[.]”26 “District courts must be assured that the proffered witness

is qualified to testify by virtue of his knowledge, skill, experience, training, or

education.”27 “To qualify as an expert, the witness must have such knowledge or

experience in his field or calling as to make it appear that his opinion or inference

will probably aid the trier in his search for truth.”28

Rule 702 provides that an expert witness “qualified . . . by knowledge, skill,

experience, training, or education may testify in the form of an opinion” when all of

the following requirements are met:

(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’s opinion reflects a reliable application of

the principles and methods to the facts of the case.29

24 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200

F.3d 358, 371 (5th Cir. 2000); Tajonera v. Black Elk Energy Offshore Operations, LLC, Civ. A. No. 13-

0366 c/w 13-0550, 13-5137, 13-2496, 13-5508, 13-6413, 14-374, 14-1714, 2016 WL 3180776, at *8 (E.D.

La. June 7, 2016) (Brown, J.) (citing authority).

25 Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

26 Fed. R. Evid. 702.

27 Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)(citation modified).

28 U.S. v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004); see also Kumho Tire Co. v. Carmichael, 526 U.S.

137, 151 (1999)(discussing witnesses whose expertise is based purely on experience).

29 Fed. R. Evid. 702.

Rule 702 codifies the Supreme Court’s opinion in Daubert v. Merrell Dow

Pharmaceuticals, Inc., which charges district courts to act as “gatekeepers” when

determining the admissibility of expert testimony.30 “To be admissible under Rule

702, the court must find that the evidence is both relevant and reliable.”31 Even if an

expert satisfies Daubert and Rule 702, “[e]xperts cannot ‘render conclusions of law’ or

provide opinions on legal issues.”32

According to the Fifth Circuit, reliability is determined by assessing whether

the reasoning or methodology underlying the testimony is scientifically valid, while

relevance depends on whether the reasoning or methodology underlying the

testimony can be properly applied to the facts at issue.33 The purpose of the reliability

requirement is to exclude expert testimony based merely on subjective belief or

unsupported speculation.34

To satisfy the reliability prong of the Daubert/Rule 702 analysis, a “party

seeking to introduce expert testimony must show (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.”35 To prove reliability, the proponent of the expert testimony must

30 United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993)).

31 United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing United States v. Valencia, 600 F.3d

389, 424 (5th Cir. 2010)).

32 Renfroe v. Parker, 974 F.3d 594, 598 (5th Cir. 2020) (quoting Goodman v. Harris Cnty., 571 F.3d

388, 399 (5th Cir. 2009)).

33 Ebron, 683 F.3d at 139 (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002)).

34 Tajonera, 2016 WL 3180776, at *8 (citing Daubert, 509 U.S. at 590).

35 Recif Res., LLC v. Juniper Cap. Advisors, L.P., Civ. A. No. H-19-2953, 2020 WL 5623982, at *2 (S.D.

Tex. Sept. 18, 2020) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)) (internal quotation

marks omitted).

present some objective, independent validation of the expert’s methodology.36 The

reliability inquiry requires the Court to consider certain factors including: (1)

whether the technique has been tested; (2) whether the technique has been subjected

to peer review and publication; (3) the technique’s potential error rate; (4) the

existence and maintenance of standards controlling the technique’s operation; and

(5) whether the technique is generally accepted in the relevant scientific

community.37 The objective of this Court’s gatekeeper role is to ensure that an expert

“employs in the courtroom the same level of intellectual rigor that characterizes the

practice of an expert in the relevant field.”38

Finally, proposed “expert testimony must be relevant, not simply in the sense

all testimony must be relevant [pursuant to Rule 402], but also in the sense that the

expert’s proposed opinion would assist the trier of fact to understand or determine a

fact in issue.”39 “[T]he trial judge ought to insist that a proffered expert bring to the

jury more than the lawyers can offer in argument.”40

III. ANALYSIS

LAILD does not challenge the qualifications of Baldwin Justice, Dr. Fellner, or

Dr. Guidry, nor does it argue that their expert reports are the products of unreliable

methodology or principles.41 Instead, LAILD contends that the expert reports of

36 Id. (citing Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536 (5th Cir. 2013)).

37 See Burleson v. Texas Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004).

38 Kumho Tire Co., 526 U.S. at 152; Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir. 2006).

39 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).

40 In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233 (5th Cir. 1986).

41 The Court acknowledges that LAILD has stated that “[i]f Dr. Fellner and/or Mr. Guidry are allowed

to testify that Plaintiff suffered loss of damages that he is not legally entitled to recover, such

testimony would be inherently not helpful to the trier of fact and unreliable under Article 702.” R. Doc.

87 at p. 2 (emphasis added). LAILD, however, fails to address how the joint report of Drs. Fellner and

Baldwin Justice, Fred Fellner, and Malcolm Guidry are irrelevant because they apply

an improper method of valuation and/or compensation. The Court disagrees.

Even if evidence satisfies the requirements of Rule 702, “[o]ther evidentiary

rules, such as Rule 403, may still operate to exclude the evidence.”42 Under Federal

Rule of Evidence 401, evidence is relevant if it has any tendency to make a fact more

or less probable than it would be without the evidence, or if the fact it seeks to prove

is of consequence in determining the action.43 While all relevant evidence is

admissible, the Court may exclude relevant evidence if its probative value is

substantially outweighed by danger of “unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.”44 However, the Fifth Circuit has held that, “[t]he exclusion of evidence

under Rule 403 should occur only sparingly.”45 Additionally, “[r]elevant evidence is

inherently prejudicial; but it is only unfair prejudice, substantially outweighing

probative value, which permits exclusion of relevant matter under Rule 403.”46

District courts are afforded wide discretion in determining the relevance and

admissibility of evidence under Fed. R. Evid. 401 and 402.47 A district court’s ruling

on evidentiary issues is reviewed by an appellate court for an abuse of discretion.48

Guidry are products of unreliable methodology under Rule 702. See R. Docs. 59, 84, and 87. A mere

assertion, with nothing more, is insufficient to challenge the underlying methodology of the expert

reports.

42 U.S. v. Posado, 57 F.3d 428, 435 (5th Cir. 1995)(citing Daubert, 509 U.S. at 595).

43 Fed. R. Evid. 401.

44 Fed. R. Evid. 403.

45 United States v. Pace, 10 F.3d 1106, 1115-16 (5th Cir. 1993); See United States v. Powers, 168 F.3d

741, 749 (5th Cir. 1999) (same).

46 Pace, 10 F.3d at 1115-16 (quotation omitted).

47 Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).

48 Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 356 (5th Cir. 1995).

Thus, when the district court conducts “a carefully detailed analysis of the

evidentiary issues and the court’s own ruling, appellate courts are chary about

finding an abuse of discretion.”49

Here, the Court finds that both the expert report of Baldwin Justice, along with

Drs. Fellner and Guidry’s joint report, are relevant to the issue of damages. All three

experts opine on the valuation of the land taken by LAILD, and their reports will

assist the jury in understanding the appropriate amount of compensation, if any,

owed to CMP. Moreover, the Court finds that the testimony based on the expert

reports do not present a danger of unfair prejudice, will not confuse the issues, or

mislead the jury. In a previous Order and Reasons, the Court has found that LAILD

engaged in an unconstitutional partial taking of CMP’s property and determined that

CMP is entitled to recover damages pursuant to the theory of inverse condemnation

under Louisiana law.50 Specifically, the Court reasoned that CMP would be entitled

to present evidence relating to the “highest and best use” of the taken property,

severance damages, and fair market value of the property.51

The Court’s determination as to the legal standard for any damages undercuts

LAILD’s argument, as such evidence is relevant for the jury in deciding the factual

determination of damages. Because CMP’s expert reports enumerate damages

consistent with those categories, the Court declines to exclude the testimony of the

49 Id.

50 R. Doc. 106.

51 Id.

experts as to their expert reports under Rule 403.52 Importantly, to the extent that

any portion of the reports are inconsistent with the Court’s legal determination of

appropriate damages for a partial taking as set forth in detail in the Court’s previous

Order and Reasons,*? the experts will be precluded from testifying as to those

inconsistent parts of the reports. Finally, as appropriate in our justice system, LAILD

may use cross-examination, its own experts, or argument to the jury to counter the

testimony of CMP’s experts.

IV. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that the Motion in Limine and Daubert/Article

702 Motion to Exclude Plaintiff's Expert Testimony Applying an Improper Measure

of Compensation for Appropriation®! is DENIED.

New Orleans, Louisiana, January 22, 2026.

WENDY B. bes

United States District Judge

52 The Court has separately deferred its ruling as to whether both arborists, Drs. Fellner and Guidry,

may testify or whether allowing both to testify would be a waste of time and present needless

cumulative evidence. See R. Doc. 108.

53 R. Doc. 106.

54 R. Doc. 59.

11