goods theory that provided the foundation for the district court's reduction of after condemnation value of both properties fifteen percent for the beach or property on the one hand thirty percent for the pontius property on the other that was the sole support for the reduction in value adds the district court's opinions made clear and we submit and the record shows that there is no that the testimony of an expert is not founded on doubt it comes out of the case but rather devolves into a personal subjective opinion this court has said starting with united states versus down g judge becker's opinion that became the foundation for dauber up through paoli to t m i and beyond that where the record reveals a personal subjective opinion from an expert no to be appropriate i years your qualms with the way they've they've they've been proven here thought to be proven here that's correct your honor stigma obviously is something that is part of appraised value in condemnation cases it exists in a variety of contexts and we don't dispute that it could be hypothetically possible that it could form part of a buyer's perception in an underground pipeline case the problem here is that there isn't any foundation for that happening for this purchase with these easements in this record and all the cases that the other side has reli that the trial court pointed to in the footnote and it's opinion you will see in studying those cases that there is that factual foundation in those cases there are surveys or there is testimony from or there is focus groups or there are comparable sales some sort of foundation as the appraisal standards would require that provide the link to the stigma  has to be that foundation in the record and it has to be not speculation but we know from mr scheer's admissions that he was speculating he said it over and over again we know that mr scherer can't point to any market data in this case as the foundation for his opinion he said it we know his comparative methodology to t m i to exxon valdez and to the lusts situation isn't connected to this case he said so we end up in the place that this court has many times with the personal opinion that there should be stigma here with some degree of  stigma conclusions because he couldn't find any foundation for it and certainly whether appraised value might be inexact it might be a matter of educated  certain instances something has to provide the foundation for the gas or the educated guess or the opinion or the into it or the common sense you can't just say because the expert says it so that's enough but that's what's going on in this case and that's the principle distinction from this case and the other cases here when we unpack  sheers testimony we don't find any link to either a fear of factor as it relates to these easements or a reduction a value factor as it relates to these on this record so it's not a matter hypothetically of whether stigma is possible it might even be a matter of into it that in an underground pipeline case you could have a stigma we aren't disputing either of those points the focus here is when this case was that link made with hard data that related to these easements well if you embrace the notion that common sense and intuition would would be sufficient to create some diminution in value of the property then why wasn't the district court titled to rely on its its indeed be intuitive that there could be as i said stigma or a reduction in value in an underground hope one case but you have to get beyond that all the cases agree and the appraisal standards agree and even the expert witness here witnesses agree that you've got to have a factual foundation to carry through on any notion of  right so let me make myself perfectly clear here if we're talking only about into it we're commonsense in the abstract as you and i might feel it as non experts that is not enough that's the problem we do have to take the next step and in order to get from they are to statement and a reduction in value in a particular case we need competent expert testimony number one so we had a qualified appraiser here and we need a factual basis that shows a fear of factor or a perception by the buying public and a reduction in value tied to that carlo in case after case there were eminently qualified experts testifying as mr scherer was in an area where expert testimony was required looking at what they had in the record to try to do what they didn't have it so they went outside the record to try it some other way when we focused on the other way here we find out that these case studies don't substantiate this opinion and we're back to speculation subjective speculation and personal opinion and that closes the case that has to be excluded once it has to be excluded the judge is more conservative g is still a guess and a guess without foundation as this court's opinion i enjoy says is vulnerable to a clearer view where refining is devoid of factual foundation as these reduction in values most certainly are it gets no credit the experts testimony has no probative value on the one hand and a lack of probative value can't be converted into fact by a judge relying on it on the other so we are left with the need to re man this case revamp this case with directions to the district court that stigma evidence is not admissible in the determination of value and we will leave ourselves with the appraisal testimony that's in the record apart from that in order to do it counsel do we need to address both that it will be i think they are linked  the answer is if you find that there was prejudicial error in the admission of the experts testimony which there was you can reverse if you find that the under rule fifty to the district judges finding reduction in value were devoid of support in the record you can reverse for that reason as well in most of the cases one follows from the other and so we would encourage the court to say both things but then as i said importantly on remand not to allow this cake may have advanced to again pollute the underlying appraisal record in have the after value determined from the rest of the foundational testimony honor there isn't any debate in the case law or any disarray in the case law federal or state that speculative expert testimony that's based on subjective opinions that aren't grounded in the record should be excluded we don't need to have that fleshed out on remained and the wise dam case that we cited indicates that if we find this testimony support they wanted from the inception of this case for the expert testimony through the reports and otherwise this was a tactical election that they made to stand on the record that they case that we've cited from this course indicates there's no reason to let them go to school find out that they need to redo and then give them a redo standards are not a mystery they were known and the appraisal standards are not a mystery they were known they should be bound by that tactic don't we need to redo in any event given  no i don't think we do your honor for the issues that we're talking about here it could be that on the valuation with the rest of the record praise testimony on reading man tennessee gas could have a role to play in setting the definition of fair market value but for purposes of the elimination of stigma those are federal issues as we've said it's conceded the tennessee gas doesn't play a role there and for the purpose of state or federal law harley davidson tells us that state law and federal law are in ethical poise here that is that speculative expert testimony will not be admitted on stigma issues in condemnation cases in the the reduction in value based on a stigma there is testimony from the owners some of it non speculative although with respect to stigma it clearly was and and there's mr bellew is testimony so we have appraisal evidence before and after in the record that was made by the parties to trial so our position would be have the judge read examine that and see where it comes out divorced from any stigma issue not as i understand it your honor i think that fit issue is very much a relevance in currying here it is a do the case studies that the expert applied to create his damaged good theory and untested theory i ply my dad to do they connect to this case are they relevant do they fit for exxon bell b s he said no when asked for lust's he said no when asked for t m i he said when  asked i can't connect it to this case so that is very standard no fit under d'albert as this court has construed it from a relevant standpoint and what about the standard of to for lack of quote competent evidence is that competent evidence standard anything different than looking at all fifty two dollars and i said no to no the point is that there has to be probative evidence or something with evidentiary value to support the finding that's under attack were added the record is devoid of that support this court in its review role can reverse and should reverse that's the it's a limited function but it's a clear one from this court's case law property and because of the stigma associated with having a natural gas pipeline installed on the property so the judge relied upon this reduced buildable area and stigma so we can put aside the damaged goods and you know that is  here was that he looked at the situation he was pending we were pending this decision of the upper court to apply play federal or state law so he instructed us in try your case he wasn't sure during the trial what he was going to  decide so he allowed the parties to proceed with evidence to satisfy both the federal requirements and the state law requirements so that eliminates i believe that the need for e mand that's how the judge handled it then when the judge decided t the media we straight that that's a provision that defines the before and after test in state law that matches federal law so that's what the no two does but then as we look at it what is to be the evidence to be which the expert considered whether or not the expert has personal knowledge so this is the the clear definition of what is evidence to come in to support this fundamental th amendment right i'm just compensation disagree respectfully disagree with that your honor and if we look at the evidence here i think it's there is facts and down it and there is a valid basis for it begins with the report if we look at  and eighty eight dollars we have the appraiser's report describing stigma as a valid concept for the dictionary of real estate appraisal and what he described as the bible the appraisal realty appraisal as being supporting the the premise of stigma being a ballot in need concept to value a property within real estate he then goes on to the next page and  did large scale studies and both the team i study and also as a study of the exxon buildings so he did this time he didn't attach those reports he didn't describe in detail that data but he explained how that the data from that the facts and data of those studies oh you gave the support for there being stigma and there being stigma in this case see the analogy of stigma there makes sense here here we have explosive natural gas under high was a little quirky or a lot of maybe too good to give you admissions but if you look at his testimony their record is full of his testimony of supporting stigma and explaining it and explaining how it applies to this case in the risk of explosion he did that with extensive testimony in the more spider matter at length we have his testimony explaining how the stigma would would chill the value of property or reduce  in there is the analogy in comparison of looking at the influence on market value looking at the market value and that's the test of the of the gold standard of what the producers looking at so he court make findings as to what it what and so that a twenty two and had the witness acknowledge or explain some of the stigma and with that the judge was free to accept the parts of the sheer testimony that supported stigma and the th to this this case the judge looked at these reports before the matter was in trial and proceeded to review these and rule on the motion and in doing so he described that he saw he saw the fit and the relevance and that's in his motion where he ruled upon the consider review of the appraisals what you do to elicit a let's close appraisal reports that you saw a deficiency i believe in the report of the appraiser appraisal for u g i and it didn't even appraise the right thing the clear standard under federal state law is before and after test and that's what mr scherer did using the full concept of stigma and the best efforts which is really what what's all that's required by harley davidson and the judge saw that as a fit to case he saw in his conclusion he didn't state it as a fit of the analogy but by his language in the order of describing that there is a fit he can sit her down birth and other cases he his conclusion was to let this evidence in he let our evidence in he let their evidence and they didn't appraise before and after they just in the after situation appraise the value of the east thereby intentionally ignoring the harm to the remainder  material in the middle of the property the judge saw that as a fit and the judge has broad discretion to have to admit evidence i think he was required to the admit the evidence under the harley davidson hair and i think the standard that we ply is harley davidson not seven o two no matter here we're playing state substantive law and that tells us to mit to admit all the facts and down to the test as reviewed harley davidson at page two hundred and eighty nine dollars includes while the experts opinion and he's talking about sigma here but the experts opinion may not be based upon pure conjecture we conclude that appraisal experts best effort to quantify reduction of property value as a result of subjective and intangibles big stigma is permissible commercial property he reduced the damages from sixty percent to thirty percent so you know perhaps you know stink stigma six sneaks its nose under the tent here but that's not what the judge  drove the judge's decision there's extensive testimony of the property having reduced size for commercial purposes and that's what you know what i think the judge had in mind it's not abuse of discretion here for the judge to pick and choose from from the evidence the judge noted he has a broad discretion he explained what he was doing and i think he was on target with the federal law and even more on target as we look at the federal law that requires the admission of this evidence and while there were maybe contradictory testimonies from mr scherer there certainly is evidence a competent evidence of record thank you counsel thank you bar the nd principle of deference i think this court should bear in mind is that dobber and the case is decided in its way to actually create a strong preference for admission of expert testimony that may have a questionable basis  the outright exclusion of expert testimony because it has a shaky foundation is not what dobber envisioned so accordingly in line with these two principles this court's task is not whether to decide whether your testimony reached the correct conclusion and it is also not to decide whether it was appropriate to admit this evidence as it matures testimony as evidence in the st place rather the corps siding with the judge grant abuse i asked him it's the he's he's picking the sound crazy and well it's completely subjective at that point shouldn't when when the motion was renewed excludes tax money why should it have been granted at that time i think that if you take that remark in context what yours is saying there at that point in the trial when he was explaining that in general when an expert real estate appraiser goes about deciding what the stigma will be it's not a precise dobber is not supposed to be a substitute for the adversary process i mean what happened here in these trials actually conforms exactly with what gobert envision which is that expert testimony with an arguable basis that the damage is takes account of the standards that prevail in the in the relevant field of expertise we're here talking about real estate appraisal which is not an exact science and real estate appraiser are often called upon to make appraisals in situations where there are not comparable sales to provide hard data that supports things like stigma damages at this point you're not defending the the the presentation of the the damaged goods theory  it just simply doesn't make sense to contend that these these incidents of environmental contamination bear no relation to a pipeline is met because the point of these of these examples is that the occurrence of actual contamination own opinion was that while they be attacked they may also be temporary and over time may not have an effect on value where the district court doesn't acknowledge that or make any findings into its valuation opinion and whether that whether the damage is permanent was mr scherer did not say that the damage would be temporary in this instance and just because he didn't specifically opine as to whether would be temporary i think you can domain taking its cases there's a case called u s p sixty eight point one four acres of land where this court knows the special significance of expert valuation opinion in eminent domain cases that center on the value of the property property is largely a matter of expert and it's largely i don't know the language in front of me oh yes i mean there is language from the court there are no infallible means for determining with absolute conviction what a willing buyer would have paid a willing seller for condemned property it's always in the nature of informed judgment call and that's why you need expert has one million cases like this so this special principle and then see if i visit case combined with dahlberg strong preference for admission of expert testimony should question of the disposition and whether there should be a new trial for damages i that that was something that there was explicitly requested in in the previous brief i was not on behalf of your client that would give guidance the district court on what kind of expert testimony is admissible in these pipeline isn't cases it simply doesn't make sense if the court doesn't agree with us to not allow us to try and follow that ruling through finding a new expert thank you as applied to property but there is no immunity for appraisers from the standards in delbert as applied to the record and here in mr schippers reports or in his testimony if there is no factual link to these particular easements as far as the reduction and value is concerned or stigma that perception was his own personal opinion that that's where it ended up we know his opinion is speculative because he admitted to it we know it isn't grounded in market data because he said so we know the appraisal case studies are not  comparable because he said that too and finally as the court acknowledged we know that this is an untested and verified st time in litigation sort of of damage good notion this is exactly what  there is still a function for this court in reviewing to look at the fact finding process of the of the district court and when we examine that fact finding process here we find that this reduction in value piece for stigma is devoid of any factual support in the record or not it's not rationally related to any data that's linked to the specific facts of this case that it's vulnerable for that  verdicts lastly on harley davidson the important piece of harley davidson is that the court says speculative expert testimony on statement will not be admitted the reason the testimony was admitted in harley davidson it is very different in this case there are there was actual environmental contamination and that expert testified to standards that related to environmental contamination the court also found that there was no impermissible factors consider and no speculation in the experts testimony at all ok the difference here is we don't have any of that and the more pertinent case is the one i said the buffalo township opinion and smith were the court took harley davidson and said when we apply that to an underground pipeline we're statement is simply a matter of speculation and the experts say so that testimony should be excluded it's incompetent it's not admissible that's the result that should have happened