United States Court of Appeals,

Fifth Circuit.

No. 95-60387

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

14.38 ACRES OF LAND, MORE OR LESS SITUATED IN LEFLORE COUNTY, STATE OF

MISSISSIPPI, Defendant,

and

Joseph C. COKER, III, Defendant-Appellant.

April 18, 1996.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

In this eminent domain action, the district court granted the Government's motion in limine

to exclude expert testimony regarding severance damages claimed by appellant, Joseph Coker, III,

as a result of the Government's taking of an ea sement over a portion of his property. Having

excluded the testimony, the trial court issued a final judgment awarding Coker an amount stipulated

to by the parties solely as just compensation for the porti on of the property subject to the easement

and an uneconomic remnant. Because we find that the trial court abused its discretion in excluding

the expert testimony concerning the alleged decrease in value of the remaining property as a result

of the Government's taking, we vacate the district court judgment and remand for further proceedings

consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

James C. Coker, III, owns approximately 350 acres located along the Yazoo River in Leflore

County, Mississippi. The property, part of a tract bought by his family in 1935, contains Coker's

residence and out- buildings, and is used for the farming of cotton, soybeans and corn. In 1938,

private landowners constructed a levee that protected the majority of Coker's property from risingwaters of the Yazoo River. The levee has since been maintained by area landowners and government

entities, including the Leflore County Board of Supervisors and the Uni ted States Arm y Corps of

Engineers.

In order to build a new levee in connection with the Upper Yazoo Project, the United States,

on May 20, 1992, filed a complaint and declaration of taking in the Northern District of Mississippi

to condemn 14.38 acres of the Co ker pro perty along its western and northern boundaries. The

property was taken for the public purpose of providin g "flo o d control in Yazoo River Basin,

Mississippi, and for other uses incident thereto, in connection with the construction, operation and

maintenance of the Upper Yazoo Project as part of the Yazoo Basin Headwater Project, Upper River

Basin, Mississippi...." Record at 2 (Complaint ¶ 3). The estate taken by the Unit ed St ates is a

perpetual and assignable right and easement in the land to construct, maintain, repair, operate, patrol

and replace a flood protecti on levee, public roads and highways, and public utilities, reserving to the

o wner such rights and privileges in the land as may be used without interfering with such o r

preexisting easements. Id. (Complaint ¶ 4). The location of the new levee places the remainder of

Coker's property on the unprotected side of the levee, between the levee and the Ya zoo Ri ver.

According to Coker, local, state and federal governments will no longer contribute to the upkeep of

the old levee, and the cost of maintenance will fall on Coker.

The United S t at es originally deposited with the court the sum of $12,500.00 as just

compensation for the easement, an amount subsequently increased by the sum of $3,150.00. Joseph

Coker appeared to assert his interest in the determination of just compensation for the taking,

contending primarily that the construction of the new levee has decreased the value of his remaining

property because the apparent increased likelihood of flooding on the land has lowered its market

value.

In his Exhibit and Witness List, Coker listed himself, Rip Walker , James Hooper, Rogers

Varner and Bill Roberts as his anticipated or possible witnesses at trial. R. at 263-64. Pri or to the

trial of this matter, however, the Government filed a motion in limine to exclude expert testimony

by Rogers Varner and Rip Walker, Coker's engineering and real estate appraisal experts, respectively.Varner is a civil engineer who received a Bachelor of Science degree in Civil Engineering from the

University of Mississippi and a Masters of Engineering from Tulane University and who previously

worked as a civil engineer for the United States Army Corps of Engineers. He stated in his expert

report that based on his review of United States Geological Survey maps, data fro m the Corps of

Engineers regarding past flood events, and aerial photographs, Coker's property

, located entirely on

the unprotected side o f the new levee, was more likely to be damaged in a major flood than in

pre-project conditions, and that his inspection of the old levee revealed that it was in a state of failure

in parts and that it could not be repaired. In the event a flood breached the failing old levee, Varner

opined that the new levee system would insure that water would pond and stand on Coker's property

.

Walker, who is licensed as a real estate broker in Mississippi, certified as a real estate app r aiser in

Mississippi and Tennessee, and is a member of the Appraisal Institute, explained in his report that a

potential buyer of Coker's property would immediately note its location on the unprotected side of

the levee, as well as the fact of th e levee's construction, and would perceive that the property was

likely to flood, despite the Corps o f Engineer's position that its channelization of the river would

reduce the water level in the river and thus decrease the likelihood of floo ding. Because of thi s

perceived risk of floodi ng, Walker concluded that the property's market value had decreased as a

result of the taking. Based largely on his analysis of sales o f agricultural land on protected and

unprotected sides of levees, as well as discussions with other appraisers, brokers and lenders, Walker

concluded, in part, that the lands used for cotton farming would now be marketable as less valuable

soybean-farming property

, and that the risk of flooding would decrease the value of the residence by

appr o ximat ely $20 per square foot or require the construction of a ring levee around the house

costing approximately $60,000.

The district court granted the Government's motion in limine. The court concluded that the

expert opinions of Varner and Walker lacked sufficient foundation under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), finding that these

expert opinions "are speculative and not based on reliable foundations and thus would be of no aid

to the finder of fact in determining just compensation in this case." 884 F.Supp. 224, 2271 Although Coker clearly proposed in his pretrial witness list to introduce other testimony,

including his own, the district court does not appear to have considered this proposed testimony

in concluding that Coker had not met his evidentiary burden of proving a diminution in value of

the remainder of his property. Coker, however, does not raise the court's omission in this respect

as error.

2 The trial court reserved ruling on Coker's motion in limine to exclude anticipated testimony

of the Government. (N.D.Miss.1995). In reaching this determination, the lower court appears to have focussed on the

uncertainty that both experts expressed about the extent of flooding on Coker's property in the event

of heavy rainfall. I

d. Having excluded expert testimony on the value of Coker's property, the district

court concluded that no competent evidence remained to be considered and therefore Coker could

not meet his evidentiary burden in demonstrating a diminution in the value of his property

. 1 I d. at

228. The court consequently entered judgment in favor of Coker for $17,134.00, an amount

stipulated to by t he part ies as just compensation for actual damages for the land taken and an

uneconomic remnant. 2

DISCUSSION

Under the Fifth Amendment's takings clause, private property may not be taken for a public

purpose without "just compensation." U.S. Const. amend. V. Just compensation, as defined by the

Supreme Court, "includes all elements of value that inhere in the prop erty, but it does not exceed

market value fairly determined." O lson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78

L.Ed. 1236 (1934). In this case, a partial taking has occurred, as the Government has acquired an

easement over a porti on of Coker's property

. When the Government has physically acquired through

its eminent domain powers a porti on of a distinct tract of property

, "the compensation to be awarded

includes not only the market value of that part of the tract appropri ated, but the dam age to the

remainder resulting from that taking, embracing, of course, injury due to the use to which the part

appropriated is to be devoted." U nited States v. Grizzard, 219 U.S. 180, 183, 31 S.Ct. 162, 163, 55

L.Ed. 165 (1911). The proper measure of damages in such a case is the difference between the value

of the par ent t ract before the taking and its value after the taking. U nited States v. 8.41 Acres of

Land, Situated in Orange County, State of Texas, 680 F.2d 388 (5th Cir.1982).The d ist rict co urt acknowledged these basic legal precepts, but concluded that the expert

testimony proposed to be introduced by the appellant was so lacking in reliabilit y that it should be

excluded from evidence. Although a t rial court is accorded a wide berth to determine the

admissibilit

y of expert testimony, Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th

Cir.1991) ( en banc ) (

per curiam ), cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 506

(1992), we conclude that in this case the district court abused its discretion in excluding the

testimony.

Under the Federal Rules of Evidence, a qualified expert witness may testify "[i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue...." F E D .R.E VID

. 702. The trial court is charged with making initial

determinations as to the admissibilit y of evidence. F E D .R.E VID . 104(a). However, in determining

the admissibilit

y of exper t t estimony, the district court should approach its task "with proper

deference to the jury's role as the arbiter of disputes between conflicting opinions. As a general rule,

questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that

opinion rather than its admissibility and should be left for the jury's consideration." Viterbo v. Dow

Chemical Co., 826 F.2d 420, 422 (5th Cir.1987). This is especially true in an eminent domain action,

in which "[e]xpert opinion testimony acquires special significance

... where the sole issue is the value

of condemned property ." U nited Stat es v. 68.94 Acres of Land, More or Less, Situate in Kent

County, State of Delaware, 918 F.2d 389, 393 (3rd Cir.1990). As the 6 8.94 Acres court observed:

The value of property taken by the Government, which is no longer on the market,

is largely a matter of opinion. Since there are no infallible means fo r determining with

absolute conviction what a willing buyer would have paid a willing seller for the condemnee's

property at the time of taking, eminent domain proceedings commonly pit the Government's

valuation experts against those of the landowner. Thus, the exclusion of one or all of either

party's proposed experts can influence substantially the amount of compensation set by the

factfinder. Not only does the landowner have a strong interest in receiving just compensation

for property

, the public as well has vested interests in insuring that the Government does not

pay more than what the owner justly requires. Recognizing the critical role o f expert

witnesses in these cases and the strong interest on both sides that compensation be just, trial

courts should proceed cautiously before r e moving from the jury's consideration expert assessments of value which may prove helpful.

Id.

In this case, the district co urt determi ned that pursuant to the Suprem e Court's recent3 Daubert expressly limited its discussion to the admissibility of scientific expert testimony. See

id. at ---- n. 8, 113 S.Ct. at 2795 n. 8; see also United States v. Sinclair, 74 F.3d 753, 757 (7th

Cir.1996) ( Daubert

provides a method for evaluating the reliability of witnesses who claim

scientific expertise."); Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2nd Cir.1994)

( Daubert sought to clarify the standard for evaluating "scientific knowledge' for purposes of

admission under F ED .R.E VID . 702."). decision in D aubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 12 5

L.Ed.2d 469 (1993), the proposed expert testimony of Rogers Varner and Rip Walker was based on

too flimsy a foundation to be admissible. The court found the testimony to be "speculative" because

both witnesses were tentative about the possibility of flooding on Coker's property and observed that

even so-called "anticipated damages" must be based on "substantial data then available." 884 F.Supp.

at 227. We think t hat the district court applied too stringent a reliability test in this regard. In

Daubert, the Supreme Court held t hat t he common-law, "general acceptance" test for the

admissibility of novel scientific evidence articulated in Frye v. United States, 54 App.D.C. 46, 293

F. 1013 (1923), did not survive the advent of the Federal Rules of Evidence, and articulated standards

for determining the reliabilit y of scient ific expert testimony for purposes of admitting the evidence

at trial. 3 The case did not otherwise work a seachange over federal evidence law. S ee United States

v. Sinclair, 74 F.3d 753, 757 (7th Cir.1996) (" Daubert does no t create a special analysis for

answering questions about the admissibilit y of all expert testimony."). Rather, Daubert articulates

what the Federal Rules of Evidence, as well as a trial court's traditional role, already required—that

the trial court engage in the initial "gatekeeping" task of establishing whether proffered evidence is

sufficiently reliable and relevant, and thus presumptively admissible unless excludable on some other

ground. S ee Daubert, 509 U.S. at ----, 113 S.Ct. at 2799 ("the Rules of Evidence

... do assign to the

trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is

relevant to the task at hand."). As the Court in D aubert makes clear, however, the trial court's role

as gatekeeper is not intended to serve as a replacem ent for t he adversary sy stem: "Vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof

are the traditional and appropriate means of attacking shaky but admissible evidence." D aubert, 509

U.S. at ----, 113 S.Ct. at 2798.In this case, the experts' inability to predict the extent of flooding to Coker's property as a

result of future heavy rains does not render their testimony entirely speculative and therefore

unreliable for purposes of admissibilit y. Indeed, common sense suggests that the Government would

not have gone to the expense of taking private property and erecting a levee for the purpose of "flood

control in Yazoo River Basin" were the possibility of flooding in the area m ere "speculation and

co njecture." That prospective buyers of the property would have an increased fear of flooding,

thereby decreasing the market value of the property

, is a matter that th e fact finder may properly

consider in assessing the diminution, if any, of the property's value. In United States v. Robertson,

354 F.2d 877 (5th Cir.1966), this Court recognized the viability of claims for severance damages

based on the likelihood that prospective buyers would fear hazards arising from the Government's use

of condemned property. In that case, the Court observed:

Causes of diminution of market valu e, the construction of powerline carrying high

voltage electricity across a tract of land which create in the general public fears which make

the property less desirable and thus diminish the market value of the property are proper to

be considered, though as a separate item of damage might be too speculative and conjectural

to be submitted to the Court.

Id. at 881 (citations omitted); s ee also United States v. 33.5 Acres of Land, More or Less, in the

County of Okanogan, State of Washington, 78 9 F.2d 1396 (9th Cir.1986) (permitting severance

damages based on threatened invasion of knapweed); U nited States v. 760.807 Acres of Land, More

or Less, Situate in the City and County of Honolulu, State of Hawaii, 731 F.2d 1 443, 1447 (9th

Cir.1984) ("if fear of a hazard would affect the price a knowledgeable and prudent buyer would pay

to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part

of just compensation."); U nited States ex rel. TVA v. Easement and Right of Way, 405 F.2d 305, 309

(6th Cir.1968) ("In the final analysis, we are c o ncerned only with market value. Although these

studies may show objectively the complete safety of these structures, we are not co nvinced that

certain segments of the buying public may not remain apprehensive of these high voltage lines, and

therefore might be unwilling to pay as much for the [adjacent] property as they otherwise would.");

United States v. 2,877.37 Acres of Land in Harris County, Tex., 52 F.Supp. 696, 702 (S.D.Tex.1943)

(testimony to show severance damages based on "mental hazards" arising fro m fear o f harm from4 Varner presently is employed as a commodities broker and the Government suggests that his

qualifications as an expert are "seriously questioned." The trial court did not determine that

Varner is unqualified, and as he is a registered professional engineer, with both a bachelors and

masters degree in engineering, it would seem that while Varner's present career may be fodder for

cross examination, it hardly constitutes grounds for finding him unqualified to testify. dams or levees built by government properly admitted); F lorida Power & Light Co. v. Jennings, 518

So.2d 895, 898 (Fla.1987) ("[w]e join the majority of jurisdictions who have considered this issue

and ho ld t hat the impact of public fear on the market value of property is admissible without

independent proof of the reasonableness of the fear."); R yan v. Kansas Power & Light Co., 249 Kan.

1, 815 P.2d 528, 533 (1991) (evidence of fear in marketplace admissible regarding value of property

wi thout proof of reasonableness of fear); C ity of Santa Fe v. Komis, 114 N.M. 659, 845 P.2d 753,

756 (1992) (same); C riscuo la v. Power Authority of the State of New York, 81 N.Y.2d 649, 602

N.Y.S.2d 588, 589, 621 N.E.2d 1195, 1196 (N.Y.1993) (same); H eddin v. Delhi Gas Pipeline Co.,

522 S.W.2d 886, 888 (Tex.1975) (fear in minds of buying public that is based in reason or experience

is relevant to proof of damages for depreciation of market value caused by fear).

V arner's opinion that flooding of the property is now more likely is based on his review of

maps, photographs and data, and his inspection of the property

, as well as his experience as a civil

engineer. 4 Walker's valuation of the property, predicated on the threat of flooding suggest ed by

Varner's opinion and the fact of the levee's existence itself, is based on his inspection of the property ;

discussions with other appraisers, brokers and lenders; comparable sales; and his experience as a real

estate appraiser. The Government contends these bases are insufficient. It argues that Varner's

explanations of the effects of the new levee are "v ague" and based on mere "possibility;" that

Walker's conclusion that the property can no longer be sold for cotton farming is belied by Coker's

continued producti on of cotton; that the fact that the property may exist in a floodplain has not been

altered by construction of the new levee; and that Walker's comparable sales, because based on the

assumption of flooding, are not truly comparable. The perceived flaws in the testimony of Coker's

experts are matters properly to be tested in the crucible of adversarial proceedings; they are not the

basis for truncating that process.

DECREEFor th e fo rego ing reasons, the judgment of the district court is vacated and the matter is

remanded for further proceedings not inconsistent with this opinion.