In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L

(Filed: April 29, 2022)

Takings case; preparations for trial of just 

compensation for taking of permanent 

flowage easement; motions in limine, for 

protective order, and for leave to use 

deposition testimony at trial. 

Daniel H. Charest and E. Lawrence Vincent, Burns Charest LLP, Dallas, Texas, Charles 

Irvine, Irvine & Conner PLLC, Houston, Texas, and Edwin Armistead Easterby, Williams Hart 

Boundas Easterby, LLP, Houston, Texas, Co-Lead Counsel for Upstream Plaintiffs. 

Kristine S. Tardiff, Trial Attorney, Environment & Natural Resources Division, United 

States Department of Justice, Washington, D.C., for defendant. With her on the briefs were 

Todd Kim, Assistant Attorney General, and Laura W. Duncan, Frances B. Morris, and Samuel R. 

Vice, Trial Attorneys, Environment & Natural Resources Division, United States Department of 

Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

In anticipation of trial, pending before the court in this Fifth Amendment takings case are 

eight motions in limine, two motions for protective order, two motions for leave to use 

deposition testimony, and a motion to amend plaintiffs’ master complaint and designate coowners as test property plaintiffs. Six motions in limine were filed by plaintiffs—who are 

property owners upstream of the Addicks and Barker Dams in the Houston, Texas area that 

experienced flooding during Tropical Storm Harvey—and two motions in limine were filed by 

defendant United States (“the government” or “United States”).1

 Each motion in limine seeks to 

1 For convenience and clarity, plaintiffs’ motions in limine are: Pls.’ Mot. in limine re 

Frank Lucco (“Pls.’ Lucco Mot.”), ECF No. 451; Pls.’ Mot. in limine re Dan Leistra-Jones 

(“Pls.’ Leistra-Jones Mot.”), ECF No. 452; Pls.’ Mot. in limine re John Postava (“Pls.’ Postava 

Mot.”), ECF No. 453; Pls.’ Mot. in limine re Co-Tenants (“Pls.’ Co-Tenants Mot.”), ECF No. 

454; Pls.’ Mot. in limine re Offsets (“Pls.’ Offsets Mot.”), ECF No. 455; and Pls.’ Mot. in limine 

re David LaRue (“Pls.’ LaRue Mot.”), ECF No. 472.

IN RE UPSTREAM ADDICKS AND 

BARKER (TEXAS) FLOODCONTROL RESERVOIRS 

THIS DOCUMENT APPLIES TO:

ALL UPSTREAM CASES
2

exclude evidence from the trial scheduled to begin May 31, 2022. Plaintiffs have also filed a 

motion for leave to use deposition testimony in lieu of live testimony at trial. See Pls.’ Mot. to 

Use Depo. Test. of Def.’s 30(b)(6) Witnesses (“Pls.’ 30(b)(6) Dep. Mot.”), ECF No. 468.2 The 

government has also filed two motions for protective orders to prevent plaintiffs from calling one 

of the government’s experts in their case-in-chief, see Def.’s Mot. for Prot. Order as to Frank 

Lucco, ECF No. 484, and to prevent plaintiffs from calling Rule 30(b)(6) deposition designees as 

representatives of the United States at trial, see Def.’s Mot. for Prot. Order as to Rule 30(b)(6) 

Witnesses (“Def.’s 30(b)(6) Prot. Order Mot.”), ECF No. 489. The motions have been fully 

briefed, and a hearing was held on April 19, 2022. The motions are ready for disposition. 

BACKGROUND3

The impetus for this case was the damage caused when the Addicks and Barker Dams 

“collected storm water [from Tropical Storm Harvey] in their respective reservoirs[,] extending 

beyond government-owned land[ and] causing private properties upstream but within the 

reservoir to flood from the impounded water.” In re Upstream Addicks & Barker (Texas) FloodControl Reservoirs, 157 Fed. Cl. 189, 193-94 (2021) (internal alterations omitted) (quoting In re 

Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219, 227 (2019)). 

Numerous private residences were flooded, both upstream and downstream of the dams. The 

first related complaint was filed on September 5, 2017, with hundreds of similar cases following 

The government’s motions in limine are: Def.’s Mot. in limine re Randall Bell & Phillip 

Bedient (“Def.’s Bell & Bedient Mot.”), ECF No. 432, and Def.’s Mot. in limine re Temporary 

Taking (“Def.’s Temp. Taking Mot.”), ECF No. 486.

Another motion and cross-motion in limine regarded testimony related to an uncompleted 

study of the Buffalo Bayou, a feeder stream to the pertinent dams. The court granted the 

government’s cross-motion to exclude such evidence, except for final, public, or factual 

information. See Order of April 7, 2022, ECF No. 490.

2 Two other motions for leave to use deposition testimony were filed. One sought to use 

the deposition testimony of test property plaintiff Scott Holland pursuant to Rule 34(a)(4)(C) of 

the Rules of the Court of Federal Claims (“RCFC”). See Pls.’ Mot. for Leave to Use Depo. Test. 

of Scott Holland, ECF No. 471. The government did not oppose the motion, and the court 

granted that motion, see Order of April 6, 2022, ECF No. 488. 

The other motion seeks to use the deposition testimony of Donald Ward, an Internal 

Revenue Service senior appraiser, but the parties have reached an agreement that defendant will 

provide an authorization allowing Mr. Ward to testify. See generally Pls.’ Mot. to Use Dep. 

Test. of Donald Ward, ECF No. 467; Def.’s Resp. to Pls.’ Mot. to Use Dep. Test. of Donald

Ward, ECF No. 487. In light of the government’s willingness to make Mr. Ward available for 

live testimony, plaintiffs’ motion is DENIED AS MOOT. 

3 The following recitations do not constitute findings of fact by the court. Instead, the 

recited factual elements are taken from the relevant complaint and the parties’ briefs and attached 

appendices. 
3

suit. Id. at 194. Those cases were then consolidated into one master docket, which was then 

divided “into two sub-master dockets—one for downstream properties and, pertinent here, one 

for upstream properties.” In re Upstream, 146 Fed. Cl. at 228 (citations omitted).

Considering the volume of cases and associated complicated issues, the upstream cases

were bifurcated to deal with the issues of liability and damages separately. Id. To handle the 

upstream cases, the court used the multi-district litigation approach modeled upon 28 U.S.C. § 

1407. See In re Upstream Addicks & Barker, 157 Fed. Cl. at 194. “In the spring of 2018, 

thirteen plaintiff properties were designated to serve as bellwethers for the upstream cases. A 

ten-day trial was held in Houston, Texas, commencing on May 6, 2019, regarding the liability of 

the United States for the thirteen test properties. In December 2019, the court found the 

government to be liable for a taking of a flowage easement on the bellwether properties.” Id. 

(internal alterations, quotations, and citations omitted).4

 Specifically, the court found that 

plaintiffs were left with “a fee simple interest in their properties which allows them to continue 

their lawful use subject to the risk of occasional flooding.” In re Upstream Addicks and Barker 

(Texas) Flood-Control Reservoirs, 148 Fed. Cl. 274, 278 (2020). The court further held that the 

taking also encompassed “plaintiffs’ personal property, fixtures, and improvements damaged or 

destroyed by the flood” as a “consequential result of the flowage easement.” Id. The cases then 

moved forward to the discovery phase for the just compensation portion of the litigation. 

Expert discovery has closed, and the parties have entered the pre-trial stage for the just 

compensation portion of the bifurcated litigation. Each party now seeks to exclude certain 

evidence from the just compensation trial. The specifics of each motion will be outlined infra. 

The court’s task in addressing the motions is eased by the fact that some of the challenged

witnesses testified at the liability trial previously held.

ANALYSIS

A. Expert Testimony 

The Federal Rules of Evidence govern the admissibility of evidence in this court. See 28 

U.S.C. § 2503(b) (“The proceedings of the Court of Federal Claims shall be in accordance with 

. . . the Federal Rules of Evidence.”). When evaluating the admissibility of expert testimony, 

Federal Rule of Evidence 702 is controlling and provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, 

or education may testify in the form of an opinion or otherwise if: (a) the expert’s 

scientific, technical, or other specialized knowledge will help the trier of fact . . . ; 

(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 has reliably applied 

the principles and methods to the facts of the case. 

4 In December 2021, the court denied plaintiffs’ motion to certify a class as to liability, 

finding that the timing of the motion post-adjudication on the liability issue and the failure to 

satisfy the requirements of RCFC 23 made class certification inappropriate. See In re Upstream 

Addicks & Barker, 157 Fed. Cl. at 197, 202. 
4

Fed. R. Evid. 702(a)-(d). Pursuant to Federal Rule of Evidence 104(a), a trial judge must 

determine “at the outset” whether an expert witness is qualified or whether his or her opinions 

constitute admissible evidence. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 

(1993). “These matters should be established by a preponderance of proof.” Id. at 592 n.10 

(citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). 

In addition to its reliability, the court must also ensure the offered expert testimony is 

relevant. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert, 509 U.S. 

at 589. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than 

it would be without evidence; and (b) the fact is of consequence in determining the action.” Fed. 

R. Evid. 401. Rule 702 further requires that expert testimony “help the trier of fact to understand 

the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Even in the face of evidence 

that is both reliable and relevant, “[t]he court may exclude [such] evidence if its probative value 

is substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Fed. R. Evid. 403. While concerns of misleading the jury “are of lesser 

import in a bench trial, . . . the Daubert standards of relevance and reliability for [expert] 

evidence must nevertheless be met.” Seaboard Lumber Co. v. United States, 308 F.3d 1283, 

1302 (Fed. Cir. 2002).

Both parties have tendered motions to exclude testimony from several expert witnesses. 

The court will address the motions regarding each of these challenged witnesses in turn. 

1. Evidence and testimony from Dr. Randall Bell.

5

The government challenges the testimony of one of plaintiffs’ experts, Dr. Randall Bell. 

Dr. Bell is an appraiser whose expert report purports to “assess the impact, if any, of the U.S. 

Army Corp of Engineers flowage easement as a result of Hurricane Harvey flooding on singlefamily residential and condominium properties that were developed behind (upstream) the 

Addicks and Barker Dams.” Pls.’ Opp’n to Def.’s Bell & Bedient Mot., Ex. A at 21-22, ECF 

No. 433-1. It further states that it is a “mass appraisal” report. Id. at 21. The government 

challenges the relevancy of Dr. Bell’s opinion to the task before the court, i.e., to determine “the 

measure of just compensation due for the non-categorical taking of a permanent flowage 

easement on the six bellwether properties.” In re Upstream, 148 Fed. Cl. at 278. Specifically, 

the government contends that Dr. Bell’s opinion provides nothing more than an “unapplied mass 

appraisal formula” that goes beyond the scope of the trial by attempting to introduce a formula to 

be used against the government “on a mass basis in the future.” Def.’s Bell & Bedient Mot. at 5, 

9 (emphasis omitted). Plaintiffs maintain that Dr. Bell’s opinion is relevant to the determination 

of just compensation because he applied his formula to the six bellwether properties, producing a 

“range applicable to properties including (but not limited to) the six specific bellwether [t]est 

5 Dr. Bell also prepared a rebuttal report in response to the government’s experts. The 

government’s motion to exclude is limited to Dr. Bell’s primary report and associated testimony. 

Def.’s Bell & Bedient Mot. at 4 n.1.
5

[p]roperties” that represents the “detrimental effect on the value” of the properties. Pls.’ Opp’n

to Def.’s Bell & Bedient Mot. at 10, ECF No. 433. 

“Evidence is relevant if . . . it has any tendency to make a fact more or less probable” and 

“the fact is of consequence in determining the action.” Fed. R. Evid. 401; see also Fed. R. Evid. 

402 (relevant evidence is admissible unless barred by some source of law). Relevancy has a low 

threshold. See Daubert, 509 U.S. at 587 (“The Rule’s basic standard of relevance thus is a 

liberal one.”). Despite this low threshold, offered evidence must still be of consequence and of 

use to determining the action; Dr. Bell’s opinion runs the risk of being unduly cumulative. His 

opinion does not provide definitive guidance to the court on the value of the six bellwether 

properties before or after the flooding event. Rather, Dr. Bell provides a formula and a range of 

potential values for the properties at issue. Plaintiffs argue that it was impossible for Dr. Bell to 

provide exact numbers because the exact language of the easement has not been defined, see 

Pls.’ Opp’n to Def.’s Bell & Bedient Mot. at 8, but this did not stop plaintiffs’ other retained

appraisers from providing exact values, see Def.’s Reply to Def.’s Bell & Bedient Mot. at 10 n.6, 

ECF No. 439. Nonetheless, the threshold for relevancy is a low one, and the court cannot say 

Dr. Bell’s testimony is wholly irrelevant where it provides some guidance on the issue of 

compensation. 

Nonetheless, the court is empowered by the Federal Rules of Evidence to “exercise 

reasonable control over the mode and order of examining witnesses and presenting evidence so 

as to . . . avoid wasting time.” Fed. R. Evid. 611(a)(2). RCFC 16 similarly gives the court the 

power to “establish[] a reasonable time limit on the time allowed to present evidence.” RCFC 

16(c)(2)(O). Specifically, “[j]udges may impose limits only on specific components of the 

presentation of the case, such as the time that counsel may use for direct or cross-examination of 

[a] specified expert.” 3 James W. Moore et al., Moore’s Federal Practice § 16.77 (3d ed. 

2022).6

 Other courts have properly exercised this power to place a time limit on the direct 

examination of a specific witness. See, e.g., Clem v. Corbeau, 98 Fed. App’x 197, 205 (4th Cir. 

2004) (trial court did not abuse its discretion by imposing a forty-five-minute time limit on direct 

examination of witness); Watkins v. Pinnock, 802 Fed. App’x 450, 460 (11th Cir. 2020) (trial 

court did not abuse its discretion by imposing time limits on pro se plaintiff’s direct 

examinations in order to “properly manage the flow of the trial”); Rohrbaugh v. Owens-Corning 

Fiberglas Corp., 965 F.2d 844, 847 (10th Cir. 1992) (trial court did not abuse its discretion by 

limiting “direct and cross-examination of expert witnesses to thirty and forty-five minutes, 

respectively”). Such limitations are allowable so long as the court remains “flexible” in order to 

“exercise reasonable control.” Clem, 98 Fed. App’x at 205; Fed. R. Evid. 611. 

6 This observation was made within the context of discussing the court’s ability to 

address certain matters at the final pretrial conference. See id. In light of the discretion given the 

court by Federal Rule of Evidence 611, the court sees no reason that the court’s ability to impose 

specific time limitations should be constrained to the final pretrial conference. 

Inasmuch as RCFC 16 mirrors Fed. R. Civ. P. 16, the rules should be interpreted in pari 

materia.
6

Plaintiffs state in their Just Compensation Trial Witness List that they estimate their

examination of Dr. Bell to span two and a half hours. Pls.’ Just Compensation Trial Witness List

at 15, ECF No. 469-1. Due to the cumulativeness of Dr. Bell’s testimony as well as the 

unconventional nature of his methodology (which may be of limited value), direct and-redirect 

examination of Dr. Bell will be prospectively limited to one hour. Such a limitation will ensure 

plaintiffs are able to present the distinct aspects of Dr. Bell’s views while simultaneously 

allowing the court to forestall cumulative testimony and to ensure the proper flow of trial. 

2. Evidence and testimony from Dr. Phillip Bedient.

The government next challenges the testimony of Dr. Phillip Bedient, an expert in 

“hydrology, hydraulics, and flood plain analysis,” Def.’s Bell & Bedient Mot. at 15 (internal 

quotations omitted), who is expected to provide an opinion on “how frequently will the 

government exercise the truly expansive scope of rights it has taken.” Pls.’ Opp’n to Def.’s Bell 

& Bedient Mot. at 11 (emphasis omitted). The government argues that such testimony is 

irrelevant because it “does not speak to the market value of the bellwether properties” and that 

the “statistical analysis was unavailable and unknown to market participants in the residential 

housing market at or near the date of the taking.” Def.’s Bell & Bedient Mot. at 15, 17. 

Plaintiffs counter that Dr. Bedient’s testimony provides an opinion on the government’s 

frequency of use of the easement, which affects the value of the bellwether properties. See Pls.’ 

Opp’n to Def.’s Bell & Bedient Mot. at 11-12.

The Uniform Appraisal Standards for Federal Land Acquisitions (the “Yellow Book”)

(which govern federal appraisals of land) provide that 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.’” Yellow Book § 

4.6.2.2 at 158 (2016) (quoting United States v. 760.807 Acres in Honolulu, 731 F.2d 1443, 1447 

(9th Cir. 1984)). “There must be evidence ‘connecting the safety issue to the real estate 

market.’” Id. (quoting United States v. 87.89 Acres in Merced Cty., 530 F.3d 899, 905 (9th Cir. 

2008)). 

This court previously found “data relating to the risk of flood” to be discoverable. In re 

Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, No. 17-9001, 2020 WL 

3513552, at *3 (Fed. Cl. June 29, 2020). Plaintiffs bear the burden of proving market value of 

the bellwether properties and are entitled to present evidence on factors that may affect that 

value, including market knowledge of the risk of flooding.7

 The value of the properties will be 

affected by the frequency of flooding and the knowledge regarding that risk; as such, plaintiffs 

are entitled to present evidence on the frequency of the government’s “use” of the permanent 

flowage easement. Accordingly, Dr. Bedient’s testimony will be allowed at trial. 

Therefore, the government’s motion in limine to exclude the testimony of Drs. Bell and 

Bedient is GRANTED IN PART and DENIED IN PART. The testimony of Dr. Bell will be 

7 In fact, Dr. Bedient’s evidence regarding the risk of flooding and the market’s 

knowledge of that risk is not so different from that of an expert proffered by the government, 

Frank Lucco, discussed infra. 
7

limited to one hour in light of the cumulative nature of his testimony due to the projected 

testimony of other appraisers and the unusual nature of his methodology. The court will allow 

Dr. Bedient’s testimony. 

3. Evidence and testimony from Mr. Frank Lucco.

First in a series of motions from plaintiffs is a motion in limine to exclude the testimony 

of a government expert, Frank Lucco. See generally Pls.’ Lucco Mot. In spite of this motion, 

plaintiffs have listed Mr. Lucco as a witness they will call at trial in their case-in-chief. See Pls.’ 

Just Compensation Trial Witness List at 15. In response to this designation, the government has 

filed a motion for a protective order to prevent plaintiffs from calling Mr. Lucco as a witness in 

their case-in-chief. See Def.’s Mot. for Prot. Order as to Frank Lucco. The court will first 

address the admissibility of Mr. Lucco’s testimony before addressing whether plaintiffs may call 

a government expert as their own witness. 

(i.) Plaintiffs’ motion in limine.

Mr. Lucco is an expert appraiser for the government who plans to provide an opinion on 

the value of “the flowage easement as described by the [c]ourt in its rulings,” “market 

awareness,” and on the value of the properties through “comparable sales from post-Harvey 

flooded homes in the upstream flood pool area.” Def.’s Resp. to Pls.’ Lucco Mot. at 2, ECF No. 

465. Plaintiffs move to exclude Mr. Lucco’s opinion for being irrelevant and unreliable. Pls.’ 

Lucco Mot. at 1. Plaintiffs contend that Mr. Lucco failed to value the rights taken by the 

easement and that the sales used by Mr. Lucco as comparable sales are not reliable because they 

occurred before the court’s ruling on liability. Id. at 1-2, 4. The government maintains that,

although the comparable sales occurred prior to the liability ruling, the market was well aware of 

the effects of Hurricane Harvey on the area and that Mr. Lucco conducted an independent study 

to evaluate market awareness on the issue. Def.’s Resp. to Pls.’ Lucco Mot. at 8-9. 

Expert testimony must be both relevant and reliable. Daubert, 509 U.S. at 579. As an 

initial matter, Mr. Lucco’s opinion is relevant as it provides an evaluation of the “after” value of 

the bellwether properties. Even so, plaintiffs contend that “[Mr.] Lucco’s assessment of a 

decrease in value attributable to market participants’ ‘expectations about future weather and 

flooding events’ is not a valuation of the rights taken by the government’s permanent flowage 

easement.” Pls.’ Lucco Mot. at 2 (emphasis omitted). Yet, the value of Mr. Lucco’s opinion to 

the court is not so different from that of plaintiffs’ expert, Dr. Bedient. While not a one-to-one 

comparison, both experts purport to testify to the effect of the flooding risk and awareness of it 

on the market value of the bellwether properties. Compare Pls.’ Opp’n to Def.’s Bell & Bedient 

Mot. at 11-12, 14 (“Dr. Bedient’s opinions will inform the [c]ourt about important marketinfluencing factors.”) with Def.’s Resp. to Pls.’ Lucco Mot. at 9 (“Mr. Lucco selected 

comparable sales with market awareness in mind and performed an additional market analysis to 

confirm his ultimate conclusion.”). Where plaintiffs are allowed to present evidence of fear of 

future flooding as affecting the market, the government’s evidence on the same topic will be 

relevant. As such, Mr. Lucco’s testimony passes muster on that ground.
8

Plaintiffs also challenge the reliability of Mr. Lucco’s comparable sales approach on 

multiple grounds. Plaintiffs argue that is it impossible to use the comparable sales approach 

because no such comparable sales exist. Pls.’ Lucco Mot. at 2-3. According to plaintiffs,

because the exact language of the easement has not been defined, it is impossible to find a 

comparable sale. Id. at 3. Particularly of concern to plaintiffs is that all of the selected sales 

used by Mr. Lucco occurred before the court’s ruling on December 17, 2019, that the 

government had taken a permanent flowage easement. Id. at 4. Plaintiffs contend that it would 

be impossible for willing buyers and sellers to have the requisite knowledge of the easement for 

it to affect market value when the language of the easement has not yet been drafted. Pls.’ Reply 

to Pls.’ Lucco Mot. at 3, ECF No. 478. The government counters that “all of the selected 

comparable sales experienced flooding from the dams during the Harvey event and are within the 

Harvey flood pool upstream.” Def.’s Resp. to Pls.’ Lucco Mot. at 8. Further, the government 

argues that “nearly all of the sales he selected as comparable sales had some form of specific 

disclosure of property flooding due to the Harvey event in the property marketing or disclosure 

documentation,” id. at 9, and that “Mr. Lucco researched the general information that was 

available to the public and real estate market about the flooding from the dams during Harvey 

and the related ongoing flood risk,” id. at 12. 

The court finds plaintiffs’ emphasis on the lack of exact easement language to be 

misplaced. The court found that the “government’s actions relating to the Addicks and Barker 

Dams and the attendant flooding of plaintiffs’ properties constituted a taking of a flowage 

easement under the Fifth Amendment.” In re Upstream, 146 Fed. Cl. at 264. The court further 

clarified that “the easement should be defined by reference to the elevation of the pools at their 

highest level on August 30, 2017, viz., 101.6 feet in Barker and 109.1 feet in Addicks,” In re 

Upstream, 148 Fed. Cl. at 278 (citing In re Upstream, 146 Fed. Cl. at 241), and that plaintiffs 

were left with “a fee simple interest in their properties which allows them to continue their 

lawful use subject to the risk of occasional flooding caused by the operation of the Addicks and 

Barker Dams,” id. These rulings are sufficient to inform the scope of the easement for Mr. 

Lucco’s research and for the public. The court is skeptical that having exact language of an

easement would be any more informative to an average willing buyer or seller than the language 

currently embodied in the court’s opinions. Rather, it is more likely that the public would be 

best informed via the very sources Mr. Lucco relied on: social and news media, among other 

sources, more accessible to a lay person. See Def.’s Resp. to Pls.’ Lucco Mot. at 12-13 (stating 

Mr. Lucco relied on a “myriad [of] sources such as the media, online resources, government 

reports and meetings, information and outreach about this lawsuit, and flood damages to homes 

and flood closures of roads, schools and more”). Moreover, as the court noted at the hearing, the 

state of Texas implemented a statute for the very purpose of informing the public of the flood 
9

risk. Hr’g Tr. 8:16-23 (April 19, 2022).8 These sources are reliable indications of the market’s 

awareness.9

The court shares plaintiffs’ skepticism over the timing of the comparable sales relied on 

by Mr. Lucco. All of the properties were sold prior to the court’s finding of a taking and all but 

one were sold prior to the implementation of Texas’s notice statute. Hr’g Tr. 8:16 to 9:8. Where 

the sales are otherwise similar to the bellwether properties in that they all experienced flooding 

from the Harvey event, the court opines that the timing of the sales goes to the weight the court 

may or may not give Mr. Lucco’s opinion when making an award but does not preclude his 

opinion altogether. 

The court will ultimately decide how much weight to give Mr. Lucco’s opinion but finds

that it is generally relevant and reliable. However, the court will again exercise its power under 

Federal Rule of Evidence 611 to exert reasonable control of the trial and limit Mr. Lucco’s 

testimony to three hours in light of the court’s concern regarding the scope of his projected 

testimony and the comparability to that of Dr. Bedient, who is scheduled to testify for one 

8 The State of Texas legislature amended its law governing disclosures to be made by 

sellers of residential properties to require disclosure if the property is, among other things, 

“located wholly [or] partly in a reservoir.” Tex. Rev. Prop. Code § 5.008. “Flood pool” is 

statutorily defined to mean “the area adjacent to a reservoir that lies above the normal maximum 

operating level of the reservoir and that is subject to controlled inundation under the management 

of the United States Army Corps of Engineers.” Tex. Rev. Prop. Code § 5.008. “Reservoir” is 

defined as “a water impoundment project operated by the United States Army Corps of 

Engineers that is intended to retain water or delay the runoff of water in a designated surface area 

of land.” Tex. Rev. Prop. Code § 5.008. The addition of this language went into effect 

September 1, 2019. S.B. 339, 86th Leg., Reg. Sess. (Tex. 2019). 

Reportedly, the flooding resulting from Hurricane Harvey—the cause of the flooding at 

issue in this case—was what prompted legislators to pass this amendment to the state’s seller’s 

disclosure notice. See, e.g., In Texas, Home Sellers Must Now Disclose More About the Risk of 

Flooding, National Public Radio, (October 27, 2019), 

https://www.npr.org/2019/10/27/772996585/in-texas-home-sellers-must-now-disclose-moreabout-the-risk-of-flooding.

The date will be omitted from future citations to the hearing held April 19, 2022. 

9 The government points to the case Vaizburd v. United States as proof that the 

comparable sales approach can be used without having the exact language of the easement. See 

Def.’s Resp. to Pls.’ Lucco Mot. at 17-21. In that case, the Court of Appeals for the Federal 

Circuit upheld the adoption of the government’s appraisal of properties using the comparable 

sales approach despite there being no easement language for those properties because the 

easement was found simultaneously in an opinion of this court. See Vaizburd v. United States, 

384 F.3d 1278, 1283 n.5, 1284-85 (Fed. Cir. 2004). This case supports that court’s conclusion 

that the exact language of an easement is not necessary, particularly where numerous forms of 

notice are available to the market. 
10

hour.

10 As such, plaintiffs’ motion in limine to exclude Mr. Lucco’s testimony is GRANTED IN 

PART AND DENIED IN PART. 

(ii.) Motion for a protective order.

Despite their motion in limine to exclude Mr. Lucco’s testimony, plaintiffs have listed 

him as a witness they will call and have subpoenaed him. See Def.’s Mot. for Prot. Order as to 

Frank Lucco at 3. Federal Rule of Evidence 611 requires the court to “exercise reasonable 

control over the mode and order of examining witnesses and presenting evidence.” “An expert 

witness—retained by a party through private, voluntary agreement—is ordinarily not the proper 

object of a subpoena.” Res. Invs., Inc. v. United States, 93 Fed. Cl. 373, 383 (2010) (citing 

Young v. United States, 181 F.R.D. 344, 346 (W.D. Tex. 1997) (“[A] professional witness may 

not generally be compelled to testify as an expert at the request of a private litigant, as such 

testimony is a matter of contract or bargain.”); see also Carter-Wallace, Inc. v. Otte, 474 F.2d 

529, 536 (2d Cir. 1972)). However, “a judge may authorize a subpoena to an expert witness.” 

R.K. v. Sec’y of the Dep’t of Health & Human Servs., No. 03-0632V, 2015 WL 10911950, at *24 

(Fed. Cl. Sept. 28, 2015), aff’d, 671 Fed. App’x 792 (Fed. Cir. 2016). “Routine use” of 

subpoenas to an opposing party’s expert has been held to be “inappropriate” and subverts the 

role of Rule 26. Pope v. City of New York, No. 10 Civ. 4118, 2012 WL 555997, at *1 (S.D.N.Y. 

Feb. 10, 2012) (discussing Fed. R. Civ. P. 26).11

Other courts have “exercised [their] discretion to allow a party to call an opposing party’s 

expert witness during their case in chief.” Rosa-Melendez v. Invacare Corp., 709 F. Supp. 2d 

132, 134-135 (D.P.R. 2010). Some courts have found that the “weight of authority favors 

allowing [a party] to introduce the opinion testimony of [the other party’s] expert.” De Lage 

Landen Operational Servs., LLC v. Third Pillar Sys., Inc., 851 F. Supp. 2d 850, 853 (E.D. Pa. 

2012) (citing Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996); Penn Nat’l Ins. Co. v. HNI 

Corp., 245 F.R.D. 190 (M.D. Pa. 2007); House v. Combined Ins. Co. of Am., 168 F.R.D. 236 

(N.D. Iowa 1996)); see also Nat’l R.R. Passenger Corp. v. Certain Temp. Easements Above the 

R.R. Right of Way in Providence, R.I., 357 F.3d 36, 42 (1st Cir. 2004). While some courts 

disfavor allowing such tactics, there is no “broad rule that automatically bars a party from calling 

a witness the opposing party designated.” Griffin v. Biomat USA, Inc., No. 1:19-cv-604, 2022 

WL 424964, at *2 (M.D. Ala. Feb. 10, 2022). Despite having paid to retain Mr. Lucco as an 

expert, the government does not have “a proprietary right to [his] evidence.” Doe v. Eli Lilly & 

Co., 99 F.R.D. 126, 128 (D.D.C 1983). 

The court will strike a balance. Plaintiffs will not be allowed to call Mr. Lucco in their 

case-in-chief so as not to interfere with the purposes of Rule 26 or the government’s ability to 

10 The government stated in its Just Compensation Trial Witness List that it expects the 

testimony of Mr. Lucco to take six hours. Def.’s Just Compensation Trial Witness List at 3, ECF 

No. 508. The court finds allowing half that time to be a reasonable step to ensure the proper 

flow of the trial. 

11 Inasmuch as RCFC 26 mirrors Fed. R. Civ. P. 26, the rules should be interpreted in 

pari materia.
11

present a fulsome defense. But, to allow plaintiffs the opportunity to fully explore Mr. Lucco’s 

testimony on points where they bear the burden of proof, cross-examination will not be limited to 

the topics covered in direct examination. As such, the government’s motion for a protective 

order as to Mr. Lucco is GRANTED IN PART AND DENIED IN PART.

B. Testimony Regarding Potential Offsets

At the liability phase of litigation, the court found that “the government’s actions relating 

to the Addicks and Barker Dams and the attendant flooding of [bellwether] plaintiffs’ properties 

constituted a taking of a flowage easement under the Fifth Amendment.” In re Upstream, 146

Fed. Cl. at 264. The impending trial seeks to award just compensation, or “the fair market value 

of the property on the date it [wa]s appropriated.” Kirby Forest Indus., Inc. v. United States, 467 

U.S. 1, 10 (1984). When making a just compensation award, the Supreme Court has held that 

certain offsets may be deducted. Specifically, the amount which “specially and directly 

increased” the value of the remainder property after a partial taking can be offset against the just 

compensation award. Bauman v. Ross, 167 U.S. 548, 574 (1897). The Court of Appeals for the 

Federal Circuit has defined such direct and special benefits to be those “which arise directly and 

proximately to the remaining land as a result of the public work on the part taken, due to the 

peculiar relation of the land in question to the public work.” Hendler v. United States, 175 F.3d 

1374, 1380 (Fed. Cir. 1999). General benefits (or those benefits “that are more or less common 

to all lands in the vicinity of the land taken,” id.) on the other hand will not be offset. Hendler v. 

United States, 38 Fed. Cl. 611, 617 (1997) (“Special benefits are deducted from any 

compensation due, and general benefits are not.”), aff’d, 175 F.3d at 1386. 

A string of motions in limine seeks to exclude the government’s experts that offer 

testimony relating to what plaintiffs argue are irrelevant general benefits which should not be 

offset against any just compensation award. Specifically, plaintiffs seek to exclude the testimony 

of Dan Leistra-Jones and David LaRue, as well as testimony relating to Federal Emergency 

Management Agency (“FEMA”) and Internal Revenue Services (“IRS”) programs. See 

generally Pls.’ Offsets Mot., Pls.’ Leistra-Jones Mot., and Pls.’ LaRue Mot. The court will first 

address the admissibility of offset testimony generally and then turn to the projected testimony of 

each challenged expert. 

1. Offset testimony.

Allowing any just compensation award to be reduced by specific offsets prevents 

plaintiffs from receiving a double recovery from administrative processes and the judicial

process. See United States v. Virginia Elec. & Power Co., 365 U.S. 624, 633 (1961) (“The 

guiding principle of just compensation is reimbursement to the owner for the property interest 

taken . . . . [While plaintiff] ‘must be made whole . . . [he or she] is not entitled to more.’” 

(quoting Olson v. United States, 292 U.S. 246, 255 (1934))); Cardiosom, L.L.C. v. United States, 

656 F.3d 1322, 1328-29 (Fed. Cir. 2011). As the finding of any such offset results in the 

reduction of a just compensation award, the government bears the burden of proving the 

applicability of any alleged offsetting benefit and its amount. CCA Assocs. v. United States, 91 

Fed. Cl. 580, 613-614 (2010), aff’d in part, rev’d in part, 667 F.3d 1239, 1245 (Fed. Cir. 2011), 

cert. denied, 568 U.S. 940 (2012). 
12

Plaintiffs seek to exclude testimony and evidence “aiming to have [the c]ourt reduce or 

‘offset’ the [alleged] just compensation awards owed [p]laintiffs.” Pls.’ Offset Mot. at 1. They 

argue that benefits received by bellwether plaintiffs are not direct and thus do not qualify to be 

deducted from any just compensation award and that for the court to determine and assess 

alleged offsetting benefits received from FEMA or IRS would violate the separation of powers 

by having the court sit in the position of an administrative agency. Id. at 5-6. The government

argues in opposition that certain payments and deductions received by plaintiffs are in fact direct 

payments that should be offset from any just compensation award and that the court’s 

consideration of such offsets does not run afoul of the separation of powers. Def.’s Resp. to Pls.’ 

Offsets Mot. at 9, ECF No. 463.

Both parties noted that the court has previously expressed skepticism that certain 

“collateral benefit[s] would be considered as a relevant consideration in the calculation of just 

compensation.” In re Upstream, 2020 WL 3513552, at *2. Regardless of the court’s skepticism, 

the government bears the burden of proof on this issue, and the court will not interfere with that 

burden by deciding the general versus direct nature of a benefit prior to hearing pertinent

evidence. This is not to say the government is entitled to put on whatever evidence it pleases but 

merely that the blanket exclusion sought by plaintiffs of evidence and testimony as to alleged 

offsets is improper. 

Plaintiffs’ contention that for the court to consider and value any offsets would be a 

violation of the separation of powers also fails. This court has exclusive jurisdiction over Fifth 

Amendment takings claims where the amount sought from the government is $10,000 or more. 

28 U.S.C. §§ 1346(a)(2); 1491(a)(1). Offsetting special benefits is required by binding 

precedent, see Bauman, 167 U.S. at 574. It would contravene this court’s jurisdiction—and 

binding precedent—to bar the court from making the necessary findings to make a proper award. 

It is not for the agency to determine whether a benefit should be offset against a just 

compensation award; it is for the court to decide. While plaintiffs suggest that some agencies, 

like the IRS, can “subsequently reclaim some or all of th[e] amounts” it determines to have been 

improperly paid, Pls.’ Offsets Mot. at 7, that is a separate and distinct power. Although

plaintiffs’ concern may be a “double subtraction” as opposed to the government’s concern of a 

double recovery, the record of this case does not suggest that the government argues that any 

benefits received were improperly paid to plaintiffs but rather that those benefits should be offset

against the just compensation award. It will not be a violation of the separation of powers for 

this court to fulfill its role as trier of fact and arbiter of law as it relates to any alleged special 

benefits. As such, plaintiffs’ motion in limine to exclude offsetting benefits testimony as a 

general matter is DENIED. 

The government, however, will not be given free rein to present such testimony. Its 

witnesses must still satisfy the requirements of the Federal Rules of Evidence. As such, the court 

will address plaintiffs’ specific motions in turn. 
13

2. Evidence and testimony from Dr. David LaRue.

Dr. David LaRue was retained by the government to “identify and estimate the federal 

income tax benefits derived by those [p]laintiffs who claimed a casualty loss deduction for their 

Hurricane Harvey-related flood damages.” Def.’s Resp. to Pls.’ LaRue Mot. at 2, ECF No. 491. 

The government intends for Dr. LaRue to testify to his methodology for determining the savings 

plaintiffs received and why those savings should be considered compensation paid to plaintiffs 

by the government—and therefore should be offset from any just compensation award. Id. 

Plaintiffs seek to exclude this testimony as an irrelevant consideration of general benefits (which 

Dr. LaRue did not calculate) that may not be offset from any just compensation award, and they 

also challenge the reliability of Dr. LaRue’s calculations. Pls.’ LaRue Mot. at 1-2. The 

government contends that Dr. LaRue’s testimony is relevant to explaining the methodology for 

determining the tax savings plaintiffs received, why those savings should be regarded as just 

compensation paid, and that Dr. LaRue’s testimony is reliable because it is based on plaintiffs’

discovery productions in this case. Def.’s Resp. to Pls.’ LaRue Mot. at 2-3. 

“Offsetting benefits, if there are any, must be established by the government.” CCA 

Assocs., 667 F.3d at 1245. As previously discussed, common general benefits available to 

everyone will not be offset from a just compensation award. See Bauman, 167 U.S. at 574-75. 

Under Internal Revenue Code §165(c)(3), an individual may claim a casualty loss if it arises 

from a qualified disaster, such as a “storm.” 26 U.S.C. § 165(c)(3). These loss deductions are 

available to anyone who experiences such a loss, a point on which plaintiffs and Dr. LaRue 

agree. See 26 U.S.C. § 165; see also Pls.’ LaRue Mot., Ex. C (LaRue Dep. Test.) 31:15 to 32:21, 

ECF No. 472-3 (LaRue: “[Casualty loss deduction provisions] are general provisions that are 

available to all taxpayers without discrimination.”). The court has long expressed skepticism 

about the government’s position in this regard. In re Upstream, 2020 WL 3513552 at *2 (“The 

court is skeptical that [a casualty loss deduction] would be considered as a relevant consideration 

in the calculation of just compensation.”). The court remains unconvinced and will exclude Dr. 

LaRue’s testimony. 

Plaintiffs correctly argue that casualty loss deductions are a general benefit that cannot be 

deducted from a just compensation award. As the Federal Circuit has stated: “[S]pecial benefits 

are those which inure specifically to the landowner who suffered the partial taking and are 

associated with the ownership of the remaining land. In contrast, benefits that inure to the 

community at large are considered general.” Hendler, 175 F.3d at 1380 (internal citation 

omitted). The casualty loss deduction is a general benefit in that the community at large may 

claim it if they face a casualty. With relation to the taking of a permanent flowage easement, 

where the benefit is not “associated with the ownership of the remaining land,” Hendler, 175 

F.3d at 1380, but was instead conditioned on the effects of earlier acquisition of inadequate land

at the time of construction of dams measured against a meteorological event, the deduction 

cannot be said to be a special benefit; that the flowage easement is in some ways conditioned on 

the occurrence of such flooding does not change the nature of the deduction. Neither can it be 

said to be special when it is not specific to these particular plaintiffs but is available to any 

citizen who experiences similar losses. The court is unconvinced that tax savings related to loss 

of a property interest should be deducted from any award, particularly where plaintiffs may be 

required to address any award in conjunction with future taxes.
14

Because the casualty loss deduction and any associated interest are not special benefits, 

the court finds Dr. LaRue’s testimony to be irrelevant to determining what just compensation 

may be awarded to plaintiffs for the government’s taking of a permanent flowage easement. 

Plaintiffs’ motion in limine to exclude Dr. LaRue’s testimony is GRANTED.

3. Evidence and testimony from Mr. Dan Leistra-Jones.

Plaintiffs move to exclude the testimony of Mr. Dan Leistra-Jones, a government expert 

with “experience in financial, policy, and economic analysis.” Pls.’ Leistra-Jones Mot. at 1. Mr. 

Leistra-Jones intends to offer an opinion on “[w]hether the plaintiffs received any prior payments 

or benefits from the United States that relate directly to the losses they are claiming in this case 

from flooding related to Hurricane Harvey.” Def.’s Resp. to Pls.’ Leistra-Jones Mot., Ex. A at 1, 

ECF No. 464-1. Unlike Dr. LaRue, Mr. Leistra-Jones purports to provide a comprehensive 

analysis of benefits received by plaintiffs that the government alleges should be offset against 

any just compensation award. Def.’s Resp. to Pls.’ Leistra-Jones Mot. at 5-6, ECF No. 464. As 

has been stated, the government bears the burden on the issue of proving offsets. CCA Assocs., 

667 F.3d at 1245. And as the court has stated in a prior hearing, “the [c]ourt is almost invariably 

willing to allow a party to try to prove its case.” Hr’g Tr. 16:9-19 (Sept. 4, 2020). Consistent 

with this view, the court will allow Mr. Leistra-Jones’s testimony, save any portions related to 

the work of Dr. LaRue, which will be excluded. The court makes no determination at this time 

on whether any of the payments about which Mr. Leistra-Jones will testify are general or special 

benefits. Plaintiffs may raise any concerns as to Mr. Leistra-Jones’s methodology or other 

aspects of his report on cross-examination. 

Plaintiffs motion in limine to exclude the testimony of Mr. Leistra-Jones is GRANTED 

IN PART AND DENIED PART. Mr. Leistra-Jones will be allowed to testify as to direct 

benefits received by the bellwether plaintiffs, excluding any portions relating to tax implications 

of casualty losses that were to have been covered by testimony of Dr. LaRue.

C. Evidence and testimony from Mr. John Postava

Plaintiffs seek to exclude government witness John Postava, see generally Pls.’ Postava 

Mot., a licensed property and authorized National Flood Insurance Program flood claims 

adjuster, who reportedly will focus on valuation of personal property damaged or lost as a result 

of the flooding, see Def.’s Resp. to Pls.’ Postava Mot. at 3, ECF No. 460. Plaintiffs allege his 

testimony is irrelevant because in their view his analysis “is nothing more than his opinion that 

the information he reviewed regarding the property taken by the government . . . would be 

insufficient to support an insurance claim.” Pls.’ Postava Mot. at 1 (emphasis omitted). The 

government counters that Mr. Postava’s testimony is relevant and that as a rebuttal expert his 

testimony will be defined by plaintiffs’ expert’s testimony. Def.’s Resp. to Pls.’ Postava Mot. at 

2-4. 

When it found the government liable for a permanent flowage easement, the court 

concluded that “the taking also encompassed—as a consequential result of the flowage easement 

taken—plaintiffs’ personal property, fixtures, and improvements damaged or destroyed by the 

flood event.” In re Upstream, 148 Fed. Cl. at 278. Therefore, testimony relating to the valuation 
15

of plaintiffs’ personal property is relevant to the just compensation trial. See also Hr’g Tr. 69:24

to 70:2. Plaintiffs contend that Mr. Postava’s testimony adds nothing of value because he did not 

challenge the methodology of plaintiffs’ experts. Because Mr. Postava in essence is scheduled to 

rebut plaintiffs’ evidence of the value of personal property lost, it would be premature for the 

court to exclude his opinion before plaintiffs’ own expert’s testimony of value has taken place. 

To the extent plaintiffs challenge Mr. Postava’s methodology of applying “insurance 

standards,” those challenges do not speak to admissibility but to the weight (if any) the court 

should give Mr. Postava’s testimony. See Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 

1283, 1299 (Fed. Cir. 2015) (where an expert’s “credibility, data, or factual assumptions have 

flaws, these flaws go to the weight of the evidence, not to its admissibility”). In fact, it is flaws 

in plaintiffs’ own expert testimony that Mr. Postava allegedly offers to address: “[Plaintiffs’ 

personal property expert] testified he did not follow what [Mr. Postava] consider[s] to be the 

typical methodology when preparing a personal property inventory. . . . [Without further 

documentation, plaintiffs’ expert] could not have calculated reasonable replacement cost values 

for the items listed on the [p]laintiffs’ inventories.” Def.’s Resp. to Pls.’ Postava Mot., Ex. A at 

11 (Expert Report of John Postava), ECF No. 460-1.12 

The court determined that personal property damage was a consequential result of the 

flowage easement taken by the government. The plaintiffs bear the burden of proving the value 

of those losses. See Hedstrom Lumber Co., Inc. v. United States, 7 Cl. Ct. 16, 28 (1984). The 

government is entitled to rebut their evidence. Plaintiffs’ motion in limine to exclude the 

testimony of John Postava is DENIED. 

D. Testimony Regarding the Exclusion of Co-Tenants for the Bellwether Properties

Before the court are two motions relating to co-tenants of the bellwether properties. 

Plaintiffs first moved to prevent the government from offering evidence “regarding any [c]o-

[t]enant’s ownership interest.” Pls.’ Co-Tenants Mot. at 1. Plaintiffs averred that this motion 

was in response to the government’s contention that “the [c]ourt should only determine just 

compensation for the selected bellwether plaintiffs that is proportionate with their ownership 

interests.” Id. Plaintiffs then filed a motion to amend the master complaint to add the co-tenants 

of the six bellwether properties (or alternatively to join them). Pls.’ Mot. to Amend the Master 

Complaint (Pls.’ Mot. to Amend”), ECF No. 493. Beyond adding the co-tenants as plaintiffs 

generally, plaintiffs seek to have the co-tenants designated as bellwether test plaintiffs as well. 

Id. at 1. 

1. Motion to amend the complaint or alternatively for joinder.

Plaintiffs seek leave to file an amended master complaint to add Oscar Quintero, 

Alexander Popovici, Manviner Grewal, and Fatima Holland as co-plaintiffs and as bellwether 

12 If Mr. Postava offers testimony that there is not enough information to value plaintiffs’ 

personal property losses, his testimony would extend beyond challenging the “veracity” of 

plaintiffs’ statements, as plaintiffs contend.
16

test plaintiffs.13 RCFC 15(a)(2) gives the court leave to allow a party to amend its pleading 

“when justice so requires.” The applicable six-year statute of limitations has not expired, see 28 

U.S.C. § 2501, and the non-named co-owners are entitled to file their own claims for the 

government’s taking of a permanent flowage easement on their property. Importantly, the 

government does not oppose the addition of the co-tenants as plaintiffs for these reasons. Def.’s 

Resp. to Pls.’ Mot. to Amend at 1, ECF No. 494. Contrastingly, the government does oppose the 

designation of the co-tenants as bellwether test plaintiffs. Id. For the reasons stated, the court 

will allow plaintiffs to amend their complaint to add the listed co-tenants, but the co-tenants will 

not be designated as bellwether test plaintiffs and their cases will be administratively stayed 

along with the other non-bellwether plaintiffs.

Plaintiffs argue that it would not be prejudicial to the government to add the co-tenants as 

bellwether plaintiffs and that no new discovery would be required. Pls.’ Mot. to Amend at 7-9. 

Plaintiffs correctly state that the government’s definition of “plaintiff” or “test plaintiff” included 

“each and every individual, entity, or party who claims a [p]roperty interest in the [t]est 

[p]roperties” and “spouses not named in the litigation.” Pls.’ Mot. to Amend at 3 n.1 (emphasis 

omitted). Nonetheless, they fail to acknowledge that they “object[ed] to the extent that the 

definition attempt[ed] to solicit responses or require [p]laintiff to obtain responses from 

individuals or entities that are not parties to this litigation.” Def.’s Resp. to Pls.’ Mot. to Amend, 

Ex. 2 at 2, ECF No. 494-1. Plaintiffs cannot have it both ways by claiming that the bellwether 

plaintiffs’ responses in discovery do not apply to (then) non-parties and now claim that such 

responses do apply to the co-tenants. While any future discovery as to the co-tenants may be 

redundant, the government is not required to take plaintiffs’ assurances on this issue. Discovery 

has not occurred as to the co-tenants, and it would be prejudicial to the government to allow the 

co-tenants to be added as bellwether plaintiffs at this late stage. Therefore, plaintiffs’ motion to 

amend their master complaint is GRANTED IN PART AND DENIED IN PART. Plaintiffs may 

file their amended complaint adding the co-tenants as plaintiffs, but the co-tenants will not be 

designated as bellwether plaintiffs. 

Remaining is plaintiffs’ motion in limine to prevent the government from introducing 

“evidence regarding any [c]o-[t]enant’s ownership interest.” Pls.’ Co-Tenants Mot. at 1. The 

government opposes this motion, arguing that evidence regarding the co-tenants is relevant to 

determining the value owed to the bellwether plaintiffs—whom the government argues are the 

only plaintiffs properly before the court at this time who are eligible to receive any award from 

the court. Def.’s Resp. to Pls.’ Co-Tenants Mot. at 3, ECF No. 461. Both parties point to the 

unit rule, which requires “that real estate be valued in respect to its gross value as a single entity 

as if there was only one owner. . . . [T]he manner in which the land is owned or the number of 

owners should not affect the value of the land.” Childers v. United States, 116 Fed. Cl. 486, 502 

(2013) (quoting 4 Nichols on Eminent Domain § 13.01[16]). The government agrees “that under 

the unit rule, the bellwether properties must be appraised as if they were under ‘unified control 

13 Plaintiffs also seek to add an explanatory paragraph to the complaint detailing that 

incorrect property descriptions for the Lakes on Eldridge Community Association were included 

in the original complaint and that corrected descriptions were admitted during the liability phase 

of the trial without objection. Pls.’ Mot. to Amend at 2. The government does not object to this 

addition. Id. 
17

and ownership without competing partial interests.’” Def.’s Resp. to Pls.’ Co-Tenants Mot. at 3 

(quoting Childers, 116 Fed. Cl. at 505). That is exactly how the court shall proceed in the first 

instance. 

Where the parties disagree is whether the court must apportion the just compensation 

award subject to the bellwether plaintiffs’ interests in the taken properties. Both parties point to 

the court’s holding in Technical College of the Low Country v. United States:

The division of the proceeds between [the co-owners] is, according to the unit rule, 

not a factor in determining the value of the land taken. Further, it is well settled 

that the Court of Federal Claims “does not have subject matter jurisdiction to 

entertain controversies between private parties.” However, [the co-owner] has not 

appeared in this case, and [plaintiff] has not demonstrated it is entitled to recover 

damages representing compensation for the [co-owner’s] interest that was taken.

145 Fed. Cl. 408, 433 (2019) (internal citations omitted) (quoting Hufford v. United States, 85 

Fed. Cl. 607, 608 (2009)). Plaintiffs seem to concede in their reply brief that the proper 

approach is for the court to “(1) value both the larger parcels as to which a taking ha[s] been 

found according to their highest and best uses without regard to the co-ownership issue, and (2) 

adjust both the before and after values to reflect the co-ownership issue.” Pls.’ Reply to Pls.’ CoTenants Motion at 3, ECF No. 496 (internal quotations and alterations omitted) (quoting 

Technical College, 145 Fed. Cl. at 433-34). The court has admitted the co-tenants as plaintiffs 

above, but they are not properly before the court as bellwether plaintiffs. While plaintiffs urge 

the court to defer the determination of the exact value owed to each test property plaintiff to a 

later date, see id. at 2, the court sees no reason to proceed in such a manner. In the 

circumstances, evidence regarding the co-tenants’ ownership interests will be relevant to the 

award, and the government will be entitled to rebut plaintiffs’ evidence on the value owed to 

each plaintiff by pointing to evidence of a co-ownership interest.14 Plaintiffs’ motion in limine to 

exclude evidence regarding co-tenant interests in the bellwether properties is DENIED.

E. Evidence Relating to the Alleged “Temporary Taking”

The government seeks to exclude “any and all testimony and evidence relating to 

[p]laintiffs’ ‘temporary lost use of their real property.’” Def.’s Temp. Taking Mot. at 1 (quoting 

Pls.’ Mem. of Contentions of Fact and Law (“Pls.’ Mem.”) at 25, ECF No. 466). In its opinion 

finding the government liable for a flowage easement, the court stated:

Plaintiffs have alleged three separate takings: (1) a temporary, categorical, physical 

taking for the temporary flooding; (2) a permanent, categorical, physical taking for 

the destruction of plaintiffs’ personal property; and (3) a permanent, noncategorical, physical taking for the flowage easements on each property. The court, 

14 This disagreement between the parties may have little ultimate effect. The government 

may not be in any position to deny the co-tenants their portion of the just compensation award 

when this court will have adjudicated the value of the property and found the portion of the 

interest they are entitled to by apportioning the bellwether plaintiffs’ interests in this action. 
18

however, finds these distinctions unnecessary, as the first two alleged takings are 

simply the consequential result of the third. Thus, the court here will apply its 

analysis to the consideration of whether the government’s actions constituted a 

physical, permanent, non-categorical taking for a flowage easement.

In re Upstream, 146 Fed. Cl. at 247 n.17 (internal citations omitted). The court ultimately found 

that “[t]he government, through its construction, maintenance, and operation of the Addicks and 

Barker Dams in the past, present, and future, has taken a permanent flowage easement on 

plaintiffs’ properties.” Id. at 250. The court explicitly stated that the easement “encompassed—

as a consequential result of the flowage easement taken—plaintiffs’ personal property, fixtures, 

and improvements damaged or destroyed” by the flooding resulting from Hurricane Harvey. In 

re Upstream, 148 Fed. Cl. at 278. 

The government is correct that the court did not find a temporary taking of property by 

the government had occurred. But, the court did recognize that certain property losses by 

plaintiffs were the “consequential result” of the government’s taking of a flowage easement. 

Evidence regarding the “temporary dispossession of [plaintiffs’] property rights measured by the 

fair rental value of the property for the reasonable period [plaintiffs] w[ere] deprived of its use,” 

Pls.’ Mem. at 26, is included in the consequential results of the government’s taking of a 

permanent flowage easement. Just as plaintiffs’ personal property would not have been damaged 

or destroyed but for the government’s taking, it is also true that but for the government’s taking, 

plaintiffs would not have been displaced from their properties—temporarily or otherwise. “[F]or 

all that the [g]overnment takes it must pay.” United States v. Dickinson, 331 U.S. 745, 750 

(1947). This edict remains true, regardless of the fact that the flooding was a temporary aspect 

of a permanent taking. As such, evidence of a temporary dispossession is admissible, but the 

government is correct that such evidence does not support the finding a temporary taking. 

Therefore, the government’s motion in limine to exclude evidence regarding temporary takings is 

GRANTED IN PART AND DENIED IN PART. Plaintiffs may present evidence consistent with 

the court’s ruling on losses that are the consequential result of the government’s taking but may 

not present evidence of a taking the court did not find existed. 

F. Use of Deposition Testimony of the United States’ 30(b)(6) Witnesses15

Rule 30(b)(6) requires that a party serving a notice under this rule “describe with 

reasonable particularity the matters for examination.” In turn, the named organization “must 

then designate one or more . . . persons who consent to testify on its behalf.” Id. “The purpose 

of Rule 30(b)(6) is to ensure that [entities] supply relevant information to opposing counsel 

relating to corporate practices, policies, procedures and actions.” Ierardi v. Lorillard, Inc., Civ. 

A. No. 90-7049, 1991 WL 66799, at *2 (E.D. Pa. Apr. 15, 1991) (discussing Fed. R. Civ. P. 

30(b)(6)).

16 Plaintiffs issued a Notice of Rule 30(b)(6) Deposition of the United States of 

15 The court has granted one other motion to use deposition testimony and denied another 

such motion. See supra n.2. 

 

16 RCFC 30(b)(6) mirrors Fed. R. Civ. P. 30(b)(6), and the rules should be interpreted in 

pari materia.
19

America on April 15, 2020, seeking the designation and production of witnesses for forty-nine 

topics. See Pls.’ Am. Sec. Not. of Rule 30(b)(6) Depo., ECF No. 291-1. The government filed a 

motion for a protective order, claiming the topics were overly broad among other things, which 

the court granted in part and denied in part. See In re Upstream Addicks and Barker (Texas) 

Flood-Control Reservoirs, No. 17-9001, 2020 WL 3513552 (Fed. Cl. June 29, 2020). In that 

prior order, the court limited the topics to the easement at issue in the case, to the six bellwether 

properties, and required the government to provide updated information as necessary. Id. at *1-

2. The government designated four witnesses to testify as Rule 30(b)(6) witnesses: Robert 

Thomas, III, Jeremy Creech, Paula Johnson-Muic, and Ronald Wanhanen. Pls.’ 30(b)(6) Depo. 

Mot. at 2. 

Plaintiffs have moved for leave to admit the deposition testimony of these four witnesses 

in lieu of live testimony at trial. See generally Pls.’ 30(b)(6) Dep. Mot. The government 

opposes this motion, alleging that plaintiffs “seek to admit testimony—as binding Rule 30(b)(6) 

admissions—that was elicited in response to questions outside the scope of the noticed topics.” 

Def.’s Resp. to Pls.’ 30(b)(6) Dep. Mot. at 1, ECF No. 495. Beyond this motion to admit 

testimony, plaintiffs have also attempted to serve a subpoena on the government as well as each 

of the persons the government designated under Rule 30(b)(6). In response, the government has 

also filed a motion seeking a protective order to “preclud[e] [p]laintiffs from calling the United 

States or previous Rule 30(b)(6) designees in a representative capacity; preclude[e] [p]laintiffs 

from enforcing related subpoenas; [or], in the alternative, limit[] any testimony by such 

witnesses to matters on which they can testify based on personal knowledge.” Def.’s 30(b)(6) 

Prot. Order Mot. at 10. The court will address each of these motions in turn.

(i.) Motion for leave to use deposition testimony.

RCFC 32(a)(3) provides that “[a]n adverse party may use for any purpose the deposition 

of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or 

designee under RCFC 30(b)(6).” The government states that it “does not oppose the use of 

deposition testimony taken under RCFC 30(b)(6) at trial so long as the testimony is limited to 

topics described with the necessary particularity.” Def.’s Resp. to Pls.’ 30(b)(6) Dep. Mot. at 2. 

Rather than belabor the point, the court exercises its discretion to admit the deposition testimony 

subject to the government’s objections, which will be addressed as needed at trial. Therefore, 

plaintiffs’ motion for leave to use the deposition testimony given by witnesses designated by the 

government pursuant to Rule 30(b)(6) is GRANTED, subject to the government’s preserved 

objections to be addressed at trial. 

(ii.) Protective order.

In addition to seeking leave to use deposition testimony, plaintiffs have served five 

subpoenas on the government. Def.’s 30(b)(6) Prot. Order Mot. at 2. One subpoena was issued 

to the United States itself, and the remaining four were issued to Ronald Wanhanen, Robert 

Thomas, III, Paula Johnson-Muic, and Jeremy Creech as “representative[s] of the U[nited] 

S[tates].” Id. at 3. The government seeks a protective order to preclude the United States or 

previous Rule 30(b)(6) designees from being called in a representative capacity and to prevent 

plaintiffs from enforcing the subpoenas. Id. at 10. 
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Rule 45 of the Court of Federal Claims states that “[e]very subpoena must . . . command 

each person to whom it is directed” to appear.” RCFC 45(a)(iii) (emphasis added). The United 

States is not a person for the purpose of Rule 45. The general statutory presumption is that 

“person” does not include the government. Al Fayed v. C.I.A., 229 F.3d 272, 273-74 (D.C. Cir. 

2000). This presumption has been extended to Rule 45 of the Federal Rules of Civil procedure. 

Truex v. Allstate Ins. Co., 233 F.R.D. 188, 191 (D.D.C. 2006) (quashing a Rule 45 subpoena 

issued to FEMA for failure to “overcome the presumption that ‘person’ within Rule 45 does not 

include the government”).17 The court adopts this general presumption and finds that plaintiffs 

have not overcome the presumption to prove that Rule 45 of the Rules of the Court of Federal 

Claims does not include the government within the term “person.”18 Therefore, the subpoena to 

the United States itself is improper and will not be enforced. 

The subpoenas issued to the individual persons are a different matter. Regardless of the 

permissibility of such subpoenas, the court finds them to be improperly issued. “Serving a 

subpoena requires delivering a copy to the named person.” RCFC 45(b)(1). Here, the named 

individuals were Ronald Wanhanen, Robert Thomas, III, Paula Johnson-Muic, and Jeremy 

Creech, but the accepting party was counsel for the United States. Def.’s 30(b)(6) Prot. Order 

Mot. at 2. Service on the United States when attempting to compel these individuals to testify—

in whatever capacity—is not sufficient to satisfy Rule 45. See Dopson-Troutt v. Novartis 

Pharmas. Corp., 295 F.R.D. 536, 537-38 (M.D. Fla. 2013) (finding insufficient service where 

subpoenas for individuals were served to corporate registered agent instead of to the named 

individual). While the issuing party in Dopson may have been seeking to compel testimony in 

the persons’ individual capacities and plaintiffs here seek testimony from the listed individuals in 

their representative capacity, Rule 45 does not provide for such nuance, and the court will not 

read such nuance into the rules. 

Yet the government has stated it will call three of the four named individuals, see Def.’s 

Just Compensation Trial Witness List at 2, 4, and in that connection the court finds it prudent to 

consider persuasive precedent from another jurisdiction. The Fifth Circuit has opined on the 

issue of a witness previously designated under Rule 30(b)(6) taking the stand at trial:

Although there is no rule requiring that the corporate designee testify 

“vicariously” at trial, as distinguished from [] the rule 30(b)(6) deposition, if the 

corporation makes the witness available at trial he should not be able to refuse to 

testify to matters as to which he testified at the deposition on grounds that he had 

only corporate knowledge of the issues, not personal knowledge.

Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006). The Federal Rules of 

Evidence govern, particularly the rules governing hearsay. See Union Pump Co. v. Centrifugal 

Tech. Inc., 404 Fed. App’x 899, 907-08 (5th Cir. 2010). Consistent with this view, the court 

17 Inasmuch as RCFC 45 mirrors Fed. R. Civ. P. 45, the rules should be interpreted in 

pari materia.

18 This notion is particularly true when considering how the Rules of the Court of Federal 

Claims diverge from the Federal Rules of Civil Procedure to account for its special jurisdiction 

over the United States government. See, e.g., RCFC 12(a)(1)(A) (time to answer).
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will not prevent plaintiffs from inquiring into matters discussed at the individuals’ depositions, 

so long as the evidentiary rules otherwise allow it. Should the government open that door, the 

court will not close it. 

The court further notes that with the admission of the deposition testimony, the issue 

should be adequately addressed without further action. Therefore, the government’s motion for 

a protective order as to its Rule 30(b)(6) designees is GRANTED IN PART AND DENIED IN 

PART. 

CONCLUSION

For the reasons stated, the numerous motions before the court are resolved as follows:

(1) The government’s motion in limine as to Drs. Bell and Bedient is GRANTED IN PART 

AND DENIED IN PART. The testimony of Dr. Bell will be admitted but limited to one 

hour. The testimony of Dr. Bedient will be admitted. 

(2) Plaintiffs’ motion in limine regarding Frank Lucco is GRANTED IN PART AND 

DENIED IN PART. Mr. Lucco’s testimony will be admitted but limited to three hours. 

(3) The government’s motion for a protective order regarding Frank Lucco is GRANTED IN 

PART AND DENIED IN PART. Plaintiffs may not call Mr. Lucco in their case-in-chief, 

but the scope of plaintiffs’ cross-examination will not be limited by the scope of direct 

examination. 

(4) Plaintiffs’ motion in limine regarding testimony about offsets in general is DENIED.

(5) Plaintiffs’ motion in limine regarding Dr. David LaRue is GRANTED.

(6) Plaintiffs’ motion in limine regarding Dan Leistra-Jones is GRANTED IN PART AND 

DENIED IN PART. Mr. Leistra-Jones will be permitted to testify but may not testify as 

to opinions of Dr. LaRue. 

(7) Plaintiffs’ motion in limine regarding John Postava is DENIED. 

(8) Plaintiffs’ motion to amend the master complaint is GRANTED IN PART AND 

DENIED IN PART. Plaintiffs may file their amended complaint, adding co-tenants as 

plaintiffs, but the co-tenants will not be designated as bellwether plaintiffs. 

(9) Plaintiffs’ motion in limine to exclude testimony regarding ownership interests in the 

bellwether properties is DENIED.

(10) The government’s motion in limine for a protective order regarding evidence of a 

temporary taking is GRANTED IN PART AND DENIED IN PART. Plaintiffs may 

present evidence regarding losses that are a consequential result of the permanent flowage 

easement but may not present evidence of a temporary taking generally. 
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(11) Plaintiffs’ motion to admit the deposition testimony of the government’s Rule 30(b)(6) 

witnesses is GRANTED, subject to the government’s objections to be addressed at trial. 

(12) The government’s motion for a protective order regarding subpoenas issued to it and the 

Rule 30(b)(6) witnesses is GRANTED IN PART AND DENIED IN PART. The court 

will not enforce the subpoenas but will not bar the pertinent witnesses from testifying to 

things already addressed in their deposition testimony, subject to the Federal Rules of 

Evidence. 

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge