1 The purpose of this Motion is somewhat opaque, given that defendants have not

listed Dr. Desvousges among either their “will call” or “may call” witnesses in the Joint Pretrial

Document (doc. 321) that governs the trial. Indeed, plaintiffs (not defendants) are the only party

to list Dr. Desvousges as a potential witness. (Doc. 321, at 34.)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CLEON ABRAMS, SR., et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 08-0068-WS-B

 )

CIBA SPECIALTY CHEMICALS )

CORPORATION, et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on plaintiffs’ Motion to Exclude William

Desvousges’ Expert Testimony, Opinions and Reports (doc. 306). The Motion has been briefed

and is ripe for disposition.1

Plaintiffs are owners of property in and around McIntosh, Alabama, who allege that their

homes have been contaminated by DDT and its metabolites (collectively, “DDTr”) emanating

from a nearby chemical manufacturing facility owned and operated by defendants (collectively,

“Ciba”). On that basis, plaintiffs have brought causes of action against Ciba sounding in

trespass, negligence, and nuisance. Although they initially claimed damages in the form of

diminution of their property’s value, plaintiffs have since abandoned that theory of recovery, and

are now seeking an award of compensatory damages for restoration costs, that is, the cost of

reducing DDTr concentrations in their dwellings to a level of 10 parts per billion.

Defendants retained William H. Desvousges, Ph.D., “to provide expert testimony

regarding the economically valid approach and the data requirements for estimating alleged

diminution in property values associated [with] the presence of DDTr in dust in the McIntosh

Case 1:08-cv-00068-WS-B Document 382 Filed 03/02/10 Page 1 of 3
2 The gravamen of Dr. Desvousges’ opinions is that he could not make any

diminution in value computations in this case because there is inadequate data to enable those

calculations to be performed in a reliable way. As he put it, “frankly I don’t think anyone could

be able to come up with a reliable estimate.” (Doc. 306, Exh. C, at 52.) 

-2-

area.” (Doc. 306, Exh. B, at 1.) All of the opinions that Dr. Desvousges has rendered in this

case relate to a theory of damages predicated on diminution in property value.2

As documented in the court file, however, plaintiffs subsequently disavowed any intent to

recover for devaluation of property in this case. The Court commented on this development via

Order entered on October 1, 2009, as follows:

“Having made an unequivocal statement repudiating any intent to seek damages

in this action for diminution of property values, upon which representation both

Ciba and this Court have relied in framing the summary judgment discussion and

adjudication, plaintiffs will be held to it. As such, the issue of diminished

property value is no longer part of this case. Plaintiffs are precluded by

principles of estoppel and waiver from arguing otherwise henceforth.”

(Doc. 284, at 7 (emphasis added).) Plaintiffs stand by their renunciation of the diminution-invalue theory of damages today, as they state that “Plaintiffs are not seeking damages in the

amount that their respective properties were devalued as a result of the DDT that presently

contaminates their homes.” (Doc. 306, at 1 (emphasis in original).)

Because plaintiffs have abandoned all pretense of seeking recovery for devaluation of

property, they now contend that Dr. Desvousges’ testimony and opinions should be excluded on

relevancy grounds. “The party offering the expert testimony has the burden of demonstrating

that the testimony is relevant to the task at hand and logically advances a material aspect of its

case.” Boca Raton Community Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232

(11th Cir. 2009) (citations and internal quotation marks omitted). In response, defendants concur

that “evidence relating to property values may not be relevant in light of Plaintiffs’ recent

revision of their damages.” (Doc. 323, at 1.) Nonetheless, defendants ask that they not be barred

from introducing Dr. Desvousges’ opinions if plaintiffs testify about diminution in property

values. But plaintiffs have unequivocally disavowed any claim for devaluation damages, and

this Court has expressly ruled that plaintiffs will be held to that strategic decision. As such, the

Court foresees no scenario under which plaintiffs could possibly inject the issue of diminution of

Case 1:08-cv-00068-WS-B Document 382 Filed 03/02/10 Page 2 of 3
3 In their briefs on this Motion, the parties spar over the admissibility of purported

testimony by plaintiffs that their property values are increasing because of the new steel plant in

that area. Defendants argue that such evidence “may be relevant to prevent a windfall to

plaintiffs.” (Doc. 323, at 2.) Plaintiffs insist that there is no “evidence that a plaintiffs’ [sic]

property has increased in value for whatever reason,” and that such evidence would be irrelevant

in any event. (Doc. 349, at 1-2.) But neither side explains what this argument has to do with the

present Motion, which is confined to the admissibility of Dr. Desvousges’ opinions. Certainly,

there is no indication that Dr. Desvousges believes plaintiffs’ property values have risen. The

Court declines to embark on this tangent by the parties. There has been no motion to preclude

defendants from asking plaintiffs whether their property values have increased of late because of

economic development in the area, nor do defendants specifically express an intention to elicit

such testimony at trial. Thus, this may be nothing more than a phantom issue. Even if it does

come to fruition at trial, the Court is unable to resolve the “windfall” issue at this time based on

the fragmentary briefing of same that the parties have bootstrapped to briefs on the unrelated

Daubert motion.

-3-

property value into this trial. Simply put, that avenue has been sealed off, by virtue of plaintiffs’

representations to the Court and the ensuing Orders. Accordingly, defendants’ fear that plaintiffs

may somehow slip diminution in value back into the case, such that Dr. Desvousges’ testimony

would become relevant, is misplaced.

For all of the foregoing reasons, Plaintiffs’ Motion to Exclude William Desvousges’

Expert Testimony, Opinions and Reports (doc. 306) is granted. As this action is presently

postured, Dr. Desvousges’ opinions are not relevant to any remaining issue for trial; therefore,

his testimony and opinions are excluded pursuant to Rules 402 and 702 of the Federal Rules of

Evidence.3

DONE and ORDERED this 2nd day of March, 2010.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:08-cv-00068-WS-B Document 382 Filed 03/02/10 Page 3 of 3