Excluding Expert Testimony the Jury Already Heard

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Perry Mason: Season One, Vol. 1 (1957) - RF CafePerry Mason often used two precisely timed tactics to wrap up his courtroom cases. The first was asking the sworn party on the stand something like, "What if I told you we found the knife you threw away and Forensics lifted your fingerprints off it?" Said perp's council and the spectators would gasp in amazement and the murderer would subsequently offer a full confession, then ask Mr. Mason how he found the knife. "I never said we found the knife, I said 'what IF I told you we found the knife?'" The second tactic was making inadmissible statements for the jury to hear, knowing that the judge would instruct them to disregard it. As Robert Ambrogi states in this article titled, "Excluding Expert Testimony the Jury Already Heard," it is like trying to put the toothpaste back in the tube. In this case, there is a twist to the ramification. I post these articles from IMS ExpertServices to keep engineers and management abreast of the latest goings-on in court cases involving expert witnesses, especially intellectual property (IP) issues.

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BullsEye: December 2013

Excluding Expert Testimony the Jury Already Heard

Posted by Robert Ambrogi, Contributing Author on 2013/12/31

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You've heard the saying, "You can't put toothpaste back in the tube." Well, how about expert testimony the jury wasn't supposed to hear? Does a judge's instruction to disregard the testimony put the toothpaste back where it belonged? The 10th U.S. Circuit Court of Appeals recently faced that issue in an appeal involving just compensation for an oil and gas easement. The appeal challenged various rulings by the trial judge, including one instructing the jury to disregard a portion of an expert witness's testimony.

Interestingly, the appealing party's concern was not that the jury would be influenced by the testimony it was instructed to ignore. Rather, the concern was that the judge's instruction to ignore a portion of the expert's testimony would leave the jury less likely to accept the admitted portions of the expert's testimony.

Bob Ambrogi, IMS ExpertServices

Robert J. Ambrogi is a Massachusetts lawyer who represents clients at the intersection of law, media and technology. A news media veteran, he is the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is also internationally known for his writing and blogging about the Internet and technology.

Dispute over Pipeline Easement

The underlying suit was brought by Bison Pipeline LLC against property in Wyoming known as the Barlow Ranch. The Federal Energy Regulatory Commission had awarded Bison the right to construct a pipeline across the ranch in order to connect to an oil and gas development area contained within it.

When the parties could not agree on an appropriate amount of compensation for Bison's easement across the property, Bison sued in federal court to determine what would constitute the "just compensation" it would pay to Barlow.

At trial, a disputed issue was whether Barlow would be allowed to present comparable contracts as evidence of just compensation. After the trial judge ruled that he would allow Barlow to put the contracts into evidence, Bison countered by seeking to present the testimony of two experts to establish that the contracts should not be given weight because they were not the result of arms-length transactions.

For the first expert Bison presented, the trial judge excluded her testimony in its entirety, concluding that it was speculative and also that it was unclear on what basis she arrived at her opinion.

Jury Instructed to Disregard Testimony

As to the second expert, an appraiser, the court allowed him to testify. In the course of his testimony, the trial judge, in the presence of the jury, asked him a series of questions about his appraisal methodology. The exchange concluded with the court asking the expert, "None of the leases in the entire state of Wyoming for pipeline easements [represent market rates]?" The expert responded, "That's correct, none of them, not a single one."

Following that exchange, and now out of earshot of the jury, the judge expressed concern about the expert's answers to his questions – particularly his testimony stating his conclusion that there were no arms-length agreements in Wyoming or any other western state. This testimony, the judge said, may have circumvented a pretrial ruling about the scope of admissible expert evidence.

When the trial resumed the next day, the judge instructed the jury to disregard portions of the expert's testimony. Specifically, he told the jury to disregard the expert's statement that "he did not calculate market rents for the pipeline or the roadway easement or the meter site agreement, because he did not believe that there were any agreements in Wyoming or in other nearby states that represented market or arms-length transactions."

Did Instruction Prejudice Jury?

On appeal, Bison argued that the court's instruction "strongly signaled to the jury that

[the expert's] opinions of value could not have been legally accepted," and that the effect of the instruction "was to negate the probative value of his direct testimony." The result was to "effectively build a protective wall around Barlow's pipeline contracts, insulating the evidence from challenge."

But the 10th Circuit disagreed. It concluded that the lower court was correct to exclude the portion of the expert's testimony and to ask the jury to disregard it. Further, in the testimony that remained on the record, the expert was able to present his opinion that Barlow's evidence did not reflect arm's-length transactions, the 10th Circuit said.

Bison also challenged the exclusion of the entirety of its other expert's testimony. The 10th Circuit also found no error in the lower court's decision to exclude that testimony.

The case is Bison Pipeline v. 102.84 Acres of Land, No. 11-8052 (10th Cir., Oct. 17, 2013).

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