Excluding Expert Testimony the Jury Already Heard

By Robert Ambrogi Esq

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.

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).

Robert Ambrogi Esq

Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and 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 currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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