THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION CHASE BARFIELD, et al., Plaintiffs, v. Case No. 11-cv-04321-NKL SHO-ME POWER ELECTRIC COOPERATIVE, et al., Defendants. ORDER Pending before the Court is a Joint Motion to Strike the Reports and Testimony of John A. Kilpatrick, Plaintiffs expert, from the Court s Rule 23 class certification determination. [Doc. # 135]. For the reasons set forth below, the Motion to Strike is DENIED. I. Background This is a putative class action on behalf of approximately 3,000 landowners for trespass and unjust enrichment arising out of Defendants alleged misuse of electric transmission line easements on the class members properties. Plaintiffs allege that Defendants exceeded the scope of their electric-transmission easements by installing and operating a commercial fiber-optic communications network on Plaintiffs land. Plaintiffs assert that Defendants thereby deprived them of a valuable property right, the right to limit the relevant easements to their terms. 1 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 1 of 9
To support their claims for damages, Plaintiffs plan to call Dr. John A. Kilpatrick 1 as an expert witness. Dr. Kilpatrick filed his initial report in support of class certification in September 2012. Defendants moved to strike this report from the Court s class certification decision. [Doc. # 135]. While this Motion to Strike was pending, Dr. Kilpatrick filed a second report, which Plaintiffs claim cured the deficiencies in the first report. 2 II. Discussion A. Expert Review at the Class Certification Stage A party proposing to call an expert witness in support of their claim must show that the expert is qualified to give an opinion and that the expert s methodology is scientifically valid. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90, 113 S. Ct. 2786, 2795 (1993; Fed. R. Evid. 702. The ultimate admissibility of an expert s opinion at trial depends on the factors laid out in Daubert, including (1 whether the theory or technique can be or has been tested; (2 whether the theory or technique has been subjected to peer review or publication; (3 whether the theory or technique has a known or potential error rate and standards controlling the technique s operation; and (4 whether the theory or technique is generally accepted in the scientific 1 Dr. Kilpatrick holds a Ph.D. in Real Estate Finance. He is a certified real-estate appraiser in Missouri as well as other states, and a nationally certified appraisal standards instructor by the Appraisal Standards Board in Washington, D.C. He is the C.E.O. of a real estate appraisal and consulting firm; the author, editor, or contributing author to seven books on real estate; and the author of over 100 journal articles. He has also testified and consulted on various legal cases involving mass appraisals. [Doc. # 136-2 September 2012 Report]. He is clearly qualified to give an expert opinion on mass appraisals and any dispute about his qualifications goes to the weight of his testimony and not to its admissibility. 2 The Court will consider both reports to resolve Defendants Motion to Strike [Doc. # 135]. 2 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 2 of 9
community. Daubert, 509 U.S. at 592-94, 113 S. Ct. at 2796-97; see also Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012. At the class certification stage, however, a full Daubert analysis is not required. In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 611 14 (8th Cir. 2011, cert. dismissed, 133 S. Ct. 1752 (2013. The Eighth Circuit has explained that when determining the admissibility of an expert s opinion for purposes of class certification, only a tailored Daubert analysis is needed. Id. at 612. This analysis tailors the Daubert inquiry to the class certification determination by scrutiniz[ing] the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence. Id. at 614. In other words, the court asks whether the expert s opinion is sufficiently reliable to meet the requirements of class certification, without determining every detail of admissibility. The reasoning of the Eighth Circuit in Zurn was influenced by the fact that merits discovery had not commenced, and so there existed potential gaps in the available evidence that could affect the expert s ability to craft a complete report. Id. at 613. Relying on this reasoning, Defendants have requested a full Daubert analysis because discovery here was not bifurcated and has now been completed. However, Defendants did not seek this relief in their Motion, but rather moved to strike Dr. Kilpatrick s opinion only for purposes of class certification [Doc. # 135], and at that time discovery was less well developed. Furthermore, the Eighth Circuit has not said that a full Daubert analysis is required at the class certification stage when there has been no bifurcation of discovery. In fact, it emphasized that the main purpose of Daubert was to prevent juries 3 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 3 of 9
from being misled by dubious scientific evidence. Id. at 613. But at the class certification stage, it is the court which must determine whether the expert report is sufficient to satisfy the criteria for class certification. Id. Therefore, the Court will review fully those parts of Dr. Kilpatrick s report that must be admissible in order to establish the requirements of class certification. The Court will address all issues raised by the Defendants, taking into account the evidence presented in the parties briefing on the Defendants Motion to Strike. However, the Court will not resolve a Daubert challenge unrelated to the class certification question. Also, because Defendants Motion only deals with a damage expert, the Court s primary focus is on Plaintiffs theory of damages. Finally, as indicated in Zurn, the Court s rulings on class certification, including expert opinions, are preliminary and subject to change if the record or law changes. B. Class Damages In order to certify a class under Rule 23(b(3, as Plaintiffs are attempting to do, Plaintiffs must show that common questions predominate over issues requiring individualized, case-by-case analysis. Fed. R. Civ. P. 23(b(3; Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013. This predominance requirement includes questions of damages, which must be capable of measurement on a classwide basis, as opposed to necessitating myriad individual damage calculations. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013. Additionally, Plaintiffs must articulate a method for calculating damages that corresponds to their theory of liability. Id. 4 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 4 of 9
Plaintiffs theory of damages is based on the corridor valuation approach advocated by Dr. Kilpatrick. His analysis is that the value of a corridor a strip of land used for transmission of such things as power or information must be determined based on the value of the entire corridor, rather than the value of the individual parcels of land underlying the corridor. [Doc. # 152-1]. In essence, he opines that the total value of a fiber-optic corridor is greater than the sum of its individual segments. Therefore, the over-the-fence valuation of each individual segment should not be used. Rather, Dr. Kilpatrick argues that the value of each Plaintiff s lost property right can be calculated based on the total value of the corridor occupied by the fiber-optic cable, divided by the length of the corridor. The per-foot value of the corridor is then multiplied by the length of the corridor that runs through the Plaintiff s land. This theory of damages correlates with Plaintiffs theory of liability, i.e., the failure to comply with the terms of the easement injured Plaintiffs and the damages equal the value of the offending fiber optic corridor running through Plaintiffs land. This theory does not require any individual inquiry and will satisfy the prerequisites of Comcast, but only if Dr. Kilpatrick s corridor valuation opinion is reliable. Defendants assert that the corridor valuation theory is not reliable because it is not supported by other publications or scholars in the field of mass land appraisals and that Dr. Kilpatrick has misinterpreted some of the literature on which he relies. Specifically, Defendants direct the Courts attention to an article by Arthur Rahn, Across the Fence Methodology for Valuation of Corridors: What Is It and How Is It Used?, 69 Appraisal Journal 270 (2001. In his initial report, Dr. Kilpatrick relied in part on this article. 5 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 5 of 9
However, Defendants point to other parts of Rahn s article that do not support Dr. Kilpatrick s opinions. Specifically, Rahn expresses hesitation about using comparable sales in corridor valuations, which is what Dr. Kilpatrick has purportedly done in his expert report. Dr. Kilpatrick also relied on texts by J.D. Eaton, Real Estate Valuation in Litigation (2d. ed. 1995, and the Interagency Land Acquisition Conference, Uniform Appraisal Standards for Federal Land Acquisitions (2000 (apparently known among appraisers as the Yellow Book. Defendants contend that these sources do not support Dr. Kilpatrick s corridor valuation method either. If these were the only two authorities cited by Dr. Kilpatrick to support his corridor valuation theory, the Court might find the Defendants argument persuasive. Although it is not unusual for an expert to disagree with part of what a colleague writes, the absence of any authority supporting Dr. Kilpatrick s opinion would likely be dispositive of a Daubert challenge. However, Dr. Kilpatrick cites to other authority to support his theory. 3 It even appears that his theory has limited support from Defendants expert. See New York Cent. Lines, LLC v. State, 101 A.D.3d 966, 968, 957 N.Y.S.2d 252 (2012 ( The specific comparable sales approach advocated by [claimant s expert Charles]Rex was the corridor valuation method. Thus, at most, the record shows a split in the appraisal industry, and under these circumstances it is for a jury to weigh these competing 3 See David Bolton and Kent Alan Sick, Valuation of Utility Corridors: Proper Methodology for Appraising Property Rights (2002, available at: http://www.bbrec.com/attachments/articles/20/articlevaluation.pdf (last accessed 6/2/13 (concluding that the corridor valuation method is the most appropriate method to use when valuing properties that obviously have a highest and best use of easement corridor. ; Barry Diskin and Liz Citron, A Corridor within a Corridor: A Case Study of Fiber Optics Corridor Valuation, Journal of Property Valuation & Taxation (2002. 6 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 6 of 9
authorities to determine whether Dr. Kilpatrick s analysis should be accepted. For purposes of Daubert, [t]he focus... must be solely on principles and methodology, not on the conclusions that they generate. In re Zurn Pex, 644 F.3d at 615 (quoting Daubert, 509 U.S. at 595, 113 S. Ct. 2786. It is for the trier of fact to weigh which conclusion has more merit. See Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir. 2003. Where there are competing conclusions presented, it is not the Court s role to determine which is more meritorious. Nat l Bank of Commerce of El Dorado v. Associated Milk Producers, Inc., 191 F.3d 858, 864 (8 th Cir. 1999 ( a district court is not to judge the validity of competing conclusions of expert witnesses, but rather is to limit its gate-keeping role to determining whether the expert testimony offered by the parties meets the Daubert standards of reliability and relevance.. Therefore, for purposes of class certification, Dr. Kilpatrick s corridor damage theory is sufficiently reliable to be considered because there is authority in the appraisal field to support it. Defendants also raise other challenges to the ultimate admissibility of Dr. Kilpatrick s opinion. They claim that Dr. Kilpatrick gives impermissible legal opinions in his reports and they should be stricken. Yet Defendants do not explain how those legal opinions render his entire damage theory inadmissible. Furthermore, Dr. Kilpatrick does not appear to be giving legal opinions in his report; rather, he cites legal information routinely used in his profession. Defendants also question the data Dr. Kilpatrick uses to calculate the total value of the fiber optic corridor. 4 However, 4 Dr. Kilpatrick asserts that corridor easements for fiber-optic cable have a value that clusters in the $1.50 to $3.50 per-linear-foot range, regardless of where in the nation the corridor was 7 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 7 of 9
[c]alculations need not be exact at the class certification stage, so long as the method of calculating damages is consistent with Plaintiffs liability case. Comcast, 133 S. Ct. at 1433. See also Parra v. Bashas, Inc., 2013 WL 2407204 at *32 (D. Ariz. May 31, 2013 (holding that plaintiffs had met their burden at the class certification stage because unlike Comcast, plaintiffs methodology (although not fully developed for calculating back pay demonstrates that such damages are capable of measurement on a classwide basis. (internal quotes omitted; Munoz v. PHH Corp., 2013 WL 2146925 at *25 (E.D. Cal. May 15, 2013 (determining that the court need not resolve disagreements about the appropriate measure of damages at the class certification stage, since regardless of which measure was used, damages would be measurable on a class-wide basis. Dr. Kilpatrick s report shows that telecommunication corridors and individual segments of corridors are routinely bought and sold using corridor valuation. This demonstrates that valuations can be accomplished using the corridor method, rather than valuing individual segments based on the value of the surrounding land. There is also evidence that consumers of fiber optic services do not pay a differential based on the part of the country that they live in merely because the land in their area is more or less valuable. A similarity in cost irrespective of geographic region supports an inference of similarity in the value of the lines of distribution without regard to geographic region. Finally, whether the precise calculations made by Dr. Kilpatrick are reliable is not relevant to located. [Doc. # 171-1 Plaintiff s Surreply in Opposition, p. 5] (emphasis in original. Based on data compiled from various fiber optic corridor easement transactions around the country over the past three decades, Dr. Kilpatrick determined that the average rental value of the corridor in question is $12,819 per mile or $2.43 per linear foot, in 2013 dollars. [Doc. # 152-1 February 2013 Report]. 8 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 8 of 9
class certification. Only the viability of the corridor theory is relevant to whether Plaintiffs have a damage calculation that can be applied to the class as a whole without being overwhelmed by individual inquiries. As the Supreme Court has recently reiterated, Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification state. Merits questions may be considered to the extent but only to the extent that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. Amgen, 133 S. Ct. at 1194-95. Dr. Kilpatrick s opinion satisfies the tailored Daubert analysis proper at the class certification stage because it presents a reliable theory for addressing damages on a class wide basis in accordance with Plaintiffs liability theory, without individual issues predominating. III. Conclusion For the reasons stated above, Defendants Motion to Strike for Purposes of Class Certification [Doc. # 135] is DENIED. Dated: July 8, 2013 Jefferson City, Missouri s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge 9 Case 2:11-cv-04321-NKL Document 246 Filed 07/08/13 Page 9 of 9