Delaware Department of Transportation v. Melpar, LLC

• Court: Superior Court of Delaware
• Decided: August 25, 2022
• Docket: S21C-03-017 FJJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE STATE OF DELAWARE, UPON ) THE RELATION OF THE SECRETARY ) OF THE DEPARTMENT OF ) TRANSPORTATION, ) ) Plaintiff, ) ) C.A. No.: S21C-03-017 FJJ v. ) ) MELPAR, LLC, 1,7761995 SQUARE ) FEET (0.0408 ACRES) OF LAND, ) 711.9788 SQUARE FEET (0.0163 ACRES) ) OF LAND, 3,598.7712 SQUARE FEET ) (0.0826 ACRES) PART OF TAX MAP ) AND PARCEL NUMBER ) 234-23.00-269.14 SITUATED IN INDIAN ) RIVER HUNDRED, and DASH-IN ) FOOD STORES, INC. ) ) Defendants. )

Submitted: August 22, 2022 Decided: August 25, 2022

ORDER ON DEFENDANTS’ MOTION IN LIMINE TO EXDLUDE PLAINTIFF’S EXPERT - DENIED

Brady Eaby, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State of Delaware,

Richard A. Forsten, Esquire, Saul, Ewing, Arnstein & Lehr, LLP, Wilmington, Delaware. Attorney for Defendant Dash-In Food Services, Inc.

Richard L. Abbott, Esquire, Abbott Law Firm, Hockessin, Delaware. Attorney for Defendant Melpar, LLC.

Jones, J. This is a condemnation action filed by the Delaware Department of

Transportation (“DelDOT”) against Melpar, LLC (“Melpar”) and Dash-In Food Stores,

Inc. (“Dash-In”). The property at issue is commercial property located at the southeast

corner of the intersection of State Road 24, John Williams Highway and Long Neck Road,

Sussex County. Melpar owns the real property at issue. Dash-In is a tenant operating a

gas station and convenience store at the subject property.

The taking involves a change to the ingress and egress of the property from Route

23 for safety reasons. Prior to the taking, traffic could enter and exit the property from

both directions of Route 23. After the taking, traffic exiting the property onto Route 23 is

limited to a right northbound turn and the traffic entering the property from Route 23 can

only enter while traveling northbound on Route 23 and cannot make a left turn from

southbound Route 23 onto the property.

Melpar has filed a Motion in Limine to exclude the testimony of Georgia Nichols

(“Nichols”) who is the State’s expert appraiser. According to Melpar, Nichols’ testimony

is based on inaccurate premises and/or unfounded assumptions to such an extent that her

testimony should be inadmissible according to the teachings of Perry v. Berkley, 996 A.2d

1262, 1267 (Del. 2010). For the reasons set forth below, Melpar’s Motion is DENIED.

2 Standard of Review

Delaware Rule of Evidence 702 governs the admissibility of expert testimony.

Delaware has adopted the holdings in Daubert v. Merrell Dow Pharmaceuticals Inc.1 and

Kumho Tire Co., Ltd. v. Carmichael2 to interpret the Delaware Rule.3 In Daubert and

Kumho, the United States Supreme Court interpreted and explained Federal Rule of

Evidence 702, which is “substantially similar” to the Delaware Rule.4 Delaware Rule 702

states:

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 to understand the evidence or to determine a fact in issue; (b) the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the witness has applied the principles and methods reliably to the facts of the case.5

To be admissible, expert testimony must be “relevant and reliable.”6 To make this

determination, the trial judge engages in a five-step analysis.7 This analysis provides that

the trial judge finds that:

(1) the witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the evidence is relevant;

1 509 U.S. 579 (1993). 2 526 U.S. 137 (1993). 3 Bowen v. E.I. DuPont de Nemours, Inc., 906 A.2d 787, 794 (Del. 2006) (citing M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999)). 4 Smack-Dixon v. Walmart Inc., 2021 WL 3012056 (Del. Super. July 16, 2021) (citing Bowen. 906 A.2d at 794 (Del. 2006)). 5 D.R.E. 702. See also Smack-Dixon, 2021 WL 3012056 (Del. Super. 2021). 6 Daubert, 508 U.S. at 597. 7 Smack-Dixon, 2021 WL 3012056 at *2 (citing Bowen, 906 A.2d at 795).

3 (3) the expert’s opinion is based on information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and (5) the expert testimony will not create unfair prejudice or confuse or mislead the jury.8

The burden of establishing that the expert testimony is admissible lies with its

proponent by a preponderance of the evidence.9 “A strong preference exists” for admitting

expert opinions “when they will assist the trier of fact in understanding the relevant facts

or the evidence.”10

Reliable expert testimony is premised on scientific or specialized knowledge

which requires the testimony to be grounded in scientific methods and procedures and

“supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11

Many scientific, technical, or specialized fields are not subject to peer review and

publication which is why the test of reliability is “flexible.” Rigid application of the

Daubert factors cannot just be engaged to determine testimonial reliability in every field

of expertise.12

A gatekeeping judge has “broad latitude” to determine whether an expert’s

proffered opinion is based upon the “proper factual foundation and sound

8 Id. 9 Id. 10 Id., (quoting Delaware ex. Rel. French v. Card Compliant, LLC, 2018 WL 4151288 at *2 (Del. Super. Aug. 29, 2018)) (quoting Normal v. All About Women, P.A., 193 A.2d 726, 730 (Del. 2018)). 11 Daubert, 508 U.S. at 590. 12 Henlopen Hotel v. United Nat’l Ins. Comp., 2020 WL 233333 at *3 (Del. Super. Jan. 10, 2020).

4 methodology.”13 This “proper factual foundation” language has been distilled from

Delaware Rule 702.14 To meet the criterion for a “proper factual foundation,” an expert’s

opinion must be based on “facts” and not “suppositions.”15 And a proponent need only

show by a preponderance of the evidence that her expert’s opinions are reliable, not that

they are correct.16 So, this Court’s Rule 702 reliability examination must focus on

principles and methodology, not on the resultant conclusions.17

Delaware courts generally recognize that challenges to the “factual basis of an

expert opinion go[ ] to the credibility of the testimony, not the admissibility, and it is for

the opposing party to challenge … the expert opinion on cross-examination.”18 “The

different depth with which [an expert] pursued particular lines of investigation and the

different assumptions they made are readily subject to cross-examination and to

evaluation by the fact finder for credibility and weight.”19 An expert’s testimony will only

13 Russum v. IPM Development Partnership LLC, 2015 WL 2438599 at *2 (Del. Super. May 21, 2015). 14 Id. 15 Id. at *3. 16 State v. McMullen, 900 A.2d 105, 114 (Del. Super. 2006) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)). 17 Henlopen Hotel, 2020 WL 233333 at *2 (“At bottom, the Court’s examination of an expert’s opinion must be solely focused on principles and methodology, not on the conclusions they generate.”) (quoting Tumlinson v. Advanced Micro Devices, 81 A.3d 1264, 1269 (Del. 2013)). 18 Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010). See also Hodel v. Ikeda, 2013 WL 226937 at *4 (Del. Super. Jan. 18, 2013); Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”) (internal citations omitted); Russum, 2015 WL 2438599 at *3. 19 Henlopen Hotel, 2020 WL 233333 at *4; Perry v. Berkley, 996 A.2d at 1271 (noting cross-examination rather than exclusion can be the proper method of exploring the bases of an expert’s opinion and the weight to be ascribed thereto).

5 be excluded in the narrow circumstance where she is shown to have completely neglected

the core facts of the case.20

Analysis

There is no question in this Court’s mind that Nichols is a qualified appraiser; that

her opinion is relevant; that her opinion is based upon information reasonably relied upon

by experts in her particular field; and her expert testimony will assist the trier of fact in

understanding the evidence or to determine a fact in issue. The sole issue with the

testimony is whether it is so profoundly based on inaccurate premises or unfounded

assumptions so as to confuse or mislead the jury and make the testimony inadmissible.

Melpar contends that there are three unfounded assumptions in Nichols’ reports which

renders her testimony inadmissible. Those unfounded assumptions are (1) the subject

property’s gas station canopy, underground fuel tanks and fuel pumps are not included in

the valuation (hereinafter collectively referred to as “fueling equipment”); (2) the new

DELDOT modified entrance on Route 23 is wide enough to accommodate fuel delivery

trucks; and (3) the lease between Melpar and Dash-In included a building and

improvements.

Turning first to the fueling equipment issue. Nichols did not value the fueling

equipment because of her view that it was a fixture. Melpar’s appraiser also did not

consider the fueling equipment in his appraisal because of his conclusion that this

20 Russum, 2015 WL 2438599 at *3.

6 equipment was not owned by Melpar, but by Dash-In. How Melpar can claim error for

the plaintiff’s expert’s failure to include the fueling equipment in its appraisal when its

own expert reaches the same conclusion (but for different reasons) escapes logic. For this

reason alone, Melpar’s argument on this point fails.

Moreover, this is not a situation, as in Perry, where an expert was completely

unaware of the existence of the fueling equipment issue. The experts on both sides were

aware of the fueling equipment issues and they each addressed the issue as they felt

appropriate. The reasons for each expert’s conclusion on how this issue effected their

appraisal is the proper subject of cross-examination.

This same analysis applies equally to the fuel truck movement issue. There is a

contested factual dispute about whether the taking impacts the ability of trucks delivering

fuel products to maneuver about, and/or in and out of the property. Both experts are aware

of this dispute and have handled it in a manner that each believes properly supports their

appraisal of the property. Nichols handling of this issue is not based on an unfounded

assumption but based on her client’s view of the facts, which has support in the record.

This goes not to the admissibility of Nichols testimony, but to its weight.21 This will be

an issue for the Commissioners’ consideration.

Finally, Melpar takes issue with Nichols’ conclusion that the convenience store is

part of the real property. Melpar maintains that this is a land lease and therefore its

21 Cornell Glasgow, LLC v. LaGrange Properties, LLC, 2012 WL 6840625 (Del. Super. Dec. 7, 2012).

7 appraisal is correct that the value of the store should not be included in its appraisal.

DelDOT included the convenience store as part of its evaluation because the convenience

store, according to DelDOT, is part of the real property. The experts disagree. This

disagreement does not translate into opinions based on unfounded assumptions but

centers on an issue that the parties view differently. As with the other two issues, this

dispute does not prevent the admissibility of Nichols’ opinion.

Perry v. Berkley was a personal injury claim. The challenge in Perry was to

plaintiff’s medical expert who opined that plaintiff’s injuries were related to the accident

in question because plaintiff never had any similar problems before the accident.

Plaintiff’s medical history demonstrated a long history of similar issues. On this record,

the court excluded the expert opinion due to a complete lack of knowledge of the

Plaintiff’s prior medical history. The Supreme Court affirmed holding that while

generally the factual basis goes to the credibility of the testimony, not its admissibility,

where the expert’s opinion is based on a completely incorrect case specific facts exclusion

of the testimony is appropriate.22 This court has held that an expert testimony will only

be excluded in the narrow circumstance where she is shown to have completely neglected

the core facts of the case.23 This case is not Perry. There are contested factual disputes

surrounding the fuel equipment, truck movement and inclusion of a convenience store

22 Perry, 996 A.2d at 1271. 23 Kaur v. Boston Scientific Corp., 2022 WL 1986178 (Del. Super. 2022).

8 into the appraisal of the property. The fact that Nichols’ appraisal assumes one set of facts

over another on any one of these points does not mean that her opinions are based on

unfounded assumptions or that she lacks knowledge of the record.24 It means that her

opinions will be subject to challenge by Melpar during cross examination. How these

facts and opinions on which they are based are weighed and decided is the job of the

Commissioners. Melpar’s Motion in Limine is DENIED.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

cc: File&ServeXpress

24 Cornell Glasgow, 2012 WL 6840625.