RF Cafe Software

RF Cascade Workbook 2005 - RF Cafe
RF Cascade Workbook

Calculator Workbook
RF Workbench
Smith Chart™ for Visio
Smith Chart™ for Excel
RF & EE Symbols Word
RF Stencils for Visio

About RF Cafe

Kirt Blattenberger - RF Cafe WebmasterCopyright
1996 - 2016
Webmaster:
Kirt Blattenberger,
 BSEE - KB3UON

RF Cafe began life in 1996 as "RF Tools" in an AOL screen name web space totaling 2 MB. Its primary purpose was to provide me with ready access to commonly needed formulas and reference material while performing my work as an RF system and circuit design engineer. The Internet was still largely an unknown entity at the time and not much was available in the form of WYSIWYG ...

All trademarks, copyrights, patents, and other rights of ownership to images and text used on the RF Cafe website are hereby acknowledged.

My Hobby Website:
 AirplanesAndRockets.com

Try Using SEARCH
to Find What You Need. 
There are 1,000s of Pages Indexed on RF Cafe !

Electronics World Cover,TOC,and list of posted Popular Electronics articles QST Radio & TV News Radio-Craft Radio-Electronics Short Wave Craft Wireless World About RF Cafe RF Cafe Homepage RF Cafe in Morse Code Google Search of RF Cafe website Sitemap Electronics Equations Mathematics Equations Equations physics Manufacturers & distributors Engineer Jobs Twitter LinkedIn Crosswords Engineering Humor Kirt's Cogitations Engineering Event Calendar RF Engineering Quizzes AN/MPN-14 Radar 5CCG Notable Quotes App Notes Calculators Education Magazines Software,T-Shirts,Coffee Mugs Articles - submitted by RF Cafe visitors Simulators Technical Writings RF Cafe Archives Test Notes RF Cascade Workbook RF Stencils for Visio Shapes for Word Thank you for visiting RF Cafe!

Excluding Expert Testimony the Jury Already Heard

Visit IMS Expert Services
Reprinted with permission.


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.


BullsEye Blog logo (IMS ExpertServices) - RF Cafe
BullsEye: December 2013

Excluding Expert Testimony the Jury Already Heard

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

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).


IMS Expert Services is the premier expert witness and litigation consultant search firm in the legal industry. IMS is focused exclusively on providing custom expert witness search services. We are proud to be the choice of over 95 of the AmLaw Top 100. Call us at 877-838-8464.




Other IMS ExpertServices BullsEye and Expert Library Articles on RF Cafe:

Posted  January 15, 2014