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Excluding Expert Testimony the Jury Already Heard
Reprinted with permission.
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: December 2013
Excluding Expert Testimony the Jury Already Heard
Contributing Author on 2013/12/31
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.
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
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.
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
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
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
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."
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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Posted January 15, 2014
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