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R.I. Supreme Court Holds Trial Court Abused Discretion By Excluding Or Discounting Expert Testimony On Value of Stone Wall And Trees

The Rhode Island Supreme Court has held the Superior Court abused its discretion by excluding the potential testimony of a geology professor as an expert on stone walls and by discounting the expert testimony of a professional arborist on the value of trees. The Court said its recent decisions on expert testimony were intended to liberalize the admission of expert testimony and that the proposed testimony had sufficiently reliable bases.

Plaintiff brought suit for damages and injunctive relief against defendant alleging that defendant had knocked down a stone wall between their properties and cut down approximately 200 trees on plaintiff's property. Defendant had purchased his property in 1986. Plaintiff purchased his in 1991. Plaintiff's property is 53 acres of mostly undeveloped woodland. In the early 2000s, plaintiff was walking his property and discovered that a large portion of the stone wall between his property and defendants had been destroyed and that many trees were missing. He filed suit in 2005 alleging, inter alia, violation of a Rhode Island statute that provides for double or treble damages against a person who cuts trees on another person's property and carries away the wood, respectively, and another statute that makes it a crime to steal a historic stone wall.

Plaintiff testified that defendant had been clearing trees and dumping fill on defendant's property for about ten years after plaintiff purchased his land. Defendant had used excavators, bulldozers and backhoes for this work. Plaintiff estimated that the damaged portion of the stone wall was 300-400 feet and that most of the missing trees were tupelo which he said was a rare and historic species.

Plaintiff called as an expert witness a professor of geology at the University of Connecticut. The professor said he focused on the study of historic stone walls and he had published three books and numerous articles on the topic. After a voir dire, the Superior Court held the professor was an expert in geology but precluded any testimony based on "stone wall science" because the study of that topic was unreliable, had not garnered sufficient acceptance in the scientific community and had not been subjected to peer review. The Superior Court said the expert could offer opinions concerning stone walls to the extent those opinions were based on geology.

The expert testified he had inspected the property. He said the wall was deliberately damaged by a piece of construction equipment. He did not offer an estimate of the value of the wall.

Plaintiff also called a professional arborist as an expert witness. The arborist estimated that that the trees had been clearcut about 6-7 years before his inspection in 2008. He estimated that 190 trees had been removed of which 70 percent were tupelo, 20 percent maples, 5 percent poplars and 5 percent black oak. He estimated the trees were between 80 and 100 years old. The expert said he had called several nurseries for estimates of the replacement costs of the trees. He prepared an estimate of the value of the trees using the Purdue University Method of tree appraisal. Based on his estimates and the Purdue method, he calculated the missing tupelo trees were worth $399,000 and all the missing trees were worth $439,600 in total.

At the close of all the evidence, the Superior Court granted defendant's motion for judgment as a matter of law. The court held that plaintiff had failed to prove the value of the stone wall. With respect to the value of the trees, the court said plaintiff had failed to prove their value at the time of the removal as opposed to when plaintiff's expert did his analysis.

The Supreme Court began its analysis by reviewing its opinion in DePetrillo v. Dow Chemical in which it adopted Daubert v. Merrell Dow Pharmaceuticals. It said, however, that when the proffered expert testimony is neither highly technical nor novel that satisfying one or more of the factors set forth in Daubert is not a condition precedent to admitting the testimony. Those factors were intended to "liberalize the admission of expert testimony by providing a mechanism by which parties can admit new or novel scientific theories that may otherwise have been deemed inadmissible."

The Court said, by contrast, that stone walls have been the subject of jurisprudence in New England since colonial times. In addition, the expert's theories on stone walls appear to have their foundations on well-established princples of geology. While his books may not have undergone a peer review, his peers provided positive commentary and feedback on his work. In addition, his qualifications indicate that he is not a "charlatan or purveyor of junk science." The Court said the Superior Court abused its discretion by excluding the expert's proposed testimony on the value of the stone wall.

With respect to the trial court's decision on the failure of plaintiff's damages respecting the trees, the Supreme Court said it rested on several impermissible assumptions, including that the values for the trees upon which expert had made his analysis were not appropriate for the time period when the trees were removed. In addition, the trial court found the damages calculation to be speculative. Finally, the trial court expressed its concern that the damages to the trees might exceed the fair market value of the entire property.

The Supreme Court said assessing compensatory damages is the province of the jury and need not be proven with mathematical exactitude. Damages can be based on reasonable and probable estimates. The Court reviewed the jurisprudence around the country regarding the reasonable value of damages to trees. It agreed with the trial court that evidence as to the diminution of the market value of plaintiff's property would be relevant to assessing the reasonableness of the arborist's testimony.

The Court vacated the Superior Court judgment and remanded the case for further proceedings consistent with its opinion.

Notably, there was seemingly nothing in the record during plaintiff's case-in-chief that substantiates that plaintiff intended to offer the geology professor's testimony on the value of the stone wall or what that opinion would be. Rather, that proffer apparently occurred only in chambers and then during argument on defendant's motion for judgment as a matter of law. In DePetrillo, the Court said the appellant had waived its arguments respecting expert testimony in identical circumstances by failing to make a record of the proposed testimony and the trial justice's decision in chambers to exclude it. (Then, it adopted Daubert in dictum). Here, the Court appears to overlook this same failure to preserve the record.

With respect to the arborist's testimony, the legal question would seem to be whether plaintiff had to establish that the expert's information on the replacement values of the trees applied at the time of the alleged removal, not just at the time of his analysis. The Court doesn't address this question directly but the result of its opinion indicates plaintiff did not have that burden. Apparently, that would be material for cross-examination.

Morabit v. Hoag, No. 2010-77-Appeal, 2013 WL 6181996 (R.I. Nov. 26, 2013)

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