Expert Testimony Disallowed but Testimony from Witness Elucidating Research Allowed as Factual
In the MTBE mass tort litigation, In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 44216 (S.D.N.Y. June 4, 2008), homeowners in a small town in Orange County, New York, contended that their property values had been damaged by MTBE pollution. Their expert was prepared to testify that property values had declined 15% based on a study of market data. But their expert’s report did not satisfy Rule 702’s reliability test:
In this case, I am unable to discern any method — much less a reliable method — that Langer used to reach his conclusion that the value of plaintiffs' property decreased by fifteen percent because of MTBE contamination. Rather, Langer has merely compiled market data and then offered his conclusions, yet he has failed to explain the relationship between the two.... The ultimate problem with Langer's opinion is not his conclusion but the fact that he fails to identify any methodology and thereby prevents the Court any means by which to assess the reliability of his opinions. "One cannot assess the reliability of reasoning or methodology that is unexplained."
The witness was not altogether excluded, however. He was permitted to appear as a fact witness to testify to market data that he gathered, and the jury would thereafter be allowed to draw a connection between the pollution and any diminution in property value that they might concluded had resulted:
While Langer's expert testimony does not satisfy Rule 702, the statistics that he gathered on retail property in Fort Montgomery and Orange County are relevant to plaintiffs' action. Under Rule 401, "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Plaintiffs could argue to the jury that they may find, based on all of the evidence, that the sales figure statistics demonstrate that MTBE contamination was a cause of the diminished value of plaintiffs' homes. *** If plaintiffs submit the statistics to the jury, Langer may explain how he gathered the statistics. Of course, plaintiffs are cautioned that Langer will not be allowed to testify on how to interpret these statistics or otherwise offer his expert opinion on the effect that MTBE contamination in Fort Montgomery had on the value of plaintiffs' property.
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