Free Reply to Response to Motion - District Court of Connecticut - Connecticut

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UNITED STATESDISTRICT COURT DISTRICT OF CONNECTICUT
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THOMAS SABELLA andKAREN SABELLA, Plaintiffs, -againstNORTHEAST GENERATION SERVICES COMPANY andNORTHEAST UTILITIES, Defendants.
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Civil Action DocketNo. 3:02CVl122 (SRU)

REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION TO STRIKE THE APPRAISAL AND CERTAIN PARAGRAPHS OF DEFENDANTS' RULE 56 STATEMENT

PRELIMINARY STATEMENT Defendants' silencein their oppositionto plaintiffs' motionto strikethe appraisal implicitly confirmsthe substantive statements contained within plaintiffs' motion. Defendants concede that their "expert" lacksany first-handknowledgeof the original conditionof the building. Defendants further admit that single and doublehearsay rampantthroughoutthe report andthat their expert is failed to identify or producethe documents substantiate work in thereport. Indeed,beyond that the the expert's signatureattestingto the report and its content,the report would be devoid of any indicia of reliability. Building on this factualvoid, defendants haveneglected meettheir burden to of proof andprovide a legal basisfor the Courtto allow for the report's acceptance. plaintiffs, The therefore,requestthat the Court grant their instant motion and strike the report, togetherwith references the report, or other form of reliance,within the defendants'papersin oppositionto to summary judgment and in supportof their own cross-motion summary for judgment. -I-

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STATEMENT

OF FACTS

Plaintiffs Thomas and Karen Sabella provided all the facts necessaryto the instant motion to strike the appraisal in their "Memorandum of Law in Support of Plaintiffs' Motion to Strike the Appraisal and Certain ParagraphsofDefendants' Rule 56 Statement," dated February 13,2004 ("Pl. Mem."), and the accompanying" Affidavit in Support [of Harry J. Nicolay, Jr.]," sworn to February 13,2004 ("Nicolay Aff."). Defendants, in opposing the motion, have not submitted or referred to

any factual representations. Plaintiffs, accordingly, respectfully refer the Court to those documents that they originally submitted to the Court.

ARGUMENT

THE COURT SHOULD STRIKE THE INADMISSIBLE APPRAISAL AND DEFENDANTS' STATEMENTS THAT RELY UPON IT

The extensive presence of hearsay within defendants' expert appraisal precludes its use in the pending cross-motions for summary judgment. A party moving for or opposing summary judgment, typically, may only rely on admissible evidence. Samuels v. Doctors Hasp., Inc., 588 F.2d 485,486 n. 2 (2d Cir. 1979). The federal rules detail the limited exceptions to this rule with respect to an expert's testimony. See Fed. R. Evid. 702 and 703. A party seeking to rely on an expert's opinion must demonstratea) that the expert relied on facts and data of the type relied upon by experts in the field and b) that this reliance is reasonable. Id. See Charles Wright and Victor Gold, 29 Federal Practice and Procedure at § 6274 (West 1997); see also Soden v. Freightliner Corp., 714 F.2d 498,505 (5thCir. 1983)(noting that "though courts have afforded experts a wide

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latitude in picking and choosing sourceson which to base opinions, Rule 703 neverthelessrequires courts to examine the reliability of those sources"). The Court servesthe gatekeeperto assessand determine the admissibility of any proffered testimony. SeeBaumholser v. Amax Coal Co., 630 F .2d 550, 553 (6th Cir. 1980)(citing Standard Oil Co. v. Moore, 251 F.2d 188 (9th Cir. 1957)). Defendants' refusal to addresslet alone meet this burden requires the striking of the report. Plaintiffs have demonstrated, and defendants have implicitly conceded, that their expert's opinion is founded on inadmissible hearsay evidence. See Pl. Mem. at 3-6. Although the expert report acknowledges that the defendants' appraiser never visited the site prior to its alteration and that a substantial difference of opinion exists with respectto the work performed, the report provides an opinion of what work defendantsperformed on the building in 1999. SeeNicolay Aff., Exh. A at 17-19. The $700,000 difference between defendants' own stated estimate of the cost of the work they performed and defendants' expert illustrates both the absenceof any reliable information and how the expert's report fails to "assist the trier of fact to understand the evidence or to determine a fact in issue " Fed. R. Evid. 702. The report further relies on a vast array of inadmissible

information to manufacture purported comparable data and rates. Defendants' expert report provides a list of allegedly comparableleaseproperties and their rental contracts without defendants' expert identifying a single source for this information. The absenceof any identification for their source reduces this Court to wondering whether the information is accurate, hearsay statements, multi-hearsay statementsor random guessing on the expert's part. Indeed, in failing to identify a single source for its information, defendants' "expert" is guilty of the one error every high school student is taught to correct before turning in a report. Ultimately, the Court should reject this

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unattributed information because, again, it fails to assist the Court in understanding evidence or determine an issue of fact. Defendants, furthermore, in relying on the rules of evidence, have failed to meet their burden of proof for demonstrating the admissibility of the report. As already noted, defendantsbore a twopart burden and they have failed to address either aspect of the burden. See Charles Wright and Victor Gold, 29 Federal Practice and Procedure at § 6274 (West 1997). Defendants have not discussed, let alone shown, that their expert relied upon data and facts of the type relied upon by experts in their field. Beyond mouthing the words of the first half of the test in their responding brief,' see "Defendant's Memorandum of Law in Opposition to Motion to Strike, dated March 16, 2004 ("Opp Mem.") at 3, defendantshave not offered any sworn statement from their expert as to the source of their expert's information or why appraiserstypically rely on that information. Defendants' single-sentence mention of their expert's standardcomparesfavorably, however, with their complete failure to show why their expert's reliance on the data was reasonable. See generallyOpp. Mem. (failing to consider this half of their burden). Defendants' silence and inability to demonstrateto the Court why reliance on inadmissible data would be reasonablestrikes the death

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Defendants' authority, Opp. Mem. at 3, does not support its cause. JupiterRealty

Co. v. Board of Tax Review, 242 Conn. 363,698 A.2d 312 (1997), concerns the issue of statutory construction and a tax payers ability to challenge the assessment his home during an interim of year. Id. at 364, 698 A.2d at 313 (labeling this as the dispositive issue). Defendants' statutory authority provides even less support. Conn. Gen. Stat. § 12-63b addressesthe valuation of rental income real property. See Conn. Gen. Stat. § 12-63b (providing three different elements for valuating the property for tax assessment purposes). Defendants, however, offer their appraiser's report to provide estimated market lease rates for the building. See "Memorandum of Law of Northeast Generation Services Company and Northeast Utilities in Opposition to Plaintiffs' Motion for Partial Summary Judgment and in Support of Cross Motion for Summary Judgment," undated, at 20-21. The formula specified within the statute might intersect but has no direct correlation with the estimation of annual market rates. In short, the cited authority fails to support defendants' attempt to meet the first half of its burden of proof. -4I

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knell for the report and requires its removal from any role in the cross-motions for summary judgment. In short, the Court should strike the report and all references to it becauseit is founded entirely on inadmissible evidence and does not help the Court "to understand the evidence or to determine a fact in issue "

Defendants' added reliance on Rule 705 is misplaced and has no application to the pending cross-motions for summary judgment. Opp. Mem. at 3. Rule 705 addresses the order of

presentation of evidence, most typically at trial. SeeFed R. Evid. 705, Advisory Committee's Note (stating that "[t]he elimination of the requirement of preliminary disclosure at trial of underlying facts or data has a long background of support). As a purely trial-centered rule, Rule 705 has no application in the instant motion.

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CONCLUSION

The Sabella's request that the Court strike the Grant Appraisal from the defendants' Rule 56 Statement, Exhibit L, as well as paragraphs 17 through 20 and 27, which are wholly founded on that document, as well as all other direct or indirect references to the report in defendants' summary judgment papers. The overwhelming presence of hearsay evidence throughout the report, the

authors failure to identify the sources of their information

and the report's basic inability to assist The plaintiffs,

the Court provide ample grounds for the Court to grant the instant motion.

accordingly, request that the Court grant their motion in full, together with such other, further and different relief as the Court may deem just and proper in the circumstance disbursements of this motion. and the costs and

Dated: White Plains, New York March 29, 2004

COLLIER, HALPERN, NEWBERG, NOLLETTI & BOCK, LLP Attorneys for Plaintiffs

By: Harry. icolay ., Esq., (CT24875) a Member of the Firm One North Lexington Avenue White Plains, N.Y. 10601 (914) 684-6800

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CERTIFICATE

OF SERVICE

This is to certify that on March 29, 2004, a copy of the foregoing "Reply Memorandum of Law in Support of Plaintiffs' Motion to Strike the Appraisal and Certain Paragraphsof Defendants' Rule 56 Statement," dated March 29, 2004, has been served upon the following counsel of record by depositing a true copy thereof in a properly addressed wrapper, deposited in an official depository of -- an overnight courier service -- Federal Express, located at One North Lexington Avenue, White Plains, New York 10601, marked for overnight delivery, prior to the latest time designated by Federal Express for overnight delivery, with confirmation of delivery requested: To: Ann H. Rubin, Esq. Carmody & Torrance LLP 195 Church Street, 18thFloor P.O. Box 1950 New Haven, Connecticut 06509-1950 Duncan R. MacKay, Esq. Northeast Utilities Service Company P.O. Box 270 Hartford, Connecticut 06141-0270

Courtesv Covv: Chambers, Honorable Holly B. Fitzsimmons United StatesMagistrate Judge United States District Court District of Connecticut 915 Lafayette Boulevard Bridgeport, Connecticut 06604 Chambers, Honorable Stefan R. Underhill U.S. District Judge U.S. District Court, District of Connecticut 915 Lafayette Boulevard, 4thFloor Bridgeport, Connecticut 06604

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