Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

CAROL AND ROBERT TESTWUIDE, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No.: 01-201L (Honorable Victor J. Wolski)

MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE REPORTS AND TESTIMONY OF DR. JON P NELSON. INTRODUCTION On September 20, 2006, Defendant, United States of America ("Defendant"), filed a Motion in Limine and Memorandum1 to exclude from the upcoming trial expert reports and testimony by one of Plaintiff's integral expert witnesses, Dr. Jon P. Nelson ("Dr. Nelson"). Defendant claims, without reason, that the Court should grant its motion pursuant to Daubert v. Merrell Pharm., Inc., 509 U.S. 579 (1993), Rule 702 of the Federal Rules of Evidence ("FRE") and related case law. The Court should deny Defendant's Motion because 1) Dr. Nelson, one of the foremost experts in his field, is amply qualified to offer expert opinion on a seminal issue in the case, the deleterious effect of jet noise on residential property values; 2) Dr. Nelson's reports and testimony are well-grounded in factual support and based on reliable principles and methodology; 3) exclusion of the disputed evidence and testimony would contravene the plain language of Daubert, FRE 702 and related case law, all of which are designed to promote broad admissibility of scientific and expert testimony which is relevant and helpful to the trier of fact; and 4) the erroneous doubts raised by Defendant

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Plaintiffs will refer to this pleading herein as Def. Mem. at ____.

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about Dr. Nelson's expertise should be resolved through the crucible of trial, and not by way of exclusion of important, reliable, germane evidence. Accordingly, the Court should deny Defendant's meritless Daubert motion. I. BACKGROUND Dr. Nelson has prepared four reports2, all of which assert that the arrival of the F/A 18 C/D squadrons in Virginia Beach culminating in the alleged date of taking in this case, July 1, 1999, had a measurable, negative effect on the value of Plaintiffs' property. Dr. Nelson's initial expert opinion in the test-case portion of this litigation is dated September 26, 2005. A copy of this report is attached as Exhibit A. Dr. Nelson also prepared and submitted a rebuttal report dated December 12, 2005. A copy of this report is attached as Exhibit B. Dr. Nelson's initial report was based, inter alia, on a published, peer-review tested article entitled "Meta Analysis of Airport Noise and Hedonic Property Values." A copy of this article, published in January 2004, is attached as Exhibit C. In his article and initial report, Dr.Nelson conducted a meta-analysis of 20 hedonic3 studies covering 31 estimates of the Noise Depreciation Index ("NDI4") for 23 airports in the United States and Canada. Exh. C at 21. During his deposition, Dr. Nelson explained the virtues of a meta-analysis, or statistical synthesis of all existing literature. Relevant portions of Dr. Nelson's deposition transcript are attached as Exhibit D. According to his deposition testimony, a meta-analysis provides a "more reliable indication of the central tendency of a set of empirical results." Exh. D at 57. The chief virtue of a meta2

The first two reports were submitted as part of the class certification phase of this litigation.

The term "hedonic" in this context, connotes "econometric studies that investigate the determinants of residential property values." Exh. A at 12. In this case, hedonic studies seek to isolate the effect of a controlled for variable, in this case jet noise, on the value of real estate located in noise contours exposed to noise above 65 dB. Plaintiffs concur in Defendant's definition of NDI as "the percentage depreciation in property value per decibel of increased jet noise as measured by the Day-Night Average Sound Level ("DNL") metric." Def. Mem. at 2 n 2.
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analysis is that it is used to measure the systemic effect of jet noise on property values. Dr. Nelson's report indicates that meta-analysis was developed in the early 1980's and is now "widely applied in the physical sciences and other areas of social sciences." Exh. A at 16. In the field of economics, meta-analysis has been applied in numerous published studies. Exh. A at 16, 18. In Dr. Nelson's view, a meta-analysis of hedonic studies by way of a temporal snapshot is a more accurate measurement of the effect of jet noise on residential property values than the methodology employed by Defendant's expert Dr. Dale-Johnson. Dr. Dale-Johnson used a "repeat sales model" which seeks to measure over time the effect of jet noise on residential property values. Exh. B at 16. In Dr. Nelson's view, this methodology is inferior for at least two reasons: 1) it "has not been applied in other studies of aircraft noise and residential property values"; and 2) it is "untested and too speculative to serve as an econometric basis for litigation purposes." Exh. B at 16. Equally important, there are so few studies which employ temporal comparisons because it is much more difficult to control for all factors other than jet noise. Exh. D at 150. Finally, Defendant has

provided no evidence that a variation in noise at a given point in time has an impact on property values that is any different than a change in noise over time at the same location. During the class certification phase of this litigation, Defendant criticized Plaintiffs precisely for failing to offer a systematic analysis of existing hedonic studies. Dr. Nelson's meta-analysis and report were prompted in part to address this critique. Applying this rigorous meta-analysis carefully to the existing studies on the effect of noise on residential property values, Dr. Nelson concluded that the studies yielded a simple mean NDI of .75%. Exh. A at 16. Dr. Nelson, who prepared a similar study in 1980 which reached similar conclusions, will opine at trial that the overwhelming scientific evidence on the subject demonstrates a measurable significant negative NDI for residential properties exposed to jet noise above 65 dB. Exh. A at 17-18. It is also important to note that Dr. Nelson's

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analysis revealed that all of the NDI values gleaned from the previous studies except four were within the 95% confidence interval. In light of this, Defendant misses the point when it criticizes Dr. Nelson's finding because "only 9 (NDI's) fall within" the range estimated in his report. Dr. Nelson's meta-analysis article published in January 2004 restricted itself to an attempt to measure the systematic NDI reduction as reflected in the existing literature. Dr. Nelson's September 26, 2005 report sought to particularize his synthesized conclusions by adding in factors unique to Virginia Beach. Exh. D at 48. Defendant erroneously suggests that Dr. Nelson did this arbitrarily by adjusting his proposed NDI upward based solely on a purportedly antiquated FAA study.
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Nelson did rely, in part, on the 1985 FAA study to arrive at his scientific judgment that the negative NDI for Virginia Beach was -1.0% for properties in the 65 to 79 dB noise contours and -1.5% for properties in noise contours above 79 dB. The 1985 FAA study is attached as Exhibit E. The FAA study is significant for several reasons. First, it is a government document which acknowledges that that "studies have shown that aircraft noise does decrease the value of residential property located around airports." Exh. E at 98-99. Equally significant, the FAA study concluded that "all research conducted in this area found negative effects from aviation noise with effects ranging from .6 to 2.3 percent decrease in property value per decibel increase in cumulative noise exposure." Id. Finally, the FAA study cited Dr. Nelson's work in this area, underlining his reputation as a leading expert on this subject. Id. Dr. Nelson, however, did not rely exclusively on the 1985 FAA study to arrive at his final NDI calculations. As revealed in Dr. Nelson's deposition, he relied on a scientific method known as a "benefits transfer analysis" which involved his "professional judgment" as to how to adjust the
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Defendant provides no reasons why a study published by a fellow governmental agency is unreliable simply because it was published in 1985. Defendant has provided no evidence in its Memorandum, by affidavit or otherwise, to bolster its purely conclusory logic.

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NDI to reflect factors specific to Virginia Beach based on his having worked on this issue "on and off since 1972." Exh. D at 48, 201-202. Indeed, in his September 2005 report, Dr. Nelson emphasized that there were several reasons for the upward adjustment of NDI including 1) "Navy aircraft have unique operating and safety features that will exacerbate the effects of noise on the exposed population", Exh. A at 25-26; and 2) Virginia Beach residents may suffer greater negative effects from jet noise because of the warm climate and the increased outdoor living activities associated with being in such a community. Id. at 26. Finally, it is important to note that Dr. Nelson is the leading authority on the effects of jet noise on the value of residential properties.6 In fact, the expert retained by Defendant to counter the expert opinions prepared by Dr. Nelson, Dr. Dale-Johnson, testified at his deposition that Dr. Nelson "certainly is an expert" evaluator of the impact of noise on property values. A copy of pertinent excerpts of Dr. Dale-Johnson's deposition testimony is attached as Exhibit G. Exh. G at 100-101. At his deposition, Dr. Dale Johnson was asked if he could name "some folks that deserve to be placed in the same category" as Dr. Nelson. Exh. G at 101. His response was "Not offhand, no." Exh. G at 101. In his deposition testimony, Dr. Dale-Johnson also acknowledged that he cited Dr. Nelson's work five times in a 2002 study, but omitted any reference to Dr. Nelson in the study he prepared for the Government in the test-case litigation. Exh. G at 101. In addition to explicit admissions by their own witness and the FAA relative to Dr. Nelson's credentials and the soundness of his methodology, Dr. Nelson's report also spelled out in extensive detail his academic and professional qualifications to render an expert opinion on the effect of jet noise on the value of residential property values. Dr. Nelson was a professor of economics for 35
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See Declaration of Raymond Palmquist which Plaintiff used in the class-action phase of the litigation. A copy of relevant portions of this declaration is attached as Exhibit F. Dr. Palmquist concluded that Dr. Nelson "has provided a careful report" and that "the quality of the report was to be expected since he has been the leading researcher on

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years at Penn State University, has written three books and more than 70 articles, including articles on the effects of jet noise on residential property values, and has had numerous peer-reviewed articles appear in a variety of scholarly journals. Exh. A at 1. Dr. Nelson has written one book and nine articles on "the evaluation of transportation noise and its control" and his work has been cited more than 300 times. Exh. A at 1-2. A list of sources which have cited Dr. Nelson's work on noise abatement is attached as Exhibit H. Yet another governmental study was performed by the Federal Reserve in 2005. It sought to assess the affect of jet noise on properties in the vicinity of the Atlanta airport. A copy of this report is attached as Exhibit I. The Federal Reserve report cited Dr. Nelson's work ten times. Dr. Nelson has extensive experience analyzing the empirical relationship between aircraft noise and residential property values. Id. Finally, Dr. Nelson has "extensively reviewed the academic literatures in economics and real estate that deal with the effects of noise on residential property values" including peer-reviewed studies published in 1978, 1980, 1982 and 2004. Id. Thus, Dr. Nelson is eminently well-qualified to offer an opinion on the negative correlation between jet noise and residential property values in the context of the transfer of the F/A 18 C-D squadrons to Virginia Beach from Cecil Field in Florida in 1998-1999 and the proper measure of that negative impact. II. ARGUMENT A. ADMISSIBILITY OF EXPERT TESTIMONY UNDER FRE 702 AND DAUBERT. FRE 702 provides that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert

this topic for years." Exh. F at 3.

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by knowledge, skill, experience, training or education, may testify thereto ..." According to FRE 702, such testimony is admissible provided that the proponent demonstrates that three tests are met: "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles reliably to the facts of the case." Prior to Daubert and adoption of FRE 702, the "dominant standard" for admissibility of scientific evidence at trial was the "general acceptance" test first articulated in Frye v. United States, 293 F. 1013, 1014 (D. C. Cir. 1923) Frye held that expert scientific evidence was admissible only if "generally accepted" within the relevant scientific community. See Daubert v. Merrill Dow Pharm., 509 U.S. at 585. The Court in Daubert ruled that this test was too restrictive and, thus, "superceded by the adoption of the Federal Rules of Evidence." Id. at 587. The Court emphasized that the "rigid general acceptance requirement would be at odds with the liberal thrust of the federal rules." Id. While there was a need to impose some limitations by requiring relevance and reliability, an expert should be "permitted wide latitude to offer opinions including those that are not based on first hand knowledge or observation." Id. at 592 (emphasis added). The Daubert Court set out a non-exhaustive list of factors for trial courts to consider when weighing the admissibility of scientific opinion.7 Those four factors, all of which have been met in this case, are: 1) testability; 2) peer review and publication; 3) known rate of error; and 4) general acceptance. Id. at 593-95. In addition, the Court in Daubert underlined that the trial court's focus in weighing admissibility must be "solely on principles and methodology not on the conclusions they generate." Id. Finally, because the federal rules presuppose broad admissibility of such testimony,

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In Kumho Tire Co., LTD. v. Carmichael, 526 U.S. 137, 149 (1999), the Court extended its holding in Daubert beyond the realm of purely scientific testimony and held that the gatekeeping function required by FRE 702 applies to "all expert testimony."

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the best forum for adjudicating the strengths and weaknesses of a particular expert's testimony is not by way of excluding that evidence pre-trial, but by having the trier of fact weigh the evidence at trial: Vigorous cross-examination, presentation of contrary evidence and careful instructions on burden of proof8 are the traditional and appropriate means of attacking shaky but admissible evidence. Id. at 596. Thus, Defendant's Memorandum requests the Court to apply an overly cramped interpretation of FRE 702, one that is squarely at odds with the plain language of both Daubert and FRE 702. The Advisory Notes to the 2000 amendments to Rule 702 reflect this by concluding that "a review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule." This Court and the Federal Circuit have similarly declined to exclude reliable, relevant scientific or expert testimony based on conclusory allegations that the expert's reports or testimony derive from unsound methodology or unsupported facts. In fact, this Court in G & C Enters v. United States, 55 Fed. Cl. 424, 428, 429 (2003) declined a Daubert challenge to expert testimony purportedly based on unsound facts and methodology. In the case, the Court emphasized that "[t]he Daubert requirements are derived primarily from FRE 702" and Daubert's "holding that trial courts are gatekeepers in determining the fitness of scientific expert testimony for admissibility at trial." Id. This Court noted that the "Federal Circuit recently held that a trial court should not

exclude an expert witness' testimony on the basis of facts relied on by the expert witness." Id. Instead, the trial court should focus solely on "whether the expert has shown a `reliable foundation in principles and method' for the sponsored opinion." Id., quoting Micro Chem., Inc. v. Lextron, Inc., 317 F. 3d 1387, 1392 (Fed. Cir. 2003).

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Of course, jury instructions on the burden of proof are a moot issue in a bench trial.

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In G & C Enters, this Court went on to hold that an expert's testimony is not even "precluded because his analysis is based on assumptions that may be contrary to fact." G & C Enters, 55 Fed. Cl at 429. Rather, these factors, if proven, "affect the weight the court will accord his testimony at trial." Id. In Micro Chem., the Federal Circuit upheld the trial court's denial of a Daubert motion to exclude expert testimony. Like Defendant in the instant case, the party challenging admissibility argued that the expert's opinion was not supported factually and was the product of flawed methodology. Micro Chem., 317 F. 3d at 1392-93. The Federal Circuit declined to disturb the trial court's ruling on either grounds. The Court first emphasized that where the "parties' experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert's testimony." Id. The Court quoted with approval language from the Advisory Committee's notes to the effect that "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system." Id. The Court found it significant that defendants had "ample opportunity to rebut (the expert's) damages theory during cross-examination" and "presented their competing theory through the testimony of their own witness."9 Similarly, this Court rejected a Daubert challenge to the admissibility of an economist's expert testimony and underlying reports in Okerlund v. United States, 53 Fed. Cl. 341, 346-347 (2002), aff'd, 365 F. 3rd 1044 (Fed. Cir. 2004). Once again, the Court emphasized that expert opinion is admissible so long as it is relevant and reliable. Id. When assessing an expert's reliability, "the use of data and methodology similar to those used by other experts is suggestive of reliability and relevance." Id. Moreover, it is "well-settled" that an expert may offer an opinion "on

The Court allowed the fact finder, a jury, to resolve the dispute in competing damages theories. Resolution by the fact finder at trial, as opposed to a blanket pretrial exclusion via a motion in limine , is even more apropos in the instant case since it will be a bench trial. Some courts have even held that the gatekeeper function imposed by Daubert is "largely irrelevant in the context of a bench trial." Deal v. Hamilton County Bd. Of Educ., 392 F. 3d 840, 851, 852 (6th Cir. 2004)

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hypothetical questions" and his testimony "need not be based on personal knowledge." Where experts disagree on valuation, but the "valuation methods have enjoyed a general acceptance within the valuation community, these approaches satisfy the Daubert and Kumho Tire standard for admissible expert testimony." Id.10 II. DR. NELSON'S TESTIMONY AND REPORTS ARE CLEARLY ADMISSIBLE PURSUANT TO DAUBERT, RULE 702 AND APPLICABLE PRECEDENTS. Applying these precedents to Dr. Nelson's reports and expected testimony, it is clear that there is no justification for excluding his testimony and reports pursuant to Daubert and FRE 702. Clearly, Dr. Nelson's well-grounded opinions on the negative effects of jet noise on residential real estate "will assist the trier of fact to understand the evidence or determine a fact in issue", namely whether the transfer of the F/A 18 C/D squadrons to Virginia Beach in 1998 and 1999 had a negative impact on the value of Plaintiffs' property. Defendant suggests that Dr. Nelson's testimony is somehow irrelevant because he did not conduct a hedonic study of Virginia Beach and because his analysis rested on no studies relating to military airbases, as opposed to civilian airports. Def. Mem. at 809. However, nothing in Rule 702 requires this degree of specificity of expertise as a precondition for testifying at trial. Dr. Nelson's reports, articles, training and expertise, as well as two separate government published reports which cite Dr. Nelson, and virtually every scientific study conducted in the last 30 years, all establish that there is an indisputable link between certain levels of jet noise and a reduction in property values. Dr. Nelson's opinion, therefore, will be extremely relevant and helpful to the trier of fact. If the Court accepts Defendant's overly circumscribed
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Tellingly, in its Memorandum, Defendant has not challenged the methodology of Dr. Nelson's meta-analysis or his use of NDI. Instead, they assert that he relies on "insufficient and irrelevant data", that his methodology was flawed because none of the studies he relied on analyzed data from Virginia Beach, and that no studies analyzed noise from military bases. Def. Mem. at 8-9. Additionally, Defendant claims that Dr. Nelson's reports are "completely devoid of any independent investigation" regarding aircraft noise in Virginia Beach. Here again, Defendant ignores compelling precedent permitting an expert to testify beyond "facts and data perceived by him." Okerlund v. United States, 53 Fed. Cl. at 346.

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definition of relevance, it would conflict with the holding in Daubert that an expert should be "permitted wide latitude to offer opinions including those that are not based on first hand knowledge or observation." Daubert, 509 U.S. at 585.11 In addition to attacking the relevance of Dr. Nelson's testimony and reports, Defendant argues that his testimony satisfies no part of the three-prong test prescribed by Rule 702. Here again, Defendant is mistaken. Dr. Nelson's testimony and reports fully comply with Daubert and FRE 702 for several reasons. First, Dr. Nelson's testimony satisfies all of the factors established by Daubert to weigh the admissibility of expert opinion. First, Dr. Nelson's meta-analysis of existing literature on the effects of jet noise on residential property values is fully testable by other economists and social scientists. Second, Dr. Nelson's report is based on the meta-analysis contained in the article published in 2004 which was subject to peer review. Indeed, many of the studies which comprised the meta-analysis were also published and peer reviewed. Third, in his report Dr. Nelson established margins of error and weighted his findings to reflect perceived errors in the underlying studies. Finally, Dr. Nelson's use of meta-analysis is widely accepted in the social sciences in general, and in the field of economics in particular. More important, both the 1985 FAA study and Dr. DaleJohnson's deposition testimony demonstrate that Dr. Nelson is generally accepted as a leading commentator on the effect of jet noise on residential real estate. Thus, based on the plain language of Daubert and Rule 702, Dr. Nelson's opinions are well-grounded in fact, based on reliable methodology and fulfill each of the four factors delineated in Daubert. It is apparent that Defendant

Defendant carries this illogic to the point of absurdity when it challenges Dr. Nelson's meta-analysis because none of the underlying studies "examined a possible change, either positive or negative, in the value of property purchased at a discount due to the presence of aircraft noise that subsequently experienced a change in noise." Def. Memo at 8. Defendant's misinterpretation of Rule 702, if accepted, would eviscerate the important role played by expert witnesses in complex cases.

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raises no meritorious objections12 to Dr. Nelson's factual foundations and methodology, but instead objects to the "the conclusions they generate." Daubert, 509 U.S. at 594-95. Daubert and its progeny proscribe exclusion of an expert's testimony and reports based on disagreements with the expert's conclusions. Second, the Court should deny Defendant's motion because exclusion under the circumstances of this case would conflict with the interpretation favored by the Federal Rules and case law interpreting Daubert. This court in G & C Enters held that "a trial court should not exclude an expert witness' testimony on the basis of facts relied on by the expert witness"; nor is expert testimony precluded even if the expert's "analysis is based on assumptions that may be contrary to fact." 55 Fed. Cl. at 428-29. Denial of a Daubert motion is mandated, where, as here, the expert has used "data and methodology similar to those used by other experts." Okerlund, 53 Fed. Cl at 346-47. Thus, it is immaterial that many of the studies relied on by Dr. Nelson predated this litigation. It could hardly be otherwise. This is buttressed by the fact that the Government made no effort to show that more recent studies have been performed which disprove Dr. Nelson's central thesis that airplane noise above 65 dB has a negative impact on property values. Finally, applicable case law shows that exclusion of Dr. Nelson's testimony is an inappropriate remedy. Daubert made clear that "vigorous cross-examination" and "presentation of contrary evidence" are the traditional and appropriate means of attacking evidence. The Advisory Committee reiterated this point in their notes to the 2000 amendments to Rule 702 when it stated that the trial court's gate keeping function should not supplant the adversarial system. Defendant's Memo is precisely an effort to sidestep the adversarial process which is the best forum for resolving

Defendant seeks to distract the Court's attention by arguing that Dr. Nelson is not an expert on the effects of noise on human health. This is a classic red herring because he Nelson offers no opinions on the relationship between noise and health. Dr. Nelson relies on reputable sources and refers to these to provide context for his findings.

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disputes among experts. Similarly, Defendant's motion cannot be squared with the holding in Micro Chem.. In that case, the Court held that Daubert exclusion was not proper where defendants had "ample opportunity to rebut (the expert's) damages theory during cross-examination" and "presented their competing theory through testimony of their own witness." Micro Chem., 317 F. 3d at 1392-33. By the same token, the Court should decline to exclude Dr. Nelson's testimony because Defendant will have ample opportunity to cross-examine him and present a competing theory of damages. In sum, Defendant's Daubert motion to exclude Dr. Nelson's reports and testimony lacks foundation. Dr. Nelson's expected testimony and reports are admissible because 1) they rely on ample, relevant facts; 2) they derive from reliable principles and methods; and 3) they rigorously apply that methodology to the factual underpinnings of Dr. Nelson's opinions. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request the Court to deny Defendant's Motion in Limine to exclude the testimony and reports of Dr. Nelson. Dated: October 5, 2006 Respectfully submitted,

/s/ Jack E. Ferrebee Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs

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Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected] Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles B. Lustig Shuttleworth, Ruloff, Swain Haddad & Morecock 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]

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