United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
eminent domain action, the Court has found that the United
States' taking of property (“the Property”)
for the purpose of operating the Nevada Test and Training
Range (“NTTR”), a military test and training
facility at Nellis Air Force Base, is for a congressionally
authorized public use. (ECF No. 111 at 1.) The amount of just
compensation based on the Property's highest and best use
is the sole remaining issue in this case. Before the Court
are two motions: the United States' motion in
limine to exclude certain evidence at trial before the
land commission (“Land Commission”) the Court
appointed (the “Motion in Limine”) (ECF No. 541);
and the Landowners' motion for leave to provide an offer
of proof on the Qualtrics 1 and 2 surveys (“Qualtrics
Surveys”) (the “Survey Motion”) (ECF No.
545). As further explained below, the Court will
mostly deny both motions.
Court incorporates the background facts set forth in the
Court's prior order on the parties' motions involving
other evidentiary issues. (ECF No. 497 at 2-3.)
parties are aware, this case is set for bench trial before
the Land Commission. (ECF No. 560.) The Court reminds the
parties that the authority of the Land Commission is limited:
(1) the Land Commission cannot resolve issues of law outside
the scope of determining just compensation; and (2) the Land
Commission cannot revisit rulings the Court has already made.
In other words, the Land Commission's consideration of
just compensation must be within the legal rulings of this
Court. The Court advises the parties to keep this in mind
both as they review the remainder of this order, and during
the upcoming bench trial. The Court first addresses below the
United States' Motion in Limine, and then addresses the
Landowners' Survey Motion.
United States' Motion in Limine (ECF No. 541)
United States moves in limine to preclude
Landowners' expert witnesses Richard Roddewig and Dr.
Terrence Clauretie from testifying at trial in light of the
Court's prior exclusion of certain methodologies (income
approach, value to the government) and evidence (the
Qualtrics surveys) these experts relied on in preparing their
reports under Federal Rules of Evidence (“FRE”)
401 and 403. (ECF No. 541 at 2.) The United States
alternatively seeks the Court's permission to point out
on cross-examination of Mr. Roddewig and Dr. Clauretie that
they had valuations excluded by the Court. (Id. at
19-20.) The Landowners counter that the Court should not
preclude these two experts from testifying altogether because
the Court has appointed the Land Commission consisting of
experienced jurists well situated to resolve any evidentiary
issues with these experts' testimony at trial, and
because these experts' opinions were not entirely based
on methodologies or evidence that the Court has already
excluded. (ECF No. 547.) Subject to a caveat described below,
the Court mostly agrees with the Landowners.
Court of course agrees with the United States that the
Landowners' experts may not present opinions at trial
based on evidence the Court has already excluded. Though the
Court is not persuaded that it should preclude Mr. Roddewig
and Dr. Clauretie from testifying altogether. As the
Landowners point out, there are some opinions these two
experts can present that are not based entirely on evidence
that the Court has already excluded. (ECF No. 547 at 6-7.)
Mr. Roddewig and Dr. Clauretie may still express opinions
based on evidence that the Court has not excluded.
the Court is generally persuaded by the Landowners'
argument that the United States' Motion in Limine is not
well taken because the Land Commission is capable of
resolving evidentiary disputes to the extent they arise at
trial. (Id. at 7-9.) Moreover,
“[g]enerally, a motion in limine based solely on
relevance or unfair prejudice is improper when the matter is
set for a bench trial.” Shaw v. Citimortgage,
Inc., No. 3:13-CV-0445-LRH-VPC, 2016 WL 1659973, at *3
(D. Nev. Apr. 26, 2016) (citation omitted). That general rule
applies here because this case is set for what is effectively
a bench trial before the Land Commission. In addition, much
of the United States' Motion in Limine is spent attacking
the evidentiary weight that Mr. Roddewig and Dr.
Clauretie's opinions should be accorded. But the Court is
confident the Land Commission can assign their opinions the
Mr. Roddewig and Dr. Clauretie may not present opinions based
on: (1) either of their income-capitalization approach
valuations of the Property (ECF No. 541 at 2 (citing ECF No.
497 at 9-14)); (2) Dr. Clauretie's valuation of the
Property based on its ‘value to the government'
(id. at 3 (citing ECF No. 241 at 7)); or (3) the
Qualtrics Surveys (id. (citing ECF No. 497 at 53)).
The Court has already excluded this evidence in past orders.
Moreover, Mr. Roddewig and Dr. Clauretie may not present
opinions based on another expert's testimony, that, in
turn, is based on evidence the Court has already excluded.
Faithful compliance with the Court's prior orders may
mean that Mr. Roddewig and Dr. Clauretie are not able to say
much, or that their opinions are not entitled to much
weight-but, unlike threshold legal questions, those are
issues that the Land Commission should resolve. The United
States' Motion in Limine is therefore mostly denied,
except to the extent necessary to make clear to the
Landowners that Mr. Roddewig and Dr. Clauretie-or any of the
Landowners' other experts-may not present opinions based
on evidence the Court has already excluded.
Court also denies the United States' alternative request
that its attorneys be allowed to cross-examine Mr. Roddewig
and Dr. Clauretie about their opinions that the Court has
already excluded without opening the door for them to testify
to their excluded valuations on re-direct. (ECF No. 541 at
19-20.) Landowners respond that there is no rule that would
permit the United States to do this. (ECF No. 547 at 11.) The
Court agrees. Moreover, allowing the United States to do this
by granting its alternative, one-sided request would simply
Landowners' Survey ...