In Re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. United States ( 2022 )

In the United States Court of Federal Claims
Sub-Master Docket No. 17-9001L
(Filed: April 29, 2022)
IN RE UPSTREAM ADDICKS AND Takings case; preparations for trial of just
BARKER (TEXAS) FLOOD- compensation for taking of permanent
CONTROL RESERVOIRS flowage easement; motions in limine, for
protective order, and for leave to use
deposition testimony at trial.
THIS DOCUMENT APPLIES TO:
ALL UPSTREAM CASES
Daniel H. Charest and E. Lawrence Vincent, Burns Charest LLP, Dallas, Texas, Charles
Irvine, Irvine & Conner PLLC, Houston, Texas, and Edwin Armistead Easterby, Williams Hart
Boundas Easterby, LLP, Houston, Texas, Co-Lead Counsel for Upstream Plaintiffs.
Kristine S. Tardiff, Trial Attorney, Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
Todd Kim, Assistant Attorney General, and Laura W. Duncan, Frances B. Morris, and Samuel R.
Vice, Trial Attorneys, Environment & Natural Resources Division, United States Department of
Justice, Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
In anticipation of trial, pending before the court in this Fifth Amendment takings case are
eight motions in limine, two motions for protective order, two motions for leave to use
deposition testimony, and a motion to amend plaintiffs’ master complaint and designate co-
owners as test property plaintiffs. Six motions in limine were filed by plaintiffs—who are
property owners upstream of the Addicks and Barker Dams in the Houston, Texas area that
experienced flooding during Tropical Storm Harvey—and two motions in limine were filed by
defendant United States (“the government” or “United States”). 1 Each motion in limine seeks to
1
For convenience and clarity, plaintiffs’ motions in limine are: Pls.’ Mot. in limine re
Frank Lucco (“Pls.’ Lucco Mot.”), ECF No. 451; Pls.’ Mot. in limine re Dan Leistra-Jones
(“Pls.’ Leistra-Jones Mot.”), ECF No. 452; Pls.’ Mot. in limine re John Postava (“Pls.’ Postava
Mot.”), ECF No. 453; Pls.’ Mot. in limine re Co-Tenants (“Pls.’ Co-Tenants Mot.”), ECF No.
454; Pls.’ Mot. in limine re Offsets (“Pls.’ Offsets Mot.”), ECF No. 455; and Pls.’ Mot. in limine
re David LaRue (“Pls.’ LaRue Mot.”), ECF No. 472.
exclude evidence from the trial scheduled to begin May 31, 2022. Plaintiffs have also filed a
motion for leave to use deposition testimony in lieu of live testimony at trial. See Pls.’ Mot. to
Use Depo. Test. of Def.’s 30(b)(6) Witnesses (“Pls.’ 30(b)(6) Dep. Mot.”), ECF No. 468. 2 The
government has also filed two motions for protective orders to prevent plaintiffs from calling one
of the government’s experts in their case-in-chief, see Def.’s Mot. for Prot. Order as to Frank
Lucco, ECF No. 484, and to prevent plaintiffs from calling Rule 30(b)(6) deposition designees as
representatives of the United States at trial, see Def.’s Mot. for Prot. Order as to Rule 30(b)(6)
Witnesses (“Def.’s 30(b)(6) Prot. Order Mot.”), ECF No. 489. The motions have been fully
briefed, and a hearing was held on April 19, 2022. The motions are ready for disposition.
BACKGROUND 3
The impetus for this case was the damage caused when the Addicks and Barker Dams
“collected storm water [from Tropical Storm Harvey] in their respective reservoirs[,] extending
beyond government-owned land[ and] causing private properties upstream but within the
reservoir to flood from the impounded water.” In re Upstream Addicks & Barker (Texas) Flood-
Control Reservoirs, 157 Fed. Cl. 189, 193-94 (2021) (internal alterations omitted) (quoting In re
Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219, 227 (2019)).
Numerous private residences were flooded, both upstream and downstream of the dams. The
first related complaint was filed on September 5, 2017, with hundreds of similar cases following
The government’s motions in limine are: Def.’s Mot. in limine re Randall Bell & Phillip
Bedient (“Def.’s Bell & Bedient Mot.”), ECF No. 432, and Def.’s Mot. in limine re Temporary
Taking (“Def.’s Temp. Taking Mot.”), ECF No. 486.
Another motion and cross-motion in limine regarded testimony related to an uncompleted
study of the Buffalo Bayou, a feeder stream to the pertinent dams. The court granted the
government’s cross-motion to exclude such evidence, except for final, public, or factual
information. See Order of April 7, 2022, ECF No. 490.
2
Two other motions for leave to use deposition testimony were filed. One sought to use
the deposition testimony of test property plaintiff Scott Holland pursuant to Rule 34(a)(4)(C) of
the Rules of the Court of Federal Claims (“RCFC”). See Pls.’ Mot. for Leave to Use Depo. Test.
of Scott Holland, ECF No. 471. The government did not oppose the motion, and the court
granted that motion, see Order of April 6, 2022, ECF No. 488.
The other motion seeks to use the deposition testimony of Donald Ward, an Internal
Revenue Service senior appraiser, but the parties have reached an agreement that defendant will
provide an authorization allowing Mr. Ward to testify. See generally Pls.’ Mot. to Use Dep.
Test. of Donald Ward, ECF No. 467; Def.’s Resp. to Pls.’ Mot. to Use Dep. Test. of Donald
Ward, ECF No. 487. In light of the government’s willingness to make Mr. Ward available for
live testimony, plaintiffs’ motion is DENIED AS MOOT.
3
The following recitations do not constitute findings of fact by the court. Instead, the
recited factual elements are taken from the relevant complaint and the parties’ briefs and attached
appendices.
2
suit. Id. at 194. Those cases were then consolidated into one master docket, which was then
divided “into two sub-master dockets—one for downstream properties and, pertinent here, one
for upstream properties.” In re Upstream, 146 Fed. Cl. at 228 (citations omitted).
Considering the volume of cases and associated complicated issues, the upstream cases
were bifurcated to deal with the issues of liability and damages separately. Id. To handle the
upstream cases, the court used the multi-district litigation approach modeled upon 28 U.S.C. §
1407. See In re Upstream Addicks & Barker, 157 Fed. Cl. at 194. “In the spring of 2018,
thirteen plaintiff properties were designated to serve as bellwethers for the upstream cases. A
ten-day trial was held in Houston, Texas, commencing on May 6, 2019, regarding the liability of
the United States for the thirteen test properties. In December 2019, the court found the
government to be liable for a taking of a flowage easement on the bellwether properties.” Id.
(internal alterations, quotations, and citations omitted). 4 Specifically, the court found that
plaintiffs were left with “a fee simple interest in their properties which allows them to continue
their lawful use subject to the risk of occasional flooding.” In re Upstream Addicks and Barker
(Texas) Flood-Control Reservoirs, 148 Fed. Cl. 274, 278 (2020). The court further held that the
taking also encompassed “plaintiffs’ personal property, fixtures, and improvements damaged or
destroyed by the flood” as a “consequential result of the flowage easement.” Id. The cases then
moved forward to the discovery phase for the just compensation portion of the litigation.
Expert discovery has closed, and the parties have entered the pre-trial stage for the just
compensation portion of the bifurcated litigation. Each party now seeks to exclude certain
evidence from the just compensation trial. The specifics of each motion will be outlined infra.
The court’s task in addressing the motions is eased by the fact that some of the challenged
witnesses testified at the liability trial previously held.
ANALYSIS
A. Expert Testimony
The Federal Rules of Evidence govern the admissibility of evidence in this court. See 28
U.S.C. § 2503(b) (“The proceedings of the Court of Federal Claims shall be in accordance with
. . . the Federal Rules of Evidence.”). When evaluating the admissibility of expert testimony,
Federal Rule of Evidence 702 is controlling and provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact . . . ;
(b) the testimony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
4
In December 2021, the court denied plaintiffs’ motion to certify a class as to liability,
finding that the timing of the motion post-adjudication on the liability issue and the failure to
satisfy the requirements of RCFC 23 made class certification inappropriate. See In re Upstream
Addicks & Barker, 157 Fed. Cl. at 197, 202.
3
Fed. R. Evid. 702(a)-(d). Pursuant to Federal Rule of Evidence 104(a), a trial judge must
determine “at the outset” whether an expert witness is qualified or whether his or her opinions
constitute admissible evidence. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592
(1993). “These matters should be established by a preponderance of proof.” Id. at 592 n.10
(citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)).
In addition to its reliability, the court must also ensure the offered expert testimony is
relevant. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert, 509 U.S.
at 589. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without evidence; and (b) the fact is of consequence in determining the action.” Fed.
R. Evid. 401. Rule 702 further requires that expert testimony “help the trier of fact to understand
the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Even in the face of evidence
that is both reliable and relevant, “[t]he court may exclude [such] evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. While concerns of misleading the jury “are of lesser
import in a bench trial, . . . the Daubert standards of relevance and reliability for [expert]
evidence must nevertheless be met.” Seaboard Lumber Co. v. United States, 308 F.3d 1283,
1302 (Fed. Cir. 2002).
Both parties have tendered motions to exclude testimony from several expert witnesses.
The court will address the motions regarding each of these challenged witnesses in turn.
1. Evidence and testimony from Dr. Randall Bell. 5
The government challenges the testimony of one of plaintiffs’ experts, Dr. Randall Bell.
Dr. Bell is an appraiser whose expert report purports to “assess the impact, if any, of the U.S.
Army Corp of Engineers flowage easement as a result of Hurricane Harvey flooding on single-
family residential and condominium properties that were developed behind (upstream) the
Addicks and Barker Dams.” Pls.’ Opp’n to Def.’s Bell & Bedient Mot., Ex. A at 21-22, ECF
No. 433-1. It further states that it is a “mass appraisal” report. Id. at 21. The government
challenges the relevancy of Dr. Bell’s opinion to the task before the court, i.e., to determine “the
measure of just compensation due for the non-categorical taking of a permanent flowage
easement on the six bellwether properties.” In re Upstream, 148 Fed. Cl. at 278. Specifically,
the government contends that Dr. Bell’s opinion provides nothing more than an “unapplied mass
appraisal formula” that goes beyond the scope of the trial by attempting to introduce a formula to
be used against the government “on a mass basis in the future.” Def.’s Bell & Bedient Mot. at 5,
9 (emphasis omitted). Plaintiffs maintain that Dr. Bell’s opinion is relevant to the determination
of just compensation because he applied his formula to the six bellwether properties, producing a
“range applicable to properties including (but not limited to) the six specific bellwether [t]est
5
Dr. Bell also prepared a rebuttal report in response to the government’s experts. The
government’s motion to exclude is limited to Dr. Bell’s primary report and associated testimony.
Def.’s Bell & Bedient Mot. at 4 n.1.
4
[p]roperties” that represents the “detrimental effect on the value” of the properties. Pls.’ Opp’n
to Def.’s Bell & Bedient Mot. at 10, ECF No. 433.
“Evidence is relevant if . . . it has any tendency to make a fact more or less probable” and
“the fact is of consequence in determining the action.” Fed. R. Evid. 401; see also Fed. R. Evid.
402 (relevant evidence is admissible unless barred by some source of law). Relevancy has a low
threshold. See Daubert, 509 U.S. at 587 (“The Rule’s basic standard of relevance thus is a
liberal one.”). Despite this low threshold, offered evidence must still be of consequence and of
use to determining the action; Dr. Bell’s opinion runs the risk of being unduly cumulative. His
opinion does not provide definitive guidance to the court on the value of the six bellwether
properties before or after the flooding event. Rather, Dr. Bell provides a formula and a range of
potential values for the properties at issue. Plaintiffs argue that it was impossible for Dr. Bell to
provide exact numbers because the exact language of the easement has not been defined, see
Pls.’ Opp’n to Def.’s Bell & Bedient Mot. at 8, but this did not stop plaintiffs’ other retained
appraisers from providing exact values, see Def.’s Reply to Def.’s Bell & Bedient Mot. at 10 n.6,
ECF No. 439. Nonetheless, the threshold for relevancy is a low one, and the court cannot say
Dr. Bell’s testimony is wholly irrelevant where it provides some guidance on the issue of
compensation.
Nonetheless, the court is empowered by the Federal Rules of Evidence to “exercise
reasonable control over the mode and order of examining witnesses and presenting evidence so
as to . . . avoid wasting time.” Fed. R. Evid. 611(a)(2). RCFC 16 similarly gives the court the
power to “establish[] a reasonable time limit on the time allowed to present evidence.” RCFC
16(c)(2)(O). Specifically, “[j]udges may impose limits only on specific components of the
presentation of the case, such as the time that counsel may use for direct or cross-examination of
[a] specified expert.” 3 James W. Moore et al., Moore’s Federal Practice § 16.77 (3d ed.
2022). 6 Other courts have properly exercised this power to place a time limit on the direct
examination of a specific witness. See, e.g., Clem v. Corbeau, 98 Fed. App’x 197, 205 (4th Cir.
2004) (trial court did not abuse its discretion by imposing a forty-five-minute time limit on direct
examination of witness); Watkins v. Pinnock, 802 Fed. App’x 450, 460 (11th Cir. 2020) (trial
court did not abuse its discretion by imposing time limits on pro se plaintiff’s direct
examinations in order to “properly manage the flow of the trial”); Rohrbaugh v. Owens-Corning
Fiberglas Corp., 965 F.2d 844, 847 (10th Cir. 1992) (trial court did not abuse its discretion by
limiting “direct and cross-examination of expert witnesses to thirty and forty-five minutes,
respectively”). Such limitations are allowable so long as the court remains “flexible” in order to
“exercise reasonable control.” Clem, 98 Fed. App’x at 205; Fed. R. Evid. 611.
6
This observation was made within the context of discussing the court’s ability to
address certain matters at the final pretrial conference. See id. In light of the discretion given the
court by Federal Rule of Evidence 611, the court sees no reason that the court’s ability to impose
specific time limitations should be constrained to the final pretrial conference.
Inasmuch as RCFC 16 mirrors Fed. R. Civ. P. 16, the rules should be interpreted in pari
materia.
5
Plaintiffs state in their Just Compensation Trial Witness List that they estimate their
examination of Dr. Bell to span two and a half hours. Pls.’ Just Compensation Trial Witness List
at 15, ECF No. 469-1. Due to the cumulativeness of Dr. Bell’s testimony as well as the
unconventional nature of his methodology (which may be of limited value), direct and-redirect
examination of Dr. Bell will be prospectively limited to one hour. Such a limitation will ensure
plaintiffs are able to present the distinct aspects of Dr. Bell’s views while simultaneously
allowing the court to forestall cumulative testimony and to ensure the proper flow of trial.
2. Evidence and testimony from Dr. Phillip Bedient.
The government next challenges the testimony of Dr. Phillip Bedient, an expert in
“hydrology, hydraulics, and flood plain analysis,” Def.’s Bell & Bedient Mot. at 15 (internal
quotations omitted), who is expected to provide an opinion on “how frequently will the
government exercise the truly expansive scope of rights it has taken.” Pls.’ Opp’n to Def.’s Bell
& Bedient Mot. at 11 (emphasis omitted). The government argues that such testimony is
irrelevant because it “does not speak to the market value of the bellwether properties” and that
the “statistical analysis was unavailable and unknown to market participants in the residential
housing market at or near the date of the taking.” Def.’s Bell & Bedient Mot. at 15, 17.
Plaintiffs counter that Dr. Bedient’s testimony provides an opinion on the government’s
frequency of use of the easement, which affects the value of the bellwether properties. See Pls.’
Opp’n to Def.’s Bell & Bedient Mot. at 11-12.
The Uniform Appraisal Standards for Federal Land Acquisitions (the “Yellow Book”)
(which govern federal appraisals of land) provide that if “fear of a ‘hazard would affect the price
a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in
value caused by that fear may be recoverable as part of just compensation.’” Yellow Book §
4.6.2.2 at 158 (2016) (quoting United States v. 760.807 Acres in Honolulu, 731 F.2d 1443, 1447
(9th Cir. 1984)). “There must be evidence ‘connecting the safety issue to the real estate
market.’” Id. (quoting United States v. 87.89 Acres in Merced Cty., 530 F.3d 899, 905 (9th Cir.
2008)).
This court previously found “data relating to the risk of flood” to be discoverable. In re
Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, No. 17-9001, 2020 WL
3513552, at *3 (Fed. Cl. June 29, 2020). Plaintiffs bear the burden of proving market value of
the bellwether properties and are entitled to present evidence on factors that may affect that
value, including market knowledge of the risk of flooding. 7 The value of the properties will be
affected by the frequency of flooding and the knowledge regarding that risk; as such, plaintiffs
are entitled to present evidence on the frequency of the government’s “use” of the permanent
flowage easement. Accordingly, Dr. Bedient’s testimony will be allowed at trial.
Therefore, the government’s motion in limine to exclude the testimony of Drs. Bell and
Bedient is GRANTED IN PART and DENIED IN PART. The testimony of Dr. Bell will be
7
In fact, Dr. Bedient’s evidence regarding the risk of flooding and the market’s
knowledge of that risk is not so different from that of an expert proffered by the government,
Frank Lucco, discussed infra.
6
limited to one hour in light of the cumulative nature of his testimony due to the projected
testimony of other appraisers and the unusual nature of his methodology. The court will allow
Dr. Bedient’s testimony.
3. Evidence and testimony from Mr. Frank Lucco.
First in a series of motions from plaintiffs is a motion in limine to exclude the testimony
of a government expert, Frank Lucco. See generally Pls.’ Lucco Mot. In spite of this motion,
plaintiffs have listed Mr. Lucco as a witness they will call at trial in their case-in-chief. See Pls.’
Just Compensation Trial Witness List at 15. In response to this designation, the government has
filed a motion for a protective order to prevent plaintiffs from calling Mr. Lucco as a witness in
their case-in-chief. See Def.’s Mot. for Prot. Order as to Frank Lucco. The court will first
address the admissibility of Mr. Lucco’s testimony before addressing whether plaintiffs may call
a government expert as their own witness.
(i.) Plaintiffs’ motion in limine.
Mr. Lucco is an expert appraiser for the government who plans to provide an opinion on
the value of “the flowage easement as described by the [c]ourt in its rulings,” “market
awareness,” and on the value of the properties through “comparable sales from post-Harvey
flooded homes in the upstream flood pool area.” Def.’s Resp. to Pls.’ Lucco Mot. at 2, ECF No.
465. Plaintiffs move to exclude Mr. Lucco’s opinion for being irrelevant and unreliable. Pls.’
Lucco Mot. at 1. Plaintiffs contend that Mr. Lucco failed to value the rights taken by the
easement and that the sales used by Mr. Lucco as comparable sales are not reliable because they
occurred before the court’s ruling on liability. Id. at 1-2, 4. The government maintains that,
although the comparable sales occurred prior to the liability ruling, the market was well aware of
the effects of Hurricane Harvey on the area and that Mr. Lucco conducted an independent study
to evaluate market awareness on the issue. Def.’s Resp. to Pls.’ Lucco Mot. at 8-9.
Expert testimony must be both relevant and reliable. Daubert, 509 U.S. at 579. As an
initial matter, Mr. Lucco’s opinion is relevant as it provides an evaluation of the “after” value of
the bellwether properties. Even so, plaintiffs contend that “[Mr.] Lucco’s assessment of a
decrease in value attributable to market participants’ ‘expectations about future weather and
flooding events’ is not a valuation of the rights taken by the government’s permanent flowage
easement.” Pls.’ Lucco Mot. at 2 (emphasis omitted). Yet, the value of Mr. Lucco’s opinion to
the court is not so different from that of plaintiffs’ expert, Dr. Bedient. While not a one-to-one
comparison, both experts purport to testify to the effect of the flooding risk and awareness of it
on the market value of the bellwether properties. Compare Pls.’ Opp’n to Def.’s Bell & Bedient
Mot. at 11-12, 14 (“Dr. Bedient’s opinions will inform the [c]ourt about important market-
influencing factors.”) with Def.’s Resp. to Pls.’ Lucco Mot. at 9 (“Mr. Lucco selected
comparable sales with market awareness in mind and performed an additional market analysis to
confirm his ultimate conclusion.”). Where plaintiffs are allowed to present evidence of fear of
future flooding as affecting the market, the government’s evidence on the same topic will be
relevant. As such, Mr. Lucco’s testimony passes muster on that ground.
7
Plaintiffs also challenge the reliability of Mr. Lucco’s comparable sales approach on
multiple grounds. Plaintiffs argue that is it impossible to use the comparable sales approach
because no such comparable sales exist. Pls.’ Lucco Mot. at 2-3. According to plaintiffs,
because the exact language of the easement has not been defined, it is impossible to find a
comparable sale. Id. at 3. Particularly of concern to plaintiffs is that all of the selected sales
used by Mr. Lucco occurred before the court’s ruling on December 17, 2019, that the
government had taken a permanent flowage easement. Id. at 4. Plaintiffs contend that it would
be impossible for willing buyers and sellers to have the requisite knowledge of the easement for
it to affect market value when the language of the easement has not yet been drafted. Pls.’ Reply
to Pls.’ Lucco Mot. at 3, ECF No. 478. The government counters that “all of the selected
comparable sales experienced flooding from the dams during the Harvey event and are within the
Harvey flood pool upstream.” Def.’s Resp. to Pls.’ Lucco Mot. at 8. Further, the government
argues that “nearly all of the sales he selected as comparable sales had some form of specific
disclosure of property flooding due to the Harvey event in the property marketing or disclosure
documentation,” id. at 9, and that “Mr. Lucco researched the general information that was
available to the public and real estate market about the flooding from the dams during Harvey
and the related ongoing flood risk,” id. at 12.
The court finds plaintiffs’ emphasis on the lack of exact easement language to be
misplaced. The court found that the “government’s actions relating to the Addicks and Barker
Dams and the attendant flooding of plaintiffs’ properties constituted a taking of a flowage
easement under the Fifth Amendment.” In re Upstream, 146 Fed. Cl. at 264. The court further
clarified that “the easement should be defined by reference to the elevation of the pools at their
highest level on August 30, 2017, viz., 101.6 feet in Barker and 109.1 feet in Addicks,” In re
Upstream, 148 Fed. Cl. at 278 (citing In re Upstream, 146 Fed. Cl. at 241), and that plaintiffs
were left with “a fee simple interest in their properties which allows them to continue their
lawful use subject to the risk of occasional flooding caused by the operation of the Addicks and
Barker Dams,” id. These rulings are sufficient to inform the scope of the easement for Mr.
Lucco’s research and for the public. The court is skeptical that having exact language of an
easement would be any more informative to an average willing buyer or seller than the language
currently embodied in the court’s opinions. Rather, it is more likely that the public would be
best informed via the very sources Mr. Lucco relied on: social and news media, among other
sources, more accessible to a lay person. See Def.’s Resp. to Pls.’ Lucco Mot. at 12-13 (stating
Mr. Lucco relied on a “myriad [of] sources such as the media, online resources, government
reports and meetings, information and outreach about this lawsuit, and flood damages to homes
and flood closures of roads, schools and more”). Moreover, as the court noted at the hearing, the
state of Texas implemented a statute for the very purpose of informing the public of the flood
8
risk. Hr’g Tr. 8:16-23 (April 19, 2022). 8 These sources are reliable indications of the market’s
awareness. 9
The court shares plaintiffs’ skepticism over the timing of the comparable sales relied on
by Mr. Lucco. All of the properties were sold prior to the court’s finding of a taking and all but
one were sold prior to the implementation of Texas’s notice statute. Hr’g Tr. 8:16 to 9:8. Where
the sales are otherwise similar to the bellwether properties in that they all experienced flooding
from the Harvey event, the court opines that the timing of the sales goes to the weight the court
may or may not give Mr. Lucco’s opinion when making an award but does not preclude his
opinion altogether.
The court will ultimately decide how much weight to give Mr. Lucco’s opinion but finds
that it is generally relevant and reliable. However, the court will again exercise its power under
Federal Rule of Evidence 611 to exert reasonable control of the trial and limit Mr. Lucco’s
testimony to three hours in light of the court’s concern regarding the scope of his projected
testimony and the comparability to that of Dr. Bedient, who is scheduled to testify for one
8
The State of Texas legislature amended its law governing disclosures to be made by
sellers of residential properties to require disclosure if the property is, among other things,
“located wholly [or] partly in a reservoir.” Tex. Rev. Prop. Code § 5.008. “Flood pool” is
statutorily defined to mean “the area adjacent to a reservoir that lies above the normal maximum
operating level of the reservoir and that is subject to controlled inundation under the management
of the United States Army Corps of Engineers.” Tex. Rev. Prop. Code § 5.008. “Reservoir” is
defined as “a water impoundment project operated by the United States Army Corps of
Engineers that is intended to retain water or delay the runoff of water in a designated surface area
of land.” Tex. Rev. Prop. Code § 5.008. The addition of this language went into effect
September 1, 2019. S.B. 339, 86th Leg., Reg. Sess. (Tex. 2019).
Reportedly, the flooding resulting from Hurricane Harvey—the cause of the flooding at
issue in this case—was what prompted legislators to pass this amendment to the state’s seller’s
disclosure notice. See, e.g., In Texas, Home Sellers Must Now Disclose More About the Risk of
Flooding, National Public Radio, (October 27, 2019),
https://www.npr.org/2019/10/27/772996585/in-texas-home-sellers-must-now-disclose-more-
about-the-risk-of-flooding.
The date will be omitted from future citations to the hearing held April 19, 2022.
9
The government points to the case Vaizburd v. United States as proof that the
comparable sales approach can be used without having the exact language of the easement. See
Def.’s Resp. to Pls.’ Lucco Mot. at 17-21. In that case, the Court of Appeals for the Federal
Circuit upheld the adoption of the government’s appraisal of properties using the comparable
sales approach despite there being no easement language for those properties because the
easement was found simultaneously in an opinion of this court. See Vaizburd v. United States,
384 F.3d 1278, 1283 n.5, 1284-85 (Fed. Cir. 2004). This case supports that court’s conclusion
that the exact language of an easement is not necessary, particularly where numerous forms of
notice are available to the market.
9
hour. 10 As such, plaintiffs’ motion in limine to exclude Mr. Lucco’s testimony is GRANTED IN
PART AND DENIED IN PART.
(ii.) Motion for a protective order.
Despite their motion in limine to exclude Mr. Lucco’s testimony, plaintiffs have listed
him as a witness they will call and have subpoenaed him. See Def.’s Mot. for Prot. Order as to
Frank Lucco at 3. Federal Rule of Evidence 611 requires the court to “exercise reasonable
control over the mode and order of examining witnesses and presenting evidence.” “An expert
witness—retained by a party through private, voluntary agreement—is ordinarily not the proper
object of a subpoena.” Res. Invs., Inc. v. United States, 93 Fed. Cl. 373, 383 (2010) (citing
Young v. United States, 181 F.R.D. 344, 346 (W.D. Tex. 1997) (“[A] professional witness may
not generally be compelled to testify as an expert at the request of a private litigant, as such
testimony is a matter of contract or bargain.”); see also Carter-Wallace, Inc. v. Otte, 474 F.2d
529, 536 (2d Cir. 1972)). However, “a judge may authorize a subpoena to an expert witness.”
R.K. v. Sec’y of the Dep’t of Health & Human Servs., No. 03-0632V, 2015 WL 10911950, at *24
(Fed. Cl. Sept. 28, 2015), aff’d, 671 Fed. App’x 792 (Fed. Cir. 2016). “Routine use” of
subpoenas to an opposing party’s expert has been held to be “inappropriate” and subverts the
role of Rule 26. Pope v. City of New York, No. 10 Civ. 4118, 2012 WL 555997, at *1 (S.D.N.Y.
Feb. 10, 2012) (discussing Fed. R. Civ. P. 26). 11
Other courts have “exercised [their] discretion to allow a party to call an opposing party’s
expert witness during their case in chief.” Rosa-Melendez v. Invacare Corp., 709 F. Supp. 2d
132, 134-135 (D.P.R. 2010). Some courts have found that the “weight of authority favors
allowing [a party] to introduce the opinion testimony of [the other party’s] expert.” De Lage
Landen Operational Servs., LLC v. Third Pillar Sys., Inc., 851 F. Supp. 2d 850, 853 (E.D. Pa.
2012) (citing Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996); Penn Nat’l Ins. Co. v. HNI
Corp., 245 F.R.D. 190 (M.D. Pa. 2007); House v. Combined Ins. Co. of Am., 168 F.R.D. 236(N.D. Iowa 1996)); see also Nat’l R.R. Passenger Corp. v. Certain Temp. Easements Above the
R.R. Right of Way in Providence, R.I., 357 F.3d 36, 42 (1st Cir. 2004). While some courts
disfavor allowing such tactics, there is no “broad rule that automatically bars a party from calling
a witness the opposing party designated.” Griffin v. Biomat USA, Inc., No. 1:19-cv-604, 2022
WL 424964, at *2 (M.D. Ala. Feb. 10, 2022). Despite having paid to retain Mr. Lucco as an
expert, the government does not have “a proprietary right to [his] evidence.” Doe v. Eli Lilly &
Co., 99 F.R.D. 126, 128 (D.D.C 1983).
The court will strike a balance. Plaintiffs will not be allowed to call Mr. Lucco in their
case-in-chief so as not to interfere with the purposes of Rule 26 or the government’s ability to
10
The government stated in its Just Compensation Trial Witness List that it expects the
testimony of Mr. Lucco to take six hours. Def.’s Just Compensation Trial Witness List at 3, ECF
No. 508. The court finds allowing half that time to be a reasonable step to ensure the proper
flow of the trial.
11
Inasmuch as RCFC 26 mirrors Fed. R. Civ. P. 26, the rules should be interpreted in
pari materia.
10
present a fulsome defense. But, to allow plaintiffs the opportunity to fully explore Mr. Lucco’s
testimony on points where they bear the burden of proof, cross-examination will not be limited to
the topics covered in direct examination. As such, the government’s motion for a protective
order as to Mr. Lucco is GRANTED IN PART AND DENIED IN PART.
B. Testimony Regarding Potential Offsets
At the liability phase of litigation, the court found that “the government’s actions relating
to the Addicks and Barker Dams and the attendant flooding of [bellwether] plaintiffs’ properties
constituted a taking of a flowage easement under the Fifth Amendment.” In re Upstream, 146
Fed. Cl. at 264. The impending trial seeks to award just compensation, or “the fair market value
of the property on the date it [wa]s appropriated.” Kirby Forest Indus., Inc. v. United States, 467
U.S. 1, 10 (1984). When making a just compensation award, the Supreme Court has held that
certain offsets may be deducted. Specifically, the amount which “specially and directly
increased” the value of the remainder property after a partial taking can be offset against the just
compensation award. Bauman v. Ross, 167 U.S. 548, 574 (1897). The Court of Appeals for the
Federal Circuit has defined such direct and special benefits to be those “which arise directly and
proximately to the remaining land as a result of the public work on the part taken, due to the
peculiar relation of the land in question to the public work.” Hendler v. United States, 175 F.3d
1374, 1380 (Fed. Cir. 1999). General benefits (or those benefits “that are more or less common
to all lands in the vicinity of the land taken,” id.) on the other hand will not be offset. Hendler v.
United States, 38 Fed. Cl. 611, 617 (1997) (“Special benefits are deducted from any
compensation due, and general benefits are not.”), aff’d, 175 F.3d at 1386.
A string of motions in limine seeks to exclude the government’s experts that offer
testimony relating to what plaintiffs argue are irrelevant general benefits which should not be
offset against any just compensation award. Specifically, plaintiffs seek to exclude the testimony
of Dan Leistra-Jones and David LaRue, as well as testimony relating to Federal Emergency
Management Agency (“FEMA”) and Internal Revenue Services (“IRS”) programs. See
generally Pls.’ Offsets Mot., Pls.’ Leistra-Jones Mot., and Pls.’ LaRue Mot. The court will first
address the admissibility of offset testimony generally and then turn to the projected testimony of
each challenged expert.
1. Offset testimony.
Allowing any just compensation award to be reduced by specific offsets prevents
plaintiffs from receiving a double recovery from administrative processes and the judicial
process. See United States v. Virginia Elec. & Power Co., 365 U.S. 624, 633 (1961) (“The
guiding principle of just compensation is reimbursement to the owner for the property interest
taken . . . . [While plaintiff] ‘must be made whole . . . [he or she] is not entitled to more.’”
(quoting Olson v. United States, 292 U.S. 246, 255 (1934))); Cardiosom, L.L.C. v. United States,
656 F.3d 1322, 1328-29 (Fed. Cir. 2011). As the finding of any such offset results in the
reduction of a just compensation award, the government bears the burden of proving the
applicability of any alleged offsetting benefit and its amount. CCA Assocs. v. United States, 91
Fed. Cl. 580, 613-614 (2010), aff’d in part, rev’d in part, 667 F.3d 1239, 1245 (Fed. Cir. 2011),
cert. denied, 568 U.S. 940 (2012).
11
Plaintiffs seek to exclude testimony and evidence “aiming to have [the c]ourt reduce or
‘offset’ the [alleged] just compensation awards owed [p]laintiffs.” Pls.’ Offset Mot. at 1. They
argue that benefits received by bellwether plaintiffs are not direct and thus do not qualify to be
deducted from any just compensation award and that for the court to determine and assess
alleged offsetting benefits received from FEMA or IRS would violate the separation of powers
by having the court sit in the position of an administrative agency. Id. at 5-6. The government
argues in opposition that certain payments and deductions received by plaintiffs are in fact direct
payments that should be offset from any just compensation award and that the court’s
consideration of such offsets does not run afoul of the separation of powers. Def.’s Resp. to Pls.’
Offsets Mot. at 9, ECF No. 463.
Both parties noted that the court has previously expressed skepticism that certain
“collateral benefit[s] would be considered as a relevant consideration in the calculation of just
compensation.” In re Upstream, 2020 WL 3513552, at *2. Regardless of the court’s skepticism,
the government bears the burden of proof on this issue, and the court will not interfere with that
burden by deciding the general versus direct nature of a benefit prior to hearing pertinent
evidence. This is not to say the government is entitled to put on whatever evidence it pleases but
merely that the blanket exclusion sought by plaintiffs of evidence and testimony as to alleged
offsets is improper.
Plaintiffs’ contention that for the court to consider and value any offsets would be a
violation of the separation of powers also fails. This court has exclusive jurisdiction over Fifth
Amendment takings claims where the amount sought from the government is $10,000 or more.
28 U.S.C. §§ 1346(a)(2); 1491(a)(1). Offsetting special benefits is required by binding
precedent, see Bauman, 167 U.S. at 574. It would contravene this court’s jurisdiction—and
binding precedent—to bar the court from making the necessary findings to make a proper award.
It is not for the agency to determine whether a benefit should be offset against a just
compensation award; it is for the court to decide. While plaintiffs suggest that some agencies,
like the IRS, can “subsequently reclaim some or all of th[e] amounts” it determines to have been
improperly paid, Pls.’ Offsets Mot. at 7, that is a separate and distinct power. Although
plaintiffs’ concern may be a “double subtraction” as opposed to the government’s concern of a
double recovery, the record of this case does not suggest that the government argues that any
benefits received were improperly paid to plaintiffs but rather that those benefits should be offset
against the just compensation award. It will not be a violation of the separation of powers for
this court to fulfill its role as trier of fact and arbiter of law as it relates to any alleged special
benefits. As such, plaintiffs’ motion in limine to exclude offsetting benefits testimony as a
general matter is DENIED.
The government, however, will not be given free rein to present such testimony. Its
witnesses must still satisfy the requirements of the Federal Rules of Evidence. As such, the court
will address plaintiffs’ specific motions in turn.
12
2. Evidence and testimony from Dr. David LaRue.
Dr. David LaRue was retained by the government to “identify and estimate the federal
income tax benefits derived by those [p]laintiffs who claimed a casualty loss deduction for their
Hurricane Harvey-related flood damages.” Def.’s Resp. to Pls.’ LaRue Mot. at 2, ECF No. 491.
The government intends for Dr. LaRue to testify to his methodology for determining the savings
plaintiffs received and why those savings should be considered compensation paid to plaintiffs
by the government—and therefore should be offset from any just compensation award. Id.Plaintiffs seek to exclude this testimony as an irrelevant consideration of general benefits (which
Dr. LaRue did not calculate) that may not be offset from any just compensation award, and they
also challenge the reliability of Dr. LaRue’s calculations. Pls.’ LaRue Mot. at 1-2. The
government contends that Dr. LaRue’s testimony is relevant to explaining the methodology for
determining the tax savings plaintiffs received, why those savings should be regarded as just
compensation paid, and that Dr. LaRue’s testimony is reliable because it is based on plaintiffs’
discovery productions in this case. Def.’s Resp. to Pls.’ LaRue Mot. at 2-3.
“Offsetting benefits, if there are any, must be established by the government.” CCA
Assocs., 667 F.3d at 1245. As previously discussed, common general benefits available to
everyone will not be offset from a just compensation award. See Bauman, 167 U.S. at 574-75.
Under Internal Revenue Code §165(c)(3), an individual may claim a casualty loss if it arises
from a qualified disaster, such as a “storm.” 26 U.S.C. § 165(c)(3). These loss deductions are
available to anyone who experiences such a loss, a point on which plaintiffs and Dr. LaRue
agree. See 26 U.S.C. § 165; see also Pls.’ LaRue Mot., Ex. C (LaRue Dep. Test.) 31:15 to 32:21,
ECF No. 472-3 (LaRue: “[Casualty loss deduction provisions] are general provisions that are
available to all taxpayers without discrimination.”). The court has long expressed skepticism
about the government’s position in this regard. In re Upstream, 2020 WL 3513552 at *2 (“The
court is skeptical that [a casualty loss deduction] would be considered as a relevant consideration
in the calculation of just compensation.”). The court remains unconvinced and will exclude Dr.
LaRue’s testimony.
Plaintiffs correctly argue that casualty loss deductions are a general benefit that cannot be
deducted from a just compensation award. As the Federal Circuit has stated: “[S]pecial benefits
are those which inure specifically to the landowner who suffered the partial taking and are
associated with the ownership of the remaining land. In contrast, benefits that inure to the
community at large are considered general.” Hendler, 175 F.3d at 1380 (internal citation
omitted). The casualty loss deduction is a general benefit in that the community at large may
claim it if they face a casualty. With relation to the taking of a permanent flowage easement,
where the benefit is not “associated with the ownership of the remaining land,” Hendler, 175
F.3d at 1380, but was instead conditioned on the effects of earlier acquisition of inadequate land
at the time of construction of dams measured against a meteorological event, the deduction
cannot be said to be a special benefit; that the flowage easement is in some ways conditioned on
the occurrence of such flooding does not change the nature of the deduction. Neither can it be
said to be special when it is not specific to these particular plaintiffs but is available to any
citizen who experiences similar losses. The court is unconvinced that tax savings related to loss
of a property interest should be deducted from any award, particularly where plaintiffs may be
required to address any award in conjunction with future taxes.
13
Because the casualty loss deduction and any associated interest are not special benefits,
the court finds Dr. LaRue’s testimony to be irrelevant to determining what just compensation
may be awarded to plaintiffs for the government’s taking of a permanent flowage easement.
Plaintiffs’ motion in limine to exclude Dr. LaRue’s testimony is GRANTED.
3. Evidence and testimony from Mr. Dan Leistra-Jones.
Plaintiffs move to exclude the testimony of Mr. Dan Leistra-Jones, a government expert
with “experience in financial, policy, and economic analysis.” Pls.’ Leistra-Jones Mot. at 1. Mr.
Leistra-Jones intends to offer an opinion on “[w]hether the plaintiffs received any prior payments
or benefits from the United States that relate directly to the losses they are claiming in this case
from flooding related to Hurricane Harvey.” Def.’s Resp. to Pls.’ Leistra-Jones Mot., Ex. A at 1,
ECF No. 464-1. Unlike Dr. LaRue, Mr. Leistra-Jones purports to provide a comprehensive
analysis of benefits received by plaintiffs that the government alleges should be offset against
any just compensation award. Def.’s Resp. to Pls.’ Leistra-Jones Mot. at 5-6, ECF No. 464. As
has been stated, the government bears the burden on the issue of proving offsets. CCA Assocs.,
667 F.3d at 1245. And as the court has stated in a prior hearing, “the [c]ourt is almost invariably
willing to allow a party to try to prove its case.” Hr’g Tr. 16:9-19 (Sept. 4, 2020). Consistent
with this view, the court will allow Mr. Leistra-Jones’s testimony, save any portions related to
the work of Dr. LaRue, which will be excluded. The court makes no determination at this time
on whether any of the payments about which Mr. Leistra-Jones will testify are general or special
benefits. Plaintiffs may raise any concerns as to Mr. Leistra-Jones’s methodology or other
aspects of his report on cross-examination.
Plaintiffs motion in limine to exclude the testimony of Mr. Leistra-Jones is GRANTED
IN PART AND DENIED PART. Mr. Leistra-Jones will be allowed to testify as to direct
benefits received by the bellwether plaintiffs, excluding any portions relating to tax implications
of casualty losses that were to have been covered by testimony of Dr. LaRue.
C. Evidence and testimony from Mr. John Postava
Plaintiffs seek to exclude government witness John Postava, see generally Pls.’ Postava
Mot., a licensed property and authorized National Flood Insurance Program flood claims
adjuster, who reportedly will focus on valuation of personal property damaged or lost as a result
of the flooding, see Def.’s Resp. to Pls.’ Postava Mot. at 3, ECF No. 460. Plaintiffs allege his
testimony is irrelevant because in their view his analysis “is nothing more than his opinion that
the information he reviewed regarding the property taken by the government . . . would be
insufficient to support an insurance claim.” Pls.’ Postava Mot. at 1 (emphasis omitted). The
government counters that Mr. Postava’s testimony is relevant and that as a rebuttal expert his
testimony will be defined by plaintiffs’ expert’s testimony. Def.’s Resp. to Pls.’ Postava Mot. at
2-4.
When it found the government liable for a permanent flowage easement, the court
concluded that “the taking also encompassed—as a consequential result of the flowage easement
taken—plaintiffs’ personal property, fixtures, and improvements damaged or destroyed by the
flood event.” In re Upstream, 148 Fed. Cl. at 278. Therefore, testimony relating to the valuation
14
of plaintiffs’ personal property is relevant to the just compensation trial. See also Hr’g Tr. 69:24
to 70:2. Plaintiffs contend that Mr. Postava’s testimony adds nothing of value because he did not
challenge the methodology of plaintiffs’ experts. Because Mr. Postava in essence is scheduled to
rebut plaintiffs’ evidence of the value of personal property lost, it would be premature for the
court to exclude his opinion before plaintiffs’ own expert’s testimony of value has taken place.
To the extent plaintiffs challenge Mr. Postava’s methodology of applying “insurance
standards,” those challenges do not speak to admissibility but to the weight (if any) the court
should give Mr. Postava’s testimony. See Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d
1283, 1299 (Fed. Cir. 2015) (where an expert’s “credibility, data, or factual assumptions have
flaws, these flaws go to the weight of the evidence, not to its admissibility”). In fact, it is flaws
in plaintiffs’ own expert testimony that Mr. Postava allegedly offers to address: “[Plaintiffs’
personal property expert] testified he did not follow what [Mr. Postava] consider[s] to be the
typical methodology when preparing a personal property inventory. . . . [Without further
documentation, plaintiffs’ expert] could not have calculated reasonable replacement cost values
for the items listed on the [p]laintiffs’ inventories.” Def.’s Resp. to Pls.’ Postava Mot., Ex. A at
11 (Expert Report of John Postava), ECF No. 460-1. 12
The court determined that personal property damage was a consequential result of the
flowage easement taken by the government. The plaintiffs bear the burden of proving the value
of those losses. See Hedstrom Lumber Co., Inc. v. United States, 7 Cl. Ct. 16, 28 (1984). The
government is entitled to rebut their evidence. Plaintiffs’ motion in limine to exclude the
testimony of John Postava is DENIED.
D. Testimony Regarding the Exclusion of Co-Tenants for the Bellwether Properties
Before the court are two motions relating to co-tenants of the bellwether properties.
Plaintiffs first moved to prevent the government from offering evidence “regarding any [c]o-
[t]enant’s ownership interest.” Pls.’ Co-Tenants Mot. at 1. Plaintiffs averred that this motion
was in response to the government’s contention that “the [c]ourt should only determine just
compensation for the selected bellwether plaintiffs that is proportionate with their ownership
interests.” Id. Plaintiffs then filed a motion to amend the master complaint to add the co-tenants
of the six bellwether properties (or alternatively to join them). Pls.’ Mot. to Amend the Master
Complaint (Pls.’ Mot. to Amend”), ECF No. 493. Beyond adding the co-tenants as plaintiffs
generally, plaintiffs seek to have the co-tenants designated as bellwether test plaintiffs as well.
Id. at 1.
1. Motion to amend the complaint or alternatively for joinder.
Plaintiffs seek leave to file an amended master complaint to add Oscar Quintero,
Alexander Popovici, Manviner Grewal, and Fatima Holland as co-plaintiffs and as bellwether
12
If Mr. Postava offers testimony that there is not enough information to value plaintiffs’
personal property losses, his testimony would extend beyond challenging the “veracity” of
plaintiffs’ statements, as plaintiffs contend.
15
test plaintiffs. 13 RCFC 15(a)(2) gives the court leave to allow a party to amend its pleading
“when justice so requires.” The applicable six-year statute of limitations has not expired, see 28
U.S.C. § 2501, and the non-named co-owners are entitled to file their own claims for the
government’s taking of a permanent flowage easement on their property. Importantly, the
government does not oppose the addition of the co-tenants as plaintiffs for these reasons. Def.’s
Resp. to Pls.’ Mot. to Amend at 1, ECF No. 494. Contrastingly, the government does oppose the
designation of the co-tenants as bellwether test plaintiffs. Id. For the reasons stated, the court
will allow plaintiffs to amend their complaint to add the listed co-tenants, but the co-tenants will
not be designated as bellwether test plaintiffs and their cases will be administratively stayed
along with the other non-bellwether plaintiffs.
Plaintiffs argue that it would not be prejudicial to the government to add the co-tenants as
bellwether plaintiffs and that no new discovery would be required. Pls.’ Mot. to Amend at 7-9.
Plaintiffs correctly state that the government’s definition of “plaintiff” or “test plaintiff” included
“each and every individual, entity, or party who claims a [p]roperty interest in the [t]est
[p]roperties” and “spouses not named in the litigation.” Pls.’ Mot. to Amend at 3 n.1 (emphasis
omitted). Nonetheless, they fail to acknowledge that they “object[ed] to the extent that the
definition attempt[ed] to solicit responses or require [p]laintiff to obtain responses from
individuals or entities that are not parties to this litigation.” Def.’s Resp. to Pls.’ Mot. to Amend,
Ex. 2 at 2, ECF No. 494-1. Plaintiffs cannot have it both ways by claiming that the bellwether
plaintiffs’ responses in discovery do not apply to (then) non-parties and now claim that such
responses do apply to the co-tenants. While any future discovery as to the co-tenants may be
redundant, the government is not required to take plaintiffs’ assurances on this issue. Discovery
has not occurred as to the co-tenants, and it would be prejudicial to the government to allow the
co-tenants to be added as bellwether plaintiffs at this late stage. Therefore, plaintiffs’ motion to
amend their master complaint is GRANTED IN PART AND DENIED IN PART. Plaintiffs may
file their amended complaint adding the co-tenants as plaintiffs, but the co-tenants will not be
designated as bellwether plaintiffs.
Remaining is plaintiffs’ motion in limine to prevent the government from introducing
“evidence regarding any [c]o-[t]enant’s ownership interest.” Pls.’ Co-Tenants Mot. at 1. The
government opposes this motion, arguing that evidence regarding the co-tenants is relevant to
determining the value owed to the bellwether plaintiffs—whom the government argues are the
only plaintiffs properly before the court at this time who are eligible to receive any award from
the court. Def.’s Resp. to Pls.’ Co-Tenants Mot. at 3, ECF No. 461. Both parties point to the
unit rule, which requires “that real estate be valued in respect to its gross value as a single entity
as if there was only one owner. . . . [T]he manner in which the land is owned or the number of
owners should not affect the value of the land.” Childers v. United States, 116 Fed. Cl. 486, 502
(2013) (quoting 4 Nichols on Eminent Domain § 13.01[16]). The government agrees “that under
the unit rule, the bellwether properties must be appraised as if they were under ‘unified control
13
Plaintiffs also seek to add an explanatory paragraph to the complaint detailing that
incorrect property descriptions for the Lakes on Eldridge Community Association were included
in the original complaint and that corrected descriptions were admitted during the liability phase
of the trial without objection. Pls.’ Mot. to Amend at 2. The government does not object to this
addition. Id.
16
and ownership without competing partial interests.’” Def.’s Resp. to Pls.’ Co-Tenants Mot. at 3
(quoting Childers, 116 Fed. Cl. at 505). That is exactly how the court shall proceed in the first
instance.
Where the parties disagree is whether the court must apportion the just compensation
award subject to the bellwether plaintiffs’ interests in the taken properties. Both parties point to
the court’s holding in Technical College of the Low Country v. United States:
The division of the proceeds between [the co-owners] is, according to the unit rule,
not a factor in determining the value of the land taken. Further, it is well settled
that the Court of Federal Claims “does not have subject matter jurisdiction to
entertain controversies between private parties.” However, [the co-owner] has not
appeared in this case, and [plaintiff] has not demonstrated it is entitled to recover
damages representing compensation for the [co-owner’s] interest that was taken.
145 Fed. Cl. 408, 433 (2019) (internal citations omitted) (quoting Hufford v. United States, 85
Fed. Cl. 607, 608 (2009)). Plaintiffs seem to concede in their reply brief that the proper
approach is for the court to “(1) value both the larger parcels as to which a taking ha[s] been
found according to their highest and best uses without regard to the co-ownership issue, and (2)
adjust both the before and after values to reflect the co-ownership issue.” Pls.’ Reply to Pls.’ Co-
Tenants Motion at 3, ECF No. 496 (internal quotations and alterations omitted) (quoting
Technical College, 145 Fed. Cl. at 433-34). The court has admitted the co-tenants as plaintiffs
above, but they are not properly before the court as bellwether plaintiffs. While plaintiffs urge
the court to defer the determination of the exact value owed to each test property plaintiff to a
later date, see id. at 2, the court sees no reason to proceed in such a manner. In the
circumstances, evidence regarding the co-tenants’ ownership interests will be relevant to the
award, and the government will be entitled to rebut plaintiffs’ evidence on the value owed to
each plaintiff by pointing to evidence of a co-ownership interest. 14 Plaintiffs’ motion in limine to
exclude evidence regarding co-tenant interests in the bellwether properties is DENIED.
E. Evidence Relating to the Alleged “Temporary Taking”
The government seeks to exclude “any and all testimony and evidence relating to
[p]laintiffs’ ‘temporary lost use of their real property.’” Def.’s Temp. Taking Mot. at 1 (quoting
Pls.’ Mem. of Contentions of Fact and Law (“Pls.’ Mem.”) at 25, ECF No. 466). In its opinion
finding the government liable for a flowage easement, the court stated:
Plaintiffs have alleged three separate takings: (1) a temporary, categorical, physical
taking for the temporary flooding; (2) a permanent, categorical, physical taking for
the destruction of plaintiffs’ personal property; and (3) a permanent, non-
categorical, physical taking for the flowage easements on each property. The court,
14
This disagreement between the parties may have little ultimate effect. The government
may not be in any position to deny the co-tenants their portion of the just compensation award
when this court will have adjudicated the value of the property and found the portion of the
interest they are entitled to by apportioning the bellwether plaintiffs’ interests in this action.
17
however, finds these distinctions unnecessary, as the first two alleged takings are
simply the consequential result of the third. Thus, the court here will apply its
analysis to the consideration of whether the government’s actions constituted a
physical, permanent, non-categorical taking for a flowage easement.
In re Upstream, 146 Fed. Cl. at 247 n.17 (internal citations omitted). The court ultimately found
that “[t]he government, through its construction, maintenance, and operation of the Addicks and
Barker Dams in the past, present, and future, has taken a permanent flowage easement on
plaintiffs’ properties.” Id. at 250. The court explicitly stated that the easement “encompassed—
as a consequential result of the flowage easement taken—plaintiffs’ personal property, fixtures,
and improvements damaged or destroyed” by the flooding resulting from Hurricane Harvey. In
re Upstream, 148 Fed. Cl. at 278.
The government is correct that the court did not find a temporary taking of property by
the government had occurred. But, the court did recognize that certain property losses by
plaintiffs were the “consequential result” of the government’s taking of a flowage easement.
Evidence regarding the “temporary dispossession of [plaintiffs’] property rights measured by the
fair rental value of the property for the reasonable period [plaintiffs] w[ere] deprived of its use,”
Pls.’ Mem. at 26, is included in the consequential results of the government’s taking of a
permanent flowage easement. Just as plaintiffs’ personal property would not have been damaged
or destroyed but for the government’s taking, it is also true that but for the government’s taking,
plaintiffs would not have been displaced from their properties—temporarily or otherwise. “[F]or
all that the [g]overnment takes it must pay.” United States v. Dickinson, 331 U.S. 745, 750
(1947). This edict remains true, regardless of the fact that the flooding was a temporary aspect
of a permanent taking. As such, evidence of a temporary dispossession is admissible, but the
government is correct that such evidence does not support the finding a temporary taking.
Therefore, the government’s motion in limine to exclude evidence regarding temporary takings is
GRANTED IN PART AND DENIED IN PART. Plaintiffs may present evidence consistent with
the court’s ruling on losses that are the consequential result of the government’s taking but may
not present evidence of a taking the court did not find existed.
F. Use of Deposition Testimony of the United States’ 30(b)(6) Witnesses 15
Rule 30(b)(6) requires that a party serving a notice under this rule “describe with
reasonable particularity the matters for examination.” In turn, the named organization “must
then designate one or more . . . persons who consent to testify on its behalf.” Id. “The purpose
of Rule 30(b)(6) is to ensure that [entities] supply relevant information to opposing counsel
relating to corporate practices, policies, procedures and actions.” Ierardi v. Lorillard, Inc., Civ.
A. No. 90-7049, 1991 WL 66799, at *2 (E.D. Pa. Apr. 15, 1991) (discussing Fed. R. Civ. P.
30(b)(6)). 16 Plaintiffs issued a Notice of Rule 30(b)(6) Deposition of the United States of
15
The court has granted one other motion to use deposition testimony and denied another
such motion. See supra n.2.
16
RCFC 30(b)(6) mirrors Fed. R. Civ. P. 30(b)(6), and the rules should be interpreted in
pari materia.
18
America on April 15, 2020, seeking the designation and production of witnesses for forty-nine
topics. See Pls.’ Am. Sec. Not. of Rule 30(b)(6) Depo., ECF No. 291-1. The government filed a
motion for a protective order, claiming the topics were overly broad among other things, which
the court granted in part and denied in part. See In re Upstream Addicks and Barker (Texas)
Flood-Control Reservoirs, No. 17-9001, 2020 WL 3513552 (Fed. Cl. June 29, 2020). In that
prior order, the court limited the topics to the easement at issue in the case, to the six bellwether
properties, and required the government to provide updated information as necessary. Id. at *1-
2. The government designated four witnesses to testify as Rule 30(b)(6) witnesses: Robert
Thomas, III, Jeremy Creech, Paula Johnson-Muic, and Ronald Wanhanen. Pls.’ 30(b)(6) Depo.
Mot. at 2.
Plaintiffs have moved for leave to admit the deposition testimony of these four witnesses
in lieu of live testimony at trial. See generally Pls.’ 30(b)(6) Dep. Mot. The government
opposes this motion, alleging that plaintiffs “seek to admit testimony—as binding Rule 30(b)(6)
admissions—that was elicited in response to questions outside the scope of the noticed topics.”
Def.’s Resp. to Pls.’ 30(b)(6) Dep. Mot. at 1, ECF No. 495. Beyond this motion to admit
testimony, plaintiffs have also attempted to serve a subpoena on the government as well as each
of the persons the government designated under Rule 30(b)(6). In response, the government has
also filed a motion seeking a protective order to “preclud[e] [p]laintiffs from calling the United
States or previous Rule 30(b)(6) designees in a representative capacity; preclude[e] [p]laintiffs
from enforcing related subpoenas; [or], in the alternative, limit[] any testimony by such
witnesses to matters on which they can testify based on personal knowledge.” Def.’s 30(b)(6)
Prot. Order Mot. at 10. The court will address each of these motions in turn.
(i.) Motion for leave to use deposition testimony.
RCFC 32(a)(3) provides that “[a]n adverse party may use for any purpose the deposition
of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or
designee under RCFC 30(b)(6).” The government states that it “does not oppose the use of
deposition testimony taken under RCFC 30(b)(6) at trial so long as the testimony is limited to
topics described with the necessary particularity.” Def.’s Resp. to Pls.’ 30(b)(6) Dep. Mot. at 2.
Rather than belabor the point, the court exercises its discretion to admit the deposition testimony
subject to the government’s objections, which will be addressed as needed at trial. Therefore,
plaintiffs’ motion for leave to use the deposition testimony given by witnesses designated by the
government pursuant to Rule 30(b)(6) is GRANTED, subject to the government’s preserved
objections to be addressed at trial.
(ii.) Protective order.
In addition to seeking leave to use deposition testimony, plaintiffs have served five
subpoenas on the government. Def.’s 30(b)(6) Prot. Order Mot. at 2. One subpoena was issued
to the United States itself, and the remaining four were issued to Ronald Wanhanen, Robert
Thomas, III, Paula Johnson-Muic, and Jeremy Creech as “representative[s] of the U[nited]
S[tates].” Id. at 3. The government seeks a protective order to preclude the United States or
previous Rule 30(b)(6) designees from being called in a representative capacity and to prevent
plaintiffs from enforcing the subpoenas. Id. at 10.
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Rule 45 of the Court of Federal Claims states that “[e]very subpoena must . . . command
each person to whom it is directed” to appear.” RCFC 45(a)(iii) (emphasis added). The United
States is not a person for the purpose of Rule 45. The general statutory presumption is that
“person” does not include the government. Al Fayed v. C.I.A., 229 F.3d 272, 273-74 (D.C. Cir.
2000). This presumption has been extended to Rule 45 of the Federal Rules of Civil procedure.
Truex v. Allstate Ins. Co., 233 F.R.D. 188, 191 (D.D.C. 2006) (quashing a Rule 45 subpoena
issued to FEMA for failure to “overcome the presumption that ‘person’ within Rule 45 does not
include the government”). 17 The court adopts this general presumption and finds that plaintiffs
have not overcome the presumption to prove that Rule 45 of the Rules of the Court of Federal
Claims does not include the government within the term “person.” 18 Therefore, the subpoena to
the United States itself is improper and will not be enforced.
The subpoenas issued to the individual persons are a different matter. Regardless of the
permissibility of such subpoenas, the court finds them to be improperly issued. “Serving a
subpoena requires delivering a copy to the named person.” RCFC 45(b)(1). Here, the named
individuals were Ronald Wanhanen, Robert Thomas, III, Paula Johnson-Muic, and Jeremy
Creech, but the accepting party was counsel for the United States. Def.’s 30(b)(6) Prot. Order
Mot. at 2. Service on the United States when attempting to compel these individuals to testify—
in whatever capacity—is not sufficient to satisfy Rule 45. See Dopson-Troutt v. Novartis
Pharmas. Corp., 295 F.R.D. 536, 537-38 (M.D. Fla. 2013) (finding insufficient service where
subpoenas for individuals were served to corporate registered agent instead of to the named
individual). While the issuing party in Dopson may have been seeking to compel testimony in
the persons’ individual capacities and plaintiffs here seek testimony from the listed individuals in
their representative capacity, Rule 45 does not provide for such nuance, and the court will not
read such nuance into the rules.
Yet the government has stated it will call three of the four named individuals, see Def.’s
Just Compensation Trial Witness List at 2, 4, and in that connection the court finds it prudent to
consider persuasive precedent from another jurisdiction. The Fifth Circuit has opined on the
issue of a witness previously designated under Rule 30(b)(6) taking the stand at trial:
Although there is no rule requiring that the corporate designee testify
“vicariously” at trial, as distinguished from [] the rule 30(b)(6) deposition, if the
corporation makes the witness available at trial he should not be able to refuse to
testify to matters as to which he testified at the deposition on grounds that he had
only corporate knowledge of the issues, not personal knowledge.
Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006). The Federal Rules of
Evidence govern, particularly the rules governing hearsay. See Union Pump Co. v. Centrifugal
Tech. Inc., 404 Fed. App’x 899, 907-08 (5th Cir. 2010). Consistent with this view, the court
17
Inasmuch as RCFC 45 mirrors Fed. R. Civ. P. 45, the rules should be interpreted in
pari materia.
18
This notion is particularly true when considering how the Rules of the Court of Federal
Claims diverge from the Federal Rules of Civil Procedure to account for its special jurisdiction
over the United States government. See, e.g., RCFC 12(a)(1)(A) (time to answer).
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will not prevent plaintiffs from inquiring into matters discussed at the individuals’ depositions,
so long as the evidentiary rules otherwise allow it. Should the government open that door, the
court will not close it.
The court further notes that with the admission of the deposition testimony, the issue
should be adequately addressed without further action. Therefore, the government’s motion for
a protective order as to its Rule 30(b)(6) designees is GRANTED IN PART AND DENIED IN
PART.
CONCLUSION
For the reasons stated, the numerous motions before the court are resolved as follows:
(1) The government’s motion in limine as to Drs. Bell and Bedient is GRANTED IN PART
AND DENIED IN PART. The testimony of Dr. Bell will be admitted but limited to one
hour. The testimony of Dr. Bedient will be admitted.
(2) Plaintiffs’ motion in limine regarding Frank Lucco is GRANTED IN PART AND
DENIED IN PART. Mr. Lucco’s testimony will be admitted but limited to three hours.
(3) The government’s motion for a protective order regarding Frank Lucco is GRANTED IN
PART AND DENIED IN PART. Plaintiffs may not call Mr. Lucco in their case-in-chief,
but the scope of plaintiffs’ cross-examination will not be limited by the scope of direct
examination.
(4) Plaintiffs’ motion in limine regarding testimony about offsets in general is DENIED.
(5) Plaintiffs’ motion in limine regarding Dr. David LaRue is GRANTED.
(6) Plaintiffs’ motion in limine regarding Dan Leistra-Jones is GRANTED IN PART AND
DENIED IN PART. Mr. Leistra-Jones will be permitted to testify but may not testify as
to opinions of Dr. LaRue.
(7) Plaintiffs’ motion in limine regarding John Postava is DENIED.
(8) Plaintiffs’ motion to amend the master complaint is GRANTED IN PART AND
DENIED IN PART. Plaintiffs may file their amended complaint, adding co-tenants as
plaintiffs, but the co-tenants will not be designated as bellwether plaintiffs.
(9) Plaintiffs’ motion in limine to exclude testimony regarding ownership interests in the
bellwether properties is DENIED.
(10) The government’s motion in limine for a protective order regarding evidence of a
temporary taking is GRANTED IN PART AND DENIED IN PART. Plaintiffs may
present evidence regarding losses that are a consequential result of the permanent flowage
easement but may not present evidence of a temporary taking generally.
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(11) Plaintiffs’ motion to admit the deposition testimony of the government’s Rule 30(b)(6)
witnesses is GRANTED, subject to the government’s objections to be addressed at trial.
(12) The government’s motion for a protective order regarding subpoenas issued to it and the
Rule 30(b)(6) witnesses is GRANTED IN PART AND DENIED IN PART. The court
will not enforce the subpoenas but will not bar the pertinent witnesses from testifying to
things already addressed in their deposition testimony, subject to the Federal Rules of
Evidence.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
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