Western District of Virginia Excludes Appraiser’s Report Regarding Damages to the Reminder

In the continuing litigation over the construction of the Mountain Valley Pipeline in Western Virginia, a federal trial court excluded a landowner’s supplement to its expert’s opinion on the ground that it contained new opinions that were not disclosed by the deadline for such reports set forth in the scheduling order. The appraiser, Dennis Gruelle, indicated in his initial report that the subject property, a 560 acre tract located in Roanoke County, would have been suitable for the erection of a windfarm before the take but that the project would change that highest and best use to a subdivision for single-family homes. He therefore opined that the property would suffer damages from that change in use.

In its rebuttal designation, the Pipeline Company disclosed an expert report from a site developer that stated the pipeline project would not negatively impact the landowners’ ability to erect a wind project on their property. In response, Mr. Gruelle issued a supplemental report in which he abandoned the position that the project rendered the property unsuitable for a wind farm. Instead, he stated that the highest and best use of the northern 300-odd acres both before and after the take was as a wind farm and that the southern acreage had a highest and best use in the before as a subdivision for single-family homes. In the after, his opinion appears to be that the use changed to a family subdivision because of a loss of frontage. The opinion went on to list other new opinions about damages.

The court ruled that a party has a duty to supplement expert disclosures when they are incorrect or incomplete, but supplementation cannot be used to bolster or submit additional expert opinions. The court found that the supplemental report had several new opinions that were not merely correcting errors in the first. It also found that the second report was not substantially justified or harmless. Indeed, the court found that Mr. Gruelle had discovered his error before the Pipeline Company had disclosed its rebuttal expert but that he did not supplement the report until over a month later, the day discovery closed. Because of the prejudice to the Pipeline Company that resulted from the untimely disclosure, the court excluded the appraiser’s supplemental report.

The case, Mountain Valley Pipeline, LLC v. 8.37 Acres of Land, Case No. 7:20-cv-00134, is scheduled for trial August 16-20, 2021 in the Roanoke Division of the U.S. District Court for the Western District of Virginia.