Courts balk at litigant's aggressive 'Daubert' attack


B & L Development LLC v. City of Norton Shores, 2014 Mich. App. LEXIS 1488 (Aug. 14, 2014)

A recent Michigan appeals court decision deals with the evergreen issue of how far the trial court has to drill down on an expert’s testimony before admitting it under Daubert. But what makes the case particularly noteworthy is the fierceness with which one side attacked the other side's expert.

The taxpayers appealed the city’s tax assessment of their property, a shopping mall, at the Michigan Tax Tribunal (MTT), arguing the city’s tax assessor valued the property in excess of 50% of the true cash value, in violation of the state constitution. During a four-day hearing, both sides presented expert testimony. The taxpayers’ expert had decades of experience appraising properties in Michigan, including strip malls, regional shopping centers, and industrial properties. He and the city’s expert agreed to use the sales comparison and capitalization of income approaches, and both concluded the income approach should be determinative.

Before trial even got underway, the city urged the MTT to exclude the opinion of the taxpayers’ expert. The issue was reliability, not qualification, it said. Its attorney exhorted the court to start acting like a gatekeeper, noting “more cases will settle if we have appraisals that come in that are more objective, that are less for advocacy purposes.” He asked to voir dire the expert “so that the Court can have adequate information to determine whether there is actual reliability here.” When those demands went unmet, he peppered the witness during trial with questions as to whether his appraisal was “falsifiable” and whether the valuation process in fact was “repeatable.”

Find out how the MTT and the appeals court viewed the gatekeeper role here.


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