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EMINENT DOMAINSECTION Anne W STATE BAR OF GEORGIA EMINENT DOMAINSECTION Anne W. Sapp, Chair Donald Janney, Chair-Elect Spring/Summer 2007 Warren Power, Secretary Inside this Issue Note From the Note From the Chair Chair . .Page 1 By Anne W. Sapp Justice Fletcher Eminent Domain Section Chair Receives Pursley he past year has been an exciting time for those of us who practice in the area of Award . .Page 1 eminent domain. There were major legislative changes in 2006 and exciting appel- The Daubert Standard Tlate cases in 2007, all of which inspired public interest in the area of eminent in Eminent Domain domain. As a result, membership in our section has grown, and we enjoyed an extremely Cases . .Page 2 well-attended Annual Meeting and Seminar in January 2007 at the Grand Hyatt Buckhead. For those of you who were unable to attend, we had an exciting faculty and Recent Decisions of enjoyed remarks at the luncheon from Judson Turner, executive counsel to the governor. Interest . .Page 4 Our section is financially secure, and for the first time will participate in the State Bar Experts in Eminent Annual Meeting this summer as a bronze level sponsor for the Opening Night Festival. Domain Law . .Page 6 We are also expanding the scope of services that our section offers to our membership. Section Midyear A section directory will be published this summer and delivered to everyone who is a member of the section. The newsletter will be published twice a year, offering court and Meeting and legislative updates in addition to information regarding expert witness contacts. A half Seminar day mid-year meeting and seminar will be held in August with CLE credits being offered August 2007 in professionalism and ethics. The half-day meeting My term will end June 30, but I will be working closely with incoming Chair Don and seminar will Janney to continue the exciting work that we started this year. Thank you for giving me include ethics and pro- the opportunity to serve as your chairman. fessionalism credits. Watch for more information and Justice Norman S. Fletcher specifics from ICLE. Receives 2007 Pursley Award t the 2007 meeting of the Eminent an LL. M. from the University of Virginia Domain Section, Justice Norman S. School of Law in May 1995. While a stu- AFletcher of the Supreme Court of dent at the University of Georgia, he was a Georgia received the Pursley Award for member of Sphinx, Gridiron, Blue Key, outstanding service in the field of eminent ODK, Phi Delta Theta fraternity and Phi domain. Justice Fletcher, a native of Delta Phi. He also served as president of Fitzgerald, Ga., was appointed to the his junior and senior classes and of Phi Georgia Supreme Court by Gov. Joe Frank Delta Theta fraternity. Harris in 1989. He was Chief Justice of the Prior to his appointment to the Supreme Court from 2001 until 2005. Justice Court, Justice Fletcher was engaged in the Fletcher retired from the Supreme Court in general practice of law. He began his law 2006. practice in 1958 as an associate in the law Susan G. McCathran, Justice Fletcher received his B.A. degree firm of Mathews, Maddox, Walton and Editor in 1956 and his LL.B. degree in 1958 from Smith in Rome, Ga. In 1963, he moved to [email protected] the University of Georgia. He also earned See Pursley Award on page 8 Application of Daubert Standard in Eminent Domain Cases in Light of O.C.G.A. § 22-1-14: A Condemnee’s Perspective By Dan Diffley and Sam Rutherford Alston & Bird LLP he trial of an eminent domain action brings to the (b) If any party to a condemnation proceeding seeks to intro- forefront a property owner’s constitutional right to duce expert testimony as to the issue of just and adequate Tjust and adequate compensation for property taken compensation, Code Section 24-9-67.1 shall not apply. by the government. The general issue of dispute in most The intent of O.C.G.A. § 22-1-14 appears to be to condemnation matters is the amount of damages to be paid exclude condemnation matters from the Daubert screening to the property owner. Expert witnesses, including real process mandated by the General Assembly in 2005 for all estate appraisers and business valuation experts, provide civil cases. The statute arguably gives experts in condem- most (and sometimes all) of the evidence as to the dam- nation matters an “escape clause” from the Daubert stan- ages owed in a condemnation action. Given the constitu- dard. However, the ambiguities in this statute and its tional rights at issue, these experts, whether offered by the apparent conflict with the policy put forth in 2005, raise government or by the impacted property owner, should be questions as to whether state courts in Georgia still may held to the same standards and rigorous screening by the apply the Daubert standard to experts in condemnation trial courts as in any other civil matter. Recent legislation matters, and if so, whether they should. in this area should not change this objective. Analysis of O.C.G.A. § 22-1-14 Daubert in Georgia O.C.G.A. § 22-1-14 is hardly an example of legislative As part of the General Assembly’s tort reform legislation clarity, and the Georgia appellate courts have not yet in 2005, Georgia adopted the Daubert standard for the issued any decisions on this portion of the new eminent 1 admission of expert testimony “in all civil actions.” domain statutes. An initial ambiguity is that Subsection (a) Daubert requires the trial court to serve as a “gatekeeper” does not fully address all damages that can be recovered in and examine the qualifications and the methods applied by a condemnation action. The subsection provides that the an expert. An expert witness may be qualified as an expert admissibility of testimony (both lay and expert testimony) by knowledge, skill, experience, training, or education, and as to value of the property lies within the sound discretion may testify in the form of an opinion or otherwise if: of the trial court. This subsection, however, is silent as to (1) the testimony is based upon sufficient facts or data consequential damages, or any sort of business losses or which are or will be admitted into evidence at the hear- other damages that may be suffered by a property owner or ing or trial; tenant. The question therefore remains: What standard is a (2) the testimony is the product of reliable principles court to apply for the business damages expert, accountant, and methods; and or any other expert testifying concerning something other (3) the witnesses apply the principals and methods in a than the value of the property taken? reliable manner to the facts of the case.2 Rather than answering this question, Subsection (b) states While O.C.G.A. § 24-9-67.1 provides some additional that O.C.G.A. § 24-9-67.1, the freshly-enacted Daubert por- criteria for medical malpractice actions, the statute con- tion of the evidence code, shall not apply when a party tains no carve-outs for eminent domain matters, or for real seeks to introduce expert testimony on the just and adequate estate appraisers or business damages experts generally. compensation owed to the condemnee. Thus, unlike the prior subsection, this subsection is not expressly limited to 3 In 2006, in light of the Kelo decision, the General testimony regarding the value of the property. Just and ade- Assembly tackled eminent domain reform. Included in that quate compensation is the central issue to be tried in a con- new legislation was a provision related to expert testimo- demnation action, and may include various damages ny, O.C.G.A. § 22-1-14, which provides as follows: amounts, such as consequential damages to the remainder or (a) When property is condemned under this title or any other business damages. So, contrary to Subsection (a), which is title of this code, the value of the condemned property may apparently limited to property value testimony, Subsection be determined through lay or expert testimony and its admis- (b) apparently dictates that O.C.G.A. § 24-9-67.1 does not sibility shall be addressed to the sound discretion of the court. apply to any expert offered in a condemnation case. Eminent Domain Section Newsletter—Spring/Summer 2007 2 Read in its entirety, O.C.G.A. § 22-1-14 presents a num- In O.C.G.A. § 24-9-67.1(f), the General Assembly ber of analytical problems and practical considerations. declared its intention that “the courts of the State of For example, while Subsection (b) eliminates the standard Georgia not be viewed as open to expert evidence that that would otherwise apply to all experts in a condemna- would not be admissible in other states.” Given the consti- tion case, Subsection (a) only expressly grants discretion tutional right involved in a condemnation action, it is only to trial courts with respect to one subset of such experts. logical that this policy, even if arguably disclaimed by What, then, is a trial court to do when confronted with Subsection (b), should be served. Permitting parties’ proffered testimony from a business damages expert? experts to testify with essentially no parameters for admis- Further, there is the larger question of whether the statute sibility could pose serious threats to the due process owed is a prohibition on the use of Daubert for experts in con- to a citizen whose property has been taken through the demnation cases, or whether it simply makes application exercise of eminent domain.
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