The opinion of the court was delivered by: McCURN, Senior District Judge.
MEMORANDUM-DECISION AND ORDER
It is an understatement to say that particularly in recent
years the parties' damage theories have been fluid. After
eighteen years of litigation and sporadic, unsuccessful
negotiation attempts, faced with the harsh reality of a trial, in
July, 1998, the parties made the first of several motions
pertaining to damages. Then, there was no agreement as to how to
calculate damages. In fact, even parties whose interests were
closely aligned, such as the State of New York ("the State") and
Cayuga and Seneca Counties, on the one hand, and the Cayuga
Indian Nation of New York, the Seneca-Cayuga Tribe of
Oklahoma,*fn2 and the plaintiff-intervenor, the United States
("the U.S."), on the other, were unable to agree as to an
appropriate valuation methodology in this case.
Since July, 1998, at times with the court's guidance, and at
times without, the parties have refined, redeveloped and
repeatedly analyzed various theories of calculating damages in
this case. What has remained constant, however, is the parties'
inability to agree upon a single methodology which should be
employed to value the subject property. This disagreement is
understandable given the paucity of directly relevant case law,
coupled with the lack of a directly applicable methodology for
the unique factual situation which this case presents: How to
compensate the Cayugas, in monetary terms, for the fact that
through two separate transactions with the State they were
dispossessed of their ancestral land in violation of the Indian
Trade and Intercourse Act, and have remained out of possession of
that land for the past 204 years.
Not surprisingly, the parties turned to expert witnesses to
establish the value of the subject property. Each of the three
proffered real estate appraisers tackled the daunting task of
property valuation in different ways. The experts' varying
approaches can by succinctly described a follows. John F.
Havemeyer, III, who testified on behalf of the Tribal plaintiffs,
invokes a sales comparison approach. The U.S.' expert, Arvel
Hale, employs a quantitative model which, in addition to real
estate appraisal principles, relies upon computer science,
mathematics and statistics. The appraiser upon which the State is
relying, John D. Dorchester, Jr., offers yet another model; this
one qualitative in nature, also incorporates appraisal principles
and, among other things, relies upon economics and history.
Given this conflict as to the proper valuation methodology to
be employed here,*fn3 as the court recognized in Cayuga Indian
Nation v. Pataki, Nos. 80-CV-930, 80-CV-960, 1999 WL 1279338
(N.D.N.Y. Dec. 23, 1999) ("Cayuga XII"), it has an obligation
to act as a "gatekeeper" to determine the admissibility of this
conflicting expert testimony. Id. at *14. In fulfilling that
obligation, as it is entitled to do, prior to jury selection the
court conducted a seven day hearing to determine, under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993), and its progeny the admissibility
of the proffered testimony of the three real estate appraisers.
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, ___, 119
S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999) ("The trial court must
have the same kind of latitude in deciding how to test an
expert's reliability, and to decide whether or when special
briefing or other proceedings are needed to investigate
reliability, as it enjoys when it decides whether or not that
expert's relevant testimony is reliable.").
Because Messrs. Havemeyer, Hale and Dorchester were all offered
as expert witnesses, at the outset the court must consider
whether each of these individuals is qualified to testify as
such. "The Federal Rules of Evidence permit opinion testimony by
experts when the witness is `qualified as an expert by knowledge,
skill, experience, training or education,' and `[i]f scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue.'" Zuchowicz v. United States, 140 F.3d 381, 386 (2d Cir.
1998) (quoting Fed.R.Evid. 702). During the Daubert hearing,
each of the proffered witnesses demonstrated that they have
sufficient knowledge, skill, training and education to establish
themselves as experts in terms of their "specialized knowledge"
as to real estate appraisal. Indeed, with one slight exception
which will be discussed below, in terms of their qualifications,
none of the parties seriously challenged the ability of the three
proffered real estate appraisers to testify in this case. Thus,
in keeping with the Second Circuit's liberal interpretation of
Rule 702, governing expert testimony,*fn4 because Havemeyer,
Hale and Dorchester amply demonstrated through their respective
curriculum vitae, and through their testimony, that they each
have a "reliable basis in knowledge and experience," so that they
are qualified to testify as experts on the issue of valuation
methodology herein, the court finds that all three appraisers are
qualified to testify as to that issue. See Kumho, 526 U.S. at
___, 119 S.Ct. at 1175.
Before leaving the issue of qualifications, the court observes
that at one point during the course of Dorchester's testimony it
was implied that perhaps he was not qualified to testify insofar
as he is using economic theory and statistical analyses in his
valuation methodology. After hearing Mr. Dorchester's testimony,
however, and after having the opportunity to more carefully
review his report, particularly in those two respects, the court
finds that although Mr. Dorchester is neither an economist nor a
statistician, that does not mean that he is unqualified to rely
upon those disciplines as part of his appraisal methodology in
this case. Likewise, the fact that Mr. Hale is not a
mathematician, a statistician, nor a computer scientist, does not
render him unqualified to rely upon those disciplines as part of
his appraisal methodology.
Given the increasingly complex world in which we live, it is a
fact of modern day life that many problems cannot be resolved
without taking an interdisciplinary approach. Thus, the fact that
both Hale and Dorchester relied upon other disciplines in
devising their respective valuation models is of little
consequence in terms of their qualifications to testify,
particularly where, as here, each witness demonstrated his
proficiency in the use of such disciplines in the context of real
estate appraisal. Accordingly, as to the qualifications of the
three appraisers, the court finds that each of them have the
credentials, through education, training and experience, to offer
their respective opinions as to the manner
in which the subject property should be valued.
With respect to the admissibility of expert testimony, whether
scientific, or whether based upon "technical" or "other
specialized knowledge," the Supreme Court has adopted a two-step
inquiry in which trial judges must engage to determine "whether
the reasoning or methodology underlying the [expert's] testimony
is . . . valid and . . . whether that reasoning or methodology
properly can be applied to the facts in issue." Daubert, 509
U.S. at 592-93, 113 S.Ct. at 2796; see also Kumho, 526 U.S. at
___, 119 S.Ct. at 1171. In other words, the purpose of a
Daubert hearing is to "ensur[e] that expert testimony `both
rests on a reliable foundation and is relevant to the task at
hand.'" Zuchowicz, 140 F.3d at 386 (quoting Daubert, 509 U.S.
at 597, 113 S.Ct. at 2799) (emphasis added).
It bears repeating that generally the admissibility of evidence
must be established by a preponderance of the evidence. See
Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct.
2775, 2778-2779, 97 L.Ed.2d 144 (1987). In the context of the
admissibility of expert opinion evidence under Daubert, as the
court reminded counsel during the hearing, "it is the proponent's
burden . . . to establish admissibility, rather than the
opponent's burden to establish inadmissibility." Graham v.
Playtex Products, Inc., 993 F. Supp. 127, 129 (N.D.N.Y. 1998)
(citing, inter alia, Lust v. Merrell Dow Pharmaceuticals,
89 F.3d 594, 598 (9th Cir. 1996)). Thus, in the present case, each
party had the burden of proving by a preponderance of ...