The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
In anticipation of the commencement of the damages portion of the
trial, defendants have challenged the admissibility of the proposed
testimony of five of plaintiff's proposed expert witnesses and plaintiff
has reciprocated by challenging that of one of defendants'. The Court
conducted a three day in limine hearing on December 15-17, 2003.
Having considered the evidence, the Court rules as follows:*fn1
Plaintiff proposes to offer opinions of George Laibe as to the costs of
rebuilding the Thunderbolt and repairing it on November 16, 2000 to
operating condition. Defendants challenge Mr. Laibe's expertise as well
as the relevancy of both of these opinions.
In order to evaluate Mr. Laibe's expertise, it is necessary first to
understand what he did. He and others obtained the original drawings of
the roller coaster, entered the information into
an AutoCAD program,*fn2 did a quantities take-off from the program,
reviewed photographs, and developed a list of the materials required to
replicate the roller coaster. On the basis of his prior experience, he
then estimated the number and cost of man hours necessary to construct a
new roller coaster and other costs. Hearing Tr. ("HT") 34-40, 90. He did
much the same thing in estimating the repair cost, but here he was
severely limited because the roller coaster had been destroyed before he
was engaged and he therefore had only a number of photographs, showing
only limited portions of the roller coaster, from which to work. Id.
Rule 702 permits testimony by a person "qualified as an expert by
knowledge, skill, experience, training, or education . . ." Mr. Laibe has
had no education or formal training in engineering, construction, or cost
estimating. He began as a construction laborer and has spent some years
working in the amusement industry, broadly defined. He later was employed
for approximately one and one-half to two years as vice president of
marketing and sales for Roller Coaster Corporation of America in which
capacity he had some involvement in developing budgets for construction
of wooden roller coasters.*fn3 Subsequently, he was involved in a firm
called The Coaster Works, which built two wooden roller coasters. He
prepared budgets and pricing for both based on "the quantities that were
given to [him] from the plan and profile by the design engineers." HT
The Court has no doubt that Mr. Laibe is qualified to take a bill of
materials generated by design engineers for a roller coaster construction
project and, using that starting point, to develop a cost estimate for the
materials needed for the construction as well, perhaps, as other costs.
It is not so clear that he is qualified to generate a bill of materials
from original construction drawings, with or without an Auto CAD
program. It is still less clear that he is qualified to give, from
fragmentary photographs, a helpful opinion as to the extent of the
repairs that were necessary to render the roller coaster operational.
Compare Thorp v. American Aviation and General Insurance Co., 212 F.2d 821,
826 (3d Cir. 1954) (building contractor familiar with destroyed structure
prior to its destruction who inspected and measured remains after fire
qualified to give opinion as to replacement cost). But defendants did not
fully develop these points during the hearing. Nevertheless, the Court is
not prepared at this juncture to exclude his testimony on this ground for
two reasons. First, "[t]he standard for qualifying expert witnesses is
liberal." 4 Weinstein's Federal Evidence § 702.04 [a], at 702-42
(2003). Second, in view of the fact that the cost of repairs must be
estimated from photographs in consequence of the City's tortious action,
some liberality in the proof of the amount of damages is warranted. See,
e.g., Cullen v. Nassau County Civil Service Comm., 52 N.Y.2d 492, 497,
442 N.Y.S.2d 470, 473 (1981). In consequence, the better course of action
is to decline in advance of the damages trial to exclude Mr. Laibe's
testimony on this ground but to deal with any issues at trial or,
perhaps, after verdict.
Defendants posit that the proper measure of damages is the lesser of
the cost of restoring the property to its former condition and the
diminution, if any, in the market value of the property by reason of the
trespass. Def. Mem. 1. As Mr. Laibe does not propose to testify directly
to either point, they argue, his testimony is irrelevant.
Assuming arguendo that the defendants are correct on the measure of
damages, they nevertheless overlook the significance of the proposed
testimony. It at least is arguable that the cost of restoring the roller
coaster to its former condition the dilapidated and inoperable
condition in which it stood immediately prior to demolition is
approximately equal to the difference between the cost of rebuilding it
from scratch and the cost of bringing the roller coaster, in its former
condition, up to operable condition.
Ms. Silber is a licensed real estate appraiser whom plaintiff offers to
give her opinions as to the value of the land on which the roller coaster
was situated and as to the appropriate method for valuing the roller
coaster. Defendants challenge her testimony on the ground that her
opinions are unreliable in that they are based upon incorrect legal and
factual assumptions, viz. that the roller coaster had been declared a
landmark and that it was "specialty property" as a matter of law.
As Ms. Silber admitted at the hearing, the roller coaster never was
"landmarked" and her report, to that extent, simply was wrong. HT 270.
She contended, however, that this error did not affect her opinion
because she appraised the land as if it were vacant. Id. 275. This then
is an ...