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January 5, 2004.

WANTANABE REALTY CORP., et al., Plaintiffs, -against- THE CITY OF NEW YORK, et al., Defendants

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

George Laibe

  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 Page 2 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. 40-89.

  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 15-16.

  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[1] [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. Page 3


  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.

 Doris Silber

  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 ...

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