EXPERT TESTIMONY
I spent the better part of last week trying to line up a couple of expert witnesses for an Ohio civil case. The eye-glazing episode made me think of Mark Twain’s aphorism: “an expert is just somebody from out of town.”
As I was reminded in my quest for some experts in rather arcane disciplines, it’s a little more complicated than what Twain may have thought. But not that much: certified arborists, tree-trimming service operators, even just guys from out of town, just about anyone can be qualified by courts as an expert witness.
And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.
In today’s case from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion and, in doing so, explained the type of research process it wanted to see as the basis for an expert opinion.
Of course, the state’s treble damages statute, which tripled the value of the lost timber, made the expert’s opinion all the more important to both sides. Incidentally, the defendant argued that there was no proof the bulldozer operator was his agent, but that was a mere sideshow: the evidence overwhelmingly supported that point.
Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of Nora Pitts’s property. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders Jackson’s.
Lloyd Pitts, Nora’s son, saw John Moore operating a bulldozer in the area where the timber was destroyed, along Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that Jackson and Moore trespassed on Pitts’ land and destroyed marketable timber, valuing the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment to $3,471.60. Jackson appealed.
Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. Treble damages in a trespass action for trees damaged, broken, destroyed, or carried away require a showing of intentional wrongdoing, although intent may be inferred from the offending party’s carelessness, recklessness, or negligence.
Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator, making Jackson liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer operating on his mother’s property near the damaged timber and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he hired Moore to work on his property with a bulldozer and that, if any trees were removed from Pitts’ property, Moore would have done it.
Mark Twain says there are none of these …
As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued at its “stumpage value,” the value of the timber standing in the tree. Here, Pitts’ expert witness testified to the estimated number of trees Moore destroyed and their market value at the time. The Court said the evidence was admissible, even though the opinion relied in part on hearsay. The expert described his methodology for computing timber value within a specified area, including diameter measurements of randomly selected trees, an estimate of timber volume multiplied by the number of trees in that area, and a university timber market report to obtain an estimated market value.
What’s more, the Court observed that the expert testified he personally walked the area to take his measurements, then walked off the bulldozed area and into the woods next to it to measure a similar amount of land and count the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.
– Tom Root
