The fundamental rule is that the qualifications of a witness as an expert is a determination within the sound discretion of the trial court. Smith v City of New York, 238 AD2d 500 (2d Dept 1997).
An expert, once qualified, is allowed to testify as to the expert’s opinion. Sec. 7-301, Prince on Evidence (11th Ed. P. 456). In a condemnation case, the evidence before the court will be expert testimony by appraisers, zoning experts and other valuation experts.
As one court has stated, “impartiality should be the touchstone of an expert opinion. To assume that an expert witness would be partial would do ‘gross injustice’ to the expert’s integrity.” Asseniza v Howowitz, 26 Misc3d 356, 361 (Sup. Ct. Rich., 2009).
The Appellate Division, Second Department, noted, “self-serving statements are insufficient to support the expert’s opinion.” Leonard v Kinney Sys., 199 AD2d 470, 476 (2d Dept 1993).
In an Illinois case, the court defined an independent expert witness as a person giving expert testimony independent from the party retaining them who is not the party, the party’s current employee, or the party’s retained expert. Dereak v Don Mattox Trucking LLC., 2007 U.S. Dist. LEXIS 80188. A treating doctor, for example, will be testifying as an expert.
This is why it is a mistake to offer an employee of the Zoning Department of the condemnor as a rebuttal expert witness. Obviously, the witness as an employee is interested in the outcome. This is improper as he is an interested witness. While an interested witness can testify, the situations where that happens generally involve factual issues.
In an eminent domain case, expert witnesses are required to be independent from the party retaining them.
In Matter of City of New York (Darlington Avenue), 25 Misc3d 1240(A) (Sup. Ct. Richmond County 2009), Justice Abraham Gerges found that the City’s appraiser rendered tainted appraisals when he followed the instructions from the Corporation Counsel. He commented, “…the Court further finds that Mr. Salmon’s adoption of the suggestions and valuation formula offered by Counsel for the City should have been disclosed in his certification in accordance with the USPAP. From this it follows that his failure to do so is an issue that impacts adversely on the credibility of his findings.” Id. at page 23.
A condemnor’s employee offered as an expert is also contrary to the Uniform Standards of Professional Appraisal Practice (“USPAP”). While the zoning expert is not an appraiser, since he is preparing an expert report, he should be held to the same standard.
USPAP requires that an “appraiser must perform assignments with impartiality, objectivity, and independence, and without accommodation of personal interests.” USPAP Ethics Rule. The USPAP rule further details that an appraiser “must not perform an assignment with bias, and must not advocate the cause of interest of any party or issue.”
Finally, the opinion of a zoning expert, who is an integral part of the City’s Zoning Department, may not be allowed because it clearly violates the long-standing prohibition against an expert giving a legal opinion.
It is impermissible and reversible error to admit expert testimony as to a legal conclusion and statutory interpretation. Miriam Osborne Mem’l Home Ass’n. v Assessor of Rye, 7 Misc3d 1004A, 2005 NY Slip Op 50442(U), 4 (N.Y. Sup. Ct. 2005) (Dickerson, J.).
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