March 17, 2022, Grand Manor Condominium Association v. City of Lowell (Massachusetts Appeals Court 20-P-622)

This case involves environmental contamination discovered on property previously used by the city of Lowell as a landfill and subsequently sold to the developer of Grand Manor Condominiums. After a trial in 2016, a Superior Court jury found that the city was liable for response costs under § 4A of the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E (act). However, the jury rejected the plaintiffs’ claim for property damage under § 5 (a) (iii) of the act, concluding that such recovery was barred by the applicable statute of limitations. On direct appellate review, the Supreme Judicial Court determined that the limitations issue should not have been presented to the jury and remanded the case to the Superior Court. See Grand Manor Condominium Ass’n v. Lowell, 478 Mass. 682, 684 (2018) (Grand Manor I). After a second trial, which is the subject of this appeal, a different jury awarded damages for both response costs and property damage. On appeal, the city claims that in the second trial (1) the plaintiffs’ expert witness on damages should not have been permitted to testify; (2) the judge improperly allowed the jury to consider a three-dimensional model of the contaminated area; (3) sovereign immunity bars any award of prejudgment interest against the city; and (4) the judge abused his discretion in awarding attorney’s fees and costs to the plaintiffs.

Expert testimony. The Court held, “We see no abuse of discretion in the judge’s denial of the city’s motion to strike the testimony of the plaintiffs’ expert because he did not use the comparable sales method of valuation. Trial judges have discretion to determine ‘what evidence should be admitted on the subject of valuation,’ as well as ‘whether special conditions exist so that methods other than comparable sales can be used in establishing value.’  Lic, Inc. v. Hudson, 10 Mass. App. Ct. 815, 816 (1980). Here, there was evidence that there were no comparable sales of residential condominium units originally constructed on contaminated land. Id. The units considered by the city’s expert as comparable sales had already been ‘remediated to the point of no significant risk to public health.’ Grand Manor I, 478 Mass. at 685. Thus, this case is not like Young Men’s Christian Ass’n of Quincy v. Sandwich Water Dist., 16 Mass. App. Ct. 666, 670-671 8 (1983), upon which the city relies, where the expert misapplied a method of valuation. The plaintiffs’ expert did not misapply the comparable sales method; he simply chose not to include sales that were not comparable. The city’s contention, that LaPorte’s testimony was based on inadequate information, ‘goes to the weight and not the admissibility of the testimony.’ Commonwealth v. Rintala, 488 Mass. 421, 429 (2021).”

Three-dimensional model.  The Court held, “Washburn’s testimony and the three-dimensional model were admissible if they were reliable and relevant, see Commonwealth v. Hinds, 487 Mass. 212, 218 (2021); Mass. G. Evid. §§ 402, 702 (2021), and if their probative value was not ‘substantially outweighed’ by the danger of prejudice, Mass. G. Evid. § 403 (2021). Decisions on those issues are matters within the judge’s discretion. Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006), and cases cited.  We see no abuse of discretion here. Washburn testified that he created the model using software programs that ‘are widely used for visualization of topographic and subsurface features in both 2D and 3D,’ and are ‘accepted methodology in [his] field.’ There was no contrary evidence. Indeed, the city’s own expert in environmental modeling was familiar with the use of computer software to create three-dimensional computer models, and had done so himself. Thus, the evidence sufficiently established that the process on which Washburn’s testimony was based had ‘general acceptance in the relevant community.’  Rintala, 488 Mass. at 428, quoting Commonwealth v. Patterson, 445 Mass. 626, 640 (2005), overruled on other grounds by Commonwealth v. Britt, 465 Mass. 87 (2013).

Although the city’s expert opined that Washburn’s model was inaccurate, that opinion was not based on Washburn’s methodology. We have carefully reviewed the model and agree with the judge that it was relevant as ‘an aid to testimony’ and not overly prejudicial simply because it did not include contamination levels. The city’s argument regarding the model’s accuracy again went to its weight, not its admissibility. See Rintala, 488 Mass. at 429. Finally, we see no prejudice where five still photographs admitted without objection reflect the same basic information as the model.”

#Evidence #Valuation #Expertopinion