Prakhin v. United States

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YURIY PRAKHIN, Plaintiff, v. THE UNITED STATES, Defendant.

No. 14-924L

United States Court of Federal Claims

March 10, 2023

Anna C. Broxmeyer, Law Office of Yuriy Prakhin, P.C., Brooklyn NY, for Plaintiff. With her on briefs was Gil Zohar, Law Office of Yuriy Prakhin, P.C., Brooklyn, NY.

Dustin J. Weisman, Trial Attorney, Natural Resources Section, United States Department of Justice, Denver, CO, for Defendant United States. With him on briefs were Matthew P. Rand, Trial Attorney, Natural Resources Section, United States Department of Justice, Denver, CO, Todd Kim, Assistant Attorney General Environment &Natural Resources Division, as well as Charles W. Johnson, Counsel, U.S. Army Corps of Engineers New York District.

OPINION AND ORDER

STEPHEN S. SCHWARTZ Judge.

The parties have filed two motions in anticipation of trial in this matter. Plaintiff Yuriy Prakhin filed a motion in limine to preclude expert testimony by Charles Caramanna,^[1] and the government filed a motion in limine to exclude certain exhibits and fact witnesses.^[2] I have heard oral argument.^[3] For the reasons discussed below, Plaintiff's motion is DENIED and Defendant's motion is GRANTED IN PART and DENIED IN PART.

DISCUSSION

I. Plaintiff's Motion to Exclude Expert Testimony

Plaintiff has title to a parcel of property, Lot 5, in Brooklyn, New York, and he may have title to another parcel of property, Lot 105, adjacent to the northern boundary line of Lot 5. See Joint Stipulation of Facts at 1 ¶ 2-3, 4 ¶ 13, 5 ¶ 17 (ECF 112); Expert Report of Charles Caramanna, Pl.'s Ex. A ("Expert Report") at 4 (ECF 113-1).^[4] Lot 105 lies along the beach. Lot 5, where his house is located, is immediately inland from Lot 105. The two parcels are separated by a barrier intended to prevent sand from reaching Lot 5. See Expert Report at 5. Sand collects on the beach adjoining Plaintiff's property because of construction by the Army Corps of Engineers, then accumulates on Lot 5 and Lot 105. Plaintiff alleges that the sand accumulation constitutes a taking of property that must be compensated under the Fifth Amendment. Compl. at 1-2.

The parties have informed the Court that because they agree the sand intrusion on Plaintiff's property constitutes a Fifth Amendment taking, see Stipulation Regarding Taking/Liability (ECF 71), trial is likely to center on computing the compensation to which Plaintiff is entitled. The government has offered Mr. Caramanna as an expert on the cost to cure the sand intrusion, one measure of damages that might apply. See, e.g., Vaizburd v. United States, 384 F.3d 1278, 1285-86 (Fed. Cir. 2004). Plaintiff takes issue with Mr. Caramanna's expertise, data, and methods.

A. Mr. Caramanna's opinions

Mr. Caramanna is a licensed engineer. His academic training emphasized both structural engineering and geotechnical engineering, an engineering field covering "the behavior of soils." Depo. at 8 (ECF 113-2). He also testified to experience in coastal construction, including jetties, seawalls, bulkheads, bridges, and beach restoration. Id. at 55. Mr. Caramanna was hired to estimate three costs: (1) annual removal of sand from Lot 5 and Lot 105, (2) construction of measures necessary to remediate or reduce sand accumulation, and (3) one-time removal of sand and other remediation on Lot 5. Id. at 48-49.

To reach those estimates, Mr. Caramanna first considered what makes sand encroach on Plaintiff's property. Id. at 96 (explaining that he needed to determine the cause before developing a cure). The sand accumulation is seasonal in the winter and spring. Id. at 104. Mr. Caramanna visited Plaintiff's property in February and determined that because of the length of the beach separating Plaintiff's property from the water, the sand must reach the property by wind. Id. at 36, 54; Expert Report at 8. Because wind-driven sand accumulation is proportional to the size of the beach, Expert Report at 8, Mr. Caramanna estimated how much the size of the beach varies. He did not enter the water and he acknowledged that his estimate had some inherent uncertainty, but he did not think the margin of error cast doubt on his conclusions. He found the overall size of the beach was consistent in aerial photographs, even over a period when hurricanes passed over the beach. Depo. at 58-59, 66-67, 102-03; see also id. at 62 (describing his experience interpreting aerial photography).

His next step was to estimate the accumulated sand's volume. Mr. Caramanna discounted several pictures of sand accumulation because he concluded the pictures showed water-driven sand that accumulated after major storms, not wind-driven sand attributable to excess sand on Plaintiff's beach. Id. at 76-78, 86, 114-17. Instead, he aimed to estimate sand volume from his personal observations.

The sand collects in a dune that grows higher over Lot 105, forming a ridge in front of the barrier between Lot 5 and Lot 105. See Expert Report at 11-12. The dune is irregular in shape, and it varies in its exact size and position. See id. at 9. Mr. Caramanna determined the approximate length of the dune from the beach to the barrier, then the approximate height of the dune in front of the barrier. Id. at 11-12. He did not use any measuring devices. Depo. at 41-42. He measured horizontal distances by pacing, id. at 59, a method he testified is commonly used in his profession, and which he claims to use within the profession's accepted margin of error. Id. at 59-62. Mr. Caramanna converted those estimates of the dune's dimensions into a rough two-dimensional cross-section composed of straight lines and angles, and then into a three-dimensional volume by incorporating the width of Plaintiff's property line along the beach. See Expert Report at 12.

Mr. Caramanna then used that volume to estimate the fixed and recurring costs of mitigating the accumulation. He has personal experience with cost estimation, Depo. at 27-28, a subject the parties agree is within his expertise, Tr. at 5. In this case, he relied on two assistants who are familiar with RSMeans, Depo. at 27, 29, which he describes as a nationally recognized source for construction cost estimation, see Expert Report at 11. One assistant's specialty is RSMeans software; the other's is the hard copy version of RSMeans data. Depo. at 30. Mr. Caramanna provided his assistants with his estimate of sand volume and the requirements for equipment and labor, and they used RSMeans to generate a cost estimate.

Mr. Caramanna and his assistants used RSMeans to estimate the cost of two proposed mitigation solutions. First, Mr. Caramanna proposed building a new tempered-glass barrier to prevent sand accumulation on Lot 5. Expert Report at 10. He provided his assistants with the proposed new barrier's specifications, and they used RSMeans to develop a cost estimate. Depo. at 30. Second, Mr. Caramanna used RSMeans to estimate the annual cost of removing the accumulated sand. Expert Report at 13.

Mr. Caramanna opined that his proposal would prevent sand from accumulating in Lot 5. Depo. at 75-76. Nonetheless, in response to a contention from Plaintiff's expert that sand on Lot 5 would need to be removed one way or another, Mr. Caramanna determined the equipment and labor requirements for vacuum truck removal, then had one of his assistants use RSMeans to estimate the cost. Expert Report at 48; Depo. at 72-73, 132-34.

B. Analysis

The government intends for Mr. Caramanna to offer opinions as an expert. For Mr. Caramanna to do so, he must satisfy the requirements of Federal Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

The burden is on the party proffering expert opinion to show that those requirements are met by a preponderance of evidence. Spectre Corp. v. United States, 160 Fed.Cl. 486, 492 (2022) (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)); GASA, Inc. v. United States, 88 Fed.Cl. 752, 755 (2009); Dairyland Power Co-op v. United States, No. 04-106C, 2008 WL 5122339, at *11 (Fed. Cl. June 20, 2008). Plaintiff objects, first, that Mr. Caramanna does not have the necessary expertise to testify to his opinions, and second, that his opinions are not based on sufficient data or reliable methods. On the present record, those objections are meritless.^[5]

As to Mr. Caramanna's expertise, the parties have stipulated that Mr. Caramanna is an expert engineer and cost estimator. Tr. at 5. Plaintiff contends that Mr. Caramanna has gone beyond that expertise in testifying about sand movement. Contrary to Plaintiff's argument, Mr. Caramanna's opinions appear to be well within the expertise of an engineer familiar with coastal construction.

To the extent expertise in the causes, mechanisms, and dynamics of sand movement might have been relevant to Mr. Caramanna's opinions,^[6] the key seems to have been Mr Caramanna's ability to distinguish between wind- and water-transported sand. As he explained, he needed to determine the cause of sand accumulation before he could propose a solution. Depo. at 96. Doing so meant making his own observations as well as interpreting photographs of sand on Plaintiff's property. Mr. Caramanna believed the sand he observed was wind-driven, Expert Report at 9, and discounted evidence of what he believed to be storm-driven...