ORDER AND OPINION
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED
At docket 118, plaintiff Transwestern Pipeline Company, LLC ("Transwestern") requests an order precluding defendants' proffered expert H. Pike Oliver from testifying or offering his expert report regarding severance damages. At docket 119, defendants ABCDW Trust, LLC, Dan Thealander, Vanderbilt Farms, LLC, and Irvine Land Partners, LLC ("defendants") oppose the motion. Transwestern replied at docket 125. Oral argument was requested, but it would not assist the court.
II. BACKGROUND
This action involves Transwestern's condemnation of property for an easement, for the purpose of constructing the approximately 260-mile expansion of Transwestern's existing natural gas pipeline in accordance with a Certificate of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission ("FERC") on November 15, 2007. By order dated June 19, 2008, the court granted the parties' stipulation allowing Transwestern's immediate entry and possession of defendants' real property described in Exhibit 2 to the Complaint, consisting of a 50-foot-wide permanent easement, temporary workspace, and temporary access roadway, transecting three parcels of property located in unincorporated Pinal County, Arizona, referred to by the parties as the Midway Properties.
The remaining issues in this condemnation action involve determining the fair market value of the 50-foot-wide easement, and the existence and amount of severance damages to the remaining property. In its briefing, Transwestern defined "severance damages" as "any decrease in market value to the unencumbered portion of the parcel located outside of the permanent easement taken by Transwestern, arising from the taking of the easement."
Defendants proffered the expert report and testimony of H. Pike Oliver on the issue of severance damages.
Based on his review of the above reports, Oliver concludes that a "525 foot setback is the likely minimum that will ultimately be established for areas where structures have yet to be constructed, which is the situation with respect to the Midway Properties."
III. DISCUSSION
"Federal Rule of Evidence 702 allows admission of `scientific, technical, or other specialized knowledge' by a qualified expert if it will `assist the trier of fact to understand the evidence or to determine a fact in issue.'"
Transwestern first argues that Oliver's testimony is inadmissible under Rule 702 because Oliver is not qualified to express an expert opinion as to the appropriate setback from a pipeline or the effects of a such a setback on market value, development plans, or impact fees. Defendants argue that Oliver's "background and experience as an urban planner who has worked for both governmental entities and later in private development of master planned communities particularly qualifies him to provide such opinions."
While "the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience," the advisory committee notes emphasize that "[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts."
Transwestern next argues that Oliver's opinion concerning the hypothetical imposition of a 525-foot setback requirement on the Transwestern pipeline and amendment of the existing development agreement is not reliable. The court concurs. Oliver's opinion that government imposition of a setback requirement on the Transwestern pipeline is a "virtual certainty" and that a "525 foot setback is the likely minimum that will ultimately be established" is pure speculation and is not based on Oliver's personal knowledge or experience.
Transwestern further contends that Oliver's testimony is irrelevant because it does not address the remaining issues in this action, namely the fair market value of the 50-foot-wide easement and the existence and amount of severance damages. Defendants argue that Oliver's expert testimony is relevant because it is "directly related" to "public perceptions and their market effect." Defendants specifically argue that Oliver "opines that a prudent and well-informed potential buyer of the Midway project would anticipate that the County would impose a setback requirement that severely impacted to develop the project."
IV. CONCLUSION
For the reasons set out above, plaintiff's motion at docket 118 to exclude the testimony and expert report of H. Pike Oliver is
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