Michael Rikon recently authored a column published in the New York Law Journal titled The Condemnation Expert’s File: Minefield for Cross-Examination.
In condemnation cases, each side hires an expert to prepare an opinion on the value of the property. As Mr. Rikon explains in the article, once that expert testifies at trial, his or her work file becomes discoverable by the opposing side, and is often rife with material for cross-examination. This material can range from inaccurate data or the use of a faulty valuation method, to evidence of coaching, bias or editing by the attorney who hired the expert.
The rule that an appraiser’s file is discoverable after he testifies has been articulated by many courts. As noted in the article, Court of Claims Judge John P. Gualtieri stated in Murphy v. State of New York, 41 Misc2d 906, 908 (Ct. Cls. 1964),
No self-respecting expert, conscious of the ethics and standards of his profession should change an opinion, honestly and properly arrived at the behest of the party engaging him.
A party can use the material in the work file to impeach the credibility of an expert by use of inconsistent prior statements. “Once a proper foundation is laid, a party may show that an adversary’s witness has, on another occasion, made oral and written statements which are inconsistent with some material part of the testimony, for the purpose of impeaching the credibility and thereby discrediting the testimony of the witness.” §6-411, Prince Richardson on Evidence, Eleventh Edition citing People v. Duncan, 46 NY2d 74, 80, 412 NYS2d 833, cert den 442 US 910, rearg dsms 56 NY2d 646; Larkin v. Nassau Electric R.R., 205 NY 267, 98 NE 465.”
Additionally, the Uniform Standards of Professional Appraisal Practice (USPAP) require an appraiser to retain a work file for at least “five years after the preparation or at least two years after the final dispostion of any judicial proceeding in which the appraiser provided testimony related to the assignment, whichever period expires last.” Further provisions apply to the the record keeping and an appraiser’s duty to keep copies of written reports. Mr. Rikon cites several examples of cases where the Court sanctioned the appraiser for destruction of a work file, as prohibited under USPAP. He writes:
Sanctions are appropriate when an appraiser destroys prior appraisal reports. Matter of Village of Port Chester (Bologna), 27 Misc3d 1203(A) (Sup. Ct. Westchester Co. 2010), aff’d 95 AD3d 895 (2012). In Port Chester, the appraiser testified that he had prepared several draft reports of his appraisals for the properties, some of which were shared with the village’s attorney, but at some point the drafts were destroyed by the appraiser after the drafts were shared.
The court granted claimant’s motion for sanctions and elected to make an adverse inference with regard to the destruction of the prior draft. It noted that the appraiser had an ethical obligation pursuant to USPAP to preserve the draft reports. It also noted that the draft reports must be provided to opposing counsel at the completion of the appraiser’s direct testimony for the purposes of impeachment on cross-examination.
On appeal, the Appellate Division noted, “the Supreme Court providently exercised its broad discretion in granting the claimants’ request to impose sanctions for the spoliation of evidence to the extent of according an adverse inference with respect to the destruction of the draft appraisal reports prepared by the Village’s appraiser.” Vill. of Port Chester, 95 AD3d 895, 897 (2d Dept. 2012)
The full article is availabe on the New York Law Journal website: http://www.newyorklawjournal.com/id=1202735536253/The-Condemnation-Experts-File-Minefield-for-CrossExamination#ixzz3k7yDn1rc