The battle of the experts goes on at speed in Excelsior Aggregates, LLC, Big Escambia Ventures, LLC, Tax Matters Partner, et al., Docket No. 20608-18, filed 12/10/22. Judge Albert G (“Scholar Al”) Lauber tosses IRS’ staff forester’s report and the Big Scambies’ appraiser’s report on their respective rebuttals. As is my usual practice, names are omitted throughout.

The Big Scambies serve their rebuttal twenty (count ’em, twenty) minutes before the deadline. And it’s not a true rebuttal. “A report properly characterized as a ‘rebuttal report’ must devote essentially its entire analysis to dissection of an opposing expert’s affirmative report, pointing out specific statements or conclusions with which it disagrees and explaining why.” Order, at p. 2. (Citation omitted).

The Big Scambies’ expert’s report mentions IRS’ expert’s report only twice in seventy (count ’em, seventy) pages. Their expert’s report might as well be an opening expert’s appraisal. Every opposing expert’s report differs substantially from the others, or there wouldn’t be battling experts. To treat a report that never drills down into the adversary’s report but merely differs robs the term “rebuttal” of all meaning.  And serving that late deprives IRS of a chance to review and rebut.

As for IRS’ staff forester, he does find fault with the Big Scambies’ forestry team’s reports for failing to take environmental degradation from Big Scambies’ permitted activities in the servient tenement, so to that extent it is rebuttal.

But “…he could have filed an opening report making the affirmative case that exercise of reserved rights would impair the alleged conservation purposes, and petitioners’ experts could then have filed rebuttal reports disputing that position. Petitioners have been deprived of the opportunity to do that, just as respondent has been deprived of the opportunity to rebut Mr. D’s reports. Although we find the arguments for excluding Mr. [forester]’s reports less strong than those for excluding Mr. [IRS expert]’s, we will exclude them all to avoid risk of prejudice to petitioners.” Order, at p. 3

Burt all is not lost for IRS. “Respondent remains free to raise, during cross-examination of petitioners’ experts, the points Mr. [forester] makes about alleged deficiencies in their reports.” Order, at p. 3.

Stand by for another Judge Scholar Al mix-and-match.