must describe the witness ’ s opinions , the bases and reasons for those opinions , and the witness ’ s qualifications .
On appeal , the state conceded Dr . Miller ’ s testimony went beyond fact and lay opinion and into expert testimony . The Court agreed this was expert testimony , which required the necessary disclosures under Rule 16 . The Court found the state had failed to provide the necessary disclosures relating to the expert testimony .
The state argued Doyle was not prejudiced as a result of the nondisclosure , because the state had provided the autopsy report to Doyle . Doyle argued he was prejudiced by allowing Dr . Miller to testify as an expert , because whether an expert testifies affects trial strategy and tactics , Doyle did not have an adequate opportunity to prepare for cross-examination of Dr . Miller ’ s expert testimony . The Court agreed and found the autopsy report did not include Dr . Miller ’ s qualifications or an adequate summary of the testimony or the bases and reasons for the expert opinions . The Court noted the testimony related to one of the most important factual issues of the trial and could not be considered harmless . The Court reversed and remanded for a new trial .
SCS Carbon Transp . LLC v . Malloy , Tr . of Harry L . Malloy Tr . No . 2 Dated May 25 , 2008 , 2024 ND 109 . Filed on 5 / 30 / 24 .
After a group of landowners denied Summit Carbon Solutions permission to enter their lands to conduct surveys related to a pipeline project , Summit brought lawsuits against the landowners , which were consolidated into a single proceeding , requesting a court order confirming its statutory right under N . D . C . C . § 32-15-06 to enter lands to conduct pre-condemnation surveys and examinations . The landowners argued the survey statute was an unconstitutional taking of their property , seeking declaratory judgment and injunctive relief declaring the survey statute violated the federal and state takings clauses and enjoining Summit from entering their property . Summit moved for summary judgment , asking for judgment as a matter of law confirming its authority to enter the property to conduct surveys and examinations . face of the statute or as applied to them , and the district court ’ s judgments and order did not exceed the scope of the survey statute .
When both an as-applied and facial challenge are raised , the Court first considers the narrower as-applied challenge . The landowners argued the district court ’ s application of the survey statute reached an unconstitutional result because it did not include in its order any limits on the nature , extent , or duration of permitted examinations . The landowners sought “ time , place , and manner ” restrictions on Summit ’ s entry to their lands to perform the surveys and examinations . The Court held that while the district court has discretion to consider and impose additional restrictions on entry , the plain text of the statute does not require any restrictions or conditions the district court may , or must , consider .
The landowners also argued the judgment , as applied , was an unconstitutional taking because it had no limitations on assignment or transfer , the entry and survey right did not expire , and it was a perpetual implied easement . The Court disagreed , holding the judgment did not grant perpetual authority to enter the property , and Summit did not request , and the court did not grant , an indefinite or perpetual right of access .
In rejecting the landowners ’ facial challenge , the Court held the survey statute codified a background principle of state property law as a limitations on the bundle of sticks state law defines as property rights . The Court recognized the longstanding authority to enter land for survey and examinations as consistent with the common law and the law of other states . Because survey access was a longstanding background restriction , the landowners could not demonstrate they had a constitutionally protected interest in prohibiting the surveys or examinations Summit was seeking . The Court concluded , because the judgments did not authorize any actions beyond the statute , and the statute did not authorize entry beyond the historical background principles of North Dakota property law , the court properly granted summary judgment for Summit .
The district court granted summary judgment in Summit ’ s favor , concluding the survey statute was not an unconstitutional per se taking , that Summit is a common carrier authorized to exercise eminent domain , and the proposed surveys and examinations are the type of minimally invasive surveys and examinations allowed by the statute . The Supreme Court affirmed , concluding the landowners had not established a constitutional violation on the
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