IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

May 18, 2923 09:94 aM
8T-2021-CV¥-O0051
TAMARA CHARLES

CLERK OF THE COURT

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

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JOHN C. KIRKLAND,

Plaintiff,
¥.

WALTER FEDDERSEN, JANE FEDDERSEN,
JEYAN K. STOUT, and STOUT REALTY, LLC
d/b/a COLDWELL BANK STOUT REALTY,

Defendants.

WALTER FEDDERSEN and JANE FEDDERSEN,
Plaintiffs,
¥.

JEYAN K. STOUT, and STOUT REALTY, LLC
d/b/a COLDWELL BANK STOUT REALTY,

emer Nome em Wee Nee? ee See Nee Mme I ae Nem” pe Se” Ne! Ne? Nee? Ne Se Yue eet ee!

CASE NO.: ST-21-CV-051

ACTION FOR BREACH OF
CONTRACT, BREACH OF IMPLIED
DUTY OF GOOD FAITH AND FAIR
DEALING, BREACH OF FIDUCIARY
DUTY, TRESPASS, NEGLIGENT
SUPERVISION, CONVERSION,
UNJUST ENRICHMENT AND
DECLARATORY JUDGMENT

CASE NO.: ST-23-CV-050

ACTION FOR BREACH OF
FIDUCIARY DUTY, NEGLIGENCE,
BREACH OF LISTING AGREEMENTS,
BREACH OF INDEMNIFICATION &
CONTRIBUTION & DECLARATORY
RELIEF

Defendants.

A.J. STONE, ESQ. A. JEFFREY WEISS, ESQ.
BoltNagi P.C. 9800 Buccaneer Mall
Merchants Financial Center Building 1, Suite 15
4608 Tutu Park Mall, Ste. 202 St. Thomas, V.L 00802
St. Thomas, V.I. 00802 Attorneys for Defendants
Attorneys for Plaintiff Walter Feddersen and Jane Feddersen
KYLE R. WALDNER, ESQ.
Waldner Law, P.C,
1026 Norre Gade
Kings Quarter

St. Thomas, V.1. 00802

Attorneys for Defendants

Jeyan K, Stout & Stout Realty d/b/a
Coldwell Bank Stout Realty
John C. Kirkland v. Walter Feddersen et al. 

Case Nos. ST-21-CV-051 & ST-23-CV-051
Memorandum Opinion

ROBERT L. KING, ESQ.
King & King Law, P.C.

5043 Norre Gade, | 1A, Ste. 2
St. Thomas, V.I. 00802
Attorneys for Defendant
Jeyan K. Stout

ORDER
THIS MATTER having come before the Court on Plaintiff's motion to exclude April Newland
from providing expert testimony, and consistent with the memorandum opinion of even date, it is
hereby
ORDERED that the motion to exclude is DENIED; and it is further
ORDERED that the Daubert hearing as it pertains to April Newland is cancelled; and it is further

ORDERED that a copy of this Order shall be distributed to the parties of record.

| c
Dated: May 7 Y, 2023 \ f

ATTEST:
Tamara Charles

Clerk of the Cou
Latoya ac!
Court Clerk Supervisor

John C, Kirkland v. Walter Feddersen et al. 2023 Vi Super 26U
Case Nos. ST-21-CV-051 & ST-23-CV-05!
Memorandum Opinion

ROBERT L. KING, ESQ.
King & King Law, P.C.

5043 Norre Gade, I1A, Ste. 2
St. Thomas, V.1. 00802
Attorneys for Defendant
Jeyan K. Stout

CARTY, RENEE GUMBS, Judge

MEMORANDUM OPINION
ql. BEFORE THIS COURT is “Plaintiff's Motion to Exclude The Expert Testimony of April

Newland” filed on May 2, 2023. Defendants Jeyan K. Stout and Stout Realty, LLC d/b/a Coldwell
Banker Stout Realty (collectively Stout Defendants) filed their opposition on May 17, 2023. Plaintiff
John C. Kirkland (Plaintiff or Kirkland) seeks to exctude the expert testimony of April Newland
(Newland) as a realtor on the basis that the methodology she applied to conclude that Stout Realty did

not violate any real estate industry standard is faulty. For the reasons explained below, Plaintiff's

motion will be denied.
I. BRIEF FACTUAL AND PROCEDURAL HISTORY

42. Defendants Walter and Jane Feddersen are the landlords of the subject property known as
“Cabrita Cliff Haus” located at 6H Estate Nazareth consisting of a 4 bedroom, 4.5 bath furnished villa,
that also has a one bedroom, one bath guest cottage in St. Thomas, Virgin Islands. On May 22, 2020,
the Feddersen Defendants listed their property for sale with Stout Realty, LLC. Jeyan K. Stout (Stout),
as the principal of Stout Realty, LLC listed the property at $2.85 million. Stout showed the property
to Kirkland and on August 4, 2020, Kirkland and the Feddersens entered into a one (1) year lease
agreement commencing on September 1, 2020, and ending on August 31, 2021. The lease agreement

contained a clause providing Kirkland with a right of first refusal (“ROFR”) in the event Kirkland
John C. Kirkland v, Walter Feddersen et al. 

Case Nos. ST-21-CV-051 & ST-23-CV-051
Memcrandum Opinion

decided to purchase the property. The ROFR is written in the same section of Paragraph 19: Inspections
and Showings.
73. During the tenancy, several disputes arose between all three parties and despite the lease term
expiring on August 31, 2021, Kirkland vacated the premises on January 28, 2021. Kirkland then
brought this action against the Feddersens, Stout, and Stout Realty and eventually filed the Second
Amended Complaint on March 7, 2022.
44. = April Newland was retained by the Stout Defendants to provide her expert opinion on whether
Stout violated any of the rules or regulations of the real estate industry when Stout showed the property
on several occasions to potential buyers while Kirkland was still occupying the premises as a tenant.
Kirkland does not challenge Newland’s qualifications as a realtor in the Virgin Islands; however, he
challenges the methodology that she used to determine that plaintiff's real estate expert, Jeffrey
Rothbart, is incorrect in his professional estimation that Stout violated industry standards when she
failed to show the property at the end of the tenancy.

Il. LEGAL STANDARD

75. Virgin Islands Rule of Evidence (V.LR.E.) 702 govems the admissibility of expert testimony

in Virgin Island courts. Rule 702 provides:

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 Virgin Islands has relied on the analytical framework established in the United States Supreme
Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 

 (1993), for

determining whether expert testimony is admissible under Rule 702. Dawhert has developed a
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John C. Kirkland v. Walter Feddersen et al. 2023 V1 Super 26U
Case Nos. ST-21-CV-051 & ST-23-CV-051
Memorandum Opinion

trichotomous test. See also Antilles v. Lembach, 2016 W.L. 948969 (Mar. 14, 2016). Three
requirements must be met: 1.) the expert must be qualified, 2.) the expert’s opinion must derive from
a reliable process or technique, and 3.) the testimony must assist the trier of fact, i.e., it must be
applicable to the facts of the case. Succinctly put, all three (3) factors: qualification, reliability, and fit
must be present. fd.

6. “Qualification” refers to the requirement that the witness possess specialized expertise. Expert
testimony must be rooted in the expert’s scientific, technical, or other specialized knowledge that will
help the trier of fact understand the evidence or determine a fact in issue. The qualification requirement
has been applied liberally by trial courts, as most allow a “broad range” of knowledge, training, and
skills to qualify as an expert. As stated, Plaintiff does not contest Newlands’s qualifications.

{7. . The second factor, reliability, is the principal factor in this Daubert challenge. In determining
whether expert testimony is reliable, the Court may consider several non-exhaustive factors including:
(1.) whether the theory or technique can be tested; (2.) whether the methodology is subject to peer
review and publication, (3.) whether, and how frequent, the methodology leads to erroneous results;
(4.) the known or potential rate of error, (5.} whether the theory or technique has been generally
accepted in the relevant scientific field; (6.) whether, and how strong, a relationship the technique has
to methods which have been established as reliable; (7.) whether the expert witness is qualified to
testify based on the methodology; and (8.) whether, and how often, the method has been put to non-
judicial use. See Gov't of the V.I. v. Jackson, 47 V.1. 123, 126 (V.1. Super. Ct. 2005). The testimony
must be based on the methods and procedures of science rather than on subjective belief or unsupported
speculation. Samuel v, United Corp., 64 V.1. 512, 526 (2016). The reliability inquiry must remain
flexible, however, “not every Daubert factor will be applicable in every situation; and a court has

discretion to consider other factors it deems relevant. Kumho Tire Co. v. Carmichael, 

,
4
John C. Kirkland v. Walter Feddersen et al. 

Case Nos. ST-21-CV-051 & ST-23-CV-051
Memorandum Opinion

147-59 (1999). It is within the court’s discretion to choose among reasonable means of excluding
expertise that is fausse and science that is junky. /d. at 158-159 (Scalia, J. concurring). However, the
court cannot “usurp[] the role of the jury by substituting its own determination of weight and credibility
for that of the jury...” Brathwaite v. Xavier, 

, 1099 (V.1. 2019).

"8. —_‘Fit, the third factor, requires the expert’s testimony must be relevant for the purposes of the
case and must assist the “trier of fact.” Jn re TMI Litig., 

, 670 (3d Cir. 1999). Admissibility
depends on the connection between the expert’s opinion and the disputed factual issues of the case. /d.
at 665. Fit is not always obvious, and scientific validity for one purpose is not necessarily validity for
other unrelated purposes, /d. at 621. The party attempting to introduce the expert's testimony bears the
burden of demonstrating the reliability of the expert's technique by “more than a prima facie showing.”
Inve Paoli R. R. Yard PCB Litig., 

 (3d Cir. 1994). Testimony which fails to “relate
to any issue in the case is not relevant and ... non-helpful.” Arvidson v. Buchar, 

, 82 (V.1.
Super. Ct. 2019). Conversely, when a trial court’s inquiry into whether an expert's methodology is
sufficiently tied to the facts ofa case, concems relating to the persuasiveness of the evidentiary “sources

of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and

should be left for the [trier of fact’s] consideration.” /d.

i, LEGAL DISCUSSION
9. Kirkland first challenges Newland’s expert report by arguing that it is deficient as she has not
provided any supporting information for her conclusions. Newland testified during her deposition that
she used a substantial amount of external materials including the Lease, discovery responses, and
Jeffrey Rothbart’s expert report to develop her conclusions. (See Deposition, March 27, 2023, at 63:5-
65:16. Newland also relied on the National Association of Realtors Code of ethics and MLS Rules and

Regulations. He argues that her report is !acking in that she failed to consider the industry requirements
5
John C. Kirkland v. Walter Feddersen et al. 

Case Nos. ST-21-CV-051 & ST-23-CV-051
Memorandum Opinion

for showing properties with long-term tenants (one-year leases) or tenants that have a right of first
refusal. Kirkiand incorrectly argues because Newland has not refuted Plaintiffs expert report which
provides the industry practice for property showings where there is a tenant, are conducted at the end
of the lease term, her methodology is lacking. He argues her focus on making a sale is misplaced as it
lacks consideration for the existing tenants and their right to peaceful enjoyment.

(10. Stout argues the real estate industry is not based on science, but it is grounded in education,
knowledge, and practical experience. According to Newland, realtors have a duty to show properties
as expeditiously as possible when there is a potential buyer. Stout further argues there is no provision
within the lease agreement to state otherwise. Put another way, nothing in the lease agreement requires
that property showings occur at the end of the lease term. The Court agrees with Stout.

qj! 1. Kirkland’s arguments are unconvincing. Paragraph 19, Inspections and Showings, of the lease
provides: "The Landlord or their authorized agents shalt have the right to enter into and upon the
premises, or any part thereof, at all reasonable hours for the purpose of examining the same, or for the
purpose of maintenance or of making necessary repairs, including the showing of the property for sale
or rent (with 24hr notice when feasible). Landlord reserves the right to put up “For Sale” or "For Rent"
signs in such places he/she may elect.”

q12. Further, even if the industry standard dictates otherwise, which the Court does not accept, there
is nothing on the record for the Court to believe the general practice in the Virgin Islands is a practice
other than providing 24-hr notice or a reasonable period of time to place the tenant on notice. Kirkland
knew the property was for sale prior to moving in and he signed the lease agreement that specifically
provides for the landlord or his authorized agent to enter and show the property to potential buyers.
The relief as requested by Kirkland is not to exclude Newland’s testimony as that would run afoul of

Brathwaite. Kirkiand is free to challenge Newland's expert opinion and therefore free to cross-examine
6