## Facts

- The State of Delaware, through its State Highway Department, brought consolidated condemnation actions relating to the Delaware Turnpike.
- The court ordered a separate-issue trial under Superior Court Rules 16 and 42(b) to address a valuation question arising in the condemnation cases.
- Landowners sought to call as their expert a registered M.A.I. real estate appraiser whose qualifications the State stipulated.
- On voir dire, the appraiser acknowledged familiarity with the local real estate market and the area affected by the Turnpike.
- The State objected because the appraiser had previously been retained by the State (through the State’s counsel) to appraise Turnpike-area properties during the same period and for the same litigation.
- The appraiser had provided the State oral and written appraisal reports and attended conferences at the State’s attorney’s office with other appraisers in preparation for trial.
- Landowners argued they should be allowed to use him due to the limited number of M.A.I. appraisers locally and stated they intended to elicit testimony on general market conditions and the effect of highway activity on property values.
- The court noted that Delaware practice permits many non-M.A.I. real estate professionals to qualify as appraisal experts and that multiple such experts had testified in the proceeding.

## Issues

1. Whether the State may prevent a landowners’ use of an expert appraiser who was previously retained by the State’s counsel in the same condemnation litigation and participated in confidential trial-preparation conferences.
2. Whether an asserted “necessity” based on scarcity of similarly credentialed experts justifies allowing such an expert to testify for the adverse party.

## Decision

- The court sustained the State’s objection and barred the appraiser from testifying for the landowners.
- It treated the appraiser’s prior relationship with the State’s counsel as sufficiently confidential and conflict-based to preclude his appearance for the opposing party in the same litigation.
- It rejected the landowners’ “necessity” argument, finding other qualified experts were available and had testified.

## Legal Principles

- An expert retained by counsel who prepares reports and participates in confidential litigation-preparation discussions may be subject to protections analogous to attorney-client confidentiality and trial-preparation privilege.
- A court may disqualify such an expert from testifying for the adverse party in the same matter when testimony risks disclosure or misuse of confidential communications or strategy.
- Claims of “necessity” do not overcome disqualification where the jurisdiction permits other competent experts and the record shows alternative expert testimony is available.

## Conclusion

The court excluded a landowners’ proposed appraisal expert because he had previously worked for the State’s counsel on the same condemnation litigation and participated in confidential trial-preparation activities, creating a protectable confidentiality interest and an unacceptable conflict despite the landowners’ asserted need for his credentials.


State Highway Dep't v. 62.96247 Acres of Land, 193 A.2d 799 (Del. Super. Ct. 1963)