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Chemists

Admissibility Rate: .722    (13/18)

Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001).  Twelve year old girl, irritated by whistling tea kettle, reaches across stove to turn off burner.  Her cotton and polyester blend sweatshirt catches fire, causing third degree burns to her chest and abdomen.  In resulting products liability action, plaintiffs' chemist is permitted to testify to chemistry and inflammable properties of polyvinyl chloride and plastisols, but is not permitted to testify on commercial feasibility of printing sweatshirt logos with flame-retardant ink.  Exclusion affirmed.  Chemist testified that he had no familiarity with silk-screening industry, ink manufacture, or logo design, that he never conducted comparison tests between flame-retardant and ordinary inks, and that he knew of no silk-screener who used flame-retardant ink to print logos.  His only knowledge re use of flame-retardant ink in industry was based on phone conversation with ink vendor, who told chemist it was used for children's sleepwear.

United States v. Dien Vy Phung, No.  03-4544 (3d Cir. Apr. 13, 2005) (unpublished).  Defendant is arrested in connection with sale of approximately 7560 pills of methylenedioxymethamphetamine (MDMA or "Ecstasy").  To estimate total weight of MDMA for sentencing purposes, prosecution offers testimony from DEA chemist Jennifer Espinosa.  Defendant moves to exclude her testimony on theory that chemist employed unreliable sampling method.  District court overrules objection after declining defendant's request for Daubert hearing.  Jury convicts.  Admissibility affirmed.  Sampling procedure was designed and approved by DEA statistical department and appears to be standard procedure in law enforcement forensic departments.  Defendant's position would not have been advanced by convening Daubert hearing.

United States v. Ashlock, No. 03-10615 (5th Cir. Aug. 3, 2004) (unpublished), vacated on other grounds, 543 U.S. 1136 (2005).  Prosecution in narcotics case presents three forensic experts who testify regarding chemical identity of substances seized from defendant's person and residences, over defendant's objection that experts have not disclosed what testing protocols they followed.  District judge overrules objection and jury convicts.  Admissibility affirmed.  Under Fed. R. Evid. 702, experts are not required to disclose their protocols in such detail as defendant contends.  Proponent is required only to show by preponderance of evidence that testimony is admissible.  Prosecution satisfied that requirement here through evidence that: (1) each expert held bachelor's degree in chemistry and had extensive on-the-job training in forensic chemistry; (2) each test performed by experts was generally accepted in field of forensic chemistry; (3) each test was performed in accordance with standard laboratory procedures; and (4) each expert had his or her results reviewed by another chemist.  No abuse of discretion.

Pride v. Bic Corp., 218 F.3d 566 (6th Cir. 2000).  Man mysteriously catches fire while inspecting pipe behind his house.  In products liability action, widow's theory is that man's butane lighter first failed to extinguish, igniting man's clothing, then exploded, dousing man with isobutane and fueling conflagration that ultimately caused his death.  Widow offers three experts: mechanical engineer who has testified in numerous  products liability suits, on subjects ranging "from car seat belts to manure spreaders"; firefighter who has previously testified in Bic lighter cases on causes and origins of fires; and analytical chemist.  Engineer opines, based on inspection of lighter, that exploding-lighter scenario is most likely cause of fire, and that mishap was caused by manufacturing defect, and also by failure of lighter's design to incorporate redundant safety features.   Firefighter opines that lighter was most likely cause of fire based on elimination of other plausible causes as well as information suggesting that fire started in victim's breast pocket.  Chemist opines, based on information re condition of plastic from lighter, that lighter exploded.  After Daubert hearing, magistrate recommends exclusion of all three experts and award of summary judgment in favor of defendants.  District court denies widow's requests to tender additional expert testimony and reopen Daubert hearings, and accepts magistrate's recommendations.  Exclusion affirmed.  Trial court is owed deference on evidentiary rulings, and de novo review of record supports trial court's conclusions.  None of widow's experts conducted replicable laboratory tests showing that explosion of lighter was consistent with failure to extinguish caused by product defect.  Engineer's testimony re manufacturing defect is contradicted by widow's other witnesses and by defense experts' lab tests.  Firefighter admitted he was not engineer, had performed no tests, and was not expert in lighters.  Chemist admitted lack of expertise in fire investigations and did not personally examine lighter.  Chemist also designed lab experiment to test his hypothesis but said he "chickened out and shut the experiment down."

United States v. Moore, 425 F.3d 1061 (7th Cir. 2005).  In prosecution for cocaine distribution, government relies on testimony from forensic chemist Jennifer Yezek.  Jury convicts.  Admissibility affirmed.  Defendant purports to raise Daubert challenge to expert's testimony, but defendant's only specific argument is that her testimony was unreliable because government failed to establish chain of custody for drugs she analyzed.  Prosecution's evidence on chain of custody was sufficient, and district court therefore did not abuse its discretion.

United States v. Ruiz, 412 F.3d 871 (8th Cir.), cert. denied, 126 S. Ct. 590 (2005).  Chemist testifies for government in drug prosecution that two samples of methamphetamine are of similar purity and composition and may therefore have been prepared in same batch.  Jury convicts.  Admissibility affirmed.  Chemist did not testify that methamphetamine did come from same source, but only that it possibly originated in same manufacturing process.  This was not unacceptably speculative, as defendants contend.  No abuse of discretion.

Larson v. Kempker, 405 F.3d 645 (8th Cir.), amended, 414 F.3d 936 (8th Cir. 2005), vacated & recalled, No. 04-2220 (8th Cir. July 15, 2005).  Prison inmate brings civil rights action, complaining of environmental tobacco smoke ("ETS").  In support, inmate offers expert testimony on deleterious health effects of ETS from Dr. A. Judson Wells.  District court excludes testimony and awards summary judgment to defendants.  Exclusion reversed.  District court found Dr. Wells unqualified to offer testimony on health consequences of ETS exposure, but Dr. Wells holds Ph.D. in physical chemistry from Harvard University, authored EPA report on second-hand smoke and respiratory disease, and has written articles cited by other scientists.  Error was harmless, however, because plaintiff cannot show exposure to unreasonably high levels of ETS.

Shelton v. Consumer Prods. Safety Comm'n, 277 F.3d 998 (8th Cir.), cert. denied, 537 U.S. 1000 (2002).  United States Consumer Products Safety Commission (CPSC) disagrees with importers over whether certain fireworks from Hong Kong are prohibited under Federal Hazardous Substances Act.  To prove they are, CPSC offers testimony from its Director of Laboratory Sciences, Warren Porter, who testifies to procedures followed by CPSC lab in testing importers' fireworks, and in testing fireworks generally: (1) CPSC chemist and technician conduct performance test of firework and record results on standard form; (2) secretary enters results from forms into database and prints report; (3) originating chemist and technician check report for accuracy; and (4) report is brought to Porter, who conducts final review "for accuracy."  District court admits CPSC lab reports into evidence, and CPSC prevails.  Admissibility affirmed.  Importers complain that lab reports were inadmissible as expert evidence because CPSC did not establish that chemists and technicians performing tests possessed requisite specialized knowledge.  But appellate panel need not reach this question.  Reports were business records and therefore admissible under exception to hearsay rule embodied in Fed. R. Evid. 803(6), because importers did not bear their burden of showing records to be untrustworthy.

United States v. Boswell, 270 F.3d 1200 (8th Cir. 2001), cert. denied, 535 U.S. 990 (2002).  Veterinarian is reimbursed by federal government for collecting blood samples from swine and submitting samples to laboratory for testing for pseudorabies.  When some swine test positive, vet is surprised and resubmits allegedly identical samples, purportedly from same batch.  All relevant swine now test negative.  Suspicious at this turn of events, animal health authorities and federal vets retest swine at issue, with result that 40% of sows now test positive again.  Both sets of samples are then sent to lab for polymerase chain reaction DNA ("PCR") testing, and biochemist performing tests concludes that two sets of samples came did not come from same animals.  Veterinarian is charged with making false statements to government, with biochemist testifying as expert for prosecution re PCR test results.  Admissibility affirmed.  Defendant challenges expert's credentials, but expert was employed for years in biological chemistry department at Medical School of University of California at Davis, and for years thereafter at private lab, where he had extensive experience in animal DNA testing.  Defendant says prosecution did not lay sufficient foundation for reliability of PCR testing, but expert correctly testified that method is well-established, and its reliability has been recognized by many courts.  Defendant argues that even if PCR testing is acceptable methodology in general, results here should be rejected because no protocol was followed.  But record belies that argument.  Although no written protocol was introduced, expert testified re procedures he followed.  Finally, defendant questions integrity of samples, but these were refrigerated and stored in sealed containers.

Miller v. Mullin, 354 F.3d 1288 (10th Cir. 2004), cert. denied, 543 U.S. 1154 (2005).  Habeas petitioner alleges ineffective assistance in state murder trial because counsel did not demand Daubert hearing for prosecution's forensic chemist regarding her testimony concerning blood sample found on sandal.  Denial of habeas affirmed.  Challenges to chemist's methods and techniques went to credibility and weight, which were properly left to jury after cross-examination. 

United States v. Lonedog, No. 02-8065 (10th Cir. June 12, 2003) (unpublished), cert. denied, 540 U.S. 975 (2003).  In drug trial, prosecution offers testimony re screening tests in which defendant tested positive for THC.  Jury convicts.  Admissibility affirmed.  Defendant complains that district court failed to conduct preliminary hearing on Daubert issues, and also complains that screening tests are unreliable and therefore are not in general testimonial use.  Failure to hold preliminary hearing did not constitute abuse of discretion, because judge conducted "what can be viewed as a Daubert test" at trial, via testimony from prosecution witnesses Dr. Ella Loring (senior chemist and forensic scientist at Wyoming state crime laboratory) and Hollie A. Childers (lab manager at hospital where screening test was performed).  As for merits of Daubert objection, Dr. Loring testified that "it is a reliable screening test . . . very reliable."

United States v. Cavely, 318 F.3d 987 (10th Cir.), cert. denied, 539 U.S. 960 (2003).  At trial for conspiracy to manufacture methamphetamine, district court admits testimony from government's forensic chemist, John Paulson, re amount of meth that was, or could have been, produced by four meth labs at issue.  Jury convicts.  Admissibility affirmed.  Expert explained his methodology at Daubert hearing.  His technique, which relies on basic chemistry and familiarity with meth production to estimate ultimate outputs based on quantity of precursor ingredients on hand, enjoys support in published literature, is generally accepted in field, and has been used frequently in connection with sentencing issues.

Hynes v. Energy West, Inc., 211 F.3d 1193 (10th Cir. 2000).  Gas pipeline is damaged, natural gas leaks into basement of apartment building, and plaintiffs are injured when gas explodes.  In their tort action against gas company, plaintiffs contend, among other things, that dangerous condition went undetected because gas company improperly odorized its natural gas.  In support, plaintiff's chemist testifies that gas lost its odor by interaction with alkalines and/or iron oxides in soil between pipeline leak and building basement, and that use of odorant thiophene would have prevented or mitigated odor loss.  Admissibility affirmed.  Defendants argue that chemist's testimony satisfied none of Daubert's four factors.  But those factors are not talismanic.  Chemist had substantial education and industry experience, and was able to articulate scientific process through which gas odor loss would occur.

United States v. Ledesma, No. 99-8026 (10th Cir. Feb. 14, 2000) (unpublished).  Criminal defendant seeks to offer testimony from chemist-toxicologist re effects of methamphetamine use on perceptions and memories of witnesses who were or had been drug abusers.  Exclusion affirmed.  District court was concerned that witness's training and experience focused primarily on detection of toxic substances and chemicals in tissue and fluids, not on pharmacological or psychological effects of methamphetamine use.  Although witness may have read some literature on effects of drug use on perception and memory, district court was also concerned that her testimony would be time-consuming and potentially confusing to jury.  Same general points could be elicited from other witnesses.  District court acted within its sound discretion in concluding that proffered testimony, even if reliable, would not have assisted jury.

Nelson v. Freightliner, LLC, No. 04-13762 (11th Cir. Sept. 29, 2005) (unpublished).  Truck driver goes to sleep in his idling vehicle and never wakes up.  Widow sues manufacturer, alleging that truck's defective design allowed leakage of exhaust into cab.  To show that carbon monoxide intoxication caused trucker's death, widow relies on spectrophotometric test, offered through testimony from lab technician Michael Ward, showing that trucker's blood was 67% saturated with carboxyhemoglobin.  Defendants object that state lab used wrong reducing agent in test (ammonium hydroxide rather than sodium dithionite).  Magistrate judge rejects their objection, noting that lab has followed same procedures for many years.  Trial judge admits testimony, and also permits plaintiff's experts William Miller and Ronald Bredemeyer to testify to their tests of carbon monoxide levels in exhaust from different model of truck.  Jury finds for widow and defendants appeal.  Admissibility affirmed.  Magistrate's reasons for upholding reliability of lab test were mostly erroneous.  E.g., reliability of test is not established by mere fact that state government reposes confidence in lab, or by fact that lab has performed test in same fashion for many years.  However, trial court acted within its sound discretion in admitting test results.  Defendants' own cross-examination established basic reliability of lab's testing procedures, choice of reducing agent apart, and defendants also elicited testimony, on cross, suggesting that reducing agent would not have materially affected test results in this case.  Defendants also object that Michael Ward should not have testified to expert opinions, because he was offered only as fact witness.  But most of Ward's opinion testimony was elicited not on direct examination, but by defendants themselves on cross-examination.  As for opinions offered on Ward's direct testimony, review is for plain error, because defendants did not object.  No egregious error or manifest injustice appears, because Ward could have been qualified as expert; he had 28 years' experience in post-mortem blood analysis, had been certified toxicological chemist for 10 years, and was forensic laboratory supervisor for state lab.  Finally, Miller's and Bredemeyer's use of different model truck for emissions testing went to weight, not admissibility, where Bredemeyer testified that model differences would not affect emissions output.

United States v. Brown, 415 F.3d 1257 (11th Cir. 2005).  Two brothers sell 1,4-butanediol via internet.  That substance is chemically analogous to date rape drug known as gamma hydroxybutyric acid.  Is it so similar that brothers may be held criminally liable for selling controlled substance?  At trial, government calls Dr. James DeFrancesco (forensic drug chemist from DEA) and Dr. Richard Irwin (biochemist from NIH).  They both opine that drugs are closely similar, based on visual representations of their structure and also insofar as both are metabolized in similar fashion.  Defendants offer Dr. John Steele, who holds Ph.D. in plant pathology and works as freelance consultant in chemistry.  He opines that chemical structures are dissimilar based on "Tanimoto coefficient" method, which he claims permits quantitative measurement of molecular similarities.  District court admits testimony from prosecution's witnesses and excludes testimony from defendants'.  Defendants appeal following their conviction.  Admissibility affirmed; exclusion affirmed.  Appellate courts are appropriately deferential to evidentiary rulings by trial courts.  [Lengthy discussion.]  Prosecution's experts could cite no peer-reviewed literature supporting their method, which was concededly intuitive.  But district court permissibly credited their testimony that method was generally accepted.  Likewise, district court acted within its discretion in finding Dr. Steele insufficiently qualified in view of his limited experience with chemistry work and controlled substances.  Even if district court erred in finding Dr. Steele unqualified, district court permissibly concluded that Tanimoto coefficient was of dubious reliability and was unreliably applied.

Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir.), cert. denied, 126 S. Ct. 419 (2005).  Tampa residents fall ill after area is sprayed with pesticide.  They sue pesticide manufacturer, claiming that process of chemical decomposition led to formation of toxic isomalathion when pesticide was stored in overheated warehouses in Florida, Georgia, and Texas.  Their chemical engineering expert, Dr. Jack Matson, collects meteorological data for relevant storage sites, calculates warehouse temperatures during pertinent period, and opines that temperatures were high enough to cause decomposition.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Based on indirect evidence that temperature inside Texas warehouse was 18 degrees above ambient outdoor temperature, expert made upward adjustment to temperatures for warehouses in all three states, based on their structural similarities and basic latitudinal equivalence.  But district court permissibly found that Matson could not reliably generalize to all storage facilities from Texas example without investigating all of them.  Moreover, even evidence of temperature differential for Texas depended on leap of faith that district court permissibly rejected.

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