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Eighth Circuit (last Shepardized on 4/2/06)

Explanation of the statistics
Admissibility affirmance rate:    .917     (44/48)
Exclusion affirmance rate:    .850     (34/40)
Overall affirmance rate:    .886     (78/88)

Smith v. Cangieter, No. 05-3902 (8th Cir. Sept. 11, 2006).  Rented 1998 Nissan Pathfinder swerves, spins sideways, enters median, and rolls over into oncoming traffic lanes, ejecting and killing all four passengers.  Did accident result from design defect that rendered Pathfinder unstable when operated on dry pavement in four-wheel drive mode?  Family members think so, and sue.  To support their theory, they offer testimony from mechanical engineer Richard Ziernicki, Ph.D.  District court excludes testimony as unreliable after Daubert hearing, and goes on to award summary judgment to defendants.  Exclusion affirmed.  As district court conceded, peer-reviewed literature does support contention that part-time four-wheel drive systems can cause slippage and loss of traction.  But engineer cited no evidence that this made Pathfinder dangerous.  He neither drove any similar vehicle at high speeds on dry pavement nor cited any testing or research on how much degradation in traction is necessary before vehicles become unsafe. 

Bone Shirt v. Hazeltine, No. 05-4010 (8th Cir. Aug. 22, 2006).  Native American Indians bring voting rights claim, relying in part on expert regression evidence to show minority political cohesion and majority bloc voting.  District court finds in their favor.  Admissibility affirmed.  Regression evidence is reliable and widely accepted in this context.

Marmo v. Tyson Fresh Meats, Inc., No. 05-1906 (8th Cir. Aug. 3, 2006).  Were plaintiff's medical problems caused by exposure to hydrogen sulfide gas released from defendant's wastewater treatment lagoons?  At trial, district court excludes causation testimony from plaintiff's toxicologist, Dr. Harriet Ammann, and awards summary judgment to defendant.  Exclusion affirmed.  Toxicologist did not examine plaintiff, inquire about other toxic exposures, or address potential confounding factors.  Toxicologist also admitted that causation standard she employed was much lower standard than medical causation and that she could not associate it with any rate of error.  No abuse of discretion.

Wagner v. Hesston Corp., 450 F.3d 756 (8th Cir. 2006).  Man's hand is caught in hay baler's intake as he attempts to clear obstruction.  Man resolves problem by amputating own hand.  He then brings products liability suit against baler's manufacturer, alleging defective design.  On summary judgment, he offers John Sevart and Jonathan Chaplin as experts on design of agricultural machinery.  They opine that baler should have had safety guard at intake point, emergency stop device, and open throat design.  District court excludes their testimony as unreliable and awards summary judgment to manufacturer.  Exclusions affirmed.  District court applied Daubert factors and found experts' opinions to be thin on testing, peer review, and general acceptance.  Its ruling was within its sound discretion.

Matthew Headley Holdings, LLC v. McCleary, Inc., No. 05-2122 (8th Cir. May 19, 2006).  Distributor and snack food company enter into exclusive distributorship agreement for three-state territory including Missouri.  After distributor fails to take steps to enter St. Louis market, snack food company sues for breach.  To show lost profits, it relies on testimony from CPA Ed Crumm.  Jury finds for snack food company.  Admissibility affirmed.  Distributor raises numerous objections, all focusing on factual assumptions woven into expert's damage estimate.  But witness, who boasted 27 years' experience as CPA, did not proceed based on mere conjecture.  He offered grounds for his assumptions, and his need to make any assumptions at all arose largely from distributor's breach.  Alleged flaws in factual underpinnings of expert testimony generally go to weight, not admissibility.  No abuse of discretion.

Robinson v. GEICO Gen. Ins. Co., No. 05-3191 (8th Cir. May 19, 2006).  Several hours after auto collision, insured begins to experience pain in neck, shoulder, and back.  Insured visits orthopedist, who diagnoses her with rotator cuff contusion.  X-rays also reveal pre-accident condition involving Type II acromion with bone spur.  Insured undergoes surgery to remove bone spur and part of clavicle (to increase space between rotator cuff and acromion).  Insured sues insurer, invoking underinsured motorist coverage.  During bench trial, insurer offers testimony from neurologist, Dr. Simon Horenstein, who opines that insured's symptoms arose from pre-existing shoulder condition.  Judge finds for insurer.  Admissibility affirmed.  Insured says neurologist's testimony fell outside his expertise.  But Fed. R. Evid. 702 does not require that defense medical experts must belong to same specialty as plaintiffs' experts.  Physician with general medical knowledge may testify regarding conditions that specialists would normally treat.  Moreover, expert's opinion on onset of shoulder pain did fall within his expertise as neurologist.  No abuse of discretion. 

United States v. Anderson, 446 F.3d 870 (8th Cir. 2006).  Law enforcement offers expert testimony for prosecution on modus operandi of illegal gambling operations.  Jury convicts defendant.  Admissibility affirmed.  Defendant says expert was unqualified, but Fed. R. Evid. 702 does not rank formal education above practical experience.  No abuse of discretion.

United States v. Wintermute, 443 F.3d 993 (8th Cir. 2006).  On trial for fraud against United States, defendants offer testimony from attorney Paul Schott, who opines that failure by Office of Comptroller of Currency to take action on learning true facts relating to defendants' false statements indicates that defendants' misrepresentations were not material.  Trial court excludes testimony and jury convicts.  Exclusion affirmed.  Expert's testimony was irrelevant, because he presupposed incorrect legal standard.  Test for materiality is not whether false statements actually influenced OCC, but rather whether they were capable of doing so.       

Miller v. Baker Implement Co., 439 F.3d 407 (8th Cir. 2006).  Cotton picker is destroyed when it catches fire and its two attached fire extinguishers fail to operate properly.  Owner's subrogated insurer brings products liability suit against cotton picker's manufacturer and fire extinguishers' manufacturer.  Insurer initially submits reports from engineer William Ford, who opines that onboard fire suppression system or operable fire extinguishers would have mitigated damage, and from Jim Swaim, expert on fire origin investigation, who opines along similar lines.  Insurer later moves for late designation of third expert, engineer Ernest Barany, who opines that fire would have caused minimal damage had cotton picker been equipped with automatic fire extinguishing system like those available in combine harvesters.  Defendants move for summary judgment and for exclusion of Ford's and Swaim's testimony under Daubert.  Defendants also oppose insurer's designation of Barany as untimely.  District court excludes Ford's and Swaim's testimony, and also holds, sua sponte, that Barany's opinion would be inadmissible under Daubert.  District court then awards summary judgment to defendants.  Exclusions affirmed.  Neither Ford nor Swaim stated that any onboard fire suppression system could have been employed on cotton picker, nor did either expert offer any substantial basis for their contention that operable fire extinguishers would have contained fire.  Insurer complains that district court held no live Daubert hearing before excluding their testimony, but insurer submitted briefs and affidavits, and its right to be heard was not infringed.  As for Barany, district court did not abuse its discretion in considering Daubert sua sponte in its ruling on insurer's motion for late designation.  Between Barany's report and parties' Daubert briefing on other experts, district court had benefit of sufficient record to conduct its Daubert analysis of Barany's testimony.  Moreover, Barany's report could have established only that it was feasible to install onboard fire suppression system on combine harvesters, not on cotton pickers.

United States v. Cawthorn, 429 F.3d 793 (8th Cir. 2005).  Prosecution expert in narcotics trial testifies that swab of defendant's hand tested positive for cocaine.  Jury convicts.  Admissibility affirmed in part and reversed in part.  Defendant does not challenge reliability of tests but contests expert's opinion that casual contact with currency or steering wheel in automobile would not cause swab to test positive.  Expert did have scientific basis for his testimony re currency.  Much American currency shows traces of cocaine, yet when bank tellers are swabbed in studies, they do not test positive.  Expert lacked similar basis re steering wheels.  He testified that steering wheels from cars impounded in drug offenses did not test positive in study, but prosecution failed to establish that any steering wheels in study were contaminated with cocaine residues or even that cars from study were impounded in cocaine-related offenses.  However, error in admitting steering-wheel testimony was harmless, because other substantial evidence supported verdict, and because trial court permitted substantial cross-examination on steering-wheel issue.

Grabovic v. Allstate Ins. Co., 426 F.3d 951 (8th Cir. 2005).  Allstate terminates employee after she fails mandatory NASD examination.  In her sex discrimination suit against Allstate, employee relies on expert affidavit from her new employer Howard Danzig, licensed NASD broker with fourteen years' experience in insurance business.  District court excludes affidavit and awards summary judgment to Allstate.  Exclusion affirmed.  District court validly ruled that Danzig's affidavit offered improper opinions regarding Allstate's compliance with NASD regulations, numerous improper hearsay assertions of fact, and various improper conclusions regarding Allstate's business judgment.  No abuse of discretion. 

United States v. Conroy, 424 F.3d 833 (8th Cir. 2005).  Defendant is charged with aggravated sexual abuse of three female victims.  Prosecution offers forensic expert Kandi Smith to testify about why lab tests did not detect defendant's semen on outdoor rug allegedly used by defendant to wipe himself after one alleged incident of abuse.  Jury convicts.  Admissibility affirmed.  Witness testified about how environmental factors and passage of time might have affected detectability of semen.  Such testimony does not involve excessive speculation.  "It is not an abuse of discretion to allow an expert witness to testify as to a lack of physical evidence as long as the expert's opinion does not usurp the jury's role of assessing whether the event occasioning the evidence actually occurred."

First Union Nat'l Bank v. Benham, 423 F.3d 855 (8th Cir. 2005).  Trustee for timber company sues company's lawyers for failing to bring timely suit to determine fair value of stock acquired by company in merger.  To show that lawyers violated applicable standard of care, trustee relies on expert testimony from attorney Charles Owen.  District court initially denies pretrial motion to exclude Owen's testimony.  At trial, however, court finds him unqualified, excludes his testimony, and awards judgment as matter of law to defendants.  Exclusion reversed.  Trial court ruled that although Owen had extensive experience in mergers and acquisitions, he performed no review of scholarly work or other learned investigation of the narrow statutory issue at stake.  But Owen has practiced in state for 36 years and boasts extensive experience in field of mergers and acquisitions.  Trial court also challenged factual basis for Owen's opinion, but that generally goes to credibility and weight, not admissibility.  Owen acquainted himself with facts surrounding merger and with deposition testimony from parties and other witnesses.  Remanded for new trial.

In re Acceptance Ins. Cos. Sec. Litig., 423 F.3d 899 (8th Cir. 2005).  Plaintiffs in securities litigation offer expert affidavits to show scienter in opposition to summary judgment.  District court excludes affidavits as unreliable and unhelpful, and awards summary judgment to defendants.  Exclusion affirmed.  Affidavits did little more than state experts' legal conclusions.  No abuse of discretion.

United States v. Nichols, 416 F.3d 811 (8th Cir. 2005), cert. denied, 74 U.S.L.W. 3543 (U.S. 2006).  Defendant is charged in fraud and money-laundering scheme targeting churches.  He offers testimony from professor of religious studies, Dr. Stanley Burgess, to prove sincerity of defendant's religious beliefs.  District court excludes testimony as irrelevant.  Jury convicts.  Exclusion affirmed.  Case was about fraud and money laundering, not defendants' religious beliefs.

United States v. Beltran-Arce, 415 F.3d 949 (8th Cir. 2005).  Prosecutors offer police sergeant to testify re modus operandi of drug dealers.  Jury convicts.  Admissibility affirmed.  Officer had extensive training and experience, and any prejudice was outweighed by testimony's helpfulness to trier of fact.

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.

United States v. Rouse, 410 F.3d 1005 (8th Cir. 2005).  After having been convicted of charges stemming from their sexual molestation of five children, ages 20 months to 7 years, defendants move for new trial, based on recantation of children's trial testimony.  In support, defendants offer polygraph results tending to support one child's recantation.  District court excludes polygraph testimony after Daubert hearing and denies motion for new trial, finding that recantations are not credible.  Exclusion affirmed.  District court permissibly found that examiner's methods did not conform to any accepted polygraph testing procedure.  Even if exclusion had been in error, such error would have been harmless, as district judge, who sat as trier of fact on motion for new trial, plainly did not credit defendant's polygraph evidence.

Neb. Plastics, Inc. v. Holland Colors Ams., Inc., 408 F.3d 410 (8th Cir. 2005).  Supplier sells pigment to manufacturer of colored PVC fencing.  Color fades when fencing is exposed to elements, causing pigment to fade.  Manufacturer is therefore forced to honor numerous consumer warranty claims.  In manufacturer's suit against supplier, it offers expert testimony on future damages from William Cheese.  Trial court excludes testimony.  Exclusion affirmed.  Expert assumed that 100% of pigmented fencing already sold would be subject to consumer warranty claims, but that assumption was unsupported.  Indeed, at time district court excluded testimony, warranty claims had been filed on only 3.5% of fencing manufactured with defective pigment.  District court permissibly found, on this basis, that expert's testimony failed Daubert's "fit" requirement.

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.

United States v. Gianakos, 404 F.3d 1065 (8th Cir.), amended, 415 F.3d 912 (8th Cir.), cert. denied, 126 S. Ct. 764 (2005).  Detective testifies in kidnapping trial that witness has consistently told same story.  Defendant seeks to cross-examine detective re polygraph administered to witness.  District court refuses, saying cross on polygraph would be collateral.  Jury convicts and defendant appeals.  Affirmed.  Fundamental premise of our adversary system is that jury evaluates credibility.  Defendant had adequate opportunity to cross-examine detective and relevant witness.  Moreover, defendant took no steps to establish polygraph's reliability.

Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901 (8th Cir. 2005).  Marvin Lumber buys wood preservative known as PILT (preservative in-line treatment) from PPG, for use in Marvin Lumber's millwork products (doors and windows), on strength of PPG's representations that PILT will last longer than alternative preservatives containing  pentachlorophenol, a.k.a. "Penta" (which poses environmental concerns).  When PILT fails to prevent premature rot and decay in Marvin Lumber's products, it sues on claims including breach of warranty of future performance.  To prove breach and causation, it offers testimony from statistician Dr. Frank Martin, who opines based on Marvin Lumber's wood-rot data that PILT-treated products do not outlast Penta-treated products, and also that company's wood-rot problems are attributable to PILT's deficiencies as preservative.  Jury awards $156 million to Marvin Lumber.  PPG appeals.  Admissibility affirmed.   PPG argues that Dr. Martin deviated from methods sanctioned in Reference Manual on Scientific Evidence (2d).  But judges are not required to follow Reference Manual, which does not have force of law and is not intended to instruct judges on standards for admissibility.  PPG also faults Dr. Martin because study was prepared for litigation, relied on data collected by Martin Lumber's legal department, relied on small sample not drawn from representative geographical cross-section, and failed to account for other potential causes of wood deterioration.  But those points to go factual basis of Dr. Martin's opinions, and thus involve questions of weight, not admissibility.  No abuse of discretion. 

Storage Tech. Corp. v. Cisco Sys., Inc., 395 F.3d 921 (8th Cir. 2005).  Prior to its acquisition by Cisco Systems for $450 million, NuSpeed hires away key Storage Tech personnel to develop NuSpeed's internet data storage product.  Storage Tech sues NuSpeed's successor, Cisco, seeking damages for unjust enrichment.  District court excludes testimony from Storage Tech's damages expert, George Norton, and awards summary judgment to Cisco.  Exclusion affirmed.  Principal problem with Norton's testimony was that he imputed entire value of NuSpeed, as measured by its acquisition price, to trade secrets and know-how allegedly misappropriated from Storage Tech, even though NuSpeed had other assets.

Wash Solutions, Inc. v. PDQ Mfg., Inc., 395 F.3d 888 (8th Cir. 2005).  Wash Solutions (WSI) is exclusive regional distributor for PDQ car washes until PDQ prematurely terminates WSI's distributorship agreement.  WSI sues PDQ.  To prove damages, WSI relies on accounting expert Scott Stringer, who calculates profits WSI would have earned based on scheduled future sales to existing customers.  Trial court admits testimony and jury awards damages to WSI.  Admissibility affirmed.  PDQ faults Stringer's failure to address WSI's historical sales performance and his unfamiliarity with car wash industry.  But given WSI's theory of recovery, it was unnecessary for expert to address those issues.  Stringer made no attempt to project future sales to unknown customers.  He merely calculated profitability of purchases already planned by existing customers.  Record contains ample evidence that Stringer was qualified to perform such calculations based on his expertise in accounting and financial reporting.

Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005).  Did defect in Canon copier cause fire?  Subrogated insurers say it did, relying on testimony from fire causation experts Beth Anderson and Michael Wald.  District court excludes testimony as unreliable and awards summary judgment to Canon.  Exclusion affirmed.  Experts purported to follow methods prescribed by National Fire Protection Association in its publication NFPA 921: Guide for Fire and Explosion Investigations (1998).  That methodology qualifies as reliable approach endorsed by professional organization.  However, it requires examination of hypotheses through testing and comparison with data from fire scene analysis.  District court did not err in concluding that experts failed to satisfy that requirement.  In particular, experimental tests employed by experts did not account for several relevant factors.

Unrein v. Timesavers, Inc., 394 F.3d 1008 (8th Cir. 2005).  Worker's arm is injured in industrial sander.  Worker sues sander's manufacturer, alleging design defect.  In support, she offers testimony from engineer Tarald O. Kvalseth, Ph.D., who opines that sander should have incorporated guard or automatic braking system.  District court excludes testimony, because Dr. Kvalseth has not shown that his design proposals are feasible or compatible with sander's operation, and awards summary judgment to manufacturer.  Exclusion affirmed.  Contrary to manufacturer's argument, experts need not manufacture prototypes for their design testimony to be admissible.  But engineer's testimony was unreliable for other reasons.  He did not prepare drawings, present photographs showing use of proposed design features in similar machines, or detail how his design proposals would function.

United States v. Martin, 391 F.3d 949 (8th Cir. 2004).  Defendant is charged in connection with robbery after his two compatriots are apprehended and implicate him.  Both compatriots identify defendant in photo lineup and later at trial.  Trial judge bars testimony from defendant's expert on the unreliability of eyewitness testimony, Edward Geiselman, Ph.D.  Jury convicts and defendant appeals.  Exclusion affirmed.  Expert did not propose to testify on specific eyewitness identifications at issue, but only on reliability of eyewitness i.d. generally.  That subject falls within jurors' common understanding, and expert's testimony therefore would not have assisted them to determine any fact in issue.  Reversal for discretionary exclusion of eyewitness identification testimony is especially unwarranted where, as here, other corroborating evidence supports identification.

United States v. Rushing, 313 F.3d 428 (8th Cir. 2004).  On remand from United States v. Rushing, 313 F.3d 428 (8th Cir. 2002) (infra), defendant charged with importing Chinese woman for sexual purposes seeks admission of testimony from pharmacologist Dr. Paul Gubbins, who opines that if defendant and woman had had regular sexual relations, defendant would have caught woman's hepatitis.  Trial court excludes testimony.  Exclusion affirmed.  Among other difficulties, expert made unsupported assumptions concerning women's level of infectiousness, assumed sexual relations were more frequent than woman's testimony supported, and failed to account for gender differences affecting progress of hepatitis and its transmissibility.  No abuse of discretion.

United States v. Janis, 387 F.3d 682 (8th Cir. 2004).  Defendant is charged with possession of firearm by felon.  To show defendant's prior felony conviction, prosecution offers fingerprint evidence from Detective Michael Jordahl, who opines that defendant's prints match those of person by same name who was convicted of drug offense in 1987.  Defendant objects that detective's opinion was not disclosed in discovery, and that defendant has not been afforded sufficient time to challenge reliability of testimony.  District court offers continuance and government-funded expert for defense, but defendant declines.  District court overrules objection, and jury convicts.  Admissibility confirmed.  Defendant did not challenge reliability at trial.  District court nevertheless made reliability determination.  Fingerprint evidence is generally accepted.  No abuse of discretion.

United States v. Watkins, No. 03-3319 (8th Cir. Oct. 28, 2004) (unpublished), cert. denied, 126 S. Ct. 670 (2005).  Defendant is convicted of weapons offense after jury hears testimony from prosecution witness Daniel Bredow re fingerprints and firearms.  Admissibility affirmed.  Defendant raised no objection at trial.  Although witness was never formally admitted as expert witness, he was qualified based on experience as lab technician and tool-mark examiner.

United States v. Robertson, 387 F.3d 702 (8th Cir. 2004).  In narcotics trial, detectives Carl Dulay and Michael Scego testify for prosecution that thirteen grams of crack cocaine found on defendant's person was quantity consistent with possession for distribution, and also that dealers typically carry guns to defend themselves against other dealers.  Jury convicts.  Admissibility affirmed.  Among other qualifications, both detectives boasted over ten years' experience as law enforcement officers.  No abuse of discretion.

United States v. Gipson, 383 F.3d 689 (8th Cir. 2004).  Criminal defendant objects to prosecution's use of "Profiler Plus" and "Cofiler" multiplex kits for DNA testing, conceding validity of STR DNA profiling methodology in general but arguing that kits implement methodology in unreliable fashion.  Trial court admits evidence and jury convicts.  Admissibility affirmed.  When application of valid scientific methodology is challenged as unreliable under Daubert, outright exclusion of evidence is warranted only if methodology was so altered by deficient application as to skew methodology itself.

Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459 (8th Cir. 2004), cert. denied,125 S. Ct. 1933 (2005).  Plaintiffs in Title VII action allege pay discrimination, offering regressions performed by Dr. Hilary Weiner and Dr. David C. Stapleton.  Defendants move to exclude plaintiffs' expert testimony and for summary judgment.  Trial court finds that plaintiffs' regressions omitted material variables and awards summary judgment, denying Daubert motions as moot.  Affirmed.  Choice of variables in regression ordinarily goes to weight, not admissibility.  But even assuming admissibility, plaintiffs' regressions were insufficient to support reasonable inference of discrimination.

United States v. Bertling, 370 F.3d 818 (8th Cir. 2004).  Criminal defendant applies for funding for domestic violence expert to testify on her behalf at sentencing hearing.  District court denies application because court is generally familiar with subject matter from experience on bench.  Affirmed.  Proposed expert was not psychologist or psychiatrist and had not examined defendant, but merely proposed to testify on general issues involving domestic violence.  District court did not abuse discretion in concluding that it was already familiar with those issues from its experience on bench, and that testimony from expert therefore would not assist.

United States v. Martinez-Figueroa, 363 F.3d 679 (8th Cir. 2004), vacated on other grounds, 543 U.S. 1100 (2005).  Truck driver is arrested for hauling marijuana.  At trial, prosecution questions arresting officer about trucker's logbook.  Defendant objects when prosecutor asks, "What is the purpose of a logbook?"  Trial court overrules objection and jury convicts.  Admissibility affirmed.  Defendant complains that officer's expert opinion was not disclosed in pretrial discovery.  But this was lay opinion, not expert testimony.  Officer's testimony was foundational in character and was based on his firsthand knowledge of logbook from his investigation.  While explanation of logbook may have required knowledge of trucking regulations that laypersons might not possess, it was not technical in nature, and prior witness had testified to purpose of logbook without objection.  District court did not abuse its discretion in admitting testimony as lay opinion under Fed. R. Evid. 701.  At all events, any error was harmless because challenged testimony was cumulative. 

Craftsmen Limousine, Inc. v. Ford Motor Co., 363 F.3d 761 (8th Cir. 2004).  Craftsmen alleges that Ford conspired with others to prevent Craftsmen from advertising in limousine industry trade publications and from attending trade shows, in violation of section 1 of Sherman Act.  To show damages, Craftsmen offers opinion from accountant David Cole, who relies on tax returns and financial statements to calculate that Craftsmen enjoyed average growth rate of 62% during pre-conspiracy period spanning 1991-1994.  Cole then compares Craftsmen's actual versus projected sales for post-conspiracy period spanning 1995-1998, sets off operating expenses, and calculates lost profits for 1995-1998 at $2.1 million.  District court admits testimony, and jury awards $2.1 million in pre-trebling damages.  Admissibility reversed.  Expert simply assumed that Craftsmen's entire lost growth from 1995-1998 was attributable to conspiracy, without addressing other possible factors, such as emergence of direct competitors during that period.  Rule of reason required that expert consider such other factors to arrive at opinion that would "incorporate all aspects of the economic reality."  Revised opinion addressing such issues could be admissible at new trial on remand.  

United States v. Greatwalker, 356 F.3d 908 (8th Cir. 2004). Criminal defendant seeks to introduce results of polygraph tests taken by witnesses at murder scene.  District court excludes evidence and jury convicts.  Exclusion affirmed.  Defendant never established reliability of tests.

Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860 (8th Cir. 2004).  District court conducts damages trial in trade secret misappropriation case following remand in Children's Broad. Corp. v. Walt Disney Co., 245 F.3d 1008 (8th Cir. 2001).  Children's Broadcasting offers damages expert Dr. Jonathan Putnam, who gives damage estimates for three different "acceleration intervals" -- i.e., intervals by which defendants' misappropriation may have accelerated defendants' entry into children's radio market.  Dr. Putnam also testifies that actual length of acceleration interval would depend on how long it would have taken defendants to create misappropriated information themselves.  Jury awards damages.  Admissibility affirmed.  Dr. Putnam has suitable credentials for valuing trade secrets and employed academically accepted methods.  Defendants' arguments concerning factual bases of Dr. Putnam's opinions went to weight, not admissibility.  No abuse of discretion.

United States v. Cuervo, 354 F.3d 969 (8th Cir.), cert. denied, 543 U.S. 865 (2004).  In narcotics conspiracy trial, prosecution offers ATF auditor Brad Richards to opine that defendant's wealth is disproportionate to his reported income, because defendant's investments for period from 1992 through 1998 totaled $2.9 million, whereas his available income for same period totaled only $262,200.  Admissibility affirmed.  Defendant argues auditor should have followed "net worth method" applicable in tax prosecutions under Holland v. United States, 348 U.S. 121 (1954).  But Holland need not be followed in non-tax cases.  Unlike tax prosecutions, narcotics conspiracy charges do not involve financial gain as necessary element of offense, and so less stringent standards are permissible.

Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d 850 (8th Cir. 2004).  ADM sustains business losses because flooding disrupts its corn supply.  It cannot recoup losses via contingent business interruption or extra-expense insurance because its insurance broker failed to secure coverage.  At trial of ADM's claims against broker, ADM offers testimony from Dr. Bruce Scherr, damages expert, who says flood caused corn prices to increase by about 25 cents per bushel, causing ADM to incur $113 million in additional expense.  Jury finds for ADM.  Admissibility affirmed.  Broker complains that expert failed to take hedging into account, but testimony was relevant, and district court did not err in finding it sufficiently reliable to go to jury.

Townsend v. Martine, No. 02-3993 (8th Cir. Oct. 14, 2003) (unpublished).  District court excludes plaintiffs' expert in employment discrimination action and enters judgment on jury's verdict for defendants.  Exclusion affirmed.  District court did not abuse discretion, because disparate treatment issues in this case boiled down to questions of credibility that fell within jury's competence.

Shaffer v. Amada Am., Inc., No. 03-1388 (8th Cir. Sept. 18, 2003) (unpublished), cert. denied, 541 U.S. 1005 (2004).  Worker crushes fingers while repairing press brake machine.  In suit against machine's manufacturer, worker offers testimony from Dr. Farid Amirouche, mechanical engineer, to prove defective design.  District court excludes testimony and awards summary judgment to defendant.  Exclusion affirmed.  Expert had over twenty years' experience in mechanical engineering, but substantially no experience with press brakes.

Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753 (8th Cir. 2003).  Cigarette companies conspire to mislead public re health risks of smoking.  HMOs sue under Minnesota consumer fraud statutes to recoup members' health care costs stemming from defendants' misrepresentations.  To show nexus between defendants' conduct and their damages, HMOs offer testimony from physician and economics professor Dr. Jeffrey Harris, who posits "counterfactual" world in which conspiracy does not retard development of safer cigarettes, and in which fewer people smoke because consumers are not misled.  He computes damages by comparing actual incidence of health problems versus incidence to be expected in "counterfactual" world.  District court excludes testimony as speculative and awards summary judgment to tobacco companies.  Exclusion affirmed.  Some speculation is inevitable in expert testimony, and admissibility of Dr. Harris's testimony may be closer question than district court believed, but some of Dr. Harris's conclusions represent "inspired guesses" at best, and district court did not abuse discretion in excluding testimony.  Moreover, Dr. Harris's damage computation was based partly on cigarette companies' failure to introduce low-tar and low-nicotine cigarettes sooner, whereas HMOs theory of case was that marketing of low-tar-and-nicotine cigarettes actually formed part of conspiracy, and so Dr. Harris's testimony does not "fit" facts of HMOs' case.

United States v. Collins, No. 02-3353 (8th Cir. Aug. 25, 2003).  Criminal defendant is convicted after jury hears fingerprint evidence.  Admissibility affirmed.  Defendant did not object at trial, fingerprint identification is generally accepted, and district court did not commit plain error.

Anderson v. Raymond Corp., 340 F.3d 520 (8th Cir. 2003).  Worker is injured when ejected from stand-up power lift truck.  In product liability action against lift truck's manufacturer, worker offers testimony from engineer Andrew LeCocq, who opines that lift truck was defectively designed because it had open cockpit with no operator restraints and because it carried no warnings.  District court excludes testimony as unreliable, and grants continuance for worker to designate new expert.  Worker designates new expert but discloses his preliminary report only after deadline's expiration.  District court strikes testimony from new expert as untimely and grants summary judgment to defendant.  Exclusion affirmed.  LeCocq admits he is not expert in design or engineering of stand-up lift trucks.  He has never participated in design of any lift truck or in preparing any lift truck warning.  He never operated any lift truck, nor observed any lift truck in operation, before this case.  No abuse of discretion.

United States v. Vesey, 338 F.3d 913 (8th Cir. 2003), cert. denied, 540 U.S. 1202 (2004).  Charged with possession of cocaine with intent to deliver, defendant offers expert James Holt, who seeks to testify re normal conduct of illegal drug operations based on his experience as drug trafficker and government informant.  District court excludes testimony and jury convicts.  Exclusion reversed.  Witness had relevant experience and explained how that experience shaped his opinions.  District court abused discretion in focusing on expert's credibility rather than on reliability of testimony.  But error was harmless in view of overwhelming evidence against defendant, and because jury likely would have found expert's credibility deficient. 

Kudabeck v. Kroger Co., 338 F.3d 856 (8th Cir. 2003).  Did customer's fall in grocery store cause her advanced degenerative disc disease and osteoarthritis?  To show causation, customer offers testimony from her chiropractor, Dr. Brian Reilly.  District court admits testimony and jury awards damages to customer.  Admissibility affirmed.  Defendant concedes chiropractor's qualifications but contends that his testimony did not rest on reliable principles.  However, chiropractor performed legitimate differential diagnosis, ruling out other potential causes, and relying on medical tests as well as patient's medical history.  Defendant complains that chiropractor cited no studies establishing that falls can trigger degenerative disc disease.  But medical experts need not always be able to invoke published literature in support of general causation.  Moreover, jury could have found causation based entirely on testimony from plaintiff's other experts. 

Dow Corning Corp. v. Safety Nat'l Cas. Corp., 335 F.3d 742 (8th Cir. 2003), cert. denied, 540 U.S. 1219 (2004).  Dow and insurer engage in arbitration over coverage for Dow's silicone breast implant liabilities.  One arbitrator contacts insurer's counsel, and then Dow's counsel, to discuss scheduling issues, and also to propose that parties agree on streamlining their expert presentations.  Arbitration panel ultimately finds in favor of insurer.  Dow files action in district court seeking to vacate award on multiple grounds.  In support, Dow offers affidavit from former judge and noted arbitration expert, who opines that arbitrator's ex parte contacts were both prejudicial and improper.  District court strikes portions of expert's affidavit on grounds that it expresses opinions on issues of law that are for court to decide.  District court ultimately declines to vacate arbitration award.  Exclusion affirmed.  No abuse of discretion to exclude testimony, but district court erred in holding award was binding.

Krueger v. Johnson & Johnson Prof'l, Inc., No. 02-3553 (8th Cir. May 21, 2003) (unpublished).  Surgeons implant Codman Plate to aid fusion of vertebrae.  Screws break, necessitating follow-up surgery to remove device.  Patient sues manufacturer, alleging defective design.  District court grants summary judgment to manufacturer after excluding testimony from patient's metallurgist, George Otto, who opines that device's cam-lock system exerted unintended pressure on head of device's screws, and patient's other expert, Edward Reese, who opines that device was defectively designed in light of its noncompliance with FDA regulations and lack of clinical testing.  Exclusion affirmed.  Neither expert had sufficient knowledge or expertise re design of Codman Plate or similar systems to explain or validate their theories.  Both admitted they lacked expertise in medical issues, neither conducted any testing, and neither addressed likely alternative cause of breakage -- viz., that failure of patient's bones to fuse caused device to fail. 

Mems v. City of St. Paul, 327 F.3d 771 (8th Cir. 2003), cert. denied, 540 U.S. 1106 (2004).  Firefighters allege racial discrimination.  During recess week at trial, their expert on emotional damages, Dr. John Taborn, re-interviews plaintiffs and takes notes reflecting symptoms and factual allegations not encompassed in expert's pretrial report.  Notes and interviews are not disclosed to defendant until night before expert's planned trial testimony.  District court excludes testimony as discovery sanction and also, alternatively, under DaubertAffirmed.  District court was not required to apply least draconian possible sanction under Fed. R. Civ. P. 37, and did not abuse discretion in excluding testimony as sanction.  Court of appeals therefore need not reach Daubert issues.

United States v. Solorio-Tafolla, 324 F.3d 964 (8th Cir. 2003).  Detective Michael Garnett testifies for prosecution about various aspects of narcotics trafficking.  Admissibility affirmed.  Because defendant raised no Daubert objection at trial, review is for plain error.  Detective is 28-year law enforcement veteran, and he described how his conclusions were founded on his extensive training and experience.

Sosna v. Binnington, 321 F.3d 742 (8th Cir. 2003).  After surgery to remove small bowel obstruction, patient develops sepsis and dies.  Widow brings malpractice action against surgeon.  At trial, surgeon offers expert testimony from internist Dr. John S. Daniels, who opines that surgeon complied with applicable standard of care.  Jury finds for surgeon.  Admissibility affirmed.  Though not a surgeon, Dr. Daniels had performed research involving small bowel obstructions and regularly treated patients suffering from such obstructions.  He did not testify to details of surgical procedure, and was competent to testify on points of pre- and post-operative care that he did.

Rustenhaven v. Am. Airlines, Inc., 320 F.3d 802 (8th Cir. 2003).  Plaintiff's expert physician [?] testifies that plaintiff's seizures resulted from injuries sustained in airline crash, and jury returns verdict for plaintiff.  Admissibility affirmed.  Defendants raised their Daubert objection only on eve of trial.  "We have no reason to believe that the district court did not give the objection the careful attention it deserved in the time available for review."

United States v. Redd, 318 F.3d 778 (8th Cir.), cert. denied, 539 U.S. 921 (2003).  Having pleaded guilty to mail fraud and money laundering, defendant is placed on supervised release, which is then revoked after six positive "sweat patch" results indicate cocaine usage.  At revocation hearing, defendant objects to admissibility of lab results because technicians who performed tests are unavailable to testify.  District court overrules objection and relies on lab results in revoking supervised release and sentencing defendant to 18 months of incarceration.  Affirmed.  Hearsay is permissible in revocation hearings if government's grounds for not offering live witness outweigh defendant's interest in confronting witness.  Here, district court permissibly found that evidence was reliable, and that lab technicians' testimony would likely be of insufficient value to require government to incur burden and expense of producing them.  Because defendant raised only hearsay and foundation objections, and no Daubert objection, Eighth Circuit's ruling should not be read as general endorsement of "sweat patch" technology. 

United States v. White Horse, 316 F.3d 769 (8th Cir.), cert. denied, 540 U.S. 844 (2003).  Native American is charged with sexually molesting six-year-old son.  District court excludes testimony from defendant's expert psychologist, who would opine that defendant has no sexual interest in young boys.  Jury convicts.  Exclusion affirmed.  Psychologist's opinion was based on Abel Assessment, which involves having subject review pictures of clothed and unclothed persons, as well as responding to questionnaire.  District court had legitimate concerns about Abel Assessment's "fit."  For example, there was no evidence that Abel Assessment was tested with statistically significant sample of Native Americans, and no pictures of Native American adults or children were included.  Moreover, instrument's author states, in her published study, that incest-only cases were excluded from two of instrument's three predictive equations "because incest offenders often act for reasons other than sexual interest."

Eckelkamp v. Beste, 315 F.3d 863 (8th Cir. 2002).  Employees sue company's employee stock ownership plan (ESOP) and certain of its officers under ERISA, alleging breach of fiduciary duty.  On defendants' motion for summary judgment, plaintiffs' appraisal expert, Daniel Callanan of ComStock Valuation Advisors, testifies that officers overcompensated themselves, and that annual appraisals consistently undervalued company.  District court discounts testimony and awards summary judgment.  Exclusion affirmed.  District court did not explicitly discuss Daubert but did assess expert's methodology and find it wanting.  Expert's overcompensation analysis did not work from truly comparable enterprises, involved no employee interviews, and skimped on other research.  Expert's valuation analysis included questionable control premium and other arguable methodological flaws.  Plaintiffs have counterarguments, but record does not reflect that district court abused its discretion.

United States v. Rushing, 313 F.3d 428 (8th Cir. 2002), subsequent appeal following remand, United States v. Rushing, 338 F.3d 428 (8th Cir. 2004).  Defendant is charged with violating immigration laws to import Chinese woman for sexual services.  At trial, defendant offers testimony from Dr. Paul Gubbins, who is prepared to testify that Chinese woman: (a) had Hepatitis-B when he examined her; (b) probably had Hepatitis-B when she left China, given prevalence of disease there; and (c) if Chinese woman and defendant had sexual relations for period of one year, defendant would probably be infected (but is not).  Trial court excludes testimony as collateral under Fed. R. Evid. 403.  Jury convicts.  Exclusion reversed.  Testimony was highly relevant to government's theory of case.  If defendant did not engage in sex with Chinese woman, government's version of motive would crumble.  Government says its own expert would have testified that woman probably would not have transmitted disease to defendant in one-year sexual relationship, but that issue involves weighing competing expert testimony, which is jury's function.  Government also says defendant's expert is inadmissible under Daubert, but district court did not exclude expert on that basis.  Daubert hearing should be conducted on remand.

Hartley v. Dillard's, Inc., 310 F.3d 1054 (8th Cir. 2002).  Dillard's fires 64-year-old store manager and replaces him with 32-year-old.  Dillard's says manager's termination resulted from store's poor sales and profitability, but terminated manager alleges age discrimination.  At trial, manager offers economist, Dr. Charles Venus, to testify that mall and retail stores were suffering similar difficulties nationwide during relevant period.  District court admits testimony over Dillard's objection, and jury awards verdict to plaintiff.  Admissibility affirmed.  Dillard's says that factual materials on which economist relied fail to support his testimony, and also complains that economist did not analyze factors bearing on profitability at this specific store.  But generally, factual basis of expert testimony goes to weight, not admissibility.  Exclusion is required only if expert testimony is so fundamentally unsupported as to offer no assistance to jury.  This economist has performed similar analyses for fifteen years, and his testimony on nationwide profitability trends could assist jury in evaluating motives for manager's termination notwithstanding economist's failure to focus on specific store.  District court did not abuse its discretion in admitting his testimony.

United States v. Kehoe, 310 F.3d 579 (8th Cir. 2002), cert. denied, 538 U.S. 1048 (2003).  Government offers handwriting expert Carl McClary in RICO trial.  Defendant is convicted.  Admissibility affirmed.  District court erred in stating that objecting party bears burden of showing evidence is inadmissible, but district court later corrected that misstatement, and did not actually shift evidentiary burden to defendant.  Expert was qualified, having worked in field for ten years, and he explained his methods and analysis.  His testimony offered knowledge beyond jury's own, and district court did not err in finding testimony reliable. 

Smith v. BMW N. Am., Inc., 308 F.3d 913 (8th Cir. 2002).  Plaintiff suffers quadriplegia after air bag fails to deploy in accident.  In suit against vehicle's manufacturer, she offers Dr. Larry Williams, accident reconstructionist, to opine that vehicle's "barrier equivalent velocity" was high enough that properly functioning air bag would have deployed, and Dr. Stephen Erickson, forensic pathologist, to opine that plaintiff's injuries would have been mitigated or prevented, had air bag deployed.  Defendant moves to strike both experts.  District court holds Daubert hearing, grants motion to strike, and awards summary judgment to defendants.  Exclusion reversed.  District court correctly ruled that Dr. Williams's computation of barrier equivalent velocity rested on flawed measurements, and therefore properly excluded Dr. Williams's opinion on that point.  However, when defendants' own accident reconstructionist corrected those flawed measurements and recalculated barrier equivalent velocity adopting Dr. Williams's admissible opinion on principal direction of force, resulting velocity of 14.4 m.p.h. fell in range in which genuine issue of material fact exists as to whether air bags should deploy.  As for Dr. Erickson, district court's exclusion seems ultimately predicated on Dr. Erickson's lack of expertise in biomechanics, physics, or engineering.  However, Dr. Erickson was not called to quantify force applied to plaintiff's body during accident, or to calculate how much force her neck could withstand.  He was called to offer opinion that she suffered injury when auto struck embankment and not during subsequent rollover.  He based this opinion on information that did fall within his field (medicine) -- viz., injuries plaintiffs sustained (e.g., wedge fracture in neck) versus injuries she did not (e.g., no head trauma). 

Bendet v. Sandoz Pharms. Corp., 308 F.3d 907 (8th Cir. 2002).  Plaintiff Carole Bendet suffers stroke after taking Parlodel to suppress post-partum lactation, sues Parlodel's manufacturer.  Defendants move for summary judgment and also seek to exclude Bendet's causation experts.  Because Bendet relies on two causation experts whose testimony on same subject was excluded by district court in prior litigation within Eighth Circuit, Bendet seeks and obtains stay of proceedings pending Eighth Circuit's disposition of appeal in earlier case.  After Eighth Circuit issues its decision in Glastetter v. Novartis Pharms. Corp., 252 F.3d 986 (8th Cir. 2001), which affirms exclusion of experts in prior proceeding (see infra, this page), district court issues order to show cause why Bendet's claims should not be dismissed as well.  Bendet responds that district court should await further appellate proceedings in Glastetter and/or permit briefing on Daubert issues to proceed in Bendet's case.  District court treats order to show cause as equivalent to motion for summary judgment, states that Bendet has already enjoyed opportunity to be heard on issue, and awards judgment to defendants.  Exclusion reversed.  Bendet was not judicially estopped from reliance on experts whose testimony was rejected in Glastetter, and was entitled to be heard for herself in her own proceedings.  District court's order to show cause did not afford sufficient notice and opportunity to be heard.  If Bendet's causation evidence were identical to evidence at stake in Glastetter, stare decisis would mandate identical result.  But Bendet says she relies on additional causation evidence.  

Rogers v. Allstate Ins. Co., No. 02-1516 (8th Cir. Oct. 10, 2002) (unpublished).  In trial over insurance claim arising from destruction of house by fire, district court admits defendant insurer's expert testimony re canines trained to detect accelerants, and jury finds for defendants.  Admissibility affirmed.  Record does not indicate that Daubert was raised at trial, and other evidence supported conclusion that fire was spread by accelerants, so any error would be harmless. 

Shoaf v. Am. Way Transps., Inc., No. 02-1663 (8th Cir. Sept. 23, 2002) (unpublished).  Injured in collision with 18-wheeler, plaintiff sues trucking company.  Accident reconstructionist John Bentley testifies for company re whether it was possible, as plaintiff claims, for 72 foot-long truck to come off access road and maneuver all 18 wheels into left lane before making right turn into truck stop.  Jury finds for plaintiff, but plaintiff is dissatisfied with size of award and appeals, seeking new trial.  Admissibility affirmed.  Plaintiff says expert's testimony was not based on sufficient facts or data, scientific principles, and reliable methods.  But expert considered photographs, physical evidence, and calculations based on time and distance.  "Disagreements about methodology and technique go to the weight the jury should give the evidence rather than its admissibility."  Moreover, plaintiff does not show how admission of expert's opinion harmed him or affected any substantial right.

United States v. Hernandez, 299 F.3d 984 (8th Cir. 2002), cert. denied, 537 U.S. 1134 (2003).  Expert testifies for prosecution that latent print matches defendant's.  Admissibility affirmed.  Fingerprint evidence is admissible, subject to court oversight, and in this case, testimony did not determine outcome.  District court did not abuse its discretion.

Mattis v. Carlon Elec. Prods., 295 F.3d 856 (8th Cir. 2002).  Apprentice electrician develops reactive airways dysfunction syndrome (RADS) after using cement compound to lay PVC pipe.  At trial versus manufacturer, electrician offers causation testimony, over defendants' objections [?], from his treating pulmonologist, "Dr. Hansen," and from industrial hygienist, Robert Wadeke.  Jury returns verdict for plaintiff, and defendants appeal.  Affirmed.  Defendants say plaintiffs' causation testimony was legally insufficient.  Defendants fault Wabeke for failing to determine plaintiff's precise exposure level, but plaintiffs in toxic tort suits need not establish mathematically precise exposures.  It is enough to show exposure at levels capable of causing relevant harm, and Wabeke did so, through procedures in use for over 25 years and well-accepted by industrial hygienists.  Dr. Hansen, for his part, relied on differential diagnosis, which is reliable technique under Daubert, as well as consulting published studies on effects of solvents similar to those found in cement.  Experts' testimony was admissible and legally sufficient to show causation.

In re Air Crash at Little Rock, Ark., on June 1, 1999 (Lloyd v. Am. Airlines, Inc.), 291 F.3d 503 (8th Cir.), cert. denied, 537 U.S. 934 (2002).  Airline passenger suffers leg and knee injuries during runway crash and later suffers from post-traumatic stress disorder (PTSD).  Passenger sues airline under Warsaw Convention.  Passenger offers testimony from psychiatrist ("Dr. Harris") that passenger's PTSD is biological and not merely psychological, based on passenger's symptoms as well as research indicating that chronic PTSD leads to physiologically based brain dysfunction.  Airline objects, at trial, that psychiatric community does not recognize theory that PTSD causes physical brain changes, and also that passenger has not shown any sufficient nexus between that theory and any physical condition in passenger's brain.  District court overrules objections as untimely.  Jury returns verdict for passenger.  Admissibility reversed.  Passenger's only true Daubert objection, regarding lack of general acceptance of psychiatrist's theory, was raised too late.  Daubert objections should be addressed before trial wherever possible.  But airline's other objection is well founded.  Dr. Harris testified that medical tests exist that could determine whether passenger suffers from physical brain dysfunction.  Because no doctor performed any such tests, no sufficient connection was established between psychiatrist's testimony and patient's condition.  On remand, which is necessary because district court adopted wrong standard for compensability of mental injury under Warsaw convention, trial court should conduct pretrial Daubert hearing, if Dr. Harris's testimony remains relevant in light of correct standard for compensability.  Moreover, testimony that passenger suffers from physical brain dysfunction should not be admitted unless supported by medical testing.

Proctor v. UNUM Life Ins. Co. of Am., No. 01-3000 (8th Cir. Jan. 29, 2002) (unpublished).  After conducting similar tests with differing results, two examining physicians reach opposite conclusions on whether employee suffers from disabling latex allergy.  ERISA plan administrator denies employee's claim for disability benefits, and employee sues plan.  District court concludes that administrator's decision was reasonably supported by relevant evidence and awards summary judgment to plan.  Affirmed.  Employee's reliance on Daubert is misplaced.  Key issue in ERISA benefits claim is whether administrator's decision is supported by substantial evidence, although that determination is made in part by considering quality of evidence.  Even if Daubert applies, employee did not present her test-reliability arguments to plan administrator, and so district court was precluded from considering those arguments or medical literature on which they were based.

United States v. Larry Reed & Sons, 280 F.3d 1212 (8th Cir. 2002).  Agricultural partnership files cotton crop insurance claim for loss of 194.1 acres of cotton in 1993.  Were those acres in fact planted during 1993 season?  In false claims action against partnership, government expert testifies they were not, based on his analysis of contemporaneous satellite imagery.  Admissibility affirmed.  Expert referenced hundreds of academic articles, discussed use of satellite imagery by NASA and universities to enhance agricultural productivity, and testified re application of method in assessing crop damage.

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. Sarabia-Martinez, 276 F.3d 447 (8th Cir. 2002).  In drug trial, Special Agent John Boulger testifies for prosecution that drug dealers use walkie-talkies in counter surveillance to determine whether they are being watched.  Admissibility affirmed.  District courts have discretion to admit expert testimony from law enforcement officers re modus operandi of persons in drug trade.  

United States v. Evans, 272 F.3d 1069 (8th Cir. 2001), cert. denied, 535 U.S. 1029 (2002).  In Mann Act prosecution, Minneapolis police officer testifies re operation of prostitution rings, including recruitment of prostitutes, relationship between pimps and prostitutes, and jargon used in such rings.  Admissibility affirmed.  District court was not required to convene Daubert hearing before qualifying police officer as expert on prostitution rings and properly relied on policeman's education, training, and experience.

Kinder v. Bowersox, 272 F.3d 532 (8th Cir. 2001).  Rape/murder defendant convicted in state court files habeas petition challenging testimony from prosecution's DNA expert, because expert allegedly altered visual depiction of test results by erasing band that would have ruled out defendant, and also because of other alleged methodological failings.  Denial of habeas affirmed.  Trial court in criminal proceeding ruled consistently with Daubert in holding that issue of alleged alteration of evidence was for jury.  Meanwhile, Daubert does not bind state courts anyway.

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.

Lauzon v. Senco Prods., 270 F.3d 681 (8th Cir. 2001).  Worker injures hand with bottom-fired pneumatic nailer.  In design defect suit against manufacturer, engineer testifies for worker that bottom-fired nailers are inherently dangerous and that use of sequential-fire nailers is practicable and safer.  District court excludes testimony under Daubert and awards summary judgment to defendant.  Exclusion reversed.  Engineer has testified in numerous previous cases involving pneumatic nailers.  In this case, he conducted tests, authored and relied on peer-reviewed publications, and offered theory that enjoyed widespread acceptance.  True, engineer's introduction to pneumatic nailers was through litigation, but this slightly negative factor is outweighed by reliability of his methodologies.  District court said that engineer did not rule out competing causes, but this goal cannot be carried to quixotic extremes, and he did rule out manufacturing defects.  Finally, as to relevance, district court was troubled that engineer's reconstruction of accident did not seem to match plaintiff's.  But plaintiff said his account was uncertain, because it happened so fast, and engineer's account of probable events in accident had sufficient nexus to plaintiff's testimony.  All in all, Eighth Circuit is led "ineluctably" to reversal.  [NB: Opinion contains helpful survey of numerous prior Eighth Circuit Daubert decisions.] 

United States v. Dico, Inc., 266 F.3d 864 (8th Cir. 2001), cert. denied, 535 U.S. 1095 (2002).  Des Moines groundwater is contaminated with trichloroethylene (TCE).  United States sues polluting corporation under CERCLA to recoup costs of cleanup.  Company defends by arguing that other polluters are source of TCE.  District court hears testimony from government's hydrogeologist in bench trial and finds corporation liable.  Admissibility affirmed.  Defendant says expert ignored other sources of TCE in running his computer model, but computer model was not basis for expert's opinion on source of TCE, and in any event expert considered each piece of data that defendant says he ignored.  Defendant also says expert relied on insufficient sampling to support his theory, but expert used samples only to confirm conclusions independently formed.  Moreover, factual basis for expert opinion goes to credibility, not admissibility.  

United States v. Ross, 263 F.3d 844 (8th Cir. 2001).  At bank robbery trial, FBI forensic examiner opines that footprints match defendant's boots and tire imprints match defendant's car.  Admissibility affirmed.  District court held Daubert hearing and FBI witness specialized in this type of evidence.  Moreover, Eighth Circuit has upheld footprint evidence before. 

Pullman v. Land O'Lakes, Inc., 262 F.3d 759 (8th Cir. 2001).  Dairy farmers retain corporation for dairy consulting.  Corporation's veterinarian works with farmers in preparing dairy rations.  After veterinarian adds steam flaked soybeans to feed, many cows stop eating, become ill, and/or die.  In trial of dairy farmers' negligence claim against corporation, dairy farmers offer testimony from two veterinarians whom they commissioned to perform experimental test recreating feeding conditions from time period at issue.  Admissibility affirmed.  Veterinarians were not testifying as experts, and did not offer opinions.  They testified only concerning facts relating to experimental test, and their testimony was therefore not subject to Daubert.

United States v. Kirkie, 261 F.3d 761 (8th Cir. 2001).  In trial for aggravated sexual abuse of child, prosecution presents testimony from Dr. Richard Kaplan, who opines that absence of physical evidence of abuse does not preclude possibility that abuse actually occurred as reported by victim, and who also testifies that victim delay in reporting is not unusual.  Admissibility affirmed.  Testimony did not vouch for victim's credibility, because it did not exclude possibility that victim's report was inaccurate.  Witness's opinion was helpful to trier of fact, and district court did not abuse discretion in admitting it.

Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001).  Plaintiff alleges that workplace exposures to defendant's organic solvent caused: (1) psychological problems, caused both by initial exposure and subsequent health problems; (2) cognitive impairments and personality disorders, caused by brain damage; and (3) Parkinsonian symptoms caused by brain damage.  Plaintiff offers two causation experts: Dr. Terry Martinez (pharmacologist and toxicologist), and Dr. Raymond Singer (neuropsychologist and neurotoxicologist).  Defendant moves to exclude their testimony under Daubert.  District court bars Dr. Martinez from testifying re Parkinsonian symptoms but permits his testimony re plaintiff's acute post-exposure symptoms.  Dr. Singer is permitted to testify that plaintiff suffers from organic brain dysfunctions and personality disorders consistent with exposure to defendant's solvent at toxic levels.  Defendant appeals from jury verdict for plaintiff.  Admissibility affirmedIn general: Toxic tort plaintiffs must prove both that toxin is capable of causing injuries like plaintiffs' in human beings and that it did in fact cause plaintiff's injuries.  However, first several victims of new toxic tort should not be barred from suit simply because medical literature, which will eventually support causal connection, has not yet been completed.  Plaintiffs need not produce mathematically precise tables equating levels of exposure with levels of harm, but need merely offer evidence from which jurors can reasonably conclude that exposure probably caused injuries.  There is no requirement that plaintiff's expert must always cite published studies on general causation, nor that pertinent epidemiological studies supporting plaintiff's position exist.  Even if trial judge believes there are better grounds for some alternative conclusion, and that there are some flaws in expert's methods, expert's opinion should be admitted if there exist good grounds to support it.  Only question is whether testimony is sufficiently reliable and relevant to assist jury.  Factual basis of expert opinion generally goes to credibility, not admissibility.  As for Dr. Martinez, he testified that acute symptoms suffered by plaintiff immediately after exposure (nausea, headache, tiredness, respiratory problems, trembling, skin irritation) were caused by exposures, basing his testimony on temporal relationship between exposure and symptoms, animal studies on chemical contained in solvent, studies of other chemicals with similar structures, studies of mechanism by which chemical acts on nerve pathways, and plaintiff's medical records.  Defendant argues this testimony was irrelevant, and also prejudicial because it could support improper inference that if chemical could cause short-term symptoms like plaintiff's, it could also cause similar long-term ones.  But whether or not latter inference would be permissible, testimony was relevant both to Dr. Martinez's analysis of whether and to what extent plaintiff was exposed and to other expert's analysis of plaintiff's exposure level.  Defendant also argues testimony was unreliable, because Dr. Martinez cited no epidemiological studies supporting conclusion that solvent could cause relevant symptoms through inhalation as opposed to ingestion, never quantified plaintiff's exposure, did not rule out other potential causes, and had not yet tested his theory.  But immediate temporal association with acute post-exposure symptoms was strong indicium of causation, and defendant's own consumer literature lists inhalation symptoms similar to plaintiff's.  It was not required that expert quantify exposure, only that plaintiff produce evidence of exposure above safe levels.  Plaintiff offered several witnesses to establish that plaintiff was exposed to quantities sufficient to cause absorption through skin of at least one quarter teaspoon.  And Dr. Martinez testified he followed same diagnostic procedures with plaintiff that he normally would follow in clinical practice.  As for Dr. Singer, he testified that exposure to solvent caused plaintiff to suffer permanent organic brain dysfunction manifesting itself in Parkinsonian physical symptoms, cognitive impairments, and personality disorders.  He also testified that inhalation was more potent exposure mechanism than ingestion, and that he followed normal procedures for evaluating patients with potential toxic exposure.  Defendant says Dr. Singer's theory was developed for litigation, not subjected to peer review, had not been published in scientific literature, and was unsupported by epidemiology.  Defendant also says Dr. Singer did not quantify plaintiff's exposure, did not opine on threshold exposure necessary for injury, failed to rule out other potential causes, and did not follow established guidelines for evaluating brain injury.  But district court's role was not to determine whether Dr. Singer's theory was correct, and appellate court's role is not to duplicate district court's analysis, which correctly held after exacting scrutiny that Dr. Singer's testimony was based on sufficiently good science to go to jury.  Defendant offered no studies indicating its solvent was incapable of causing permanent damage.  Defendant argues, finally, that Dr. Singer had no degree or academic work in toxicology, but credentials were unchallenged below.

Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706 (8th Cir. 2001).  Some 3000 tons of bailor's steel are damaged in bailee's warehouse during flood.  Court admits testimony from bailor's hydrologist concerning inadequacy of bailee's warehousing practices.  Admissibility reversed.  Hydrologist was qualified to testify about flood risk management but had no apparent training or experience in warehousing issues.

Glastetter v. Novartis Pharms. Corp., 252 F.3d 986 (8th Cir. 2001).  Woman takes medication to suppress postpartum lactation, suffers stroke, sues medication's manufacturer.  District court excludes causation testimony from plaintiff's two physician experts and awards summary judgment to defendant.  Exclusion affirmed.  Plaintiffs' physician experts offered differential diagnosis testimony, which is presumptively admissible unless scientifically invalid.  Differential diagnosis consists of two steps: first, "ruling in" all scientifically plausible causes of patient's condition, and second, "ruling out" least plausible causes until only most likely cause remains.  Physicians here lacked scientific basis to "rule in" defendant's medication as potential cause.  Their opinions on causal association between medication and stroke were based largely on case studies, and causal attributions based on case studies must be viewed with caution.  Experts did show temporal relationship between ingestion of medication and stroke, but mere temporal association is insufficient, by itself, to show causation.  Fact that some ergot alkaloids cause vasoconstriction and vasospasm did not establish that this medication could do so, because even minor variations in molecular structure can radically alter substances' properties.  Plaintiffs' experts' "rechallenge" and "dechallenge" data may be more probative than ordinary case study reports, but district court did not abuse discretion in discounting these.  And experts did not offer sufficient basis for extrapolation from animal studies.  Not only was each of these bases insufficient to "rule in" medication as potential cause of stroke; evidence was also insufficient to do so in the aggregate.  Plaintiffs complain that district court erred in requiring epidemiological proof.  If district court had done so, reversal would be likely, because epidemiological proof is not necessary to support causation under Daubert.  But district court imposed no such requirement. 

United States v. Peoples, 250 F.3d 630 (8th Cir. 2001), cert. dism'd, 543 U.S. 1042 (2005).  At trial of two men charged with aiding and abetting murder of federal witness, FBI agent testifies re meaning of words and phrases used by defendants in recorded conversations, based on information acquired by agent in subsequent investigation.  District court expresses uncertainty about admissibility of testimony as lay opinion under Fed. R. Evid. 701 and permits testimony only as "snippets of early argument from the witness stand," not as evidence.  Admissibility reversed.  Prosecution did not seek to offer agent as expert under Fed. R. Evid. 702 and therefore may not invoke Rule 702 on appeal.  As for admissibility of testimony as lay opinion under Rule 701, agent did not participate in conversations, observe conversations as they occurred, or possess personal knowledge of facts being related in conversation.  Rather, agent's interpretations were based on after-the-fact investigation.  Law enforcement officers are often qualified to opine on meaning of slang, street language, and language of drug trade, but what is essentially expert testimony may not be admitted under guise of lay opinion.  Such substitution subverts criminal discovery provisions and reliability requirements under Daubert.   

Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001).  In defending refusal to fund sex-change surgery under Medicaid, Iowa offers testimony from board-certified psychiatrist on effectiveness and necessity of sex reassignment surgery.  District court excludes such testimony and permits psychiatrist to testify only re general psychiatric principles and diagnostic criteria, because psychiatrist's specific opinions on gender identity disorder are beyond psychiatrist's expertise and are based on mere literature review.  Exclusion affirmed.  Psychiatrist had previously examined only one patient with gender identity disorder, some eight years before trial, and his opinions on patient sub judice were founded only on literature review, review of patient's file, and two interviews.  Moreover, psychiatrist's opinions differed with sources acknowledged by psychiatrist to be respected medical authorities.  Trial court could properly conclude that psychiatrist lacked expertise to support testimony specifically relating to treatment of gender identity disorder. 

Children's Broad. Corp. v. Walt Disney Co., 245 F.3d 1008 (8th Cir. 2001).  ABC Radio agrees to conduct advertising sales, affiliate development, and consulting for Children's Broadcasting, but exercises its right to terminate after Disney acquires ABC and wants to launch its own children's radio venture.  Children's brings claims against Disney and ABC for fraud, breach of contract, breach of fiduciary duties, and misappropriation of trade secrets.  Jury awards $20 million to Children's, finding breach of contract by defendants as to advertising sales and confidentiality and misappropriation of trade secrets as to Children's advertiser lists, advertising rates, and programming methods.  Trial court awards judgment as matter of law and conditional new trial to defendants for want of sufficient evidence on causation and damages, because testimony from Children's accountant expert Stephen Willis should have been excluded and (at least as to damages) tainted jury's findings.  As to causation, Willis's testimony: (a) was mere speculation; (b) lacked any credible supporting analysis; (c) was based on no facts; (d) afforded no evidence that any particular breach or misappropriation directly caused any specific damage; and (e) failed to address other factors that could also have limited Children's profitability.  As to damages, Willis's $177 million estimate was based on unreliable financial projections that assumed long-term relationship between ABC and Children's and failed to reckon with impact of Disney's competition.  Judgment reversed and cause remanded for new trial on damages (but "exclusion" affirmed)Judgment for defendants as matter of law was unwarranted.  As to causation, Willis testified [competently, even though Willis's "theory of causation was questionable"?] that ABC's failure to exercise reasonable efforts in advertising sales led to decline in Children's revenues.  Other witnesses also testified to causation, and internal ABC documents likewise supported it.  Viewing entire record in light most favorable to Children's, jury could reasonably find causation.  As to damages, Willis admitted that adjustment of his $177 million estimate would be necessary if other reasons for decline in Children's revenue were in play.  Ample additional evidence was also probative of damages.  Jury's award need not precisely match estimates in evidence if award is within parameters established by evidence.  As for new trial, as to damages, Willis used uncontroversial accounting methods (discounted cash flow), but failed to take non-wrongful Disney competition into account.  Willis also testified that any breach of contract, any use of confidential information, and any misappropriation of trade secrets would have caused exactly the same damages.  Children's argues that Daubert sanctions only evaluation of experts' methods, not their conclusions, but Joiner teaches that methods must be linked to conclusions by stronger ties than expert's mere ipse dixit.  Willis's conclusions remained unaltered even though several claims had not survived.  District court did not abuse discretion in concluding that Willis's testimony should have been excluded.  Jury award of $20 million in damages for breach of contract terminable on 90 days' notice suggests jury gave weight to Willis's estimate, and new damage trial is therefore appropriate on theory that his $177 million estimate tainted first trial.

United States v. Calderin-Rodriguez, 244 F.3d 977 (8th Cir. 2001).  Criminal defendant is convicted based partly on digitally enhanced audio tape.  Admissibility affirmed.  Eighth Circuit has previously ruled that tape recordings are admissible without expert testimony on how tape recorders work.  No basis exists for distinction as to use of computer program for digital enhancement, which simply improves quality of recording.  If enhancement technology were incorporated as part of tape recorder itself, resulting tape would be admissible.  No reason to vary result where separate enhancement device is used.  Necessary foundation was laid by operator's testimony that he had used same computer enhancement software on previous occasions.

Young v. City of St. Charles, 244 F.3d 623 (8th Cir. 2001).  Police officer discharged for submitting altered documents brings 1983 action alleging various violations of procedural and substantive due process, including administrative appeal board's consideration of handwriting expert's testimony, which police officer alleged did not satisfy DaubertDismissal affirmed.  City afforded constitutionally adequate hearing and did not abridge any substantive due process rights via any conduct rising to requisite level of irrationality or outrageousness.

J.B. Hunt Transp. v. Gen. Motors Corp., 243 F.3d 441 (8th Cir. 2001).  Tractor trailer rear ends Camaro, which then also collides with Toyota Corolla and Ford Crown Victoria, catastrophically injuring Camaro passenger.  Truck company settles with injured passenger, then sues Camaro's manufacturer, as well as manufacturer of Camaro's seats,  for contribution.  Defendants move before trial to exclude, as unsupported by evidence, testimony from truck company's accident reconstructionist in support of theory that truck struck Camaro only once, making for total of three impacts with Camaro (one by truck, one by Toyota, one by Ford).  Under impression that trucking company will offer eyewitness testimony supporting its three-impact theory, district court denies motion.  At trial, however, trucking company's expert testifies he cannot reconstruct accident scientifically because he lacks sufficient information.  After jury is excused, expert explains that his three-impact theory is based not on eyewitness evidence but rather on review of photographs of paint scratches on vehicles.  District court then excludes reconstructionist's testimony, because uncontradicted eyewitness evidence is that truck struck Camaro not once but twice.  District court also excludes testimony from trucking company's "foamologist" re causal relationship between foam in car seat and passenger's injuries.  (Per district court: "He is not an expert in foam, and as best I can tell, there is no science of foam.")   Jury finds for defendants.  Exclusion affirmed.  Accident reconstructionist conceded his testimony was speculative, and analytical gap between data and reconstructionist's opinion was simply too large (citing Joiner).  Testimony from "foamologist" was also properly excluded, because: (1) his testimony was premised on reconstructionist's disallowed three-impact testimony; (2) "foamologist" had no formal training or course work in foam ("nor do we know of any that exists in this area"); and (3) "foamologist's" testimony was not derived from any scientifically reliable methodology.  District court was entitled to choose among reasonable methods for excluding "expertise that is fausse and science that is junky" (quoting Justice Scalia's concurrence in Joiner).

Giles v. Miners, Inc., 242 F.3d 810 (8th Cir. 2001).  Girl gets frostbite when attempting to retrieve popsicle from grocery store freezer.  Parents sue freezer manufacturer on design defect theory.  District court excludes proffered testimony from engineer [?] that mesh safety guard would prevent hands from sticking to sides of freezer's interior.  Exclusion affirmed.  Plaintiffs argue that district court erred in applying Daubert factors because expert's testimony involved engineering principles, not novel scientific theories.  But district courts have wide discretion to determine whether Daubert factors are appropriate indicia of reliability in each particular case.  Expert testimony on defective design has been excluded in other cases where reliability was found wanting.  Here, expert apparently did not consider how mesh would interact with freezer's proper functioning.  Also, mesh would apparently violate government and industry design standards, which require sanitary and easily cleanable surfaces that do not allow growth of mold and bacteria.

United States v. Jordan, 236 F.3d 953 (8th Cir.), cert. denied, 534 U.S. 897 (2001).  Police officer is permitted to testify to modus operandi of drug dealers in criminal trial.  Admissibility affirmed.  Reliability of officer's testimony was grounded in her extensive experience and training.  Defendant says officer's testimony contradicted DEA literature, but that would not necessarily make her testimony inadmissible.  In any event, DEA literature to which defendant adverts was not part of record in district court and may not be considered for first time on appeal.

Turner v. Iowa Fire Equip. Co., 229 F.3d 1202 (8th Cir. 2000).  Fire extinguishing system at delicatessen accidentally activates during inspection, releasing large quantities of sodium bicarbonate (baking soda).  Exposed employee develops respiratory symptoms later diagnosed as hyperreactive airway disorder.  District court excludes causation testimony from treating physician and awards summary judgment to defendant.  Exclusion affirmed.  Proper differential diagnoses satisfy Daubert, but plaintiff's physician admitted he was more interested in identifying her condition than in ascertaining its cause, and he did nothing to rule out alternative causes.

United States v. Jolivet, 224 F.3d 902 (8th Cir. 2000).  Prosecution's handwriting analyst testifies in mail fraud trial that handwriting on documents was probably defendant's.  Admissibility affirmed.  Because no objection to testimony was raised at trial, review is for plain error.  Because prosecution's expert was particularly experienced and well trained in handwriting analysis, district court did not abuse discretion in finding testimony reliable. 

United States v. Bahena, 223 F.3d 797 (8th Cir. 2000), cert. denied, 531 U.S. 1181 (2001).  In drug conspiracy trial, defendant offers voice spectography testimony to show that voice on several wiretapped phone conversations was not his.  District court excludes testimony after holding Daubert hearing.  Exclusion affirmed.  Defendant argues that Daubert should not apply to criminal proceedings, but it does.  Defendant also argues that district court abused its discretion in not recognizing defendant's Sixth Amendment right to offer witnesses in defense, but defendant did not raise this constitutional argument in district court.  In any event, under Scheffer, it is not violative of Sixth Amendment to exclude testimony for legitimate evidentiary reasons.  As for reliability of testimony, Eighth Circuit might not reach same conclusion as district court, and is not holding that voice spectography is never admissible.  But defendant's expert had no formal training, seemed shaky on technical questions, belonged to no professional organizations, subscribed to no professional journals, admitted that his methods did not conform to recognized standards, and committed methodological faux pas in not using original tapes.  District court did not abuse discretion in concluding that witness was unqualified.

Kincade v. U.S. Elec. Motors, Inc., 219 F.3d 800 (8th Cir. 2000).  Company hires contractor to build rice drying facility, with company supplying equipment and maintaining control of worksite.  Company employee is injured while working on unguarded tail pulley assembly and sues contractor.  On contractor's motion for summary judgment, employee tenders affidavits from two putative experts who testify that contractor owed duty of care to employee.  District court disregards affidavits and awards summary judgment.  AffirmedDaubert issues need not be addressed, because existence of duty is question of law, not fact.

EFCO Corp. v. Symons Corp., 219 F.3d 734 (8th Cir. 2000).  In trade secret misappropriation case, plaintiff's expert economist testifies to damages, extrapolating from sales and financial data provided by both parties.  Admissibility affirmed.  District court conducted two-day Daubert hearing and properly found expert qualified by virtue of Ph.D. in economics and extensive experience in forensic economics.  Defense expert favored different theory from plaintiff's, but plaintiff's expert's methods were not so unreliable as to require exclusion, and district court did not abuse discretion in permitting testimony from both parties' experts to go to jury.

DiCarlo v. Keller Ladders, Inc., 211 F.3d 465 (8th Cir. 2000).  Man brings products liability claim against manufacturer of stepladder from which he fell.  Jury returns verdict for manufacturer after hearing from defendant's engineering expert.  Admissibility affirmed.  Plaintiff contends testimony from defense expert was unreliable because expert was biased, but district court properly left questions of bias and credibility for jury.

Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir.), cert. denied, 531 U.S. 979 (2000).  Twenty-four recreational boat manufacturers bring Sherman Act and Clayton Act claims against Brunswick, which manufacturers stern drive engines.  Plaintiffs contend that Brunswick violated antitrust laws by offering market-share discounts and through program of acquisitions.  Plaintiffs' economist relies on Cournot model of economic theory, which posits that firms maximize profits by taking observed output of other firms as given and equating their own marginal costs and marginal revenues on that assumption.  Economist applies this model by positing hypothetical market in which Brunswick has one competitor and concluding that any market share by Brunswick exceeding 50% must result in overcharges stemming from anticompetitive conduct.  Jury returns verdict for plaintiffs.  Admissibility reversed.  District court appears to have admitted economist's testimony based in part on plaintiffs' counsel's assurances that economist's model would differentiate effects of lawful competitive conduct from effects due to unlawful antitrust violations, but economist's model did not do so and furthermore departed from market realities.  Economist failed to reckon, for example, with plaintiffs' purchase of Brunswick motors in excess of amounts required to obtain market-share discounts.  It may be, as district court concluded, that Brunswick did not challenge theoretical basis of Cournot model itself, but Daubert objections may legitimately be founded on misapplication of accepted economic principles to facts of case.  Moreover, even assuming admissibility of economist's testimony, plaintiffs established neither antitrust injury nor causation.  Judgment as matter of law should be entered for Brunswick (citing Weisgram).

United States v. Withorn, 204 F.3d 790 (8th Cir. 2000).  In trial for rape on Indian reservation, certified nurse midwife testifies that victim's overall injuries were consistent with victim's description, during rape exam, of physical assault.  Admissibility affirmed.  Expert had extensive medical education and training, including training in obstetrics and gynecology and in conducting examinations of rape victims.  There is nothing unusual about permitting expert testimony by certified nurse midwives in rape prosecutions and district court did not abuse discretion in doing so here.

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