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Fifth Circuit (last Shepardized on 3/18/06)

Explanation of the statistics
Admissibility affirmance rate:     .840     (21/25)
Exclusion affirmance rate:      .913     (21/23)
Overall affirmance rate:    .875     (42/48)

Hafstienn v. BMW of N. Am., LLC, No. 05-20424 (5th Cir. Aug. 17, 2006) (unpublished).  BMW 323i collides with GMC truck, rolls over, splits apart, and fatally ejects six-year-old child.  To show causation in their products liability suit against BMW, child's surviving family members offer crash-test evidence and three experts: (1) Thomas Grubbs, mechanical engineer and accident reconstructionist, whose testimony would explain details of plaintiffs' crash test; (2) metallurgist "Dr. McLellan," who proposes to testify that BMW's defective spot welds made it less crashworthy; and (3) osteopath and biomechanical expert "Dr. Nicodemus," who proposes to opine that child died from blow to head on hitting pavement, not from any injury sustained while still inside car.  After three-day hearing, district court grants BMW's motion to exclude crash-test evidence and testimony from all three experts.  Family stipulates that district court's ruling leaves it without sufficient evidence to show causation, and summary judgment is awarded to BMW.  Exclusion affirmed.  District court legitimately excluded evidence of crash-test, because test used Volkswagen Passat, whose extensive dissimilarities with BMW 323i render test irrelevant.  As for experts: (1) District court excluded Grubbs as unqualified and because he relied on inaccurate data.  Those grounds need not be reached on appeal, because given district court's proper exclusion of plaintiffs' crash-test evidence, testimony from Grubbs explaining that crash test would not have assisted trier of fact in any event.  (2) Nor need admissibility of McLellan's testimony be reached on appeal, because he testified he did not know whether properly constructed BMW 323i would have split apart in accident.  (3) District court ruled that Nicodemus was unqualified and his testimony unreliable, but those issues need not be reached, because even if his testimony were taken as true, plaintiffs' evidence does not establish that any defect in BMW 323i caused child's ejectment.

Cleveland v. United States, 457 F.3d 397 (5th Cir. 2006).  Patient presents in ER with flu-like symptoms, slightly elevated respiration rate, and history of diabetes.  Patient neglects to mention history of congestive heart failure (which does appear, however, in patient's full medical file).  Physician's Assistant (PA) examines patient, concludes patient needs no x-ray or other tests, and diagnoses upper respiratory infection, bronchitis, and sinusitis.  Without consulting attending physician or reviewing patient's file, PA prescribes meds and sends patient home.  Patient returns on following day, is diagnosed with pneumonia resulting from congestive heart failure, goes into respiratory and cardiac arrest, lapses into coma, and dies some years later.  His wife brings claim for medical malpractice.  To show that PA and other ER employees breached duty of care, she offers expert opinions from: (1) certified legal nurse consultant Wanda Poret, who opines that defendants violated duty of care by failing to take chest film; (2) Dr. Jay Piland, physician who treated patient in ICU after patient fell into coma, who opines that defendants should have run further tests; (3) Dr. Joe Rankin, radiologist, who testifies that he is not qualified to opine on whether physicians should order chest x-rays for patients with heart conditions, though in his experience they generally do; and (4) Dr. Carlos Cuenca, expert in internal medicine, who opines that defendants should have reviewed full medical file and run chest x-rays.  Defendants object to testimony from all four witnesses, arguing that nurses, internists, and radiologists are not qualified to opine on standard of care for ER physicians.  They also object that Dr. Piland prepared no expert report.  District court: (1) excludes Poret's testimony without opinion; (2)rules that Dr. Piland is qualified as internist, but that his testimony goes beyond proper scope for treating physician and is unreliable under Daubert; (3) issues no formal admissibility ruling on Dr. Rankin; and (4) issues no formal admissibility ruling on Dr. Cuenca.  After bench trial, district court finds for defendants, noting that plaintiff produced no expert testimony from any emergency specialist.  Exclusions affirmed.  Louisiana law governs in this FTCA action.  (1) Under Louisiana law, nurses (like Poret) are not competent to testify to breach of care by physicians, or PA's (by extension).  (2) Absent testimony that standards of care for internists and emergency specialists can be equated, district court did not abuse its discretion in holding Dr. Piland unqualified.  (3) To extent that district court excluded testimony from Dr. Rankin, it acted within its sound discretion on similar grounds.  (4) Dr. Cuenca does have some ER experience, but Fifth Circuit need not decide whether district court abused its discretion in disregarding his testimony, because district court was entitled to give greater weight to defendants' expert. 

United States v. Garza, 448 F.3d 294 (5th Cir. 2006).  Defendant in meth trial offers forensic document examiner Linda James to testify that signature of witness on defendant's confession and consent to search does not match known exemplars.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Expert admitted that examining original documents would be best practice, that she examined only copies, and that she did not know how many times they had been recopied.  No abuse of discretion. 

Vandiver v. Ohio River Co., LLC, No. 05-60533 (5th Cir. Mar. 30, 2006) (unpublished).  Man is injured in fall when barge lids separate after their latches fail.  He brings products suit against manufacturer.  On summary judgment, he offers testimony from mechanical engineer ("Dr. Sparks"), who says lids were defectively designed, and from human factors expert ("Dr. Fisk"), who says product did not carry adequate warning.  District judge excludes their testimony and awards judgment to manufacturer.  Exclusions affirmed.  Neither expert performed adequate tests to validate testimony.

Stolt Achievement, Ltd. v. Dredge B.E. Lindholm, 440 F.3d 266 (5th Cir.), amended on rehearing, 447 F.3d 360 (5th Cir. 2006).  Chemical tanker and dredge boat collide.  Owners of tanker sue in admiralty.  At trial, dredge boat owners rely on testimony from master mariner David Scrunton.  Trial court apportions fault equally and awards damages accordingly.  Admissibility affirmed.  Tanker owners complain that expert was not qualified to testify on specific hydrodynamic effects associated with collision.  But he did not do so.  He offered only general qualitative testimony on bow waves, based on his experience.  

Runnels v. Tex. Children's Hosp. Select Plan, No. 04-20825 (5th Cir. Jan. 26, 2005) (unpublished).  Title VII defendant in race discrimination suit moves for summary judgment, relying in part on statistical report from psychologist Dr. P.R. Jeanneret and on report on defendant's organization table and job descriptions from biomedical engineer Dr. Joseph Dyro.  District court accepts magistrate's recommendation and awards summary judgment to defendant.  Admissibility affirmed.  Plaintiffs complain that Jeanneret's report did not list all documents he reviewed, but data used in his analyses were set forth.  District court did not abuse discretion in finding that he employed standard and reliable statistical methods.  Defendants also complain that both experts opined on ultimate questions, but that is not prohibited under current evidentiary rules.

Maxwell v. Ford Motor Co., No. 04-60803 (5th Cir. Dec. 28, 2005) (unpublished).  Trial court excludes testimony from plaintiffs' expert Donald Phillips in products liability action against auto manufacturer.  Trial court meanwhile permits defense expert Robert Rucoba to testify in reliance on federal government statistics.  Jury finds for manufacturer.  Exclusion affirmed; admissibility affirmed.  No abuse of discretion.  As regards Phillips: district courts have considerable leeway in determining how to assess reliability.  It is not necessary for all Daubert factors to be addressed.  Plaintiff had opportunity to present full expert testimony on her principal defective design theory, and trial court voiced doubts that Phillips could maintain his objectivity.  As regards Rucoba: experts may rely on otherwise inadmissible data if of a type reasonably relied upon by other experts in field. 

United States v. Mojica, No. 04-10802 (5th Cir. Dec. 7, 2005) (unpublished).  Narcotics agent testifies in drug prosecution that "tamales" was used as code word for drugs, as opposed to money.  Jury convicts.  Admissibility reversed.  Law enforcement agents may testify on drug jargon, but their opinions must be based on sufficient facts or data.  Because there appears to have been little or no support for agent's testimony, district court may have abused its discretion in admitting it.  But any error was harmless.

McNabney v. Lab. Corp. of Am., No. 05-50030 (5th Cir. Nov. 9, 2005) (unpublished).  Malpractice plaintiff alleges that her reflex sympathetic dystrophy (RSD) was caused by laboratory employee's attempt to draw blood from plaintiff's left arm.  To show causation on summary judgment, she offers testimony from her treating neurologist, "Dr. Gazda," and from her retained expert, neurologist "Dr. Malkin."  District court excludes Dr. Malkin's testimony and does not consider Dr. Gazda's in awarding summary judgment to lab.  Exclusion affirmed.  Neither of plaintiff's experts was aware of plaintiff's medical history, which included several surgeries to her left wrist at age 14, multiple years of intravenous drug use, serious fall during 1990's, and severe injury to left shoulder in 2001 that caused many symptoms (aching, stiffness, numbness, tingling) attributed by plaintiff to lab's blood test.  Physician need not conduct exhaustive search to rule out every other conceivable cause, but expert must be aware of plaintiff's pertinent medical history.

Bell v. Ascendant Solutions, Inc., 422 F.3d 307 (5th Cir. 2005).  To oppose class certification in securities case, defendants argue that reliance will present individual issues, because plaintiffs cannot rely on "fraud on the market" theory, since stock did not trade in efficient market.  Plaintiffs respond with expert report opining that market for stock was in fact efficient.  District court excludes plaintiffs' expert testimony on market efficiency as unreliable, finds insufficient alternative evidence to support market efficiency, and denies class certification.  Plaintiffs take interlocutory appeal from adverse decision on class certification pursuant to Fed. R. Civ. P. 23(f)Affirmed.  District court's order excluding plaintiffs' expert testimony does not fall within scope of interlocutory appellate jurisdiction under Rule 23(f), and district court did not abuse discretion in finding other evidence of market efficiency insufficient.  [See our commentary.]

United States v. Hernandez-Rodarte, 04-40887 (5th Cir. June 23, 2005) (unpublished).  Criminal defendant raises no objection at trial to government's fingerprint identification testimony.  Jury convicts.  Admissibility affirmed.  No plain error.

United States v. Dixon, 413 F.3d 520 (5th Cir. 2005), cert. granted, 126 S. Ct. 1139 (2006).  In support of her duress defense, criminal defendant offers testimony on battered women's syndrome from Dr. Toby Myers, domestic violence expert.  Trial court excludes testimony as irrelevant and jury convicts.  Exclusion affirmed.  Witness's testimony went to defendant's subjective state of mind, whereas test for duress defense is defined objectively, by reference to whether person of reasonable firmness in defendant's position would have been able to resist engaging in criminal conduct. 

El Aguila Food Prods., Inc. v. Gruma Corp., No. 04-20125 (5th Cir. May 17, 2005) (unpublished).  At trial of antitrust claim involving tortilla market, plaintiffs offer testimony on damages from expert Kenneth McCoin and on causation and antitrust injury from expert Gregory Gundlach.  Trial court excludes testimony from both, dismisses jury, and awards judgment to defendants.  Exclusions affirmed.  McCoin's damage model simply assumed without support that plaintiffs' firms would have earned average industry profit margin, without tying lost profits to specific conduct of defendants.  Gundlach's opinions were permissibly excluded as abstract propositions not sufficiently grounded in facts of case.

Shields v. Dretke, No. 04-70008 (5th Cir. Feb. 17, 2005) (unpublished), cert. denied, 126 S. Ct. 28 (2005).  Habeas petitioner alleges ineffective assistance in underlying state murder trial, arguing that counsel should have challenged reliability of testimony by prosecution psychiatrist, Dr. Edward Gripon, re petitioner's future dangerousness.  District court denies relief.  Affirmed.  It is troubling that psychiatrist did not interview petitioner, but no clearly established law prevents psychiatrist from forming opinion based on case records and psychiatric records.  Petitioner has not established that he was prejudiced, where counsel chose to rely on rebuttal witness to refute expert's testimony rather than interpose futile Daubert objection.

Guy v. Crown Equip. Corp., 394 F.3d 320 (5th Cir. 2004).  Worker's left leg is crushed in forklift mishap.  To show defective design in her suit against forklift manufacturer, she offers testimony from engineer John Lohman.  Trial court excludes testimony and grants judgment as matter of law following close of plaintiff's case.  Exclusion affirmed.  Expert merely relied on broad ideas and conceptual sketches and never presented specific alternative design.

Burleson v. Tex. Dep't of Crim. Justice, 393 F.3d 577 (5th Cir. 2004).  Prisoner blames his throat and lung cancer on inhalation of radioactive thorium dioxide emitted by welding tools in prison workshop.  In support of his section 1983 claim alleging cruel and unusual punishment, he offers causation testimony from toxicologist Dr. Arch Carson.  Magistrate judge grants defendants' motions to exclude toxicologist's testimony and for summary judgment.  Exclusion affirmed.  Toxicologist says he performed no dose assessment because he relies on "hot spot" theory, according to which "the primary risk factor for cancer is the local microscopic dose of radiation that is received by the one cell that transforms into cancer, not the total dose of radiation to the body."  But magistrate permissibly found scientific support for that theory to be weak.  Meanwhile, toxicologist offered no epidemiologic studies showing statistically significant link between thorium dioxide exposure in dust or fumes and plaintiff's type of lung and throat cancer.  No abuse of discretion.

United States v. Hicks, 389 F.3d 514 (5th Cir. 2004), cert. denied, 126 S. Ct. 1022 (2006).  Defendant is charged with possession of firearm and ammunition while subject to domestic restraining order.  Prosecution offers testimony from ballistics expert John Beene, who opines that shell casings found in field were fired from rifle found on defendant's premises.  Jury convicts.  Admissibility affirmed.  Trial court permissibly found witness to be qualified based on his extensive experience.  Defendant complains that witness could not say whether technique he employed had been tested, was validated in peer-reviewed literature, had been studied for error rate, or was subject to objective standards.  But witness testified that he relied on authoritative literature from the Association of Firearm and Tool Mark Examiners, and that he followed well-accepted procedures whose error rate approaches zero.  No abuse of discretion.

United States v. Lewis, No. 04-10102 (5th Cir. Sept. 22, 2004) (unpublished), vacated on other grounds, 125 S. Ct. 1610 (2005).  District court excludes exculpatory polygraph in criminal proceeding.  Exclusion affirmed.  "There was no plain error, as the record indicates that [the defendant] failed to establish that the examiner's testimony was relevant and that polygraph exams were accepted in the scientific community."

Primrose Operating Co. v. Nat'l Am. Ins. Co., No. 03-10861 (5th Cir. Aug. 23, 2004).  Oil company sues insurer for breach of duty to defend against environmental suit.  At trial, company calls lawyer Chris Boyer to testify to reasonableness of attorney's fees paid by company.  Trial court admits testimony and jury finds in oil company's favor.  Admissibility affirmed.  Insurer contends Boyer lacked acquaintance with sufficient facts to ground his opinion, but Boyer has substantial experience in oil and gas industry matters and was acquainted with details of underlying litigation from having represented oil company's co-defendant.  Insurer also complains that Boyer furnished no report, but that omission was harmless, as insurer did receive notice via letter of Boyer's identity and probable opinion, as well as his resume and copies of underlying invoices.

Wattle v. Barko Hydraulics L.L.C., No. 03-60979 (5th Aug. 5, 2004) (unpublished).  Logging machine catches fire.  Purchaser sues manufacturer for breach of warranty.  District court overrules purchaser's Daubert objection to testimony from manufacturer's expert, Dan Olsen, who opines on causes and origins of fire.  Jury finds for manufacturer and purchaser appeals.  Admissibility affirmed.  District court permissibly admitted testimony based on expert's professional background and methodology.  Purchaser's contrary arguments conflate report's reliability with its correctness.

United States v. Padilla, No. 03-41371 (5th Cir. Aug. 4, 2004) (unpublished).  Defendant in narcotics trial objects that testimony from one of prosecution's experts is inadmissible under Daubert.  District court overrules objection and jury convicts.  Affirmed.  Defendant's argument is asserted only in conclusory fashion and is deemed abandoned on appeal due to inadequate briefing.

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

Brennan's, Inc. v. Dickie Brennan & Co., 376 F.3d 356 (5th Cir. 2004).  Operators of restaurant sue for breach of contract and trademark infringement when other family members open competing restaurants under same family name.  To show lost profits, plaintiffs offer expert report from William Legier, who computes plaintiffs' historical patronage as percentage of convention center attendance and compares actual versus projected market shares.  Defense expert files responsive report suggesting that Legier did not employ correct convention data.  Legier files supplemental report relying on data suggested by defense expert.  Defendants seek to exclude supplemental report as unreliable and on other procedural grounds, but district court admits testimony and jury awards damages to plaintiffs.  Admissibility affirmed.  Defendants complain that supplemental report was unreliable because it estimated damages at just half the level suggested in expert's original report, but this change was attributable to application of expert's same methodology to adjusted data.  No abuse of discretion.

Martinez v. Dretke, No. 03-51067 (5th Cir. May 24, 2004) (unpublished), cert. denied, 543 U.S. 1068 (2005).  Habeas petitioner alleges ineffective assistance, claiming that defense counsel should have mounted more vigorous challenge to prosecution expert's use of Hare Psychopathy Checklist to predict future dangerousness during sentencing phase of underlying capital trial.  District court denies habeas relief.  Affirmed.  Trial court devoted half-day to defense counsel's Daubert challenge.  Although challenge did not succeed, defense counsel were so well prepared that trial judge complimented them on their efforts.

Red v. Baum (In re Red), No. 03-50642 (5th Cir. May 3, 2004) (unpublished), cert. denied, 74 U.S.L.W. 3471 (U.S. 2006).  Man drives auto into bar, killing two.  When decedents' relatives bring wrongful death action, man files for bankruptcy.  Was vehicular mishap intentional, barring discharge, or did it result from episode of syncope, as driver contends?  In bench trial, bankruptcy court admits testimony from wrongful death plaintiffs' medical expert, who opines that person suffering episode of syncope could not depress accelerator.  Bankruptcy court denies discharge and district court affirms.  Driver appeals.  Admissibility affirmed.  Driver's only colorable argument is that expert was unqualified, but expert's testimony simply combined his acknowledged medical expertise with common knowledge about driving cars.  Alternatively, other evidence supported bankruptcy court's verdict, and so any error would be harmless.

Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875 (5th Cir. 2004).  In suit against auto insurer, plaintiff misses deadline for designating treating physician as expert.  District court excludes testimony from physician.  Exclusion affirmed.  Plaintiff correctly notes that treating physicians are not required to prepare reports, but they must nevertheless be designated as experts.  Exclusion of testimony was permissible sanction.

Dresser-Rand Co. v. Virtual Automation, Inc., 361 F.3d 831 (5th Cir. 2004).  In trade secrets case, plaintiff claims two elements of damage: development costs and lost profits.  On latter front, plaintiff offers expert testimony from industry expert Dr. Meherwan Boyce and accountant Thomas Jollay, who estimate lost profits at $25 million.  District court admits testimony over defendants' objection.  Jury finds for plaintiff and awards $2.2 million.  Affirmed.  Even if district court erred in refusing to exclude testimony under Daubert, error would be harmless, because size of verdict indicates that jury rejected plaintiff's entire lost profits claim and awarded only development costs.

United States v. Wright, No. 03-20426 (5th Cir. Feb. 16, 2004) (unpublished).  On trial for making false statements to FBI, offers Dr. Walter Quijano to testify re interrogation techniques employed in defendant's initial confession.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Circumstances of defendant's initial confession were never presented to jury, and so expert's testimony failed Daubert's relevancy prong.  Defendant also objects for first time on appeal that FBI agent gave testimony beyond scope of his expertise, but given overwhelming evidence against defendant, there was no plain error.  

Vogler v. Blackmore, 352 F.3d 150 (5th Cir. 2003).  Woman and child are killed in vehicular accident.  Family members bring wrongful death suit.  Thanatologist and "grief expert" Dr. Phyllis Silverman testifies for plaintiffs.  Jury awards damages.  Admissibility affirmed.  Defendants have raised no proper challenge to witness's credentials, or to reliability of her testimony.  Defendants do question whether average juror would require expert testimony to understand family members' grief on loss of loved one, but testimony was relevant, and district court did not abuse its discretion in admitting testimony after weighing its probative value against its potential prejudicial effect.  Moreover, any error would be harmless, because other evidence supported jury's award.  

Dijo, Inc. v. Hilton Hotels Corp., 351 F.3d 679 (5th Cir. 2003).  Casino interests back out of hotel deal with real estate developers.  Developers sue for breach.  At trial, developers offer lay opinion testimony from Kerry Skinner, who served as their contact with their construction lender, that developers have suffered $8 million in lost profits.  Jury awards that amount.  Admissibility reversed.  It is true that lay opinion on lost profits is sometimes permitted, when offered by present or former officers or employees.  But despite her experience and advanced degrees, this witness was neither of those things, nor was she otherwise sufficiently acquainted with company's affairs to ground any lay opinion on lost profits.  Remanded for new trial on damages.

Winstead v. Ga. Gulf Corp., No. 02-31212 (5th Cir. Oct. 9, 2003) (unpublished).  Workers sue various defendants alleging injury as result of accidental chemical release.  To show causation, workers rely on preliminary reports from defendants' experts.  District court awards summary judgment.  Affirmed.  Defendants' preliminary expert reports were neither sworn nor verified, and therefore did not constitute competent evidence on summary judgment.

United States v. Tucker, 345 F.3d 320 (5th Cir. 2003).  Corporate official charged with securities fraud offers testimony from attorney and securities expert Joel Held on various subjects, including meaning of terms used in communications with investors.  District court excludes testimony and jury convicts.  Exclusion affirmed.  District court did not question expert's qualifications but ruled that various points from expert's testimony would not be helpful to trier of fact.  That conclusion was broadly correct, and any error was harmless.

United States v. Williams, 343 F.3d 423 (5th Cir.), cert. denied, 540 U.S. 1093 (2003).  Sheriff shoots unarmed suspect in back and is charged with criminal violation of federal civil rights laws.  Prosecution offers testimony from three eyewitness law enforcement officers who opine that shooting was unreasonable.  Jury convicts and defendant appeals.  Affirmed.  Although testimony from officers was offered as lay opinion, sheriff argues it should be treated as expert testimony because based on specialized knowledge, in which case testimony is inadmissible, sheriff says, because experts may not opine on defendant's state of mind under Fed. R. Evid. 704(b).  Sheriff did not raise this objection at trial, and so review is for plain error.  Sheriff's Rule 704(b) argument is unavailing, because even if testimony is treated as expert evidence, opinion on reasonableness of shooting does not relate to sheriff's state of mind.  True, admission of testimony was error under Rule 704(a), which bars testimony offering legal conclusions, but that error was harmless, because other evidence against sheriff was overwhelming. 

United States v. Fullwood, 342 F.3d 409 (5th Cir. 2003), cert. denied, 540 U.S. 1111 (2004).  Farmer submits fraudulent claims to federal Farm Service Agency (FSA) for crop disaster payments, claiming losses for acreage he did not plant.  Farmer moves to exclude testimony of government expert ("Dr. Brown"), who proposes to testify to acreage actually planted based on satellite imagery.  District court admits testimony.  Jury convicts.  Admissibility affirmed.  Expert was well-credentialed, and he produced sixteen articles from peer-reviewed scientific journals establishing that his techniques enjoy general acceptance and are in widespread use.  Eighth Circuit has upheld testimony from same expert in similar case.  See United States v. Larry Reed & Sons, 280 F.3d 1212 (8th Cir. 2002).

United States v. Gibbs, No. 02-50442 (5th Cir. Aug. 8, 2003) (unpublished).  Lay witness testifies in criminal proceeding that voice from wiretap is defendant's.  Admissibility affirmed.  Witness's opinion was based on prior acquaintance with defendant's voice and did not fall within scope of expert testimony under Fed. R. Evid. 702.  Moreover, Rule 901(b)(5) permits lay voice identification.

United States v. Ramos, No. 01-21250 (5th Cir. Aug. 4, 2003) (unpublished).  Criminal defendant offers expert to testify that voice on inculpatory audiotape was not defendant's.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Defendant did not establish that expert's testimony satisfied Daubert's requirements.  Even if exclusion of testimony were erroneous, it would have been harmless error, because other tapes undisputedly containing defendant's voice represented overwhelming evidence of guilt.

Tex. A&M Research Found. v. Magna Transp., 338 F.3d 394 (5th Cir. 2003).  Oceanographic research is delayed when shippers fail to deliver equipment to vessel in timely manner.  In suit against shippers, research foundation submits testimony from its vice-president, Richard McPherson, re cost of chartering vessel for three days during which no research could be performed.  District court excludes this portion of McPherson's testimony as speculative lay opinion, although it does award other damages.  Exclusion reversed.  Officers and directors of corporation may testify as lay witnesses re industry pricing and practices without qualifying as experts.  In any event, witness's testimony was not actually opinion testimony at all, since costs of lost ship time represent amounts actually paid by research foundation.  District court therefore erred in excluding testimony.   But error did not prejudice research foundation, because relevant losses represented unforeseeable and nonrecoverable consequential damages.

Stevenson v. E.I. DuPont De Nemours & Co., 327 F.3d 400 (5th Cir. 2003), mandate enforced, No. 04-40537 (5th Cir. June 27, 2005) (unpublished).  Landowners sue DuPont for trespass, alleging that airborne heavy metal particulates released from DuPont plant contaminated their properties and diminished their value.  Jury awards damages and district court denies DuPont's motion for judgment as matter of law.  Affirmed in part and reversed in part.  DuPont argues that plaintiffs' expert evidence was insufficiently reliable to sustain jury verdict on liability and damages.  Plaintiffs respond that DuPont waived this point by waiving its Daubert challenges before district court.  However, reliability of expert's testimony may go to sufficiency as well as admissibility.  Plaintiffs' expert evidence sufficiently established liability for trespass.  However, plaintiffs offered insufficient evidence to support damage award, and so new trial is necessary on that issue.

United States v. Green, 324 F.3d 375 (5th Cir.), cert. denied, 540 U.S. 823 (2003).  At defendant's trial for drug-related offenses, prosecution offers expert testimony on drug trafficking and money laundering from DEA agents Mark Lusco and Rudy Babin.  District court admits testimony and jury convicts.  Admissibility affirmed.  Defendant argues that experts' testimony should have been excluded for bias, because agents also participated in factual investigation of case.  Because this theory is raised only on appeal, district court's decision admitting testimony is reviewed only for plain error.  Agents who participated in investigation are not thereby barred from testifying as experts.  Defendant was free to attack agents' credibility on cross-examination, and did attack it in closing argument.

United States v. Griffin, 324 F.3d 330 (5th Cir. 2003).  In criminal trial involving fraudulent scheme to obtain federal tax credits for low-income housing, prosecution offers former director of state housing authority to testify to text of various state statutes and respond to hypothetical questions re their applicability.  Defendants object because witness is not lawyer and has not been qualified as expert.  District court permits testimony as lay opinion and jury convicts.  Admissibility reversed.  Lay witness was not qualified to testify on points of statutory interpretation, but error was harmless because testimony was cumulative.

Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581 (5th Cir.), cert. denied, 540 U.S. 825 (2003).  Industrial sweeper truck strikes and kills pedestrian.  Driver of truck admits smoking marijuana five or six hours earlier.  In wrongful death suit versus driver and others, plaintiff offers opinion of toxicologist Dr. Michael Evans that marijuana usage impaired driver's reaction time.  District court grants defendants' Daubert objection and strikes testimony, and jury returns verdict for defendants.  Exclusion reversed.  Toxicologist's testimony was supported by peer-reviewed literature and relied on generally accepted principles.  In concluding that testimony was inadmissible because it did not itself establish causal connection between marijuana ingestion and accident, district court erred.  Impairment of driver's reaction time was relevant, and expert testimony on that point would assist trier of fact.  Nor did absence of evidence on driver's precise dosage defeat admissibility.  Nor again did prejudicial impact of expert's testimony outweigh its probative value.  Remanded for new trial.

United States v. Rubio, 321 F.3d 517 (5th Cir. 2003).  Persons arrested for DWI and other offenses in Webb County, Texas, are encouraged to contact local bail bondsman, who has connections and can arrange for lenient treatment in exchange for cash.  In Hobbs Act prosecution, government offers testimony from economist [?] Dr. Robert Voz to show effects of lax DWI enforcement.  Admissibility affirmed.  Expert boasts extensive experience researching effects of DWI enforcement on law enforcement, drivers, and public in general.  Defendants complain that Dr. Voz improperly relied on nationwide studies without specifically investigating whether their findings held true in Texas.  But expert testified generally that weak enforcement is associated with increased DWI rates, resulting in more alcohol-related crashes, less safety, and less travel.  That testimony was relevant to element of crime (effect on interstate commerce), and defendants vigorously cross-examined.  No abuse of discretion.

Vargas v. Lee, 317 F.3d 498 (5th Cir. 2003).  In suit against truck driver and trucking company, plaintiff offers Dr. Edward M. Gaber, who opines that plaintiff's fibromyalgia was caused by trauma sustained in accident.  District court admits testimony and jury awards damages to plaintiff.  Admissibility reversed.  Fifth Circuit has previously held that expert testimony positing causal link between trauma and fibromyalgia is inadmissible under Daubert, and nothing has changed.  Studies cited by plaintiff expressly withhold judgment on causal connection.  Perhaps causal link will someday be scientifically established, but to date it has not been.  District court thus abused discretion in admitting expert's testimony, and case must therefore be remanded for recalculation of damages.

IQ Products Co. v. Pennzoil Products Co., 305 F.3d 368 (5th Cir. 2002), cert. denied, 538 U.S. 934 (2003).  Both IQ and Pennzoil market tire inflators (canned pressurized chemicals used for temporary repair of flat tires).  IQ sues Pennzoil under Lanham Act for failing to label its product "flammable," as allegedly required under Federal Hazardous Substances Act (FHSA), and also for allegedly representing, falsely, that Pennzoil's tire inflator is "non-explosive."   District court grants summary judgment on both claims, after excluding testimony from two IQ experts, Dr. Al E. Birdwell and (IQ CEO) Yohanne Gupta, re harm to IQ's business.  Exclusion affirmed.  FHSA affords no private right of action, directly or via Lanham Act, and so district court properly dismissed claims based on Pennzoil's failure to label its product as "flammable."  And even if district court erred in finding that IQ failed to present issue of genuine material fact re falsity of Pennzoil's representations that its tire inflators were "non-explosive," IQ's claim on this front would still founder for want of admissible proof of injury to business.  Both IQ experts testified on combined harm resulting from Pennzoil's labeling omission and "non-explosive" representations, and so with labeling issue properly resolved in Pennzoil's favor, district court did not err in finding their testimony irrelevant.  Moreover, neither IQ expert employed reliable methods.  E.g., neither expert conducted surveys, which are commonly used by market analysts to analyze effects of marketing techniques on consumer behavior.

Johnson v. Cockrell, 306 F.3d 249 (5th Cir. 2002), cert. denied, 538 U.S. 926 (2003).  Habeas petitioner argues it was ineffective assistance for counsel not to object to testimony on future dangerousness from state's psychiatric expert in capital phase.  Certificate of appealability denied.  Daubert did not undermine Supreme Court's holding in Barefoot v. Estelle that testimony re future dangerousness is admissible, and objection would have been futile, because Texas courts have repeatedly permitted such testimony.

Tyler v. Union Oil Co. of Cal., 304 F.3d 379 (5th Cir. 2002).  In age discrimination suit, employees offer statistical testimony from Dr. Blake Frank, industrial/organizational psychologist, who opines that Unocal employees over age fifty were more likely to be subject to adverse employment decisions.  Jury returns verdict for plaintiffs.  Admissibility affirmed.  Defendants' five specific methodological quarrels go to weight, not admissibility.  In particular, expert could permissibly create his own database from data supplied by Unocal, and did attempt to address factors other than age that might affect employment decisions.

Mathis v. Exxon Corp., 302 F.3d 448 (5th Cir. 2002).  Exxon franchisees claim Exxon overcharges them for gasoline under franchise agreement.  Franchisees rely in part on economist Barry Pulliam, who opines that Exxon's charges are at least four cents per gallon higher than what could be considered commercially reasonable.  District court denies Exxon's motion to strike, and Exxon does not renew objection at trial.  Jury returns verdict for franchisees.  Admissibility affirmed.  Exxon did not waive appeal of pretrial evidentiary ruling by failure to renew objection at trial, such renewal being unnecessary under Fed. R. Evid. 103(a), as amended in 2000, when the district court has made definitive pretrial rulings on motions to strike.  But expert was qualified and his opinions were admissible.  Exxon says expert's methods were unsophisticated, and that he should have conducted "competitive impact analysis" for each station to show that Exxon's price caused it to lose business.  But purpose of expert's testimony was not to isolate precise economic effect for each station, but rather to show that Exxon had set commercially unreasonable price.  Daubert analysis should not supplant trial on merits, and any defects in experts' methods could be addressed through cross-examination.

United States v. Gutierrez-Farias, 294 F.3d 657 (5th Cir. 2002), cert. denied, 537 U.S. 1114 (2003).  Man arrives at border in pickup, pulling tractor on flatbed trailer.  Border Patrol finds 309 pounds of marijuana in tractor tires.  At trial, DEA agent Robert Afanasewicz testifies as prosecution expert on drug smuggling, opining that persons found crossing borders with drugs in hidden compartments of vehicles generally know that drugs are there.  Jury convicts.  Admissibility reversed.  Rather than offering specialized knowledge to assist jurors in understanding facts of case, agent's testimony amounted to simple generalization.  Agent's opinion invited jurors to conclude that because persons in defendant's position are usually aware of their possession of drugs, defendant must have been aware himself.  Not only did this constitute forbidden opinion testimony on ultimate issue in case, but it was also expert testimony on mens rea in violation of Fed. R. Evid. 704(b).  But error was harmless in light of other evidence supporting conviction.

Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002).  Patient with osteoarthritic pain develops salmonella after his knee is injected with Synvisc (replacement synovial fluid made from rendered rooster combs).  In suit against Synvisc's manufacturer, plaintiff offers causation testimony from Dr. Chad Millet (patient's orthopedist) and Dr. Jeffrey Coco (infectious disease specialist).  District court strikes both physicians' testimony and grants summary judgment to defendant.  Exclusion affirmed; exclusion reversed.  Dr. Millet testified it was "as likely as not" that Synvisc injection was source of salmonella, but conceded he had no "scientific evidence" to support conclusion that it was more likely than not.  Thus even if Dr. Millet's testimony were assumed to be reliable, it would fail Daubert's relevancy prong.  As for Dr. Coco, district court excluded his testimony because Dr. Coco conducted no epidemiological study and discovered no reports of injectable knee products causing salmonella infections in his literature review.  But Dr. Coco explained why epidemiological studies would be inappropriate for rare or unique events such as this, and his failure to find other reports of infection after knee injections actually tends to negate defendant's theory that salmonella resulted from medical personnel's unsterile injection procedures (because if those procedures were plausible source of salmonella infection, other reports of such infections would be expected).  Dr. Coco properly relied on his considerable expertise in infectious diseases in ruling out other potential causes of infection.  His testimony should have been admitted, and summary judgment therefore should have been denied.   

Stahl v. Novartis Pharms. Corp., 283 F.3d 254 (5th Cir.), cert. denied, 537 U.S. 824 (2002).  Patient develops cholestatic hepatitis after his dermatologist prescribes Lamisil.  In products liability claim against manufacturer, district court awards summary judgment for defendant in partial reliance on affidavit from patient's treating physician stating that manufacturer's warning was clear and reasonably apprised him of risks.  Affirmed.  Plaintiff argues that treating physician is not expert in liver disease or adequacy of pharmaceutical warnings, and that district court should not have considered physician's affidavit without first conducting Daubert hearing.  But in testifying that warnings reasonably notified him of risks, physician was testifying to personal knowledge, not as expert.

Rodriguez v. Riddell Sports, Inc., 242 F.3d 567 (5th Cir. 2001).  Football player makes tackle, emerges in permanent vegetative state.  Mother sues alleging defective helmet design and introduces testimony from biomechanical expert that use of different foam in helmet would have reduced risk of subdural hematoma.  Defendant offers testimony that use of new foam was impracticable because helmets would be uncomfortable.  Admissibility questioned.  Remanding on other grounds, court does not reach question whether admitting plaintiff expert's testimony was abuse of discretion, but notes that district courts must articulate basis for admitting such testimony and that proponent bears burden of establishing reliability.

Kona Tech. Corp. v. Southern Pac. Transp. Co., 225 F.3d 595 (5th Cir. 2000).  Railroads agree to charge Chevron rates that are no higher than rates charged to Chevron's competitors "from same or related origins to same or related destinations."  At trial in contract dispute, former transportation consultant testifies for railroads that this contractual language carries specialized meaning in industry and refers to rail stations in groups described in National Rate Base Tariff.  Admissibility affirmed.  Use of experts to assist in ascertaining meaning of specialized industry terms is prudent, and this witness was qualified to offer such testimony here.

St. Martin v. Mobil Exploration & Producing U.S., Inc., 224 F.3d 402 (5th Cir. 2000).  Did oil companies' failure to maintain canal's spoil banks cause damage to vegetative mats in marshes on plaintiffs' land?  Landowners offer testimony from ecologist.  Admissibility affirmed.  Oil companies say only qualified hydrologist could opine on relevant issues.  But expert is experienced specialist in marshland ecology, and on vegetative mats in particular, and paid numerous visits to affected properties.  Oil companies also fault expert for not having published article re work in this case, but each marsh is different, and no expert could publish on each possible permutation of relevant factors, or on every marsh.

United States v. Wise, 221 F.3d 140 (5th Cir. 2000), cert. denied, 532 U.S. 959 (2001).  Members of organization seeking to liberate Texas from federal influence are tried, by feds, for conspiracy to use weapons of mass destruction.  Prosecution calls FBI agent who explains why botulism, rabies, and HIV fall within statutory definition of "biological agent."  Admissibility affirmed.  Agent was Biology Program Manager in Hazardous Materials Response Unit within FBI, held Ph.D. in human genetics, had done post-doctoral work on viral replication at Harvard Medical School, and had authored eleven or twelve relevant publications.  His testimony that relevant toxins were "biological agents" pertained to scientific knowledge and satisfied Daubert.  Defendants' contrary arguments are meritless.  Moreover, even if this testimony were inadmissible, district court's failure to exclude it would be harmless error.

United States v. Drones, 218 F.3d 496 (5th Cir. 2000), cert. denied, 531 U.S. 1151 (2001).  District court grants habeas relief on theory that defendant's counsel afforded inadequate assistance in not pursuing expert voice spectrography evidence to show that voice on tape was not defendant's.  Reversed.  Defendant's own expert in habeas proceedings testified that voice spectrography analysis did not rest on proven theoretical basis, and no federal decision post-dating Daubert has addressed admissibility of voice spectrography analysis (nor is that question reached here).  Given state of law at time of trial, it would be speculative to say that counsel's failure to pursue such evidence resulted in  exclusion of admissible evidence.  In any event, defendant cannot show prejudice, because other strong circumstantial evidence pointed to conviction.

United States v. Norris, 217 F.3d 262 (5th Cir. 2000), cert. denied, 534 U.S. 870 (2001).  Lawyer moves $500k from firm money market accounts to his personal account.  Partners sue lawyer in state court.  Lawyer then withdraws money from personal account and places it in safe deposit box.  Partners obtain judgment in state case.  Lawyer then removes money from safe deposit box.  Partners attempt to execute on state judgment.  Lawyer then says he "spent" money.  Partners bring involuntary bankruptcy proceeding.  Lawyer then testifies in bankruptcy case that in fact he poured gasoline on money and burned it in waste receptacle at his residence.  Bankruptcy court disbelieves lawyer's story and orders money produced.  Lawyer refuses.  Bankruptcy court holds lawyer in civil contempt, ordering that he be incarcerated until he discloses location of money.  Lawyer refuses and remains incarcerated until indicted for perjury.  At perjury trial, prosecution offers testimony from ATF agent who attempted to recreate lawyer's alleged currency conflagration.  Admissibility affirmed.  Trial court erroneously asserted that Daubert was inapplicable, but in substance district court conducted reliability analysis and permissibly found that conditions of recreation, although not necessarily identical in every respect to bonfire that lawyer claims he set, were sufficiently similar to warrant admissibility.

Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000).  District court considers civil litigant’s failure of polygraph in assessing attorneys’ fees against litigant in ERISA action.  Affirmed.  Fifth Circuit has rejected per se exclusion of polygraphs following Daubert.  Also, risk of prejudice or confusion is reduced when factual issues are decided by trial court as opposed to jury.  Also, fee award rested on sufficient alternative grounds.

Michaels v. Avitech, Inc., 202 F.3d 746 (5th Cir.), cert. denied, 531 U.S. 926 (2000).  Private plane crashes.  Victims sue company that replaced plane's vacuum pump four years earlier.  Plaintiffs' experts opine that pump was negligently replaced, because: (a) plane's left vacuum pump failed shortly after replacement of right vacuum pump, arguably because of increased stress placed on left pump by malfunction in right pump; (b) debris was subsequently found in right pump system; and (c) mechanic billed only 3.2 hours to replace right pump.  As discovery sanction, district court strikes plaintiffs' expert testimony as tardy and conclusory, and awards summary judgment to defendant.  Affirmed.  Sanction of striking expert testimony was too severe, where plaintiffs could reasonably have believed that district court had directed less than full expert disclosures.  Summary judgment is nevertheless affirmed.  Plaintiffs' expert evidence probably would not have survived challenge under Daubert, but perhaps courts of appeal should not undertake Daubert analyses where district court has not done so in first instance.  Still, same defects that make experts' testimony suspect for Daubert purposes also render that testimony insufficient to establish negligence: testimony lacks any rational probative value, because it rests merely on circumstantial facts and fails to reckon with any alternative causes of those facts.  E.g.: (a) stress caused by failure of right pump could have damaged left pump prior to right pump's replacement; (b) debris was found only after four years of intervening operation and maintenance; and (c) plaintiffs offered no support for proposition that 3.2 hours was insufficient time to replace pump properly.

Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358 (5th Cir. 2000).  In lawsuit claiming infringement of plaintiff's trademark and misappropriation of trade secrets involving plaintiff's offshore marine cranes, plaintiff offers expert with fifteen years' experience in marine crane industry to opine on defendant's profits.  Exclusion affirmed.  Putative expert had no formal training in accounting and conducted no independent examination of defendant's gross sales figures, which were supplied to expert by plaintiff's counsel.

Munoz v. Orr, 200 F.3d 291 (5th Cir.), cert. denied, 531 U.S. 812 (2000).  Does civilian employee promotion program at Kelly Air Force Base operate to discriminate against Hispanic males?  District court excludes testimony from plaintiffs' statistician who so opines in disparate impact suit under Title VII.  Exclusion affirmed.  Witness committed gross mathematical errors, displayed bias in commencing analysis with assumption that promotion program discriminated against Hispanics, did not take education and experience into account as variables affecting promotion, and performed no regression.   

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