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First Circuit (last Shepardized on 3/3/06)

Explanation of the statistics
Admissibility affirmance rate:    .939     (31/33)
Exclusion affirmance rate:    .889     (8/9)   
Overall affirmance rate:    .929     (39/42)

Beaudette v. Louisville Ladder, Inc., No. 05-2685 (1st Cir. Sept. 6, 2006).  Man and plaintiff-to-be stands on scaffolding supported by three ladders.  Middle ladder collapses, scaffolding falls, and man does likewise, breaking right tibia and dislocating knee.  To show manufacturing defect in products suit against ladder manufacturer, plaintiff produces report from engineer Wilson Dobson, who opines, based on on microscopic examination of samples taken from ladder, that it does not comply with American National Standards Institute (ANSI) Standard 14.5 for fiberglass ladders, which calls for ladders to be free from resin-rich or resin-starved areas "in accordance with good commercial practice."  District court excludes testimony as unreliable after Daubert hearing and awards summary judgment to manufacturer.  Exclusion affirmed.  Expert interpreted ANSI standard as requiring ladder to be entirely free of resin-rich pockets, but he could cite no support and admitted he had no information on what constituted "good commercial practice."

Levin v. Dalva Bros., Inc., No. 05-2284 (1st Cir. Aug. 15, 2006).  Feeling cheated and defrauded, purchasers of antique grandfather clock sue dealer who sold it to them.  At trial, district court permits purchasers' antique expert, Marshall Falwell, to testify to his detailed examination of clock and to opine on its value, but rules he is unqualified to opine that clock originated from Regence period.  Purchasers appeal from verdict for dealer.  Exclusion affirmed.  District court did not abuse discretion in concluding that expert had insufficient training and experience to authenticate Regence period furniture via visual inspection.

United States v. Maher, 454 F.3d 13 (1st Cir. 2006).  Police officer testifies in narcotics trial that based on his training and experience, numerical notation on papers was part of defendant's customer order list.  Jury convicts.  Admissibility affirmed.  This fell on the lay opinion side of the dividing line between lay and expert testimony.

United States v. Mahone, 453 F.3d 68 (1st Cir. 2006).  In bank robbery trial, footwear impression expert Cynthia Homer testifies that footprints at scene of crime match shoes with defendant's DNA found nearby.  Jury convicts.  Admissibility affirmed.  Expert was qualified; she holds masters degree in forensic science and has performed over 11,000 footwear comparisons.  Defendant questions reliability of "ACE-V" method of footwear comparison (analysis, comparison, evaluation, and verification), based on arguments similar to those sometimes raised against fingerprint identification.  But district court acted within its discretion in accepting ACE-V methodology based on published studies, its error rate, and its general acceptance in forensic field.

Santos v. Posadas de Puerto Rico Assocs., Inc., 452 F.3d 59 (1st Cir. 2006).  Injured on steps to hotel swimming pool, slip-and-fall plaintiff offers testimony at trial from mechanical engineer Dr. Ricardo Galdos re dangerous condition presented by variable friction between steps and edges, use of unsuitable tile, peculiar configuration of stairs, and lack of handrail.  District court upholds his qualifications and methodology over defense objections.  Jury finds for plaintiff.  Admissibility affirmed.  Defendants say expert has no experience with swimming pools, but he has doctorate in engineering, has been certified by National Academy of Safety as tribologist, and has analyzed approximately 2000 slip-and-falls since 1990.  Defendants also fault expert's methodology, but he interviewed victim, visited pool, examined photographs, made calculations, and drew on friction testing of tiles.  No abuse of discretion. 

Feliciano-Hill v. Principi, 439 F.3d 18 (1st Cir. 2006).  Defendant in disability claim presents trial testimony from physician Dr. Ramades Sierra-Zorita, who opines that plaintiff does not have rheumatoid arthritis and does not appear to be disabled.  Plaintiff objects but district court finds testimony reliable and plaintiff's objection untimely.  Jury finds for defendant.  Admissibility affirmed.  District court properly found plaintiff's objection untimely because plaintiff was in possession of physician's expert report for months and yet raised no objection until shortly before physician took the stand.  Nor did district court err in finding physician's testimony reliable.  She did not invoke novel medical theories, and there was no requirement that she cite to published literature to support her routine diagnostic opinion.

Koken v. Black & Veatch Constr., Inc., 426 F.3d 39 (1st Cir. 2005).  Metal slag produced by torch-cutting operations at construction site penetrates 1000-degree fire blanket used to protect generator.  Efforts to extinguish fire damage generator, causing $9 million in repair and delay costs.  In resulting litigation, general contractor claims against manufacturer of fire blanket, on theories including failure to warn.  In support, general contractor offers engineering expert Robert Waite, who opines that fire blanket should have carried warning stating it was unsuitable for use in cutting operations.  District court excludes testimony.  Exclusion affirmed.  Expert failed to articulate any methodology for determining appropriateness of fire blankets for particular operations.

United States v. Pinillos-Prieto, 419 F.3d 61 (1st Cir.), cert. denied, 126 S. Ct. 817 (2005).  Law enforcement officer testifies in narcotics trial that drug operations often involve guns and violence.  Jury convicts.  Admissibility affirmed.  Testimony was admissible as lay opinion.

United States v. Pina, No. 04-1029 (1st Cir. July 15, 2005) (unpublished).  Police officer testifies at narcotics trial that cocaine and other items found at defendant's apartment (scales, packages of cash, sandwich baggies) are "consistent with distribution."  Jury convicts.  Admissibility affirmed.   Defendant says testimony was not helpful to trier of fact, because items found were also "consistent with" other uses.  But this testimony was permissible.  Expert did not testify on defendant's intent.

Rivera v. Turabo Med. Ctr. P'ship, No. 04-2494 (1st Cir. July 15, 2005), cert. denied, ___ S. Ct. ___ (2006).  In trial of parents' malpractice claim for severe neurological damage to infant, parents offer testimony from life-care planner Frank Woodrich on projected future costs for medical care.  District court admits testimony and jury awards substantial damages.  Admissibility affirmed.  Expert was well-credentialed and based his analysis on information from health care providers and family.  Although expert's analysis might have benefited from further physician review of expert's projections re patient's future needs, district court did not abuse discretion in admitting testimony.

United States v. Ayala-Pizarro, 407 F.3d 25 (1st Cir.), cert. denied, 126 S. Ct. 247 (2005).  In narcotics trial, arresting officer testifies for prosecution on how drug points work and how heroin is customarily packaged for sale.  Jury convicts.  Admissibility affirmed.  Officer's testimony was based on his personal knowledge from his own experience as law enforcement officer.  It was therefore lay opinion and not subject to rules governing admissibility of expert testimony.

Prado Alvarez v. R.J. Reynolds Tobacco Co., 405 F.3d 36 (1st Cir. 2005).  Longtime smoker from Puerto Rico contracts lung cancer and dies.  His family sues cigarette manufacturer on theories including product defect and failure to warn.  To sustain either claim, plaintiffs must show that in 1950's and 60s, near time when smoker took up his habit, ordinary consumers in Puerto Rico were unaware of dangers of smoking.  Defendants move for summary judgment on that issue, offering testimony from historian Dr. Luis Martinez-Fernandez.  Plaintiffs respond, relying on expert opinion from Marly Ferrer Montalvo, who holds bachelor's degree in history and is enrolled in master's program.  Defendants argue she lacks sufficient education or experience to qualify as expert and move to exclude her testimony.  District court never explicitly rules on motion to exclude, but awards summary judgment to defendants, in opinion invoking testimony from defendants' expert and making no mention of plaintiffs'.  Exclusion [?] affirmed.  If district court intended to exclude testimony from plaintiffs' expert, review would be for abuse of discretion.  But even assuming that district court considered but discounted her testimony, affirmance of summary judgment would be warranted on de novo review.  Qualifications of plaintiffs' expert were meager, especially by comparison with defendants'.  More important, her opinions were thinly documented, whereas defendants' expert's 31-page affidavit cited wide variety of contemporaneous materials alerting Puerto Rican public to health dangers of smoking.  Based on evidence of record, no reasonable juror could conclude that Puerto Rican public was unaware that smoking posed substantial health risks.

Currier v. United Techs. Corp., 393 F.3d 246 (1st Cir. 2004).  After being discharged during reduction in force, worker brings age discrimination claim.  District court admits testimony plaintiff's statistical expert, Dr. Sat Gupta.  Jury finds for plaintiff.  Admissibility affirmed.  Defendant says statistician should have worked not from data on defendant's entire salaried workforce of 183 employees, but rather from sample comprising only six managers with whom plaintiff was similarly situated, or at most from sample of 44 employees actually susceptible to layoff.  But despite having objected to statistician's testimony on numerous grounds before and during trial, defendant did not raise this particular argument until its post-trial motions, and jury could have found that age played role in defendant's selection of 44 layoff-eligible workers from its total payroll of 183 employees.  Defendant raises other challenges to probative value of statistician's testimony, but defendant could and did bring those challenges to jury's attention.  No abuse of discretion.

United States v. Stokes, 388 F.3d 21 (1st Cir. 2004), vacated on other grounds, 125 S. Ct. 1678 (2005).  Defendant is charged with possession of firearm by felon.  To discredit testimony from two eyewitness police officers, defendant offers Dr. Alexander Daniel Yarmey, who proposes to testify to effects of fear and other psychological factors on reliability of eyewitness testimony.  Trial court excludes testimony and jury convicts.  Exclusion affirmed.  First Circuit has not established any per se rule on admissibility of expert testimony on eyewitness testimony but takes case-by-case approach.  In this case, defendant did not discharge its burden of showing that testimony would be helpful to trier of fact.

Poulis-Minott v. Smith, 388 F.3d 354 (1st Cir. 2004).  Man sets sail on fishing trip and never returns.  Estate's administrator sues vessel owner.  On summary judgment, owner offers affidavits from various experts.  Estate moves to exclude their testimony in whole or in part, based on late disclosure, unreliability, and lack of qualifications.  District court addresses objections paragraph by paragraph, admitting some testimony and excluding other testimony, before awarding summary judgment to owner.  Estate appeals.  Admissibility affirmed.  District court exercised sound discretion in its decisions on preclusive sanctions and reliability.  Greater clarity in addressing experts' qualifications would have been desirable, but district court did not abuse its wide discretion, given great procedural latitude enjoyed by district courts in discharging gatekeeping function.

Microfinancial, Inc. v. Premier Holidays Int'l, Inc., No. 04-1493 (1st Cir. Oct. 5, 2004) (unpublished).  In bench trial of fraud and breach of contract claim, plaintiffs' expert Gerald Killion analyzes flow of funds to and from financial account and opines that transactions were structured in fraudulent manner.  Trial court finds for plaintiffs and awards $23 million in damages.  Admissibility affirmed.  Defendants did not object at trial court level and so review is for plain error.  Defendants say expert is unqualified, but he spent 33 years as IRS agent, mostly investigating financial fraud.  Defendants also fault expert for basing analysis solely on bank records supplied by plaintiffs, rather than broader array of transactions, but this objection goes to weight, not admissibility.

United States v. Garcia-Morales, 382 F.3d 12 (1st Cir. 2004).  In narcotics trial, Customs Service Agent Yariel Ramos testifies as prosecution expert on nature and structure of typical drug distribution conspiracies.  Jury convicts.  Admissibility affirmed.  Defendant did not object to testimony below and so review is for plain error.  Agent was qualified to offer expert testimony by experience, testimony was helpful to trier of fact, and evidence was not more prejudicial than probative.

Zachar v. Lee, 363 F.3d 70 (1st Cir. 2004).  Buyers back out of Nantucket real estate deal at last minute because of job offer on West coast.  To avert forfeiture of deposit, parties agree that sellers will relist property at higher asking price and apply any excess proceeds to deposit.  Property fails to sell within agreed period.  Buyer sue sellers, alleging lack of good-faith effort to resell property.  In support, buyers offer 45-page report from real estate appraiser Robert W. Saben, Jr., which includes statement, on final page, that marketing period of six to twelve months would be appropriate for subject property.  District court denies sellers' pretrial motion in limine seeking to exclude testimony, and later denies sellers' renewed objection at trial.  Jury finds for buyers and sellers appeal.  Admissibility affirmed.  Buyers say sellers' trial objection, which sought exclusion of expert's testimony in its entirety, failed to identify what testimonial statements were objectionable with sufficient particularity to preserve point for appeal, but even assuming that is true, sellers preserved point by securing definitive ruling on pretrial motion in limine.  As to merits of objection, however, any error was harmless, even if sellers were correct that expert lacked qualifications to opine on marketing period and employed unreliable methods.  Buyers did not refer to expert's statement re marketing period during closing to jury, and other evidence existed to support jury conclusion that sellers kept asking price artificially high to ward off prospective buyers.

United States v. Osorio, 360 F.3d 48 (1st Cir. 2004).  In trial of defendant charged with possession of firearm by felon, prosecution witness testifies that weapon moved in interstate commerce.  Defendant objects that witness was not designated as expert in prosecution's pretrial disclosures.  District court overrules objection and jury convicts.  Affirmed.  Testimony was lay opinion, not expert opinion, because it was based on witness's personal visit to Massachusetts plant where weapon was manufactured, and because witness's conclusions were derived "from a process of reasoning familiar in everyday life."  

United States v. Casas, 356 F.3d 104 (1st Cir.), cert. denied, 541 U.S. 1069 (2004).  In drug conspiracy trial, prosecution calls DEA agent to give "overview" of evidence.  Agent testifies based on his "investigation" that various defendants were members of drug smuggling organization.  Jury convicts  Admissibility reversed.  Agent's "overview" testimony relied in part on hearsay.  It cannot be defended as proper expert opinion, because prosecution did not qualify agent as expert, and because such "overview" testimony is not proper grist for expert opinion in any event.  Jurors could evaluate for themselves, based on underlying evidence, whether any given defendant was member of drug conspiracy.  Error was harmless as to some defendants.

United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir. 2003) (vol. 1) (vol. 2) (errata), cert. denied, 541 U.S. 1074 (2004).  In massive six-month drug conspiracy trial, prosecution successfully offers opinion testimony from eight forensics examiners, two pathologists, and one ballistics witness, without having formally designated any as experts.  Admissibility affirmed.  Forensic experts testified only to observations at crime scenes and opinions based on personal knowledge thus acquired.  District court did not abuse its discretion in concluding that this constituted lay opinion, not expert opinion.  Government substantially complied with pretrial discovery requirements as to pathologists and ballistics expert.  One pathologist did testify based on autopsy report he did not prepare, due to preparer's last-minute unavailability due to illness.  But no generalized prohibition bars experts from testifying about autopsy reports they did not personally prepare.

Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15 (1st Cir. 2003).  Abortion clinic performs suction curettage procedure intended to terminate woman's pregnancy.  On experiencing acute abdominal pain two weeks later, woman visits emergency room, where remains of ruptured ectopic pregnancy are removed.  In malpractice suit against abortion clinic, woman offers testimony from general practitioner, Dr. Jose Rodriguez, to show that clinic failed to satisfy prevailing standard of care during examination that missed ectopic pregnancy.  Defendants object that GP is unqualified to opine on standard of care, because he is neither gynecologist nor obstetrician.  District court overrules objection and jury finds for plaintiff.  Admissibility affirmed.  Physician need not be specialist in particular discipline to render opinion regarding that discipline.  Indeed, it would have been error to exclude physician's testimony on those grounds.

United States v. Santana, 342 F.3d 60 (1st Cir. 2003), cert. denied, 540 U.S. 1206 (2004).  DEA agent Jean Drouin observes defendant leave building with bag containing box-like object with rounded corners.  At defendant's trial on drug charges, agent testifies that bag contained marijuana.  Asked to supply basis for that opinion, agent responds that his conclusion was based on characteristics of package, intercepted phone calls, smell of marijuana in defendant's home during subsequent search, and other facts gleaned in investigation.  Jury convicts.  Admissibility affirmed.  Defendant argues that agent should not have been permitted to testify that he smelled marijuana during search, whether as lay witness under Fed. R. Evid. 701 or as expert under Rule 702.  But agent's lay opinion was grounded in facts within his personal knowledge under Rule 701, and expert testimony on this point was not required under Rule 702.  Defendant also says it was error to permit agent to testify that he "knew" bag to contain marijuana.  But agent was subjected to cross-examination in which his basis for that statement was explored, and any error was harmless.

Ford v. Nationwide Mutual Fire Ins. Co., No. 02-2115 (1st Cir. Apr. 8, 2003) (unpublished).  Injured in auto collision, woman sues to recover damages from other motorist's insurer.  Insurer offers trial testimony from accident reconstructionist John Meserve.  Jury finds for insurer.  Admissibility affirmed.  Plaintiff argues expert's testimony should have been excluded because it was impossible to determine speed, direction, and path of vehicles.  But expert's analysis was based on damage to vehicles, observation of skid marks, witness reports, and knowledge of physics. 

United States v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003).  Defendant is charged with possessing narcotics with intent to distribute.  DEA special agent Reinaldo Lopez listens to tape recordings of defendant's wiretapped conversations and is offered at trial to testify as expert concerning defendant's use of code words.  Defendant objects.  District court rules that testimony is admissible as lay opinion.  Jury convicts.  Admissibility affirmed.  It is unnecessary to decide whether testimony was properly characterized as lay opinion or expert opinion, because even if it fell in expert category, agent was qualified by training and experience to opine on meaning of code words in drug trade.

John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26 (1st Cir. 2003).  Architect draws up plans for residential real estate development.  Developer then prevails upon zoning commission to approve parcel for proposed development.  Zoning approval comes with restrictive covenant, running with land, requiring that any residential development conform to architect's drawings.  Soon after construction begins, developer encounters financial woes, and never pays architect.  Second developer then acquires parcel in foreclosure sale and attempts to secure variance in favor of new architectural plans.  When variance is denied, second developer proceeds to build in conformity with original architect's plans.  Original architect sues second developer for copyright infringement.  District court awards partial summary judgment to architect on issue of infringement.  At trial on damages, second developer offers expert testimony from architect David Barsky and condominium marketing consultant Sue Hawkes, who opine, over architect's objections, that certain features in original plans, such as placement of garages and parking areas, actually may have detracted from development's appeal.  Hawkes also seeks to testify that site plans contribute only approximately 10-15% to condominium projects' overall appeal, but district court excludes that testimony as wanting in foundation.  Jury awards damages roughly equivalent to entire profit from development project.  Admissibility affirmed.  Both experts were experienced professionals with relevant expertise, and district court did not abuse discretion in admitting their testimony under Kumho Tire.  Nor did trial court err in barring Hawkes's testimony on contribution of plans to overall development value.  But new trial is necessary to apportion damages, because only profits attributable to infringement are recoverable.  At second trial, developer may do better job of laying foundation for Hawkes's estimate.  More importantly, when jurors are given proper instructions on damages, under which apportionment need not be calculated with mathematical exactness, it will be less important for developer to produce precise figures.

United States v. Mooney, 315 F.3d 54 (1st Cir. 2002).  Prosecution expert testifies that criminal defendant's handwriting sample matches handwriting in several letters in which defendant acknowledged participation in robbery, and jury convicts.  Admissibility affirmed.  Defendant does not argue that expert's testimony should have been excluded entirely, but contends that expert's ultimate opinion that handwriting samples matched did not enjoy reliable forensic support.  However, in opining that defendant authored letters, expert employed same methods that defendant concedes are reliable for purposes of analyzing similarities and differences in handwriting samples.  Those methods have been subjected to general peer review in published journals, and one study has pegged their potential error rate at 6.5%.  Also, expert was duly certified in field, takes proficiency tests twice per year, and has all analyses confirmed by second examiner.  If expert's methods are sufficiently reliable to permit testimony about samples' comparative features, expert should also be permitted to testify to inferences to be drawn from those features -- here, that samples matched.  District court did not abuse discretion.

United States v. Diaz, 300 F.3d 66 (1st Cir. 2002).  Man's restaurant burns and he is tried for arson.  Government retains two fire experts: police fire investigator Joseph Dorsey and insurance investigator Thomas Haynes.  Defendant files pretrial memorandum containing this sentence: "The only anticipated legal issue potential would be the qualification of the experts, so-called, under the standards of the Daubert trilogy."  At trial, Dorsey opines, over defendant's renewed objection to his qualifications, that fire was deliberately set, and Haynes gives similar opinion.  At close of government's case, defendant moves for judgment of acquittal, arguing in part that prosecution experts gave contradictory testimony.  District court denies motion.  In chambers after close of evidence, defendant again seeks judgment of acquittal, and also says, without elaboration: "In addition, I make a motion under Rule 702 that the opinions of the two experts be excluded under the Daubert analysis as I have previously mentioned."   Motions are denied and jury convicts.  In post-verdict motion, defendant argues for first time that actual testimony given by experts does not satisfy Rule 702's numbered criteria.  This motion too is denied, and defendant appeals.  Admissibility affirmed.  Because defendant did not make timely objection to reliability of testimony, as opposed to experts' qualifications, Fed. R. Evid. 103 permits review only for plain error, and no error is evident here.  Defendant objects that experts should have done more sampling and testing, but defense counsel could and did explore those issues on cross-examination.

Babcock v. Gen. Motors Corp., 299 F.3d 60 (1st Cir. 2002).  Driver is injured and dies after pickup crashes into tree.  Were his injuries attributable to "false latching" of allegedly defective seatbelt?   District court admits testimony to that effect from plaintiffs' engineering expert and accident reconstructionist, Dr. Malcolm Newman.  Jury returns verdict for plaintiff.  Admissibility affirmed.  Expert determined crash speed by methodology generally accepted in accident reconstruction field and approved by National Highway Traffic Safety Administration (NHTSA).  He then opined that seatbelt would have restrained passenger at that speed if nondefective and in use, and concluded from inspection of seatbelt that it had indeed been in use just prior to impact.  He also illustrated alternative design, actually used in Volvos, that would help prevent false latching.  District court did not abuse discretion in admitting testimony.

United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002).  FBI agent Carlos Cases testifies for prosecution at drug trial re meaning of code words in narcotics trade.  Admissibility affirmed.  Because defendant did not raise objection at trial, review is for plain error.  Agent had substantial experience and training that qualified him to opine on narcotics code words.  Nor did agent's dual role as expert and fact witness confuse jury.  Agent explained when opinions were based on training and experience rather than investigation of this particular case.

Correa v. Cruisers, 298 F.3d 13 (1st Cir. 2002).  Plaintiffs say motorboat sold by defendants has defective engine.  Plaintiffs' expert, Ramon Echeandia, testifies over defendants' objection that engine did not function properly.  Jury finds for plaintiffs and defendants appeal.  Admissibility affirmed.  Defendants question expert's qualifications, but expert has bachelor's degree in engineering, is licensed engineer, and has twenty years experience repairing marine and other engines.  Defendants also complain that expert did not use instruments or gauges to determine whether engine was running properly.  But common sense suggests that expert with extensive experience in engine repair could reliably base conclusions on visual inspection.

LaPlace-Bayard v. Batlle, 295 F.3d 157 (1st Cir. 2002).  Plaintiffs in medical malpractice suit attempt to designate additional expert witness on eve of trial.  District court bars witness from testifying, because his disclosure is untimely and his testimony duplicative.  Exclusion affirmed.  Plaintiffs' expectation that case would settle does not justify tardy disclosure.

Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68 (1st Cir. 2002).  Seahorse Marine sues Sun Oil under Petroleum Marketing Practices Act for wrongful termination of Seahorse Marine's franchise.  As its damages expert, Seahorse Marine offers Heidie Calero, whose testimony is admitted over Sun Oil's objections.  Jury awards damages to Seahorse Marine.  Admissibility affirmed.  Sun Oil argues that Calero's damage estimate did not properly account for Seahorse Marine's tax obligations, but "inexplicably," Sun Oil neither pinpoints expert's disputed testimony nor discusses actual figures that would undercut expert's analysis.  In fact, Calero did reckon with tax obligations in framing her damage estimates.  Sun Oil also argues, more persuasively, that Calero should not have been permitted to offer damage estimate for future lost profits over ten-year period, absent reason to believe franchise relationship would have lasted for so long.  But any error in permitting that testimony was harmless, because jury's award fell far short of expert's ten-year estimate.

Hochen v. Bobst Group, Inc., 290 F.3d 446 (1st Cir. 2002).  Injured worker suing manufacturer of exploding printing press offers testimony from engineer Daniel Harwood to show negligence.  Magistrate judge excludes testimony, and awards judgment as matter of law to defendants.  Exclusion affirmed.  Magistrate judge did not abuse discretion in finding engineer's testimony insufficiently grounded in knowledge of specific machine at issue.

Jodoin v. Toyota Motor Corp., 284 F.3d 272 (1st Cir. 2002).  Woman is paralyzed when her 1988 Toyota 4x4 truck rolls over in collision.  In defective design suit against truck manufacturer, woman offers testimony from liability expert, Robert Loyd Anderson, re: (a) accident reconstruction; and (b) rollover tests he conducted on another 1988 Toyota 4x4 truck, to show defective design.  District court permits testimony on accident reconstruction, but refuses to admit testimony re rollover tests for want of foundation re history of exemplar vehicle (to show that it was identical to plaintiff's vehicle and had not been altered since purchase).  When plaintiffs make offer of proof re rollover testing, district court interrupts to advise that Daubert hearing would also be required before test results could be admissible.  Plaintiffs decline to hold Daubert hearing, because district court has indicated it will exclude test results in any event for lack of foundation re exemplar vehicle's history.  Plaintiffs have no other evidence to prove design defect, and so district court asks whether plaintiffs will rest case so it may enter judgment as matter of law.  Plaintiffs rest, and district court proceeds to enter judgment in defendants' favor.  Exclusion reversed.  Toyota argues that judgment should be affirmed because plaintiffs offered no evidence on causation or damages, but under Fed. R. Civ. P. 50, judgment as matter of law may be entered before close of plaintiff's evidence, as soon as plaintiff has concluded presentation of evidence on some fact (e.g., design defect) essential to plaintiff's case.  Toyota argues that because plaintiffs rested their entire case, subsequent presentation of evidence on causation and damage was waived.  But plaintiffs rested only at district court's direction, and cannot fairly be regarded as waiving rights to present evidence on other issues if district court's ruling on admissibility of rollover tests were reversed.  Turning to merits of exclusionary ruling, first question is whether tests represented attempts to recreate accident (in which case evidence would be inadmissible unless circumstances of accident and recreation were "substantially similar") or mere testimony re general scientific principles (which would be admissible without any such requirement).  This line can be hard to draw, but key determinant is whether jury would likely perceive tests as attempts to recreate accident.  Here, that would be jury's natural perception (given similarity of vehicles, etc.), so that testimony is best viewed as accident recreation evidence, and requirement of "substantial similarity" applies.  District court erred, however, in holding that substantial similarity of vehicles could be proved only via history of exemplar vehicle.  Plaintiffs' expert testified that he inspected vehicles and found them substantially similar in all respects affecting vehicle dynamics.  Remanded for new trial. 

United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir.), cert. denied, 536 U.S. 949 (2002).  In drug conspiracy trial, INS agent testifies, based on experience in prior investigations, that drug importation operations use GPS to facilitate air drops and boat-to-boat transfers, and use cell phones to enable boat-to-ground communication.  Admissibility affirmed.  Agent's experience was sufficient basis for expert opinion under Kumho Tire, and testimony would be of assistance to average juror.  Testimony's probative value outweighed any prejudicial effects, and agent was properly testifying as expert, so that restrictions on lay opinion testimony did not apply.

United States v. Sanchez-Alvarez, No. 00-1498 (1st Cir. Nov. 20, 2001) (unpublished).  At sentencing phase of drug trial, U.S. Customs Agent Richard Roark testifies re meaning of encoded language used in recorded phone conversation between defendants.  Affirmed.  Defendant says testimony was inadmissible under Fed. R. Evid. 702, but that evidentiary rule does not apply during sentencing phase.  Moreover, similar testimony has often been held admissible under Rule 702 even during trial.  Testimony easily satisfied requirement, for sentencing purposes, that evidence possess sufficient indicia of reliability to support its probable accuracy.

United States v. Scott, 270 F.3d 30 (1st Cir. 2001), cert. denied, 535 U.S. 1007 (2002).  Charged with tax fraud, defendant objects when prosecution offers IRS agent James Donahue to offer lay opinion identifying handwriting as defendant's.  District court admits testimony and jury convicts.  Admissibility affirmed.  As defendant correctly points out, Fed. R. Evid. 901(b)(2) governs testimony re handwriting identification, and provides that such identification may be proved by lay opinion only if witness's familiarity with handwriting was not acquired for purposes of litigation.  Agent Donahue became familiar with defendant's handwriting during multiple IRS investigations over span of several years.  Defendant says agent's familiarity was therefore "acquired for purposes of the litigation" within meaning of Rule 901(b)(2), and that agent's testimony could have been offered, if at all, only if agent had been qualified as expert, as he was not.  However, agent's familiarity with defendant's handwriting was not acquired for trial, but rather over several years for investigative purposes.  His testimony was therefore permissible lay opinion under Rule 901(b)(2).

Cummings v. Standard Register Co., 265 F.3d 56 (1st Cir. 2001).  Plaintiff's economic expert testifies to lost wages in discrimination suit.  Admissibility affirmed.  Defendant argues economist should have used company-specific data re plaintiff's compensation, but on cross-examination, expert offered reasons for using data he did, and defendant did not show how expert's assumptions were incorrect or unreasonable.  Defendant also highlights computational error exposed during expert's testimony, but trial court permitted defendant to argue that point to jury.  Still, where jury returned award closely matching expert's original erroneous estimate and in excess of his corrected one, probability of jury confusion warrants remittitur to damages not exceeding corrected estimate.

United States v. Sebaggala, 256 F.3d 59 (1st Cir. 2001).  Ugandan national is arrested on entry to U.S. for failure to declare $108,000 in travelers' checks on customs form.  At trial, defense expert Dr. Aloysius Lugira seeks to testify re tribal cultural traits and customs, including modes of nonverbal communication, and defendant's general linguistic aptitude.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Defendant says testimony would have assisted jury in assessing his ability to understand customs forms.  But district court did not abuse discretion in concluding that witness's testimony was grounded primarily in anecdotal experiences and was "speculative at best."  Nor did jury require expert testimony to evaluate whether person whose primary language is not English might have difficulty understanding bureaucratic forms.

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

Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1 (1st Cir. 2001).  Citing arson exclusion, insurer refuses payment for commercial fishing vessel destroyed in fire.  In third trial of owners' suit against insurer (before third trial judge), jury finds arson in response to special interrogatory.  On appeal, owners argue that insurer's fire expert failed to supplement his expert disclosures to incorporate opinions on cause and origin of fire, and was also incompetent because his conclusions were based on data collected not by him personally but rather by another defense expert who was now deceased.  Admissibility affirmed.  Plaintiff says two previous judges limited defense expert's testimony to issues concerning boat's electrical system, but expert was qualified to assess causes and origins too, and previous judges' rulings were simply calculated to minimize duplication in trials where defendants' now-deceased cause-and-origins expert was testifying.  Moreover, given broad discretion of trial courts under Daubert, exclusionary rulings by previous judges would not necessarily bar finding of admissibility by third trial judge.  As for argument that data on which expert relied were not personally collected by him, in fact he either collected those data or worked closely with now-deceased expert who did.  Partial reliance on deceased expert's report was appropriate because such material could reasonably be relied upon by experts in field.  When one expert relies on opinion of another, such reliance normally goes to weight, not admissibility.  Expert should have supplemented disclosures to include cause-and-origin testimony, but plaintiff suffered no prejudice, because substantially identical testimony was presented by other expert at first trial, and because plaintiff was on notice three months before trial that current expert would testify on causes and origins but did not seek to redepose him.

Diefenbach v. Sheridan Transp., 229 F.3d 27 (1st Cir. 2000).  Boatswain is injured during undocking of ship.  In Jones Act claim against employer, boatswain offers testimony from vessel's captain re docking and undocking procedures.  Admissibility affirmed.  Employer waived "reliability" objection, and captain was qualified by training and experience to testify on docking and undocking procedures.

United States v. Shea, 211 F.3d 658 (1st Cir. 2000), cert. denied, 531 U.S. 1134 (2001).  Criminal defendants object to government expert's testimony matching DNA from defendants' blood samples to physical evidence from various crime scenes.  Admissibility affirmed.  Expert initially overlooked nonmatching allele dot in testing sweat residue from cap, but explained when queried that his findings would be unaltered given faint intensity of nonmatching allele dot.  District court conducted Daubert inquiry and concluded that any defects in expert's methods went to weight, not admissibility.  Most other circuits have agreed with this approach.

Bragdon v. Davenport, No. 99-1643 (1st Cir. Apr. 18, 2000) (unpublished).  Realty trust purchases investor's shares for relative pittance after misleading investor re their true value.  In suit against trustees for securities fraud, common law fraud, and breach of fiduciary duty, investor offers testimony from two experts to estimate value of trust as of date of sale.  First, William Currey, real estate appraiser, values all holdings in which trust held interest, in toto.  Second, Stephen Grizey, accountant, reduces appraiser's figure to account for fact that trust had only partial interest in some holdings.  Jury finds for plaintiff.  Admissibility affirmed.  Trustees say plaintiffs' method of proof could have caused confusion and created impression that trust was worth more than it actually was.  But experts clearly and coherently explained their two-step approach.

Foster-Miller, Inc. v. Babcock & Wilcox Can., 210 F.3d 1 (1st Cir. 2000).  After hearing economist testify for corporation #1 re damages, jury returns $5 million verdict against corporation #2 for using confidential technology belonging to corporation #1.  Admissibility affirmed.  Corporation #2 errs in contending that district court failed to conduct Daubert analysis of testimony from corporation #1's economist.  It is true that district court said economist's testimony "raises no issues that implicate the rule of Daubert," but corporation #2 takes this quotation out of context.  District court's meaning was not that Daubert's gatekeeping mandate was inapplicable, but rather that in performing its gatekeeping function, district court found no reliance by economist on unconventional hypotheses or unorthodox methods.  As for soundness of district court's Daubert ruling, it is noteworthy that corporation #2 does not even argue, on appeal, that jury award was founded on speculative or unreliable testimony.  [Link is to original opinion dated March 31, 2000.  Also available at First Circuit's website are two amendments effecting minor textual revisions, the first dated April 27, 2000, and the second dated May 10, 2000.]

United States v. Corey, 207 F.3d 84 (1st Cir. 2000).  Ex-con is found in Maine with Smith & Wesson shotgun and charged with possession by felon of firearm having traveled in interstate commerce.  Smith & Wesson has manufacturing plants in Massachusetts, Ohio, and Maine.  To prove that weapon traveled in interstate commerce, and was not manufactured in Maine, prosecution offers ATF agent who opines that weapon was made in Massachusetts.  On voir dire and cross-examination, agent states that bases for his opinion includes telephone conversation with Smith & Wesson's resident historian, technical manuals from manufacturer, and notes and records maintained by agent and ATF reflecting information gathered over time re weapons manufacturing locations.  Defendant objects that testimony is primarily reliant on information gleaned in telephone conversation with Smith & Wesson and is hearsay cloaked as expert opinion.  District court overrules objection and defendant is convicted.  Admissibility affirmed.  Standard of review is deferential, ATF agent had extensive experience in area, and phone conversation with Smith & Wesson historian simply verified opinion already formed.  Consultation of markings on gun is not prerequisite to testimony re origins, and even if it were, district court could conclude that agent did base testimony partly on markings on gun.  Requiring production of underlying records consulted by agent would reinstate misguided "best evidence" notions that Fed. R. Evid. 703 was intended to relax.  Moreover, district court arguably had discretion to conclude that telephone conversation was information of type reasonably relied on by experts in agent's field.

United States v. Torres-Galindo, 206 F.3d 136 (1st Cir. 2000).  FBI agent testifies in criminal trial that based on his ten years of experience, it is common for suspects, prior to any confession, to begin by denying everything.  Jury returns guilty verdict.  Admissibility reversed.  This walks and talks like expert testimony, and even assuming compliance with criminal discovery rules, it would not satisfy requirement that expert testimony be helpful to trier of fact, because testimony did not involve any matters beyond commonsense understanding of average juror.  However, error was harmless, because agent was extensively cross-examined, and because other evidence of guilt was overwhelming.   

Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376 (1st Cir. 2000).  Worker's thumb is severed when worker's hand is caught between moving guard rail on lift and fixed guard rail on adjacent loading dock.  In negligence action against companies that manufactured and installed lift, worker offers testimony from engineer that whereas space between guard rails was only about 3.5 inches, human hand holding object could measure 4.5 inches in width.  District court excludes testimony as irrelevant and sheer ipse dixit, and awards summary judgment to defendants.  Exclusion affirmed.  Testimony did not fit facts of case, because worker was not holding any object at time of accident.

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