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Ninth Circuit (last Shepardized on 12/1/04)

Explanation of the statistics
Admissibility affirmance rate:    .853     (58/68)
Exclusion affirmance rate:    .815     (44/54)
Overall affirmance rate:    .836     (102/122)

United States v. Jawara, No. 05-30266 (9th Cir. Sept. 15, 2006).  Prosecution in document fraud trial offers testimony from Carolyn Bayer-Broring, forensic document examiner for Department of Homeland Security.  Jury convicts.  Admissibility affirmed.  Defendant correctly complains that district court made no explicit reliability findings.  But error was harmless in light of witness's extensive academic qualifications and experience.

United States v. Johnson, No. 05-30388 (9th Cir. Sept. 5, 2006) (unpublished).  Narcotics defendant offers expert audiologist to opine that recorded conversation is unintelligible.  District court excludes testimony on ground that jury does not require audiologist to tell it what it can and cannot hear.  Jury convicts.  Exclusion affirmed.  No abuse of discretion.

United States v. Decoud, No. 04-50318 (9th Cir. Aug. 2, 2006).  Prosecution's expert on drug jargon testifies to meaning of expressions he has not heard before, such as "diznerty," "woop-wop," and "weezy."  Jury convicts.  Admissibility affirmed.  Witness explained how he was able to interpret unfamiliar expressions based on context and his experience.

Cano v. Cont'l Airlines, Inc., No. 04-16622 (9th Cir. July 20, 2006) (unpublished).  Passenger suffers sudden and fatal cardiac arrhythmia in plane's lavatory.  In suit against airline, her heirs offer cardiologist Dr. Gerald B. Lee, who opines that passenger likely experienced 10 to 25 minutes of prodromal symptoms, resulting in mental confusion that prevented her from opening lavatory door, pushing call button, exiting lavatory, or summoning help.  District court excludes testimony and awards summary judgment to airline.  Exclusion affirmed.  Expert's theory was developed for litigation and he offered no independent, objective support for it.  His conclusion was not fully supported by medical literature he submitted, and some of that literature was not peer-reviewed.  Nor was there much evidence that he applied his methodology in reliable fashion.  Given gaps between literature and expert's conclusions, district court did not abuse its discretion in excluding testimony. 

Kilian v. Equity Residential Props. Trust, No. 04-16723 (9th Cir. June 30, 2006) (unpublished).  Woman sues landlord for illness she attributes to mold exposure.  District court strikes testimony from plaintiff's experts Dr. Michael Gray, Dr. Kilburn, and industrial hygienist David Rueckert.  Trial court proceeds to find for landlord in bench trial.  Exclusions affirmed.  Trial court did not abuse its discretion in finding experts' testimony unreliable.  Dr. Gray followed unorthodox practices not generally accepted in field and used tests that another of plaintiff's own experts described as useless for detecting mycotoxin exposure.  Dr. Kilburn failed to review medical records before diagnosing epileptic seizures that other specialists had ruled out, and followed his own specially concocted array of diagnostic tests.  Moreover, he admitted his opinion went only to impairment, not causation.  Industrial hygienist never tested plaintiff's apartment for mycotoxins and admitted mold levels at plaintiff's apartment were in normal range.

United States v. Urie, No. 05-10202 (9th Cir. May 30, 2006) (unpublished).  Nigerian is charged with wire fraud and mail fraud.  He offers putative expert on Nigerian culture.  Trial court excludes testimony and jury convicts.  Exclusion affirmed.  Witness's sole apparent qualification is that witness has resided in Nigeria.  That is not enough.  Also, expert testimony on mens rea is impermissible under Fed. R. Evid. 704(b).

Williams v. UMG Recordings, Inc., No. 04-56314 (9th Cir. May 12, 2006) (unpublished).  District court excludes plaintiff's expert testimony on value of screen credit in connection with quantum meruit damages.  Exclusion affirmed.  Testimony was speculative and relied on "rule of thumb" that is not widely adopted.

CSL, L.L.C. v. Imperial Bldg. Prods., Inc., No. 05-15931 (9th Cir. Mar. 15, 2006) (unpublished).  CSL and Imperial enter into consent degree, under which Imperial may not sell synthetic fire logs claiming to reduce creosote in chimneys without demonstrating product's ability to do that.  Believing Imperial to have breached, CSL brings contempt proceedings.  District court excludes both parties' testing evidence as unreliable and finds in Imperial's favor.  Exclusion affirmed.  District court did not abuse its discretion in relying on absence of peer review, lack of general acceptance, and lack of known rate of error.

United States v. Hamilton, No. 05-10247 (9th Cir. Feb. 28, 2006) (unpublished).  District court excludes testimony from criminal defendant's expert on eyewitness evidence.  Jury convicts.  Exclusion affirmed.  No abuse of discretion.

United States v. Latysheva, No. 03-50004 (9th Cir. Jan. 10, 2006) (unpublished).  Prosecution offers testimony from federal agent Mark Tyson on money laundering.  Jury convicts.  Admissibility affirmed.  Not all Daubert factors necessarily apply to testimony like this.  No abuse of discretion.

Jerden v. Amstutz, 430 F.3d 1231 (9th Cir. 2005).  Neurosurgeon reaches incorrect diagnosis of brain tumor based on misinterpreted MRI results and performs unnecessary craniotomy on patient before correct diagnosis of multiple sclerosis is made.  In trial of patient's malpractice action against neurosurgeon, plaintiffs call nurse practitioner who assisted neurosurgeon.  On cross-examination, counsel for neurosurgeon asks nurse practitioner whether MRI results indicated brain tumor in nurse practitioner's opinion.  District court overrules patient's objection, holding that nurse practitioner's testimony constitutes factual rather than expert evidence.  Nurse practitioner testifies that MRI results showed brain tumor.  Jury finds for neurosurgeon.  Admissibility reversed.  Because of its incorrect perception that nurse practitioner was simply testifying about facts, district court failed to apply proper legal standard to determine whether his testimony was admissible as lay or expert opinion.  If it was offered as lay opinion, then district court should have determined whether it satisfied requirements of Fed. R. Evid. 701, including requirement that lay opinion testimony not be based on specialized knowledge.  Mere percipience of facts on which witness's opinion is based does not trump requirements of Fed. R. Evid. 702.  If nurse practitioner's opinion was offered as expert testimony, it is dubious that he was competent to provide it.  Remanded for new trial.

Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353 (9th Cir. 2005).  Commercial nurserymen settle claims against DuPont for crop damage allegedly caused by nurserymen's use of DuPont's contaminated fungicide (Benlate).  On later learning that DuPont withheld evidence of damning test results, nurserymen sue DuPont for fraudulent inducement of settlement.  DuPont moves for summary judgment, arguing that nurserymen cannot show they suffered any damages. To show effect of DuPont's suppression of evidence on settlement value of first suit, nurserymen rely on expert testimony from litigator J. Anderson Berly, III.  Trial court grants summary judgment to DuPont.  Exclusion reversed.  Assuming that trial court excluded Berly's testimony under Fed. R. Evid. 702, trial court abused its discretion.  Even nonscientific testimony must be screened for reliability, but such considerations as peer review and error rate are simply inapplicable to experience-based testimony such as Berly's.  Because there is no indication that district court weighed Berly's knowledge and experience, its analysis was conducted under incorrect legal standards.  District court should try again on remand.   

Armstrong v. Lab One, Inc., No. 04-15061 (9th Cir. Nov. 28, 2005) (unpublished).  Claimant sues ERISA plan for long-term disability benefits.  Plan relies on opinions from non-examining physicians and nurses.  District court awards summary judgment to plan.  Admissibility affirmed.   Claimant waived Daubert objection by failing to present it in district court.

Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005).  ALJ relies on expert testimony in denying disability benefits under Social Security.  Affirmed.  Daubert does not govern admissibility of evidence in administrative proceedings.

Estate of Flores v. Bryan, No. 03-57156 (9th Cir. Nov. 1, 2005) (unpublished).  In suit against police alleging they used excessive force, plaintiff objects when defendants offer fiber comparison testimony from criminalist Jennifer Shen.  District court overrules objection and jury rules for defendants.  Admissibility affirmed.  District court permissibly concluded that criminalist's failure to exclude alternative sources of fibers did not mandate exclusion of her testimony.

United States v. Alisal Water Corp., 427 F.3d 597 (9th Cir.), amended, 431 F.3d 643 (9th Cir. 2005), cert. denied, 74 U.S.L.W. 3617 (U.S. 2006).  At penalty phase of civil enforcement action under Safe Drinking Water Act, trial court permits one defense expert to testify on valuation of water systems but excludes testimony from second expert as cumulative.  Exclusion affirmed.  No abuse of discretion.

Massok v. Keller Indus., Inc., No. 03-55949 (9th Cir. Sept. 1, 2005) (unpublished).  Plaintiff sues ladder manufacturer for injuries he suffered when ladder slipped from underneath him.  To show defective design, plaintiff offers testimony from engineer David Paul.  Trial court initially denies defendant's pretrial motion in limine but ultimately strikes expert's testimony at trial for lack of sufficient qualifications and awards judgment as matter of law to defendant.  Plaintiff appeals.  Exclusion affirmed.  Expert testified he held bachelor's degree in mechanical engineering, worked as forensic engineer, and had extensive experience in analyzing ladder slip-out cases.  But trial court found that witness had never designed ladders or written or lectured on subject.  Moreover, witness relied on inadequate testing and had failed state mechanical engineering exam five times.  It is true that formal credentials are not necessarily required to qualify as expert witness, and reasonable minds could differ in this instance.  But trial court did not abuse its discretion.  Nor did trial court err in reversing course from its pretrial ruling; even if nothing unexpected happened at trial, trial court was free to change its mind.  Concurrence/dissent: Exclusion of expert's testimony was permissible but judgment as matter of law was improper.

United States v. Chong, No. 03-10222 (9th Cir. Aug. 18, 2005) (unpublished).  In extortion trial, prosecution offers generic testimony from police officer re structure of local Asian organized crime groups.  Jury convicts.  Admissibility affirmed.  Officer's testimony was helpful to trier of fact.  Trial court barred officer from testifying to participation in gang activity by specific individuals.

United States v. Barrera-Medina, No. 03-10455 (9th Cir. July 7, 2005) (unpublished).  Defendants are charged with various offenses relating primarily to conspiracy to purchase one million pseudoephedrine pills to manufacture methamphetamine.  At trial, prosecution offers testimony by law enforcement officer on use of weapons and counter-surveillance by drug traffickers.  District court admits testimony and jury convicts.  Exclusion reversed.  District court considered defendants' objection under Fed. R. Evid. 403 but abdicated its gatekeeping function, and thereby erred, in failing to rule on defendants' similar but distinct reliability objection under Fed. R. Evid. 702.  However, error was harmless.

Meyer v. General Nutrition Center, No. 03-56883 (9th Cir. June 15, 2005) (unpublished).  Did plaintiff's consumption of nutritional supplements containing defendant's L-tryptophan cause plaintiff's eosinophilia-myalgia syndrome (EMS)?  Dr. Gerald Gleich so opines for plaintiff.  District court strikes his testimony as unreliable and awards summary judgment to defendants.  Exclusion reversed.  Based on literature review and his own extensive research, expert concluded that defendant's L-tryptophan was only known cause of EMS.  District court's decision was based on disagreement with expert's conclusions, rather than any failing in his methodology. 

United States v. Donat, No. 03-10620 (9th Cir. June 10, 2005) (unpublished).  Trial court excludes testimony from criminal defendant's expert on stun guns.  Jury convicts.  Exclusion affirmed.  Expert had no specific expertise in effects of stun guns on human body or whether stun gun is dangerous weapon.  His knowledge about stun guns was based on reading articles on dangers of stun guns and on his survey of materials from stun gun manufacturers.

United States v. Butler, No. 04-30110 (9th Cir. June 7, 2005) (unpublished).  In narcotics trial, prosecution offers testimony from detective on use of cash, scales, pay/owe ledgers, plastic bags, and firearms in connection with methamphetamine distribution activities.  Trial court admits testimony and jury convicts.  Admissibility affirmed.  No abuse of discretion.

Lanphere Enters. v. Jiffy Lube Int'l, Inc., No. 03-35617 (9th Cir. June 1, 2005) (unpublished).  Trial court excludes plaintiff's survey evidence in trade disparagement case and awards summary judgment to defendant.  Exclusion affirmed.  District court permissibly excluded evidence as irrelevant or only marginally relevant, unduly prejudicial, and unreliable by virtue of its analytical gaps.  No abuse of discretion.

United States v. Rodgriquez-Salazar, No. 04-10073 (9th Cir. Apr. 11, 2005) (unpublished).  In narcotics trial, prosecution calls expert on automotive bonding materials.  Trial court admits testimony and jury convicts.  Admissibility affirmed.  Expert had thirty years' experience in automotive industry.  Any lack of particularized expertise went to weight, not admissibility.

Steinberg Moorad & Dunn, Inc. v. Dunn, No. 03-55953 (9th Cir. Mar. 30, 2005) (unpublished).  Party to lawsuit involving claims of unfair competition offers testimony from "Dr. Rausser" regarding damages.  Admissibility affirmed.  No abuse of discretion.

United States v. Sanchez-Birruetta, No. 04-30150 (9th Cir. Mar. 18, 2005) (unpublished).  In criminal prosecution, government relies on expert testimony from fingerprint identification specialist Thomas Liszkiewicz.  Jury convicts.  Admissibility affirmed.  Defendant says FBI's solicitation of new research on reliability of fingerprint identification establishes that existing research does not validate its reliability.  But validity of existing studies on which expert relied was not called into question by FBI solicitation.  Moreover, expert's comparison was between two sets of rolled prints, and such comparisons are more reliable than comparisons involving partial prints.

Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005).  Plaintiff in Title VII suit offers expert testimony from statistician James Dannemiller to show that shipyard discriminates against Pacific-Americans in promotions.  District court excludes testimony and jury finds for defendants.  Exclusion reversed.  Plaintiff's statistical evidence may have failed to account for disparities in qualifications, but that did not render it irrelevant or inadmissible.

Dorn v. Burlington N. Santa Fe R.R., 397 F.3d 1183 (9th Cir. 2005).  Train strikes truck at crossing, killing driver.  Driver's widow files wrongful death and survivorship action against railroad.  Widow offers testimony from economist Stan V. Smith, Ph.D., on general subject of hedonic damages.  Railroad challenges his opinion as unreliable, but district court denies railroad's motion to exclude it.  Railroad then attempts to offer testimony from its own economist, Thomas Ireland, Ph.D., that economists lack tools to determine value of human life.  Widow objects that court has already determined Dr. Smith's testimony on that subject to be reliable.  District court sustains objection to Dr. Ireland's testimony, and jury awards $6.7 million to widow.  Exclusion reversed.  Admissibility of testimony from widow's expert did not imply inadmissibility of contrary testimony from railroad's expert.  Weighing experts' competing testimony on this point was for trier of fact.  Because case is remanded for new trial on this and other grounds, admissibility of widow's expert economic testimony is not reached.  However, railroad raises valid concern: Dr. Smith's methodology called for use of market-based figures to estimate hedonic damages, but his actual estimate also incorporated figures from government safety programs that did not reflect individuals' market valuations of their own safety or welfare. 

Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir.), amended, 402 F.3d 875 (9th Cir.), cert. denied, 126 S. Ct. 374 (2005).  Exotic dancers bring First Amendment challenge against ordinance mandating that they maintain two-foot distance from patrons when performing.  District court upholds ordinance.  Affirmed.  Dancers claim that studies purporting to link adult entertainment businesses to crime and STD's, on which city relied in enacting ordinance, lack scientific validity.  But city council was not required to rely on Daubert-quality evidence in framing its judgment that ordinance would further legitimate governmental purposes.

United States v. Fox, No. 02-50022 (9th Cir. Jan. 6, 2005) (unpublished).  Defendant is charged with securities fraud, mail fraud, and money laundering.  Prosecution offers expert testimony from FBI accountant Steve Eidson, who reviews and analyzes financial records to trace funds.  Defendant objects that accountant's testimony merely summarizes facts that jury could analyze for itself and therefore fails to satisfy Daubert's helpfulness-to-jury requirement.  District court admits testimony and jury convicts.  Admissibility affirmed.  Funds flowed through twelve separate accounts, and expert analyzed 100 boxes of financial records.  District court permissibly relied on testimony to make these complex transactions accessible to jury via expert's summary and analysis.

Steppin' Out, Inc. v. National Sav. Corp., No. 01-17282 (9th Cir. Jan. 6, 2005) (unpublished).  District court excludes testimony from defendants' expert in trial of copyright infringement action.  Affirmed.  Exclusion was proper discovery sanction for expert's submission of tardy and incomplete report.

United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004).  Defendant is charged with possession of firearm by felon.  Prosecution offers detective's expert testimony on gangs to rebut exculpatory evidence from defense witness.  Trial court admits testimony, and jury convicts.  Admissibility affirmed.  District court permissibly held that testimony was neither unreliable nor more prejudicial than probative.  Similar testimony has previously been upheld against similar objections in prior cases.  District court legitimately weighed detective's extensive experience with street gangs.  No abuse of discretion.

United States v. Ramirez-Robles, 386 F.3d 1234 (9th Cir. 2004), cert. denied, 544 U.S. 1035 (2005).  Trial court refuses to admit defendant's expert evidence re exculpatory polygraph.  Jury convicts.  Exclusion affirmed.  Trial court did not state evidentiary basis for decision, but decisions excluding polygraph evidence may be affirmed on any ground supported by record and briefed by parties.  Because district court did not perform Daubert inquiry, exclusion cannot be affirmed on reliability grounds.  But record supports conclusion that evidence was more prejudicial than probative under Fed. R. Evid. 403.

Bobacher v. Wacker USA Corp., No. 03-15752 (9th Cir. Oct. 15, 2004) (unpublished).  District court excludes testimony from plaintiffs' expert in failure to warn claim involving saw.  Exclusion affirmed.  Lower court did not err in finding testimony unreliable because expert performed no tests and produced no published tests on saw's fastening system.

Cooper v. Travelers Indem. Co. of Ill., No. 03-15551 (9th Cir. Oct. 13, 2004) (unpublished).  In bench trial of insurance claim, district court excludes testimony on lost profits from plaintiff's economist Robert Johnson and awards judgment to defendant insurer.  Exclusion affirmed.  Economist himself testified that in his ordinary practice he would verify client-supplied data but did not do so here.

Renfrew v. Toms, No. 02-17386 (9th Cir. Aug. 2, 2004) (unpublished).  District court declines to entertain objectors' Daubert challenge to forensic economist who estimates company's stock value in settlement approval proceedings.  Affirmed.  Trial court was not required to entertain Daubert challenge, but only to hold hearing where objecting parties could air their views.

United States v. Gaybor, No.  03-10061 (9th Cir. July 21, 2004) (unpublished).  Defendant charged with brandishing firearm in connection with crime of violence offers testimony from human factors expert.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Testimony regarding effect of armored truck's convex mirrors did not require expert illumination.  Some courts have admitted expert testimony on identification and human factors, but district court did not abuse discretion in declining to do so.

United States v. Verduzco, 373 F.3d 1022 (9th Cir.), cert. denied, 543 U.S. 992 (2004).  Criminal defendant admits smuggling drugs but says he did so under duress.  In support, defendant offers testimony from sociologist, who opines that defendant's reluctance to approach police for help may have stemmed from defendant's socialization in Mexico, where law enforcement authorities are often corrupt.  District court excludes testimony on three grounds: (1) as sanction for pretrial discovery violation; (2) because testimony's tendency to confuse jury would outweigh its probative value; and (3) as unhelpful to trier of fact, because defendant had worked and resided in United States for substantial period of time.  Jury convicts.  Exclusion affirmed.  Exclusion of testimony as discovery sanction was too drastic, but district court permissibly found that sociologist's culturally stereotyping testimony would be more prejudicial than probative.  Trial court was not required to conduct Daubert hearing, because it excluded testimony on sufficient alternative grounds.

Hangartner v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004).  Insurance expert Frank Caliri testifies for plaintiff in bad faith claim over disability insurer's objections.  Admissibility affirmed.  Defendants say district court should not have qualified expert because he lacked experience regarding claims adjustment standards in specific context of bad faith claims.  But expert had 25 years of industry experience and had been qualified as expert 12 times before.  Defendants also say expert's methods were unreliable.  It is true that district court erred in asserting that Daubert was inapplicable to expert's testimony, but district court conducted careful analysis in ruling on motion to strike and during voir dire and legitimately found that witness's opinions were grounded in his experience.  No abuse of discretion.

United States v. Akins, No. 03-10053 (9th Cir. June 22, 2004) (unpublished).  Criminal defendant unsuccessfully challenges prosecution's fingerprint identification testimony.  Jury convicts.  Affirmed.  Any error was harmless because other evidence amply supported conviction.

United States v. Green, No. 03-50080 (9th Cir. May 11, 2004) (unpublished).  Defendant is convicted on drug charges after government agent testifies as expert on meaning of code words in drug trade.  Admissibility affirmed.  Agent testified to his qualifications and methodology, and jury was left to decide on criminal intent.

United States v. Birdsbill, No. 03-30204 (9th Cir. May 4, 2004) (unpublished).  In sexual molestation trial, district court excludes expert testimony explaining results of defendant's Abel Assessment of Sexual Interest ("AASI") test.  Jury convicts.  Exclusion affirmed.  District court permissibly found that: (1) AASI test is used for treatment and is not designed for diagnostic purposes; (2) test's author did not use control group, and test may not ferret out "fakers"; (3) test has not been subjected to adequate peer review; (4) its error rate "varies from poor . . . to appalling"; and (5) test is not generally accepted as diagnostic tool for pedophilia.

Sullivan v. United States Dep't of the Navy, 365 F.3d 827 (9th Cir. 2004).  Following breast reconstruction surgery, patient develops wound with necrotic tissue in lower back, at site where tissue was harvested.  Patient subsequently experiences muscle weakness in back and requires later surgery to correct scarring and disfigurement.  In medical malpractice action against original surgeon, patient offers testimony from Dr. Anne M. Wallace, who opines that surgery's unusual length caused infection and necrosis.  District court excludes testimony and awards summary judgment to surgeon.  Exclusion reversed.  Trial court's ruling rested on erroneous conclusions concerning legitimately disputed issues of fact (location of infection, nature of wound).  Moreover, trial court applied inappropriately rigid Daubert standard to medical expert testimony.  Although Daubert is relevant, Kumho Tire's standards for experience-based testimony are more apposite.  Basic medical principles on which expert relied are generally accepted, and application of those principles is proper domain of surgeon experienced in field.  District court should conduct new admissibility analysis on remand, "proceed[ing] as a good surgeon would in determining what is reliable knowledge in the surgical profession."

United States v. Prime, 363 F.3d 1028 (9th Cir. 2004), amended, 431 F.3d 1147 (9th Cir. 2005).  In prosecution for wire fraud and various counterfeiting offenses, government offers testimony from Kathleen Storer, forensic document examiner with Secret Service, who opines that defendant was author of over 38 incriminating exhibits.  Admissibility affirmed.  Ample peer-reviewed literature establishes reliability of handwriting analysis.  Technique has low rate of error, follows emerging standards, and is generally accepted in forensic community.

United States v. Blaine County, 363 F.3d 897 (9th Cir. 2004), cert. denied, 544 U.S. 992 (2005).  United States sues county under section 2 of Voting Rights Act, claiming that county's at-large election system impermissibly dilutes vote of American Indians.  To show racially cohesive voting by American Indians in county, United States offers Dr. Theodore Arrington, who testifies over county's objection that in all fourteen county-wide elections he examined, American Indian voters exceeded 67% cohesion.  United States also calls two other experts, again over county's objection.  District court rules against county and enjoins its at-large election system.  Admissibility affirmed.  County complains that district court did not rule on its objections to experts' testimony.  But district court did evaluate reliability of Dr. Arrington's testimony, and court's ruling on the merits did not rely on testimony from United States' other experts in any essential way.  County also contends that Dr. Arrington's testimony was unreliable, because he relied on race-identified registration lists.  But county's own expert testified that such reliance is customary and appropriate, and Dr. Arrington's and county expert's bivariate ecological regression analysis and homogenous precinct analysis yielded similar results.

United States v. Carreno, 363 F.3d 883 (9th Cir. 2004), vacated on other grounds, 543 U.S. 1099 (2005).  El Salvadoran woman residing in United States pays to have her sons smuggled into country.  Smugglers appear at rendezvous and announce price increase, saying they will return with boys when parents obtain money.  After consulting with authorities, parents contact smugglers, on police advice, and say they have money and will pay.  Police arrest smugglers when they show up for second rendezvous.  Did smugglers threaten boy with abuse if parents failed to pay?  Eight-year-old boy fails to mention any such threat during five FBI interviews over two years, but describes threat of abuse in sixth interview and testifies to threat at trial.  To rebut his testimony, defendants offer expert testimony on suggestibility of children.  District court excludes evidence under Fed. R. Evid. 702 because "there is no relevant proffer to establish the necessity for expert testimony in this matter."  In alternative ruling, district court excludes testimony as more prejudicial than probative under Fed. R. Evid. 403.  Jury convicts and defendants appeal.  Exclusion affirmed.  Defendants' arguments about late-breaking character of boy's allegations are "speculative enough" that appellate panel cannot say trial court abused its discretion.  Because district court's decision under Rule 702 is upheld, panel need not reach alternative basis under Rule 403.

Wroncy v. Oregon Dep't of Transp., No. 02-35809 (9th Cir. Apr. 2, 2004) (unpublished).  Woman sues transportation department, alleging its application of herbicides on roadways aggravates her Multiple Chemical Sensitivity ("MCS") and Dual Variegate Porphyria.  District court awards summary judgment to transportation department, ruling that MCS and porphyria are basically identical and that evidence of MCS is inadmissible under Daubert.  Alternatively, district court holds that plaintiff presented insufficient evidence of causation.  Affirmed.  Record does not support district court's conclusion that MCS and porphyria are identical.  Defendant's own expert testified that porphyria is "an established medical illness," whereas district court found that disease of MCS has yet to gain general acceptance in medical community.  However, district court's alternative sufficiency ruling was correct.  Plaintiff presented no evidence, except her own lay testimony, that she came in contact with herbicides or that they caused her reactions.

McGregor v. Paul Revere Life Ins. Co., No. 02-16817 (9th Cir. Jan. 15, 2004) (unpublished).  In suit against insurer for refusal to pay disability benefits, insured offers testimony from her treating physician, "Dr. Markison," who opines that plaintiff is unable to perform her duties as court reporter.  Jury finds for plaintiff.  Admissibility affirmed.  Trial court's reliability findings were brief, but did not represent abdication of gatekeeping function.  Trial court did not err in ruling that credibility issues could be addressed through cross-examination.  Even assuming trial court had erred, any error would be harmless, because witness could have offered most of his testimony based on his status as plaintiff's treating physician. 

Greenberg v. Paul Revere Life Ins. Co., No. 02-16501 (9th Cir. Jan. 12, 2004) (unpublished).  In suit for bad faith termination of disability benefits, plaintiff offers testimony from insurance industry expert Donald Kelley.  Insurance company objects.  District judge suggests permitting expert to testify about claims handling but not about legal matters.  Insurer's counsel says: "Then we'll have no problem with the Court's order."  Jury finds for plaintiff.  Admissibility affirmed.  Contrary to insurer's argument, district court was not required to assess such factors as peer review, publication, and error rates, because this type of testimony depends heavily on expert's knowledge and experience, rather than methodology or theory behind it.  In any event, insurer waived objection at trial.

United States v. McCoy, No. 01-10539 (9th Cir. Jan. 8, 2004) (unpublished), cert. denied, 125 S. Ct. 137 (2004).  In drug conspiracy trial, prosecution offers testimony from expert who translates numeric codes from pagers to indicate cocaine prices and quantities, identification codes, times, and phone numbers.  Jury convicts.  Admissibility affirmed.  No abuse of discretion.  Indeed, given voluminous numerical evidence at heart of government's case, it is difficult to see how trial could have proceeded without expert's guidance.

United States v. Castellon, No. 02-50406 (9th Cir. Oct. 31, 2003) (unpublished), cert. denied, 124 S. Ct. 1621 (2004).  Narcotics defendant is convicted after law enforcement agent opines re defendant's leadership role in organization and quantity of drugs dealt.  Admissibility affirmed.  No clear error.

Porges ex rel. United States v. RQ Constr., Inc., No. 02-56168 (9th Cir. Oct. 29, 2003) (unpublished).  In action alleging breach of contract for electrical work on Navy housing development, district court awards damages after hearing testimony from plaintiff's expert on lost profits during bench trial.  Admissibility affirmed.  Expert's testimony was not unreliable as matter of law, and district court was free, as trier of fact, to evaluate evidence as it saw fit.   

Recreational Developments of Phoenix v. City of Phoenix, No. 02-16890 (9th Cir. Oct. 17, 2003) (unpublished).  Proprietors and patrons of social clubs catering to "swinging lifestyle" bring action to challenge constitutionality of city ordinance forbidding such conduct.  District court strikes testimony from two experts offered by plaintiffs to opine on swinging-related subjects, and awards summary judgment to city.  Exclusion affirmed.  District court was well within discretion in concluding that testimony lacked requisite reliability.

Bennett v. Schuberth Helme GMBH & Co., No. 02-35747 (9th Cir. Oct. 8, 2003) (unpublished).  In product defect litigation, district court excludes testimony from plaintiff's expert, Dr. Malcolm Newman, on causation of plaintiff's injuries.  Exclusion affirmed.  Expert admitted he could not identify plaintiff's specific injuries or analyze them to determine what forces caused them.

Clausen v. M/V New Carissa, 339 F.3d 1049 (9th Cir. 2003).  Vessel spills 70,000 gallons of crude oil near Oregon's Coos Bay, state's richest oyster-growing area.  Within three weeks, 3.5 million oysters have died.  Oyster farmers sue vessel owners and operators to recover damages for loss of their stock.  To prove causation, oyster farmers offer testimony from marine biologist Dr. Ralph Elston, who opines that contact with oil particulates caused oysters to develop lesions, which became infected, causing their death.  Defendants counter with their own marine biologist, Dr. Jerry Neff, who opines that oysters' lesions were caused by low salinity in bay due to heavy rainfalls.  District court denies defendants' motion to strike Dr. Elston's testimony, and jury awards damages to plaintiffs.  Admissibility affirmed.  Both experts performed differential diagnosis in which they first "ruled in" six potential causes: (1) infectious disease; (2) freezing trauma; (3) acute toxic effects of non-oil contaminants; (4) acute toxic effects of oil; (5) low salinity; and (6) low-level toxic effects of oil.  Both then "ruled out" causes (1) through (4).  Dr. Elston also "ruled out" cause (5), settling on cause (6) -- contact toxicity.  Defendants complain on appeal that Dr. Elston lacked sufficient scientific basis to "rule in" contact toxicity, but defendants' own expert did the same, and had previously written that oil exposure can cause gill lesions in fish.  It is true, as Dr. Elston conceded, that support for his theory in published literature relating specifically to shellfish is sparse, but experts need not always rely on peer-reviewed literature in "ruling in" potential causes, and may rely on other objective, verifiable evidence.  Here, in "ruling in" contact toxicity, Dr. Elston relied on histopathological investigations, detailed history of oyster site, government reports re oil spill, temporal and physical proximity of spill, and literature on contact toxicity in other species.  Similarly, in "ruling out" low salinity, he relied on historic rainfall patterns, government salinity tests, and failure of oysters to exhibit characteristics of anaerobic low salinity mortality.  No abuse of discretion.

United States v. Moran, No. 02-10372 (9th Cir. July 10, 2003) (unpublished), cert. denied, 124 S. Ct. 1660 (2004).  Defendant is charged with negligent discharge of pollutant into publicly owned water treatment works.  Prosecution offers testimony re characteristics of discharge from expert Jeffrey Yoshimoto.  Admissibility affirmed.  District court properly determined that testimony was both relevant and reliable.  Deviation from sampling plan went to weight of expert's testimony, not admissibility.  

United States v. Garabet, No. 02-50388 (9th Cir. June 26, 2003) (unpublished).  Ophthalmologist is indicted for mail fraud in services-not-performed scheme.  Another ophthalmologist, Dr. Steven Schwartz, testifies for prosecution that five of defendants' patients show no retinal scarring, whereas laser surgery performed within parameters indicated on defendant's charts would always leave a scar.  Admissibility affirmed.  Defendant did not object to expert's testimony at trial and so review is for plain error.  Prosecution expert based his testimony on examinations of patients and reviews of their fluoroscein angiograms -- methods accepted by every eye doctor who testified.

United States v. Rojas-Torres, No. 02-30338 (9th Cir. June 9, 2003) (unpublished), cert. denied, 124 S. Ct. 347 (2003).  Prosecution offers fingerprint evidence against criminal defendant, and jury convicts.  Admissibility affirmed.  Defendant argues that fingerprint evidence does not satisfy Daubert's requirements for scientific reliability.  District court conducted Daubert hearing and weighed relevant Daubert factors.  No abuse of discretion.

Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003).  Man creates and markets home video revealing how to perform several well-known magic tricks and illusions.  Several years later, Fox airs series of television specials with similar theme.  Creator of home video sues Fox for copyright violation.  Fox moves for summary judgment.  To evidence infringement, creator of home video offers testimony from Judith Kauffman, who boasts extensive experience in television and film development and production, and who opines on thematic similarities between home video and Fox series.  District court disregards expert's testimony and awards summary judgment to Fox.  Exclusion affirmed.  District court itself analyzed alleged similarities in detail, and could have rejected expert's views as unhelpful because legally irrelevant or too abstract to support infringement claim.  

United States v. Hornbeck, No. 02-50146 (9th Cir. Apr. 25, 2003) (unpublished).  After conducting hearing on bank robbery defendant's motion in limine, district court admits prosecution testimony re bloodhound alert, and jury convicts.  Admissibility affirmed.  Evidence was probative because it connected defendant's car with material from crime scene, and K-9 handler had worked in field for eight years. 

Lee v. City of Stockton, No. 02-15168 (9th Cir. Feb. 19, 2003) (unpublished).  Plaintiffs say police shot and killed their son.  Police, eyewitnesses, and forensic evidence says gunshot was self-administered.  District court strikes testimony from two experts, John Bush and Dr. Michael Rigdon, who support plaintiffs' position, and grants summary judgment to defendants.  Exclusions affirmed.  Plaintiffs did not establish qualifications of either expert.  Moreover, Dr. Rigdon's letter did not constitute testimony under oath.

White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002), amended, 335 F.3d 833 (9th Cir. 2003).  Father parks Ford pickup on incline, leaving vehicle in first gear and engaging parking brake (or so he later testifies).  His young son clambers into truck unobserved, jumps or falls out when truck begins to roll backwards down incline, and is crushed beneath pickup's wheels.  Ford knew when truck was sold, based on tests performed by Ford as well as brake's manufacturer, that defect in brake's design could lead to failure in rare instances, but Ford did not warn consumers or issue recall.  Did defect cause brake failure here?  In family's suit versus Ford, family says boy must have shifted truck into neutral, which boy would lack strength to do unless brake were engaged, and that parking brake must then have failed on its own, because boy was too small to disengage it.  Ford suggests that perhaps father did not really set parking brake at all.  To support its own theory, family offers testimony from professor of material science and engineering, Dr. Campbell Laird, whose principal experience is in metallurgy.  Dr. Laird opines on three points: (1) that this particular brake did suffer from relevant defect, based on his inspection; (2) that defect could cause parking brake to disengage if truck were shaken or otherwise disturbed; and (3) that defect must have caused accident.  Ford objects to Dr. Campbell's testimony on points (2) and (3), but district court permits testimony, and jury returns large verdict for plaintiffs.  Admissibility affirmed.  District court believed Daubert inapplicable to nonscientific issues such as product design, but that view was rejected in Kumho Tire.  District court was nevertheless within its sound discretion to admit Dr. Laird's testimony on point (2).  Dr. Laird does not purport to be accident reconstructionist, and performed no tests of his own.  But his training did render him competent to read and interpret reports on tests performed by manufacturers, and those reports support his conclusion that brake was vulnerable to disengaging if vehicle was disturbed.  Absence of peer-reviewed scientific publications supporting same conclusion does not alter result, because there is no reason to suppose that parking brake design is of sufficient interest to scientific community to generate any peer-reviewed literature.  Admissibility of Dr. Laird's opinion on point (3) is closer question.  From presence of defect in brake, credible record evidence that truck had been parked in first gear with brake engaged, and undisputed fact that truck rolled over boy, Dr. Laird simply employed logic to conclude that accident probably happened in hypothesized fashion.  This opinion arguably required little or no expertise in metallurgy or engineering, or any expertise beyond what any layperson might possess.  But district court cannot be said to have abused its discretion.

United States v. Seschillie, 310 F.3d 1208 (9th Cir. 2002), cert. denied, 538 U.S. 953 (2003).  Charged with shooting and injuring several persons, defendant contends he did not intend to fire weapon, but that weapon discharged four times by accident during struggles over control of gun.  To support his theory, defendant offers testimony from criminologist Ray Gieszl.  District court permits Gieszl to testify on general scenarios that can lead to accidental discharge of weapons, but not to comment on facts of case or offer ultimate opinion on whether defendant intended to fire.  Jury convicts.  Exclusion affirmed.  No abuse of discretion.  Jury could apply its own common sense to determine whether weapon discharged accidentally under any of expert's scenarios. 

CDM Mfg. v. Complete Sales Representation, Inc., No. 01-56138 (9th Cir. Oct. 29, 2002) (unpublished).  Jury returns verdict for plaintiff in action for unpaid sales commissions after plaintiffs' expert testifies re damages.  Admissibility affirmed.  Plaintiff's expert was qualified, and used mathematical extrapolation, straight line linear progression, and averaging to arrive at his figures.  Defendants attack none of these methodologies, and their objections go to weight, not reliability.

United States v. Booth, 309 F.3d 566 (9th Cir. 2002).  Wire fraud defendant offers polygraph to show he did not harbor fraudulent intent.  District court excludes polygraph and jury convicts.  Exclusion affirmed.  District court properly excluded polygraph evidence under Fed. R. Evid. 704(b), because it was offered to disprove mens rea.  No Daubert hearing was required, because district courts may exclude polygraph evidence under any applicable rule, without analyzing all other possible bases for exclusion.

United States v. Navarro-Fletes, No. 01-30247 (9th Cir. Oct. 24, 2002) (unpublished).  District court admits fingerprint testimony in criminal case over defendant's objections.  Admissibility affirmed.  District court properly considered Daubert factors and permissibly determined that fingerprinting passes muster.  Nor did lower court err in finding fingerprint expert qualified.  She had twelve years' experience identifying thousands of prints, as well as suitable training.

Belford v. Farmers Ins. Group, No. 00-57187 (9th Cir. Aug. 29, 2002) (unpublished).  At trial of unspecified claims, district court refuses to permit testimony from insurance company expert on unspecified subject, concluding that factual issue is not complex enough for jury to require someone to explain it.  Jury finds against insurance company.  Exclusion affirmed.  Company says trial court erred in focusing on whether jury needed expert testimony, rather than on whether testimony would assist jury.  But company's point is purely semantic.  Trial court applied proper standard in evaluating complexity of issue and determining whether testimony would assist trier of fact.

United States v. Oliver, No. 01-10329 (9th Cir. Aug. 22, 2002) (unpublished).  At trial of man for illegal possession of firearm by felon, prosecution calls law enforcement officer to opine that materials in defendant's auto were consistent with poaching.  Admissibility affirmed.  Officers experience as investigator of fish and game violations qualified him to render expert testimony on practices of poachers.  Defendant also says evidence was irrelevant and prejudicial.  It is true that defendant was not charged with poaching, and that poaching was not required element of prosecution's proof.  But officer's testimony, in combination with other evidence, did assist trier of fact in determining whether weapon was brought by defendant's companion for companion's use alone, or for their joint use.  

United States v. Finley, 301 F.3d 1000 (9th Cir. 2002).  Man attempts to negotiate transparently bogus financial instruments obtained from Montana Freemen.  At trial on fraud charges, he defends on ground that he honestly believed instruments to be valid, offering testimony from psychologist Dr. John J. Wicks that defendant suffers from "atypical belief system."  District court grants prosecution motion to strike testimony as unhelpful to jury.  Exclusion reversed.  Psychologist relied on standard techniques of psychological testing, interviews, and gathering patient history, and his experience in evaluating thousands of persons should not be undervalued.  Expert did not opine on element of offense or usurp role of jury in evaluating credibility.

Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended on denial of rehearing en banc, 319 F.3d 1073 (9th Cir. 2003).  Did university deny tenure to black professor discriminatorily, or merely because he was slow to complete Ph.D. and had poor publication record?  In Title VII suit against university, professor offers testimony from expert on racial discrimination, Dr. David Wellman, who identifies eight criteria for "decoding" discriminatory behavior.  District court denies defendants' motion in limine, and jury awards substantial damages.  Admissibility reversed.  Professor says university waived its evidentiary objections by failure to renew them at trial, but where district court has ruled definitively on admissibility in adjudicating motion in limine, renewal of objections at trial is not required under Fed. R. Evid. 103(a)(2).  Turning to merits of objections, record reflects no reliability analysis by district court, and testimony cannot be considered harmless, so action must be remanded for reliability ruling and new trial.

United States v. Quezada, No. 00-50053 (9th Cir. July 31, 2002) (unpublished), cert. denied, 537 U.S. 1238 (2003).  Prosecution offers testimony re drug-trafficking organizations.  Admissibility reversed.  On appeal, defendant raises various objections to agent's testimony.  District court should have excluded testimony as irrelevant.  But defendant did not object below, and district court did not commit plain error, because testimony did not affect defendant's substantial rights, so conviction is affirmed.

United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002).  Man disseminates documents suggesting in various ways that President Clinton should be killed.  Criminal charges ensue.  At trial, Secret Service Agent Jim Deal testifies as expert, over defendant's objection, and opines that documents would be construed by reasonable recipients as containing threats.  Other Secret Service Agents testify to similar effect.  Jury convicts.  Admissibility reversed.  Agents were no more qualified than average juror to gauge how reasonable recipients would interpret documents.  If anything, agents were less qualified, because professionally sensitized to "threats" that typical recipient might not reasonably perceive.

United States v. Johnson, No. 00-30359 (9th Cir. June 14, 2002) (unpublished), cert. denied, 537 U.S. 1142 (2003).  District court admits expert testimony from prosecution on relationship between pimps and prostitutes.  Admissibility affirmed.  Other decisions have upheld similar evidence, and district court did not abuse discretion.  Panel need not reach question whether district court erred in not conducting Daubert hearing, because defendant did not preserve issue for appeal.

In re Hanford Nuclear Reservation Litig., 292 F.3d 1124 (9th Cir. 2002).  The Webmaster recuses himself from analysis of this opinion, because he and other attorneys from his firm served as counsel for appellants.  Readers are encouraged to review this opinion for themselves.  The Ninth Circuit issued a press release summarizing the decision.

United States v. Patterson, 292 F.3d 615 (9th Cir. 2002), amended, 381 F.3d 859 (2004).  Defendant is charged with manufacturing marijuana plants in felonious quantities.  Prosecution offers testimony from horticulturalist, Prof. Danny L. Barney, that plants seen on police video had established root systems and were therefore capable of independent survival.  Admissibility affirmed.  Expert never worked with marijuana plants before but testified that relevant characteristics are common to plants in general.  District court did not abuse discretion in concluding that expert's lack of specific experience with marijuana plants went to weight, not admissibility.

United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002), amended, No. 99-10092 (9th Cir. Sept. 16, 2002) (unpublished), cert. denied, 537 U.S. 1223 (2003).  At narcotics conspiracy trial, FBI agent John Broderick testifies to meaning of jargon and slang terms used in alleged conspirators' intercepted phone conversations.  Defendants do not object to testimony regarding words commonly used in drug trade, but do challenge reliability of agent's testimony re words that agent encountered for first time in this case.  District court admits testimony and jury convicts.  Admissibility reversed.  Agent could not rely on general familiarity with street terms commonly used in drug trade to opine on meaning of terms agent had never encountered before.  It is conceivable that reliability of such testimony could be defended, but it was not established here.  However, error was harmless.  [N.B.: The published opinion in this matter was withdrawn on the same date as the unpublished amended opinion was issued, and the unpublished opinion appears to conclude that the trial court did not err in admitting the testimony.]

Schudel v. General Electric Co., No. 99-36089 (9th Cir. May 10, 2002) (unpublished), cert. denied, 537 U.S. 887 (2002).  Plaintiffs allege that exposure to solvents during environmental cleanup caused respiratory problems.  At trial, district court admits causation testimony for plaintiffs from three physicians over defendants' objections.  Jury returns verdict for plaintiffs.  On first appeal, Schudel v. General Electric Co., 120 F.3d 991 (9th Cir. 1997), testimony from physicians is held inadmissible, and case is remanded for further proceedings.  On remand, district court orders plaintiffs to come forward with new, admissible causation evidence.  Plaintiffs do so.  District court concludes that "new" evidence does not differ materially from previous causation evidence, excludes it, and awards judgment to defendants.  Exclusion affirmed.  There was only one material change in expert testimony -- viz., one physician who previously testified that injuries were "related to" toxins now opined instead that toxins "more probably than not" caused injuries.  Such tailoring of testimony fatally undermines any contention that physician's opinion is based on scientific methods.

United States v. Ambriz-Vasquez, No. 01-10144 (9th Cir. May 2, 2002) (unpublished).  INS agent testifies to twelve-point fingerprint match.  Admissibility affirmed.  Defendant objects to district court's failure to hold Daubert hearing on (1) reliability of fingerprinting techniques and (2) agent's qualifications.  Defendant's first objection falsely assumes that district courts may not take judicial notice of reliability of fingerprint analysis.  It would be unduly onerous to require Daubert hearings every time defendants object to fingerprinting, and Ninth Circuit has previously held that district courts do not commit clear error in admitting fingerprint evidence without first conducting Daubert hearings.  As for qualifications, agent had extensive coursework and experience.  Defendant had ample opportunity to impeach agent's testimony at trial.

United States v. Pineda-Torres, 287 F.3d 860 (9th Cir.), cert. denied, 537 U.S. 1066 (2002).  Man is arrested at Mexican border when marijuana is found in secret compartments in his vehicle.  He is charged with possession with intent to distribute, but not with conspiracy.  At trial, district court admits testimony from customs agent Robert Villars re modus operandi of drug trafficking organizations.  Jury convicts.  Admissibility reversed.  Expert evidence on practices of drug trafficking organizations is inadmissible, because irrelevant and prejudicial, when conspiracy is not charged.  Prosecution says that evidence was offered to rebut defendant's position concerning lack of fingerprint evidence, via expert testimony that drivers in smuggling operations do not generally load their own vehicles.  But it was not defendant who "opened the door" to fingerprint testimony.  Defendant cross-examined prosecution's witnesses on this subject only after advised by district court that prosecution's testimony would be admitted to explain lack of fingerprints, and only after defendant was instructed to "plan accordingly."

Hemmings v. Tidyman's, Inc., 285 F.3d 1174 (9th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).  Two women are denied promotion to corporate management and sue for sex discrimination.  District court admits testimony from their statistician, Dr. Nyak Polissar, and jury returns verdict for plaintiffs.  Admissibility affirmed.  Defendant says statistician erred in using comparison pool comprising defendant's management employees, because data set (a) was not representative of entire available pool of qualified labor and (b) improperly included store management employees as well as corporate management employees.  But (a) data set was representative, because defendant promotes from internal ranks, and (b) defendant does sometimes promote store management personnel to corporate management; moreover, inclusion of store management was necessary to make gender comparisons.  Defendant also says statistician did not eliminate other causal variables (e.g., variations in education or qualifications), but regression analysis need not achieve near-impossible goal of ruling out all other causal factors.  Ordinarily, failure to include relevant variables will affect regression's weight, not its admissibility. 

United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, 537 U.S. 1038 (2002).  Prosecution offers narcotics agent to testify to value of marijuana in defendant's possession.  District court admits testimony after conducting Daubert hearing in jury's presence.  Admissibility affirmed.  Defendant argues that agent's methods were not testable and could not be reviewed for error rates, and that resulting estimates were not generally accepted.  But test for admissibility under Daubert and Kumho Tire is flexible, and narcotics agent could testify based on his extensive experience.  District court did not err in refusing to conduct Daubert hearing outside presence of jury.

United States v. Martinez-Garduno, No. 01-10343 (9th Cir. Mar. 26, 2002) (unpublished), cert. denied, 537 U.S. 890 (2002).  Deportee prosecuted for reentry challenges government's use of fingerprint evidence to prove he is indeed same person who was previously deported.  Admissibility affirmed.  Regardless of merits of fingerprint identification under Daubert, any error was harmless, because evidence overwhelmingly supported guilt.

Furry v. Bielomatik, Inc., No. 01-55442 (9th Cir. Mar. 21, 2002) (unpublished), cert. denied, 537 U.S. 886 (2002).  Fingers of worker's right hand are crushed between rollers of paper converting machine.  In products liability suit against machine's manufacturer, worker offers testimony from safety engineer, Dr. Waymon Johnston, that machine should have been equipped with four different safety features.  District court excludes Dr. Johnston's testimony and awards summary judgment to defendant, because Dr. Johnston offers no details on design of safety features he proposes.  Exclusion reversed.  Safety engineers are not required to opine on design or function of safety features.  Rather, according to Dr. Johnston's testimony, their role is to make conceptual determination whether safety feature is required, whereupon design and implementation are left to mechanical or electrical engineers.  True, plaintiff was required to offer evidence that proposed safety features were practicable, but such testimony did not have to come from Dr. Johnston himself, and plaintiffs did offer evidence on this subject from other sources, including defendants' discovery responses.  District court abused discretion in excluding Dr. Johnston's testimony.  Because based entirely on exclusion of plaintiff's expert testimony, summary judgment is reversed.

United States v. Hernandez-Silva, No. 00-10641 (9th Cir. Mar. 12, 2002) (unpublished).  Man is found hiding in Arizona desert near burlap sacks containing 64 pounds of marijuana, and burlap fibers are found on his clothing.  On trial for possession of marijuana with intent to distribute, man objects to prosecution's expert testimony on modus operandi of drug traffickers.  Admissibility affirmed.  Expert testimony that persons commonly transport drugs from Mexico in burlap sacks, and guard those sacks until they are picked up and passed further down the distribution chain, was relevant to show conspiracy, and was not within common knowledge of average juror.

Mason v. Equitable, No. 00-56588 (9th Cir. Feb. 27, 2002) (unpublished).  Employee files long-term disability claim after physician performing surgery for bladder cancer tells employee that further exposure to industrial solvents could cause recurrence.  Insurer denies claim and employee sues.  District court excludes testimony from employee's physician experts for want of relevance and reliability.  Exclusion affirmed.  District court did not abuse discretion.  Even assuming that continued performance of employee's occupation would require some exposure to solvents, employee offered no competent medical evidence to show that risks would be greater for him than for population at large.  [See also Mason v. Equitable, No. 02-56384 (9th Cir. Oct. 14, 2003) (unpublished) (affirming subsequent grant of summary judgment).] 

Miranda v. Clark County, 279 F.3d 1102 (9th Cir. 2002), overruled on rehearing en banc, 319 F.3d 465 (9th Cir.), cert. denied, 540 U.S. 814 (2003).  Roberto Hernandez Miranda is represented in Nevada state court proceedings by county public defender's office.  Office has alleged policy of administering polygraphs to its clients to aid in decisions about allocation of scarce public defender resources.  Miranda performs poorly on polygraph.  Represented at trial by rookie in capital cases, Miranda is convicted and sentenced to death.  Miranda continues to protest vigorously that he is innocent, and pursues various appellate remedies.  After fourteen years of incarceration, Nevada Supreme Court concludes that Miranda received ineffective assistance of counsel at trial and overturns conviction.  State declines to reprosecute, and Miranda is released from jail.  Miranda sues county and the public defenders under section 1983, based in part on alleged polygraph policy.  District court dismisses his claims.  Affirmed by panel.  Claim against rookie public defender must be dismissed because attorneys performing function of representing clients as public defenders do not act under color of state law.  As for claims against public defender's office and county, Miranda admits that public defenders may make discretionary decisions allocating resources and fails to explain why polygraph results may not constitutionally be one factor in such decisions.  Indeed, use of polygraphs at trial is constitutional under Scheffer, and so their use by public defender's office in aid of administrative decisions clearly is not constitutionally suspect.  Reversed on rehearing en banc.  Unconstitutional for polygraph results to be determinative in such circumstances.

United States v. Williams, No. 01-30046 (9th Cir. Jan. 28, 2002) (unpublished).  District court refuses to entertain criminal defendant's Daubert challenge to fingerprint evidence.  Conviction affirmed (because admitting evidence was harmless error).  Defendant contends that although district court was not necessarily required to conduct Daubert hearing on defendant's objections to fingerprint evidence, district court erred in not even ruling on reliability of evidence.  Defendant is correct, but error was harmless.

United States v. Giorgies, No. 01-10047 (9th Cir. Jan. 22, 2002) (unpublished), cert. denied, 535 U.S. 1087 (2002).  Prosecution offers handwriting expert in prosecution for fraudulent passing of checks.  Conviction affirmed.  Even if district court erred in not conducting Daubert inquiry, testimony from handwriting expert did not play significant role.  Jury was given handwriting samples allowing them to make independent assessment, and any error was harmless in light of overwhelming evidence against defendant.

United States v. Johnson, No. 00-50479 (9th Cir. Jan. 10, 2002) (unpublished), cert. denied, 537 U.S. 1241 (2003).  Defendant charged with smuggling aliens challenges government expert who testifies that defendant's handwriting from known samples and exemplar matches handwriting on fraudulently submitted forms.  Admissibility affirmed.  Expert was qualified, testimony was relevant, and Ninth Circuit has previously held that science of handwriting analysis may assist jury.

Domingo v. T.K., 276 F.3d 1083 (9th Cir.), amended, 289 F.3d 600 (9th Cir. 2002).  After hip replacement surgery, patient suffers from fat embolism syndrome (FES), goes into coma, and suffers severe brain damage.  Did unusual length of time required to mallet prosthesis during surgery cause patient's injury?  Plaintiff's expert physician so testifies in medical malpractice action, based on expert's experience, observation, and review of pertinent studies.  Defendants move to exclude expert's testimony and/or for appointment of special master.  District court appoints board-certified orthopedic surgeon as technical advisor, and advisor issues report concluding that plaintiff's expert's testimony is neither scientifically derived nor based on objectively verifiable scientific principles.  After parties have opportunity to respond to advisor's report, district court excludes plaintiff's expert testimony.  Plaintiff then argues that causation is supported by portions of defense experts' testimony, but district court concludes otherwise, and further holds that relevant testimony from defense experts is subject to exclusion under Daubert in any event.  There being no expert evidence from any quarter to support causation, district court awards summary judgment to defendants.  Exclusion affirmed.  Plaintiff's expert reasoned that unusual malleting time was only unusual aspect of plaintiff's surgery, but FES is risk associated with all hip replacement surgery, and nothing in literature cited suggests that risk increases when some aspect of surgery proceeds atypically.  Expert's malleting theory was not published, peer-reviewed, or clinically tested, does not enjoy general acceptance, and is not otherwise supported by objective and verifiable scientific principles.  District court acted within sound discretion in excluding plaintiff's expert's testimony.  As for defense experts, district court correctly ruled that their testimony would not support permissible jury inference of causation, and so summary judgment was properly awarded.  Accordingly, Ninth Circuit need not reach question whether district court's exclusion of defense experts' testimony under Daubert was appropriate.   [N.B.: Text of opinion was amended by order of 4/12/02 denying rehearing and rehearing en banc; revised opinion appears at 289 F.3d 600.]

United States v. Strange, No. 00-50619 (9th Cir. Nov. 19, 2001) (unpublished), cert. denied, 535 U.S. 1028 (2002).  Defendant on trial for Medicare fraud objects to testimony from government expert on Medicare regulations and reimbursement procedures.  Admissibility affirmed.  Expert was qualified and topic was appropriate for expert testimony.  No abuse of discretion.

Nadell v. Las Vegas Metro. Police Dep't, 268 F.3d 924 (9th Cir. 2001), cert. denied, 535 U.S. 1057 (2002).  To support claim she suffered physical injury when police applied excessive force, civil rights plaintiff offers testimony of physician [?] who performed quantitative electroencephalogram (QEEG).  District court excludes testimony after finding QEEG methodology unreliable following two-day Daubert hearing.  Exclusion affirmed.  Hearing included testimony from leader of joint task force of American Academy of Neurology and American Clinical Neurophysiology Society that QEEG technique's subjectivity and tendency to produce "false positives" had kept it from gaining general acceptance as tool for diagnosing closed head injuries.  Moreover, plaintiff had suffered head injuries as child and QEEG test could not distinguish her childhood injuries from any injuries sustained from police.

Jinro America, Inc. v. Secure Invs., Inc., 266 F.3d 993 (9th Cir.), amended, 272 F.3d 1289 (9th Cir. 2001).  South Korean businesses and American companies enter into international chicken-trading agreement.  When deal goes sour, South Korean companies sue for breach of contract.  American companies defend by alleging that deal was sham designed to cover up high-risk investment program that circumvented Korea's currency regulations.  American companies offer general manager of Pinkerton's Detective Agency's Korean office as expert in Korean law and business practices.  Korean companies object that witness is unqualified and will make ethnically biased generalizations about Korean business and culture.  Trial court bars witness from testifying about Korean law because witness is not lawyer, but otherwise overrules objections.  Witness then testifies about corrupt practices in which "Korean businessmen" engage.  Admissibility reversed.  Expert was not qualified and his testimony was unreliable and prejudicial.  He had no education or training in anthropology, sociology, or culture generally, or in Korean culture in particular.  As basis for his opinions, he cited not scientific studies or methods, but rather anecdotal experiences from his investigations, input from his office staff, and his Korean wife.  His testimony amounted to cultural stereotyping.

Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001).  Is herbal concoction safe?  News story raises doubts.  Herbal company sues reporter and television station for trade libel.  Company presents testimony from five risk assessment experts, and from physician re her unpublished cardiovascular risk study, animal toxicity tests, and short-term efficacy studies.  Trial court excludes all testimony as unreliable.  Exclusion affirmed in part and reversed in part.  District court erred in imagining that per se rule barred all use of animal studies to prove human effects, and also in supposing that research conducted outside United States is presumptively unreliable.  Nor is extrapolation from high-dose short-term studies to low-dose long-term situations impermissible per se; it depends on details about studies themselves.  Rather than exclude cardiovascular study because it was commissioned by defendant and not peer-reviewed, district court should have evaluated reliability of methods.  And district court should not have excluded risk assessment evidence on conclusory grounds.  District court did correctly rule that efficacy studies went to effectiveness of herbal product and were not relevant to safety.

Provident Life & Accident Ins. v. Fleischer, No. 99-56866 (9th Cir. Aug. 30, 2001) (unpublished).  Professional loses license due to criminal activity.  In suit to recover under professional disability policy, professional offers expert testimony that bipolar disorder caused him to commit thefts from clients and credit card companies.  Exclusion affirmed.  Even if disability benefits were recoverable in California under theory that disability caused criminal misconduct resulting in loss of licensure, expert opinion that bipolar disorder caused thefts was properly excluded under Daubert.  Expert's report cited no scientific studies or principles supporting conclusion that bipolar disorder causes commission of crimes, or even to support proposition that persons with bipolar disorder are statistically likelier than others to commit crimes.

S.M. v. J.K., 262 F.3d 914 (9th Cir. 2001), amended, 315 F.3d 1058 (9th Cir. 2003).  Housekeeper brings tort action against employer who sexually assaulted her.  Trial court admits testimony from plaintiff's psychiatrist that she suffers from post-traumatic stress disorder (PTSD).  Admissibility affirmed.  Psychiatrist first diagnosed plaintiff in 1992, when psychiatrists were still relying on revised third edition of Diagnostic and Statistical Manual (DSM-III-R).  Under DSM-III-R, triggering event for PTSD had to fall outside range of usual human experience.  Psychiatrist testified, however, that triggering event could be less severe, and next edition of Diagnostic and Statistical Manual (DSM-IV) omitted requirement that trigger be outside normal human experience, so that psychiatrist's diagnostic criteria now enjoy general acceptance.  Moreover, psychiatrist's testimony might satisfy even DSM-III-R, which suggests that rape and assault might be triggers.  In any event, mental health professionals often differ over diagnoses, but even questionable opinions may be admissible if in the realm where reasonable experts could differ.  Conformity with DSM is not precondition for admissibility, and trial court did not abuse discretion in admitting this testimony.

United States v. Coleman, No. 99-50018 (9th Cir. Aug. 7, 2001) (unpublished), cert. denied, 534 U.S. 1147 (2002).  At drug conspiracy trial, FBI agent testifies for prosecution re meaning of code words, without being qualified as expert.  Admissibility affirmed.  Insofar as agent's testimony concerned code words specific to conspiracy, it was admissible lay opinion.  Insofar as it involved code words in more general usage, it should have been offered as expert opinion, because agent's opinions derived from knowledge acquired outside his investigation of this case.  However, any error was harmless because agent would have satisfied test for qualification as expert based on his extensive training and experience.

Gebhardt v. Mentor Corp., No. 00-15279 (9th Cir. Aug. 1, 2001) (unpublished).  Anti-reflux prosthesis is implanted in surgery, is found during subsequent exploratory surgery to have eroded into patient' stomach and pericardium.  Patient sues device manufacturer.  Plaintiff offers testimony from Ph.D. with industry experience in labeling of medical devices and FDA regulations.  District court excludes testimony because expert is not medical doctor and because plaintiff has not shown how expert is qualified to testify on medical issues.  Exclusion affirmed.  Expert had no medical training or experience and was in no position to offer opinion on how warning label would have affected surgeons in their decisions whether to employ prosthesis.  Experts need not have medical degrees to testify on medical matters, but this expert's experience with FDA was not enough.  In any event, testimony was irrelevant to causation because surgeon here was learned intermediary who did not rely on labeling.

United States v. Och, No. 00-10351 (9th Cir. July 31, 2001) (unpublished).  Bank robbery defendant objects to testimony from handwriting examiner, contending that witness is unqualified and that handwriting analysis is methodologically unreliable.  District court admits testimony and jury convicts.  Affirmed.  Admissibility of testimony need not be reached because any error was harmless.

United States v. Abonce-Barrera, 257 F.3d 959 (9th Cir. 2001).  At trial for conspiracy to distribute methamphetamine, DEA agent Florentino Rosales testifies for prosecution concerning transcription and translation of tape-recorded conversations in Spanish.  Jury convicts.  Admissibility affirmed.  Agent was born in Mexico, took between 24 and 30 college courses in Spanish and Latin American Studies, and has extensive employment experience using his translation skills.  Defendant argues that agent has never been qualified as expert previously, but Fed. R. Evid. 702 imposes no such requirement.  Defendant also says testimony was biased because agent also participated in case investigation.  But defendant did not raise this issue below, and in any event, bias generally goes to weight, not admissibility.  Rule 702 is liberally construed in areas involving "other specialized knowledge," and district court did not abuse discretion in admitting testimony.

United States v. Skavinsky, No. 00-10153 (9th Cir. July 12, 2001) (unpublished).  Criminal defendant offers exculpatory polygraph.  District court excludes it under Fed. R. Evid. 403 and 702Exclusion affirmedOn appeal, defendant challenges exclusion under Rule 702, but not under Rule 403, which is sufficient basis by itself for district court's decision.  Trial courts will rarely be held to have abused discretion in refusing to admit polygraph evidence. 

United States v. Murillo, 255 F.3d 1169 (9th Cir. 2001), cert. denied, 535 U.S. 948 (2002).  DEA agent testifies at criminal trial about value of drugs found in defendant's rental car, number of doses that such amount constituted, and modus operandi of drug traffickers.  Admissibility affirmed.  Standard of review under Kumho Tire is deferential, and given extensive voir dire to establish agent's qualifications, district court did not abuse discretion in admitting testimony. 

United States v. Garrido-Hernandez, No. 99-50502 (9th Cir. June 20, 2001) (unpublished), cert. denied, 534 U.S. 1169 (2002).  Defendant is convicted of illegally transporting aliens after district court refuses to admit defendant's expert on eyewitness testimony.  Exclusion affirmed.  Defendant never established foundation that witness was qualified as expert, that proposed testimony was scientific, or that testimony would assist jury.

Guidroz-Brault v. Mo. Pac. R.R., 254 F.3d 825 (9th Cir. 2001).  Unknown saboteurs tamper with train rails and disable electric warning system.  Passengers injured in consequent derailment bring negligence action against railroad, offering three expert witnesses: (1) locomotive engineer, who testifies to duty of locomotive engineers to maintain lookout; (2) technical lighting engineer, who testifies that displacement in rails should be visible for 500 feet; and (3) accident reconstructionist, who testifies, assuming visibility of damage to tracks, that emergency brakes should have been applied 400 feet from site of derailment.  District court awards summary judgment after excluding testimony from all three experts as speculative and unreliable.  Exclusion affirmed.  District court gave only abbreviated consideration to experts' qualifications and reliability, because district court believed plaintiffs' claims to be barred in any event on theory that sabotage of tracks was unforeseeable and superseding cause of injuries.  However, even assuming, arguendo, that saboteurs' conduct was not superseding cause of derailment, plaintiffs must show that railroad could have averted accident.  In this light, district court was correct to exclude most of evidence and did not abuse its discretion.  (1) Locomotive engineer properly testified on operating procedures and standards of care for railroad engineer, but testimony on duty of lookout falsely presupposed that some defect in tracks was visible, whereas no record evidence established this.  (2) Lighting engineer's testimony contradicted locomotive engineer's as to visibility of tracks.  Contradictions between methodologies of plaintiffs' experts make exclusion under Daubert appropriate "to some extent," at least absent firm record evidence that some manifestation of track displacement would have been visible.  (3) Accident reconstructionist's testimony was likewise predicated on unsupported assumption that track damage was visible.

United States v. Franco, No. 00-10090 (9th Cir. June 4, 2001) (unpublished).  In criminal prosecution for illegal transport of aliens, law enforcement agent testifies as expert, on subjects not specified in Ninth Circuit's opinion.  Admissibility affirmed.  Agent had extensive knowledge and experience, more than satisfying Kumho Tire's reliability requirement.  Agent was permitted to testify to ultimate facts, so long as he did not testify to defendant's state of mind.

United States v. Froelich, No. 00-10222 (9th Cir. May 18, 2001) (unpublished), cert. denied, 534 U.S. 939 (2001).  Trial court refuses to admit criminal defendant's unstipulated polygraph evidence.  Exclusion affirmedDaubert hearings are not required in every case where unstipulated polygraph evidence is tendered.  It is unfortunate that district court did not articulate reasons for rejecting polygraph evidence.  However, proponent bears burden of prima facie showing that evidence satisfies Daubert, and defendant attempted such showing only with respect to polygraphy in general, untethered to methods used in this case.

United States v. Mendoza-Paz, No. 00-50029 (9th Cir. Apr. 23, 2001) (unpublished), cert. denied, 123 S. Ct. 573 (2002).  Defendant is convicted of possessing and importing marijuana based in part on testimony from narcotics agent and chemist.  Admissibility affirmed.  Defendant argues that testimony from agent and chemist was not sufficiently disclosed under Fed. R. Crim. P. 16(a)(1)(E), but defendant has not shown how any prosecution failure to provide timely and complete summaries of expert opinions and qualifications prejudiced defendant's substantial rights.  Defendant also contends that agent's testimony should have been excluded because agent's estimates were not subject to empirical testing, could not be reviewed for error rates, and had not been accepted in any relevant scientific community.  But trial courts may rely on knowledge and experience of narcotics agents rather than methodology or theory behind their testimony.

United States v. Rosales, No. 00-50272 (9th Cir. Apr. 12, 2001) (unpublished).  On trial for filing false tax returns, defendant offers "tax expert" to testify that she was not required to report certain income on personal return.  District court excludes testimony.  Exclusion affirmed.  Proposed testimony represented legal conclusion, and it is judge's role to instruct jury on law.

United States v. Mendoza, 244 F.3d 1037 (9th Cir.), cert. denied, 534 U.S. 897 (2001).  Concerned that his girlfriend will miss her connection in San Francisco for her flight to Korea, and hoping to delay its takeoff, man anonymously phones airport with bogus bomb scare.  Unbeknownst to boyfriend, plane has already left gate, and takes off before airline can respond to call.  On learning that bomb is thought to be aboard plane, pilot turns plane back towards San Francisco and summons crew to discuss how to deal with situation.  However, while plane is still airborne, boyfriend is identified and contacted, and he admits his bomb threat was hoax.  Plane again reverses course and lands safely in Korea.  Boyfriend is charged with endangering safety of aircraft in flight.  Prosecution affords pretrial disclosure of intention to call flight captain to testify about how flight was endangered.  However, captain is unavailable when trial commences, and during opening argument, prosecutors announce their intention to call co-pilot instead.  Defendant objects, claiming that co-pilot is undisclosed expert witness, and that defendant would have hired rebuttal expert if government's intention to call co-pilot had been revealed in timely manner.  Trial court overrules objection, ruling that contemplated testimony is lay opinion by percipient witness, and co-pilot testifies that flight was endangered by need to respond to bomb threat and by crew anxiety thereby caused.  Jury convicts.  Admissibility affirmed.  If testimony was expert opinion rather than lay opinion, any error was harmless, because co-pilot's extensive experience and training would have qualified him as expert, and defendant has not contested those qualifications, either in trial court or on appeal.  Failure of pretrial disclosure does not warrant reversal, because common sense indicates that both captain and co-pilot would ascribe endangerment of aircraft to emergency measures and anxiety occasioned by bomb threat.

Robertson v. Commissioner of Internal Revenue, No. 99-71368 (9th Cir. Mar. 5, 2001) (unpublished).  Tax court concludes that computer sale-leaseback was sham transaction and assesses penalties for negligence after finding testimony by taxpayer's expert [accountant?] unreliable and irrelevant.  Exclusion affirmed.  "The tax court in this case found that Appellants' expert testimony was not objective; it therefore did not abuse its discretion in deeming the testimony unreliable."

United States v. Charlesworth, No. 00-50117 (9th Cir. Feb. 26, 2001) (unpublished), cert. denied, 532 U.S. 1072 (2001).  Defendant pleads guilty to manufacturing currency but appeals sentence, challenging district court's reliance on Secret Service report concerning amount of currency seized.  Reliance affirmed.  In sentencing, district court may consider material not admissible in evidence at trial if it possesses sufficient indicia of reliability.  Secret Service report met this criterion and was independently corroborated.

United States v. Taylor, 239 F.3d 994 (9th Cir. 2001).  Pimp transports minor across state lines for purposes of prostitution.  Prosecution introduces testimony from "academic expert" on relationships between prostitutes and pimps to explain why minor failed to testify truthfully in previous proceedings against pimp.  Admissibility affirmed.  Defendant complains that no Daubert hearing was held, but district court did hold Daubert hearing.  Moreover, district court correctly ruled that expert testimony was relevant to buttress credibility of prosecution's principal witness.  General relationship between prostitutes and pimps is not subject of common knowledge.  Trier of fact, if unaware of such relationship, may be unable to assess veracity of prostitutes' testimony.   District of Columbia Circuit came to same conclusion, re same expert, in similar case.

Marin Tug & Barge, Inc. v. Westport Petroleum, Inc., No. 99-17154 (9th Cir. Jan. 18, 2001) (unpublished).  Contaminated oil is loaded on barge.  Defendant's expert testifies that flushing adequately cleaned the barge.  Admissibility affirmedDaubert challenge raised only on appeal comes too late.

United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001).  Hispanic defendant charged with importation and possession of marijuana offers, but district court excludes, testimony from defendant's high school psychologist that defendant's severe language disorder explains discrepancies between defendant's recollection of interrogation and recollection of customs agents.  Exclusion reversed.  Difficulties understanding and speaking English encountered by special education students in high-pressure situations are not within common knowledge of average layperson.   Such testimony was relevant to defendant's struggles to express himself during interrogation and at trial and could aid jury re same.  Sufficiency of psychologist's expertise was not disputed, and testimony was admissible although psychologist did not personally examine defendant, because expert did review ten years' worth of school documentation re defendant.  Failure to examine goes to weight, not admissibility.

United States v. Moreno, No. 00-10031 (9th Cir. Dec. 4, 2000) (unpublished).  Customs inspector testifies at drug trial regarding age of marijuana found in gas tank of defendant's Ford Bronco, and jury convicts.  Admissibility affirmed.  Inspector examined marijuana from gas tank and compared it with marijuana she had seen in other cases.  Her testimony was thus founded on her own rational perceptions, and was admissible as lay opinion.

Doe v. Glanzer, 232 F.3d 1258 (9th Cir. 2000).  In civil action arising from alleged child molestation, plaintiff's counsel asks at defendant's deposition whether defendant has ever submitted to penile plethysmograph -- test that purportedly measures subject's physiological response when subject is presented with certain visual images (e.g., pictures of young girls).  Defense counsel invokes Fifth Amendment, and witness does not answer question.  Plaintiff's counsel asks that jury be permitted to draw adverse inference from Fifth Amendment's invocation, but district court refuses.  Exclusion affirmed.  Test results would be inadmissible even if they existed, because courts have uniformly held penile plethysmographs to be unreliable under Daubert.

United States v. Salazar-Munoz, No. 99-10566 (9th Cir. Oct. 16, 2000) (unpublished).  Government agent testifies for prosecution re methods and tactics used by smugglers to transport illegal aliens into United States.  Jury convicts defendant of that offense.  Admissibility affirmed.  Purpose of agent's testimony was to educate jury about operating procedures of undocumented alien smuggling schemes, and particularly about use of commercial vehicles such as taxis and buses to convey appearance of legitimacy.  Agent did not tie his testimony to defendant's own behavior, and testimony was more probative than prejudicial. 

United States v. Wildcat, No. 99-30345 (9th Cir. Oct. 4, 2000) (unpublished), cert. denied, 531 U.S. 1174 (2001).  On trial for second degree murder arising from automobile accident, defendant offers accident reconstructionist.  District court permits expert to testify re speed of vehicle and to opine that laws of kinematics would have pushed occupants to left, but not to opine on identity of driver.  Exclusion affirmed.  Witness admitted he was not expert on occupant kinematics, had not published articles on any facet of accident reconstruction, and conducted no tests involving low speed rearward rollovers.

United States v. Recio, 258 F.3d 1069 (9th Cir. 2000), rev'd on other grounds, 537 U.S. 270 (2003).  In drug smuggling conspiracy case, DEA agent Anthony Hinton testifies for prosecution, opining re attributes of large and complex drug operations.  Admissibility affirmed.  Testimony satisfied Fed. R. Evid. 702.   

United States v. Lua, No. 99-10497 (9th Cir. Aug. 31, 2000) (unpublished), cert. denied, 531 U.S. 1101 (2001).  Prosecution calls DEA agent to testify that drug traffickers do not typically entrust large quantities of drugs to unwitting transporters.  Admissibility affirmed.  Given agent's broad experience, district court did not abuse discretion in admitting testimony.  Nor did testimony run afoul of rule against expert evidence on mens rea, because testimony is barred under that rule only if it necessarily follows from testimony that defendant did or did not possess requisite mental state, and DEA agent testified only regarding what was typical.

United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000).  In criminal trial for marijuana possession, government offers customs agent to testify on issues of marijuana value, distributable quantity, and structure and organization of drug organizations.  Defendant requests separate pretrial Daubert hearing, but district court permits only voir dire in presence of jury.  Admissibility affirmed.  No separate pretrial hearing is necessarily required (citing Kumho Tire).  [N.B.: Other related evidentiary issues are treated in contemporaneous unpublished opinion dated August 16, 2000, docket number 99-50587.]

Ellis v. Coleman Co., No. 99-35341 (9th Cir. Aug. 9, 2000) (unpublished).  Jury returns verdict for defendant in products liability action after watching defendant's videotaped accident reconstruction.  Admissibility reversed.  Accident reconstruction evidence is admissible only if Daubert is satisfied, and only if tests were conducted under conditions similar to those in accident at issue.  Record here shows critical differences in conditions that may have affected results.  Given powerful nature of reenactment evidence, danger of prejudice outweighed probative value of evidence.

United States v. Quezada-Daza, No. 99-30126 (9th Cir. July 21, 2000) (unpublished).  Prosecution fails to disclose during pretrial discovery that it will offer expert testimony from DEA agent.  Admissibility affirmed.  District court afforded remedy to defendants in form of extra time to prepare for cross-examination, and defendants neither filed any Daubert motion in district court nor requested any opportunity to do so.

United States v. Strode, No. 99-30074 (9th Cir. July 5, 2000) (unpublished).  District court excludes some but not all testimony from bank robbery defendant's expert on factors affecting eyewitness identification.  Exclusion affirmed.  Trial courts may exclude expert evidence on eyewitness identification even if evidence satisfies Daubert.  Here, trial court did not abuse discretion in partially excluding testimony as likely to confuse issues and mislead jury.  Trial court did caution jury on factors that affect reliability of eyewitness identifications.

United States v. Gonzalez, No. 99-50522 (9th Cir. July 5, 2000) (unpublished).  At defendant's trial for importation of marijuana and possession with intent to distribute, government offers expert opinion from customs agent, who testifies that costs rise when drugs cross border into United States.  Jury convicts.  Admissibility affirmed.  Purpose of testimony was to establish value of marijuana, so that jury might frame inference regarding defendant's knowledge and intent, and not to show that defendant fit any particular drug profile.  No abuse of discretion.

United States v. Benavidez-Benavidez, 217 F.3d 720 (9th Cir. 2000).  Criminal defendant offers exculpatory police polygraph.  Excluded by trial court, after extensive Daubert hearings, under Fed. R. Evid. 403, 702, and 704(b)Affirmed.  District courts have wide discretion in refusing to admit polygraphs and will "rarely" be held to abuse their discretion in doing so.  Courts are free to reject polygraph evidence based on any applicable rule of evidence.  No need to conduct Daubert hearing in every (polygraph) case

United States v. Campos, 217 F.3d 707 (9th Cir.), cert. denied, 531 U.S. 952 (2000).  Criminal defendant offers police polygraph to show she did not know drugs were in van.  Exclusion affirmed.  Unstipulated polygraph evidence going to ultimate issue of mens rea is inadmissible under Rule 704(b).  Reliability of polygraph under Daubert therefore moot.

United States v. Wright, 215 F.3d 1020 (9th Cir.), cert. denied, 531 U.S. 969 (2000).  One of bank robbers' weapons accidentally discharges during robbery, shooting robber in foot.  At trial, defendant objects to expert testimony matching DNA from his blood sample to DNA from blood at scene of robbery.  Admissibility affirmed.  Previous Ninth Circuit decisions have held DNA tests admissible under Daubert.  Defendant asks that those rulings be revisited, but relies on California Supreme Court decision in which lab personnel failed to follow proper scientific procedures.  No such failure is alleged here.

United States v. Boyd, No. 99-50091 (9th Cir. June 5, 2000) (unpublished).  At defendant's trial for possession of marijuana with intent to distribute, law enforcement officer testifies re modus operandi of drug smuggling operations.  Admissibility affirmed.  Defendant complains that district court did not make appropriate findings re Daubert inquiry, but nothing requires trial courts to document every decision to admit expert testimony.  This testimony was not complex.

Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000), cert. denied, 531 U.S. 1072 (2001).  Man kills California police officer while grossly intoxicated with PCP.  After conviction and capital sentence, man brings habeas action alleging ineffective assistance at guilt phase, at penalty phase, and on grounds of actual innocence.  Denial of habeas reversed in part.  Petitioner received ineffective assistance at penalty phase.  But petitioner's habeas claim based on actual innocence was correctly denied.  Even assuming that PCP intoxication could form basis for habeas claim based on actual innocence, petitioner's positron emission spectography (PET scan) evidence provides little support for petitioner, because prosecution expert offered unrefuted testimony at habeas hearing that PET scans do not enjoy general acceptance as method for diagnosing PCP, so that district court was "entitled to disregard" PET scan evidence under Daubert.

United States v. Inda-Mendoza, No. 99-50151 (9th Cir. Apr. 19, 2000) (unpublished).  In prosecution for transportation of undocumented aliens, defendant claims he had no idea that his truck trailer contained human cargo.  Government offers testimony from two law enforcement agents that alien smuggling operations are organized enterprises, often charging fees of $800 to $1200 per alien, that drivers are ordinarily highly paid, and that even novice driver would have known that truck was not empty.  Admissibility affirmed.  No Daubert objection was raised at trial, and so review is for plain error only.  This was garden variety testimony about organization of criminal enterprises to establish modus operandi, and it was admissible.   Defendant also complains, in defendant's opening brief on appeal, that one agent was allowed to testify without foundation, but record shows that district court raised foundation issue sua sponte, and on reply, defendant admits that defendant's counsel then explicitly waived foundation objection for strategic reasons.  "The question remains: why was it argued in the opening brief?  Counsel should be more careful."

United States v. Guyer, No. 99-10032 (9th Cir. Apr. 18, 2000) (unpublished).  Charged with bribery, defendant offers expert in "covert conversation analysis" to address government's wiretap evidence.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Record affords ample grounds for doubt that "covert conversation analysis" is beyond understanding of average juror, and also could support district court conclusion that witness is not expert in that subject.  Fed. R. Evid. 704(b) supplies alternative basis for exclusion insofar as witness's testimony related to defendant's state of mind.

United States v. Chang, 207 F.3d 1169 (9th Cir.), cert. denied, 531 U.S. 860 (2000).  Charged with securing loan through counterfeit Japanese financial instrument, defendant offers Edmond Lausier, assistant professor of clinical marketing at USC, to testify that instrument was authentic.  District court excludes testimony, and jury convicts.  Exclusion affirmed.  District court permissibly concluded that expert was qualified only to testify that similar instruments are in fact sometimes legitimately issued, and lacked qualifications to identify counterfeit securities. 

United States v. Hankey, 203 F.3d 1160 (9th Cir.), cert. denied, 530 U.S. 1268 (2000).  Gang member is tried for possession and distribution of PCP.  To impeach fellow gang member who gives exculpatory testimony, prosecution offers police expert on gangs who testifies that gangs have code of silence and that gang members who testify against other gang members are commonly subject to violent retribution.  Admissibility affirmed.  Defendant apparently believes that factors listed in Daubert as bearing on admissibility of scientific testimony should be applied mechanically to all expert testimony, but Supreme Court has emphasized flexibility of Daubert/Kumho inquiry in different contexts.  Police officer had specialized training in gangs and extensive experience therewith, and based his opinions on information provided to him by gang members.

United States v. Yagin, No. 99-15584 (9th Cir. Feb. 8, 2000) (unpublished).  Convict raises ineffective assistance claim, alleging attorney should have offered unstipulated exculpatory polygraph.  Held: No ineffective assistance, because polygraph was inadmissible per se at time of trial in 1993, and district court expressly stated it would have exercised any discretion to exclude polygraph if offered.

United States v. Malveaux, No. 98-50669 (9th Cir. Feb. 2, 2000) (unpublished).  Bank robbery defendant argues on pro se appeal that district court's decision admitting prosecution's fingerprint evidence violated FryeAdmissibility affirmed.  It is now Daubert, not Frye, that controls admissibility of expert evidence, and record reflects that government expert's fingerprint testimony was appropriately based on scientific techniques.

United States v. Filler, No. 98-10396 (9th Cir. Feb. 1, 2000) (unpublished).  Murder defendant who made inculpatory statements during FBI interview wants to attack FBI policy of not taping interviews.  To this end, defendant offers testimony from law enforcement expert that other law enforcement agencies do tape interviews.  District court excludes testimony as irrelevant.  Defendant also contends he lacked capacity to premeditate.  In furtherance of this point, he offers psychiatric expert, who is permitted to testify that defendant suffers from mental illness but not to opine on mens rea or credibility of inculpatory statements from interview.  Exclusion affirmed.  Testimony re interview taping was irrelevant in absence of duty by FBI to tape.  Moreover, it is speculative to assume that tape would have assisted defendant.  As for psychiatrist, evidentiary law forecloses expert testimony on mens rea, and credibility issues are for jury.

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