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Third Circuit (last Shepardized on 3/6/06)

Explanation of the statistics
Admissibility affirmance rate:    .943     (33/35)
Exclusion affirmance rate:    .792     (19/24)
Overall affirmance rate:    .881     (52/59)

United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006).  Defendant in carjacking case alleges mistaken identity and seeks to offer testimony from Dr. Jonathan Wolf Schooler, psychology professor and expert on human perception, on ten topics relating to eyewitness identification: (1) how show-up identification procedures affect witness accuracy; (2) comparison of show-up versus other identification procedures; (3) weapons focus; (4) absence of correlation between witness confidence and accuracy; (5) effects of exposure to multiple witnesses; (6) effects of hair coverings on eyewitness recognition ability; (7) confidence malleability (effects of post-identification information on witness's confidence); (8) effects of time delay on identification; (9) post-event suggestion; and (10) cross-racial identification.  After Daubert hearing, district court permits expert's testimony on topics (3), (5), (6), and (10), but bars it on remaining subjects.  Jury convicts.  Exclusion reversed.  Trial court excluded testimony on theory that it was unhelpful to trier of fact and could promote confusion.  But this testimony was highly relevant; trial fundamentally revolved around identification issues.  Juries do not arrive equipped with scientific knowledge of reasons why eyewitness identification can be unreliable.  Reversed and remanded for new trial.

Capital Funding VI, LP v. Chase Manhattan Bank USA, N.A., No. 04-4355 (3d Cir. July 11, 2006) (unpublished).  Capital Funding sues Chase over alleged misrepresentations in sale of credit-card accounts.  District court excludes testimony from Capital Funding's experts, Louise Epstein and Glenn Newman, and awards summary judgment to Chase.  Exclusion affirmed.  District court issued thorough and comprehensive opinion stating its reasons for finding experts' testimony unreliable.  Capital Funding says shortcomings found by district court in Newman's methods and data go to weight, not admissibility.  But district court did not abuse its wide discretion.

United States v. Adams, No. 03-2108 (3d Cir. July 10, 2006) (unpublished).  STR/PCR DNA evidence is admitted at bank robbery trial over defendants' objection.  Jury convicts.  Admissibility affirmed.  Reliability of DNA evidence was previously upheld in United States v. Trala, 386 F.3d 536 (3d Cir. 2004) [see infra].

United States v. Hurst, No. 05-2443 (3d Cir. June 20, 2006) (unpublished).  Detective offers expert testimony for government in prosecution under Motor Vehicle Theft Deterrent Act.  Jury convicts.  Admissibility affirmed.  Defendant complains that detective followed no discernible methodology, but detective's experience afforded sufficient basis for his testimony.

Sampathachar v. Fed. Kemper Life Assurance Co., No. 05-3433 (3d Cir. June 16, 2006) (unpublished).  In claim on life insurance policy, insured offers testimony from forensic dentist Linda Himmelberger to identify decedent.  Jury finds for insured.  Admissibility affirmed.  Expert opined to similarities between teeth in post-mortem photos and teeth from insured's dental records.  No abuse of discretion.

Havens v. Cont'l Cas. Co., No. 05-3075 (3d Cir. June 13, 2006) (unpublished).  ERISA plan denies disability claim, listing three occupations that plan believes claimant could perform.  Claimant files suit in district court, which finds for plan.  Reversed.  Finding that claimant was capable of performing alternative occupations was arbitrary and capricious.  Plan's denial letters merely list three potential occupations without explaining how plan's vocational expert identified them, and without discussing physical requirements of those occupations, otherwise describing them, or specifying where such information might be found.  ERISA plans may rely on their vocational experts to help identify alternative occupations, but it is not rational to defer to those experts absent some threshold indication that their opinions derive from reliable principles and methods, reliably applied to facts of case.  Remanded with directions to enter judgment for claimant.   

United States v. Reynolds, No. 04-3183 (3d Cir. Mar. 27, 2006) (unpublished).  In drug conspiracy trial, agent Ken Bellis gives expert testimony on role of shootings and firearms in narcotics trafficking.  Jury convicts.  Admissibility affirmed.  Defendant argues that testimony did not assist trier of fact, and indeed was prejudicial, since there was no evidence linking defendant to firearms or violence.  But statements about firearms and violence were not central to agent's testimony, and were not prejudicial in context of general discussion of drug operations.  District court reasonably concluded that evidence would aid jury in understanding nature of conspiracy alleged by government.

United States v. Patterson, No. 04-3380 (3d Cir. Mar. 14, 2006) (unpublished).  Special agent Anthony Tropea testifies in narcotics trial re use of telephones in narcotics trafficking operations.  Jury convicts.  Admissibility affirmed.  Agent had fourteen years of experience.  This kind of testimony is routine.  No abuse of discretion.

State Farm Fire & Cas. Co. v. Holmes Prods., Inc., No. 04-4532 (3d Cir. Jan. 31, 2006) (unpublished).  Insured's home burns to ground.  Insurer blames halogen lamp and brings subrogation claim against lamp's manufacturer.  To meet manufacturer's motion for summary judgment, insurer offers testimony from fire investigator Brian Gray.  District court excludes testimony and grants summary judgment to manufacturer.  Exclusion affirmed.  Expert had no methodological or factual basis to support his speculative opinion that lamp came into contact with drapes when knocked over by insured's dog.  Because there was no other basis to suppose that lamp ignited drapes, remainder of expert's testimony would not have assisted trier of fact.

United States v. Smith, No. 04-1860 (3d Cir. July 21, 2005) (unpublished).  Police officer is charged with applying excessive force and violating civil rights of man who died following arrest.  Prosecution offers testimony from medical expert who was not disclosed under Fed. R. Crim. P. 16.  Trial court rules that witness's nondisclosure is not prejudicial, holds Daubert hearing, and admits expert's testimony.  Jury convicts.  Admissibility affirmed.  Nondisclosure was not prejudicial, because defendant had opportunity to raise Daubert objections and cross-examine witness at trial.  Defendant points to no evidence undermining expert's qualifications.   

Mickens-Thomas v. Martinez, No. 04-3843 (3d Cir. July 7, 2005) (unpublished).  Parolee brings habeas petition challenging constitutionality of state's terms and conditions for his parole.  Over parolee's objection, state offers testimony from psychologist Dr. Veronique Valliere, who opines generally on risks of recidivism but disclaims knowledge of parolee's particular case.  District judge finds in state's favor.  Affirmed.  Testimony's admissibility need not be reached, because district court placed substantially no reliance on it.

United States v. Mornan, 413 F.3d 372 (3d Cir. 2005).  Handwriting expert testifying for prosecution says she "thinks" her opinions rise to level of reasonable degree of scientific certainty.  Jury convicts.  Admissibility affirmed.  Defendant raised no objection below and so review is for plain error.  Defendant now says expert's claim of "reasonable scientific certainty" was too half-hearted to support her testimony's admissibility under Daubert, but handwriting experts may legitimately offer opinions grounded on mere probabilities and need not invoke talismanic language.

Sell v. Ingersoll-Rand Co., No. 04-1965 (3d Cir. June 29, 2005) (unpublished).  Plaintiff's expert in products liability suit opines that any of several alternative designs could have prevented plaintiff's injury by drill rig.  District court permits expert to testify to two such designs.  Jury awards damages and defendant appeals.  Admissibility affirmed.  Defendant says record contains no direct evidence that injury occurred in manner that expert's proposed design modification could have prevented.  But circumstantial evidence did permit jury to draw that inference.

Jaasma v. Shell Oil Co., 412 F.3d 501 (3d Cir. 2005).  After lessee ceases operation of gas station on lessor's property and removes underground storage tank, fuel residue is discovered on adjacent property.  Leased property's marketability is impaired until state department of environmental protection concludes 2.5-year investigation.  Lessor sues lessee for loss of rental value during that period.  To establish impaired marketability, lessor calls environmental engineer Gary J. DiPippo.  District court excludes his testimony as unreliable and awards judgment to defendants.  Exclusion reversed.  Trial court understood expert to be extrapolating from known concentrations of contaminants in 1996 and 2003 to estimate concentrations in 2001 and found such extrapolations to be unacceptably speculative.  But this misunderstands import of expert's testimony, which was offered not to show actual contamination levels in 2001, but rather to establish that site's environmental status was uncertain in 2001 and that legitimate concerns existed over its status at that time.  Lessee also faults expert for relying on lessee's data rather than conducting field tests of his own.  But experts need not collect their own data if they base their findings on information of type reasonably relied on by experts in their field.

Ly v. Gonzalez, No. 04-2107 (3d Cir. June 20, 2005) (unpublished).  Applicant for asylum objects to government's reliance on consular report, which applicant says fails to satisfy standards for admissibility under Kumho Tire.  Trial court denies application in partial reliance on consular report.  Affirmed.  Kumho Tire objection is misplaced, because Federal Rules of Evidence do not apply in immigration proceedings.

Prudential Prop. & Cas. Ins. Co. v. Remed Recovery Care, No. 04-1727 (3d Cir. June 13, 2005) (unpublished).  Insured suffers serious brain injury in auto accident.  Thirteen years later, he falls from smoking porch at health care facility and seriously injures spine.  Auto insurer files action seeking declaratory judgment that it is not responsible for damages resulting from fall.  In bench trial, insured offers testimony from Dr. David Pleasure and Dr. Barry Snyder, who opine that insured's loss of balance was attributable to neurological injuries sustained in earlier auto accident.  Court finds for insured, and insurer appeals.  Admissibility affirmed.  Evidence showed that insured, like other individuals with similar impairments, fell frequently while reaching for things. Thus it was perfectly reasonable for these experts to conclude that insured fell as result of his impairment.

United States v. Berry, No. 03-2803 (3d Cir. June 2, 2005) (unpublished), cert. denied, 126 S. Ct. 668 (2005).  Detective testifies to meaning of drug code words in narcotics trial.  Jury convicts and defendant appeals.  Admissibility affirmed.  Detective had ample training and experience.  No abuse of discretion.

Simmons v. Ford Motor Co., No. 04-2393 (3d Cir. May 12, 2005) (unpublished).  Woman is injured when her Lincoln Navigator spontaneously shifts out of park as she is exiting it.  She sues Ford, alleging defective design.  Ford moves for summary judgment and to exclude testimony from plaintiff's engineering expert, Clifford Anderson.  District court finds him to be qualified but excludes his testimony as unreliable and awards summary judgment to Ford.  Exclusion affirmed.  Anderson theorized that vehicle was in "false park" but could not explain why vehicle disengaged from park gear, was unable to replicate vehicular movement that caused plaintiff's injuries, and relied on untested hypotheses not supported by evidence.  He did not support his alternative design with any mock-up or testing, and could not say that any manufacturer had employed his proposed design, or any other, to successfully eliminate possibility of "false park" in vehicles with automatic transmissions.  No abuse of discretion. 

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

Crawford v. SAP Am., Inc., No. 04-1849 (3d Cir. Apr. 7, 2005) (unpublished).  District court excludes plaintiffs' expert testimony on damages in franchise dispute and awards summary judgment to defendants.  Exclusion affirmed.  Expert was unfamiliar with plaintiffs' business, and testimony was speculative.

United States v. Davis, 397 F.3d 173 (3d Cir. 2005).  In response to hypothetical questions, police officer opines that circumstances of defendants' arrest were consistent with drug trafficking.  Jury convicts.  Admissibility affirmed.  Officer had extensive experience as narcotics officer, and his knowledge was not within ken of average juror.  Nor did he offer impermissible testimony about defendants' state of mind or intent.  Prosecution's noncompliance with discovery requirements was harmless.

United States v. Trala, 386 F.3d 536 (3d Cir. 2004), vacated on other grounds, 126 S. Ct. 1078 (2006).  Trial court overrules objection by bank robbery defendant to testimony from prosecution's expert matching defendant's DNA to samples from sweatshirt and knit cap left near crime scene.  Jury convicts and defendant appeals.  Admissibility affirmed.  Trial judge upheld reliability of PCR/STR DNA typing after painstaking and thorough analysis.  No abuse of discretion.

Elliott v. Kiesewetter, No. 03-1681 (3d Cir. Oct. 18, 2004) (unpublished).  In fraudulent conveyance action involving intra-familial dispute over asset transfer, beneficiaries offer testimony from asset valuation expert.  Trial court admits testimony, and jury finds for beneficiaries.  Admissibility affirmed.  Expert possessed requisite specialized expertise, employed reliable methods, and gave testimony that assisted jury.

Citizens Fin. Group, Inc. v. Citizens Nat'l Bank, 383 F.3d 110 (3d Cir. 2004), cert. denied, 125 S. Ct. 1975 (2005).  In trademark action, district court excludes survey evidence from trademark owner's expert Robert Reitter.  Exclusion affirmed.  In "reverse confusion" cases, where larger and more powerful company has allegedly infringed trademark of smaller and less powerful senior owner, the universe of survey respondents should comprise only customer base of senior owner.  District court permissibly found that survey suffered from fatal methodological flaws.

United States v. Pepsny, No. 03-2810 (3d Cir. Aug. 23, 2004) (unpublished).  On trial for wire fraud in connection with real estate scheme, defendant brokers offer expert testimony from Tomas Norton, to support their position that suspicious facts established by prosecution would not necessarily indicate fraud, and that defendants may have been only minor participants in scheme.  Trial court excludes testimony and jury convicts.  Affirmed.  Admissibility of testimony need not be reached, because any error was harmless in light of overwhelming evidence of guilt.

United States v. Rutland, 372 F.3d 543 (3d Cir. 2004).  Handwriting expert Gus Lesnevich testifies for prosecution that signatures on key documents in fraud scheme are forgeries, over defendant's objection that jury will be prejudicially swayed if expert with such extraordinary qualifications is permitted to testify to ultimate issues.  Jury convicts.  Admissibility affirmed.  Juries may properly consider expert's impressive qualifications in evaluating testimony.  Forbidding especially well-qualified experts from opining on ultimate issues would lead to absurd results, by incentivizing litigants to search out less qualified experts.

United States v. Mitchell, 365 F.3d 215 (3d Cir.), cert. denied, 543 U.S. 974 (2004).  Prosecution proposes to offer trial testimony from FBI fingerprint examiner Wilbur Johnson, who opines that two latent prints from vehicle match defendant's thumbprints, and from FBI special agent Steven Meagher, who opines to same effect and also re underlying forensic theories on which practice of fingerprint identification is based.  Defendant seeks to offer expert opinions from thirteen officials at state agencies who were initially unable to identify one or both latent prints as belonging to defendant: John Otis (Maine); Janice Williams and Michael McSparrin (Mississippi); Ralph Turbyfill (Arkansas); Donald Lock (Missouri); Russell McNatt, Jr. (Delaware); Raymond York (Idaho); John Artz (Nevada); Janice Reeves (Louisiana); and Richard Higgins, Edward Pelton, Robert McAuley, and James Ruszas (New York).  In addition, defense seeks to offer three experts to testify generally, on various grounds, that fingerprint identification is unscientific: Dr. David Stoney, director of forensic teaching and research institute; James Starrs, professor of law and forensic science; and Dr. Simon Cole, post-doctoral fellow with expertise in science and technology studies.  To evaluate admissibility of each side's proposed testimony, district court holds five-day Daubert hearing, generating approximately 1000 pages of transcript.  District court rules testimony from prosecution's experts to be reliable and admissible.  District court further rules that defense experts may challenge specific identifications of defendant's prints and point to methodological defects of fingerprint identification in general, but may not testify that fingerprint identification is not scientific.  Jury convicts and defendant appeals.  Admissibility affirmed; exclusions affirmed.  Fingerprint identification satisfies standards for reliability established in Daubert and Kumho Tire.  "[T]his case does not announce a categorical rule that latent fingerprint identification evidence is admissible in this Circuit, though we trust that the foregoing [extensive] discussion provides strong guidance."  District court properly excluded trial testimony on whether fingerprint evidence is scientific because such testimony would not assist trier of fact.

United States v. Katzin, No. 02-2407 (3d Cir. Apr. 19, 2004) (unpublished).  Over defendant's objection, law enforcement agent testifies at trial as expert on drug jargon.  Admissibility affirmed.  Defendant protests that prosecution supplied no pretrial report from expert, but government did provide 469-page affidavit in which his testimony was explained.  Defendant also says expert was unqualified, but defendant raised no such objection at trial, and district court legitimately approved agent's qualifications after extensive voir dire.

Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316 (3d Cir. 2003).  Twelve-year-old girl lies about her age to rent jet ski that carries warning against use by children under fourteen.  While riding, she experiences difficulty navigating and crashes into anchored boat at high speed, suffering fatal injuries.  Girl's parents sue jet ski manufacturer, focusing on theory that jet ski's "squeeze finger throttle," which resembles braking mechanism on bicycles, constituted design defect.  At trial, plaintiffs offer three experts.  Dr. Edward W. Karnes, who holds doctorate in psychology with specialty in human factors engineering, is permitted to opine that children in stressful situations would confuse jet ski throttle with bicycle brakes and accelerate when they intended to brake, but is barred from testifying that people in emergency situations tend to react by clenching hands.  Dr. Karnes is also permitted to testify re appropriate features of jet ski warnings, and to opine that actual warning was deficient, but is barred from testifying that warning should have set minimum age for operators at 16 rather than 14.  Albert Bruton, with sixteen years of experience as marine safety employee, is permitted to describe how jet skis operate, and to explain differences between various brands and models, but is barred from opining on which jet skis or accelerating mechanisms are safest, or on appropriate substantive content for jet ski's product warning.  Dr. Robert A. Warren, marine engineer and accident reconstructionist, is permitted to describe squeeze finger throttle's operation, but not to opine that it is unsafe due to similarity with bicycle braking mechanisms, and is barred from opining on product warnings at all.  Jury returns verdict for defendants.  Exclusions affirmed.  Experts lacked appropriate basis or experience to opine on points as to which their testimony was limited.

Cuffari v. S-B Power Tool Co., No. 02-3763 (3d Cir. Nov. 7, 2003) (unpublished).  Having suffered serious personal injury while using circular saw, plaintiff sues manufacturer, offering testimony from engineer [?] Lewis A. Howarth, who opines that lack of power brake rendered saw defective in design.  District court excludes testimony, and plaintiff elects not to proceed to trial, instead entering into stipulated final judgment preserving evidentiary issue for appeal.  Exclusion affirmed.  Witness was qualified but his methods were unreliable.  His opinion was based entirely on undocumented tests, conducted by witness years ago, and of which he maintained no records, in which he ran various saws at full speed and then used his stopwatch to determine how long they took to stop.  That methodology is questionable at best.  Moreover, witness conducted no cost-benefit analysis and failed to consider potential negative safety consequences of power brakes except via unscientific and anecdotal methods.

United States v. Bennett, No. 01-3412 (3d Cir. Aug. 29, 2003) (unpublished).  On trial for conspiracy to distribute methamphetamine, defendants object when prosecution offers expert testimony from narcotics agent Kenneth Bellis re drug jargon and meaning of "breakfast" and "lunch" as used by defendants in recorded phone conversations.  District court overrules objection and jury convicts.  Admissibility affirmed.  Although it may be close question whether agent's testimony crossed into areas unhelpful to trier of fact, any error was harmless given other evidence of guilt.

Magistrini v. One Hour Martinizing Dry Cleaning, No. 02-2331 (3d Cir. June 25, 2003) (unpublished).  Dry cleaning worker is exposed to perchloroethylene (PCE) over two years of employment.  Two years later, she develops acute myelomonocytic leukemia.  In suit versus defendants including PCE manufacturer Dow Chemical Company, worker offers causation testimony from Dr. David M. Ozonoff, who invokes animal bioassays, fourteen human epidemiological studies, and toxicological studies in concluding that PCE can cause leukemia in humans (generic causation).  He then relies on differential diagnosis to conclude that PCE exposures did cause worker's leukemia (specific causation).  Dow moves to strike Dr. Ozonoff's testimony.  District court appoints technical advisor, convenes Daubert hearing, and grants Dow's motion, concluding that Dr. Ozonoff has not sufficiently explained or defended how he weighed various factors under his "weight-of-the-evidence" methodology.  Exclusion affirmed.  No abuse of discretion.  District court properly conducted Daubert hearing, applied proper legal standard, and made no clearly erroneous factual findings.  No purpose would be served by redundant appellate discussion reaching same result.  "Accordingly, we will affirm the decision of the District Court for substantially the reasons set forth in the District Court's thoughtful Memorandum Opinion without further elaboration."

LePage's, Inc. v. 3M, 324 F.3d 141 (3d Cir. Mar. 25, 2003) (en banc), cert. denied, 542 U.S. 953 (2004).  LePage's sues 3M for monopolizing transparent tape market through exclusivity agreements and bundled rebates.  To prove damages, LePage's offers testimony from Terry Musika, who estimates lost LePage's lost profits based on "lost market share" model, which involves estimating LePage's market share, sales, and profits in offense-free world and comparing these to actual figures from relevant period.  Based on this method, Musika estimates $36 million in lost profits.  Jury returns verdict for LePage's and sets damages at $22.8 million before trebling.  Admissibility affirmed.  3M concedes validity of Musika's basic approach to calculating damages, but challenges his underlying assumptions.  However, district court permissibly found that assumptions enjoyed support in record, and expert's credibility was for jury to determine.  3M also complains that Musika did not disaggregate damages to separate lost profits attributable to 3M's violations from damages occasioned by 3M's lawful conduct.  But 3M's actions taken taken together were found to violate antitrust law, and disaggregation was neither necessary nor feasible.

Jones v. City of Philadelphia, No. 02-2292 (3d Cir. Mar. 4, 2003) (unpublished).  Plaintiff sues police alleging arrest without probable cause.  District court excludes plaintiffs' expert on probable cause without Daubert hearing and although defendants file no motion in limine.  Jury finds for defendants.  Exclusion affirmed.  Plaintiffs' Daubert arguments are rejected summarily as without merit.

Dreher v. Pinchak, No. 01-3067 (3d Cir. Mar. 3, 2003) (unpublished), cert. denied, 540 U.S. 888 (2003).  At murder trial in state court, prosecution offers evidence re time of death from county medical examiner, Dr. Ernest Tucker.  Dr. Tucker relies on basic methodology developed by Dr. John I. Coe, which involves measuring potassium released into vitreous humor due to cellular degradation beginning at death.  However, Dr. Coe's generally accepted method assumes that cellular degradation progresses linearly, whereas Dr. Tucker adopted nonlinear assumptions, resulting in different time of death and broader range for potential times of death.  Defendant objects to testimony as scientifically unreliable, but court admits it and jury convicts.  On habeas petition, defendant alleges admission of expert's testimony violated his due process rights.  District court expresses dismay that evidence was admitted but concludes that admission of evidence does not rise to level of due process violation.  Affirmed.   District court erred in even considering claim, because defendant did not preserve constitutional objections in state court.

Montgomery County v. Microvote Corp., 320 F.3d 440 (3d Cir. 2003).  After voting machines malfunction, county sues manufacturer.  Manufacturer offers testimony from Robert F. Naegele, who authored Federal Election Commission voting machine standards, and who opines that relevant machines met or exceeded FEC standards.  District court strikes testimony and jury finds for county.  Exclusion affirmed.  District court properly found that expert relied on unreliable data, and also on material spoon-fed by counsel.

Fillebrown v. Steelcase, Inc., No. 02-1080 (3d Cir. Feb. 24, 2003) (unpublished).  Man leans back in chair at work.  Metal spindle connecting base and seat of chair breaks.  Man falls to floor and is injured.  Man sues chair's manufacturer.  At trial, both sides offer metallurgical experts.  Plaintiffs' metallurgist, Dr. J. Stephen Duerr, testifies that large machining marks caused spindle to develop fatigue crack and break.  Jury returns verdict for plaintiff.  Defendant moves for judgment as matter of law, arguing that Dr. Duerr's testimony should have been excluded under Daubert.  District court denies motion.  Admissibility affirmed.  Plaintiff says defendants waived Daubert objections at trial court level.  But plaintiff waived his own waiver argument by not presenting it when defendant moved for judgment as matter of law.  However, district court did not err in admitting testimony.  Metallurgy and materials failure analysis are old, well-established sciences, and plaintiff's expert offered detailed explanation of why he believed break to have resulted from fatigue failure and not overload or abuse.

Schneider v. Fried, 320 F.3d 396 (3d Cir. 2003).  District court dismisses wrongful death action alleging medical malpractice, after excluding testimony from plaintiffs' experts, Drs. Marc Semigran and Gregg Reis, that treating physician violated applicable standard of care by administering the drug Procardia sublingually as pretreatment for angioplasty.  Exclusions reversed.  District court excluded Dr. Semigran's testimony because literature he cited did not specifically address use of Procardia to prevent coronary vessel spasm during surgery.  But reliability of Dr. Semigran's testimony was independently supported by his extensive experience.  District court excluded Dr. Reis's opinion because he initially testified that he could comment only on his own practices and standards, not on standards that physicians elsewhere might have followed.  But Dr. Reis later explained that this disclaimer resulted from his misunderstanding of counsel's question, and in fact he did testify, on reliable grounds, about practices that physicians elsewhere should have followed. 

United States v. Farrington, No. 00-3358 (3d Cir. Jan. 31, 2003) (unpublished).  Owner of auto dealership pockets loan proceeds obtained via deceptive invoices and is charged with money laundering.  At trial, owner offers another auto dealer to testify as expert that owner's preparation of allegedly fraudulent invoice was consistent with common practice in Virgin Islands.  District court refuses to permit dealer to testify as expert because defense counsel did not disclose witness's testimony in pretrial discovery.  Owner then seeks to offer same putative expert as lay witness, but district court excludes his testimony as irrelevant.  Affirmed.  On appeal, owner alleges ineffective assistance, but pretrial disclosure of expert's testimony would not have changed outcome, because relevancy requirement applies no differently to expert testimony than to lay witnesses (citing Daubert).  Proposed testimony simply did not bear on whether invoice presented deceptive information to lender.

Matlin v. Langkow, No. 02-1007 (3d Cir. Jan. 22, 2003) (unpublished).  Plaintiff suffers from injuries including herniated disc after her vehicle is rear-ended by defendant's.  At trial, plaintiff offers expert physician, Dr. Kalmon Post, who opines that accident caused injuries.  Admissibility affirmed.  Defendant argues that physician failed to review discovery materials or plaintiff's treatment records.  Defendant also says physician rendered purely subjective opinion, placing undue reliance on temporal connection between accident and injury, and not sufficiently accounting for other potential causes, such as weightlifting.  But physician had sufficient information to make informed inference.  Differential diagnosis need not canvass and rule out every conceivable alternative cause if actual cause appears relatively obvious. 

United States v. Lee, 315 F.3d 206 (3d Cir.), cert. denied, 540 U.S. 858 (2003).  Defendant pleads guilty to possession and transport of child pornography, and to enticing minor by computer to engage in sex.  District court conditions supervised release on defendant's submission to periodic polygraph exams.  Sentence affirmed.  Among other arguments, defendant contends polygraph exam is unnecessarily burdensome, because polygraph results would be inadmissible at any revocation hearing.  Actually, some courts have held polygraphs admissible following Daubert, but Third Circuit need not reach that issue now, because polygraph could still be used by probation officer to enhance defendant's supervision and treatment. 

Jacobs v. Virgin Islands, No. 02-1135 (3d Cir. Dec. 12, 2002) (unpublished).  Trial court dismisses criminal proceedings after defendant successfully moves to exclude prosecution's fingerprint expert under DaubertExclusion affirmed.  Proponent bears burden of establishing that expert's testimony satisfies Daubert.  Nothing in record indicates that fingerprint expert in this case used unreliable methods, but neither does record afford sufficient grounds for reversing district court's discretionary exclusion of testimony. 

Walker v. Gordon, No. 01-4106 (3d Cir. Sept. 17, 2002) (unpublished).  Prisoner brings section 1983 action alleging excessive force in arrest.  Defense offers psychiatric expert, "Dr. Toborowsky," to testify that prisoner was likely grossly psychotic at time of arrest, based on medical reports, information from police, and psychiatric examination.  Prisoner files pretrial motion in limine, arguing that underlying facts on which psychiatrist based his opinion are false.  District court denies motion without holding Daubert hearing, because motion goes to factual foundation of opinion, not expert's methodology.  Psychiatrist then testifies at trial without objection.  Admissibility affirmed.  Prisoner did not waive objection by failure to object at trial, because nothing indicates that district court's pretrial ruling was tentative or provisional.  Given definitive pretrial ruling, further objections would have been in the nature of exceptions, which are not required.  But district court did not abuse discretion in admitting testimony.  Experts may base their opinions on one particular version of disputed facts, and jury may be told to disregard opinion if it rejects that version.

Betterbox Commc'ns, Ltd. v. BB Techs., Inc., 300 F.3d 325 (3d Cir. 2002).  Betterbox and Black Box sell competing computer products through catalog marketing.  When Betterbox attempts to register trademark in United States, Black Box objects, claiming infringement.  Betterbox brings declaratory judgment action, and Black Box counterclaims, alleging trademark infringement and unfair competition.  Both sides offer experts on likelihood of consumer confusion, and district court denies motions in limine as to both.  Jury returns verdict of noninfringement, and Black Box appeals.  Admissibility affirmed.  Black Box challenges credentials of Betterbox's marketing expert, John Schulte, contending his relevant experience is insufficient and predates litigation by eight years.  But expert has significant experience in both catalog marketing and computer marketing, and Black Box points to no revolution in field during past eight years.  Expert's particular experience is also relevant to several pertinent legal factors for evaluating likelihood of consumer confusion.  Black Box also contends expert's methodology is unreliable, but expert testified he considered perception of product names, sophistication of target market, logo design, and catalog look and feel.  His methodology is virtually indistinguishable from that of Black Box's own expert, and district court did not abuse discretion in admitting testimony.  Even if it had, any error was harmless, because Betterbox did not place heavy reliance on expert's opinion.

Scrofani v. Stihl, Inc., No. 01-3773 (3d Cir. Aug. 6, 2002) (unpublished).  Plaintiff sustains burn injuries from accident with gasoline powered saw.  In products liability suit, district court rejects opinion of plaintiff's expert, Russell Fote, that saw was defectively designed and contained inadequate warnings, and awards summary judgment to defendant.  Exclusion affirmed.   Expert specified no methodology whatsoever, merely reciting bald conclusions.  Plaintiff says Daubert hearing would have established witness's credentials, but even assuming witness to be credentialed, his testimony was unreliable, and no error resulted, therefore, from refusal of Daubert hearing.

United States v. Davis, No. 00-3536 (3d Cir. July 26, 2002) (unpublished), cert. denied, 537 U.S. 989 (2002).  District court permits postal inspectors to testify as "lay experts" that videotapes contained child pornography.  Jury convicts.  Admissibility affirmed.  Expert opinion may be necessary to judge age in close cases, but lay opinion on age is generally competent.  Moreover, this case was tried prior to amendment of Fed. R. Evid. 701 in 2000, which barred lay opinion testimony falling within Rule 702's ambit.  Because witnesses possessed pertinent specialized knowledge, testimony was admissible "regardless of whether we view that testimony as lay opinion testimony akin to that of an expert or merely lay opinion testimony based on ordinary human experience."

Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408 (3d Cir. 2002).  Plaintiffs' decedents die in Osprey helicopter crash.  Plaintiffs sue manufacturer, alleging that negligent design permitted seal to be installed backwards, which permitted leak of transmission oil, which engine ingested, causing crash.  Manufacturer offers testimony from expert in failure analysis and materials science, Dr. Thomas Eagar, who opines that crash resulted from leak of hydraulic fluid, not transmission oil.  Jury finds for defendants.  Admissibility affirmed.  Plaintiffs argue that Dr. Eagar's opinion lacked factual foundation in record, but in fact such foundation existed.  Record shows that of fluids potentially involved in accident, only hydraulic fluid was red.  Red residue was found in helicopter's torquemeter housing.  Tests of red residue found it to be good match for hydraulic fluid.  This places hydraulic fluid where it should not have been -- outside engine, near engine, and in torquemeter housing.  This, in turn, forms sufficient factual foundation that district court did not abuse discretion in admitting testimony and permitting plaintiffs to address it via cross-examination.

Nawrocki v. Twp. of Coolbaugh, No. 01-1196 (3d Cir. Apr. 8, 2002) (unpublished).  Teacher #1 receives various anonymous threatening and pornographic letters, and teacher #2 is suspected of being their source.  School district arranges for polygraph of teacher #2, and polygrapher concludes that teacher #2 is responsible for letters.  Teacher #1 files criminal charges, but teacher #2 is acquitted.  Teacher #2 then brings malicious prosecution claims against teacher #1 under section 1983.  District court enters judgment as matter of law for teacher #1, in part because polygraph results supplied probable cause.  Admissibility affirmed.  Polygraph results were not admitted for their truth, but to show probable cause.  Although most appellate courts have continued to exclude polygraph evidence notwithstanding Daubert, district court did not err in admitting polygraph findings for this limited purpose.

United States v. Meyers, No. 01-1727 (3d Cir. Mar. 26, 2002) (unpublished).  In criminal trial for investment fraud, district judge permits prosecution witness Herbert Biern to testify as expert re bank debenture programs, but not on whether defendant's conduct was fraudulent.  Admissibility affirmed.  Defendant says expert implicitly violated testimonial restriction by encouraging inference that defendant was guilty.  But defendant did not so object at trial, and so review is for plain error.  Expert's testimony focused on banking terminology, accuracy of certain representations re Federal Reserve Board, and documents.  It did not seriously affect fairness of trial, and district court was within discretion in admitting testimony.

Combs v. Sch. Dist. of Philadelphia, No. 01-2714 (3d Cir. Mar. 25, 2002) (unpublished).  High school student assaulted by three classmates during class break sues school district under section 1983 for failing to protect him from state-created danger.  District court declines to hold Daubert hearing on testimony from plaintiffs' "liability expert" on state-created danger theory, and disallows testimony.  Exclusion affirmed.  District court acted within sound discretion in concluding that witness possessed no expertise that would aid jury.

In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., No. 01-2324 (3d Cir. Feb. 26, 2002) (unpublished).  Citing cost of experts, counsel for certain plaintiffs in Phen/Fen multidistrict litigation argues to district court that he should not be required to retain experts until after district court rules on related Daubert motion.  District court rejects argument, but counsel continues to press it as he repeatedly flouts deadlines for expert disclosure.  District court adopts eventual recommendation by special discovery master that claims be dismissed as discovery sanction.  Affirmed.  "Appellants' recourse, although assuredly not a substitute for having their claim heard on the merits, is elsewhere."

United States v. Perez, 280 F.3d 318 (3d Cir.), cert. denied, 537 U.S. 859 (2002).  At drug conspiracy trial, government expert testifies that drug trafficking organizations often rely on cell phones and pagers to avoid detection of their location by law enforcement officers. Admissibility affirmed.  Defendants do not challenge witness's expertise, but contend that testimony would not fall outside knowledge of average juror, and was prejudicial.  But it is not common knowledge that police are unable simultaneously to wiretap cellular calls and keep caller under surveillance, or that pagers are used by drug traffickers to transmit numerically coded messages.  Testimony therefore satisfies requirement of being helpful to trier of fact, and district court did not abuse discretion in refusing to exclude testimony as unduly prejudicial.

United States v. Syme, 276 F.3d 131 (3d Cir.), cert. denied, 537 U.S. 1050 (2002).  Operator of ambulance service is convicted of Medicare fraud after jury hears physician testify for prosecution that certain ambulance trips did not satisfy criteria for "medical necessity."  Admissibility affirmed.  Defendant argues that only issue was whether ambulance operator reasonably perceived ambulance transportation to be medically necessary, and that physician's testimony would not assist jury on that issue.  But actual medical necessity was required element of prosecution's proof, and so testimony would in fact assist average juror.  Defendant also argues that expert's testimony did not have valid connection with facts of case.  This is so, according to defendant, because expert disagreed with some Medicare guidelines.  But mere disagreement with Medicare standards does not imply that expert was unable to evaluate facts under those standards or that he refused to do so.

United States v. Lopez, 271 F.3d 472 (3d Cir. 2001), cert. denied, 535 U.S. 908 (2002).  When prosecution calls FBI fingerprint expert at trial, defense objects that only expert's conclusions were disclosed during discovery, not his "bases and reasons" therefor, and not his qualifications.  Trial court admits testimony because defense waited until trial to raise objection and did not fulfill its "obligation to ask for a Daubert hearing."  Admissibility affirmed.  Assuming without deciding that prosecution's nondisclosures violated discovery provisions of Fed. R. Crim. P. 16(a), defendant has shown no prejudice.

United States v. Mathis, 264 F.3d 321 (3d Cir. 2001), cert. denied, 535 U.S. 908 (2002).  Fearing jury confusion or usurpation of jury's role, trial court excludes opinion of bank robber's expert on eyewitness testimony.  Conviction affirmed because exclusion was harmless error.  Qualifications of expert, reliability of methods, "fit" of testimony were not in serious dispute.  In any event, testimony was reliable and should have been admitted despite concerns about "overwhelming" jury.  But exclusion was harmless error.

United States v. Watson, 260 F.3d 301 (3d Cir. 2001).  In narcotics trial, three law enforcement officers testify as experts for prosecution over defendant's objections.  Admissibility affirmed.  Because no Rule 702 objection was raised,  review of testimony's admissibility under Rule 702 is for plain error.  It is common and permissible for law enforcement personnel to offer expert testimony on modus operandi of illegal drug operations, and district court did not abuse its discretion in admitting such testimony here.  However, in opining that defendant possessed intent to distribute, witnesses ran afoul of Fed. R. Evid. 704(b), and so conviction must be reversed.

Saldana v. Kmart Corp., 260 F.3d 228 (3d Cir. 2001).  Woman slips and falls on puddle of floor wax in Kmart.  In her personal injury action, trial judge excludes testimony from plaintiff's safety engineer regarding length of time puddle was present, based on spill tests performed by expert.  Exclusion affirmed.  Assuming without deciding that witness possessed requisite expert qualifications, testimony was inadmissible.  District court believed testimony was irrelevant, but it was offered to support inference that Kmart was on notice of puddle but failed to take reasonable corrective steps.  Nevertheless, tests were not probative, because plaintiff's fall disturbed puddle and undoubtedly altered its size, so that tests to determine how long puddle of that size would take to develop absent such interference are not germane.  Likewise, amount of time wax takes to empty from bottle does not, by itself, provide evidence of when spill commenced or concluded.  Court notes in passing that expert performed spill tests on own kitchen floor, which may have been of dubious similarity to Kmart floor.  [N.B.: Incredibly, this is the second Kmart slip-and-fall involving Daubert issues to reach the Third Circuit within the span of one year.  Even more incredibly, the Saldana opinion does not mention the first.  See Elcock, infra.]

Keller v. Larkins, 251 F.3d 408 (3d Cir.), cert. denied, 534 U.S. 973 (2001).   Man shoots and kills cheating wife.  During state murder trial, prosecution psychiatrist testifies that defendant may have suffered from "sadistic personality disorder."  Upon conviction, man brings habeas claim alleging ineffective assistance, asserting that his counsel should have challenged psychiatrist's testimony under DaubertDenial of habeas affirmed.  On appeal from verdict in federal trial, federal appellate court would review admissibility of testimony under Daubert, but in habeas action arising from state conviction, and absent any claim that admission of evidence violated constitutional rights, federal appellate court must presume, in light of intermediate state appellate decision holding testimony admissible, that testimony was properly admitted, so that objection would have been futile.

Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000), cert. denied, 532 U.S. 921 (2001).  Driver of bread delivery truck loses legs and use of one arm after vehicle collides with guard rail.  In products liability action against vehicle manufacturers, plaintiff offers testimony from engineer re crashworthiness and negligent testing by manufacturers.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Plaintiff appears to interpret previous Third Circuit decisions as requiring hearings on all motions in limine, but in those earlier decisions, hearings were required only because experts' methods had not otherwise been detailed.  Where expert has been deposed and also submitted affidavits on methodologies, there is no per se requirement for live hearings.  Litigants are not entitled to infinite opportunities to get their expert testimony right.  As to merits of district court's Daubert ruling, engineer conducted no tests, cited no literature, and based conclusions on little more than personal intuitions.

Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000).  On encountering waxy buildup on Kmart floor, woman slips and falls.  At trial of her personal injury claims, she offers psychologist cum vocational rehabilitationist to testify re scope and duration of her disability, and economist to testify re damages.  District court reluctantly qualifies psychologist as vocational rehabilitation expert and declines to entertain Daubert challenge to psychologist's testimony because no scientific issues are involved (Kumho Tire not yet having been decided).  Economist is also permitted to testify over defendants' Daubert objections.  Admissibility reversed.  Psychologist did have some vocational rehabilitation experience and kept up with literature, but his qualifications are at outer limit of admissibility.  District court would have discretion to qualify him as vocational rehabilitation expert or not.  But in light of Kumho Tire, district court should have held Daubert hearing re psychologist's testimony, and trial record suggests that serious questions concerning its reliability would arise.  Economist should not have been permitted to offer testimony based on unfounded assumptions re plaintiff's earning power.  Remanded for Daubert hearings and new trial.

Tormenia v. First Investors Realty Co., 251 F.3d 128 (3d Cir. 2000).  Panels of revolving door collapse, injuring occupant.  In suit versus owner and manager of premises, occupant offers testimony from engineer Alvin Yorra, who opines that inadequate maintenance permitted introduction of contaminant into door's lubricant, causing door's sudden arrest.  District court admits testimony and jury awards damages.  Admissibility affirmed.  Defendants complain that district judge unfairly limited and controlled their thirty-minute cross-examination of expert at Daubert hearing, but trial court merely encouraged defendants to devote some of their allotted time to certain specified issues, and defendants have not shown how they were prejudiced by any time limitation.  Defendants say expert is unqualified, because he has testified in only two prior lawsuits involving revolving doors, and because his masters degree in civil engineering does not qualify him to opine on revolving door's mechanical operation.  But expert's research, and his experience with mechanical and forensic engineering, familiarized him with relevant principles.  Defendants say expert's opinion is unreliable because he employed no discernible methodology, relied on plaintiff's account of accident, and failed to inspect door.  But experts are not required to rely on first-hand personal knowledge, nor barred from reliance on testimony offered by parties, and expert offered detailed explanation of his analysis.  

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