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Admissibility Rate: .333    (4/12)

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

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

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

United States v. Henry, No. 01-6607 (6th Cir. July 30, 2003) (unpublished), cert. denied, 540 U.S. 1134 (2004).  Criminal defendant offers testimony from attorney Gerald Gulley concerning reduced sentences that prosecution's cooperating witnesses could expect in exchange for their testimony.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Fact that prospect of leniency at sentencing might incentivize perjury is not beyond commonsense understanding of average juror.

United States v. Collier, No. 02-3081 (6th Cir. July 2, 2003) (unpublished), cert. denied, 124 S. Ct. 1094 (2004).  Businessman makes false statements in loan application.  He later files for bankruptcy.  After bankruptcy court discharges loan indebtedness, government brings criminal proceedings for bank fraud.  Businessman calls his bankruptcy attorney, Betty Groner, to offer expert opinion on businessman's mortgage amortization schedules, and to opine as lay witness that businessman lacks sufficient financial sophistication to have formed intent to commit crime.  District court excludes attorney's testimony re mens rea, and jury convicts.  Exclusion affirmed.  District court excluded testimony under Fed. R. Evid. 704(b), which bars expert testimony on defendant's criminal intent.  That rule is inapplicable, because witness was not testifying to intent as expert.  District court also invoked ethical bar against attorneys stating their personal opinions to jury, but witness was not serving as businessman's attorney in criminal trial.  Nevertheless, district court did legitimately perceive that witness had been presented to jury as falling within two categories of authority -- expert and lawyer.  This posed risk that jurors would assign undue weight to her testimony, and so district court had discretion to exclude her testimony under Rule 403, on grounds that its potential to confuse jury outweighed its probative value.

Fogle v. William Chevrolet/Geo, Inc., 275 F.3d 613 (7th Cir. 2001) (see the briefs).  Chicago attorney who prevailed in consumer fraud action petitions for fee award at hourly rate of $310 for 143 hours, and submits affidavit from another lawyer attesting that his services are worth at least that.  District court disagrees, stating that attorney is actually in "bottom tier skill-wise" among consumer fraud lawyers.  District court awards fee of $185/hour for 60 hours.  Affirmed.  Affiant did not practice law in Illinois or in any federal court, had not practiced at all since 1990, and made no study of local market for consumer fraud attorneys but instead relied on petitioner's self-serving self-evaluation.  Affiant's testimony was therefore "worthless and inadmissible under Daubert."  There are one million lawyers in United States, and if this affidavit counts as evidence, then there will never be any lawyer who cannot produce testimony from some fellow lawyer attesting that his or her market value is whatever he or she says.

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

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

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

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.   

Van Cott, Bagley, Cornwall & McCarthy v. Williams, No. 02-4245 (10th Cir. Apr. 6, 2004) (unpublished).  In debtor's bankruptcy proceedings, law firm files proof of claim for $387K in unpaid legal fees.  Estate objects to amount of claim based on expert report from attorney Benson L. Hathaway.  Bankruptcy judge initially expresses doubt over expert's factual foundation and methodology but admits his testimony and reduces claim to $187K after counsel for estate lays additional foundation.  District court affirms, and law firm appeals.  Admissibility affirmed.  Law firm says bankruptcy court did not discharge its gatekeeping responsibilities, and also says that expert did not sufficiently review documents from law firm's underlying representation.  But bankruptcy court carefully evaluated expert's report to ensure its relevance and reliability.  No abuse of discretion.

Noel v. Martin, No. 00-1532 (10th Cir. Oct. 19, 2001) (unpublished).  Plaintiff brings legal malpractice action against counsel who sought to prove damages in underlying commercial litigation by calculating what plaintiff would have earned had he invested in Standard & Poor's 500 securities rather than franchise management corporation.  Defendants in underlying litigation had countered that plaintiff's actual investment history did not reflect investments in securities of S&P 500 caliber, but rather in fast food franchises, oil and gas ventures, real estate, vacation homes, and race horses.  In malpractice action, plaintiff offers expert testimony from trial lawyer, who opines that no reasonable attorney would offer evidence so vulnerable to attack.  Exclusion affirmed.  Plaintiff contends that expert could reliably opine on general question of counsel's reliance on vulnerable evidence despite expert's lack of experience with stock valuation cases and expert's unfamiliarity with facts underlying previous lawsuit.  Plaintiff's position is too simplistic.  First, plaintiff cannot have been prejudiced if he was unable to prove any damages under alternative theories, and there was nothing to support expert's assumption that plaintiff could do so.  Second, expert assumed that plaintiff had never invested in stock market, but plaintiff's financial statements showed otherwise, and in fact plaintiff was licensed securities dealer.  Moreover, expert assumed that outcome in original action would have been different if lost earnings evidence had not been presented, but that assumption was pure speculation.  Expert failed to read transcript of underlying litigation or familiarize himself with evidence therein.  District court in instant litigation could properly exclude expert's testimony as unreliable.

Garrett v. Bryan Cave L.L.P., No. 98-6282 (10th Cir. Apr. 21, 2000) (unpublished).  Action for legal malpractice.  Did plaintiff's counsel disclose privileged or confidential information in proffer session with United States Attorney's office, leading to plaintiff's indictment?  To fend off summary judgment, plaintiff offers testimony from expert attorney who finds it "extremely difficult to believe that an attorney could investigate all of these matters for a period of over two years, then have a discussion with someone about those transactions, and not divulge either direct privileged communications or the fruit of those privileged communications."  Summary judgment affirmed.  Expert admitted he did not have personal knowledge of what was said at proffer session, and conclusory affidavit about what expert found "difficult to believe" was not sufficient to create genuine issue of fact (citing Daubert).


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