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Eleventh Circuit (last Shepardized on 2/26/06)

Explanation of the statistics
Admissibility affirmance rate:    .862     (25/29)
Exclusion affirmance rate:    .955     (21/22)
Overall affirmance rate:    .902     (46/51)

United States v. Hamaker, No. 03-12544 (11th Cir. July 14, 2006).  At bank fraud trial, prosecution offers testimony re bank records from FBI financial analyst Norman "Pete" Odom.  District court overrules defendants' objection that Odom was not designated as expert during discovery.  Jury convicts.  Admissibility affirmed.  Witness offered lay testimony only.  He testified that although his expertise and computer software made his review of bank records more efficient, his testimony ultimately depended only on basic math within ken of average juror.

Covas v. Coleman Co., No. 05-14207 (11th Cir. June 6, 2006) (unpublished).  Plaintiff alleges that defendant manufacturer's defective propane heater caused her husband's and child's deaths from carbon monoxide poisoning.  In support, she offers expert testimony from "Dr. Hutter."  District court admits testimony and jury awards damages to plaintiff.  Admissibility affirmed.  District court did not err in denying manufacturer's motion to exclude plaintiff's expert under Daubert.

United States v. Garcia, 447 F.3d 1327 (11th Cir. 2006).  In narcotics trial, DEA agent Keith Cromer testifies for prosecution on modus operandi of drug trafficking organizations.  Admissibility affirmed.  Witness had extensive experience, and testimony was helpful to trier of fact.  No abuse of discretion. 

Omar v. Babcock, No. 04-15003 (11th Cir. Apr. 18, 2006) (unpublished).  Child sues Florida Department of Children and Families, alleging that agency violated child's civil rights when it placed child in abusive home.  On summary judgment, child relies on affidavit from Linda Radigan, who opines that agency acted with conscious disregard for signs of abuse.  District court strikes affidavit and awards summary judgment to agency.  Exclusion affirmed.  Affidavit merely recited underlying facts and then presented legal conclusions.  As district court correctly noted, witness was not qualified as expert on others' state of mind. 

Giddens v. Equitable Life Assurance Soc'y, 445 F.3d 1286 (11th Cir. 2006).  Suing for benefits under disability policy, plaintiff offers testimony from treating gastroenterologist, Dr. James Richard Spivey, and treating psychiatrist, Dr. Mary Patrice Webster.  Admissibility affirmed.  Both experts conducted extensive review of plaintiff's medical history.  Additional tests could have been performed, but both doctors' opinions were sufficiently reliable, without further testing, for them to opine on plaintiff's medical condition and job tasks he could and could not perform.

United States v. Dulcio, 441 F.3d 1269 (11th Cir. 2006).  Prosecution offers lay opinion testimony from drug agents re modus operandi of narcotics dealers.  Jury convicts.  Admissibility reversed.  Because this testimony was founded on specialized knowledge, it should have been offered as expert testimony, not lay opinion.  But error was harmless in light of other evidence of guilt.

United States v. Estelan, No. 05-11411 (11th Cir. Nov. 28, 2005) (unpublished).  In narcotics trial, DEA agent Richard Bonner testifies to how cocaine base is typically sold, and opines that amounts recovered from defendant are indicative of possession for distribution rather than personal use.  Admissibility affirmed.  It is true, as DEA agent admitted, that he has never published peer-reviewed articles on cocaine distribution, and that his testimony was based solely on his training and experience.  But agent's experience is extensive, and not every Daubert factor need be satisfied for law enforcement officers offering expert testimony on narcotics trafficking.

Nelson v. Freightliner, LLC, No. 04-13762 (11th Cir. Sept. 29, 2005) (unpublished).  Truck driver goes to sleep in his idling vehicle and never wakes up.  Widow sues manufacturer, alleging that truck's defective design allowed leakage of exhaust into cab.  To show that carbon monoxide intoxication caused trucker's death, widow relies on spectrophotometric test, offered through testimony from lab technician Michael Ward, showing that trucker's blood was 67% saturated with carboxyhemoglobin.  Defendants object that state lab used wrong reducing agent in test (ammonium hydroxide rather than sodium dithionite).  Magistrate judge rejects their objection, noting that lab has followed same procedures for many years.  Trial judge admits testimony, and also permits plaintiff's experts William Miller and Ronald Bredemeyer to testify to their tests of carbon monoxide levels in exhaust from different model of truck.  Jury finds for widow and defendants appeal.  Admissibility affirmed.  Magistrate's reasons for upholding reliability of lab test were mostly erroneous.  E.g., reliability of test is not established by mere fact that state government reposes confidence in lab, or by fact that lab has performed test in same fashion for many years.  However, trial court acted within its sound discretion in admitting test results.  Defendants' own cross-examination established basic reliability of lab's testing procedures, choice of reducing agent apart, and defendants also elicited testimony, on cross, suggesting that reducing agent would not have materially affected test results in this case.  Defendants also object that Michael Ward should not have testified to expert opinions, because he was offered only as fact witness.  But most of Ward's opinion testimony was elicited not on direct examination, but by defendants themselves on cross-examination.  As for opinions offered on Ward's direct testimony, review is for plain error, because defendants did not object.  No egregious error or manifest injustice appears, because Ward could have been qualified as expert; he had 28 years' experience in post-mortem blood analysis, had been certified toxicological chemist for 10 years, and was forensic laboratory supervisor for state lab.  Finally, Miller's and Bredemeyer's use of different model truck for emissions testing went to weight, not admissibility, where Bredemeyer testified that model differences would not affect emissions output.

United States v. Smith, No. 03-14278 (11th Cir. Sept. 14, 2005) (unpublished).  Bank robbery defendant offers expert testimony from Dr. Michael Leippe to challenge reliability of testimony from prosecution's eyewitnesses.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Dr. Leippe would have commented on (1) lack of correlation between eyewitness certainty and actual accuracy, (2) weapon-focus effect, and (3) impacts of stress on memory.  Previous Eleventh Circuit decisions have upheld exclusion of similar testimony, partly on theory that juries can weigh reliability of eyewitness testimony on their own.  Dr. Leippe presented evidence that might underline that rationale in part, by offering data not within jurors' common knowledge on certainty versus accuracy.  But this panel is bound by prior decisions within Eleventh Circuit absent intervening decision by Supreme Court or Eleventh Circuit sitting en banc.  Any error was likely harmless in any event.

United States v. Brown, 415 F.3d 1257 (11th Cir. 2005).  Two brothers sell 1,4-butanediol via internet.  That substance is chemically analogous to date rape drug known as gamma hydroxybutyric acid.  Is it so similar that brothers may be held criminally liable for selling controlled substance?  At trial, government calls Dr. James DeFrancesco (forensic drug chemist from DEA) and Dr. Richard Irwin (biochemist from NIH).  They both opine that drugs are closely similar, based on visual representations of their structure and also insofar as both are metabolized in similar fashion.  Defendants offer Dr. John Steele, who holds Ph.D. in plant pathology and works as freelance consultant in chemistry.  He opines that chemical structures are dissimilar based on "Tanimoto coefficient" method, which he claims permits quantitative measurement of molecular similarities.  District court admits testimony from prosecution's witnesses and excludes testimony from defendants'.  Defendants appeal following their conviction.  Admissibility affirmed; exclusion affirmed.  Appellate courts are appropriately deferential to evidentiary rulings by trial courts.  [Lengthy discussion.]  Prosecution's experts could cite no peer-reviewed literature supporting their method, which was concededly intuitive.  But district court permissibly credited their testimony that method was generally accepted.  Likewise, district court acted within its discretion in finding Dr. Steele insufficiently qualified in view of his limited experience with chemistry work and controlled substances.  Even if district court erred in finding Dr. Steele unqualified, district court permissibly concluded that Tanimoto coefficient was of dubious reliability and was unreliably applied.

United States v. McKreith, No. 03-11199 (11th Cir. July 8, 2005) (unpublished), cert. denied, 126 S. Ct. 1117 (2006).  In bank robbery trial, prosecution offers testimony from FBI forensic analyst, who opines that plaid shirt seized from defendant's residence matches shirt being worn by bank robber on bank's surveillance videotapes.  District court admits testimony after Daubert hearing, and jury convicts.  Admissibility affirmed.   Witness explained scientific basis for his analysis and was subject to cross-examination.  Alternatively, admission of testimony was harmless error.

United States v. Albritton, No. 04-10679 (11th Cir. June 10, 2005) (unpublished), cert. denied, 126 S. Ct. 470 (2005).  In bank robbery prosecution, government offers law enforcement agent as expert to testify to his opinion that latent shoeprint found on teller counter matches shoes seized from defendant's apartment.  Defendant objects.  Trial court sustains objection and instructs jury that it may compare shoes and latent print for itself.  Jury convicts and defendant appeals.  Affirmed.  Defendant offers no evidence that agent's testimony altered outcome of case in light of limiting instruction, and other evidence sufficiently supports conviction.

United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005), cert. denied, ___ S. Ct. ___ (2006).  Criminal defendant offers corroborative polygraph test.  District court adopts magistrate's ruling that polygraph evidence should be excluded as unreliable.  Jury convicts and defendant appeals.  Exclusion affirmed.  It is true that in United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc), it was held that Frye did not render polygraph testimony inadmissible per se, when offered to impeach or corroborate testimony of witness at trial.  But after Supreme Court's subsequent decision in Daubert, Piccinonna does not preclude trial courts from finding, in their discretion, that polygraph evidence is unreliable.

United States v. Buonsignore, No. 04-13098 (11th Cir. May 13, 2005) (unpublished), cert. denied, 126 S. Ct. 270 (2005).  Agent testifies to value of heroin in narcotics trial.  Jury convicts.  Admissibility affirmed.  Defendant complains that agent did not perform his own analysis but merely restated figures given to him by someone in Washington, D.C.  However, district court permissibly admitted agent's testimony under Fed. R. Civ. P. 702.  Agent had requisite training and experience to testify as expert, and experts may rely on hearsay under Fed. R. Civ. P. 703.  Agent's reliance on that hearsay did violate Confrontation Clause, but that error was harmless.

United States v. Abreu, 406 F.3d 1304 (11th Cir. 2005).  Defendant in drug trial objects to reliability of government's fingerprint evidence.  Magistrate judge denies defendant's motion to exclude and district judge affirms.  Jury convicts.  Defendant appeals.  Admissibility affirmed.  Magistrate judge properly considered uniform practices used by fingerprint examiners, as well as error rate.  Other circuits have affirmed reliability of fingerprint analysis.  Lower court did not apply wrong legal standard or make any clear error of judgment.  Moreover, even if admitting evidence had been error, it would be harmless in light of other evidence of guilt.  No abuse of discretion.

Cook v. Sheriff of Monroe County, 402 F.3d 1092 (11th Cir. 2005).  Inmate commits suicide in jail.  Inmate's estate brings claims under section 1983 and state law.  In support, estate offers testimony from suicide expert Dr. Ronald Maris, Ph.D., who opines, among other things, that occurrence of six previous suicides within 23 months should have alerted jail to need for additional precautions.  Exclusion affirmed.  Expert's various opinions were too conclusory to establish helpfulness to trier of fact.  Number of previous suicides is not meaningful unless compared with some expected baseline.  No abuse of discretion.

McClain v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005).  Did herbal diet supplement (mixture of caffeine and ephedrine) cause plaintiffs' injuries (heart attack and stroke)?  To show it did, plaintiffs offer expert causation testimony from James O'Donnell, Pharm. D., and Hashim Hakim, M.D.  Defendants move to exclude their testimony.  District court denies motion, noting that defendants have offered no competing expert testimony, and concluding that court lacks sufficient scientific knowledge to say that plaintiffs' evidence is unreliable. Jury finds for plaintiffs and awards damages.  Admissibility reversed.  District court impermissibly abdicated its gatekeeping function.  Even if it had not, testimony was inadmissible as matter of law.  Dr. O'Donnell did not address dose response -- "the hallmark of the science of toxic torts."  Pharmacological analogy between ephedrine and phenylpropanolamine (PPA), on which Dr. O'Donnell placed major reliance, is unproven.  Nor do anecdotal consumer complaints, or FDA's withdrawn proposals to regulate ephedrine, supply sufficiently reliable bases for his opinions.  Dr. Hakim lacked sufficient basis for generic causation to "rule in" ephedrine as one potential cause.

Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir.), cert. denied, 126 S. Ct. 419 (2005).  Tampa residents fall ill after area is sprayed with pesticide.  They sue pesticide manufacturer, claiming that process of chemical decomposition led to formation of toxic isomalathion when pesticide was stored in overheated warehouses in Florida, Georgia, and Texas.  Their chemical engineering expert, Dr. Jack Matson, collects meteorological data for relevant storage sites, calculates warehouse temperatures during pertinent period, and opines that temperatures were high enough to cause decomposition.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Based on indirect evidence that temperature inside Texas warehouse was 18 degrees above ambient outdoor temperature, expert made upward adjustment to temperatures for warehouses in all three states, based on their structural similarities and basic latitudinal equivalence.  But district court permissibly found that Matson could not reliably generalize to all storage facilities from Texas example without investigating all of them.  Moreover, even evidence of temperature differential for Texas depended on leap of faith that district court permissibly rejected.

McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004).  Prisoner with back pain is sent to hospital, treated, and returned.  Prisoner visits jail nurse on following day, complaining of inability to urinate and difficulty walking.  Nurse determines that prisoner should be transported to hospital to rule out pneumonia and "acute abdomen." Nurse so informs jail personnel but allegedly fails to communicate urgency of prisoner's need for attention.  After twelve hours have elapsed without prisoner's being transported, prisoner informs corrections officer that he no longer has feeling in his legs.  He is now finally transported, whereupon hospital medical staff discover spinal epidural abscess and perform surgery, reversing prisoner's total paralysis but leaving him partially paraplegic.  Prisoner brings claims for medical malpractice under Georgia law against hospital medical personnel, and also against jail nurse and her contractor employer.  In support, prisoner offers testimony from three expert physicians, Drs. James Merikangas, Rabih O. Darouiche, and David Gower, who seek to testify that delay in treatment caused or exacerbated prisoner's injury, and who also opine on applicable duty of care.  Hospital moves to exclude prisoner's experts, but jail nurse does not join in motion.  District court grants hospital's motion, and notes in doing so that all three experts for prisoner stated they were unqualified to opine on hospital nurses' duty of care.  District court then reopens discovery to permit prisoner to develop further causation evidence, but not as to issue of jail nurse's negligence.  Hospital defendants settle.  Relying on prior ruling that prisoner's experts were not qualified to opine on standard of care applicable to nurses, district court then grants summary judgment to jail nurse.  Prisoner appeals.  Judgment affirmed; exclusions affirmed in part and reversed in part.  Prisoner did offer competent evidence on jail nurse's duty of care: Dr. Dariouche testified that he could not comment on hospital nurses' conduct, but that jail nurse should have called ambulance to transport prisoner.  Physicians are competent to opine on nurses' duty of care under Georgia law, which governs in light of Fed. R. Evid. 601.  Physicians' qualifications necessarily extend to opinions on nurses' duty of care, and Dr. Dariouche's ability to opine on that subject did not require special acquaintance with jailhouse nursing, because issue was medical, not correctional.  But district court permissibly excluded physicians' opinions on causation.  They lacked reliable bases for their opinions that surgery would have altered outcome if provided more promptly.

Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004), cert. denied, 126 S. Ct. 478 (2005).  Plaintiffs in Title VII suit allege racial discrimination.  In opposing summary judgment, they offer statistical evidence from expert John Del Roccili.  District court strikes expert's affidavit as sanction for noncompliance with disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B) and awards summary judgment to defendants.  Exclusion affirmed.  Plaintiffs initially designated Del Roccili as fact witness.  They later identified him as expert witness in discovery responses, but they never provided his expert report as required under Rule 26.  District court did not abuse discretion in excluding his testimony as sanction under Fed. R. Civ. P. 37(c)(1).

United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc) (overruling United States v. Frazier, 322 F.3d 1262 (11th Cir. 2003) [infra]), cert. denied, 125 S. Ct. 2516 (2005).  In kidnapping trial, trial court admits some testimony from defendant's forensic expert Robert Tressel, but excludes as unreliable his proposed testimony that "[w]ith the amount of sexual activity described in the search warrant affidavit, it would be expected that some transfer of either hairs or seminal fluid would occur in this case."  Jury convicts and defendant appeals.  Exclusion affirmed.  Appellate review of district court gatekeeping decisions is deferential.  District court permissibly found that expert had no empirical support for his inherently probabilistic assessment that transfer of hair or seminal fluid would be "expected."  Although expert is concededly qualified, his experience does not obviate need for separate reliability inquiry.

United States v. Bennett, 368 F.3d 1343 (11th Cir. 2004), vacated on other grounds, 543 U.S. 1110 (2005).  District court admits testimony from government expert Monica Price, who opines on theoretical yield from defendant's methamphetamine lab.  Jury convicts.  Admissibility affirmed.  Defendant says witness is short on experience, but she does boast substantial education and training.

Hall v. United Ins. Co. of Am., 367 F.3d 1255 (11th Cir. 2004).  In action for recovery under life insurance policy, beneficiary offers testimony from Rocco Petrella, licensed professional counselor, who opines that insured was not competent when he executed waiver canceling policy.  District court excludes testimony and grants summary judgment to insurer.  Exclusion affirmed.  District court permissibly found that expert failed to demonstrate his qualifications, cited no scientific methodology or literature, and failed to explain how he came to opposite conclusion from insured's medical doctor.

Edic v. Century Prods. Co., 364 F.3d 1276 (11th Cir. 2004).  Toddler suffers injury when ejected from child restraint system (car seat) during automobile accident.  Parents sue car seat's manufacturer, alleging defective design.  Defendants counter with expert testimony from accident reconstructionist Kevin Breen, to rebut testimony from eyewitness who says she saw child fly into air, hit vehicle's ceiling, and land on vehicle's back seat.  Breen testifies that critical events in accident would have occurred within less than 0.1 seconds.  Defendants also offer testimony from biomechanical expert Dr. James H. McElhaney, who likewise opines that events occurred too quickly for witnesses outside vehicle to observe what happened to occupants, and also that toddler's injuries occurred prior to toddler's ejection from car seat.  District court denies plaintiffs' motion to exclude testimony from both experts, and awards judgment as matter of law to defendants at conclusion of trial.  Admissibility affirmed.  Parents complain that trial court did not outline its entire Daubert analysis in denying their motion in limine.  But no authority requires that district courts offer comprehensive Daubert analyses.  In any event, district court expressly adopted comprehensive analysis from defendants' response.  Parents also say that district court should not have permitted defendants' experts to alter their reports to incorporate information not available at time reports were served.  But parents fail to specify which statements by experts should have been excluded on these grounds, and fail to explain how they were prejudiced.  District court erred, however, in finding plaintiffs' evidence insufficient as matter of law.  Remanded for new trial.

Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775 (11th Cir. 2004), cert. denied, 543 U.S. 1002 (2005).  Golf cart distributor sues over termination of distributorship.  Defendant counterclaims, offering testimony on lost profits from accountant Peter Ryan.  District court excludes testimony.  Exclusion affirmed.  Accountant based testimony on gross sales and gross profit figures, without taking associated expenses into account.  That approach does not square with Georgia law on calculation of lost profits, and does not enjoy general accounting acceptance.  No abuse of discretion.

United States v. Puche, 350 F.3d 1137 (11th Cir. 2003).  In money laundering trial, district court admits detective's testimony that defendants structured cash transactions to avoid currency reporting requirements.  Jury convicts.  Admissibility affirmed.  Detective had considerable training in domestic and international money laundering, and could legitimately form opinion based on review of financial records, without first-hand personal knowledge of underlying transactions.

Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003).  Class of cigarette wholesalers sues manufacturers for price-fixing.  To defend against summary judgment, wholesalers offer testimony from Professor Franklin M. Fisher, who seeks to opine that various aspects of manufacturers' conduct supported inference of collusive pricing.  District court excludes Fisher's testimony on that point and awards summary judgment.  Exclusion affirmed.  Fisher's methods did not permit Fisher or jury to distinguish between lawful conscious parallelism and unlawful price-fixing conspiracy.

Allapattah Servs. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003), aff'd, 125 S. Ct. 2611 (2005).  Class of Exxon dealers alleges that Exxon overcharged them for fuel in breach of dealer agreements.  At trial, dealers offer expert testimony from economist Dr. Raymond Fishe, and jury finds for plaintiffs.  Admissibility affirmed.  Exxon complains that expert had no specialized knowledge of petroleum pricing and employed flawed methodology.  But district court conducted six-day Daubert hearing, exhaustively canvassing reliability issues, and expert was fully subject to cross-examination.  No abuse of discretion. 

Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003).  Army UH-1 helicopter's tail fin separates from helicopter during Medivac mission in May 1999, causing crash in which two pilots are injured.  Army's investigation reveals that separation resulted from rupture of forward vertical fin spar, caused by crack originating at rivet hole.  Pilots bring separate suits in same district court, assigned to two different judges, against various entities including DynCorp, which handled helicopter inspection and maintenance under Army contract.  DynCorp raises "government contractor" defense, noting that Army's protocols required only unaided visual inspection, and contending that crack was not visible to naked eye prior to crash.  On DynCorp's motion for summary judgment, submitted in both cases, plaintiffs counter with three expert affiants: (1) B.J. Sammons, lead mechanic at helicopter's base for forty years until his retirement one day prior to accident, who opines that if properly conducted in conformity with Army procedures, inspection in October 1998 would have discovered any visible spar cracks; (2) Steve Powell, helicopter manufacturer's field investigator, who opines, based on electron microscope images of wreckage, that crack would have been visible to naked eye prior to crash; and (3) materials engineer Richard H. McSwain, Ph.D., who opines that crack would have been visible to naked eye and also through nondestructive testing.  District court strikes: (1) in one pilot's case, mechanic's testimony re October 1998 inspection; (2) field investigator's testimony that crack would have been visible; and (3) engineer's testimony re visibility of crack to naked eye.  District court then awards summary judgment to DynCorp.  Exclusions affirmed in part and reversed in part.  Even when district court's single reversible expert ruling is rectified, plaintiffs lack evidence sufficient to create genuine issue of material fact on visibility of crack at relevant time.  (1) Exclusion of mechanic's testimony appears to have rested on relevance grounds.  If so, ruling was error, because testimony was relevant to show that DynCorp's conformity to Army inspection protocols would have led to discovery of any visible spar cracks.  (2) In striking field investigator's testimony, district court relied on rationale that witness was unfamiliar with DynCorp's inspection procedures.  This was "error," because district court's rationale is unrelated to physical visibility of cracks, but district court did not abuse discretion in excluding testimony, because mere ability to operate electron microscope would not qualify witness to opine on timing or visibility of spar cracks, and because plaintiffs identified no other reliable methodology supporting investigator's opinion.  (3) In striking engineer's testimony, one district judge inappropriately based decision on irrelevant fact that engineer had not never previously seen any UH-1 helicopter, and second district judge merely alluded conclusorily to lack of "factual basis" for engineer's opinion.  Neither judge's ruling on engineer need be reversed, however, because Daubert required testimony's exclusion, since engineer relied on important inferences for which he offered no reliable basis. 

Quiet Technology DC-8, Inc. v. Hurel Dubois UK, Ltd., 326 F.3d 1333 (11th Cir. 2003).  Quiet manufactures hush kits to render jet engines on DC8 aircraft compliant with federal noise regulations.  Its hush kits employ ejectors, which modify air flow.  Use of Quiet's ejectors requires modifications to engines' thrust reversers, and so Quiet contracts with Hurel to design reverser modifications.  Design process culminates in assembly that includes Quiet's ejectors and reverser linkages designed by Hurel.  Finished assembly is unmarketable because it results in 25% degradation in aircraft performance.  Quiet blames Hurel and sues.  Hurel tenders timely report from Joel Frank, expert in computational fluid dynamics ("CFD"), in which Frank opines that Hurel's reverser linkages contributed only slightly to performance degradation.  Quiet moves to continue trial date based in part on its need to study Frank's report.  District court denies continuance and sets deadline for pretrial motions.  Quiet permits deadline to pass without filing motion to strike Frank's testimony, but announces at subsequent pretrial conference that it will mount Daubert challenge.  District court holds Daubert hearing on sixth day of trial.  On ninth day of trial, district court announces it will admit Frank's testimony.  District court also refuses Quiet's request for appointment of independent expert to assess Frank's testimony, ruling that although independent expert might be helpful, appointment would unduly delay trial.  Jury returns verdict for Hurel.  Admissibility affirmed.  District court did not abuse discretion in refusing continuance or declining to appoint independent expert.  As for merits of Daubert objection, Quiet challenges Frank's qualifications, but not for want of extensive education and experience.  Rather, Quiet says Frank made methodological mistakes that no qualified expert would make.  This point does not go to expert's qualifications, but rather to reliability of testimony.  On that front, Quiet does not challenge reliability of CFD itself, but rather expert's application of CFD, contending that Frank made computational errors.  But any such errors could be addressed through cross-examination, and go to weight, not admissibility.

United States v. Frazier, 322 F.3d 1262 (11th Cir. 2003), overruled on reconsideration en banc, 387 F.3d 1244 (11th Cir. 2004), cert. denied, 125 S. Ct. 2516 (2005).  Man is charged with kidnapping and sexually assaulting 18-year-old woman.  Her version: defendant abducted her at knifepoint, forced her to drive him to dark wooded area, and committed multiple sexual assaults.  His version: woman offered him ride, and later manufactured kidnapping and assault charges to explain missing her curfew.  Defendant offers forensic expert Robert Tressel to opine, based on admitted absence of defendant's hair and bodily fluids from site, that no forensic evidence corroborated complainant's story.  District court refuses to permit that testimonial inference, and defense counsel therefore elects not to call Tressel, but simply to elicit testimony from prosecution's FBI lab techs that no matching hair or bodily fluids were in fact found.  Exclusion reversed.  Trial court faulted expert's lack of scientific background or methodology, but expert had very extensive experience investigating sexual assault cases, and his modest opinion that forensic evidence did not substantiate assault was sufficiently grounded in that experience.  Dissent: Expert offered no reliable basis for conclusion that hair or fluid samples would have been recovered if victim had been assaulted.

Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003).  Ship repair company sues ship owner for balance due.  At trial, repair company offers several of its personnel to testify to their lay opinion that charges were reasonable.  Ship owner objects that such opinions would properly be subject of expert testimony and are therefore inadmissible as lay opinion under Fed. R. Evid. 701 as amended in 2000.  District court admits testimony and finds for ship repair company.  Admissibility affirmed.  Business owners and managers have traditionally been competent to offer lay opinions of this sort, and commentary indicates that amendments to Rule 701 were not intended to alter that result, but rather to foreclose attempts to circumvent Rule 702 by offering testimony traditionally reserved for experts under guise of lay opinion.

United States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002), cert. denied, 538 U.S. 909 (2003).  Drug defendants object to testimony of law enforcement officers, admitted as lay opinion: (1) characterizing their boat as "go-fast boat" commonly used for drug smuggling and not normally found 300 miles from shore when used for recreational purposes; and (2) estimating street value of cocaine seized from boat.  Defendants contend testimony is actually expert opinion, and therefore is subject to disclosure requirements that prosecution did not honor.  District court declines to exclude testimony on these grounds, and jury convicts.  Affirmed.  Testimony re boat was founded in part on witness's first-hand observations and qualified as lay opinion, even though it also might have been admissible as expert opinion.  Those two categories of opinion evidence are not mutually exclusive, at least in cases arising prior to amendments to Fed. R. Evid. 701 in 2000.  Testimony re street price of cocaine is closer question, but issue need not be decided, because defendants have not shown how their ability to mount defense was compromised by prosecution's failure to disclose testimony before trial. 

McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (11th Cir. 2002).  Catheter explodes inside patient.  In suit against manufacturer and distributor, plaintiff offers two physicians and one engineering expert to opine that catheter was defectively designed and/or manufactured.  District court excludes engineering expert's testimony, then awards summary judgment to defendants on theory that physicians' testimony cannot support legal inference of product defect.  Exclusion affirmed.  Plaintiff complains that district court improperly evaluated engineer's credibility, and says that any methodological flaws in expert's analysis could have been addressed on cross.  However, district court did not abuse discretion in excluding his testimony.  Expert did not test alternative catheter designs, did not talk to medical personnel, cited no supporting literature, and did not test for extrinsic causes such as improper storage of catheter.  Nevertheless, testimony from physicians was sufficient to support inference of product defect, so summary judgment is reversed and plaintiffs' claims remanded.  

Rider v. Sandoz Pharms. Corp., 295 F.3d 1194 (11th Cir. 2002).  Two women take Parlodel to suppress postpartum lactation and suffer hemorrhagic strokes.  In suit against pharmaceutical company, women offer causation testimony from five experts.  After three-day Daubert hearing, district court strikes testimony from all five and awards summary judgment to manufacturer.  Exclusion affirmed.  Plaintiffs contend district court erred in requiring epidemiological studies showing statistically significant causal link, but district court did not violate settled principle that epidemiology is not required in toxic tort cases.  It simply found plaintiffs' other causation evidence unreliable, and other courts have reached identical conclusion on similar records.  Case reports, e.g., are merely anecdotal and do not represent scientific methodology.  They generally will not constitute reliable causation evidence on their own.  Plaintiffs' challenge/dechallenge data did not involve strokes.  Evidence that other ergot alkaloids cause stroke does not show that bromocriptine does, because class of ergot alkaloids is broad, and even minor differences in chemical structure can produce major differences in effects.  Animal studies showed merely that bromocriptine causes vasoconstriction, not strokes.  And FDA's withdrawal of approval of Parlodel for suppressing postpartum lactation will not reliably prove causation, because FDA must err on side of caution.

Bailey v. Allgas, Inc., 284 F.3d 1237 (11th Cir. 2002).  Employee of liquid propane gas supplier quits to open competitor.  Supplier cuts prices and competitor is driven out of business.  Competitor sues under Robinson-Patman Act, offering testimony from economist Dr. William Gunther.  District court excludes economist's testimony and holds that summary judgment would be appropriate even if testimony were admissible.  Summary judgment affirmed.  Even if admissible, economist's testimony would be insufficient to establish Robinson-Patman claim.  Among other defects, economist did not adequately consider alternative sources of residential fuel in defining relevant product market, offered inconsistent opinions on geographic market, estimated market share by questionable methods and for area inconsistent with economist's own definitions of geographic market, relied on dubious accounting data to show oligopoly, and failed to reckon with absence of significant barriers to entry.

United States v. Novaton, 271 F.3d 968 (11th Cir. 2001), cert. denied, 535 U.S. 1120 (2002).  Defendants in drug trial object when prosecution offers law enforcement officers to offer lay opinion re meaning of code words used in recorded phone conversations.  Admissibility affirmed.  Defendants argue that because witnesses drew on prior experience, their testimony was not lay opinion, but expert opinion in disguise.  It is true that Eleventh Circuit has upheld similar testimony as expert opinion in past.  But mere fact that testimony could be offered by expert does not preclude its admissibility as lay opinion -- at least  not in cases tried, like this case, before effective date of amendments to Fed. R. Evid. 701 in 2000.

United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001), cert. denied, 535 U.S. 1111 (2002).  Prosecution offers testimony from toxicologist at trial of defendants for conspiracy to commit various environmental crimes.  Admissibility affirmed.  Defendants argue on appeal that toxicologist's testimony was unreliable and irrelevant but did not raise objections to testimony at trial.

United States v. Great Lakes Dredge & Dock Co., 259 F.3d 1300 (11th Cir. 2001), cert. denied, 535 U.S. 955 (2002).  United States seeks damages under National Marine Sanctuaries Act for environmental damages caused by tugboat mishap.  District court approves "habitat equivalency analysis" (HEA) as method of computing damages.  Affirmed.  HEA method was peer-reviewed and accepted for publication prior to trial, and disputes about data used in analysis presented issue for finder of fact. 

Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001).  In civil RICO action arising from defendants' fraudulent real estate investment scheme, plaintiff's economist computes damages by calculating what plaintiffs' capital would have earned if invested in real estate investment trusts (REITs).  Admissibility affirmed.  Expert held Ph.D. in economics from Yale and had extensive experience as professional economist and in estimating damages.  Expert's lack of experience with real estate development went not to qualifications but to foundations, and expert could reasonably assume that plaintiffs' funds would have been invested in REITs if not invested instead in defendants' scheme.

A.A. Profiles, Inc. v. City of Fort Lauderdale, 253 F.3d 576 (11th Cir. 2001).  In commercial property owner's action for partial taking, district court admits testimony from city's expert accountant that plaintiff's business would have failed even absent city's taking.  Admissibility reversed.  Pertinent inquiry, for purposes of proving damages, was not whether plaintiff's business would have succeeded, but rather whether plaintiff's property suffered diminution in value.  Accountant's testimony was therefore irrelevant.

Toole v. Baxter Healthcare Corp., 235 F.3d 1307 (11th Cir. 2000).  At trial of products liability claim against breast implant manufacturer, four physicians testify for plaintiff that ruptured implants caused her disease, and three additional physicians testify to disease process associated with human body's reactions to silica.  Admissibility affirmed.  Physicians had conducted research, published in peer-reviewed journals, and treated hundreds of patients with silicone gel implants.  District court did not abuse discretion in admitting their testimony.

Mullins v. Crowell, 228 F.3d 1305 (11th Cir. 2000).  Plaintiff in Rehabilitation Act case relies on expert testimony from company foreman to establish that disability resulting from ankle injury renders plaintiff unable to perform entire class of craft work.  Admissibility affirmed.  Defendant complains that foreman "is not a medical, labor, or vocational expert," but no such showing is required, and foreman's experience qualified him to give expert testimony.

United States v. Campbell, 223 F.3d 1286 (11th Cir. 2000), cert. denied, 534 U.S. 829 (2001).  Cocaine is found in drug courier's luggage during airport search.  Courier signs statement prepared by customs agent.  Statement includes sentence reading: "Agent McKenney explained to the defendant that nobody gives this amount of cocaine to someone they don't trust."  This tends to negate courier's eventual defense, proffered at trial, that he was unwittingly transporting cocaine that someone else had planted in his suitcase without his knowledge.  Jury hears discussion of hearsay opinion from defendant's post-arrest statement three times during customs agent's testimony, and prosecution refers to it during closing argument as though customs agent had actually offered same opinion at trial.  Defendant objects on none of these occasions.  Jury convicts.  Admissibility affirmed.  Because defendant did not object at trial, review is for plain error only.  Inclusion of customs agent's opinion in statement prepared for defendant's signature was improper and not to be condoned.  However, admission of his hearsay opinion was not plainly erroneous.  Agent testified and was subject to cross-examination.  His eleven years of experience would have qualified him as expert competent to render opinions of this kind.  And other evidence overwhelmingly supported defendant's guilty knowledge.  District courts cannot be required to police hearsay evidence in absence of objection.  Godbold, J., dissenting: "This is a shabby case.  Our government can do better than this."

Johnson v. DeSoto Board of County Commissioners, 204 F.3d 1335 (11th Cir. 2000).  Defendant in voting discrimination suit presents expert who relies on voter registration figures to opine on county population increase following 1990 census.  Admissibility affirmed.  Plaintiffs say voting registration data are inherently unreliable as measure of voting age population and cannot be used to contradict census figures.  But there is no per se rule against use of voter registration data, and evidence derived through statistically valid sampling techniques has previously been held admissible.

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