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Fourth Circuit (last Shepardized on 3/11/06)

Explanation of the statistics
Admissibility affirmance rate:    .952     (40/42)
Exclusion affirmance rate:    .973     (36/37)
Overall affirmance rate:    .962     (76/79)

Parmenter v. Rollins Fin. Counseling, Inc., No. 05-1189 (4th Cir. June 29, 2006) (unpublished).  Widow retains financial advisor to manage her retirement account.  Advisor places funds in high-risk investments.  After initial gains, her account plummets in value.  She discharges advisor and sues.  To show damages, she relies on expert F. John Hermann, who opines that advisor's biggest breach of fiduciary duty came with his failure to consolidate widow's gains in lest risky investments, and offers range of damage figures, under alternative scenarios assuming more prudent management of her funds.  Advisor objects that expert should work from original value of widow's account, but district court overrules objection.  Jury awards damages to widow.  Admissibility affirmed.  Jury could have concluded that advisor performed well at first but then squandered widow's gains.  No abuse of discretion.

United States v. Villarreal, No. 05-4206 (4th Cir. June 14, 2006) (unpublished).  Jury convicts narcotics defendant after prosecution offers expert testimony from law enforcement officer re manner in which drug dealers record transactions.  Admissibility affirmed.  No abuse of discretion.

Pharmanetics, Inc. v. Aventis Pharms., Inc., No. 05-1621 (4th Cir. May 31, 2006) (unpublished).  To show lost profits in Lanham Act suit, plaintiff offers expert testimony from Richard Troxel.  District court excludes testimony as too speculative and too disconnected from facts of case, and awards summary judgment to defendant.  Exclusion affirmed.  District court did not abuse its discretion in concluding that expert's lump sum estimates were too misleading to present as expert testimony, nor in ruling that expert's estimates on lost profits from sales of new technology were too speculative.

Roche v. Lincoln Prop. Co., No. 03-2064 (4th Cir. Apr. 7, 2006) (unpublished).  Apartment tenants develop respiratory ailments they attribute to toxic mold.  To oppose summary judgment in their suit against owners and managers of property, tenants rely on differential diagnosis testimony from Dr. Richard Bernstein.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Differential diagnosis is valid scientific technique, but expert did not implement it in reliable fashion.  He failed to rule in certain strains of mold, did not rule out other allergens, omitted to perform certain tests while dismissing other test results, and leapt from literature supporting general causation to unwarranted conclusions on specific causation.

United States v. Ferguson, No. 05-4243 (4th Cir. Mar. 28, 2006) (unpublished).  District court permits DEA agent to testify for prosecution re local drug trade.  Jury convicts.  Admissibility affirmed.  Such testimony was relevant and could assist jury.  Similar testimony is routinely held admissible.  No abuse of discretion.

United States v. Batts, No. 04-5048 (4th Cir. Mar. 21, 2006) (unpublished).  In narcotics conspiracy trial, prosecution offers expert testimony from FBI agent John Lanata on drug gangs.  Jury convicts.  Admissibility affirmed.  No abuse of discretion.

United States v. Moreland, 437 F.3d 424 (4th Cir. 2006).  Prosecution calls lab technician Carrie Kirkpatrick to testify that substance found in defendant's possession was cocaine base.  Defendant objects to qualifying her as expert, but trial court states that designating her as lay or expert witness is less important than substance of her testimony, which trial court finds to be reliable.  Jury convicts.  Admissibility affirmed.  Defendant complains that witness was unable, on cross-examination, to state error rate for lab test or to identify type of chemical reaction involved.  But trial court did not abuse its discretion in concluding those issues went to weight, not admissibility.  Witness did testify that her test methods were generally accepted and subject to quality controls.

United States v. Williams, No. 05-4977 (4th Cir. Feb. 17, 2006) (unpublished).  In parole revocation proceedings, government relies on expert opinion from probation officer John Grant on how long marijuana remains detectable in human body.  District court revokes supervised release.  Admissibility affirmed.  Witness had substantial training and experience.

Testerman v. Riddell, Inc., No. 05-1505 (4th Cir. Jan. 6, 2006) (unpublished).  College football player suffers injury when tackled.  He sues shoulder pad manufacturer, alleging that manufacturer's agent selected and fitted him with pads that were inappropriate, inadequate, and too small.  In support, he relies on testimony from Kent Falb, former head athletic trainer for Detroit Lions.  District court excludes Falb's testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  District court identified three questions Falb was unable to answer definitively: (1) whether area of impact was covered by shoulder pad; (2) which blow during tackle caused injury; and (3) whether different pads would have mitigated or prevented injury.  It is true that district court reviewed evidence in determining what other potential causes of plaintiff's injury existed, but this does not mean that district court impermissibly focused on questions of weight, or on evaluating merits of Falb's conclusions.  Falb's inability to address key issues of causation went to reliability of his approach.  No abuse of discretion.  

United States v. Belyea, No. 04-4415 (4th Cir. Dec. 28, 2005) (unpublished).  Defendant is among partygoers who consume methamphetamine at hostess's parents' house in Virginia.  Over one year later, hostess's father discovers that three handguns are missing from hope chest in master bedroom.  When father reports their absence to police, two of his handguns turn out to have been recovered in search of car belonging to suspected drug dealer in Washington, D.C.  ATF agent interviews defendant and tells him two lies: (1) that one gun was used in D.C. murder; and (2) that murder weapon bore just one fingerprint (defendant's).  Agent also tells defendant that he can be detained as material witness in D.C. jail where skinny white boys like defendant won't last long.  Defendant confesses to theft and is charged with possession of firearm by unlawful user of controlled substance.  At trial, however, defendant recants and seeks to offer expert testimony from Dr. Solomon Fulero on various factors correlated with false confessions.  District court excludes testimony, without conducting Daubert analysis, because "jurors know people lie."  Jury convicts and defendant appeals.  Exclusion reversed.  Broad generalization on which district court's decision was based (that jurors "know people lie") is inconsistent with nuanced and particularized determination mandated under Daubert.  Jurors do not necessarily know that persons lie to their own detriment by confessing to crimes they did not commit.  Although district court did not permit defendant's attempted proffer, defendant's motion in limine indicated that witness would testify on how anxiety and various interrogation techniques can induce false confessions.  Error cannot be deemed harmless because no other evidence exists that defendant ever possessed weapon.  District court should conduct proper Daubert analysis on remand and award new trial if it concludes that expert's testimony is admissible. 

Bryte v. Am. Household, Inc., 429 F.3d 469 (4th Cir. 2005).  Partially disabled from stroke, woman is left alone at home for fifteen minutes, sitting in recliner under electric throw, next to table that holds lamp and burning candle.  Fire erupts, killing woman.  Family sues manufacturer of throw, alleging faulty circuit caused fire.  To show causation at trial, family offers testimony from assistant state fire marshall Mack Dennis and Dr. W.T. Cronenwett, both of whom opine that electric throw caused fire.  Trial court excludes testimony and awards judgment as matter of law to manufacturer at close of plaintiffs' case.  Exclusions affirmed.  Dennis did not physically examine lamp, electrical cord, wall outlet, or wiring and did not adequately exclude candle as originating cause of fire.  Cronenwett's testimony, which focused on defective electrical circuits, was necessarily dependent on Dennis's.

United States v. Forrest, 429 F.3d 73 (4th Cir. 2005).  Police chief Ronald Forrest meets young adolescent boy who assists Forrest in founding department's "Junior Police Program."  Boy begins visiting Forrest's home and sleeping over.  Forrest pays boy to pose for naked pictures.  Forrest's fiancée finds pictures in Forrest's photo album and reports Forrest.  At Forrest's trial on charges of sexual exploitation of child, prosecution offers testimony of Kenneth Lanning (former FBI agent with extensive experience in child abuse issues).  Over Forrest's objection, Lanning describes general profile of child molesters that closely resembles Forrest's behavior (molesters are often authority figures, like police officers; they often have their victims spend the night and take their pictures; they are often apprehended only after someone else finds pictures).  Jury convicts.  Affirmed.  Admission of Lanning's testimony is troubling, given that Forrest was not on trial for child molestation.  But its admissibility need not be reached, because any error was harmless, given overwhelming evidence of Forrest's guilt.

United States v. Smith, No. 04-4248 (4th Cir. Nov. 3, 2005) (unpublished), cert. denied, ___ S. Ct. ___ (2006).  Defendant is prosecuted on various firearms charges.  Over defendant's objection, trial court admits testimony from ATF document examiner Carl McClary, who testifies that defendant's handwriting samples match signatures on forms completed at pawn shop to purchase handguns.  Trial court also admits testimony from ATF agent Don Baucom, who opines that handguns traveled in interstate commerce.  Jury convicts.  Admissibility affirmed.  Fourth Circuit has previously upheld handwriting analysis against Daubert challenge, and this defendant offered no evidence calling its reliability into question.  Defendant says Baucom is unqualified, but district court did not abuse discretion in admitting testimony from ATF agent with extensive experience who has received advanced interstate nexus training.

Anderson v. Westinghouse Savannah River Co., 406 F.3d 248 (4th Cir. 2005), cert. denied, ___ S. Ct. ___ (2006).  Plaintiff in Title VII suit alleging racial discrimination in salaries and promotions offers testimony from Dr. Edwin L. Bradley, who opines based on statistical analysis that minorities score consistently lower on instrument used by employer to evaluate employees for promotions.  District court excludes testimony and awards summary judgment to employer.  Exclusion affirmed.  Expert's analysis did not compare similarly situated employees, because it relied on broad occupational categories embracing very different types of job.

United States v. McElveen, No. 04-4285 (4th Cir. Apr. 15, 2005) (unpublished), cert. denied, 126 S. Ct. 298 (2005).  DEA agent testifies in narcotics trial re nature of local drug trade.  Jury convicts.  Admissibility affirmed.  Such testimony is routinely held admissible.

Burns v. Anderson, No. 03-2162 (4th Cir. Dec. 15, 2004) (unpublished).  Thinly traded stock is pledged as collateral for loan.  When borrower defaults, lender sells stock and sues for balance due.  At bench trial, lender offers testimony from appraiser Russell Bregman to show commercial reasonableness of stock's sales price.  Trial court adopts appraiser's figure, subtracts it from amount due under note, and awards difference to lender, with interest and costs.  Admissibility affirmed.  Borrowers do not mount true Daubert challenge, because they do not argue that expert's methods have not been peer-reviewed or tested, have excessive rates of error, have no standards governing their application, or have not been accepted in field.  They instead fault appraiser for failing to consider certain documents and argue that his appraisal was based on unreliable data.  Those objections go to weight, not admissibility.  Nor do borrowers' objections to appraiser's qualifications pass muster.  Appraiser presented evidence showing he had substantial experience, education, and training in stock valuation analysis. 

United States v. Ricketts, No. 03-4721 (4th Cir. Dec. 9, 2004) (unpublished), cert. denied, 126 S. Ct. 841 (2005).  Trial court excludes testimony from criminal defendant's voice spectography expert.  Exclusion affirmed.  Testimony was without probative value to jury because it did not tend to make any fact of consequence more probable or less so.  

Brown v. Ryan's Family Steak Houses, Inc., No. 04-1351 (4th Cir. Oct. 29, 2004) (unpublished).  Former employee brings Title VII action.  Employer moves to dismiss and compel arbitration pursuant to arbitration agreement executed by employee's guardian Mrs. Gassaway (employee's great-great aunt) when employee was sixteen years old.  Employee counters that her guardian, now deceased, lacked requisite mental capacity to enter into binding contract when arbitration agreement was executed.  In support, employee offers testimony from guardian's treating physician of sixteen years, Dr. John Sanders, who opines that guardian was in mental decline due to brain atrophy and subclavian steal syndrome at relevant time.  District court denies employer's motion to dismiss on magistrate's recommendation, and employer appeals.  Admissibility affirmed.  Physician's diagnosis of guardian's ailments was not required to satisfy Daubert, because physician was fact witness describing condition of patient.  Physician's opinion on guardian's mental capacity was admissible as lay opinion under Fed. R. Evid. 701.  "Furthermore, Dr. Sanders is the most qualified person available to testify to Mrs. Gassaway's mental capacity. Gassaway has passed away and is not available for further medical examination.  Dr. Sanders was her treating physician for sixteen years.  The fact that his practice is internal medicine rather than neurology does not negate the fact that he is a qualified physician with more first-hand knowledge concerning Gassaway's physical and mental well-being than any other medical professional."

United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005).  On trial for providing assistance to foreign terrorist organization, defendant objects when prosecution offers Matthew Levitt to testify as expert regarding structure and leadership of Hizballah.  District court admits testimony after Daubert hearing, and jury convicts.  Admissibility affirmed.  Witness had knowledge of Hizballah from his experience working with FBI, and he employed standard social scientific research methods.

O'Neill v. Windshire-Copeland Assocs., LP, 372 F.3d 281 (4th Cir. 2004).  Tenant falls backwards over second-story balcony railing and is rendered quadriplegic.  She brings diversity action against landlord, alleging negligence because 32-inch balcony railing is 16 inches lower than building code requires.  District court excludes testimony from plaintiffs' expert Dr. David A. Thompson, professor of biomechanics, who would opine that someone of tenant's athletic ability probably would not have leaned too far backwards and fallen, and that gust of wind likely triggered her fall.   District court admits lab report from hospital showing tenant's post-accident blood alcohol level at .18.  Jury finds tenant contributorily negligent and judgment is rendered for landlord.  Exclusion affirmed; admissibility affirmedOpinion of biomechanics expert was more supposition than science.  Tenant says lab report was unreliable because her arm was wiped with isopropyl alcohol swab before blood was drawn.  But lab results employing this same procedure are routinely used by physicians making treatment decisions, and tenant's own toxicologist testified he had no reason to doubt result.  Tenant also notes that lab result was printed on form which was marked with words "these results should not be used for any legal purpose."  But hospitals do not make decisions about admissibility; courts do.

Clem v. Corbeau, No. 03-1831 (4th Cir. Apr. 29, 2004) (unpublished).  In civil rights claim, two experts for plaintiff seek to opine that arresting officers used excessive force.  District court excludes testimony as unhelpful to trier of fact, and jury convicts.  Exclusion affirmed.   Proffered experts did not offer testimony on obscure law enforcement techniques or skills.  In circumstances of case, their testimony would have supplanted jury's exercise of independent common sense.

United States v. Benitez, No. 03-4628 (4th Cir. Apr. 6, 2004) (unpublished).  Criminal defendant appeals conviction, alleging district court improperly admitted expert evidence.  Admissibility affirmed.  No abuse of discretion. 

Golden Nugget, Inc. v. Chesapeake Bay Fishing Co., No. 03-1339 (4th Cir. Apr. 2, 2004) (unpublished), cert. denied, 543 U.S. 1053 (2005).  Vessel catches fire.  Did shipyard negligently leave fan switched on, causing it to overheat, sparking conflagration?  On eve of trial in vessel owner's suit against shipyard, shipyard's causation expert, Frederick West, examines remains of fan.  At trial, West testifies, based in part on his examination, that fan had thermal cutout that would cause fan's deactivation if heat built up.  West also opines that voltage spike was true cause of fire.  Vessel owner objects to testimony on both subjects, because testimony was not disclosed in expert's pretrial report.  District court overrules objections, as well as vessel owner's post-judgment motions for judgment as matter of law or new trial.  Owner appeals.  Affirmed.  Testimony should have been excluded insofar as it was founded on undisclosed examination of fan, but error was harmless.  From West's deposition, ship owner was already on notice of West's position that fan probably incorporated thermal cutout, and owner failed to avail itself of opportunities to cure any prejudice after testimony on thermal cutout was admitted.  Expert's position on fire's true cause could have been more definitively stated in his report, but district court legitimately found that report did generally disclose it.

Bourne v. E.I. DuPont de Nemours & Co., No. 02-1469 (4th Cir. Jan. 27, 2004) (unpublished), cert. denied, 543 U.S. 917 (2004).  Pregnant woman uses fungicide Benlate in garden.  Her child is born with severe birth defects.  In suit against Benlate's manufacturer, she offers causation testimony from Drs. Charles Vyvyan Howard and Randall L. Tackett.  District court excludes testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  The district court's reasoning was sound.  See Bourne v. E.I. DuPont De Nemours & Company, Inc., 189 F. Supp. 2d 482 (S.D.W. Va. 2002).  

Higginbotham v. KCS Int'l, Inc., No. 02-1527 (4th Cir. Jan. 23, 2004) (unpublished).  Owner of yacht attempts to extend swim ladder and notices it is stuck, because bent.  Pulling harder, he careens across deck and sustains significant injury.  In suit against yacht and ladder manufacturers, he offers mechanical engineer, Kenneth Court, who opines that bend in ladder is attributable to defective design -- i.e., ladder's inability to sustain normal use by someone of yacht owner's weight without bending.  District court excludes testimony after Daubert hearing and grants summary judgment.  Exclusion affirmed.  Expert relied on speculation, performed no tests, and failed to account for alternative causes.

United States v. Gwynn, No. 03-4293 (4th Cir. Dec. 11, 2003) (unpublished), cert. denied, 541 U.S. 1018 (2004).  Defendant is convicted of possession of cocaine with intent to distribute after jury hears expert testimony from Detective Peter Sullivan on modus operandi of drug dealers.  Admissibility affirmed.  Similar testimony has been held admissible before, and district court did not abuse its discretion.  Expert boasts seventeen years' experience in Baltimore police department.

Marsh v. W.R. Grace & Co., No. 98-1943 (4th Cir. Nov. 19, 2003) (unpublished), cert. denied, 543 U.S. 810 (2004).  Plaintiffs contract cancer after using fertilizer contaminated with chemical picloram.  In suit against fertilizer manufacturer, plaintiffs offer causation testimony from Dr. Scott Levin.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Physician assumed causation rather than establishing it, failed to invoke epidemiological literature, performed only one lab test (which did not identify etiologic agent), and did not address alternative causes posited by defendants.  Moreover, his theories are unsupported by published literature and do not enjoy general acceptance.  No abuse of discretion.

United States v. Fitzgerald, No. 02-4978 (4th Cir. Nov. 17, 2003) (unpublished).  Junior ROTC instructor is charged with making sexual advances to minor JROTC students.  Prosecution offers testimony from FBI clinical forensic psychologist, Dr. Anthony J. Pinizzotto, that child molesters commonly often begin with innocuous behavior to gain child's trust and then proceed to borderline behavior to test whether child is receptive.  District court excludes testimony as unreliable and because it would not assist trier of fact.  Government perfects interlocutory appeal.  Exclusion affirmedExpert alleges his assertions have been tested but fails to specify how.  Some of expert's work has been published, but record does not establish that it was peer-reviewed.  Not does record establish any rate of error.  Similarly, although expert claims his theories are established by studies following standard social scientific methodologies, he does not identify those methodologies.  Nor does he offer any detailed defense of his claim that his theories are generally accepted.  In any event, unlike arguably analogous testimony concerning modus operandi of drug dealers, this testimony does not involve matters beyond ken of average juror, and so it would not assist trier of fact.  No abuse of discretion. 

Newman v. Motorola, Inc., No. 02-2424 (4th Cir. Oct. 22, 2003) (unpublished).  Plaintiff uses cell phone for several years and is then diagnosed with brain cancer.  In products liability suit against manufacturer and others, plaintiff offers testimony from epidemiologist, Dr. Lennart Hardell, to establish generic and specific causation.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Expert's research linked cell phones with only certain subtype of benign brain tumor, whereas plaintiff suffered from malignant tumor.  Moreover, expert failed to establish dose-response relationship.  No abuse of discretion.

United States v. Epps, No. 03-4234 (4th Cir. Sept. 26, 2003) (unpublished), cert. denied, 541 U.S. 1053 (2004).  Government agent testifies as expert for prosecution re narcotics trafficking generally and relation of firearms thereto.  Jury convicts.  Admissibility affirmed.  This is standard fare, and assisted jury by dispelling misconceptions and explaining how particular type of firearm would aid drug dealer.  Agent explained basis for his testimony.  No abuse of discretion.

Berlyn, Inc. v. Gazette Newspapers, Inc., No. 02-2152 (4th Cir. Aug. 18, 2003) (unpublished).  Antitrust plaintiffs offers James Shaffer as expert in relevant product market.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Witness is unqualified to opine on relevant product or geographic markets.  Witness has MBA and significant executive experience in relevant industry, but subscribes to no economics journals, can identify no economics journals, has published no economics-related articles, is unfamiliar with basic terms employed by economists in antitrust analysis, has never conducted any relevant market analysis, and has read only materials provided to him by counsel.

United States v. Winston, No. 02-4939 (4th Cir. June 16, 2003) (unpublished).  Criminal defendant charged with illegal possession of firearm following conviction of felony objects when ATF agent testifies re manufacture of firearms.  District court admits testimony and jury convicts.  Admissibility affirmed.  Agent's qualifications were established and testimony was not hearsay.

United States v. Brown, No. 02-4250 (4th Cir. Apr. 21, 2003) (unpublished), cert. denied, 540 U.S. 901 (2003).  Native of Ghana is charged with knowingly entering United States on forged visa.  At trial, prosecution calls: (1) expert Christopher Misciagno, who testifies that characteristics of defendant's altered visa are consistent with type of visa fraud prevalent in Ghana in 2001; and (2) INS inspector William Allen, who testifies as lay witness that defendant appeared nervous when interviewed and exhibited behaviors that Allen has been trained to recognize as those of someone who is not being completely honest.  Jury convicts.  AffirmedDefendant argues that expert Misciagno's testimony was more prejudicial than probative, because Misciagno effectively opined on ultimate issue of defendant's guilt.  But defendant did not preserve this point for appeal through adequate objection at trial.  Defendant is correct that district court should not have permitted INS inspector to offer lay opinion on defendant's veracity, because credibility is for jury to decide, but error was harmless, because rational jury could have concluded for itself, from inspector's testimony re defendant's nervousness, that defendant was dissembling.    

United States v. Barnett, No. 02-4561 (4th Cir. Apr. 11, 2003) (unpublished), cert. denied, 540 U.S. 914 (2003).  Special Agent Matthew Carbone testifies at criminal trial re use of expressions "sweet potato joints" and "cabaret" as code words in drug trade.  Admissibility affirmed.  Numerous courts have upheld similar testimony in drug trafficking cases, and agent had extensive experience in narcotics investigations.

United States v. Crisp, 324 F.3d 261 (4th Cir.), cert. denied, 540 U.S. 888 (2003).  In bank robbery prosecution, government fingerprint expert Katherine Brannan testifies to finding defendant's latent print on inculpatory note, and document analyst Thomas Currin opines that defendant authored note.  Jury convicts.  Admissibility affirmed.  Defendant says scientific validation of fingerprinting is weak, and points out that no study has shown individual human fingerprints to be unique.  But no study has shown otherwise either, and technique has long enjoyed general acceptance in forensic community.  Moreover, fingerprint evidence has been employed in court since 1911.  Standards governing technique's application do exist, and other courts have credited testimony that error rate is low.  Further research would be welcome, but meanwhile, to bar use of this bedrock forensic identifier is unwarranted.  Cross-examination can test foundations and reliability of testimony from fingerprint experts.   Defendant attacks handwriting analysis on similar grounds, which fail for similar reasons.  Dissent: General acceptance of these techniques prevails only among their practitioners, and scientific support for them is otherwise unimpressive.  Admitting testimony was abuse of discretion.

TFWS, Inc. v. Schaefer, 325 F.3d 234 (4th Cir. 2003).  Maryland liquor regulations prescribe post-and-hold pricing system, in which wholesalers must post prices with state comptroller each month and adhere to those prices until next posting.  This violates Sherman Act, but state may have defense based on its 21st Amendment interest in promoting temperance.  To show it does, state offers testimony from various experts including economist David T. Levy, who testifies re empirical investigation showing Maryland's liquor prices to be higher than prices in other states.  District court rejects motion to exclude Dr. Levy's testimony and awards summary judgment to state.  Admissibility affirmed.  Liquor company does not allege that Dr. Levy's analysis fails to comport with Daubert factors, but rather argues that his calculations do not support his conclusion.  This is not true Daubert challenge, but rather goes to weight.  However, 21st Amendment defense involved factual questions that district court could not resolve on summary judgment.   

United States v. Jackson, 327 F.3d 273 (4th Cir.), cert. denied, 540 U.S. 1019 (2003).  Man abducts, tortures, rapes, and kills woman.  Stun gun is found among defendant's possessions.  At trial, prosecution offers Dr. Richard Stratbucker, who opines that multiple stun-gun marks were found on woman's body.  Trial court admits testimony over defendant's objection, and jury convicts.  Admissibility affirmed.  Expert's opinion was supported by his qualifications and previous research on physiological effects of stun guns on human body. 

United States v. Prince-Oyibo, 320 F.3d 494 (4th Cir.), cert. denied, 540 U.S. 1090 (2003).  Nigerian charged with attempting to enter United States on forged visa offers polygraph, performed by retired FBI examiner, to prove he was unaware that visa was invalid.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Prior to Daubert, Fourth Circuit followed per se rule against admissibility of polygraph evidence.  Some post-Daubert decisions in Fourth Circuit suggested that per se ban could be relaxed without need for en banc decision repudiating those precedents, but those decisions did not actually depart from per se rule, and mere panel may not overrule it, even if Daubert arguably supports more nuanced view.  Dissent: Per se exclusionary rule is inconsistent with Daubert, and case should be remanded for Daubert inquiry.

Muovich v. Raleigh County Bd. of Educ., No. 02-1090 (4th Cir. Feb. 27, 2003) (unpublished).  Schoolteacher with respiratory problems sues school district for refusing to adjust its use of cleaners, glues, and other chemicals to accommodate her disability.  School district files motion in limine to exclude evidence re Multiple Chemical Sensitivity (MCS).  Teacher's counsel responds by conceding that MCS is inaccurate diagnosis and stating that teacher actually suffers instead from chemical irritant rhinosinusitis (CIR).  District court concludes that MCS motion is moot, and rules that school district will have opportunity to object to plaintiff's CIR evidence later, after opportunity to investigate same.  However, school district never does object to CIR evidence, which is therefore presented to jury.  Jury returns verdict for plaintiff.  Admissibility affirmed.  Court did not abuse discretion in failing to conduct Daubert hearing on CIR evidence, because school district did not request one.

Arroyo v. Ford Motor Co., No. 02-1408 (4th Cir. Feb. 27, 2003) (unpublished).  Ford Windstar rolls over, killing one occupant and injuring others.  District court admits evidence from Dr. Charles Benedict, who opines that detached tract bar caused accident.  However, district court excludes plaintiffs' evidence of tests on comparable vehicles, in part because steering inputs in tests were not shown to emulate driver's actual behavior.  Exclusion affirmed.  In view of deviation of test conditions from those at time of accident, district court cannot be said to have abused its discretion in excluding evidence.

United States v. Jones, No. 02-4672 (4th Cir. Feb. 25, 2003) (unpublished), cert. denied, 539 U.S. 949 (2003).  On trial for possession of firearm by felon, defendant objects to testimony from prosecution expert re likelihood of obtaining fingerprints from firearm.  District court admits testimony and jury convicts.  Admissibility affirmed.  Government expert possessed sufficient specialized knowledge.

United States v. Mohr, 318 F.3d 613 (4th Cir. 2003).  In trial of K-9 officer for violating arrestees' civil rights through use of excessive force, government offers testimony from retired police officer and professor of criminal justice, James Fyfe, who opines that officer's release of police dog was unnecessary and violated prevailing police standards.  Jury convicts.  Admissibility affirmed.  Testimony was helpful to trier of fact.

United States v. Smallwood, No. 02-4634 (4th Cir. Jan. 15, 2003) (unpublished), cert. denied, 538 U.S. 1048 (2003).  Defendant is convicted of possession of cocaine with intent to distribute after district court admits expert testimony from detective re general characteristics of drug trade.  Admissibility affirmed.  District court did not abuse discretion.

Scotts Co. v. United Indus., 315 F.3d 264 (4th Cir. 2002).  Plaintiff and defendants both sell crabgrass-control products.  Plaintiff thinks defendants' packaging misleads consumers about ability of defendants' product to control mature crabgrass plants, as opposed to "pre-emergent" crabgrass.  District court grants preliminary injunction against defendants' use of offending packaging after hearing testimony in which plaintiff's expert, "Dr. Kiecker," opines re consumer confusion based on focus group research.  Admissibility reversed.  Panel need not reach question whether focus group evidence is ever admissible.  In this instance, focus group was conducted in manner that permitted moderator to shape opinions of participants to fit plaintiff's theory of case.  This fatally undermined reliability and objectivity of evidence, and district court abused its discretion in affording this testimony any weight.

United States v. Howard, No. 01-2266 (4th Cir. Nov. 18, 2002) (unpublished).  Farmers receive federal crop relief without reporting 45,000 bushels of corn sold in 1992.  Government sues.  Farmers say that although sold in 1992, corn was grown prior to that year.  To rebut farmers' contention, government notes that corn was tested, when sold, by device known as "Dickey John," which measured moisture levels that would have caused spoilage if corn had been in storage for long period of time.  Farmers respond that elevated moisture levels resulted from their spraying water on corn during storage.  At bench trial, farmers call Harold Smith (Dickey John operator and purchaser of relevant corn).  Smith performs in-court experiment where: (1) Dickey John measures moisture content of corn sample at 13.8%; (2) corn is sprayed with water; and (3) Dickey John measures moisture content at 19.5% fifteen minutes later.  Impressed by this evidence, district court finds for farmers.  Affirmed.  United States objects that Smith's testimony was inadmissible under Rule 702, but district court relied principally on results of courtroom experiment, not any opinion testimony to which government objected, and experiment itself was admissible.  Dissent: Though Smith did offer expert opinion testimony, defendants never identified him as expert, or tendered any expert report, or qualified him as expert under Rule 702.  Moreover, cross-examination revealed Smith's lack of expertise and inadequate factual and methodological foundation for his testimony.  District court did in fact rely on this erroneously admitted testimony, and case should be remanded for retrial.  

United States v. Music, No. 02-4046 (4th Cir. Oct. 24, 2002) (unpublished).  Defendant pleads guilty to possession of child pornography.  As condition of supervised release, district court requires defendant to participate in treatment that may include polygraphs and penile plethysmographs.  Sentence affirmed.  Defendant argues that if polygraphs and plethysmographs are insufficiently reliable to be admitted in evidence, they may not be imposed as conditions of supervised release.  It is true that polygraphs are generally inadmissible, and also that some decisions have rejected penile plethysmograph evidence.  But such tests may nevertheless be useful for other purposes, such as treatment.  Defendant also argues, in the alternative, that it would be improper to revoke his supervised release, should he fail these tests.  But if that issue ever arises, defendant will be free to object at appropriate time.

United States v. Hopkins, 310 F.3d 145 (4th Cir. 2002), cert. denied, 537 U.S. 1238 (2003).  After high-speed chase, defendant is apprehended with semi-automatic pistol, loose ammunition, police scanner radio, pager, digital scale, currency, and 34 baggies containing cocaine base.  At trial on charges including possession of cocaine with intent to distribute, prosecution offers police officer Lawrence Phillips to testify as expert re narcotics trafficking.  Jury convicts.  Admissibility affirmed.  Officer had extensive training and experience, and explained how defendant's possession of relevant items was consistent with narcotics trafficking.

United States v. Clark, No. 02-4126 (4th Cir. Oct. 21, 2002) (unpublished).  Doctor is charged with wrongful prescription of controlled substances.  Expert physician testifies for prosecution that defendant did not issue relevant prescriptions for legitimate medical purposes.  Jury convicts.  Admissibility affirmed.  Defendant did not object to expert's testimony at trial, and so review is for plain error.  Expert was qualified general practitioner, and his testimony was based on review of defendant's patient files and included explanations for his findings.  District court did not err in admitting testimony.

United States v. Lysaith, No. 01-4911 (4th Cir. Oct. 16, 2002) (unpublished).  Defendant in drug trial objects to testimony of forensic chemist Sarah Chenowith that substance sold by defendant was crack cocaine.  District court admits testimony and jury convicts.  Admissibility affirmed.  Expert had bachelor's degree in chemistry, completed five month training course with police department, and also received training from DEA.  Defendant complains that expert had no specific course work in analysis of controlled substances.  But expert had conducted 600 such analyses for police department and testified as expert witness 22 times.  District court did not abuse discretion in qualifying her as expert.

Stolting v. Jolly Roger Amusement Park, Inc., No. 01-2141 (4th Cir. June 17, 2002) (unpublished).  Patron of amusement park fractures three vertebrae on water slide.  In suit against park, she offers expert testimony from John H. Hanst, re park's duty to warn and to instruct patrons on correct sliding position.  District court excludes testimony and awards summary judgment to park.  Exclusion affirmed.  Expert was recreation maintenance supervisor, but his qualifications were thin, his investigations were cursory, and he set forth no scientific principles on which his conclusions were based.  His opinions were sheer ipse dixit.  

Phelan v. Synthes, Inc., No. 01-2045 (4th Cir. May 28, 2002) (unpublished).  Intramedullary nail must be removed from patient's leg after nail fractures.  At trial of suit against manufacturer, patient offers biomechanical engineer ("Dr. Dyro") to testify that nail was defective, unreasonably dangerous, and inadequately tested.  District court excludes testimony and awards judgment as matter of law to manufacturer.  Exclusion affirmed.  Expert's testimony was too abstract and not sufficiently tied to facts of case.

Nettles v. Proctor & Gamble Mfg. Co., No. 01-2109 (4th Cir. Apr. 16, 2002) (unpublished).  Did use of Vicks Sinex nasal spray damage plaintiff's optic nerve, causing blindness?  Plaintiff proffers causation testimony from neuro-opthalmologist, Dr. Alfredo Sadun.  District court grants motion to exclude testimony as unreliable and grants summary judgment to defendant.  Exclusion affirmed.  District court relied on absence of peer-reviewed articles linking oxymetazoline (active ingredient in nasal spray) and anterior ischemic optic neuropathy, and on plaintiff's minimal exposure.  District court legitimately concluded that Dr. Sadun improperly "'inferred causation' from a situation-specific occurrence."

United States v. Desper, No. 01-4772 (4th Cir. Apr. 8, 2002) (unpublished).  Prosecution offers law enforcement officer's testimony re modus operandi of drug dealers.  Admissibility affirmed.  This is standard fare.

Carson v. Canada Life Assurance Co., No. 01-1418 (4th Cir. Jan. 25, 2002) (unpublished).  Insured sues when insurance company denies claim under disability policy  Two rheumatologists testify that plaintiff is disabled.  Admissibility affirmed.  Insurance company says that while rheumatologists were qualified to testify to insured's medical status, they were unqualified to testify to insured's legal status.  But doctors could properly testify that insured was "disabled" in the medical sense.  Defendant was free to emphasize their lack of expertise in the legalities on cross examination.

United States v. Bellamy, No. 00-4662 (4th Cir. Jan. 22, 2002) (unpublished).  Eyewitness to bank robbery picks defendant out of photo array.  Defendant's expert on eyewitness identification, psychologist Dr. Larry Long, seeks to testify that identification was impermissibly suggestive and unreliable because eyewitness was presented with only six photos, five of which were of persons not resembling defendant.  District court excludes expert's testimony because twelve photos were actually presented, and also because expert's testimony would not assist jury.  Exclusion affirmed.  Testimony would not have been reliable because it rested on false premise that eyewitness had reviewed only six photos.  In any event, Fourth Circuit has previously held that except in "narrow circumstances," expert testimony on eyewitness identification, "almost by definition, can be of no assistance to a jury."  Issues concerning reliability of eyewitness identifications fall within general knowledge of jurors and can be brought out by skillful cross-examination.  Defendant argues that this case is exceptional because two years passed between underlying events and in-court identification, but that argument fails because only fifteen days passed between underlying events and presentation of photo array to eyewitness.

United States v. Ware, No. 00-4733 (4th Cir. Jan. 15, 2002) (unpublished), cert. denied, 535 U.S. 1073 (2002).  Law enforcement officer testifies to meaning of drug code words used by criminal defendant in taped conversation.  Admissibility affirmed.  No abuse of discretion.

Free v. Bondo-Mar-Hyde Corp., No. 01-2240 (4th Cir. Jan. 10, 2002) (unpublished).  District court awards summary judgment to defendants after excluding causation testimony from plaintiffs' metallurgist in products liability action arising from explosion of aerosol can of paint remover.  Exclusion affirmed.  Metallurgist is qualified in metallurgy but lacks knowledge re: (a) aerosol can manufacturing; (b) process of filling aerosol cans; (c) testing of cans during manufacturing process; (d) pressurization of cans; and (e) normal pressure expected for this type of can.  Metallurgist consequently lacked expertise to opine on whether certain scratches on can were defects or were normal results of manufacturing process, or to opine on whether scratches caused explosion.

United States v. Rogers, No. 01-4455 (4th Cir. Dec. 20, 2001) (unpublished), cert. denied, 535 U.S. 2041 (2002).  Criminal defendant objects to testimony from two Secret Service agents that latent print matched exemplar supplied by defendant.  Admissibility affirmed.  Defendant contends it is untested and unproven that all fingerprints are unique, but government cited numerous studies supporting contrary view, and defendant offered no evidence that fingerprinting is unreliable.  To extent that fingerprint matching involves subjective judgment, possibility of error was mitigated by having two experts examine prints.  Defendant contends that no uniform standards govern fingerprint matching, but in fact such standards are supplied by training, peer review, and double checking.  Agents here found seven corresponding characteristics between two thumbprint samples, which is adequate to meet modern criteria.  Moreover, every circuit addressing issue, both before and after Daubert, has held fingerprint evidence admissible, and many courts have even refused to conduct evidentiary hearings on this issue.  In any event, any error would be harmless, as evidence against defendant was overwhelming.

United States v. Wright, No. 01-4270 (4th Cir. Dec. 11, 2001) (unpublished).  Detective testifies for prosecution as expert re drug trafficking patterns and practices.  Admissibility affirmed.  This type of testimony is routinely upheld, and expert possessed substantial experience.

United States v. Johnson, No. 01-4011 (4th Cir. Nov. 16, 2001) (unpublished).  Defendant in drug trial offers expert in narcotics investigations to rebut informant's understanding of tape-recorded conversations with defendant.  District court excludes testimony.  Jury convicts.  Exclusion affirmed.  Because defendant cross-examined government witnesses on these issues and testified to his own understanding of phone conversation, district court properly found that defendant's expert would not assist trier of fact.  No abuse of discretion.

Williams v. Complete Care Servs., Inc., No. 01-1092 (4th Cir. Oct. 16, 2001) (unpublished).  Trial court excludes testimony from Title VII plaintiff's human resource and labor relations consultant and nursing care expert.  Exclusion affirmed.  Trial court did not abuse discretion in finding testimony unreliable.

Hodge v. Soper, No. 00-1087 (4th Cir. Sept. 5, 2001) (unpublished).  Boy is killed when bicycle collides with tractor-trailer.  Testimony from plaintiff's accident reconstructionist is excluded at trial (except for opinion as to speed of tractor-trailer).  Exclusion affirmed.  Defendants supported their Daubert challenge with references to accident reconstruction literature and with affidavits from defendants' own accident reconstruction experts tending to show that plaintiff's expert's expertise and methods were speculative, without basis, and unreliable.  Plaintiff did not rebut defendants' material.  District court did not abuse discretion in granting defendants' motion to exclude testimony from plaintiff's expert. 

Garlinger v. Hardee's Food Sys., Inc., No. 98-2044 (4th Cir. Aug. 16, 2001) (unpublished).  Woman suffers second-degree burns and permanent scarring on leg after fast-food employee spills coffee on woman's lap while passing coffee through drive-through window.  Suing on defective product theory, plaintiff offers testimony from expert in biomedical engineering and thermodynamics that coffee served at 180° to 190° poses high risk of burns, whereas coffee served at 150° would be safer.  Exclusion affirmed.  Question in products liability claim is not whether serving coffee at 180° is risky but rather whether alternative of selling coffee at less risky lower temperature was reasonably available.  Expert had no knowledge or experience in food or beverage industry and thus could not opine on latter subject.  His testimony was therefore properly excluded on "fit" grounds.

Cooper v. Smith & Nephew, Inc., 259 F.3d 194 (4th Cir. 2001).  Plaintiff is allegedly injured by use of defective pedicle screw in spinal fusion surgery, sues manufacturer, offers causation testimony from physician expert who performed differential diagnosis.  District court excludes testimony and awards summary judgment to defendant.  Exclusion affirmed.  Reliable differential diagnoses satisfy Daubert, but this expert's differential diagnosis was unreliable.  Expert's opinion was conclusory and not supported by any scientific method.  Expert appears to have concluded that defect in pedicle screw caused disunion on sole basis that disunion occurred after pedicle screw was used, but expert himself acknowledged that disunion is well-known risk of spinal fusion whether instruments are used or not.  Indeed, he estimated plaintiff's chances of completely successful fusion at only 25%.  Moreover, expert did not satisfactorily address plaintiff's smoking as possible cause of disunion.  Ordinarily, differential diagnosis is not rendered inadmissible merely because physician cannot rule out every alternative cause.  However, differential diagnoses that fail to take serious account of alternative causes can be so lacking that they cannot afford reliable basis for causal attribution.  Here, plaintiff's treating physician thought smoking significant, with substantial support from medical literature, and expert refused to read more than two articles on causal relation between smoking and disunion because, he said, no number of articles would change his mind.  Finally, expert did not perform physical examination of plaintiff, and admitted that this was inconsistent with his own clinical practice.

Fitzgerald v. Smith & Nephew, PLC, No. 00-1145 (4th Cir. June 12, 2001) (unpublished).  Woman with long history of back problems finds that her symptoms worsen after implantation of pedicle screws, which are later removed.  In her suit against pedicle screw manufacturer, woman offers testimony from orthopedist, Dr. Norman N. Krause, on causation.  District court excludes testimony as unreliable and awards summary judgment to defendant.  Exclusion affirmed.  Physician never examined patient, never spoke with patient or her treating physicians, never reviewed her deposition testimony, and never examined x-rays of her spine.  It is true that orthopedist's testimony purported to be based on differential diagnosis, and that differential diagnosis is scientifically valid technique.  But it must be performed with intellectual rigor.  Here, patient had complained of same symptoms for over twenty years predating surgery, and physician's diagnosis was made without reference to, or consultation of, significant parts of that history.  District court did not abuse discretion in concluding that alternative causes were not sufficiently ruled out. 

McClure v. Scientific Spinal, No. 99-2552 (4th Cir. Apr. 25, 2001) (unpublished).  Personal injury plaintiffs allege bone screw manufacturer should have warned of risks.  Treating physicians all testify they knew of those risks.  Trial court grants summary judgment to manufacturer, noting absence of causation evidence.  Plaintiffs then [?] attempt to offer causation affidavits, although discovery is closed and summary judgment deadline has passed.  District court refuses to consider plaintiffs' untimely affidavits, and holds that even if they were considered, plaintiffs have not shown that experts could render relevant opinions under DaubertExclusion affirmed.  Failure to warn of device's risks cannot cause injury where treating physicians concededly knew of such risks.  Trial court did not abuse discretion in rejecting late-filed affidavits or in concluding that affidavits could not show causation.

Powell v. Wilborn, No. 00-2086 (4th Cir. Apr. 25, 2001) (unpublished).  Man on receiving end of pepper spray sues police under section 1983, alleging excessive use of force during traffic arrest.  He alleges his behavior was compliant and passive; police allege he resisted arrest.  Police offer forensic pathologist's testimony re driver's blood alcohol level and its potential effects on behavior.  Driver objects, on grounds that testimony is not relevant under Daubert and also because forensic pathologist is not an MD.  Admissibility affirmed.  No abuse of discretion.  

United States v. Hall, No. 00-4577 (4th Cir. Apr. 25, 2001) (unpublished).  Jury convicts wife of involuntary manslaughter after hearing physician's testimony on amount of force necessary for wife to inflict fatal stab wound on husband.  Admissibility affirmed.  Defendant says expert should have been excluded because not disclosed in pretrial discovery, but nondisclosure was not prejudicial because district court offered defense counsel additional time to consult with defense expert and prepare for cross-examination.  Even if this remedy were inadequate, defendant cannot show actual prejudice, because defense counsel established on cross that physician was not forensic pathologist and had not performed autopsy on defendant's husband, so that jury evidently discounted physician's testimony in finding involuntary rather than voluntary manslaughter.  Defendant also says physician's testimony was unreliable under Daubert, but testimony was properly predicated on physician's experience as surgeon, was relevant, and covered subject outside jury's everyday knowledge and experience.

United States v. Lightfoot, No. 00-4357 (4th Cir. Mar. 28, 2001) (unpublished).  FBI agent testifies to similarity between articles seized from getaway vehicle and items in video images from bank surveillance system  showing articles worn or used by robber.  Admissibility affirmed.  Defendant argues testimony did not involve judgments that laypersons were unable to make and was therefore unhelpful to jury.  But trial court properly admitted testimony of agent as expert testimony under Daubert after extensive voir dire established its scientific reliability and relevance.

Holesapple v. Barrett, No. 00-1537 (4th Cir. Mar. 2, 2001) (unpublished).  Woman sues son-in-law in admiralty after suffering two broken ankles in boating mishap.  District court awards summary judgment after excluding admiralty expert's opinion that son-in-law was negligent in piloting boat.  Exclusion affirmed.  Expert was qualified but his opinion was unsupported by scientific analysis, attempts at reconstruction, or reference to any authority for operation of small vessels.  "This affidavit presents an almost perfect example of an ipse dixit opinion."

Columbia Commc'ns Corp. v. EchoStar Satellite Corp., No. 99-1761 (4th Cir. Jan. 25, 2001) (unpublished).  EchoStar refuses to pay Columbia for use of Columbia's satellite technology, claiming that Columbia's satellite did not meet contractual specifications because transponder signal was too weak.  Columbia sues for breach of contract.  Jury finds for Columbia after hearing testimony from Columbia's expert re signal strength.  Admissibility affirmed.  Testimony on satellite signal strength plainly involved specialized knowledge and could assist jury.  Expert was qualified based on: (a) his studies in electrical engineering and computer science; (b) his twenty years of experience in satellite industry; and (c) his testimony that he had measured satellite signal strength dozens of times.  EchoStar's arguments boil down to simple disagreement with expert's conclusion, and that is not grounds for reversal.

Certain Underwriters at Lloyd's v. Sinkovich, 232 F.3d 200 (4th Cir. 2000).  Yacht owner hears loud bump while at sail.  Owner disengages autopilot and attempts to steer, but steering mechanism is locked.  Owner shifts motor to neutral and goes to inspect yacht, from topside and below.  Having determined that yacht is taking on water, owner returns to helm and again attempts to steer, whereupon yacht strikes submerged rocks.  Elapsed time from initial bump to collision with rocks is perhaps twenty minutes.  Maritime insurer retains marine surveyor to investigate accident.  Insurer subsequently brings declaratory judgment action, seeking declaration that owner violated "sue and labor" clause in policy requiring insured to take appropriate steps to mitigate damage.  Insurer does not list marine surveyor as expert or disclose his report in pretrial discovery.  District court rules that surveyor may nevertheless testify, but only as lay witness.  At trial, surveyor proceeds to answer hypothetical questions and offer opinions requiring specialized knowledge.  Admissibility reversed.  Surveyor had no personal knowledge of events, and his opinions required specialized knowledge that only experts could supply.

Bass v. Hardee's Food Sys., Inc., No. 98-2025 (4th Cir. Aug. 9, 2000) (unpublished).  Man slips and falls in icy fast food parking lot.  Forensic architect testifies for plaintiff that conditions on parking lot warranted precautions by owner.  Admissibility affirmed.  Defendant says it could not have been on notice of conditions because expert testified that only his expertise permitted him to diagnose problem.  In fact, however, expert testified that anyone looking at parking lot would have observed dangerousness of conditions.  Defendant also argues that expert's testimony did not satisfy Daubert requirements, but this argument is raised only on reply and will not be addressed.

United States v. Nwaigwe, No. 99-4443 (4th Cir. Aug. 4, 2000) (unpublished), cert. denied, 531 U.S. 1028 (2000).  Con artist sends mailings to students, enticing them to pay for bogus scholarship services.  At trial for mail fraud, man offers expert to testify that it is standard "small business practice" to use pseudonyms, multiple trade names, and mailbox addresses fictitiously depicted as "suites."  District court excludes testimony and jury convicts.  Exclusion affirmed.  "Small business practice" is not so unfamiliar to average juror that expert testimony will necessarily assist.  No abuse of discretion. 

ICap, Inc. v. Global Digital Satellite Sys., Inc., No. 99-2087 (4th Cir. July 31, 2000) (unpublished).  Action for breach of contract.  Plaintiff corporation offers polygraph to bolster its witness’s testimony that defendant agreed to contractual term in phone conversation.  Exclusion affirmed.  Plaintiff preserved right to introduce polygraph only if defendant impeached testimony of witness.  Moreover, polygraphs remain inadmissible per se for impeachment in Fourth Circuit notwithstanding Daubert.

United States v. Hadden, No. 99-4503 (4th Cir. July 18, 2000) (unpublished), cert. denied, 531 U.S. 1201 (2001).  Charged with possession of methamphetamine with intent to distribute, defendant offers testimony from expert on police practices, who opines that defendant's arrest in reverse sting operation was premature.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Testimony would not have assisted jury in determining any fact in issue.

United States v. Bridges, No. 99-4669 (4th Cir. July 10, 2000) (unpublished).  Tax preparer charged with aiding in preparation of false returns offers psychologist to testify that tax preparer has learning disability and low self-esteem and therefore cannot cope with complex tax code.  Exclusion affirmed.  District court did not abuse discretion in concluding that testimony was not relevant to any fact in issue and that any probative value was outweighed by potential to confuse jury.

United States v. Barnette, 211 F.3d 803 (4th Cir. 2000), vacated on other grounds, 126 S. Ct. 92 (2005).  In rebuttal during penalty phase of capital trial, prosecutors offer testimony from psychologist, based in part on Psychopathy Checklist Revised (PCR), that defendant is psychopath and likely to commit violent acts in future.  Defendant, who is black, objects that PCR has not been standardized as to black population or post-middle age population.  District court admits testimony and subsequently bars defendant's risk assessment expert from testifying on surrebuttal that defendant is not psychopath and will probably not commit future violent acts.  Admissibility affirmed.  Assuming that Daubert applies during penalty phase of criminal proceedings, decision to admit psychologist's PCR testimony was not clear error of judgment, but district court should have permitted defendant's surrebuttal witness to testify, because issue of psychopathy had not arisen until government's rebuttal.  Latter error was not harmless.

Daniel v. Pearce, No. 99-1405 (4th Cir. Apr. 28, 2000) (unpublished).  At medical malpractice trial, district court admits testimony on causation and standard of care from plaintiffs' expert, Dr. Robert G. Dillard.  Jury returns verdict for plaintiff and defendant appeals.  Admissibility affirmed.  Witness was well-qualified, demonstrated familiarity with Virginia standard of care, and found his opinions on negligence corroborated by two defense witnesses.

United States v. Jones, No. 99-4413 (4th Cir. Feb. 22, 2000) (unpublished).  Prosecution offers testimony from law enforcement agent on mode and operation of drug dealing.  Jury convicts.  Admissibility affirmed.  No abuse of discretion.

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