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Second Circuit (last Shepardized on 3/3/06)

Explanation of the statistics
Admissibility affirmance rate:    .783     (18/23)
Exclusion affirmance rate:    1.000     (33/33)
Overall affirmance rate:    .911     (51/56)

United States v. Nektalov, No. 05-2780 (2d Cir. Aug. 25, 2006).  Jury convicts defendant on money laundering charges after hearing testimony from prosecution experts [on modus operandi of money laundering operations?].  Admissibility affirmed.  Testimony shed light on practices of objectives and practices of money launderers and was therefore helpful to trier of fact.

Hickey v. City of New York, No. 05-1933 (2d Cir. Mar. 31, 2006) (unpublished).  Man shot by police brings suit.  On summary judgment, he offers testimony from John Ryan, expert on law enforcement practices and training, to opine that reasonable and well-trained police officers should have been able to tell that plaintiff was holding cell phone, not gun.  District court excludes expert's opinion and awards summary judgment to defendants.  Exclusion affirmed.  District court did not abuse its discretion in concluding that testimony was baseless.

United States v. Carter, No. 05-2177 (2d Cir. Mar. 27, 2006) (unpublished).  In armed robbery trial, FBI analyst James Smith testifies for prosecution that defendant's hat is same as hat shown in photograph of man attempting to withdraw money from ATM.  Jury convicts.  Admissibility affirmed.  Analyst explained process he used to digitize and compare photos.  He has testified as expert in previous trials, and defendant offers no basis for challenging analyst's qualifications.

Davidov v. Louisville Ladder Group, L.L.C., No. 05-1667 (2d Cir. Mar. 10, 2006) (unpublished).  Having fallen from ladder, man sues ladder's manufacturer, alleging defective design.  District court exclude's plaintiff's causation expert and awards summary judgment to manufacturer.  Exclusion affirmed.  For plaintiff's theory of causation to apply, various predicate facts would have to be been established -- e.g., level of force applied by plaintiff in climbing ladder.  Plaintiff proved none of those facts.  District court did not err in concluding that analytical gap between expert's conclusions and independently supported facts was simply too great.

Kournoukakis v. Dello Russo, No. 05-2927 (2d Cir. Feb. 14, 2006) (unpublished).  Medical malpractice plaintiff alleging lack of informed consent relies on expert testimony from Bruce Randolph Tizes, M.D./J.D.  District court finds expert unqualified, excludes his testimony, and awards summary judgment to defendant.  Exclusion affirmed.  Expert last practiced medicine in mid-1990's, did not appear to have valid medical license, lacked training in relevant area, and never examined patient.  No abuse of discretion.

United States v. Adeyi, No. 05-1722 (2d Cir. Feb. 7, 2006) (unpublished).  Prosecution's handwriting expert testifies in drug trial that handwriting in defendant's address book matches handwriting found on heroin packages.  Jury convicts.  Admissibility affirmed.  Because defendant did not object at trial, review is for plain error.  Second Circuit has not ruled to date on whether handwriting experts may testify to authorship of handwriting samples, and so it cannot be said that trial court's ruling was plainly erroneous.  Other circuits have approved testimony on matches.

Kass v. West Bend Co., No. 05-0338 (2d Cir. Dec. 19, 2005) (unpublished).  Girl is scalded by hot water spilled from overturned coffee maker.  In products liability suit against coffee maker's manufacturer, plaintiffs offer testimony from expert engineering witness Dr. Richard Harkness, who opines that alternative designs could have prevented injury.  District court excludes testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  Expert engaged in only cursory testing of design alternatives.  No abuse of discretion.

Barban v. Rheem Textile Sys., Inc., No. 05-1386 (2d Cir. Oct. 26, 2005) (unpublished).  Worker's hands are severely burned while he operates laundry press machine.  He sues machine's manufacturer.  On summary judgment, worker relies on expert testimony from engineer Stanley H. Fein to show machine was defective.  Trial court excludes testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  District court permissibly found that expert demonstrated bias, lacked concrete knowledge regarding many of his assumptions, and did not perform studies that could have buttressed his insufficient knowledge base.  No abuse of discretion.

United States v. Brown, No. 03-1542 (2d Cir. Oct. 18, 2005) (unpublished).  In cocaine distribution trial, defendant objects when prosecution expert testifies that defendant's handwriting matches handwriting on certain documents.  Trial court admits testimony and jury convicts.  Admissibility affirmed.  Defendant says expert should have been limited to noting similarities between handwriting on exemplar and other documents, without offering ultimate opinion on whether handwriting on documents matched defendant's.  Other circuits have rejected similar arguments. District court, to which substantial deference is owed, did not abuse its discretion.  Even if it had, any error would be harmless.

Ruggiero v. Warner-Lambert Co., 424 F.3d 249 (2d Cir. 2005).  Man dies from cirrhosis after taking Rezulin for diabetes.  His widow sues drug's manufacturer.  To show causation, widow relies on differential diagnosis from Dr. Douglas T. Dietrich.  Trial court excludes expert's opinion and awards summary judgment.  Exclusion affirmed.  District court did not abuse discretion in concluding that expert lacked basis for generic causation.  It is possible that rigorous differential diagnosis might suffice to show generic causation in some circumstances.  In general, however, technique of differential diagnosis presupposes some prior and independent evidence of substance's capacity to cause relevant harm in humans.  Expert offered no such basis for generic causation here.

Kassim v. City of Schenectady, 415 F.3d 246 (2d Cir. 2005).  City evicts man from property where he operates convenience store.  Man sues city, alleging violation of his due process rights.  To show lost profits, man offers business records translated from Arabic by Marcia Parker.  District court excludes records.  Jury awards minimal damages.  Exclusion affirmed.  Plaintiff established no foundation that Parker was competent to translate records, and Parker admitted that she neither speaks nor reads Arabic, and that her so-called translation simply consisted of what plaintiff told her to write.

Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005).  Man shot in police chase brings civil rights action, alleging that police officer used excessive force.  Officer and his colleague say man was facing them and brandishing weapon when shot, but medical evidence shows man was shot in his back.  To defend officers' credibility, defendants call forensic pathologist Dr. Stuart Dawson, who opines over plaintiff's objection that he believes officers' testimony to be sincere, and that officers likely suffered from visual illusion or "sensory misperception."  Jury finds for defendants.  Admissibility reversed.  Expert invaded province of jury by offering "expert" opinion on officers' credibility.  Nor was his expertise in issues of sensory perception established.  It was methodologically impermissible in any event for expert to develop opinions that were driven by his personal judgment that officers' testimony was sincere. 

United States v. Martinez, No. 04-2075 (2d Cir. June 24, 2005) (unpublished), cert. denied, 126 S. Ct. 1086 (2006).  Criminal defendant objects that expert evidence offered at sentencing phase does not satisfy DaubertAdmissibility affirmed.  Federal Rules of Evidence are inapplicable at sentencing phase.

DiBella v. Hopkins, 403 F.3d 102 (2d Cir.), cert. denied, 126 S. Ct. 428 (2005).  Libel defendant offers W. Michael Hoffman, expert on business ethics, to opine that plaintiff's conduct was tantamount to extortion.  Trial court excludes testimony and jury finds for plaintiff.  Exclusion affirmed.  Trial court legitimately concluded that testimony embodied legal conclusion and was more prejudicial than probative.

Playtex Prods., Inc. v. Procter & Gamble Co., No. 03-7651 (2d Cir. Mar. 28, 2005) (unpublished).  To show lost profits in suit against competitor for false advertising, Playtex offers expert testimony from "Dr. Lynde."  Trial court admits testimony and jury awards damages.  Competitor appeals.  Admissibility affirmed.  Expert did not attribute all of Playtex's lost profits to competitor's advertising, but allocated substantial fraction to competitor's market entry.  Absent sufficient data for regression analysis, expert's method of determining "residual impact" of competitor's advertising when two products were in oligopolistic competition sufficed as reliable proxy for jury to evaluate lost profits.

United States v. Barrow, 400 F.3d 109 (2d Cir. 2005).  In narcotics prosecution, detective testifies as prosecution expert on methods employed by drug dealers at various levels of distribution chain.  Jury convicts.  Admissibility affirmed.  Testimony was brief and was helpful to jury.  Defendant complains that detective's dual role as fact witness and expert risked confusing jury, but her testimony in those respective capacities was clearly demarcated.  No abuse of discretion.

United States v. Londono-Tabarez, No. 02-1558 (2d Cir. Jan. 12, 2005) (unpublished), cert. denied, 125 S. Ct. 1962 (2005).  DEA agent Todd Zimmerman testifies at narcotics trial to meaning of "drug code" and other language used in defendants' taped conversations.  Jury convicts.  Admissibility reversed in part.  It is true, as defendant points out, that district court did not explicitly qualify agent as expert until halfway through his testimony.  But that did not prejudice defendant, because district court eventually found that agent's participation in hundreds of narcotics investigations rendered him qualified.  Trial court did err in permitting agent to interpret not only drug jargon but also ordinary expressions within average juror's understanding, such as "bring it up here" and "pain in the neck."  But error was harmless.

United States v. Botero-Jaramillo, No. 02-1611 (2d Cir. Dec. 14, 2004) (unpublished).  Jury convicts drug conspiracy defendant after FBI agent testifies to significance of documents found in defendant's bedroom.  Admissibility affirmed.  Defendant raised no objection at trial.  Similar interpretive testimony by narcotics officers has been permitted in other cases, and agent's testimony was not at heart of prosecution's case.  No plain error.

Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004), cert. denied, 126 S. Ct. 355 (2005).  Seaman's executrix blames his death from squamous cell carcinoma on exposure to benzene and polycyclic aromatic hydrocarbons aboard defendants' vessels.  To show causation, plaintiff offers testimony from forensic toxicologist Dr. Jesse H. Bidanset.  District court strikes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmedDaubert applies in Jones Act proceedings notwithstanding relaxed burden of proof on causation.  District court permissibly found that expert offered insufficient support for his "oncogene" theory of causation.  Expert also failed to rule out seaman's smoking and alcohol consumption as causes.

United States v. Tin Yat Chin, 371 F.3d 31 (2d Cir. 2004).  On trial for impersonating federal officer in immigration scam, defendant offers expert testimony from linguist Julie Tay, who opines that it would be extremely difficult for defendant, who is native Cantonese speaker, to fake Mandarin accent that government's witnesses attribute to impersonator.  District court limits expert to testimony re differences between Cantonese and Mandarin.  Jury convicts.  Exclusion affirmed.  District court permissibly concluded that 25-minute interview where defendant spoke Mandarin for only 15 seconds, coupled with general assumptions about native Cantonese speakers' exposure to Mandarin in 1950's and 1960's, did not supply sufficient facts or data for expert to opine that defendant could not simulate Mandarin accent.  But because verdict is reversed on other grounds, defendant's expert should have opportunity to submit new proffer on remand, addressing trial court's Rule 702 concerns.

Doe v. Am. Med. Sys., Inc., No. 02-7674 (2d Cir. Apr. 30, 2004) (unpublished).  Plaintiff alleges that defective manufacture of penile implant caused its failure.  In support, he offers testimony from engineer Barry Feinberg, who opines that prosthesis was made with defective tubing that could not withstand normal forces.  District court excludes testimony and awards summary judgment to defendant.  Plaintiff appeals.  Exclusion affirmed.  Expert has substantial engineering credentials but no special background in penile implants, and expert's medical knowledge derives entirely from seminars and three courses taken while he pursued his engineering doctorate.  Moreover, expert did not sufficiently explain why he discarded alternative explanations for implant's failure.  "For example, Dr. Feinberg presents little explanation for excluding undue stress on the prosthesis, perhaps caused by John Doe, as a potential cause of its failure."

United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004), cert. denied, 125 S. Ct. 1878 (2005).  Arrested while taking possession of 86-pound load of marijuana, defendant stipulates to trial testimony of prosecution's forensic chemist, who says she personally tested drug exhibits and found all to contain marijuana.  Jury convicts.  Affirmed.  Defendant challenges foundation of chemist's opinion, but expert may testify to conclusions without first testifying to underlying facts or data.  Parties may not stipulate to admissibility at trial and attempt to raise Daubert objections on appeal under guise of sufficiency challenges.  In any event, expert testimony is not necessary to support conviction for possession of controlled substance.

Lippe v. Bairnco Corp., No. 03-7360 (2d Cir. Apr. 9, 2004) (unpublished).  Trustees for creditors of bankrupt asbestos company bring fraudulent conveyance action, relying on business valuation experts Thomas E. Dewey, Jr., and Jocelyn D. Evans to establish value of assets sold.  District court excludes their testimony, denies creditors' motion to substitute new valuation expert, and awards summary judgment to company.  Exclusion affirmed.  Creditors argue that company's quarrels with experts' approach went to weight, not admissibility, but district court identified no fewer than eighteen deficiencies, and testimony was riddled with implausible and unexplained assumptions.  No abuse of discretion.

United States v. Cruz, 363 F.3d 187 (2d Cir. 2004).  DEA agent testifies at drug trial to meaning of "watching somebody's back" as used by defendant.  Jury convicts.  Admissibility reversed.  Courts must be especially vigilant in their gatekeeping where prosecutors call law enforcement officers to testify both as fact witnesses and as experts in same trial.  Prosecution did not show that defendant used phrase as drug jargon.  DEA agent therefore strayed from his area of legitimate expertise.  Moreover, prosecution's intention to offer expert testimony from DEA agent was not disclosed in pretrial discovery.

Bank of China v. NBM LLC, 359 F.3d 171 (2d Cir. 2004), cert. dism'd, 126 S. Ct. 675 (2005).  In civil RICO trial, plaintiffs offers testimony from employee re various aspects of banking practice and custom.  Over defendants' objection, district court admits testimony as lay opinion, citing witness's lengthy industry experience and testimony's grounding in "common sense."  Jury awards damages.  Admissibility reversed.  Insofar as it was based on witness's industry experience rather than facts within his personal knowledge, witness's testimony was properly characterized as expert opinion, not lay opinion.  Witness's testimony was therefore admitted in error, because he was never designated or qualified as expert, nor was reliability of his testimony established.  Question whether error was harmless need not be reached, because remand is required in any event due to faulty jury instruction.

Zaremba v. Gen. Motors Corp., 360 F.3d 355 (2d Cir. 2004).  Injured in automobile crash, plaintiffs sue auto's manufacturer on defective design theory.  In support, plaintiffs offer testimony from engineer and accident reconstructionist Donald Phillips, and physician and biomechanical expert Dr. Joseph Burton.  District court excludes testimony from both experts and awards summary judgment to manufacturer.  Exclusions affirmed.  Engineer did not test vehicle, offered no measurements or calculations to support his theory of how accident occurred, conducted no tests and offered no calculations in support of his proposed alternative design, did not subject his theories to peer review and publication, and offered no evidence that others in automotive design community accepted untested propositions underlying his opinions.  Physician's testimony was flawed insofar as it relied on engineer's, and was also speculative in other respects.

United States v. Bruce, No. 02-1730 (2d Cir. Sept. 26, 2003) (unpublished).  Narcotics defendant objects when prosecution offers testimony from New York City police detective Richard Addona re narcotics couriers.  District court admits testimony and jury convicts.  Admissibility affirmed.  Detective testified that legitimate travelers usually plan travel in advance, rather than purchasing tickets on day of travel with cash.  Such testimony was helpful to jury and not unduly prejudicial. 

Plourde v. Gladstone, No. 02-9136 (2d Cir. June 27, 2003) (unpublished).  Plaintiff develops medical symptoms after defendant's neighboring farm is sprayed with pesticide.  To show causation, plaintiff offers expert testimony from toxicologist Dr. Robert K. Simon.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Expert is not medical doctor, and district court therefore properly found him unqualified to offer opinions based on differential diagnosis, or to rely on other doctors' diagnoses.

United States v. Boykoff, No. 02-1435 (2d Cir. May 21, 2003) (unpublished).  On trial for tax fraud, defendant offers psychiatrist to testify that defendant is bipolar and suffers from ADHD, in support of defendant's contention that errors in tax returns were due to carelessness and inattention, not intent to defraud.  District court excludes testimony for want of adequate link between diagnoses and issue of specific intent, and also as more prejudicial than probative.  Jury convicts.  Affirmed.  Appellate panel need not reach issue of testimony's admissibility, because any error was harmless.  Various witnesses testified that defendant committed numerous intentionally fraudulent acts over extended period of time.  Expert conceded he never reviewed tax returns and could not link any entries on returns to defendant's diagnoses.  In any event, no reasonable jury could have believed that defendant suffered from mental conditions leading him to commit careless errors that invariably worked to his benefit.

Bazile v. City of New York, No. 02-7868 (2d Cir. May 1, 2003) (unpublished).  Off-duty policeman discharges weapon eleven times when pit bull approaches him.  Upon being disciplined, he sues, alleging racial discrimination in investigative and disciplinary process.  District court excludes testimony from Michael Levine, policeman's expert on disciplinary processes in law enforcement, and dismisses claims.  Exclusion affirmed.  District court reasonably concluded that witness's experience in personnel investigations at DEA did not qualify him as expert on New York Police Department's procedures, and also that witness lacked any expertise permitting him to opine on discriminatory animus of police department's conduct.

United States v. Yousef, 327 F.3d 56 (2d Cir.), cert. denied, 540 U.S. 933 (2003).  In trial re 1993 World Trade Center bombing, prosecution and defense both seek to offer expert testimony on chemical analysis of materials found at bombing site and at defendants' apartment and storage shed.  District court directs parties to produce experts at pretrial Daubert hearing, on pain of having their testimony precluded at trial.  Defendants initially object, urging trial judge to postpone Daubert hearing until trial itself, but defendants produce experts after trial judge refuses to defer hearing.  Following hearing, defendants' experts are permitted to testify at trial.  Jury convicts.  Affirmed.   Defendants say district court's pretrial procedures prejudiced them, but district courts enjoy wide procedural latitude in resolving Daubert issues, and no defense witnesses were precluded from testifying.

Buckley v. Gen. Motors Corp., No. 02-7095 (2d Cir. Jan. 6, 2003) (unpublished).  Pro se plaintiff brings product liability suit against General Motors, alleging that defect in left rear axle caused her 1996 Chevy Blazer to roll over.  GM moves to exclude plaintiffs' expert, mechanic J.R. Hulse.  District court rules that mechanic's testimony lacks reliable foundation and then grants summary judgment to GM sua sponte for want of expert proof of causation.  Exclusion affirmed (but judgment reversed).  Pro se litigants are entitled to notice of consequences of summary judgment and of their right to oppose.  No such notice was afforded here.  On remand, lack of expert testimony will not necessarily be fatal to plaintiffs' claims, because New York law does not require expert testimony to show causation in product liability claims.

United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2002), cert. denied, 541 U.S. 1092 (2004).  Prosecution calls Special Agent Richard Biggs to testify concerning meaning of code words in recorded phone conversations about narcotics.  Defendant objects that many portions of agent's testimony appear to represent inferences from agent's familiarity with specifics of this case, as opposed to general expertise in narcotics code words.  Admissibility reversed.  Problems arise when law enforcement agents assume dual roles of fact witness and expert -- e.g., potential jury confusion.  "While we decline to prohibit categorically the use of case agents as experts," district courts should be especially vigilant to discharge their gatekeeping function in such contexts, and trial court erred here in admitting testimony straying beyond agent's expertise.  However, error was harmless, because other evidence overwhelmingly supported conviction.

Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48 (2d Cir. 2002).  Fashion Boutique enjoys thriving commerce as exclusive metropolitan outlet for Fendi's international line, until Fendi Stores opens competing store, whereupon Fashion Boutique's business withers and dies.  Fashion Boutique blames bad-mouthing by its competitor, and sues under Lanham Act and common law theories of slander and product disparagement.  Court awards summary judgment to Fendi Stores on Lanham Act claims.  At trial of remaining state law claims, district court excludes testimony from Fashion Boutique's damages expert, Dr. Dov Frischberg, that value of Fashion Boutique's business approximated $15 million.  Jury awards Fashion Boutique $35,000 in compensatory damages for lost sales from five named customers, $5 for damage to its reputation, and $75,000 in punitive damages.  Exclusion affirmed.  Expert was qualified to opine only on value of Fashion Boutique's business, not on cause of business's demise, and Fashion Boutique did not offer sufficient evidence from any other source that Fendi Stores caused boutique's failure.  To permit expert to testify that Fendi Stores caused $15 million in damages, therefore, would have assumed facts not in evidence, and would have invited jury to award damages on speculative basis.  Moreover, to be relevant to product disparagement claim, testimony would have to address New York law's requirement that damages be itemized for named customers, as expert's $15 million estimate did not.

United States v. Glenn, 312 F.3d 58 (2d Cir. 2002).  Eyewitness in murder trial testifies for prosecution that shortly after shooting, from distance of five or six houses, he observed bulge in clothing at defendant's waist, approximately two inches wide and four inches long.  Eyewitness goes on to offer lay opinion, based on his general observations of drug dealers carrying weapons, that bulge was caused by handgun and could not have been caused by pager or some different item.  Jury convicts.   Admissibility reversed.  Government's case was entirely circumstantial, and even crediting disputed testimony from eyewitness, no reasonable juror could have found that prosecution met its burden.  But eyewitness's opinion testimony was inadmissible.  Opinions based on claims to specialized knowledge must be offered by duly qualified experts, and this eyewitness neither possessed relevant qualifications nor based his conclusions on reliable or scientific methods, relying instead on his own intuitions formed from sporadic everyday observations performed over unspecified time period.

United States v. Richards, No. 01-1601 (2d Cir. Oct. 15, 2002) (unpublished).  Prosecution expert translates taped conversations in criminal trial.  Admissibility affirmed.  Expert grew up speaking Jamaican patois and had worked as translator of Jamaican patois for seven years at time of trial.

United States v. Carneglia, No. 01-1585 (2d Cir. Sept. 19, 2002) (unpublished).  FBI agent Gregory Hagarty testifies at trial of organized crime figures re interpretation of recorded conversations involving defendants.  Admissibility affirmed.  Even if agent's interpretations sometimes extended beyond his expertise, his testimony comported with Second Circuit precedent, and any error was harmless.

Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002).  Worker alleges he developed asymmetric polyneuropathy and other neurological symptoms after exposure to xylene in paint at job site supervised by Amtrak.  Jury at first trial returns multimillion dollar verdict against Amtrak, but district judge concludes that verdict is against weight of evidence and orders new trial, relying in large part on Amtrak evidence suggesting that worker's symptoms are fabricated (e.g., surveillance video of worker walking without apparent difficulty, medical records from subsequent car accident in which neurological symptoms made no appearance, Amtrak expert's opinion that worker suffers at most from pinched nerve).  Case is reassigned to new trial judge.  Amtrak then moves under Daubert to exclude testimony from worker's three experts: (1) Dr. Jacqueline Moline, worker's treating physician, who opines that worker suffers from neurological conditions caused by xylene exposure; (2) toxicologist Dr. Jonathan S. Rutchik, who opines on generic causation; and (3) industrial hygienist Jack Caravanos, who opines on general causation and exposure levels.  District court strikes their testimony and awards summary judgment to Amtrak.  Exclusion affirmed.  Worker argues that district court was too aggressive in its gatekeeping and "traded a judicial robe for a white lab coat" by improperly weighing testimony's credibility rather than merely evaluating its reliability.  But "[t]he district court's rigorous analysis of the methods that plaintiffs' experts used in reaching their opinions was appropriate given the facts of this case."  District court did not err in conducting extensive analysis of underlying literature on which treating physician and toxicologist relied, nor in concluding that literature did not support finding of generic causation at relevant exposure levels.  Trial court likewise acted within its discretion in rejecting industrial hygienist's estimates of xylene concentration, where expert failed to consider variables he acknowledged were relevant.

United States v. Campuzano, No. 01-1261 (2d Cir. Aug. 16, 2002) (unpublished).  DEA agent testifies for prosecution re use of code words in drug trade.  Admissibility affirmed.  Testimony was helpful to average juror, and its probative value was not outweighed by any prejudicial effect.

United States v. Hurtado, No. 00-1644 (2d Cir. June 10, 2002) (unpublished).  At criminal trial, Dr. Stephan Rose testifies that customs dog's reaction to baggage indicated residual odor of either firearms or narcotics.  Admissibility affirmed.  Defendant did not object to testimony at trial, and expert testified at length to facts and methodology on which his testimony was based.

Franklin v. Consol. Edison Co. of N.Y., No. 01-7559 (2d Cir. Apr. 9, 2002) (unpublished).  Stroke victim sues employer for retaliatory discharge under Americans with Disabilities Act.  District court awards judgment as matter of law to employer after excluding testimony from employee's two experts: physician, Dr. Paul Rosch, who would opine that work-related stress caused stroke; and treating psychologist, Dr. Bessie Duncan, who would opine re employee's emotional distress.  Exclusion affirmed.  As to Dr. Rosch, district court reasonably found that: (1) he is not expert on strokes; (2) no peer-reviewed articles establish link he posits between stress and strokes; (3) he did not interview employee or learn about her medical history; (4) his theory is not generally accepted in medical community; (5) his opinion was developed solely for litigation; and (6) even if stress caused stroke, there is no scientific basis for conclusion that stress arising from discriminatory treatment caused stroke, because Dr. Rosch could not segregate effects of multiple sources of stress in employee's life.  As to Dr. Duncan, district court legitimately found that her diagnosis was inextricably bound up with employee's stroke, and that Dr. Duncan had no reliable information on which to base a pre-stroke evaluation.

Altamuro v. County of Nassau, No. 01-7275 (2d Cir. Mar. 29, 2002) (unpublished).  Involuntarily committed mental patient brings section 1983 action, alleging wrongful confinement and forcible medication, and offers testimony from psychoanalyst, Dr. Norman Pearl, who opines that plaintiff was not mentally ill, though Dr. Pearl admits that diagnosis of mental illness would fall within range of reasonableness.  At close of evidence, district court grants defendants' Daubert motion and enters judgment for defendants as matter of law.  Affirmed.  Plaintiff does not challenge Daubert ruling on appeal, but argues that timing of expert's disqualification prevented plaintiff from curing evidentiary deficiency.  However, plaintiff had ample notice that Dr. Pearl's testimony was challenged, and did not seek to reopen case once his testimony was excluded.

United States v. Andino, No. 00-1562 (2d Cir. Feb. 25, 2002) (unpublished).  Counsel for criminal defendants do not raise Daubert challenge at trial level to government's expert testimony re weight of marijuana.  Affirmed.  No ineffective assistance, because counsel could reasonably have chosen to argue defendants' actual innocence rather than engage government in dispute over quantities of drugs. 

Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir.), cert. denied, 537 U.S. 1019 (2002).  Six-day-old Ford Aerostar accelerates sua sponte, causing accident and seriously injuring driver.  At trial of design defect and negligence claims, plaintiff's electrical engineer, Samuel J. Sero, hypothesizes that unintended electrical connections, resulting from simultaneous occurrence of two "random transient events" leaving no physical trace, activated Aerostar's cruise control.  Sero also opines that inexpensive on/off switch could have prevented problem.  Ford's theory is that by mistake, driver hit accelerator pedal instead of brakes.  Jury returns no-defect verdict on products liability claim, but finds for plaintiff on negligent design claim.  Ford says verdict is inconsistent and moves for judgment as matter of law.  District court grants motion, concluding that evidence overwhelmingly supports Ford.  Reversed.  Ford argues that plaintiff's evidence was insufficient to sustain negligence verdict, because verdict was not supported by physical evidence, and also because Sero's scenario was called "virtually impossible" in 1989 report by National Highway and Traffic Safety Administration (NHTSA).  But district court itself admitted Sero's testimony after holding Daubert hearing, and Ford does not challenge that decision on appeal.  In its Daubert ruling, district court specifically found that Sero's theory had been tested and replicated, and also noted that Sero sought only to testify that design of Aerostar made cruise control malfunction physically possible -- not that plaintiff's accident was probably caused as contemplated in Sero's scenario.  Sero's testimony, in combination with circumstantial evidence including testimony from numerous Aerostar owners re incidents of sudden unintended acceleration, was sufficient to sustain negligent design verdict under New York law, whether plaintiff could identify operative defect or not, and regardless of absence of physical evidence supporting Sero's scenario.  Meanwhile, to preserve its inconsistent verdict point, Ford should have made timely objection to jury instructions before jury retired, but did not.  Verdict reinstated.

United States v. Robinson, No 00-1681 (2d Cir. Jan. 8, 2002) (unpublished).  At criminal fraud trial, prosecution calls expert to explain complex financial terms.  Over defendants' objections, expert offers opinions on what financial instruments "really meant," stating that certain items are "bogus" and have "no legitimate meaning," and testifying that certain words used by defendants "are often used by wrongdoers who are trying to scam money."  Jury convicts.  Affirmed.  Witness statements to which defendants object were not necessary to respond to prosecution's questions and arguably crossed line between legitimate expert opinion and impropriety.  But any error was harmless, because court instructed jury to form its own conclusions on criminal intent.

United States v. Mulder, 273 F.3d 91 (2d Cir. 2001), cert. denied, 535 U.S. 949 (2002).  Defendants in Hobbs Act prosecution say they were simply members of labor coalition using time-honored labor tactics to increase minority hires by New York City contractors, but government says defendants extorted money and jobs without actually increasing minority representation.  Prosecution calls Daniel O'Rourke, supervisor of police construction task force, who testifies that minority representation at work sites did not correlate with coalition activity at sites, and also that coalition members disrupted work, took kickbacks, made threats, and engaged in violence to get their way.  Prosecution also calls James McNamara, who has worked in governmental positions focused on ensuring minority opportunity at construction sites, to testify that coalition's activities did not increase number of minority employees but merely resulted in substitution of coalition's members for other minority workers, who were fired to make way.  Jury convicts.  Admissibility affirmed.  Defendants object that prosecution experts were merely used as vehicles for hearsay testimony that could and should have been offered by fact witnesses, and also complain that district court conducted no reliability inquiry before admitting their testimony.  But experts provided helpful explanations of labor coalition practices falling outside general knowledge of average juror, and permissibly based opinions on sources customarily consulted by "expert police officers," such as statements by detectives and informants.  Nor must district court make explicit findings on reliability.  Appellate court must "assume that the district court consistently and continually performed a trustworthiness analysis sub silentio of all evidence introduced at trial."

Wal-Mart Stores, Inc. v. Visa U.S.A., Inc. (In re Visa Check/MasterMoney Antitrust Litig.), 280 F.3d 124 (2d Cir. 2001), cert. denied, 536 U.S. 917 (2002).  In merchants' antitrust action against credit and debit card companies, plaintiffs support motion for class certification with report from economist, who opines that four issues can be resolved on class-wide basis: (1) whether credit and debit cards have distinct characteristics; (2) whether defendants have market power in credit cards; (3) whether defendants' tying arrangements cause injury-in-fact to all class members; and (4) proper formula for computing class members' damages.  Defendants move to strike economist's report.  District court denies motion to strike and grants class certification in partial reliance on expert's report.  Defendants seek interlocutory appeal under Fed. R. Civ. P. 23(f)Appeal granted, class certification affirmed.  As to appellate jurisdiction: Discretionary exercise of interlocutory jurisdiction is appropriate to resolve proper standard for evaluating expert opinions at class certification stage, although appellate jurisdiction exists only as to class certification order, not over district court's order denying motion to strike; motion to strike expert testimony under Daubert involves distinct inquiry from evaluating expert evidence in support of motion for class certification, although arguments in both contexts may be similar, and district courts should not postpone class certification decisions for sake of awaiting Daubert rulings, which typically occur later in litigation.  As to certification decision: Standard of review on class certification is deferential (abuse of discretion).  Defendants complain that plaintiffs' expert did not offer credible basis for certification.  But courts do not examine merits of claims in deciding class certification motions.  Duty of district court was rather to ensure that basis of expert's opinion was not so fatally flawed as to render his opinion inadmissible as matter of law.  Any claim that district court failed to discharge that duty is meritless.  Judge Jacob dissents.

BIC Corp. v. Far Eastern Source Corp., No. 01-7074 (2d Cir. Oct. 12, 2001) (unpublished).  In bench trial over trademark dispute, district court permits BIC company employee to testify re consumer survey commissioned by company in regular course of business.  District court also permits Jacob Jacoby to testify for BIC as expert re efficacy of disclaimers on packaging.  Admissibility affirmed.  Far Eastern complains that employee witness who testified re survey was never qualified as expert, but district court did not abuse its discretion in permitting witness to offer lay testimony re survey, which was not commissioned for litigation.  Any errors in methodology (such as possibility of respondent confusion) would go to survey's weight, not admissibility.  And given Jacoby's credentials, there is no basis for Far Eastern's contention that he was unqualified.  

Reliance Ins. Co. v. Keystone Shipping Co., No. 00-7950 (2d Cir. Apr. 5, 2001) (unpublished).  Was corrosion of ship's cargo holds caused primarily by ordinary wear and tear (not covered under maritime insurance policy), or was it microbiologically induced (covered)?  In bench trial, district court hears but later excludes testimony of two shipping company experts who blame microbes.  Judgment for insurer affirmed.  Sitting as trier of fact, district judge could and did reasonably discount testimony of shipping company's experts without committing clear error, and it would therefore be pointless to remand for purposes of revisiting their testimony's "exclusion" under Daubert.

Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2d Cir. 2001).  Rust-preventing primer ignites while man is applying it to his Ferrari, and man is severely burned.  In his suit against primer's manufacturer, victim responds to motion for summary judgment with affidavit from Dr. Robert J. Cunitz, certified human factors psychologist, who opines that warning label on primer was noncompliant with Federal Hazardous Substances Act (FHSA).  District court excludes testimony in affidavit because expert failed to submit evidence of his qualifications to opine on compliance with FHSA.  Exclusion affirmed.  District court properly excluded testimony, and victim does not seriously challenge that decision on appeal. 

Campbell v. Metropolitan Prop. & Cas. Ins. Co., 239 F.3d 179 (2d Cir. 2001).  Lead-poisoned children win verdict in bench trial against landlord's insurer, based in part on testimony from Dr. John F. Rosen that children suffered injury within policy period.  Admissibility affirmed.  Defendant concedes that Dr. Rosen is "preeminent" expert in his field, with "vast credentials," but argues that Dr. Rosen's conclusions were not adequately based on prevailing methods of assessing lead poisoning.  However, Dr. Rosen heads large clinical center for diagnosis and treatment of childhood lead poisoning and has directly or indirectly supervised treatment of over 15,000 children with lead poisoning during his career.  Thus Dr. Rosen's theories have been tested in daily clinical practice.  Defendant insurer offered no evidence of any known or potential rate of error in those theories.  Moreover, Dr. Rosen has authored 48 published and peer-reviewed articles directly related to his opinions, including co-authorship of National Research Council's document on measuring lead in infants and children, which was reviewed by ten reviewers three times.  Finally, Dr. Rosen's theories are widely accepted.  He had significant responsibilities in developing EPA and CDC criteria and reports on lead poisoning in children.  Any gaps or inconsistencies in Dr. Rosen's reasoning go to weight, not admissibility.

Brooks v. Outboard Marine Corp., 234 F.3d 89 (2d Cir. 2000).  Boy's hand is amputated after being caught in motorboat propeller blade.  In design defect suit against motor's manufacturer, boy offers testimony from engineer [?] that motor should have incorporated kill switch, which would have prevented injury.  Exclusion affirmed.  Plaintiff argues that district court erred in entertaining Daubert objection not itself supported by expert testimony, but Daubert and Kumho Tire do not require that objections be thus supported.  Meanwhile, plaintiff's expert never saw relevant motorboat, whether in photographs or in person, never spoke with boys involved in accident, was unaware of dimensions of boat and placement of seats in relation to motor, did not know details of accident, and never attempted to reconstruct accident or test his theory.  Failure to test theory of causation can justify exclusion of testimony.

Gussack Realty Co. v. Xerox Corp., 224 F.3d 85 (2d Cir. 2000).  Realty company sues Xerox alleging Xerox disposed of solvents improperly, contaminating realty company's upstream land.  Xerox drills test wells on realty company property and determines based on tests that water meets New York safe drinking water standards.  Realty company offers testimony from three expert hydrologists [?] who have consulted data collected by Xerox and opine that Xerox did contaminate realty company's land.  Xerox protests vigorously, because land is upstream, but realty company experts explain that subsurface geological features could cause groundwater to flow in different directions from surface water.  Admissibility affirmed.  Experts need not conduct own tests but may rely on data collected by others.  Xerox complains that experts disregarded alternative causes of contamination -- i.e., realty company's use of solvents on its own property.  But plaintiff's experts were not attempting to account for otherwise inexplicable presence of solvents on realty company's property.  Rather, they provided theories showing how it was possible for water to flow from Xerox's property to realty company's.

United States v. Feliciano, 223 F.3d 102 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001).  Probationary member of Los Solidos gang complies with leader's order to shoot and kill another gang member.  At shooter's RICO trial, prosecutors offer expert testimony from FBI agent Jeff Rovelli, who opines over defendant's objection that Los Solidos gang was involved in narcotics trafficking.  Jury convicts.  Admissibility affirmed.  Defendant complains that agent's testimony went to ultimate issue of whether defendant's conduct furthered "racketeering activity," but agent did not use those words, and in any event, not all testimony on ultimate issues is prohibited.  Defendant also urges that challenged testimony went beyond agent's expertise and relied on hearsay and other sources not in evidence.  But experts may sometimes rely on hearsay.  It is true that agent also testified as fact witness, and that lines between his factual and expert testimony were not always clear.  But defense counsel were free to explore such issues on cross-examination, and did so.  No abuse of discretion.

United States v. Young, No. 99-1718 (2d Cir. May 25, 2000) (unpublished).  Retired police officer contracts to purchase 18,000 dozen t-shirts, pays $2100 upfront for shipping.  Frustrated when t-shirts are not delivered, officer uses law enforcement contacts to collect information re vendor and enlists assistance of vendor's girlfriend in scheme to teach vendor lesson.  When vendor and girlfriend visit New York, officer "arrests" vendor, takes vendor to vacant warehouse, duct tapes vendor to forklift, and abandons him there.  On trial for kidnapping, officer offers psychiatrist to testify that officer's conduct was not willful, in part because officer was diabetic and suffering from post-drinking binge disorientation when he committed the acts in question.  Officer also offers psychologist to testify that officer possesses "police personality" and was therefore likely motivated not by desire to avenge commercial wrong but rather by wish to protect young son of vendor's girlfriend from abuse by vendor.  Exclusion affirmed.  Testimony was properly excluded because: (a) experts' proposed testimony diverged from defendant's discovery disclosures; (b) defendant himself testified to disorientation, and it was not error to exclude testimony that merely attached clinical labels to his condition; (c) expert testimony on "willfulness" of defendant's conduct would be impermissible expert testimony on mens rea and therefore subject to exclusion under Fed. R. Evid. 704(b); (d) any potential probative value was outweighed by potential confusion of jury.  Defendant complains that court should have analyzed his expert testimony under Daubert, but district court did exactly that in concluding that experts' testimony failed to satisfy Daubert's relevance requirement.

Bressmer v. Fed. Express Corp. Long Term Disability Plan, No. 99-9225 (2d Cir. May 16, 2000) (unpublished).  Disability plan terminates benefits after concluding, based in part on "Functional Capacity Evaluation" (FCE), that beneficiary does not satisfy plan's criteria for "total disability."  Beneficiary sues plan under ERISA.  District court grants summary judgment to plan.  Affirmed.  Beneficiary argues that district court should not have relied upon FCE because FCE does not satisfy requirements for admissibility under Fed. R. Evid. 702.  But district court was merely reviewing plan's decision, and plan is not bound by federal rules of evidence.  Nothing in record suggests that FCE is not accepted and reliable tool in determining disability, and plan's reliance on FCE cannot be called arbitrary and capricious.

Kronisch v. Gottlieb, No. 99-6152 (2d Cir. May 2, 2000) (unpublished), cert. denied, 531 U.S. 1078 (2001).  Plaintiff says CIA, as part of effort to test effects of mind-altering drugs, placed LSD in plaintiff's drink in Paris cafe in 1952, causing delusions that prevented plaintiff from resuming artistic career.  District court admits testimony from defense LSD expert, Dr. Donald Klein.  Jury finds for defendant.  Admissibility affirmed.  Plaintiff says Dr. Klein has limited experience with patients who used LSD to exclusion of other drugs, but Dr. Klein does have extensive knowledge of clinical and academic research concerning LSD in general.

Washburn v. Merck & Co., No. 99-9121 (2d Cir. May 1, 2000) (unpublished).  Woman develops arthropathy, chronic pain syndrome, and fibromyalgia after receiving rubella vaccination.  In suit against vaccine manufacturer, woman offers three physicians who opine that vaccination caused symptoms.  District court excludes testimony from all three and awards summary judgment.  Exclusion affirmed.  Physicians relied largely on mere temporal relationship between vaccination and onset of symptoms, relied on no large-scale epidemiological studies involving this vaccine and plaintiff's conditions, and/or developed their views solely for litigation.

United States v. Rivera, No. 99-1678 (2d Cir. Mar. 28, 2000) (unpublished).  Law enforcement officer testifies for prosecution that quantity of drugs possessed by defendant was consistent with intent to distribute, as opposed to personal use.  Jury convicts.  Admissibility affirmed.  Law enforcement agents may rely on field experience rather than scientific training in testifying to such matters, and witness did not impermissibly opine on defendant's intent.

United States v. Mazzeo, No. 99-1223 (2d Cir. Jan. 21, 2000) (unpublished).  Defendant is convicted of misappropriation of postal funds after district court excludes defendant's psychiatric witness on false confessions.  Exclusion affirmed.  District court did not abuse discretion in excluding testimony.  Even if study of false confessions in general has scientific validity, witness's methodology as applied to defendant was unreliable.  Expert merely interviewed defendant by phone for twenty minutes and reviewed text of confession and other background documents.  There exist tests designed to measure likelihood of false confessions, but expert did not administer them.  Pressed by district court to explain exactly what basis he had for opining that defendant's confession was false, expert fell back on generalities and his wide experience.

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