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Seventh Circuit (last Shepardized on 3/28/06)

Explanation of the statistics
Admissibility affirmance rate:    .811     (30/37)
Exclusion affirmance rate:    .727     (32/44)
Overall affirmance rate:    .765     (62/81)

United States v. Collins, No. 05-4279 (7th Cir. July 24, 2006) (unpublished).  Defendant is convicted of possession of firearms by felon, after district court permits BATF Special Agent James Cronin to opine that defendant's weapons traveled in interstate commerce.  Defendant's counsel seeks leave to withdraw on appeal, contending that no nonfrivolous appellate issues are presented.  Withdrawal approved; appeal dismissed.  Cronin is qualified by years of experience and training, and he relied on common and approved methods, including visual inspection of guns, research, and consultation with other experts.  It would be frivolous to appeal lower court's decision admitting his testimony.

Summers v. State Street Bank & Trust Co., 453 F.3d 404 (7th Cir. 2006) (see the briefs).  In investor class action against United Airlines' ESOP, plaintiffs offer expert testimony from experienced trust officer, Lucian Morrison, who opines that ESOP should have foreseen that UAL's stock would plummet and should have sold the stock before it did.  District court excludes testimony because Morrison holds no economics degree, and awards summary judgment to defendants.  Exclusion reversed.  Witness's experience as trust officer was sufficient to render him qualified.  But error was harmless, because trusts have no general duty to outsmart market.

Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006).  At trial of sex discrimination claim, plaintiff offers testimony from: (1) William Anthony, human resources expert, on whether defendant complied with its own human resources policies in its dealings with plaintiff; and (2) David LaPorte, expert on U.S. Department of Transportation regulations, on whether plaintiff's failure to require drug-testing for fellow employee violated those regulations.  Jury finds for plaintiff.  Admissibility affirmed in part and reversed in part.  (1) District court's one-sentence ruling on Anthony, stating that he was sufficiently qualified to assist jury in understanding defendant's policies, was too cursory and offered no indication that district court assessed Anthony's methodology.  This abdicated district court's gatekeeping function and abused its discretion.  In fact, Anthony's testimony was merely based on general observations about usual business practice and was not sufficiently tied to specific portions of defendant's policy manual.  However, error was harmless, given that objectionable testimony was corroborated by other witnesses, invited on cross-examination, and/or effectively discredited on cross.  (2) Defendant complains that LaPorte testified to conclusions of law.  However, defendant did not present same objection in district court and thus failed to preserve error.  Moreover, any error was harmless.      

United States v. Garcia, 439 F.3d 363 (7th Cir. 2006).  In narcotics trial, prosecution offers expert opinion from Sergeant Robert Coleman, police officer, who testifies that drug traffickers do not ordinarily engage in transactions when innocent adults are present.  Jury convicts.  Admissibility affirmed.  Defendant did not raise any Rule 702 objection at trial.  Defendant also argues that permitting this testimony violated his presumption-of-innocence rights, but in combination with other evidence, sergeant's testimony rationally supported inference of guilt, without imposing any mandatory requirement that jury accept that inference.

Korte v. ExxonMobil Coal, USA, Inc., No. 05-1168 (7th Cir. Jan. 6, 2006) (unpublished) (see the briefs).  Coal dust blows offsite from refuse disposal areas at coal mine.  Neighboring farmers develop pulmonary and other symptoms.  To withstand summary judgment in their personal injury suit against mine's owner, farmers offer causation testimony from Dr. Peter Orris, specialist in occupational medicine.  District court excludes testimony as unreliable and awards summary judgment to mine owner.  Exclusion affirmed.  Dr. Orris did not rely on any tests or measurements to gauge farmers' exposure, and did not rule out other potential causes.

Pasha v. Gonzales, 433 F.3d 530 (7th Cir. 2005).  Albanian woman seeking asylum on grounds of political persecution presents immigration judge with nine Albanian documents, including subpoenas, police report, and summons.  Immigration service offers testimony from forensic document examiner Gideon Epstein, who opines that four of those documents are probably forged, because they do not contain diacritical marks and because Albania cannot afford color laser printers.  Immigration judge denies asylum and Board of Immigration Appeals affirms.  Admissibility reversed.  Although Daubert does not literally govern in immigration proceedings, "spirit of Daubert" applies.  Expert admitted lack of knowledge on printing technology available in Albania.  Considering number of asylum applicants from Albania, and considering that between 400,000 and one million Albanians reside in United States, Department of Homeland Security should be able to produce some witness competent to testify to likelihood that documents barren of diacritical marks and produced by color laser printing were probably forged.

Kempner Mobile Elecs., Inc. v. Southwestern Bell Mobile Sys., 428 F.3d 706 (7th Cir. 2005) (see the briefs).  Kempner enters into agreement with Southwestern Bell (d/b/a "Cingular") to market Cingular's products.  When deal goes south, Kempner sues for breach of contract, fraud (Kempner turned down lucrative deal with Nextel in reliance on Cingular's representations that Kempner would receive same equipment and service pricing as was available through Cingular's internal channels), and tortious interference (Cingular wrongfully contacted Kempner's customers).  District court bifurcates trial on issues of liability and damages.  In liability trial #1, jury returns verdict against Cingular on all claims, but district court grants new trial to Cingular on liability for tortious interference.  In preparation for damages phase, district court grants Cingular's motion to exclude Kempner's expert evidence on fraud damages, because expert's evidence on damages fails to match theory of fraud liability on which Kempner prevailed at trial.  In liability trial #2 on tortious interference, jury again finds for Kempner.  Parties stipulate to actual damages, eliminating need for further proceedings on damages pending appeal.  Exclusion affirmed.  Kempner's expert failed to segregate (a) profits that Kempner would have earned by selling for Nextel from (b) profits gained by sale of Cingular products.  Based on this fundamental disconnect between Kempner's theory of fraud liability and its damages evidence, district court properly concluded that expert's testimony would not assist trier of fact.  District court meanwhile erred in not granting JMOL to Cingular on Kempner's tortious interference claim.

United States v. Moore, 425 F.3d 1061 (7th Cir. 2005).  In prosecution for cocaine distribution, government relies on testimony from forensic chemist Jennifer Yezek.  Jury convicts.  Admissibility affirmed.  Defendant purports to raise Daubert challenge to expert's testimony, but defendant's only specific argument is that her testimony was unreliable because government failed to establish chain of custody for drugs she analyzed.  Prosecution's evidence on chain of custody was sufficient, and district court therefore did not abuse its discretion.

United States v. Davenport, No. 05-1336 (7th Cir. Oct. 7, 2005) (unpublished), cert. denied, 164 L. Ed. 2d 111 (2006).  Charged with interstate transportation of minor with intent to engage in criminal sexual activity, defendant protests to no avail when prosecution offers expert testimony from Kenneth Lanning (former FBI agent with extensive experience in child abuse issues) on how pedophiles use internet to exploit children.  Jury convicts.  Admissibility affirmed.  Defendant says Lanning's testimony was obvious, but purpose of expert social scientific testimony may legitimately be to sift fact from fiction and disabuse jurors of mistaken "common knowledge."  Defendant says Lanning intimidated jurors, but he did not threaten them in any way.  Defendant finally objects that Lanning's testimony invaded province of jury, but that objection has not been valid since 1975 adoption of Federal Rules of Evidence (see Fed. R. Evid. 704(a)).

Fuesting v. Zimmer, Inc., 421 F.3d 528 (7th Cir. 2005) (see the briefs), modified, 448 F.3d 936 (7th Cir. 2006).  Prosthetic knee fails.  Patient sues manufacturer.  To show product defect and causation, patient relies on biomedical engineer James Pugh, who opines that manufacturer's sterilization method (gamma irradiation in air) caused implant's polyethylene to oxidate, delaminate, and fail.  District court admits testimony.  Jury awards damages.  Manufacturer appeals.  Admissibility reversed.  Patient begins appellate brief with five pages citing to published literature offering some support for his expert's theory.  But cited literature is not in record; citations in patient's brief are to quotations of literature by patient's counsel during cross-examination of defendant's expert, who mostly contested their validity.  This portion of patient's appellate brief is therefore stricken as misleading.  As for district court's ruling, its gatekeeping analysis is deficient, because district court focused primarily on expert's qualifications while addressing reliability in only conclusory fashion.  Expert's own causation analysis is, in fact, unreliable, because: (1) expert did not conduct or cite any testing to validate his theory; (2) there are unacceptable analytical gaps between expert's basic underlying theory about general physical processes of delamination (which manufacturer concedes in principle) and expert's concrete conclusions about this particular case; (3) expert's theory that delamination from gamma irradiation leaves physical signature that distinguishes it from delamination attributable to other causes has not been published in peer-reviewed literature and does not enjoy general acceptance; and (4) expert developed his theory for litigation.  Expert's testimony on defect is likewise flawed, in part because sterilization via gamma irradiation in air was universally employed in industry at relevant time.

United States v. Ross, 412 F.3d 771 (7th Cir. 2005).  Criminal defendant offers unilateral exculpatory polygraph.  Trial court excludes polygraph under Daubert and Fed. R. Evid. 403, and because admitting polygraph results would impinge on jury's function.  Jury convicts.  Exclusion affirmed.  Trial courts have wide discretion in excluding polygraph evidence.  Among other problems, instant polygraph was conducted in clandestine and unilateral fashion, leading to natural suspicion that if defendant had flunked, test results never would have been disclosed.

United States v. Carter, 410 F.3d 942 (7th Cir. 2005).  District court denies criminal defendant's motion for appointment of defense expert on eyewitness identification, ruling that such testimony would not aid trier of fact and could mislead it.  Jury convicts and defendant appeals.  Affirmed.  General testimony on fallibility of eyewitness identification involves matters within ken of average juror, and relevant points were covered in cross-examination of eyewitness and in jury instructions.  No abuse of discretion.

United States v. Gray, 410 F.3d 338 (7th Cir. 2005), cert. denied, 126 S. Ct. 1177 (2006).  DEA agent testifies re drug code language in narcotics prosecution.  Jury convicts.  Admissibility affirmed.   Agent had 12 years of experience as narcotics officer, boasted specialized training, and also had experience with these defendants.  He was sufficiently qualified.

Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940 (7th Cir. 2005) (see the briefs).  Alleging that her silicone breast implants caused her neurologicalDaDD symptoms, woman sues in state court.  Defendants remove based on diversity jurisdiction.  District court excludes her expert testimony and awards summary judgment to defendant.  Plaintiff appeals.  Exclusion affirmed.  Plaintiff argues that because district court's jurisdiction was based on diversity of citizenship, admissibility of her expert evidence should have been determined under state rather than federal law.  That argument is frivolous.  Daubert, Joiner, and Kumho Tire were all diversity cases.

United States v. Parra, 402 F.3d 752 (7th Cir. 2005), cert. denied, 126 S. Ct. 1181 (2006).  Prosecution relies on testimony from DEA agent on modus operandi of drug dealers.  Jury convicts.  Admissibility affirmed.  Agent has extensive training and experience.  Defendant argues that agent has not previously testified as expert witness, but "there is a first time in court for every expert."  District court observed proper safeguards to deal with witness's dual capacity as fact witness and expert.  His testimony was helpful to jury, and was not more prejudicial than probative.  No abuse of discretion.

Durkin v. Equifax Check Servs., Inc., 406 F.3d 410 (7th Cir. 2005) (see the briefs).  Was defendant's debt collection letter unacceptably confusing under Fair Debt Collection Practices Act?  To show it was, plaintiffs offer testimony from English professor and linguist Allan Metcalf.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Expert's readability analysis worked from text of entire letter, rather than allegedly misleading portion singled out by plaintiffs as forming basis for their claim.  Expert offered no methodological basis for his other conclusions.  No abuse of discretion. 

Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416 (7th Cir.) (see the briefs), cert. denied, 125 S. Ct. 2978 (2005).  Puerto Rico digital television broadcaster contracts to purchase set-top boxes from Zenith.  Boxes supplied by Zenith do not meet digital video broadcast (DVB) standards prevalent at time of sale.  Broadcaster sues Zenith, claiming its subscription base would have expanded dramatically but for problems caused by deficiencies in boxes.  In support, broadcaster offers  testimony from industry expert Peter Shapiro.  District court excludes testimony as unreliable and awards summary judgment against broadcaster for want of proof of damages.  Exclusion affirmed.  Expert did not base his estimates on data from comparable markets, insisting that Puerto Rico was unique.  Asked what methods he used to project broadcaster's potential subscriber base, he fell back to reliance on his general expertise and his curriculum vitae, and his failure, e.g., to perform multivariate regression was left unexplained.  His extrapolations were mere ipse dixit.

Estate of Moreland v. Dieter, 395 F.3d 747 (7th Cir.) (see the briefs), cert. denied, 125 S. Ct. 2915 (2005).  Prisoner's estate brings civil rights action after prisoner is beaten to death while in custody.  At trial, estate offers testimony from Dr. Gary Lustgarten, neurologist, on cause of death.  Jury awards damages.  Admissibility affirmed.  Defendants say Dr. Lustgarten's opinion was unreliable, but they failed to preserve that point for appeal.  District court's remarks expressing dissatisfaction with Daubert's requirements, made in context of Daubert objections to testimony from another witness, do not excuse defendants' failure to raise objection to reliability of Dr. Lustgarten's opinions.  No plain error.

United States v. Allen, 390 F.3d 944 (7th Cir. 2004).  Police forensic expert Thomas Pitzen testifies at bank robbery trial that shoes defendant was wearing at time of arrest could have made tennis shoe impression left in cement dust at scene of crime.  Jury convicts and defendant appeals.  Admissibility affirmed.  Defendant says that expert's testimony did not satisfy Daubert's relevance prong, because expert testified that match was not definitive, but expert need not opine on ultimate issue to be of assistance to trier of fact.  Defendant also argues that subject matter did not call for expert testimony, because laypersons could compare impression with shoe.  But witnesses testified for prosecution at evidentiary hearing that shoeprint evaluation requires trained eyes.  Defendant also contends that testimony was unreliable.  But same witnesses testified at evidentiary hearing that shoeprint identification techniques are generally accepted and subject to peer review.

United States v. Ceballos, 385 F.3d 1120 (7th Cir. 2004), cert. denied, 125 S. Ct. 1871 (2005).  Over defendants' objections, DEA agent Michael Kress testifies in narcotics trial on meaning of drug code language used by defendants in intercepted communications.  Jury convicts.  Admissibility affirmed.  Defendants protest that conversations were in Spanish, in which agent is not fluent.  District court did not abuse discretion in permitting agent to testify based on translations of those conversations. 

United States v. Pree, 384 F.3d 378 (7th Cir. 2004), amended, 408 F.3d 855 (7th Cir. 2005).  IRS agent testifies as "summary witness" for prosecution in tax evasion case.  Jury convicts.  Admissibility affirmed.  Defendant did not object at trial, and so review is for plain error.  If summary witness merely testifies to what government's evidence shows, he need not be qualified as expert.  Defendant complains, however, that IRS agent went further and offered expert opinion when he testified that defendant had zero basis in her stock.  But his qualifications to do so were in evidence: 18 years of experience as IRS agent, bachelor's degree in accounting, and master's degree in taxation.  No plain error.

United States v. Welch, 368 F.3d 970 (7th Cir. 2004), vacated on other grounds, 543 U.S. 1112 (2005).  In bank robbery trial, prosecution offers testimony from defendant's co-worker and from defendant's former wife identifying defendant as man in bank's surveillance tapes.  Defendant counters with testimony from Dr. Otto Maclin, psychologist, on fallibility of witness identifications.  Trial court excludes testimony as unhelpful to trier of fact and jury convicts.  Exclusion affirmed.   Dr. Maclin's qualifications are not in dispute, nor is reliability of his methods.  But trial court permissibly found testimony would not assist trier of fact.  Average juror could understand risk that misidentification could occur because two persons wore similar clothing, and could grasp principle that memories fade over time.  No abuse of discretion.

Ammons v. Aramark Unif. Servs., 368 F.3d 809 (7th Cir. 2004) (see the briefs).  Employee working as boiler engineer and mechanic injures knee.  Following medical leave, employee requests modification of job duties to accommodate his physical limitations, but employer declines.  Employee sues under ADA, offering expert testimony from vocational rehabilitation counselor Susan Entenberg, who opines that employee's restrictions do not prevent him from performing majority of his work duties.  District court excludes testimony as unreliable and awards summary judgment to employer.  Exclusion affirmed.  Expert was not familiar with several pieces of machinery that employee would be required to repair and could offer no opinion on whether employee was capable of repairing them.  No abuse of discretion. 

Hoffman v. Caterpillar, Inc., 368 F.3d 709 (7th Cir. 2004) (see the briefs).  Caterpillar refuses to train one-handed employee to operate high-speed document scanner.  Was its decision discriminatory?  District court permits experts for both sides, including employee's expert Steven Lavender, to opine generally on whether one-handed persons could operate scanner at mandated production levels, but not on whether employee could do so, because neither expert has personally observed employee operating machine.  Employee subsequently receives training on scanner's operation and is videotaped operating machine.  On first day of trial, employee seeks reconsideration of earlier exclusionary ruling, because expert can now base opinion on review of videotape.  District court denies reconsideration and returns verdict for Caterpillar.  Exclusion affirmed.  District court legitimately reasoned that jurors could evaluate videotape for themselves, and that expert opinion interpreting videotape would not assist trier of fact.  Alternatively, district court legitimately held that testimony was subject to exclusion in any event, because videotape was not disclosed in discovery as basis for expert's opinion.

United States v. George, 363 F.3d 666 (7th Cir. 2004).  Criminal defendant unsuccessfully objects to prosecution's introduction of expert testimony re fingerprint identification.  Jury convicts.  Admissibility affirmed.  Seventh Circuit has previously held that fingerprint identification is generally accepted, has low rate of error, and can be objectively tested.  As for defendant's complaint that identification was unreliable because based on partial prints, issue of whether prints match is best left to trier of fact.  No abuse of discretion.

United States v. Williams, No. 02-4361 (7th Cir. Mar. 24, 2004) (unpublished).  Defendant is charged with possession of firearms by felon.  To prove that weapons traveled in foreign and interstate commerce, prosecution offers testimony from ATF firearms expert John Phinney.  Jury convicts.  Admissibility affirmed.  Defendant did not challenge expert's testimony below, and so review is for plain error.  Expert has five years' ATF experience, attended ATF's "Interstate Nexus School," also has military training on firearms identification, and has testified as expert on interstate nexus issues on four previous occasions.  No abuse of discretion.  

Mihailovich v. Laatsch, 359 F.3d 892 (7th Cir.) (see the briefs), cert. denied, 543 U.S. 926 (2004).  Plaintiff sustains spinal injury in one-car accident on curved roadway.  She sues Cook County in state court, alleging that its negligent maintenance of roadway caused accident.  Her attorneys fail to secure expert testimony and her claims are dismissed on summary judgment.  Plaintiff proceeds to bring legal malpractice action against her state court attorneys.  To prove that she would have prevailed in underlying litigation but for state court attorneys' inadequate performance, she offers testimony from civil engineer William Berg, who opines, based in part on human factors analysis, that curve's unsafe condition due to county's negligent maintenance helped to cause accident.  District court excludes testimony as unreliable.  Jury finds for defendants.  Exclusion reversed.  District court did not adequately explain basis for exclusionary ruling, merely citing Daubert factors without discussing how they applied to testimony in question.  District court also erred in excluding factual evidence of other accidents at same curve.  On remand, district court should undertake renewed Daubert analysis.  Seventh Circuit panel will not prescribe outcome of that analysis, but notes that expert's opinion was well supported on several grounds.

United States v. Ferron, 357 F.3d 722 (7th Cir. 2004).  Convicted of bank fraud, defendant offers testimony at sentencing phase from Dr. R. Bronson Levin, clinical and forensic psychologist, who opines that defendant suffers from generalized anxiety disorder, dependent personality disorder, dysthymia, drug and alcohol abuse, and suspected adult attention deficit disorder ("ADD"), and therefore lacked capacity to focus on financial matters.  District court rejects testimony under DaubertExclusion reversed.  District court erred in excluding testimony, because Daubert is inapplicable during sentencing proceedings.  Federal sentencing guidelines require only that evidence bear "sufficient indicia of reliability," which represents more lenient standard than Daubert.  But error was harmless, because district court actually considered testimony and properly assigned it negligible weight.

Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) (see the briefs).  Parents bring malpractice action after infant dies while under treatment by home health care personnel.  On summary judgment, parents rely on deposition testimony from treating physicians and nurses.  Defendant moves to strike testimony because parents did not designate witnesses as experts in their discovery disclosures.  District court grants motion to strike and awards summary judgment.  Exclusion affirmed.  It is true that disclosure rules do not require treating physicians or nurses to submit reports.  And it is also true that parents identified these witnesses in their discovery disclosures.  But they did not designate them as expert witnesses, and that omission prejudiced defendant.  Striking their deposition testimony insofar as it embodied expert opinion was legitimate sanction.  Because medical malpractice claims cannot be sustained under Indiana law without expert testimony, summary judgment was properly granted.

Menasha Corp. v. News Am. Mktg. In-Store, Inc., 354 F.3d 661 (7th Cir. 2004) (see the briefs).  Manufacturer of at-shelf coupon dispensers sues competitor, alleging that competitor's exclusive contracts with retailers violate antitrust laws.  Are at-shelf coupon dispensers part of larger economic market that also includes newspaper coupons and stuck-to-product-box coupons, or do they represent distinct market of their own?  To prove the latter, plaintiff offers testimony from experts including journalist James Tenser, whose survey of friends and acquaintances discloses that they prefer at-shelf coupons to other kinds, and marketing expert James Langenfeld, who relies in part on Tenser's survey.  District court excludes Tenser's survey for failure to adhere to standard survey techniques, and so much of Langenfeld's testimony as depends on Tenser's survey.  District court then awards summary judgment to defendant.  Exclusions affirmed.  Not only was survey wanting in rigor, it was irrelevant in any event.  Consumer preference cannot establish that some commodity represents market unto itself; otherwise vanilla ice cream could constitute separate market from chocolate ice cream, merely because consumers preferred vanilla overall.  Plaintiff's other evidence did not suffice to defeat summary judgment.

Niam v. Ashcroft, 354 F.3d 652 (7th Cir. 2004) (see the briefs).  Bulgarians from prominent anticommunist family seek asylum, claiming that former communists remain powerful in Bulgarian security services and will pursue vendetta against family members if they return.  To bolster their contention that they remain at risk notwithstanding fall of communist regime, Bulgarians seek to offer testimony from expert in politics of Russia and other former communist nations, Dr. Juliet Ellen Johnson, who opines in sworn statement that Bulgaria has undergone less reform than other Eastern European countries, and that its security forces remain in same hands as during communist regime.  At hearing, immigration judge rescinds prior ruling that expert would be permitted to testify by phone when he learns that expert is not at Dartmouth, where she teaches, but abroad in Prague.  Because voir dire is therefore impossible, immigration judge proceeds to sustain government's objection that witness's expertise is in Russian politics, not Bulgarian politics.  Judge denies asylum, and Board of Immigration Appeals affirms without opinion.  Exclusion reversedDaubert does not literally govern agency proceedings, but it would be odd for agency to adopt "an even more stringent filter for expert testimony than that used by the courts."  Under Daubert, judge could not exclude witness's testimony without first engaging in voir dire.  Summary refusal to conduct voir dire telephonically was arbitrary.  Remanded for further proceedings.

United States v. Bowman, 353 F.3d 546 (7th Cir. 2003).  In prosecution for possession of handgun by felon, policeman testifies he found weapon in defendant's pocket during search incident to arrest and removed magazine and one bullet from chamber to make weapon "safe."  His testimony is corroborated by his partner.  Defendant, however, claims gun was planted, and offers testimony from three friends and relatives who witnessed arrest and claim that police retrieved no weapon.  To bolster police officers' testimony, prosecution calls ATF fingerprint expert Richard Canty, who testifies to finding palm print and thumbprint on handgun, but says they do not match defendant and have not been positively identified.  Over defendant's objection, prosecution asks Canty whether location of thumbprint is consistent with hypothesis that someone left print while making weapon "safe."  Canty answers affirmatively.  Jury convicts.  Admissibility affirmed.  Defendant argues that Canty, although qualified as fingerprint expert, was not qualified as expert in gun handling.  Defendant moreover contends that Canty's testimony was not founded on reliable methods or data.  But Canty has 37 years' experience in recovering prints from weapons, and demonstrated his familiarity with this handgun during his testimony.

G.M. Enters. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003) (see the briefs), cert. denied, 543 U.S. 812 (2004).  Town passes ordinance restricting nude dancing, relying on sixteen studies showing relationship between sexually oriented businesses and property values, crime statistics, public health risks, illegal sexual activities such as prostitution, and organized crime.  Nude dancing parlor challenges ordinance under First Amendment, arguing that town cannot demonstrate reasonable probability of causal relationship between nude dancing and deleterious secondary effects unless it presents evidence with sufficient rigor to qualify for admissibility under Daubert.  Trial court upholds constitutionality of ordinance and grants summary judgment to town.  Affirmed.  Under Supreme Court's First Amendment precedents, municipalities are not required to present empirical data to support their legislative assessment that sexually oriented businesses promote adverse secondary effects.  "A requirement of Daubert-quality evidence would impose an unreasonable burden on the legislative process."

Gebrendrias v. Ashcroft, No. 02-4254 (7th Cir. Oct. 14, 2003) (unpublished) (see the briefs).  Ethiopian woman seeks asylum, claiming fear of persecution based on her membership in Oromo Liberation Front ("OLF").  In support, she offers letter vouching for her OLF membership.  Government offers testimony from forensic document examiner Larry F. Ziegler, who opines that letter is forged.  Immigration judge credits expert's testimony and denies asylum.  Board of Immigrations Appeals affirms.  Admissibility affirmed.  Woman argues that expert's testimony did not satisfy Daubert, but traditional rules of evidence do not apply in immigration proceedings, where sole test for admissibility is whether evidence is "probative" and "fundamentally fair."  Expert was well-qualified, and pointed to various attributes (e.g., paper size, spacing of characters, photocopying of seal) credibly indicating that document was not of Ethiopian origin. 

Deputy v. Lehman Bros., Inc., 345 F.3d 494 (7th Cir. 2003) (see the briefs).  Is that plaintiff's signature on arbitration agreement?  Defendants say yes, relying on testimony from handwriting expert Diane Marsh.  But district court excludes her testimony, finding it scientifically unreliable, and also concluding that expert gave misleading answer about whether her testimony had ever been found unreliable in previous cases.  Exclusion reversed.  Expert's answer re previous testimony was not inaccurate, and district court misread earlier decision in so concluding.  District court's reliability analysis focused too heavily, and improperly, on credibility issues, rather than soundness of expert's methods.  Testimony from handwriting experts is not admissible per se, but district court should conduct proper Daubert analysis on remand.

Buie v. McAdory, 341 F.3d 623 (7th Cir.), cert. denied, 540 U.S. 1061 (2003).  At state murder trial, forensic expert Maria Pulling testifies that hair samples from crime scene came from defendant.  On federal habeas review, defendant argues that state trial judge violated due process by permitting expert to overstate strength of her conclusions.  District court denies relief.  Affirmed.  Even assuming expert was mistaken, Constitution does not impose Fed. R. Evid. 702 on state courts.  Defendant was duly afforded what constitutional rights he had -- i.e., opportunity to cross-examine expert and present contrary evidence.  

Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714 (7th Cir. 2003) (see the briefs).  Plaintiff in trade secret suit offers ink expert to opine that entry in handwritten document was not created contemporaneously with other entries.  District court excludes testimony.  Jury finds for plaintiff, but district court enters judgment for defendants as matter of law.  Reversed.  Jury award reinstated, but appellate panel will not reach Daubert question, because plaintiff failed to include transcript of Daubert hearing in record on appeal and therefore forfeited issue.  Panel admittedly has power to order supplementation of record, but declines to exercise that power because plaintiff took no corrective steps even after plaintiff was apprised of problem in defendant's answering brief on appeal.

Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693 (7th Cir. 2003) (see the briefs).  To support her claim of salary discrimination, faculty member offers regression analysis performed by economics professor Paul Carlin, in which Carlin finds statistically significant gender differences, and also finds that faculty member's salary is more than one standard deviation below its predicted value.  Carlin testifies he cannot rule out discrimination as the reason.  University contends that faculty member's lower salary is explained by nondiscriminatory factors.  District court admits regression study but awards summary judgment to university.  Admissibility affirmed.  University says that Carlin's regression study is inadmissible under Daubert, because factors like productivity are difficult to quantify.  But under Bazemore v. Friday, 478 U.S. 385 (1986), omission of particular variables in regression analysis ordinarily goes to weight, not admissibility.  However, regression study was insufficient to establish prima facie case. 

United States v. Sutton, 337 F.3d 792 (7th Cir.), cert. denied, 540 U.S. 1050 (2003).  During investigation of armed robberies, government investigators collect fingerprints from locations that robbers touched.  Analysis by police lab concludes that prints do not match those of suspects who are charged.  At trial, suspects seek to introduce lab reports to show innocence.  District court excludes reports because "without an expert to explain them, they are of no evidentiary value."  Jury convicts.  Exclusion affirmed.  Defendants urge that reports at issue are self-authenticating public records falling within hearsay exception in Fed. R. Evid. 803(8)(C).  Defendants are correct.  Under Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), hearsay exception in Rule 803(8)(C) encompasses opinions and is not limited to purely factual evidence.  But hearsay issues relate only to form of testimony, not its substantive admissibility.  District court did not invoke any specific evidentiary rule in excluding reports, but its decision can be interpreted as one excluding evidence under Fed. R. Evid. 403 because reports, although relevant, were more prejudicial than probative without live expert testimony to explain them.  Alternatively, district court may have intended exclusion to rest on Daubert.  There is no question that fingerprint analysis, as general methodology, satisfies Daubert.  But reports merely stated bald conclusions, and district court could have concluded, in its sound discretion, that record failed to demonstrate that fingerprint methodology was reliably applied.  Alternatively, any error was harmless.

Zelinski v. Columbia 300, Inc., 335 F.3d 633 (7th Cir. 2003).  Defendant sells bowling balls under plaintiff's federally registered mark.  At trial, plaintiff's damages expert, J. Timothy Cromley, offers estimates for lost royalties and cost of advertising campaign to rehabilitate mark.  Jury returns verdict for plaintiff.  Admissibility affirmed.  Defendant complains that Cromley's projected costs for rehabilitative advertising do not vary as function of magnitude of infringement.  But number of infringing bowling balls affects only reasonableness of corrective ad campaign, not cost of running ads, and proposed campaign was reasonable where defendant sold roughly 3000 balls.  Defendant also faults computations by which Cromley purported to show that rehabilitating mark would be less expensive than adopting new one, but Cromley explained his methodology, and defendant presented no evidence suggesting that experts would normally use some different technique.  Finally, defendant contests Cromley's royalty calculations, but defendant did not raise that issue in district court, and assumptions in Cromley's royalty calculations were defensible.

Allen v. LTV Steel Co., No. 02-4094 (7th Cir. June 17, 2003) (unpublished) (see the briefs).  Large rubber tire on vehicle explodes, allegedly causing operator of nearby crane to fall forward into crane windshield, injuring arms.  Crane operator sues manufacturer and distributor of tire.  To support claim of product defect, crane operator offers testimony from tire expert Morris Dingman.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Because tire had been destroyed, expert formed his opinion by examining videotape of accident and reviewing reports of similar tire failures.  District court legitimately found expert's methods to be unreliable, because they were not evaluated by peer review, subjected to testing, nor evaluated for potential rate of error.  Moreover, expert failed to establish connection between tire at issue and tires involved in reports he reviewed, and made no attempt to account for alternative causes of tire explosion.  

United States v. Mamah, 332 F.3d 475 (7th Cir. 2003).  While in police custody, Ghanaian immigrant confesses to drug possession.  He later recants.  At trial, he calls anthropologist (Dr. Deborah Pellow) and sociologist (Dr. Richard Ofshe) to opine that Ghanaians are confession-prone, because Ghana is governed by oppressive military regime.  District court excludes testimony because: (1) neither expert is clinical psychologist qualified to assess defendant's susceptibility to interrogation techniques; (2) defendant has lived in United States for over fifteen years; and (3) defendant did not show similarity between tactics used by arresting officers and interrogation techniques in Ghana.  Jury convicts and defendant appeals.  Exclusions affirmed.  Testimony failed to satisfy Fed. R. Evid. 702.  Experts may have been qualified in their respective fields, and their research may have been methodologically sound, but they relied on insufficient facts or data to link their theories to facts of case, which involved non-coercive interrogation in America, not coercive interrogation in Ghana.

Newsome v. McCabe, 319 F.3d 301 (7th Cir.) (see the briefs), cert. denied, 539 U.S. 943 (2003).  Convicted of murder and later pardoned on grounds of innocence, man sues police under section 1983 for coaching three eyewitnesses to identify him in lineup and then concealing their coaching.  At trial, plaintiff's expert on eyewitness identification, psychologist Gary Wells, testifies, based on tests with over 500 subjects asked to perform similar identification in photo lineups, that odds of three eyewitnesses mistakenly identifying plaintiff would be substantially less than 1 in 1000, implying that police coaching was indeed responsible for eyewitnesses' unanimous but mistaken identification.  Admissibility affirmed.  Expert's testimony went to central factual issue, and defendants do not say how his methodology could be improved.  In any event, expert's assumptions and methods were fully explored on cross-examination.    

Aliotta v. Nat'l R.R. Passenger Corp., 315 F.3d 756 (7th Cir. 2003) (see the briefs).  Man awaits train.  After high-speed train passes station, man is found dead on tracks.  Family brings suit against Amtrak, Illinois Central Railroad (IC), and engineer.  Family's theory is that man was standing on unduly narrow platform and was somehow pulled into train.  Defendants' theory is that man was crossing tracks.  At deposition, IC risk manager testifies that high-speed trains create vacuums that would suck someone standing too close into train.  Family attempts to offer risk manager's deposition testimony at trial, but district court excludes it, and jury finds for defendants.  Exclusion affirmed.  Family does not challenge district court's finding that risk manager was unqualified to offer expert testimony, but contends his deposition testimony was admissible on two different grounds: (a) as admission of party opponent under Fed. R. Evid. 801(d)(2)(D); and (b) to show railroad's knowledge of hazard.  However, it was legitimately excluded under both theories.  Party admissions are not hearsay, but this does not automatically suspend other evidentiary requirements, such as those imposed under Daubert.  And jurors already knew, from common knowledge as well as risk manager's trial testimony, that narrow passenger platforms were safety risks, so that his deposition testimony, offered to prove that point, was subject to exclusion under Rule 403, and any erroneous failure to admit it would be harmless error.  

Alek v. Univ. of Chicago Hosps., No. 02-2816 (7th Cir. Dec. 16, 2002) (unpublished) (see the briefs).  Employee sues hospital under Americans with Disabilities Act for failing to rehire her.  Hospital moves for summary judgment, relying in part on letters from several physicians.  District court awards summary judgment, because employee offers no evidence that hospital's stated nondiscriminatory reasons for not rehiring employee were untrue.  Affirmed.  Plaintiff says district court should have excluded physician letters under Daubert, but this is one of several arguments raised by plaintiff on appeal that were not presented to district court, or which are unsupported by record citation or legal authority, and which are therefore waived.

United States v. Young, 316 F.3d 649 (7th Cir. 2002).  Man is charged with interstate domestic violence.  At trial, his victim recants her previous allegations that he abducted and beat her.  Prosecution calls psychiatric mental health nurse, Dr. Ann Wolbert Burgess, who opines over defendant's objection that victim's recantation is typical behavior pattern for domestic abuse victims.  Jury convicts and defendant appeals.  Admissibility affirmed.  Expert's experience is germane to reliability of her testimony, and she has forty years of experience as psychiatric nurse, specializes in criminal violence, has authored over 100 publications on forensic nursing, rape, and domestic violence, and has performed academic research studying several hundred battered women.  Her work is generally accepted in mental health profession, and two other circuits have upheld similar testimony (from this very expert, in one instance).  Defendant challenges reliability of her methods on three grounds: (1) formation of her opinion prior to interviewing victim; (2) reliance on "anecdotal" evidence involving other battered women; and (3) failure to interview victim's friends and family.  But: (1) jury was not required to credit defense expert who testified that failing to interview victim first was unsound; (2) expert properly based her opinion on extensive experience as well as careful review of facts; and (3) expert did interview victim, and it is unlikely victim's friends or family could have negated abuse dealt to victim by defendant over decade's time.

Siljak v. Ravenswood Disposal Serv., No. 02-1026 (7th Cir. Nov. 21, 2002) (unpublished) (see the briefs).  Woman alleging workplace sexual harassment offers [psychologist?] Dr. John Conlin to testify she suffers from post-traumatic stress disorder (PTSD) resulting from harassment.  District court excludes testimony and jury finds for defendants.  Exclusion affirmed.  If district courts properly apply Daubert and Kumho Tire standards, their evidentiary determinations may be reversed only if manifestly erroneous.  Here, district did not abuse discretion in concluding that expert followed no "established recognized methodology."

United States v. Mansoori, 304 F.3d 635 (7th Cir. 2002), cert. denied, 538 U.S. 967 (2003).  In drug conspiracy trial, district court permits police officer and gang specialist Michael Cronin to offer opinion testimony on history, leadership, and operations of Traveling Vice Lords.  Jury convicts.  Admissibility affirmed.  Defendants do not dispute officer's qualifications as gang expert but contend that testimony's prejudicial effect outweighed its probative value, because nonexpert eyewitness testimony on operations of Traveling Vice Lords would have been perfectly comprehensible to jurors without expert assistance, and because officer's dual role as fact witness and expert may have confused jurors, leading them to credit officer's opinion testimony as brute fact.  But officer's opinion testimony offered helpful background, because average juror would be unfamiliar with operations of narcotics traffickers and street gangs.  Dangers may arise when law enforcement officers testify in dual capacities of fact witness and expert, but testimony in both capacities is not prohibited, and lines between fact and opinion testimony were clearly demarcated during presentation of witness's testimony to jury.

United States v. Ceballos, 302 F.3d 679 (7th Cir. 2002), cert. denied, 537 U.S. 1137 (2003).  DEA agents testify as experts on drug trafficking in criminal trial.  Admissibility affirmed.  Agents were qualified by training and experience to opine on "code" language used in drug transactions, and such information would be helpful to jury.

Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002) (see the briefs).  Did conceded defect in wiring of Maytag range cause plaintiff's electrocution, or was it caused by plaintiff's conceded failure to heed Maytag's warning to plug range into properly grounded outlet?  Plaintiff offers testimony from James Petry, who holds B.A. in mechanical engineering, and who opines that incident resulted from "resistive short" which would not have tripped circuit breaker even if outlet were grounded.  District court admits testimony over defendants' objection and jury returns verdict for plaintiff.  Admissibility reversed.  Defendants complain that expert's credentials are weak, and that he conducted no tests, cited no supportive literature, and relied on novel and unproven theory.  And indeed, expert satisfied none of Daubert's guideposts for reliability.  Reversed and remanded for new trial.    

United States v. Conn, 297 F.3d 548 (7th Cir. 2002), cert. denied, 538 U.S. 969 (2003).  On trial for illegal firearms trafficking, defendant challenges testimony of ATF agent that firearms in defendant's possession were not collector's items.  Admissibility affirmed.  Agent's testimony was not lay opinion, but rather expert opinion.  But agent's experience and training could ground such testimony, even though expert's qualifications, and foundations of his opinion, were established in somewhat cursory fashion.

In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651 (7th Cir. 2002) (see the briefs), cert. denied,  537 U.S. 1188 (2003).  The Webmaster recuses himself from analysis of this opinion, because attorneys from his firm served as counsel for appellants.  Readers are encouraged to review this opinion for themselves. 

Consolidation Coal Co. v. Dir., Office of Workers' Comp. Programs, 294 F.3d 885 (7th Cir. 2002) (see the briefs).  ALJ awards benefits to black lung claimant despite opinion of employer's pulmonologist, Dr. Robert M. Bruce, that claimant's CT scan was negative for black lung.  Affirmed.  Claimant with pneumoconiosis is presumptively entitled to benefits once he establishes employment at coal mines for ten years or more and produces x-ray test that shows black lung disease in opinion of qualified physician.  This claimant satisfied those requirements, and so burden shifted to coal company to show that claimant did not have pneumoconiosis or was not disabled or not totally disabled thereby.  Company argues that opinion of its own physician, Dr. Bruce, should be conclusive, because computed tomography is more sophisticated diagnostic method than x-ray analysis.  But medical community has reached no consensus on this point, and Department of Labor has rejected view that CT scans are conclusive.  Moreover, Dr. Bruce has no expertise in radiology, and it is customarily radiologists who interpret CT scans.  Parties to agency proceedings are not bound by Daubert but must still satisfy ALJ that their experts are qualified and have applied recognized medical principles in reliable way.  Perhaps some coal company could qualify some pulmonologist without radiological credentials to interpret CT scans, but this coal company did not thus qualify Dr. Bruce, and so ALJ could reasonably discount his testimony.

Ueland v. United States, 291 F.3d 993 (7th Cir. 2002) (see the briefs).  Government chase car rear-ends prison van.  Prisoner from van sues under Federal Tort Claims Act, alleging that collision caused him to suffer back and neck injuries, and offers testimony from Jason William, chiropractor cum acupuncturist.  Government objects that chiropractor/acupuncturist is unqualified to testify re etiology of back and neck injuries.  District court refuses to apply Rule 702 or to conduct Daubert hearing, and holds that chiropractor's qualifications go only to weight.  Court rules similarly when government offers prison physician, Dr. James Reed, to testify that prisoner's injuries predated accident.  After trial, district court finds conclusorily that plaintiff has not carried his burden of proof that government's negligence caused his injuries or damages.  Admissibility reversed.  District court's cursory "findings" of fact are too general and vague to satisfy Fed. R. Civ. P. 52(a), and so case must be remanded for retrial and findings compliant with that rule.  It was error to hold that qualifications of experts went only to weight, and on remand district court must conduct Daubert analysis.  Plaintiff's chiropractor will probably flunk Daubert analysis, and government's physician may pass, depending partly on whether his expertise includes soft-tissue and back injuries. 

Masters v. Hesston Corp., 291 F.3d 985 (7th Cir. 2002) (see the briefs).  Man loses arm to hay baling machine.  In suit against manufacturer, man offers opinion of engineer Paul Walker that machine was negligently designed in light of then-prevailing standards.  District court excludes testimony and grants summary judgment to manufacturer.  Exclusion affirmed.  Engineer testified that feed rollers should have been eliminated or guarded under standards contemporaneously promulgated by American Society of Agricultural Engineers.  But engineer offered no support for proposition that feed rollers could be eliminated, or moved to safe location under machine, without interfering with machinery's functionality.  Engineer also argued that baling machine should have incorporated "open throat" design that would not require feed rolls.  But engineer offered no reliable support for proposition that open throat technology was feasible in 1975, when manufacturer sold machine, and that proposition is suspect, because open throat balers only hit the market in 1977.

Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002) (see the briefs).  Water supply for Elkhart, Indiana, is contaminated by TCE and other volatile organic compounds.  After cleanup, EPA sues Dura for cleanup costs.  Dura sues CTS for contribution, alleging that CTS is partially responsible for contamination.  This could be so only if CTS's plastics plant was within city well field's "capture zone" (i.e., catchment basin) during operations twenty years ago.  Dura's sole expert is hydrogeologist Nicholas Valkenburg.  Valkenburg testifies in reliance on computer modeling performed by other personnel at his firm, and admits he is not himself expert in such modeling.  CTS moves to exclude Valkenburg's testimony and for summary judgment.  Dura responds with four affidavits from persons who performed computer modeling for Valkenburg, all of whom testify that such techniques are reliable.  CTS moves to strike affidavits as untimely expert designations.  Judge grants motion to strike, then holds Valkenburg's testimony inadmissible for want of evidence of reliability, then grants summary judgment.  Exclusion affirmed.  Dura says that even if affiants' own testimony could not be offered at trial, affidavits should have been considered to evaluate reliability of Valkenburg's testimony.  However, ultimate issue was validity of computer models, and Valkenburg's testimony on that point would have been exercise in ventriloquism.

Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002).  Claimant seeking SSI disability benefits suffers from back pain, personality problems caused by organic brain damage, and illiteracy.  Administrative law judge denies benefits after hearing testimony from vocational expert that claimant could perform low-stress tasks with moderate exertional requirements, such as janitorial work.  Affirmed.  Department of Labor's Dictionary of Occupational Titles considers basic literacy to be essential for all jobs.  But this seems questionable -- claimant, e.g., worked as truck driver for 23 years, and illiteracy is not progressive disease.  Some courts have held that Dictionary always trumps vocational experts, but that view is untenable.  Dictionary itself says readers should rely on better data where available.  By same token, testimony from vocational experts cannot be automatically dispositive.  Although Fed. R. Evid. 702 is inapplicable in administrative proceedings, Daubert supplies guidance in its focus on indicia of reliability.  Where vocational expert's testimony is questioned at hearing, ALJ must conduct Daubert-like inquiry and explain how any conflict between testimony and Dictionary was resolved.  Here, however, no discrepancy between testimony and Dictionary was identified at hearing, and so ALJ was entitled to rule as she did.

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

Estate of Boncher v. Brown County, 272 F.3d 484 (7th Cir. 2001) (see the briefs).  Man commits suicide in county jail.  In resulting civil rights action against county, suicide's estate offers testimony from reputable criminologist that jail's five suicides within five years is unusually high number.  Trial court awards summary judgment for defendant.  Admissibility reversed.  Criminologist's testimony "was useless and should have been excluded under the Daubert standard."  Relevant question would not be number of suicides, but suicide rate, as compared with background rate among persons residing in area but not incarcerated.  Also, expert should have accounted for normal variance.  It would not be sound to condemn jail administrators for suicide rates within one or two standard deviations from suicide rates at other jails.  Every statistical distribution has upper tail, but jails unlucky enough to be in upper tail for inmate suicides should not automatically be subject to liability.

Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001).  Would worker's leg have been injured in forklift mishap if forklift had rear door instead of mere opening?  In suit against forklift manufacturer, worker offers testimony from mechanical engineer and biomechanical engineer re desirability of rear doors in forklifts.  District court excludes testimony as unreliable.  Exclusion affirmed.  Most glaring problem with experts' proposed testimony is that neither expert had designed forklifts with rear doors or tested any model with rear door -- at least not in context of this lawsuit.  Mechanical engineer had previously tested forklifts with rear doors, but those tests were not part of record and were performed on differently designed forklifts.  Moreover, mechanical engineer did not explain how those tests led to his conclusion that doors were appropriate.  Without detailed explanation of tests, defendant could not attempt to duplicate results -- and some evidence actually suggests that doors could exacerbate risk by hindering escape.  Biomechanical expert proposed to testify that leg can fall through opening but not through closed door, but that testimony would not fall outside jury's general knowledge.

United States v. Allen, 269 F.3d 842 (7th Cir. 2001).  DEA agent testifies at criminal trial that gun found at motel was of type used in drug trafficking.  Admissibility affirmed.  Defendant says agent's testimony amounted to lay opinion.  But agent had received education and training in narcotics trafficking, had worked as police officer for 26 years and DEA agent for 13 years, and had investigated over 200 drug cases.  District court reasonably found his opinion reliable and relevant.

Barber v. United Airlines, Inc., No. 00-3546 (7th Cir. Aug. 16, 2001) (unpublished) (see the briefs).  Injured when airplane encounters turbulence, passenger sues airline.  Passenger's theory is that airline failed to exercise due care to avoid thunderstorm turbulence.  Airline's theory, and crew's testimony, is that no thunderstorm was involved and that plane encountered only unpredictable "clear air" turbulence.  Prior to trial, and without holding hearing, district court grants motion in limine excluding plaintiff's aviation expert under Daubert, because expert has addressed only weather data favorable to his opinion and has ignored data unfavorable to it without explanation.  Trial judge refuses to grant plaintiff continuance to locate new expert.  At trial, plaintiff takes stand and testifies for first time that subsequent to flight, as she was waiting inside airport to return home, pilot approached her and admitted flying through thunderstorm.  Trial judge grants judgment as matter of law to airline.  Exclusion affirmed.  On appeal, plaintiff does not challenge trial court's ruling excluding expert's testimony in reliance on cherry-picked weather data, but argues that expert should have been permitted to testify generally that thunderstorms cause turbulence.  But airline admitted as much.  Real question was whether thunderstorms were involved, and no record evidence supported their involvement.  Plaintiff's late-breaking trial testimony re pilot's alleged admission was overwhelmingly contradicted, by plaintiff's own deposition testimony as well as other witnesses.  Even plaintiff's sister testified that day was clear and sunny.  Trial court did not abuse discretion in denying continuance to find new expert, and no Daubert hearing was required because matter was fully briefed.

United States v. Havvard, 260 F.3d 597 (7th Cir 2001).  District court admits fingerprint testimony in criminal trial.  Admissibility affirmed.  Fingerprinting passes Daubert muster.  Results are objective, capable of testing, and have low error rate.  Method has been subjected to "peer review" via adversary system for 100 years.

United States v. Tabb, No. 01-1163 (7th Cir. July 2, 2001) (unpublished).  Counsel moves to withdraw in criminal appeal because unable to identify nonfrivolous basis for appeal.  Motion granted.  Counsel could not press nonfrivolous argument that testimony from law enforcement agents at sentencing hearing converting drug proceeds to drug weights violated standards in Daubert and Kumho Tire, because counsel did not explain to district court how testimony supposedly violated those standards.  Moreover, it is questionable whether Daubert and Kumho Tire even apply at sentencing, where district judge may consider relevant information without regard to admissibility so long as it possesses some indicia of reliability.

Peabody Coal Co. v. McCandless, 255 F.3d 465 (7th Cir. 2001).  Administrative law judge in black lung proceeding favors opinion of autopsy prosector over contrary opinions of several other physicians.  ReversedDaubert does not govern agency black lung proceedings, and this case does not present admissibility issues, but judicial policy is to favor sound science, and ALJ must base findings on rational analysis of expert opinions, not on simplistic preference for whoever performed autopsy.

Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001) (see the briefs).  Defendant obtains summary judgment in age discrimination case brought by one of three terminated employees.  Affirmed.  Plaintiff had no evidence to show discrimination.  Witness who had himself sued for age discrimination and testified that company had age-discriminatory "culture" had obvious axe to grind, and his testimony was too vague and speculative to establish prima facie case.  Also, company had independent noninvidious reason to terminate plaintiff, and plaintiff's statistical evidence actually favored company, because it tended to show likelihood that three terminated employees would be over forty even absent discrimination (since 27 out of company's 32 employees were over 40).  This plaintiff, therefore, had no case, but court (by Posner, J.) wishes to seize opportunity to opine on issues of potential relevance in future discrimination cases: Some decisions elsewhere hold that statistical evidence is inadmissible to show discrimination unless it attains 95% confidence level, but no such rule applies in Seventh Circuit, because 95% confidence threshold is arbitrary.  It is applied by scholarly journals to ensure that results are very probably not influenced by chance, but litigation is not fussy about evidence.  Other forms of evidence (e.g., eyewitness testimony) are accepted without requiring showings of error rates under 5%.  Low statistical significance may be attributable to noise in data, and high significance may be artifact of study design.  Under Daubert, it is for judge to say, based on evidence from trained statisticians, whether particular significance level, in context of particular study in particular case, is too low for admissibility.

Austin v. Am. Ass'n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001) (see the briefs), cert. denied, 534 U.S. 1078 (2002).  Neurosurgeon is suspended by professional association after it is complained that his testimony in malpractice suit was irresponsible.  Neurosurgeon sues professional association, arguing that trial judge in underlying malpractice suit held that neurosurgeon's testimony satisfied DaubertDismissal affirmed.  Federal courts are bound by Daubert, but professional associations are not.  Judges rely on professional associations to screen experts.  Just as testimony held inadmissible under Daubert does not automatically result in discipline by professional association, so too admissibility of physician's testimony under Daubert does not preclude professional discipline therefor.

Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001).  In civil rights action alleging ethnic profiling by Illinois State Police, plaintiffs offer statistical analyses of traffic stops based on law enforcement databases, census data, and state records of licensed drivers.  In recommending that summary judgment for defendants be granted on plaintiffs' equal protection claim, magistrate judge finds statistical evidence deficient because data on ethnicity has not been collected for every motorist stopped, and because such data as do reflect ethnicity do not constitute true random sample.  Trial judge grants summary judgment without evaluating statistical evidence because statistical evidence would not sustain plaintiffs' claims even if valid.  Two years later (other claims still having been pending), defendants move to strike plaintiffs' statistical experts under Daubert.  Trial judge says it is unclear why defendants are raising Daubert only now and denies motion without prejudice.  Plaintiffs appeal after remaining claims are dismissed.  Summary judgment affirmed.  Unnecessary to remand for consideration of plaintiffs' statistical evidence, because this statistical evidence cannot establish prima facie case, and because plaintiffs' statistical proof is (for reasons explained at length) neither relevant nor reliable.  "[W]ithout reliable data on whom [defendant's] officers stop, detain, and search, and without reliable data indicating the population on the highways where motorists are stopped, detained, and searched, we can not find that the statistics prove that the [defendant's] officers' actions had a discriminatory effect on the plaintiffs." 

United States v. Lea, 249 F.3d 632 (7th Cir. 2001).  After business relationship between defendant and rendering company goes bad, defendant dumps pesticides on rendering company's "deadstock" (dead farm animals to be rendered and sold as animal food), forcing massive recall of rendering company's products when pesticides are discovered.  At trial, defendant argues that former employee of rendering company was actual culprit, and seeks to call FDA agent who administered polygraph to that employee, to testify that employee "failed" polygraph.  Polygrapher testifies at telephonic Daubert hearing that polygrapher can only speculate as to accuracy of employee's polygraph, and that polygrapher knows of no statistics on accuracy rate of polygraphy methods employed.  District court excludes polygrapher's testimony.  Exclusion affirmed.  In general, no consensus exists on reliability of polygraph testimony (citing Scheffer).  Seventh Circuit may be more permissive re polygraph testimony than some other circuits, but considerable deference is owed to district court's decision.  Trial courts may properly exclude polygraph evidence under Fed. R. Evid. 403 without conducting full Daubert analyses, although factors from Daubert remain useful tools in gauging reliability of polygraph testimony.

United States v. Lamarre, 248 F.3d 642 (7th Cir.), cert. denied, 533 U.S. 963 (2001).  Husband and wife are charged with defrauding federally insured banking institutions by obtaining loans under false pretenses.  Trials are severed.  Husband's defense is that wife masterminded scheme and that because husband lacked intelligence to understand relevant financial transactions, husband could not have formed specific intent to defraud banks.  Husband offers testimony from psychologist that husband has IQ of 70, second-grade reading ability, and first-grade spelling and arithmetic ability.  Trial court excludes evidence because husband's intelligence and fraudulent intent are matters within jury's ken.  Conviction affirmed because exclusion was harmless error.  Parties agree that psychologist's testimony satisfied Daubert's reliability standard.  Laypersons may be qualified to evaluate matters within their everyday experience, but scientifically valid social science testimony may be offered to show jurors that commonly held beliefs are incorrect.  Judges are not required to exclude expert testimony merely because it overlaps with areas of lay knowledge.  But exclusion of psychologist's testimony was harmless error, because other record evidence made it impossible for any reasonable jury to conclude that husband was ignorant of fraudulent scheme.

Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001).  Prisoner brings civil rights action alleging that year-long loss of yard privileges resulting from four disciplinary infractions violated constitutional prohibition against cruel and unusual punishment.  At trial, prisoner testifies that lack of exercise caused his teeth to fall out.  Jury awards damages.  Admissibility reversed.  There was no constitutional infraction, and defendants were moreover immune.  Incidentally, prisoner possessed no expertise that would make him competent to testify on causal relation, if any, between lack of exercise and poor gums.  Anyway, it was just one tooth.

Goodwin v. MTD Prods., 232 F.3d 600 (7th Cir. 2000).  Operator of lawnmower suffers eye lacerations when lawnmower discharges plastic wing nut at high velocity.  At resulting products liability trial, defendant offers testimony from engineer who serves as defendant's corporate vice-president.  District court refuses to let engineer testify on cause of eye laceration, or to opine on credibility of plaintiff's claim that he was in operator's zone behind lawnmower when accident occurred.  Exclusion affirmed.  Engineer had no medical training that would qualify him to render opinion on cause of eye laceration, and issue of plaintiff's credibility was for jury.

Adams v. Ameritech Servs., Inc., 231 F.3d 414 (7th Cir. 2000).  In "disparate treatment" age discrimination suit, district court excludes plaintiffs' statistical evidence and awards summary judgment to defendant employers.  Exclusion reversed.  Plaintiffs' statistical evidence may not have been sufficient by itself to show disparate treatment, but that does not render their statistical proof irrelevant or inadmissible -- "a brick is not a wall."  Likewise, it may be "odd" that plaintiffs' statistician did not perform regression to isolate age as factor in termination decisions, but multiple regression is just one reliable statistical method, with problems of its own, and other reliable statistical methods exist.  District court's exclusion of plaintiffs' statistical evidence must be reversed notwithstanding district court's "herculean" efforts to wade through voluminous record.  Lengthy discussion of statistical proof in age discrimination cases.

NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776 (7th Cir. 2000).  Food manufacturer sues neighboring machine shop for dumping hazardous wastes that migrated to food manufacturer's site.  Food manufacturer offers hydrologist [?] to testify to source of wastes.  Admissibility affirmed.  Hydrologist could rely in part on aerial photographs to confirm his hypothesis re history of dumping.  Use of aerial photographs is generally accepted in field, and expert had twenty years of experience interpreting them.  Defendant also argues that hydrologist lacked direct knowledge of wastes' source, but as expert witness, hydrologist was not required to have personal knowledge, but could reach conclusions on source of waste based on chromatography and groundwater migration test results.

United States v. Cruz-Velasco, 224 F.3d 654 (7th Cir. 2000), cert. denied, 540 U.S. 909 (2003).  At drug trafficking trial, DEA agent testifies re nature, structure, and characteristics of drug trafficking organizations.  Admissibility affirmed.  Law enforcement agents can testify re attributes of drug organizations based on training and experience.  Defendant says agent offered testimony specifically relating to Hispanic drug trafficking organizations, and that such testimony was improper because agent lacked sufficient experience with Hispanic organizations and also because testimony improperly injected potentially prejudicial issue of ethnicity.  But agent did not opine on specifically Hispanic organizations.  He merely mentioned that he had investigated Hispanic drug organizations in past.

Tuf Racing Prods., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585 (7th Cir. 2000).  Plaintiff in franchise termination suit offers CPA to estimate damages.  Admissibility affirmed.  Defendant complains that CPA held no degree in economics, statistics, mathematics, or any other academic field that would qualify him to perform damage calculations.  But idea that Daubert requires some particular form of credentials for expert witnesses is radically unsound.  Rules of evidence do not require that experts have particular academic training or opine on questions of "science."  Anyone with relevant expertise may be qualified, and Daubert holds only that if expert testifies on scientific questions, expert's testimony must be based on real science, not junk science.  This expert was not doing science, he was doing accounting.  Based on financial information furnished by plaintiff and assumptions supplied by counsel, he calculated discounted present value of lost future earnings.  Accountants are qualified to do that.

Bourelle v. Crown Equip. Corp., 220 F.3d 532 (7th Cir. 2000).  Workers are injured when pallet falls into forklift operator's compartment.  In products liability claim against forklift manufacturer, workers offer engineer to testify that forklift was defective because it lacked more extensive guarding, and also because it should have carried warning re falling pallets.  District court excludes testimony and awards summary judgment to defendant.  Exclusion affirmed.  Expert was qualified but admitted he performed no testing or studies re his proposed alternative design, that no lab or organization had tested his theories, that no other manufacturer had incorporated his proposed design, and that he had not reviewed any industry studies of accident experience with this forklift.  He never saw or inspected the forklift at issue (except in pictures and videotapes), observed forklift in operation, prepared any drawings re his alternative design theory, conducted any computer analysis, or submitted his proposed alternative design to American National Standards Institute.  His investigation consisted merely of reading depositions of plaintiffs and other persons with knowledge of plaintiffs' accidents, and reviewing manufacturer's manufacturing and service documents, sales brochures, training manual, and engineering drawings.  District court did not err in emphasizing failure to test, and engineer's testimony on design issues did not satisfy other Daubert factors anyway.  As to engineer's opinion on warning, engineer admitted he had not drafted any warning, and he could propose no language for warning at deposition.  Far from constituting abuse of discretion, district court's exclusion of engineer's opinion on warning was absolutely correct.  "Talking off the cuff -- deploying neither data nor analysis -- is not acceptable methodology."

United States v. Brumley, 217 F.3d 905 (7th Cir. 2000).  District court permits DEA agent to opine in drug trial that based on agent's seven years of law enforcement experience, including roughly one hundred methamphetamine investigations, possession of ounce or more of methamphetamine is possession in dealer quantities.  Admissibility affirmed.  DEA agent did not purport to have knowledge of defendant's mental state, and district court limited questioning of DEA agent to areas where he was qualified to opine.

United States v. Crotteau, 218 F.3d 826 (7th Cir. 2000).  In bank robbery trial, district court excludes defense psychologist's opinions on eyewitness testimony, as well as another putative expert's opinion re height of bank robber seen on surveillance video.  Exclusion affirmed.  Psychologist says that teller's eyewitness memory may be suspect by reason of post-traumatic stress disorder.  But district court did not abuse discretion in excluding expert evidence re reliability of eyewitness testimony, where: (a) defense had opportunity to cross-examine teller; (b) jury received cautionary instruction on limits of eyewitness testimony; and (c) corroborating evidence tended to confirm that defendant was robber.  Defendant's putative expert on height of bank robber, meanwhile, was high-school dropout, had no formal training on computer software he used, did not consider himself expert, relied on poor quality copies of videotapes, and failed to take appropriate measurements (e.g., of teller) at bank.

Lang v. Kohl's Food Stores, Inc., 217 F.3d 919 (7th Cir. 2000), cert. denied, 531 U.S. 1076 (2001).  Kohl's pays personnel in its produce departments more than employees in its bakery and deli departments.  Employees in produce are mostly men; in bakery and deli departments, mostly women.  If  jobs involve substantially equal tasks, performed under similar conditions, then this pay disparity might violate federal Equal Pay Act.  Class representatives offer testimony from Ph.D. in labor relations and economics, Dr. Howard Risher, who opines that jobs in all three departments are essentially identical.  District court excludes testimony as unhelpful to trier of fact.  Via special interrogatory on "equal jobs" question, jury returns verdict for Kohl's.  Exclusion affirmed.  Dr. Risher's report, which runs to only three pages, merely lists employees' duties and advances unreasoned assertion that listed duties are virtually identical.  District court could properly find that this conclusory characterization would not assist jury.  In supplemental report, Dr. Risher also offers analysis based on "focus group" of female workers, but merely parroting class members' own opinions involves no exercise of expertise.  Supplemental report also says Dr. Risher analyzed jobs under Willis job evaluation system, but does not explain what that system is or how it was applied.   

Weir v. Crown Equip. Corp., 217 F.3d 453 (7th Cir. 2000).  More Seventh Circuit forklift jurisprudence.  (See Dhillon and Bourelle, supra.)  Woman whose foot was injured in workplace forklift mishap offers testimony from engineer that low-speed collision would not have caused woman's foot to protrude from operator compartment if forklift were equipped with rear barrier or door, like some other forklifts from same manufacturer.  Exclusion affirmed.  District court properly concluded that "barrier" evidence was irrelevant because no credible foundation established that impact was what caused woman's foot to be outside forklift.  Likelier scenario is that woman was hopping from her forklift in order to move another, parked forklift, in violation of safety rules.

Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000).  Driver is injured in crash when steering mechanism in van malfunctions.  At products liability trial, driver offers testimony from mechanical engineer who attributes loss of steering to internal gearbox failure.  Driver also offers metallurgical engineer, who has tested gearbox and opines that gearbox failed due to torsion bar overload and that using different metal for torsion bar would have been better choice.  Neither expert can say whether defect should be characterized as design defect or manufacturing defect.  On day of trial, district court excludes testimony from both experts, because neither claims to be gearbox expert or automotive engineer, because their work has not been published or peer reviewed, and because neither will opine on ultimate issue of whether alleged defect is one of design or one of manufacture.  District court then declines plaintiff's request for continuance to find new experts and awards summary judgment to defendant.  Exclusion reversed.  Witnesses concededly were not automotive engineers, but their expertise was nevertheless relevant, and district court appears to have focused inappropriately on peer review and publication, which may be less significant in this context than acceptance of experts' theories in engineering and accident analysis communities.  Nor need expert opine on ultimate issue of design defect versus manufacturing defect for testimony to be admissible.   Because exclusion of witnesses is reversed, court of appeals need not reach issue of whether continuance should have been granted to find new expert witnesses.  However, in cases heavily reliant on expert evidence, trial courts should set discovery and trial schedules that give litigants realistic opportunity to develop such evidence and to locate experts who meet Daubert's requirements.

Ramsden v. Agribank, FCB, 214 F.3d 865 (7th Cir.), cert. denied, 531 U.S. 1036 (2000).  Plaintiffs file state court action against various defendants alleging tortious conduct in sale to them of agricultural property.  State trial court dismisses claims and plaintiffs appeal.  While appeal is pending, plaintiffs file second state court action against Agribank only.  Agribank removes second action to federal court.  Plaintiffs then amend complaint in federal court to allege their cattle were poisoned by benzene in water on land that Agribank sold to them.  District court excludes testimony from plaintiffs' experts and awards summary judgment to defendants.  Meanwhile, however, state appellate court reverses dismissal of first action and remands, whereupon Agribank invokes federal decision and argues claim preclusion.  State court declines to give preclusive effect to federal judgment, because testimony from plaintiff's experts would be admissible under state's more lenient evidentiary standards.  Agribank then returns to federal court and requests that district court enjoin state action.  Federal district court grants injunction.  Reversed.  District court violated Anti-Injunction Act, and gave inadequate weight to comity concerns, in enjoining state court action after state court had already ruled on res judicata issue.

United States v. Gardner, 211 F.3d 1049 (7th Cir. 2000).  At arson trial, government expert on causes and origins of fires testifies that faulty electrical wiring did not cause fire and that burn pattern was consistent with use of accelerant.  Admissibility affirmed.  Expert testified he relied on 120 photographs, reports from fire scene investigators, and personal interviews, and that such sources are commonly consulted in field of arson investigation to determine causes and origins of fires.

Walker v. Soo Line R.R., 208 F.3d 581 (7th Cir.), cert. denied, 531 U.S. 930 (2000).  Employee is struck by lightning while working in railroad tower and subsequently suffers from psychological damage and impaired ability to work.  In FELA action against railroad, district court excludes testimony from plaintiff's psychologist re plaintiff's pre-accident IQ, because psychologist did not examine plaintiff before accident, and also because psychologist relied in part on erroneous account of plaintiff's educational history.  District court also excludes testimony from plaintiff's physician, because physician relied in part on psychologist's inadmissible findings, and also because physician, being neither psychiatrist nor psychologist, is unqualified to opine that plaintiff suffers from post-traumatic stress disorder (PTSD).  Plaintiff's electrical engineering expert attempts to testify to how lighting striking at various locations in railroad yard would have injured plaintiff, but district court permits engineer to testify only re scenarios involving direct lightning strike on tower.  Defendant's expert physician is permitted to testify re plaintiff's post-accident condition.  Jury finds for defendant.  Exclusion of plaintiff's expert testimony reversed and admissibility of defense expert's testimony affirmed.  To estimate plaintiff's pre-accident IQ, psychologist administered National Adult Reading Test -- which is specifically designed to estimate pre-trauma IQ -- and patient's self-reported educational history, even if inaccurate, is type of information on which psychologists commonly rely.  Psychologist therefore employed legitimate methodologies in estimating pre-accident IQ, and any weaknesses in testimony were grist for cross-examination and jury evaluation.  Plaintiff's physician was entitled to rely on input from other members of medical team she headed, and mere fact that another of plaintiff's experts disagreed with physician's PTSD diagnosis does not render diagnosis inadmissible.  Engineer should have been permitted to testify to different scenarios where lightning struck railroad yard in various locations, even though unable to opine on exactly where lightning did strike.  Jury could then hear conflicting eyewitness testimony on actual location of lightning strike and apply engineer's testimony in light of their factual conclusion on subject.  Defendant's physician was entitled to rely on medical records in opining on plaintiff's condition, without examining plaintiff.  Remanded for new trial.

Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th Cir. 2000).  Worker slips and falls on construction site.  At trial of personal injury action against contractor, worker offers testimony from three physicians that fall caused his chronic pain syndrome (CPS).  District court excludes testimony because physicians lack suitable foundation for causal attribution.  Jury finds for defendant.  Exclusion reversed.  Defendant says physicians cannot rely exclusively on temporal relationship between accident and symptoms in cases where biological mechanisms of causation are not well understood, and also that physicians improperly relied on dishonest statements re onset of symptoms supplied by plaintiff when he gave medical history.  But there was medical testimony that temporal association between accident and symptoms was sufficient to ground this diagnosis, and physicians routinely rely on medical histories provided by patients.  District court was too aggressive in its gatekeeping.

United States v. Lanzotti, 205 F.3d 951 (7th Cir.), cert. denied, 530 U.S. 1277 (2000).  Defendants purchase video and poker machines, convert them to gambling devices, place them in bars, and split proceeds with bar owners.  Jury convicts them on federal gambling charges after trial court excludes their expert witness, James Jordan.  Exclusion affirmed.  Defendants did not establish expert's credentials.  In fact, Jordan works for Illinois Liquor Control Commission, which does not qualify him to opine on whether devices at issue are illegal.

Elliott v. Commodity Futures Trading Comm'n, 202 F.3d 926 (7th Cir.), cert. denied, 531 U.S. 1010 (2000).  Enforcement Division of CFTC charges several futures traders with engaging in pre-arranged, non-competitive "wash" trades to freshen their positions.  In proceedings before ALJ, Enforcement Division offers testimony from its investigator, who presents undisputed facts re underlying trades and then explains why inference of collusion should be drawn based on such circumstantial features as size and pattern of trades, absence of gains or losses, and audit trail irregularities.  Traders protest vigorously that trades were all executed by open outcry in pit.  ALJ finds in traders' favor, but CFTC reverses.  Affirmed.  If petitioners had raised and preserved Daubert objections to investigator's testimony, Seventh Circuit would be inclined to agree, because investigator's quantitative case was thinly argued and poorly documented.  But CFTC does not appear to have relied on investigator's opinion testimony.  This is appropriate, because principle for which Daubert and Kumho stand -- i.e., that all expert testimony must be reliable -- "should apply with equal force to the weight a factfinder accords expert testimony."

Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir.), cert. denied, 531 U.S. 821 (2000).  Disparately impacted by Chicago Police Department's lieutenant's exam, black and Latino officers bring civil rights suit.  Police department offers testimony from psychologist to establish that lieutenant's exam has "content validity."  Admissibility affirmed.  Expert has extensive academic and practical experience in designing employment evaluations and has authored over fifty articles on subject for peer-reviewed journals.  His opinion was based on meticulous job analysis that compared skills measured in exam and skills required for effectiveness as police lieutenant.

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