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Sixth Circuit (last Shepardized on 3/25/06)

Explanation of the statistics
Admissibility affirmance rate:    .960     (48/50)
Exclusion affirmance rate:    .744     (29/39)
Overall affirmance rate:    .865     (77/89)

United States v. Younes, No. 05-1348 (6th Cir. Sept. 5, 2006) (unpublished).  Criminal defendant attempts to introduce unilaterally conducted exculpatory polygraph.  District court excludes evidence as unreliable and also as more prejudicial than probative.  Exclusion affirmed.  Sixth Circuit has taken dim view of polygraphy's reliability.

United States v. Lopez-Medina, No. 05-5891 (6th Cir. Aug. 25, 2006).  At narcotics trial, two DEA agents testify as fact witnesses and also as experts re common practices of narcotic traffickers.  Jury convicts.  Admissibility affirmed.  Defendant's reliability objections are unavailing; both agents had years of training and experience.  Defendant also objects, however, that no clear distinction was drawn at trial between lay and expert components of their testimony, nor any cautionary instruction issued.  This was clear error, and it was not harmless.  Remanded for new trial.

United States v. Whitmore, No. 05-6331 (6th Cir. Aug. 25, 2006) (unpublished).  At sentencing phase, police officer testifies over defendant's objection that marijuana packaged in small baggies suggests possession with intent to distribute.  Admissibility affirmed.  Federal Rules of Evidence do not apply at sentencing phase.  In any event, testimony from narcotics officers on modus operandi of drug dealers is generally held to be reliable.

Tharo Sys., Inc. v. Produkttechnik GmbH & Co., Kg, No. 05-3876 (6th Cir. Aug. 24, 2006) (unpublished).  In dispute over breach of commercial contract, district court overrules defendant's Daubert objection to testimony from plaintiff's damages expert, accountant Robert Brlas.  Jury finds for plaintiff and defendant appeals.  Admissibility affirmed.  Defendant says Brlas was unqualified because record did not establish his familiarity with German accounting principles, but nothing in record contradicts Brlas's testimony that there are no material differences between German accounting rules and those prevalent in United States.  Nor did district court err in rejecting defendant's various reliability arguments.

Rolen v. Hansen Beverage Co., No. 05-6405 (6th Cir. Aug. 23, 2006) (unpublished).  Were plaintiff's acute stomach problems caused by drinking Natural Red Berry Juice Blast?  To show causation in products suit against juice manufacturer, plaintiff offers testimony from his treating physician, Dr. Mark Houston, who opines that plaintiff's symptoms were probably caused by staphylococcal toxic poisoning resulting from ingestion of defendant's juice.  District court excludes testimony as unreliable and grants summary judgment to manufacturer.  Exclusion affirmed.  Witness employed no discernible methodology except for fallacious "post hoc, ergo proper hoc" reasoning.  His examination and testing of plaintiff turned up nothing abnormal.  He admitted that testing juice for contaminants would be desirable, but he did nothing to test juice himself, and he said that actual tests conducted by defendant of juice from same lot, which detected nothing amiss, did not affect his opinion.  He also testified that onset of staphylococcal toxic poisoning would normally occur between one and twelve hours after ingestion, whereas plaintiff's symptoms commenced within twenty minutes.  No abuse of discretion.   

Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549 (6th Cir. 2006).  To show damages, plaintiff in action under Family and Medical Leave Act calls hairdresser, who testifies as lay witness about potential earnings of area cosmetologists.  Trial court finds for plaintiff in bench trial.  Admissibility affirmed.  Defendant complains that hairdresser's testimony should have been subject to scrutiny as expert, because she employed specialized knowledge.  But in fact she testified based on her own knowledge and perceptions.  Even if it had been error to admit her testimony as lay opinion, it would have been harmless error in this bench trial, where judge used her testimony to reduce plaintiff's award.

United States v. Nichols, No. 04-4186 (6th Cir. July 6, 2006) (unpublished).  Jury convicts narcotics defendant after police officers testify as experts re methods of drug dealers.  Admissibility affirmed.  Defendant says officers were too inexperienced to testify as experts.  But officers had been trained in narcotics and served in special narcotics unit.  Both had over two years' experience on job, and both had investigated 60-80 cases.

In re Meridia Prods. Liab. Litig., 447 F.3d 861 (6th Cir. 2006).  On summary judgment in multi-district products liability litigation, plaintiffs offer expert testimony from pharmacologist Arnold Schwartz, Ph.D.  District court permits him to opine that Meridia increases blood pressure but bars his opinion that its health risks outweigh its benefits.  District court then awards summary judgment to defendants.  Exclusion affirmed.  Although eminently qualified in pharmacology, witness lacked expertise to opine on health effects of high blood pressure, and his opinions on that subject lacked foundation and rested on subjective judgments.

Churchwell v. Bluegrass Marine, Inc., No. 05-5185 (6th Cir. Apr. 21, 2006).  Cook in ship's kitchen spills can of hot grease, slips on same, and is injured.  She sues vessel's owners.  To show negligence, she relies on testimony from Dr. Thomas R. Huston, industrial engineer and human factors expert, who opines that cook should have been given grease container with handle, and that kitchen should have been equipped with grease mat.  On summary judgment, vessel owners move to strike engineer's testimony as irrelevant.  Cook opposes summary judgment but does not oppose motion to strike.  District court excludes expert's testimony and awards summary judgment to owners.  Exclusion affirmed.  District court erred in its ruling that evidence of safer workplace alternatives was irrelevant.  But cook failed to oppose owners' motion to strike and thereby waived error on appeal.  However, cook offered other evidence sufficient to create genuine factual issue, and so summary judgment is reversed. 

Halvorsen v. Plato Learning, Inc., No. 05-5325 (6th Cir. Feb. 15, 2006) (unpublished).  Plaintiff in employment suit offers psychological autopsy from "Dr. Walker."  District court excludes testimony and awards summary judgment.  Exclusion affirmed.  Expert relied entirely on anecdotal evidence, did not review medical records, and admitted she had never performed any psychological autopsy before.

Brown v. Raymond Corp., 432 F.3d 640 (6th Cir. 2005).  In workplace forklift collision, wheel well enters forklift's operator compartment, resulting in foot injury requiring amputation.  Worker sues forklift manufacturer on defective design theory.  On summary judgment, worker offers testimony from two experts.  Lawyer and industrial engineer Dr. Michael Romansky opines that manufacturer could have identified problem and eliminated hazard, but admits lack of expertise in forklifts and offers no alternative design.  James Driver, experienced forklift operator, testifies that manufacturer's warnings were inadequate, but has neither proposed nor tested any alternative warning.  District court excludes testimony from both experts and awards summary judgment to manufacturer.  Exclusions affirmed.  No abuse of discretion.

Hopson v. DaimlerChrysler Corp., No. 04-2152 (6th Cir. Nov. 15, 2005) (unpublished).  In support of his Title VII claim alleging racial discrimination, employee offers statistical testimony from John Sase, Ph.D.  District court excludes testimony and awards summary judgment to employer.  Exclusion affirmed.  District court permissibly found that Sase knew nothing about employer's filling of jobs involved and that his statistical analysis did not take nondiscriminatory variables into account.

One Beacon Ins. Co. v. Broad. Dev. Group, Inc., No. 04-5517 (6th Cir. Aug. 29, 2005) (unpublished).  Central Tower ("Central") designs broadcast tower and manufactures component parts.  Its sister company, Ryan Construction ("Ryan"), bolts parts together into 20-foot sections at site.  Ryan hires Broadcast Development Group ("BDG") to assemble tower from 20-foot sections.  Tower collapses during construction when guy wires slip.  Ryan's insurer pays and sues BDG for negligence.  BDG counterclaims against Central and Ryan, alleging that their negligent design and manufacture caused tower to collapse.  In particular, BDG alleges welds holding flanges to legs were too small.  In support, BDG offers three experts: (1) metallurgist Richard Roberts, who inspected some welds and says they were poorly executed, as well as being smaller than Central's design required, perhaps because diagrams given to welders were confusing and inaccurate; (2) tower design expert Dr. Joseph Vellozzi, who opines that if tower had been built as designed, bolts should have failed before welds; and (3) structural engineer Ernie Jones, who says that if tower were constructed as designed, guy wire slippage would not have caused collapse.  District court admits testimony from all three experts over insurer's objections.  Jury allocates 75% of fault to Central and 25% to BDG, and damages are apportioned accordingly on claims and counterclaims.  Insurer appeals.  Admissibility affirmed.  Insurer complains that Roberts did not opine on ultimate issue of causation, but his testimony was relevant to defects in welding and how those defects arose.  So too with Dr. Vellozzi; he did not opine on ultimate causal issue, but his testimony was relevant to show nonconformity to tower's planned design.  Insurer complains that Jones's testimony relied in part on "guesstimates," but insurer has not shown that figures at issue were based solely on guesswork.  Insurer's other arguments to weight, not admissibility.  No abuse of discretion.

Cole v. Reader's Digest Sales & Servs., Inc., No. 04-1788 (6th Cir. Aug. 5, 2005) (unpublished).  In support of gender and age discrimination claims, plaintiff offers expert testimony from her husband, Edmund Cole.  District court strikes his testimony because he has "an obvious bias in favor of his spouse" and awards summary judgment to defendant.  Exclusion reversed.  Witness's alleged conflict of interest goes to weight, not admissibility.  But exclusion of husband's testimony was harmless error.  

Mohney v. USA Hockey, Inc., No. 04-3227 (6th Cir. July 14, 2005) (unpublished), cert. denied, 74 U.S.L.W. 3530 (U.S. 2006).  Teenage hockey player suffers quadriplegia after crashing into boards while wearing helmet of defendant's manufacture.  In products liability suit, plaintiff offers testimony from biomechanical engineer Dr. Richard Collins and mechanical engineer Norman Johanson.  District court excludes Dr. Collins's testimony in its entirety as unreliable, and excludes Johanson's testimony in part.  Plaintiff appeals from ensuing award of summary judgment to defendants.  Exclusions affirmed.  Dr. Collins performed Newtonian calculations to support his conclusion but conducted no testing (he said that testing was feasible but was not authorized by plaintiff).  His theory that helmet could contribute to this injury from this type of impact is not supported by published, peer-reviewed literature, and is not generally accepted.  And he admitted he did not employ actual data as inputs for his calculations -- only "illustration of parameters" (i.e., estimates).  As for Johanson, he performed no tests to support excluded portion of his testimony, but relied on visual inspection and measurements of helmet and mask.  No abuse of discretion.

Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784 (6th Cir. 2005), cert. denied, 74 U.S.L.W. 3503 (U.S. 2006).  Pilot is fatally injured in helicopter crash.  Widow attributes accident to failure of gyroscope and sues its manufacturer.  In support, she offers testimony from accident investigator Douglas Herlihy, who opines that gyroscope failure was likeliest cause of accident.  Jury finds for plaintiff.  Admissibility affirmed.  Manufacturer says district court erred in admitting Herlihy's testimony because it found that he was not qualified as gyroscope expert.  But district court held Daubert hearing and concluded that Herlihy was competent to testify as accident investigator and to opine on cause of crash.  However, because plaintiff produced insufficient evidence at trial to sustain claim of defective manufacture, judgment is reversed.

Bureau v. State Farm Fire & Cas. Co., No. 03-1830 (6th Cir. May 5, 2005) (unpublished).  Thunderstorm damages roof of home, causing water damage.  Homeowners' insurer pays claim.  Mold later develops in house and insureds file new claim.  Insurer denies second claim, contending that mold was caused by insureds' failure over time to maintain or repair roof, not by specific damage to roof caused in thunderstorm.  In support, insurer offers expert testimony from structural engineer Michael Newman, who opines that roof should have been repaired years earlier, and that delay in its replacement was significant factor contributing to moisture in house.  District court denies insureds' motion to exclude engineer's testimony, and jury finds for insurer.  Admissibility affirmed.  Insureds say district court summarily denied their Daubert motion, abdicating its gatekeeping function.  But district court convened hearing, said it had thoroughly reviewed motion as well as expert's deposition, and showed familiarity with engineer's testimony.  Nor was district court required to enter detailed findings.  Engineer relied primarily on his visual inspection of premises, not sophisticated scientific methods, and cross-examination was sufficient to explore any limitations in his relatively uncontroversial techniques.  No abuse of discretion.

Stone Transport, Inc. v. Volvo Trucks N. Am., Inc., No. 03-1886 (6th Cir. Apr. 18, 2005) (unpublished).  Trucking company buys numerous trucks from Volvo.  Trucks require frequent repairs under their warranties because of defective parts, and Volvo takes unreasonably long time to effect repairs.  Trucking company sues for consequential damages and, alternatively, for loss of business value, offering expert evidence in support of latter damage measure.  District court denies motion to exclude expert's testimony.  Jury awards damages under both theories.  Court reduces award by amount of award for lost business value, to prevent double recovery, and denies Volvo's post-trial motion for JMOL.  Volvo appeals.  Admissibility reversed.  It was plain error to admit expert testimony that district court itself said was so methodologically flawed as to enjoy "no basis whatsoever."  But error was harmless because it went only to issue of lost business value, and record supported jury's award of consequential damages.

United States v. Damrah, 412 F.3d 618 (6th Cir. 2005).  In prosecution against Islamic scholar for obtaining citizenship under false pretenses, prosecution offers testimony from terrorism expert Matthew Levitt.  District court admits testimony over defendant's objection and jury convicts.  Admissibility affirmed.  Defendant says expert relied on unreliable hearsay from books, press reports, and government publications.  But expert did not present any inadmissible hearsay evidence to jury, defendant did not suggest alternative resources on which expert could have relied, and district court correctly observed that given secretive nature of terrorist activities, such alternative sources are difficult to imagine.  No abuse of discretion.

Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir.), cert. denied, 126 S. Ct. 338 (2005).  Police officer shoots man in mistaken belief that man is about to shoot his wife.  Man and wife sue city under section 1983, alleging policy of condoning excessive force.  To show existence of that policy, plaintiffs offer testimony from Phillip Davidson, who has experience with police operations, and who opines based on his review of 45 excessive force complaints against police department.  City moves to exclude testimony as unreliable, and for summary judgment.  District court discounts testimony as insufficient to create triable issue of fact and awards summary judgment to city, and therefore treats city's evidentiary objections as moot.  Affirmed.  Expert did not contrast number of complaints filed with number to be expected, or offer any qualitative analysis.  It is true, as plaintiffs contend, that his testimony was not "scientific" and that certain Daubert factors may therefore be inapplicable.  But Kumho Tire's guidance on nonscientific expert testimony does not imply that conclusory or unsupported opinions founded solely on expert's "experience" will necessarily be sufficient to withstand motions for summary judgment.

Hartley v. St. Paul Fire & Marine Ins. Co., No. 03-6208 (6th Cir. Dec. 21, 2004) (unpublished).  Did marina fire consuming seventeen vessels originate when houseboat owner negligently left his space heater on to keep his cat warm on cold wintry night?  In his petition for exoneration from liability, houseboat owner says he doesn't remember whether he turned off his space heater that particular night, but contends that fire originated on another vessel.  But insurers' expert on fire origins, Rick Franklin, opines that fire began on petitioner's houseboat.  Relying on that testimony, trial judge finds for insurers, and houseboat owner takes interlocutory appeal.  Admissibility affirmed.  Expert was not required to eliminate all other possible causes.  His failure to do so goes to weight, not admissibility.

Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), cert. denied, 126 S. Ct. 422 (2005).  In IDEA case brought by family of autistic student, trial court admits testimony from school district's expert on IDEA compliance, Dr. David Rostetter, and its expert psychologist [?], Dr. B.J. Freeman.  Court enters judgment for school district and plaintiffs appeal.  Admissibility affirmed.  Plaintiffs offer only factual arguments, not legal ones.  Meanwhile, Daubert is designed to "protect juries" and is largely irrelevant in bench trials.  In any event, trial court's evidentiary rulings did not constitute abuse of discretion.  Dr. Rostetter is nationally recognized expert in IDEA compliance, has published extensively in that field, helped draft original IDEA regulations, and has served as court-approved and court-appointed IDEA expert in numerous other cases.  Fact that Dr. Freeman was not involved in case until after ALJ's decision was entered is not determinative on admissibility of her testimony, so long as it was helpful in determining validity of original IEP.

B-T Dissolution, Inc. v. Provident Life & Accident Ins. Co., No. 03-3824 (6th Cir. Dec. 16, 2004) (unpublished).  In bench trial of suit on insurance policy, insured offers expert evidence on insurance industry practices.  Trial court says it will consider insurer's Daubert objection and evaluate what weight, if any, should be afforded to expert's testimony, and then renders judgment for insured.  Affirmed.  District court's ruling did not depend on expert's testimony, and insurer does not show how it was prejudiced.

Ellis v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004).  Plaintiffs bring nuisance claim after fugitive dust from steel mill migrates to their property.  To prove damages, plaintiffs offer testimony from expert Roger Meade.  Trial court admits testimony and awards damages.  Defendants appeal.  Admissibility affirmed.  Defendants complain that trial court did not apply Daubert factors in evaluating testimony.  But district courts do not err in omitting to mention Daubert factors that are not pertinent to specific testimony at issue.  Accurate assessment of local real estate market does not require peer review or extensive scholarly writing.  Defendants also note that expert applied wrong measure of damages (diminution in market value) before later applying correct one (diminution in value of use of property).  But district court awarded damages based on correct measure, and any flaw associated with expert's vacillation on damage measure was addressed through weight assigned by trial court to expert's testimony.  Finally, defendants protest that expert failed to consider alternative sources of dust.  But expert's testimony need not eliminate all other potential causes of injury to be admissible on causation.

Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976 (6th Cir. 2004), cert. denied, 125 S. Ct. 1731 (2005).  Following bypass surgery, patient suffers brain damage due to insufficient oxygen.  Patient sues various defendants, including pulmonologist responsible for post-operative respiratory care, alleging her injury was caused by premature removal of ventilation tube.  To show negligence by pulmonologist, patient offers testimony from Dr. W. Dudley Johnson.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion reversed.  District judge excluded testimony on theory that cardiac surgeon from Wisconsin cannot reliably opine on pulmonologist's deviation from standard of care in Tennessee unless familiar with medical literature or published standards governing that specialty.  But "Daubert 's role of 'ensuring that the courtroom door remains closed to junk science' . . . is not served by excluding testimony such as Dr. Johnson's that is supported by extensive relevant experience. Such exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability."

United States v. Swafford, 385 F.3d 1026 (6th Cir. 2004), cert. denied, 543 U.S. 1169 (2005).  In narcotics possession trial, DEA agent Frank Ledford testifies for prosecution that firearm found at defendant's premises is indicative of intent to distribute.  Detective Jimmy Smith also testifies for prosecution that dollar amounts written on business card correspond to cost for certain quantities of methamphetamine.  Jury convicts.  Admissibility affirmed.  No objection was raised below and so review is for plain error.  No abuse of discretion.

Nemir v. Mitsubishi Motors Corp., 381 F.3d 540 (6th Cir. 2004).  Crippled for life after auto accident, pediatrician sues Mitsubishi, alleging its seatbelt failed to function properly.  District court excludes testimony from plaintiffs' engineering expert, Dr. Thomas Horton, even though previous exclusion of same testimony on summary judgment was reversed by court of appeals.  See Nemir v. Mitsubishi Motor Sales of Am., Inc., No. 99-1907 (6th Cir. Mar. 2, 2001) (unpublished) (infra).  District court also bars plaintiff from calling court-appointed experts to testify at trial.  Jury finds for defendant.  Exclusion reversed.  Read our lips.  Dr. Horton's testimony is admissible.  It was also error to bar plaintiff from calling court-appointed experts.  Remanded for reassignment to new district judge and new trial.

Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004), cert. denied, 125 S. Ct. 1837 (2005).  Autistic man dies en route to hospital after police officers subdue him.  His father and sister sue police for using excessive force.  Over police officers' objections, district court permits testimony from plaintiffs' expert on police practices and procedures, Geoffrey Alpert.  Jury finds for plaintiffs.  Admissibility affirmed.  Police argue that expert lacked specialized knowledge helpful to trier of fact.  But expert is well-credentialed and has specific experience and expertise in police use of force.  Expert did not simply offer conclusory assessment but testified to detailed bases for his opinion, including nationally recognized police standards for use of force, as well as training received by officers in question.

Beck v. Haik, 377 F.3d 624 (6th Cir. 2004).  Man jumps or falls off bridge into river.  County sheriff's department bars private diving service from attempting rescue, but county undertakes only desultory rescue efforts of its own before later recovering drowned man's body.  His survivors sue county and offer testimony from Steven J. Linton, experienced dive rescue instructor, who opines that county's conduct indicates it did not intend to rescue decedent but only to recover his body, and also that private rescue service would have located drowning man promptly if permitted to try.  District court excludes testimony as unhelpful to trier of fact, and jury returns verdict for defendants.  Exclusion reversed.  District court correctly observed that county had no legal obligation to provide perfect rescue operations but was merely required to offer meaningful alternative to private rescue.  However, mere attempt at recovering body would fall far short of meaningful rescue alternative, and so expert's testimony would have assisted trier of fact.  Remanded for new trial.

Smith v. Toyota Motor Corp., No. 01-6585 (6th Cir. July 14, 2004) (unpublished).  In vehicle rollover case, trial court admits testimony from Toyota's accident reconstructionist, Dr. Greg Smith, who opines that vehicle's roof and window frame collapsed due to impact with log, and not because of any design defect.  Jury finds for Toyota and plaintiff appeals.  Admissibility affirmed.  Expert is highly qualified and experienced.  Plaintiff notes that expert found log and shattered glass at scene only during inspection conducted sixteen months after accident, and argues that expert did not establish that conditions at scene remained unchanged over that time.  Plaintiff cites cases excluding testimony about temporary conditions found at accident scene after substantial periods of time had passed, but those cases involved lay testimony, not experts.  Moreover, relevant conditions at instant scene were not so transient as to preclude admissibility.  Log and glass deposits were physically durable and carefully documented.  Length of time between accident and inspection went to weight of testimony, not admissibility.

United States v. Bugg, No. 03-5556 (6th Cir. June 29, 2004) (unpublished), cert. denied, 543 U.S. 975 (2004).  ATF agent testifies for prosecution about difficulty of lifting fingerprints from firearms.  Admissibility affirmed.  Defendant says agent was unqualified because he lacked training in fingerprint analysis.  However, agent did not testify on fingerprint analysis, but on difficulty of obtaining fingerprints from weapons.  On that subject, he was qualified.

United States v. Combs, 369 F.3d 925 (6th Cir. 2004).  In drug trafficking trial, Kentucky police officer Dan Smoot testifies for prosecution on modus operandi of drug dealers.  Admissibility affirmed.  Officer did not testify directly on subject of defendant's intent to distribute narcotics, as would be prohibited by Fed. R. Evid. 704(b).  Rather, officer testified to conduct consistent with intent, leaving it to jury to infer intent.  No abuse of discretion.

JGR, Inc. v. Thomasville Furniture Indus., Inc., 370 F.3d 519 (6th Cir. 2004).  Plaintiff in action for breach of contract offers testimony on lost profits and loss of business value from CPA James Gornik.  District court admits testimony as lay opinion and jury awards damages.  Admissibility reversed.  Courts have permitted owners and officers of businesses to offer lay opinion on damages, based on their familiarity with enterprise.  But plaintiff's witness was neither owner nor officer, and his testimony therefore should have been evaluated for admissibility as expert opinion under Fed. R. Evid. 702.  Remanded for new trial on damages.

Harrah's Entm't, Inc. v. ACE Am. Ins. Co., No. 02-6519 (6th Cir. May 27, 2004) (unpublished).  In opposing summary judgment on its claim under insurance policy, insured offers affidavits from two insurance experts who opine, based on legal dictionaries and publication from International Risk Management Institute, that policy was intended to cover loss.  District court refuses to consider affidavits because they offer only legal conclusions, and awards summary judgment to insurer.  Exclusions affirmed.  No abuse of discretion.

United States v. Thomas, No. 02-5078 (6th Cir. May 21, 2004) (unpublished).  Experienced DEA agent Jack Sparks testifies that 47 pounds of marijuana in defendant's possession is quantity consistent with commercial distribution, not personal use.  Agent also testifies to general use by drug dealers of high capacity weapons, cellular phones, pagers, and commercial vehicles.  Jury convicts.  Admissibility affirmed.  Law enforcement testimony on modus operandi of drug dealers is routinely admitted.  No abuse of discretion.

United States v. Beverly, 369 F.3d 516 (6th Cir.), cert. denied, 543 U.S. 910 (2004).  District court overrules bank robbery defendant's objections to expert testimony from "Dr. Melton" on mitochondrial deoxyribonucleic acid (mtDNA) identification, and jury convicts.  Admissibility affirmed.  It is true that mtDNA is less precise identifier than nuclear DNA, but basic methodology is similar, other courts have upheld mtDNA identification, and it enjoys general acceptance.  Defendant complains that lab was not accredited, but there is no evidentiary requirement for lab's certification by external agency, and expert is well-credentialed.  Defendant also says expert's procedures allowed room for contamination, but no evidence suggested contamination of sample in this case.  District court did not abuse discretion in permitting statistical testimony that less than one per cent of population would have same mtDNA pattern as hair recovered from bank robbery site, or in ruling that testimony's probative value outweighed any prejudicial effect. 

United States v. Demjanjuk, 367 F.3d 623 (6th Cir.), cert. denied, 543 U.S. 970 (2004).  In denaturalization proceedings, government offers expert testimony from "Dr. Sydnor" to support identification of defendant.  District court admits testimony in bench trial and enters judgment revoking defendant's citizenship.  Admissibility affirmed.  Defendant complains that district court failed to discharge its gatekeeping function because it did not evaluate reliability of expert's "archival search methodology."  But district court did not abuse discretion in admitting testimony, given its colloquy with defense counsel stating that trial court would consider defendant's objections in evaluating testimony's weight.

United States v. Donald, No. 02-6369 (6th Cir. Feb. 6, 2004) (unpublished), cert. denied, 541 U.S. 1054 (2004).  Man robs bank and leaves, but not before being captured on security videotape.  When police arrive at bank, witnesses give description of perpetrator.  Leaving bank to canvass neighborhood, police interview manager of nearby apartment building to inquire whether she has seen someone meeting witnesses' description.  Manager responds that she just made deposit at bank and noticed man from apartment building who meets eyewitnesses' description.  Police take man to teller, who cannot identify him.  Police later search man's apartment and find cash and other evidence.  At trial, police officer who has watched bank's security videotape testifies that man captured on videotape is man who robbed bank.  Jury convicts. Admissibility affirmed.  Defendant protests that officer's statement lacked foundation because officer lacked personal knowledge.  But standard for personal knowledge under Fed. R. Evid. 602 is low.  It is true that officer did not witness robbery.  But his testimony, which became necessary when teller could not identify defendant, was grounded in descriptions supplied by witnesses and his own observation of videotape.  Thus officer's testimony "was not simply conjecture, but was based on his personal observations and conclusions made during the course of his investigation."  Defendant also says officer's statement was actually expert opinion that should have been excluded under Fed. R. Evid. 702 because unhelpful to trier of fact.  But that objection was not raised at trial.  In any event, it was really permissible lay opinion under Fed. R. Evid. 701, because it concerned identification of suspect, an area within lay competence.  [Unless we are missing something, this opinion simply ignores Rule 701's failure to afford dispensation from the hearsay rule for lay opinion. -- ed.]

Regal Cinemas, Inc. v. W & M Props., No. 02-3450 (6th Cir. Jan. 27, 2004) (unpublished).  In trial of Regal Cinema's fraud action against shopping center developers, Regal presents testimony on lost profits from damage experts Robert Greenwald and James Barwick.  District court admits testimony and jury finds for Regal.  Admissibility affirmed.  Defendants complain that experts incorrectly accounted for effects of theater size and stadium-style seating on revenues, and also that Greenwald had no specific experience with movie theaters.  But Greenwald is CPA who has testified in fifty court cases, and defendants' other arguments amount to methodological quibbles, which were fully explored before jury.  No abuse of discretion.  

United States v. Rodgers, No. 02-3975 (6th Cir. Jan. 6, 2004) (unpublished), cert. denied, 541 U.S. 1055 (2004).  In bank robbery trial, prosecution presents criminalist's testimony on ballistics and footprint evidence.  Jury convicts.  Admissibility affirmed.  Because defendant raised no objection at trial, review is for plain error.  As regards footprint evidence, criminalist testified about his qualifications, his methods, and their general forensic acceptance.  As regards ballistics, it is true that prosecution laid little foundation for expert's opinion.  But expert did testify concerning his qualifications, and his "firing pin comparison" method was, at least, identified.

Coffey v. Dowley Mfg., Inc., No. 02-5454 (6th Cir. Dec. 18, 2003) (unpublished).  Plaintiff uses tool known as Super Hub Shark to remove hub from automobile wheel.  Bolts on tool fail during use, causing tool's jaws to strike plaintiff's ankles, knocking him backwards and injuring him.  In products liability action against tool's manufacturer, plaintiff offers testimony from Dr. Dale Wilson, professor of mechanical engineering.  Dr. Wilson opines that design of tool will cause bolts to fail when tool is configured to remove hubs and rotors.  District court strikes testimony on defendants' motion and awards summary judgment against plaintiff.  Exclusion affirmed.  Witness relied on method of "finite element analysis," which is purely analytical and involves no physical testing, and in which witness later admitted he was not an expert.  That assessment seems accurate, because witness's initial Rule 26 report contained gross errors that experts experienced with method would have spotted.  Even his revised testimony relied on "guesstimates" for parameter values and reflected no effort to test his conclusions.

United States v. Olender, 338 F.3d 629 (6th Cir. 2003).  Charged with possession of ammunition by felon, defendant offers testimony from criminologist, who seeks to comment adversely on police investigation, based on taped witness interviews, documents, and other evidence.  District court concludes that expert testimony is unnecessary on question whether defendant possessed ammunition, because fact witnesses can offer direct evidence on that point.  District court also declines to permit criminologist to offer lay opinion on same issues, because criminologist's testimony would lack requisite foundation in lay witness's personal knowledge.  Jury convicts.  Exclusion affirmed.  No abuse of discretion.

United States v. Henry, No. 01-6607 (6th Cir. July 30, 2003) (unpublished), cert. denied, 124 S. Ct. 1111 (2004).  Criminal defendant offers testimony from attorney Gerald Gulley concerning reduced sentences that prosecution's cooperating witnesses could expect in exchange for their testimony.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Fact that prospect of leniency at sentencing might incentivize perjury is not beyond commonsense understanding of average juror.

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

United States v. Redditt, No. 01-6401 (6th Cir. May 21, 2003) (unpublished), cert. denied, 540 U.S. 1134 (2003).  Carjacking defendant demands independent psychiatric evaluation, saying his low IQ rendered him incapable of understanding consequences of his actions at time of crime and also prevents him from assisting in his defense.   District court grants his request, but evaluation team finds defendant competent to assist in defense, able to understand right and wrong, and capable of appreciating consequences of his actions.  Prosecution proceeds, and jury convicts.  District court denies post-trial motion for new psychiatric evaluation, and says, at sentencing, that defendant's trial testimony "reveals that the conclusions of the [psychiatric] evaluation team were clearly correct. An individual not competent to stand trial could not have given the detailed and coherent testimony offered by the defendant."  Affirmed.  Defendant argues that psychiatric evaluation was never examined for reliability under Daubert, but district court did not rely on evaluation.  Rather, district court relied on its own observations of defendant to reach same conclusion.

Patterson v. Cent. Mills, Inc., No. 01-3551 (6th Cir. Apr. 30, 2003) (unpublished).  Boy is badly burned when t-shirt catches fire.  In suit against t-shirt's manufacturer and vendor, plaintiffs offer expert testimony on flammability warnings from Gordon Damant.  District court excludes testimony and jury finds for defendants.  Exclusion affirmed.  Witness had never written flammability warning labels for clothing, had no specific education re such warnings, and in fact had no experience with flammability warnings except those placed on mattresses and furniture. 

United States v. Sanders, No. 01-2646 (6th Cir. Mar. 7, 2003) (unpublished), cert. denied, 540 U.S. 852 (2003).  On trial for committing bank fraud in student loan applications, defendants object when prosecution offers handwriting analyst as expert.  District court qualifies witness as expert and jury convicts.  Admissibility affirmed.  Defense objected only to witness's qualifications, and so defense failed to preserve issue of testimony's reliability under Daubert for appeal.  In any case, district court did not err in admitting testimony from experienced handwriting analyst who carefully explained basis for his opinion.

United States v. Miller, No. 01-3959 (6th Cir. Feb. 7, 2003) (unpublished).  Did handgun found in defendant's possession in Ohio travel in interstate commerce?  ATF agent Nicholas Vouvalis opines for prosecution that it did, and jury convicts.  Admissibility affirmed.  Because defendant did not object to testimony at trial, review is for plain error.  Agent had extensive training and expertise as firearms interstate nexus expert, and explained that his opinion was based on markings on gun indicating it was manufactured in Spain and imported via New Jersey.

Sommer v. Davis, 317 F.3d 686 (6th Cir.), cert. denied, 540 U.S. 824 (2003).  Spinal fusion surgery ends badly.  Patient brings malpractice action.  Under Tennessee law, violation of local standard of care is necessary element of malpractice claim.  To resist summary judgment, patient offers testimony from Missouri physician, Dr. Matthew F. Fornet.  Defendants move to strike Dr. Fornet's testimony because he admits unfamiliarity with Tennessee standards of care.  District court grants motion to strike and awards summary judgment to defendants.  Exclusion affirmed.  At evidentiary hearing, Dr. Fornet admitted he was unacquainted with characteristics of relevant Tennessee medical community.

United States v. Trammell, No. 01-3027 (6th Cir. Dec. 2, 2002) (unpublished).  In narcotics trial, prosecutors offer FBI agent as expert in drug trafficking.  District court finds scope of claimed expertise to be overbroad, and determines admissibility on question-by-question basis.  Agent then testifies that amount of crack cocaine in defendant's possession exceeded normal quantities for personal use and was not "in a personal use form."  Jury convicts.  Admissibility affirmed.  Courts have routinely allowed law enforcement officers to testify as experts on narcotics trafficking because they possess knowledge and experience not within everyday experience of most jurors.

George J. Igel & Co., Inc. v. Occupational Health & Safety Review Comm'n, No. 01-3540 (6th Cir. Oct. 30, 2002) (unpublished).  Employee cleans truck alarm while dump bed is lifted, without locking device to prevent dump bed from falling and crushing employee.  Employer is cited for OSHA violation.  OSHA inspector testifies to ALJ that dump bed could fall, although employer contests inspector's expertise.  ALJ finds against employer.  Affirmed.  Expert testimony need not be offered to defend OSHA regulations, because agency's own expertise is owed substantial deference.

Clark v. Chrysler Corp., 310 F.3d 461 (6th Cir. 2002), vacated on other grounds, 540 U.S. 801 (2003).  Man dies after being thrown from Dodge pickup in crash.  In suit against vehicle manufacturer, decedent's estate offers testimony from engineers and accident reconstructionists Billy Peterson and  Andrew Gilberg.  Jury finds vehicle was defective in design and/or manufacture, and renders verdict for estate.  Admissibility affirmed.  Mr. Gilberg opined that door latch was defective in design, and that state-of-the-art door latch would have prevented decedent's ejection from pickup.  Chrysler objects that Mr. Gilberg conducted no tests specifically relating to accident, but he did examine vehicle, had extensive experience and knowledge of relevant door latch system, and provided detailed bases for his opinions.  Chrysler's similar objections to Mr. Peterson's similar testimony about vehicle's B-pillars also fail, for similar reasons.

Elswick v. Pikeville United Methodist Hosp. of Ky. Inc., No. 01-5611 (6th Cir. Oct. 24, 2002) (unpublished).  To resist summary judgment in malpractice action, plaintiff offers testimony from two nurses and one specialist in hospital administration.  District court refuses to entertain their testimony because none of it was disclosed in discovery, and because none of plaintiffs' experts is qualified to opine on causation.  Exclusion affirmed.  Court of appeals need not reach disclosure issue, because all three experts admitted lack of qualifications to opine on causation.

United States v. Tarwater, 308 F.3d 494 (6th Cir. 2002).  Accountant is convicted of making false statements to IRS after prosecution offers testimony from IRS agent Mary Barton that accountant underreported his income.  Admissibility affirmed.  District court did not abdicate its gatekeeping function, as appellant contends, but expressly and correctly found that agent applied reliable principles of bookkeeping and accounting.

Avery Dennison Corp. v. Four Pillars Enter. Co., No. 00-4020 (6th Cir. Sept. 3, 2002) (unpublished).  Avery sues Four Pillars for stealing its formulas for label adhesive and modifying them for use in Four Pillars' own products.  At trial, Avery offers putative lay opinion testimony from its own employee, based on "things he knows from his experience and work," re codes used by Avery to protect formulas, Four Pillars' decipherment of those codes, and cost of developing new adhesive.  Avery also offers opinion of economist John Neels re Avery's damages.  Jury returns verdict for Avery.  Admissibility affirmed.  Employee's testimony was given prior to amendment of Fed. R. Evid. 701 in 2000 to prohibit lay opinion testimony embodying scientific or other specialized knowledge subject to Rule 702.  Even assuming that sophisticated lay opinion testimony like employee's did fall subject to Daubert's requirements before amendment to Rule 701 took effect, employee's testimony passes muster.  Four Pillars says employee's cost figures were "estimated" rather than "proven," but this is not grounds for challenge under Daubert.  Employee employed reliable methods, and Four Pillars raises no real challenge to these.  As for economist, Four Pillars says his calculations were unreliable because premised on several questionable factual assumptions: i.e., that Four Pillars did misappropriate Avery's trade secrets, used them, and thereby reduced costs.  But these are not scientific facts whose validity could be assessed under Daubert, but rather central factual questions on liability that were properly presented to jury.  District court did not err in concluding that economist's assumptions did enjoy factual support. 

Pittman v. ANR Freight Sys., No. 00-2501 (6th Cir. Aug. 29, 2002) (unpublished).  Man is injured when truck rear-ends his auto.  In personal injury action against trucking company, defendant objects to testimony on injury causation from victim's treating physicians, and to testimony re psychological testing from Ph.D. in human relations.  Trial court overrules objections and jury returns verdict for victim.  Admissibility affirmed.  Defendants complain that physicians merely took patient history and did not perform independent tests or "differential diagnosis" eliminating other potential causes of victim's injuries.  But differential diagnosis is merely one permissible methodology for ascriptions of medical causation.  Physicians not only took patient history but also performed physical exams and consulted MRI results.  Likewise, psychological tests taken by plaintiff are generally used in field and have been subjected to review in published peer-reviewed journals.

United States v. LeBlanc, No. 01-1517 (6th Cir. Aug. 28, 2002) (unpublished).  Man charged with sexual assault of minor step-daughter offers testimony from psychologist Dr. Terence Campbell re unreliability of evidence gleaned from child interviews.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Some reasons given by district court for excluding testimony were questionable.  In particular, exclusion is not warranted on theory that expert's theories were based on "soft science" or lacked general acceptance.  But no record evidence suggested that interview of this child relied on suspect techniques discussed by expert, and so evidence was properly excluded as irrelevant and unhelpful to trier of fact.  Even if testimony were admissible, its exclusion would be harmless error, because other evidence overwhelmingly suggested guilt.   

Busch v. Dyno Nobel, Inc., No. 00-1808 (6th Cir. July 18, 2002) (unpublished).  In business dispute arising from failed joint venture, district court rejects testimony from plaintiffs' damages expert, Fredrich Pertner, on value of plaintiffs' business and amount of lost profits.  Exclusion reversed.  District court merely recited standard for admissibility under Daubert and ruled in conclusory fashion, after ten minutes of oral argument, that expert's testimony was wanting in reliability.  District court's ruling was wholly lacking in analysis of testimony.  This, together with district court's refusal to entertain plaintiffs' motion for rehearing or to consider plaintiffs' supplemental affidavit rebutting defendants' criticisms, constituted abuse of discretion.

Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768 (6th Cir. 2002), cert. denied, 537 U.S. 1148 (2003).  In antitrust action alleging monopolization of moist snuff market, Dr. Richard Leftwich opines for plaintiff re damages.  Jury returns verdict for plaintiff.  Admissibility affirmed.  Expert used regression analysis to test hypothesis that plaintiffs' growth was most suppressed in states where it had only small market share when defendants began their anticompetitive practices.  Regression analysis is accepted technique in antitrust damage analysis.  Defendants say expert did not account for alternative causes, but expert did rule out other causes for which data were available, including all potential causes raised by defendants' expert.

Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002).  Medical malpractice plaintiff in Tennessee diversity case offers expert testimony from Dr. Bernard Mittlemeyer, who is licensed only in Texas.  District court excludes testimony because Dr. Mittlemeyer is not competent witness under Tenn. Code Ann. § 9-26-115(b), which requires experts in medical malpractice cases to be licensed "in the state or a contiguous border state."  District court also holds that even if admissible, Dr. Mittlemeyer's affidavit would not create genuine issue of material fact, and awards summary judgment to defendants.  Exclusion affirmed.  Plaintiff argues that in diversity actions, admissibility of expert testimony is controlled by federal law, not state law.  But Tennessee's statute establishes requirements for witness competency, which are governed by state law in diversity cases under Fed. R. Evid. 601.  Moreover, Tennessee's rule does not conflict with Fed. R. Evid. 702; both can be applied.  Plaintiff argues that Tennessee's statute violates equal protection by treating similarly situated medical malpractice patients differently, but other courts have upheld Tennessee's rule against similar constitutional challenge.  District court did not abuse discretion in refusing to afford discretionary exception to Tennessee statute's requirements, or in refusing plaintiff more time to find substitute expert.  In any event, Dr. Mittlemeyer's affidavit was insufficient, because it asserted negligence only conditionally, on assumption that surgeon failed to suture, and no evidence existed to contradict medical records indicating that suturing was indeed done.     

Downs v. Perstorp Components, Inc., No. 00-5507 (6th Cir. Jan. 4, 2002) (unpublished). Man is accidentally splashed with Rubiflex (epoxy used in production of foam insulation) and is soon diagnosed with "chemical encephalopathy" by treating physician, Dr. Kaye H. Kilburn, who concludes after extensive testing that Rubiflex was cause of condition. In products liability action against Rubiflex manufacturer, plaintiff offers Dr. Kilburn as causation witness. District court excludes testimony as unreliable and awards summary judgment. Exclusion affirmed. Expert reached conclusion on causation before expert even knew what chemical components Rublifex contained, was unable to identify any specific component as cause, never ascertained dose to which plaintiff was exposed, cited to no scientific literature in support of expert's conclusion, and conducted no study or investigation to test hypothesis that Rubiflex or any of its components could cause plaintiff’s symptoms. Rather, expert simply concluded that temporal relationship between exposure and symptoms was enough.  District court did not abuse discretion in excluding testimony.

United States v. Smith, No. 00-5640 (6th Cir. Dec. 18, 2001) (unpublished), cert. denied, 535 U.S. 1059 (2002).  Defendants are convicted of bank robbery based on evidence including testimony from eyewitnesses and defendants' own girlfriends.  On appeal, defendants argue that police forensic technician should not have been permitted to testify re microscopic examination of hair samples.  Conviction affirmed.  Forensic technician admitted that hair sample comparison includes subjective elements, but even if admitting forensic testimony was error, it was harmless, because evidence overwhelmingly supported guilt. 

Gross v. Comm'r, 272 F.3d 333 (6th Cir. 2001), cert. denied, 537 U.S. 827 (2002).  Taxpayers challenge IRS valuation of gifts of stock in closely held subchapter S corporation.  At trial in U.S. Tax Court, experts for both sides agree on use of discounted future cash flow method, but disagree on how to factor in taxes, inasmuch as subchapter S corporations pay no federal income tax themselves, their income being passed through to shareholders.  Taxpayer experts favor "tax affecting" using assumed tax rate of 40%, arguing that this is required under Uniform Standards of Professional Appraisal Practice (USPAP).  IRS expert uses assumed tax rate of 0%, effectively not "tax affecting" at all.  IRS expert also concludes, based on challenged methodologies, that appraisal should apply "lack of marketability" discount of no more than 25%.  Trial court denies taxpayers' motion in limine.  Admissibility affirmed.  Taxpayers argue that "tax affecting" was generally accepted method as of date of gift in 1992, but record shows growing dispute in 1992 over validity of "tax affecting" for closely held corporations, and taxpayers' expert conceded that if valuing stock today, he would have to give further consideration to whether to tax affect at all.  Taxpayers' attack re "tax affecting" is more on correctness of IRS expert's valuation than on reliability of IRS expert's methodology.  As for marketability discount, taxpayers complain that IRS appraiser's empirical sample improperly included transactions occurring after gift, but those transactions occurred within one year of gift and could have been anticipated at time of gift.  Also, when IRS expert ran same analysis without post-gift transactions in his sample, he arrived at even smaller marketability discount.      

First Tenn. Bank, N.A. v. Barreto, 268 F.3d 319 (6th Cir. 2001).  Bank sues Small Business Administration (SBA) to enforce loan guaranty agreement.  SBA offers expert who testifies that Bank did not follow prudent banking standards.  Admissibility affirmed.  Bank contends expert did not satisfy Daubert criteria re testability, peer-review, publication, error rate, or general acceptance, but those benchmarks may be inappropriate to evaluation of nonscientific expert testimony (citing Kumho Tire).  This expert testified on subjects that do not lend themselves to scholarly review or traditional scientific evaluation, relying instead on over forty years of banking experience.  District court did not abuse discretion in admitting testimony.

United States v. Langan, 263 F.3d 613 (6th Cir. 2001).  Did eyewitness pick bank robber out of photo array because she remembered his face from robbery, or because she remembered him from later television appearance?  Defendant's expert on eyewitness identification is barred from testifying that identification could be mistaken as result of "unconscious transference."  Exclusion affirmed.  Sixth Circuit may be more hospitable than some appellate courts to expert evidence on eyewitness testimony, and has no per se rule against such testimony.  But district court did not abuse discretion in excluding this expert.  Witness's own article noted that "unconscious transference" theory enjoyed only "meager" empirical support and had "number of limitations" (including "limited external validity" and "limited generalizability").  Moreover, witness said nothing to rebut prosecution's attacks on theory.  District court therefore had basis to exclude testimony as unreliable.  Testimony was also potentially confusing and prejudicial.  Pitfalls of eyewitness testimony are known to most jurors, and cross-examination can bring them out.

Vaughan v. City of Lebanon, No. 99-6670 (6th Cir. Aug. 16, 2001) (unpublished).  Plaintiff sues alleging excessive use of force by law enforcement personnel.  Pursuant to Fed. R. Civ. P. 37(c)(1), trial court strikes expert affidavits offered by plaintiff to oppose summary judgment but not disclosed during discovery.  Exclusion affirmed.  Striking testimony was permissible sanction for nondisclosure, mooting issue of whether testimony would have been admissible under Daubert.  

Wayne v. Shadowen, No. 00-5608 (6th Cir. July 23, 2001) (unpublished).  Parents sue school district alleging constitutional violations and seeking compensatory and punitive damages after son is disciplined for writing series of unwelcome pornographic notes to fellow middle-school student.  To show alleged inferiority of education son would receive in internal school suspension classroom, parents proffer testimony from music teacher who never met son, parents, school personnel, or any other participant in relevant events, and who offers only conclusory value judgments without attempting to ground them in any scientific or other discipline.  Exclusion affirmed.  Trial judge did not abuse discretion in ignoring music teacher's testimony and awarding summary judgment to school district.  Implicitly, trial judge ruled that testimony was unreliable and/or irrelevant.

United States v. Glover, 265 F.3d 337 (6th Cir. 2001), cert. denied, 534 U.S. 1145 (2002).  Carjacking defendant objects when prosecution calls Agent Thomas Zimmer of National Insurance Crime Bureau to opine based on serial number that vehicle was manufactured outside Tennessee.  District court admits testimony and jury convicts.  Admissibility affirmed.  Defendant complains that interstate nexus was ultimate question of fact that should have been left to jury.  But ultimate decision whether to credit testimony did rest with jury.  Properly qualified expert may testify that vehicle was manufactured outside state where sold when essential element of crime is movement of vehicle in interstate commerce.

Garrett v. Watson, No. 00-6358 (6th Cir. June 18, 2001) (unpublished).  Rape convict seeks habeas corpus, arguing that state court should have convened Daubert hearing before admitting physician's testimony that convict had sexually transmissible disease.  Dismissal affirmed.  State supreme court ruled that no hearing was required because physician was not testifying to any STD test not generally accepted within scientific community.  This ruling was not based on unreasonable application of controlling precedent, and so conviction was supported under state evidentiary law.

Hardyman v. Norfolk & W. Ry., 243 F.3d 255 (6th Cir. 2001).  Railroad conductor and brakeman develops carpal tunnel syndrome (CTS), brings FELA action against employer.  Holding that expert testimony on causation must point to epidemiological or other scientific evidence establishing quantitative dose/response and/or threshold levels for relevant injury, district court excludes testimony from physician who performed differential diagnosis and from ergonomist who detailed workplace activities.  Holding further that causation may be proved only via direct expert testimony, district court awards summary judgment to railroad.  Exclusion reversed.  FELA's causation standard requires only proof that employer contributed in any way, however slight, to injury.  Notwithstanding absence of quantitative epidemiological data, differential diagnosis and ergonomics testimony were admissible on issue of causation.  In any event, district court erred in holding that causation may be proved only through direct expert testimony.  Even if no expert opined that workplace activities caused plaintiff's injury, jury could infer causation from expert testimony that CTS was generally associated with activities of the type plaintiff engaged in at work.

Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244 (6th Cir.), cert. denied, 534 U.S. 822 (2001).  In putative class action arising from exposure to polychlorinated biphenyls (PCBs), seven bellwether plaintiffs agree to trial of their personal injury claims before magistrate judge.  Plaintiffs offer two physician experts on medical causation: Dr. Kilburn, whose study analyzes sample of 98 persons from allegedly contaminated area (including bellwether plaintiffs) versus control group of 58 persons from elsewhere in Tennessee; and Dr. Hirsch, who has examined plaintiffs and testifies that their conditions were more likely than not caused by PCBs.  Magistrate excludes testimony from both physicians and awards summary judgment to defendants.  Exclusion affirmed.  Magistrate did not abuse discretion by failing to hold Daubert hearing, where matter was fully briefed and plaintiffs requested no hearing (citing Kumho Tire).  Nor did magistrate err by refusing to permit plaintiffs to cure deficiencies in their proofs (citing Weisgram).  Plaintiffs were on notice that their experts' testimony was challenged and had adequate opportunity to develop expert testimony and respond to challenges, yet never attempted to offer additional or substitute testimony.  Dr. Kilburn's testimony was properly found unreliable, because he failed to account for confounding factors, did not establish temporal relationship between exposure and illnesses, failed to show sufficient dose to make plaintiffs ill, and did not demonstrate general acceptance of his theories.  Magistrate properly gave weight to lack of peer review or publication of Dr. Kilburn's litigation study, even though Dr. Kilburn had authored and published other peer-reviewed studies.  Dr. Hirsch may have used valid diagnostic procedures to ascertain neurological impairment, but failed to offer reliable scientific support for his conclusion that PCB exposure caused those impairments.  In particular, Dr. Hirsch had no knowledge concerning plaintiffs' PCB exposures or their temporal relationship to onset of symptoms.  He also failed to account for confounding factors or identify specific scientific literature supporting his opinion on causation.  Magistrate properly rejected Dr. Hirsch's "circular reasoning" that because plaintiffs exhibited symptomatology and PCBs had been in plaintiffs' environment, PCBs must have caused plaintiffs' conditions.

Nemir v. Mitsubishi Motor Sales of Am., Inc., No. 99-1907 (6th Cir. Mar. 2, 2001) (unpublished).  Pediatric physician fastens seatbelt (he says) and drives Dodge Stealth for short distance before colliding with fence post or small tree at 18 m.p.h., is found in back seat with driver's side seatbelt unlatched, suffers major brain damage, sues Mitsubishi.  As his expert, physician retains former director of engineering for company that manufactured seatbelt.  Expert surmises that seatbelt was partially latched at time of accident and became unlatched, and testifies that this represents defective design.  Opinion is based on background work and education, observation and analysis of seatbelt in question, and analysis of exemplar seatbelts of same model.  After several oral arguments focusing primarily on expert's exemplar testing, district court excludes testimony in its entirety and awards summary judgment to defendant.  Exclusion reversed in part.  District court abused discretion in focusing on exemplar testing only.  Engineer offered other admissible testimony not based on exemplar testing, including testimony on mechanics of seatbelt latching, pertinent regulations, availability of alternative designs, physical evidence of plaintiff's frequent seatbelt usage, and testing of plaintiff's actual seatbelt.

Official Unsecured Creditors Comm. of Valley-Vulcan Mold Co. v. Ampco-Pittsburgh Corp. (In re Valley-Vulcan Mold Co.), No. 99-4129 (6th Cir. Feb. 26, 2001) (unpublished).  Creditors committee alleges fraudulent conveyance in adversary bankruptcy proceeding.  Bankruptcy court finds for defendants, relying in part on testimony from defendants' solvency expert.  Admissibility affirmed.  Creditors argue that field of solvency expertise is not widely accepted, but: (a) bankruptcy court expressed need for expert assistance; (b) courts have wide discretion to admit expert testimony under Daubert; (c) expert's qualifications were well-established; and (d) expert's valuations were based on well-recognized methodology for determining going-concern values (discounted cash-flow valuation).

Taulbee v. Wal-Mart Stores, Inc., No. 99-6690 (6th Cir. Feb. 21, 2001) (unpublished).  Jury finds for defendant in slip-and-fall after plaintiff's chiropractor is barred from testifying using AMA guidelines to describe plaintiff's impairment.  Exclusion affirmed.  District court did not abuse discretion in holding that testimony invoking AMA guidelines should come from licensed physicians, not chiropractors.

United States v. Ahee, No. 99-1991 (6th Cir. Feb. 15, 2001) (unpublished).  Chiropractor convicted of filing false tax returns argues that testimony from two IRS witnesses, including one CPA, should have been excluded under DaubertAdmissibility affirmed.  Witnesses never offered expert testimony in first place, and suitable foundation was laid for their opinion testimony.

EEOC v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local 120, 235 F.3d 244 (6th Cir. 2000), cert. denied, 534 U.S. 987 (2001).  In discrimination suit against union, workers complain that union's expert evidence on hours worked is irrelevant and unreliable.  Admissibility affirmed.  Evidence was relevant to individual relief, and workers present no "discernible argument" why testimony was unreliable.

Jahn v. Equine Servs., PSC, 233 F.3d 382 (6th Cir. 2000).  Champion hackney pony is found dead in stall at veterinary facility after surgery to correct breathing problem.  Owner brings malpractice action and offers testimony from two veterinarian experts, Dr. George Mundy and Dr. Rhonda Robbins.  Defendants move for summary judgment on grounds that plaintiffs' experts do not opine on precise cause of pony's death.  Acting sua sponte and with no further briefing, district court excludes testimony from both experts under Daubert and grants summary judgment.  Exclusion reversed.  District court excluded Dr. Mundy's testimony in part because Dr. Mundy worked in university setting and had never performed surgical procedure at issue.  But Dr. Mundy did not opine on surgical procedure.  Rather, he criticized defendants for failure to conduct adequate preoperative examination and failure to monitor pony after surgery.  His lack of hands-on familiarity with relevant surgical procedure was therefore irrelevant to Daubert inquiry.  District court also faulted both experts for failing to offer definite opinion on cause of pony's death, but experts did present scenario they deemed most likely -- i.e., that pony had mild infection that was exacerbated by anesthetic, sending pony into shock.  Issue was ultimately whether defendants caused pony's death, and experts' inability to state conclusions on precise cause of death with greater certainty was largely attributable to defendants' lack of adequate records.  Experts did not pull their opinions from thin air but worked from facts presented to them.  In any event, experts were not required to exclude all possible alternative causes.  District court also discounted experts' opinions because pathologist who examined pony found no infection, but this merely created factual issue and was not grounds for discounting experts' methodology.  As for proceedings on remand, record on Daubert issues is inadequate for final appellate resolution of admissibility -- unsurprisingly, because district court afforded plaintiff no notice that it would be ruling on admissibility of plaintiffs' expert testimony.  On remand, record should be developed, and district court should provide plaintiff with adequate opportunity to defend admissibility.

Bowe v. Consol. Rail Corp., No. 99-4091 (Sept. 19, 2000) (unpublished).  Worker brings FELA action alleging that his multiple physical disorders were caused by workplace exposures to chemicals.  Worker offers report from liability witness only after deadline for expert reports.  District court grants motion to strike tardy report as discovery sanction, and also as unreliable under Daubert, and then grants summary judgment because plaintiff has no expert proof on liability.  Exclusion affirmed.  Exclusion was proper as discovery sanction.  This moots Daubert issues, but in any event, plaintiff conceded Daubert issues by arguing in district court that liability witness would testify as fact witness only.  Given that concession, district court properly refused to permit witness to offer opinions on liability.  Other record evidence could support finding of employer negligence, however, and so summary judgment must be reversed.

United States v. Brown, No. 99-5395 (6th Cir. Sept. 6, 2000) (unpublished), cert. denied, 531 U.S. 1175 (2001).  Drug defendant contends he was just using, not selling, but prosecution offers testimony of Kentucky police officer that quantity of drugs and defendant's behavior indicate he possessed drugs with intent to distribute.  Admissibility affirmed.  Even though officer admitted he had never read studies drawing definitive link between quantity of drugs and intent to distribute, officer could opine based on years of experience in law enforcement.

United States v. Dailide, 227 F.3d 385 (6th Cir. 2000), cert. denied, 540 U.S. 876 (2003).  Government brings denaturalization proceedings against Algimantas Dailide because he failed, when applying for American citizenship, to disclose his role in Nazi-sponsored Lithuanian Security Police (Saugumas) in Vilnius from 1941 to 1944.  To show how Saugumas assisted Nazis in persecuting Jews, government offers testimony from historian Dr. Yitzhak Arad.  District court grants summary judgment to government in partial reliance on Dr. Arad's affidavit, and Dailide appeals.  Admissibility affirmed.  Dailide complains that Dr. Arad's testimony was not based on personal knowledge, but district court properly found him competent to offer expert testimony, and experts may rely on information not within their personal knowledge.  Dr. Arad cited facts and documents on which his opinions were based, and those opinions were well-informed.  Nor does assistance received by Dr. Arad in drafting his report warrant exclusion of his testimony.  Dr. Arad prepared and signed his report and swore to accuracy of its contents.

Graham v. Western Ky. Navigation, Inc., No. 99-5708 (6th Cir. Aug. 23, 2000) (unpublished).  Worker injured in off-duty auto accident sues employer for refusing payment under ERISA plan that bars claims arising from driving while intoxicated.  District court awards summary judgment to defendant.  AffirmedWorker argues that district court failed to discharge Daubert gatekeeping function and improperly permitted employer to function as expert witness in determining that worker was "intoxicated" at time of accident.  But employer did not function as expert witness.  It reviewed worker's ERISA claim and presented evidence to district court to show that its determination was objectively reasonable.

Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620 (6th Cir. 2000), cert. denied, 532 U.S. 1038 (2001).  Medical student claiming to suffer from learning disability seeks preliminary injunction under Americans with Disabilities Act to require National Board of Medical Examiners to afford him accommodation (extra time) in taking licensure exam.  Board offers testimony from psychologist that based on her review of plaintiff's performance on various cognitive tests, plaintiff suffers from no disability rising to level of "impairment."  District court denies preliminary injunction.  Affirmed.  Dissenting judge on panel questions whether Board's expert would satisfy gatekeeping requirements of Daubert and Kumho Tire, because Board's psychologist did not personally examine plaintiff, and also because her method for assessing learning disabilities involved theoretical model that had not been tested for purposes of diagnosis or treatment.  But psychologist did not offer diagnosis.  She assessed whether plaintiff had any impairment consistent with learning disability.  This she was qualified to do.

Aetna Cas. & Sur. Co. v. Leahey Constr. Co., 219 F.3d 519 (6th Cir. 2000).  To obtain surety bonds from Aetna, principal of construction company agrees to subordinated debt arrangement, whereby principal will lend his company $275,000, with principal's family trust as source of funds.  However, principal actually obtains funds via 30-day personal loan from bank.  After lending those funds to his company, he executes contract with Aetna subordinating his interests in funds to Aetna's.  But unbeknownst to Aetna, company has actually repaid bank loan six days earlier, and so contract's subordination provisions are without effect.  When Aetna's fraud claims against construction company are thwarted by bankruptcy, Aetna sues lending bank for aiding and abetting fraud, and offers testimony from banking expert Dr. Douglas Austin, who opines that bank acted recklessly in connection with loan.  Bank files motion in limine, arguing that because witness is not expert in bond underwriting, he should not be permitted to opine on what bond underwriters would rely on when evaluating bonding risks.  Aetna responds that expert does have knowledge of underwriting principles that will help to explain his testimony re bank's recklessness in issuing loan, but will not opine on activities of Aetna's underwriters.  Based on Aetna's assurance, district court tentatively denies motion in limine, subject to later ruling at trial.  When trial convenes, expert testifies, over bank's renewed objections, that loan's thirty-day term should have raised red flag, because bonding companies normally want long-term capital.  District court overrules objections, and jury renders verdict for Aetna.  Admissibility affirmed.  Expert may have drifted into areas outside his expertise, but that was incidental to overall thrust of his testimony, which focused on proper banking practices in detecting fraudulent activities.  No abuse of discretion.  

Pride v. Bic Corp., 218 F.3d 566 (6th Cir. 2000).  Man mysteriously catches fire while inspecting pipe behind his house.  In products liability action, widow's theory is that man's butane lighter first failed to extinguish, igniting man's clothing, then exploded, dousing man with isobutane and fueling conflagration that ultimately caused his death.  Widow offers three experts: mechanical engineer who has testified in numerous  products liability suits, on subjects ranging "from car seat belts to manure spreaders"; firefighter who has previously testified in Bic lighter cases on causes and origins of fires; and analytical chemist.  Engineer opines, based on inspection of lighter, that exploding-lighter scenario is most likely cause of fire, and that mishap was caused by manufacturing defect, and also by failure of lighter's design to incorporate redundant safety features.   Firefighter opines that lighter was most likely cause of fire based on elimination of other plausible causes as well as information suggesting that fire started in victim's breast pocket.  Chemist opines, based on information re condition of plastic from lighter, that lighter exploded.  After Daubert hearing, magistrate recommends exclusion of all three experts and award of summary judgment in favor of defendants.  District court denies widow's requests to tender additional expert testimony and reopen Daubert hearings, and accepts magistrate's recommendations.  Exclusion affirmed.  Trial court is owed deference on evidentiary rulings, and de novo review of record supports trial court's conclusions.  None of widow's experts conducted replicable laboratory tests showing that explosion of lighter was consistent with failure to extinguish caused by product defect.  Engineer's testimony re manufacturing defect is contradicted by widow's other witnesses and by defense experts' lab tests.  Firefighter admitted he was not engineer, had performed no tests, and was not expert in lighters.  Chemist admitted lack of expertise in fire investigations and did not personally examine lighter.  Chemist also designed lab experiment to test his hypothesis but said he "chickened out and shut the experiment down."

Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir.), cert. denied, 531 U.S. 1044 (2000).  Ford Bronco rolls over, killing and injuring occupants.  In suit against manufacturer, plaintiffs offer mechanical engineer who testifies re defective design and also re his reconstruction of accident.  Admissibility affirmed.  Ford says plaintiffs' expert did not inspect Bronco and was late in visiting scene of accident, but does not explain how these points are material to reliability of expert's methods.  Ford also says expert did not test his theory that Broncos oversteer and "jack," but Ford does not challenge principle that dynamics can be used to analyze vehicle design and predict vehicular motion.  District court acted within its sound discretion in concluding that Ford's points went to weight, not admissibility.

Duffy v. Ford Motor Co., 218 F.3d 623 (6th Cir. 2000).  Another Ford Bronco rolls over, killing occupant.  On third day of trial in original products liability suit, plaintiffs offer testimony from engineer re defective design and police investigator re occupants use of seatbelt.  District court excludes engineer's testimony under Daubert and excludes police investigator's testimony because investigator was not listed as expert witness in final pretrial statement.  Plaintiffs respond by moving for voluntary dismissal.  District court grants voluntary dismissal but only on condition that its rulings be applicable in any later-filed action, and also on condition that plaintiffs pay Ford's costs if they refile.  Plaintiffs refile case in state court.  Ford removes, and case is assigned to original district judge, who dismisses because plaintiffs cannot pay costs.  Reversed.  District courts may set conditions for voluntary dismissal, but here district court did not announce conditions until its order granting voluntary dismissal.  It should have given plaintiffs opportunity to withdraw motion for voluntary dismissal in light of proposed conditions.

Dunlap v. Fields, No. 98-6662 (6th Cir. June 20, 2000) (unpublished).  Federal prisoner files FTCA claim alleging that medical care was improperly withheld following altercation between prisoner and guards.  Prisoner offers no expert testimony in support of claim.  Over prisoner's objection, district court appoints orthopedist and neurologist to examine prisoner, and enters judgment for United States on FTCA claims after reviewing their reports.  Admissibility affirmed.  Reports assisted district court in assessing nature of prisoner's ailments and their relationship to altercation with guards.  No abuse of discretion.

Laski v. Bellwood, No. 99-1063 (6th Cir. May 25, 2000) (unpublished).  Plaintiff alleges auto collision caused his back pain.  At first trial, district court excludes four of plaintiffs' causation witnesses.  Plaintiff secures reversal of exclusionary ruling.  At second trial, defense offers biomechanical engineer who testifies at length re general biomechanical points relevant to accident and briefly re his opinion that this specific accident did not cause plaintiff's back pains.  Admissibility affirmed.  Plaintiff complains that biomechanical engineer's testimony should have been excluded as beyond scope of his expertise, but testimony mostly concerned general biomechanical principles, and only briefly touched on issues of specific medical causation that were arguably beyond biomechanical engineer's ken.  Moreover, having rejected defendants' argument, in prior appeal, that plaintiffs' experts should be excluded under Daubert because their expertise was medical as opposed to biomechanical, it would be ironic and unjust to rule now that defendants' expert should be excluded because his expertise is biomechanical as opposed to medical.

Fair v. Franklin County, No. 98-4237 (6th Cir. May 11, 2000) (unpublished).  Woman is arrested at sobriety checkpoint but later released without charges.  She sues county and law enforcement personnel, alleging arrest without probable cause in violation of her civil rights.  At trial, defendants offer testimony from police lieutenant re elements of probable cause.  Jury returns verdict in defendants' favor.  Affirmed.  Officer's experience qualified him as expert, and any error in admitting his testimony was harmless.

United States v. Smithers, 212 F.3d 306 (6th Cir. 2000).  In bank robbery trial, defendant offers opinion of expert on eyewitness testimony re general factors influencing eyewitness identifications.  Expert would also opine that witnesses would have noticed and recalled four-inch scar on defendant's neck.  Without conducting Daubert hearing, district court excludes testimony, stating that: (a) it will be interesting experiment to see how jury treats case in testimony's absence; (b) defense counsel can always argue for new trial; (c) defense counsel has built strong record that exclusion is abuse of discretion.  Jury convicts and defendant appeals.  Exclusion reversed.  Trend in decisions is toward increased tolerance of expert testimony on eyewitness identification.  District court showed disturbing lack of regard for defendant's rights and should conduct Daubert hearing on remand.

Gates v. City of Memphis, No. 98-5921 (6th Cir. Apr. 6, 2000) (unpublished).  Off-duty cop is shot and killed by on-duty cop.  Widow brings civil rights and wrongful death action against city, and offers testimony on trajectory analysis from forensic consultant.  District court excludes evidence because witness's experience and training have focused primarily on crime scene reconstruction in general, not trajectory analysis in particular.  Jury returns verdict for defendants.  Exclusion affirmed.  Because witness had no formal training in trajectory analysis, had no post-secondary education in physics, anatomy, or physiology, made no measurements, and did no scientific testing on instant shooting scene, district court did not abuse discretion in excluding his testimony.

Harris v. Gen. Motors Corp., 201 F.3d 800 (6th Cir. 2000).  Driver of auto is injured when airbag deploys in low-speed head-on collision.  On summary judgment in products liability action, driver and passenger both offer affidavits testifying that driver was not injured in collision itself but rather by defective, late-deploying airbag that went off after collision was over.  Defendants offer affidavits from engineer and anatomist who opine, respectively, that airbag deployed during collision, not after, and that plaintiffs' injuries are consistent with deployment of airbag during collision.  District court discounts plaintiff's affidavits under "physical facts rule," which holds that testimony may be disregarded when it contradicts undisputed physical facts, and awards summary judgment to defendant.  Reversed.  Theories of defendants' experts were just that -- theories, and not undisputed physical facts.  Moreover, although plaintiff did not challenge defense experts' testimony under Daubert, district court "must" perform reliability analysis on remand -- particularly re engineer, whose testimony rested on unproven methodology associated with Diagnostic Energy Reserve Module ("black box" device in auto that mechanically records data re airbag deployment).

United States v. Tocco, 200 F.3d 401 (6th Cir. 2000), cert. denied, 539 U.S. 926 (2003).  FBI agent testifies as expert on organized crime in racketeering trial.  Admissibility affirmed.  Organized crime is subject beyond ken of average juror and agent had extensive experience in area.

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