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Tenth Circuit (last Shepardized on 2/21/06)

Explanation of the statistics
Admissibility affirmance rate:    .837     (41/49)
Exclusion affirmance rate:    .842     (32/38)
Overall affirmance rate:    .839     (73/87)

United States v. Hartman, No. 05-1077 (10th Cir. Sept. 7, 2006) (unpublished).  Over narcotics defendant's objections, detective testifies re modus operandi of drug dealers.  Jury convicts.  Admissibility affirmed.  Defendant says detective was unqualified.  But he is trained narcotics agent with 19 years of experience in over 1000 narcotics investigations, and his testimony was helpful to trier of fact.  Detective did not offer impermissible expert testimony on mens rea.

United States v. Ellis, No. 05-7136 (10th Cir. Aug. 22, 2006).  In narcotics trial, prosecution calls two forensic experts from Oklahoma Bureau of Investigation to testify re quantity of methamphetamine found in defendant's possession: John Giles, who used gas chromatography mass spectroscopy ("GCMS"), and Marty Wilson, who used high performance liquid chromatography ("HPLC").  Both agents say they tested only samples, taken from powder they produced by grinding crystalline drug material seized from defendant.  District court overrules Daubert objection and admits their testimony.  Jury convicts.  Admissibility reversed.  District court did not make any specific reliability findings, and record does not establish any reliable basis for experts' contention that samples taken from powder would be representative.  But error was harmless, in light of other testimony re quantities of meth sold by defendant.

United States v. Cui Qin Zhang, 458 F.3d 1126 (10th Cir. 2006).  During pretrial detention on drug charges, defendant places recorded phone call, in which she is speaking Mandarin Chinese.  At trial, parties stipulate that one phrase spoken by defendant during phone call should be translated as: "Really, didn't I used to tell you, after I came in, it's like . . . I knew the car had drugs."  Detective later testifies that "I knew the car had drugs" was independent phrase, standing on its own, and that defendant could have chosen alternative Mandarin language had she intended to say "After I came to jail, I learned the car had drugs."  Jury convicts.  Admissibility affirmed.  Defendant complains that district court failed to conduct any gatekeeping analysis of detective's translation.  But trial court determined that detective had grown up speaking Mandarin, since age 10.

United States v. Sutherland, No. 05-6266 (10th Cir. Aug. 11, 2006) (unpublished).  Defendant is charged with interstate transportation of minors for purposes of prostitution.  At trial, prosecution offers testimony from police sergeant on pimps' relationships with prostitutes, from recruitment onward.  Jury convicts.  Admissibility affirmed.  District court reviewed sergeant's qualifications, and testimony was potentially helpful to trier of fact.

Tingey v. Radionics, No. 04-4216 (10th Cir. Aug. 8, 2006) (unpublished).  During nerve ablation procedure to alleviate back pain, patient receives unplanned electrical shock to nerve tissue from medical device.  Patient soon develops apparently permanent urinary incontinence.  Patient sues device manufacturer, alleging that design defect caused her shock and resulting medical condition.  Manufacturer moves for summary judgment.  To show causation, patient responds with: (1) affidavit from urologist Dr. McKay L. Platt; and (2) deposition testimony, taken in separate state court proceedings, from anesthesiologist Dr. Richard Rosenthal, who performed her procedure.  District court strikes their testimony as unreliable, and strikes Rosenthal's testimony on additional ground that manufacturer was not named as party to state court proceedings in which deposition was conducted and received no notice of it.  No other causation evidence being sufficient to create genuine issue of fact, district judge awards summary judgment to manufacturer.  Exclusions reversed.  District court's contrary conclusions notwithstanding: (1) Platt recited sufficient facts to ground his opinion and was qualified to render it, and his factual disagreement with another expert on existence of nerve damage went to weight, not admissibility; and (2) Rosenthal was qualified, had reliable basis on which to "rule in" electrical shock as cause of incontinence, and also took suitable steps, in his differential diagnosis, to "rule out" opiate abuse.  Absence of notice of deposition to defendant did not render Rosenthal's deposition transcript inadmissible on summary judgment; it was analogous to testimony offered via affidavit.

Champagne Metals v. Ken-Mac Metals, Inc., No. 04-6222 (10th Cir. Aug. 7, 2006).  Aluminum is sold to end users through distributors known as "service centers" and also directly by aluminum mills.  One service center, Champagne Metals, brings antitrust action against competing service centers, alleging that they have threatened to engage in concerted boycotts of any mills selling to Champagne.  Champagne's competitors move for summary judgment.  Champagne responds with affidavit from its economic expert, Dr. Donald Murry, who opines that competitors have substantial power in upstream market, based on their sales and market shares in downstream market.  District court grants defendants' motion to exclude Murry's testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Champagne argues it was legitimate for Murry to infer upstream market power from downstream market share, because "any given distributor will sell downstream what it purchased upstream."  But this explanation constitutes mere argument from counsel.  Murry himself offered no methodological justification for equating market power in upstream and downstream markets.  In addition, Murry appears to have simply accepted as true certain self-serving factual characterizations offered by Champagne.  District court did not abuse its discretion in excluding Murry's testimony on these grounds.

Weaver v. Blake, 454 F.3d 1087 (10th Cir. 2006).  Weaver's northbound vehicle collides with Blake's southbound vehicle.  Weaver sues Blake.  During pretrial Daubert proceedings, trial court rules that state police investigator may testify for Blake re facts and data he observed and gathered at accident scene, but may not offer expert opinions based on technical analysis interpreting those facts and data (e.g., accident-reconstruction testimony opining on which vehicle crossed over road median).  At trial, Blake's counsel elicits testimony from investigator that from his observations, tracks from Weaver's vehicle went over "what the middle of the road would be."  Weaver's counsel objects based on pretrial ruling.  District court overrules objection, stating: "Center line can mean either [of] two things: either the precise center line, or his observed center line.  You can explore that on cross-examination."  Jury finds both parties equally at fault and so Weaver takes nothing.  Affirmed.  Any departure by the district court from its pretrial ruling was harmless.  "[T]his case presents a situation where the district court and the parties were drawing fine distinctions about the permissible scope of a witness's trial testimony on subjects that were previously disclosed and subject to rigorous analysis at a Daubert hearing. Drawing such fine distinctions concerning the scope of an expert's testimony is heavily dependent on the particular context in which that testimony is presented at trial, and therefore this task may not be amenable to a definitive and unequivocal pretrial ruling."  Investigator did not offer diagrams or cloak his testimony in scientific mantle; he merely testified based on his personal observation.  In any event, jury's apportionment of fault did not necessarily depend on which driver, "if any," crossed center line of roadway.

United States v. Mehdipour, No. 05-6376 (10th Cir. July 11, 2006) (unpublished).  District court denies habeas petition.  Affirmed.  Petitioner predicates ineffective assistance claim on counsel's failure, in underlying proceedings, to raise Daubert challenge to testimony from prosecution witness identifying voice on audiotape.  But petitioner failed to failed to raise this issue in district court. 

United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006).  Narcotics defendant offers testimony from psychologist Steven E. Clark, expert in eyewitness identification, to support defendant's contention that he was falsely identified.  District court excludes testimony and jury convicts.  Exclusion affirmed.  Tenth Circuit has not adopted per se ban on all testimony on eyewitness identification, but it will usually assist trier of fact only in narrow circumstances -- e.g., cross-racial identification, identification after long delay, identification after observation under stress, or situations involving unconscious transference.  Here, district court acted within its sound discretion in finding that witness did not present enough information to permit assessment of his testimony's reliability.  His report was unclear on whether he would rely on his own research or that of others, and did not indicate whether underlying research was peer-reviewed, published, or generally accepted.

United States v. Walker, No. 05-5127 (10th Cir. May 3, 2006) (unpublished).  In narcotics trial, prosecution offers expert testimony from law enforcement officer on modus operandi of drug dealers.  Jury convicts.  Admissibility affirmed.  Defendant did not object at trial and so review is for plain error.  None appears.

United States v. Apperson, 441 F.3d 1162 (10th Cir. 2006).  District court grants prosecution's motion in limine to bar defendant from introducing evidence that prosecution's informant failed polygraph.  Jury convicts.  Exclusion affirmed.  Even if polygraph had satisfied Daubert, trial court had discretion to exclude it under Fed. R. Evid. 403.

Dillon Cos., Inc. v. Hussmann Corp., No. 03-1493 (10th Cir. Jan. 20, 2006) (unpublished).  Grocery store hires commercial refrigeration contractor to perform work during store's remodeling.  While using acetylene oxygen torches to braze refrigeration pipes, contractor accidentally ignites exposed paper-faced insulation.  Building is destroyed in resulting conflagration.  Grocery store sues contractor.  Contractor asserts comparative negligence defense.  At trial, contractor seeks to prove grocery store's negligence through testimony from engineer and fire investigator Roger Craddock, who opines: (1) that paper-backed insulation was highly inflammable and should have been covered; (2) that grocery store violated 1976 Uniform Building Code by installing paper-backed insulation; (3) that grocery store should have installed sprinkler heads or draft stops above drop ceiling; and (4) that building would not have been destroyed if grocery store had used foil-faced insulation or installed sprinklers or draft stops.  Jury finds for grocery store but assesses 35% comparative fault against store.  Admissibility affirmed.  Grocery store challenges expert's qualifications on appeal but did not do so before or during trial, and so review is for plain error.  Store complains that expert's educational background is in civil engineering, and that he is not an architect, structural or fire protection engineer, or certified fire investigator.  But he was qualified by virtue of substantial experience and course work in fire investigation and allied fields. 

United States v. Hebah, No. 04-8092 (10th Cir. Jan. 20, 2006) (unpublished).  Accused of engaging in nonconsensual sexual relations with seventeen-year-old girl after she got drunk and passed out, defendant confesses.  At trial, he recants and seeks to offer expert testimony from clinical and forensic psychologist Dr. William E. Flynn, who opines that defendant is prone to false confessions due to his overly compliant nature and his tendency to acquiesce in wishes of others.  District court bars testimony as incompetent, unreliable, and irrelevant.  Jury convicts.  Exclusion affirmed.  District court conducted pretrial Daubert hearing and found: (1) expert's vitae reflected no research or publications on false confessions; (2) he had limited training and experience in area; (3) he relied entirely on questionnaires and phone interviews administered to defendant and defendants' relatives to establish defendant's putative compliant streak; (4) he could not establish error rate for tests he administered; (5) he flip-flopped on whether defendant was compliant and/or prone to false confessions; (5) he did not personally administer intelligence test taken by defendant; (6) false-confession studies on which he relied were British and Icelandic based; and (7) confession testing is not generally accepted in United States and may not be sufficiently reliable, in general, to qualify for admissibility under Daubert.  Those findings supply enough basis for district court's reliability ruling, and its ruling on relevance therefore need not be reached.  Moreover, even if exclusion of expert's testimony had been error, it would have been harmless.

Simek v. J.P. King Auction Co., No. 04-8109 (10th Cir. Dec. 8, 2005) (unpublished).  Simek hires auction firm to sell Simek's property.  Auction firm sells property in absolute (no reserve) auction for less than Simek thinks property is worth.  Simek sues auction house for breach of fiduciary duty.  At trial, over Simek's objection, district court admits tax assessment and permits auction firm to question experienced auctioneer (tendered as lay witness) on general relationship between appraisals and tax assessments versus actual market value on sale.  Jury finds for Simek but concludes he suffered no damages.  Simek appeals.  Admissibility affirmed.  Simek protests that admission of tax assessment was back-door admission of expert testimony without judicial gatekeeping.  But not all evidence of real estate value necessarily constitutes expert testimony.  Tax assessment was not analogous to factual findings from government investigations that courts have held subject to Daubert.  Because auctioneer did not hold himself out as presenting any appraisal of Simek's property, his qualifications as appraiser were irrelevant.

United States v. Sanchez-Garcia, No. 04-3437 (10th Cir. Oct. 20, 2005) (unpublished).  Cops find drugs in car.  Trooper testifies quantities are consistent with distribution.  Jury convicts.  Admissibility affirmed.  Law enforcement officers may testify on this point based on their experience.

Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005).  Amway distributor Randy Haugen disseminates voice-mail message to thousands of other Amway distributors, falsely stating that president of Procter & Gamble ("P&G") recently appeared on television, proclaimed affiliation with Church of Satan, and announced that substantial portions of P&G's profits from 43 products go to support Church of Satan.  Believing that its sales may have suffered among customers not wishing to provide Satan with financial succor, P&G brings Lanham Act claims against Haugen.  To show lost sales, P&G retains Drs. Robert Hall and Harvey Rosen, who consult sales data downloaded by P&G from third-party source to prepare their analyses.  P&G ultimately decides to limit its claims for lost profits to three products on which Dr. Rosen focuses in his report.  Haugen, however, wants additional data on other products that P&G allegedly could have downloaded from third-party source, but which P&G says it did not in fact obtain.  When P&G fails to produce data in discovery, Haugen moves for sanctions.  District court dismisses P&G's claims on two grounds: (1) by way of sanction for P&G's alleged failure to preserve electronic data; and (2) because any damages testimony from P&G's experts would be inadmissible under Daubert if based on data for just three out of 43 supposedly Satan-subsidizing products.  Exclusions reversed.  Dismissal was not warranted as discovery sanction.  Among other things, P&G says it does not have data sought by Haugen, and that acquiring it for Haugen would cost $30 million.  Nor was dismissal justified on theory that P&G's expert testimony would be inadmissible under Daubert.  District court afforded no warning to P&G that admissibility of its expert testimony was even at issue.  Consequently, there was no briefing on any Daubert issues, and district court's ruling included no specific or detailed findings.  In short, lower court's sua sponte, "off-the-cuff" ruling abused its discretion.  Remanded for proceedings consistent.

Sawyer v. Southwest Airlines Co., No. 04-3109 (10th Cir. Aug. 10, 2005) (unpublished).  Black passengers bring civil rights claims against airline after flight attendant recites variation on well-known nursery rhyme ("Eenie, meenie, minie, mo, pick a seat, we gotta go").  In support of their contention that nursery rhyme's use carried racist overtones, passengers propose to offer expert testimony.  District court strikes some but not all of plaintiffs' expert evidence in detailed pretrial order.  Plaintiffs do not call expert at trial, in part because district court declines request for court payment of plaintiffs' expert fees.  Jury finds for airline and plaintiffs appeal.  Exclusion affirmed.  Plaintiffs make passing reference to Daubert but do not explain how trial court's evidentiary rulings were erroneous.  There is no authority requiring trial courts to pay parties' experts in civil cases.

United States v. Lauder, 409 F.3d 1254 (10th Cir. 2005).  Defendant in narcotics trial objects, invoking Daubert, when prosecution asks its fingerprint expert to opine on match between latent print and defendant's prints.  District court admits testimony and jury convicts.  Admissibility affirmed.  Defendant's objection went not to expert's qualifications or methodology, but rather to "live-skin" (a.k.a. "LiveScan") technology whereby defendant's prints were taken.  Daubert is irrelevant to this issue, which involves underlying data on which expert relied and accuracy of technology used to collect it. 

Jones v. Geneva Pharms., Inc., No. 04-1079 (10th Cir. June 1, 2005) (unpublished).  Plaintiff in age discrimination suit seeks to introduce evidence that she offered to take polygraph, without offering test's results or testimony from polygrapher.  Trial court grant's defendant's motion in limine.  Jury finds for defendant and plaintiff appeals.  Exclusion affirmed.  Value of proffered evidence would have depended on assumption that polygraph testing is reliable, which plaintiff made no attempt to establish.  Polygraph testimony is generally inadmissible within Tenth Circuit, and trial court did not abuse its discretion in concluding that testimony's probative value was outweighed by danger of prejudicial effect.

Fitzgerald v. Corrections Corp. of Am., 403 F.3d 1134 (10th Cir. 2005).  Inmate brings malpractice claim against prison doctor, alleging that doctor failed to provide adequate treatment for inmate's broken hip.  Doctor moves for summary judgment, relying on affidavit from in which expert physician opines in conclusory fashion that inmate's treatment was "appropriate" and "within the accepted standard of care."  Inmate responds that "[the] proffered affidavit is not evidence, having not been subjected to examination by the plaintiff, or even qualified as expert. Neither is it a learned treatise of which the court could take judicial notice. As such, it should not be considered."  District court relies on affidavit in granting summary judgment to doctor.  Inmate appeals.  Reversed.  Conclusory affidavit, which recited no specific facts in support of expert's views, was insufficient to support motion for summary judgment, and inmate therefore was not required to tender expert evidence in response.  Dissent: Majority concludes that defense expert's affidavit is insufficient without explicitly considering its admissibility under Daubert and without applying deferential abuse-of-discretion standard appropriate for evidentiary decisions.   

Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005).  Plaintiff's physician experts opine that plaintiff's silicone breast implants caused her connective tissue / autoimmune disease.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Experts' differential diagnoses were flawed because they lacked any basis to "rule in" implants as cause of plaintiff's disease, given substantial epidemiological literature disclosing no generic causal link.

Bitler v. A.O. Smith Corp., 391 F.3d 1114 (10th Cir. 2004), reprinted as amended, 400 F.3d 1227 (10th Cir. 2004), cert. denied, 126 S. Ct. 395 (2005).  Injured in fire sparked by basement gas explosion, man blames propane water heater, alleging that its defective design permitted accumulation of copper sulfide on safety valve seat, preventing seal from closing and creating gas leak.  On summary judgment, manufacturer offers testimony from fire investigation expert, Eden Boh, who opines that water heater was source of accident, and from plaintiffs' engineer and accident investigator, Donald Sommer, who opines that gas leak was caused by copper sulfide deposits.  District judge overrules defendants' reliability objections and denies summary judgment.  In subsequent pretrial proceedings, magistrate judge refuses reconsideration of district judge's ruling on admissibility of Sommer's testimony.  Jury awards substantial damages at trial and manufacturer appeals.  Admissibility affirmed.  Magistrate judge was not required to revisit district judge's prior ruling on admissibility of Sommer's testimony; trial courts must perform their gatekeeping function, but once they have performed it, they are not required to "linger at the 'gate,' as if caught in Zeno's paradox."  On merits of evidentiary rulings, Boh performed standard fire investigation procedure of observing conditions at scene and deducing cause of accident.  Such methods are not susceptible of testing or peer review but are generally accepted in field of fire investigation.  As to Sommer, defendants fault his lack of "testing," but gas explosion was one-time occurrence; Sommer was not relying on novel theories about causal relations among regularly recurring natural phenomena.  His approach of considering various possible causes and ruling out implausible causes is methodologically similar to technique of differential diagnosis upheld in other contexts.  No abuse of discretion. 

United States v. Gabaldon, 389 F.3d 1090 (10th Cir. 2004), cert. denied, 125 S. Ct. 1688 (2005).  Charged with kidnapping and murder, defendant offers testimony from accident reconstructionist Dr. Alan Watts to show that blows to victim were possibly or probably delivered by someone else.  Trial court excludes testimony and jury convicts.  Exclusion upheld.  Expert's nine conclusions were variously conclusory, untested, unhelpful to trier of fact, mere repetitions of information from autopsy reports, and/or dependent on expertise in pathology or toxicology, which expert does not possess.  No abuse of discretion.

McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), cert. denied, 125 S. Ct. 2294 (2005).  Did sheriff's department violate Americans with Disabilities Act when it refused to rehire officer with history of post-traumatic stress disorder?  Defendant sheriff's expert psychologist, Dr. Richard Wihera, opines that it was reasonable for sheriff's department to conclude that plaintiff constituted "direct threat" to others.  Sheriff also calls Tom Walton, Chicago police officer, who opines that decision not to rehire was reasonable from police supervisory point of view.  Jury finds for defendant.  Admissibility affirmed.  At trial, plaintiff objected only to Dr. Wihera's qualifications.  But he is qualified, having performed over 15,000 pre-employment evaluations for law enforcement agencies in 15 different states.  Plaintiff now argues, for first time on appeal, that Dr. Wihera's testimony was irrelevant.  But his testimony was directly pertinent.  Police officer's testimony was founded on experience and was helpful to trier of fact.  No abuse of discretion.

Lifewise Master Funding v. Telebank, 374 F.3d 917 (10th Cir. 2004).  Plaintiff in commercial dispute offers three consecutive damage models.  District court strikes all three as unreliable.  Plaintiff submits fourth and final model via its CEO Mark Livingston.  In granting defendant's motion for summary judgment on damages, district court holds that fourth model is unduly speculative under New York law, unreliable and unhelpful to trier of fact, and unduly prejudicial, and that Livingston is unqualified to testify in support of it.  Exclusion affirmed.  Expert exhibited "utter lack of any familiarity, knowledge, or experience with damages analysis"; his methods were "misleading, not reliable, and unsupported by use in any other comparable setting" and did not fit facts of case; and his testimony would have confused jury rather than assisting it.

103 Investors I, L.P. v. Square D Co., 372 F.3d 1213 (10th Cir. 2004).  Building owners allege that defendant's defective busways sparked fire.  District court excludes owners' initial expert reports, strikes their rebuttal report as untimely, and awards summary judgment to defendant.  Exclusion reversed.  District court abused discretion in excluding owners' rebuttal report.  That report was technically untimely, but only because district court granted extension for defendant's reports without granting corresponding extension for rebuttal reports.  Owners could not reasonably be expected to rebut reports not yet submitted.

United States v. Arras, 373 F.3d 1071 (10th Cir. 2004).  Customs agent testifies for prosecution at narcotics trial.  Jury convicts.  Admissibility affirmed.  Defendants complain that prosecution neither offered customs officer as expert nor qualified him as such before jury.  But defendants raised no such objection at trial, and trial court is not required to evaluate expert qualifications in jury's presence.

United States v. Mundy, No. 03-3216 (10th Cir. May 12, 2004) (unpublished).  Detective testifies that possession of narcotics for sale rather than personal use may be gauged by packaging, form, and quantity of drugs, as well as by possession of drug paraphernalia, cash, pay/owe sheets, and tools to cut and weigh drugs.  Jury convicts.  Admissibility affirmed.  Testimony was helpful to trier of fact and did not constitute impermissible expert testimony on intent.

Ives v. Boone, No. 02-6397 (10th Cir. May 3, 2004) (unpublished), cert. denied, 543 U.S. 1001 (2004).  Habeas petitioner complains that prosecution's experts in underlying state trial on incest charges improperly vouched for truthfulness of his daughter's allegations of sexual abuse.  District court denies relief.  Affirmed.  Defense counsel's own questioning invited challenged testimony.  Moreover, testimony concerned truthfulness of daughter's suicidal feelings, not her allegations of abuse.

United States v. Ward, No. 03-6005 (10th Cir. Apr. 29, 2004) (unpublished), vacated on other grounds, 543 U.S. 1103 (2005).  Criminal defendants object to admission of expert fingerprint evidence at trial.  District court overrules objection and jury convicts.  Admissibility affirmed.  Defendant here raises same argument that Tenth Circuit rejected when it was raised by defendant in United States v. Turner, 285 F.3d 909 (10th Cir.), cert. denied, 537 U.S. 895 (2002) [infra].  Any error in admitting fingerprint testimony was harmless in light of overwhelming evidence against defendant.

Van Cott, Bagley, Cornwall & McCarthy v. Williams, No. 02-4245 (10th Cir. Apr. 6, 2004) (unpublished).  In debtor's bankruptcy proceedings, law firm files proof of claim for $387K in unpaid legal fees.  Estate objects to amount of claim based on expert report from attorney Benson L. Hathaway.  Bankruptcy judge initially expresses doubt over expert's factual foundation and methodology but admits his testimony and reduces claim to $187K after counsel for estate lays additional foundation.  District court affirms, and law firm appeals.  Admissibility affirmed.  Law firm says bankruptcy court did not discharge its gatekeeping responsibilities, and also says that expert did not sufficiently review documents from law firm's underlying representation.  But bankruptcy court carefully evaluated expert's report to ensure its relevance and reliability.  No abuse of discretion.

United States v. Berrelleza, No. 03-5000 (10th Cir. Mar. 5, 2004) (unpublished).  Drug detection dog alerts to vehicle during routine traffic stop.  Relying on alert for probable cause, police search vehicle and discover cocaine and methamphetamine.  On motion to suppress, defendant requests Daubert hearing on canine alert.  District court declines to convene hearing, and motion to suppress fails.  Defendant pleads guilty, reserving right to appeal evidentiary issue.  Affirmed.  Other courts to consider issue have held that Daubert hearings are wrong procedural tool with which to challenge reliability of drug detection dogs (citing United States v. Outlaw, 134 F. Supp. 2d 807 (W.D. Tex. 2001)).

Truck Ins. Exch. v. Magnetek, Inc., 360 F.3d 1206 (10th Cir. 2004).  Subrogated insurer sues manufacturer of fluorescent light ballast, claiming defect in ballast caused fire.  In support, insurer relies on testimony from fire expert Dr. Joe Romig, who opines that ballast could have started fire at temperatures well under wood's usual ignition point of 400 degrees Fahrenheit, through process known as "pyrolysis."  Insurer also offers testimony from fire department investigator, Lt. Dan Pfannenstiel, who bases his opinion on his experience as fire investigator and his elimination of other possible origins of fire.  District court excludes testimony from both witnesses and awards summary judgment.  Exclusion affirmed.  Lower court excluded pyrolysis testimony both because it found pyrolysis theory was unproven and unreliable, and also because it was not reliably applied.  District court's first basis for exclusion was correct and so its second basis need not be reached.  Pyrolysis theory enjoys only tenuous support in literature and remains fraught with scientific uncertainty, and cannot be applied to these facts without analytical gaps of impermissible breadth.  Insurer protests that defendants did not contest generic reliability of pyrolysis theory before district court, but district court has independent gatekeeping obligations to evaluate scientific foundations of evidence, and may look beyond testimony of witnesses before it in doing so.  Fire department investigator, meanwhile, testified that standard method of analysis is first to determine ignition temperature of fuel and then to determine what heat source could generate that temperature.  Under that method of analysis, investigator could not legitimately conclude that wood could ignite at temperatures generated by ballast except through reliance on pyrolysis theory. 

Miller v. Pfizer, Inc., 356 F.3d 1326 (10th Cir.), cert. denied, 543 U.S. 917 (2004).  Teenager commits suicide after taking Zoloft for one week.  His parents bring wrongful death action against Pfizer, which makes Zoloft.  To show causation, parents rely on neuropsychopharmacologist Dr. David Healey.  District court appoints two physicians, Drs. John Concato and John M. Davis, to evaluate Dr. Healey's testimony for admissibility.  During Daubert proceedings, district court refuses, on grounds of untimeliness, to permit plaintiffs to offer certain material in response to concerns voiced by independent experts.  District court subsequently follows recommendation of independent experts to exclude Dr. Healey's causation testimony, largely adopting their reasoning, and awards summary judgment to Pfizer.  Exclusion affirmed.  District court showed patience and fairness in permitting plaintiffs to respond to Daubert objections, refusing to entertain additional supportive material only after plaintiffs had already enjoyed full opportunity to respond to criticisms of expert's opinion.  As for merits of  Daubert ruling, it is true that Dr. Healey published peer-reviewed study purporting to connect Zoloft with suicide, but  his risk calculations were not themselves peer-reviewed, and district court permissibly found his study to be methodologically flawed on other grounds.  Insofar as Dr. Healey's testimony also rested on challenge-dechallenge data, case reports, meta-analysis, and application of Koch's postulates, district court permissibly found that he did not apply these techniques in generally accepted fashion.  No abuse of discretion. 

Miller v. Mullin, 354 F.3d 1288 (10th Cir. 2004), cert. denied, 543 U.S. 1154 (2005).  Habeas petitioner alleges ineffective assistance in state murder trial because counsel did not demand Daubert hearing for prosecution's forensic chemist regarding her testimony concerning blood sample found on sandal.  Denial of habeas affirmed.  Challenges to chemist's methods and techniques went to credibility and weight, which were properly left to jury after cross-examination. 

United States v. Bhatti, No. 03-8023 (10th Cir. Jan. 16, 2004) (unpublished).  In prosecution for possession of marijuana with intent to distribute, Wyoming special agent Kevin Haller opines that 90 kilograms of marijuana found in defendants' truck would have street value of $1.2 million.  Jury convicts.  Admissibility affirmed.  Tenth Circuit has previously held that similar evidence was relevant and not unduly prejudicial.  Defendants say that does not dispose of their Daubert objection, but agent had extensive experience and testified to basis of his opinions.

Solorio v. United States, No. 02-4227 (10th Cir. Jan. 15, 2004) (unpublished).  Government vehicle veers into barricaded construction area, striking and killing construction worker.  Following accident, driver is observed having seizure.  Driver has no prior history of seizures.  Victim's estate brings FTCA claim against government.  Did impact of accident cause seizure, as plaintiff contends, or did seizure cause accident, negating negligence, as government contends?  Driver has no useful memory of incident, and so plaintiff offers testimony on timing of seizure from  neurologist, Dr. Phillip S. Savia.  Government moves for summary judgment on negligence.  In its summary judgment brief, government includes footnote citing Daubert and containing this sentence: "Dr. Savia's subjective belief or unsupported speculation is inadmissible as expert testimony."  However, government files no motion to strike.  Plaintiff's responsive summary judgment brief does not address government's footnoted reference to admissibility.  On reply, government attacks admissibility of neurologist's opinion in earnest.  District court hears argument on issue at summary judgment, but convenes no separate Daubert hearing or other evidentiary proceedings.  District court strikes neurologist's testimony and awards summary judgment to government.  Exclusion affirmed.  Plaintiff claims surprise but was on notice of objection and provided insufficient support of neurologist's opinion.  Neurologist testified at deposition that many of his findings were based on assumptions, that he had no support in published literature for his opinion, and that he would defer to government's expert as more knowledgeable concerning epilepsy and seizures.

Tuato v. Brown, No. 02-2007 (10th Cir. Dec. 30, 2003) (unpublished).  Driver loses control of pickup truck, which skids across median and collides with oncoming semi-truck, killing pickup's three occupants.  Their survivors bring wrongful death action against semi-truck driver.  Defendant offers expert testimony on accident reconstruction and biomechanics from Brian Charles.  District court overrules plaintiffs' objections to expert's qualifications and testimony at Daubert hearing and again at trial, concluding that objections go to credibility and weight, not admissibility.  Admissibility reversed.  District court took no testimony at Daubert hearing and did not make sufficient findings on Daubert issues.  Remanded for appropriate Daubert proceedings and new trial.

Vanover v. Altec Indus., Inc., No. 03-5016 (10th Cir. Nov. 28, 2003) (unpublished).  Lineman is electrocuted while in aerial lift on repair truck.  His survivors sue lift manufacturer, relying on testimony from mechanical engineer, Dr. R.K. Tessman, who opines that lift suffers from design defect, because its mandatory load-holding safety device, which locked boom in position when accident occurred, incorporates no manual override that would have permitted coworker to lower lift to ground so as to administer CPR to lineman.  District court excludes testimony as unreliable and awards summary judgment.  Exclusion affirmed.  Expert has no experience or training in boom trucks or aerial lifts, and his proposed design is untested and unpublished. 

Goebel v. Denver & Rio Grande Western R.R., 346 F.3d 987 (10th Cir. 2003).  Railroad engineer develops neurological symptoms and cognitive deficits following exposure to diesel fumes in tunnel at high altitude.  In engineer's FELA action, jury awards verdict of $755,000, after hearing toxicologist Dr. Daniel T. Teitelbaum testify to causation, but court of appeals vacates and remands for new trial because record reflects no Daubert analysis by district court.  See Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000) (infra).  On remand, district court conducts Daubert inquiry and holds toxicologist's testimony to be admissible.  Parties stipulate to entry of judgment in amount of prior jury verdict, with railroad reserving right to appeal Daubert ruling.  Admissibility affirmed.  Railroad contests toxicologist's opinion on general causation, and also faults differential diagnosis he conducted to opine on individual causation.  But district court acted within its discretion in concluding that his opinions reasonably flowed from data on which he relied.  

United States v. Lonedog, No. 02-8065 (10th Cir. June 12, 2003) (unpublished), cert. denied, 540 U.S. 975 (2003).  In drug trial, prosecution offers testimony re screening tests in which defendant tested positive for THC.  Jury convicts.  Admissibility affirmed.  Defendant complains that district court failed to conduct preliminary hearing on Daubert issues, and also complains that screening tests are unreliable and therefore are not in general testimonial use.  Failure to hold preliminary hearing did not constitute abuse of discretion, because judge conducted "what can be viewed as a Daubert test" at trial, via testimony from prosecution witnesses Dr. Ella Loring (senior chemist and forensic scientist at Wyoming state crime laboratory) and Hollie A. Childers (lab manager at hospital where screening test was performed).  As for merits of Daubert objection, Dr. Loring testified that "it is a reliable screening test . . . very reliable."

Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir.), cert. denied, 540 U.S. 1003 (2003).  In toxic tort suit arising from operation of uranium mill, plaintiffs offer expert testimony from: (1) geologist Glen Miller, to show presence in environment of toxic substances from mill; (2) Dr. Malin Dollinger, to provide physician testimony that exposure to those toxic substances caused plaintiffs' health conditions; and (3) toxicologist Martyn Smith, Ph.D., to provide additional causation testimony.  Defendant files 47-page motion to strike, appending thousands of pages of expert reports, deposition testimony, and relevant literature.  District court concludes that motion and appendix violate local rules re length, and instructs defendant to file motion and appendix not exceeding twenty pages apiece.  District court also advises parties it will convene Daubert hearing but would prefer not to hear live testimony unless absolutely necessary.  At hearing, defendant seeks to introduce testimony from three of its own experts, but district court refuses, citing defendant's failure to notify court in timely manner.  After four hours of argument, district court then reserves ruling until trial.  During in camera voir dire at trial, district court issues oral rulings that testimony will be admitted, offering explanations focusing primarily on experts' qualifications.  Jury returns verdict for plaintiffs.  Admissibility reversed.  District court's various limitations on defendant's ability to present information, taken together, constituted abuse of discretion.  Moreover, district court did not prepare sufficiently detailed findings on reliability issues to permit appellate review.  Remanded for new trial.

Morris v. Burnett, 319 F.3d 1254 (10th Cir. 2003).  Man molests boy.  In state criminal trial, man's defense counsel offers testimony from psychologist Dr. Barbara Bebensee to point to inconsistencies in victim's statements and to show that police investigation was not conducted properly.  State trial court excludes testimony insofar as it relates to victim's inconsistent statements, because state evidentiary law forbids opinion testimony on credibility of victim's testimony.  State trial judge also excludes expert's testimony re investigative techniques, because defendant did not carry burden of showing scientific support for proposition that certain investigative methods were more valid than others.  Jury convicts, and state appellate courts affirm conviction.  Man files petition for habeas corpus in federal court.  District court grants writ of habeas corpus because exclusion of Dr. Bebensee's testimony violated constitutional right to present defense.  Reversed.  Validity of investigative methods employed by police is not automatically relevant, and petitioner failed to show how testimony on this point would have tended to negate charges, beyond calling victim's credibility into question.  Under Scheffer, exclusion of opinion testimony on credibility does not implicate constitutional right to present defense where: (1) exclusion affects no significant right of accused; and (2) reliability of proposed expert testimony is questionable.  No significant right of accused was compromised here, because expert had no personal knowledge re victim's statements, and offered only opinion testimony re inconsistencies in statements made by victim to others, which jurors could evaluate for themselves.  Nor does record offer reliable scientific support for proposition that expert's methods for evaluating victim's veracity would be superior to average juror's.

United States v. Cavely, 318 F.3d 987 (10th Cir.), cert. denied, 539 U.S. 960 (2003).  At trial for conspiracy to manufacture methamphetamine, district court admits testimony from government's forensic chemist, John Paulson, re amount of meth that was, or could have been, produced by four meth labs at issue.  Jury convicts.  Admissibility affirmed.  Expert explained his methodology at Daubert hearing.  His technique, which relies on basic chemistry and familiarity with meth production to estimate ultimate outputs based on quantity of precursor ingredients on hand, enjoys support in published literature, is generally accepted in field, and has been used frequently in connection with sentencing issues.

United States v. Rhiger, 315 F.3d 1283 (10th Cir.), cert. denied, 540 U.S. 836 (2003).  At trial of defendant for manufacturing and possessing methamphetamine with intent to distribute, district court accepts government agent as expert on methamphetamine production and investigation of illegal laboratories.  In addition to these subjects, agent, who was also arresting officer, testifies that he smelled methamphetamine on defendant's clothing at time of arrest.  Jury convicts.  Affirmed.  Defendant appears to argue that if agent's testimony re drug odor was expert opinion, it should have been vetted in Daubert hearing, and if it was lay opinion, jury should have been so instructed.  But defendant did not object to testimony at trial, and so its admission is reviewed for plain error.  No plain error appears, because even absent disputed testimony, jury would have had ample basis to convict, and defendant cannot show prejudice.  

United States v. Fredette, 315 F.3d 1235 (10th Cir.), cert. denied, 538 U.S. 1045 (2003).  Principal of business is charged under RICO with marketing bogus fuel rebate coupons, which are so absurdly difficult to redeem that very few consumers successfully navigate redemptions (35,000 vouchers issued, 613 redemption checks cut).  In his defense, defendant invokes concept of "breakage" -- industry jargon for tendency of consumers to let rebate coupons lie fallow rather than jump through hoops required to redeem them.  To support his "breakage" defense, he offers testimony from marketing expert James D. Feldman, who relies on his experience and knowledge of standards in rebate industry.  However, at Daubert hearing, expert testifies that he has never before encountered similar rebate program, where $500 or more was offered over 12-month period, so that comparing "breakage" rates with usual industry levels "doesn't really work."  Expert instead proposes to evaluate defendant's rebate program according to whether its rules and regulations were honored.  Trial court excludes testimony and jury convicts.  Exclusion affirmed.  Where expert relies on his own experience, he must, under Kumho Tire, explain how experience leads to conclusion reached, why his experience is sufficient basis for opinion, and how that experience is reliably applied to facts.  This expert offered no such explanation, nor could he, because his experience related only to different rebate programs, and would not have enabled him to established whether defendant's program adhered to its own rules and regulations.  Moreover, "breakage" concept is not beyond ken of average juror, and district court properly concluded that expert's testimony would not assist trier of fact.

Lantec, Inc. v. Novell, Inc., 306 F.3d 1003 (10th Cir. 2002).  Novell abandons software project with Lantec when Novell merges with WordPerfect.  Lantec brings antitrust claim, alleging Novell and WordPerfect have conspired to monopolize worldwide market in relevant software.  To establish existence of relevant market, Lantec offers trial testimony from economist, Dr. John C. Beyer.  District court excludes testimony and awards judgment as matter of law to Novell.  Exclusion affirmed.  District court properly concluded that Dr. Beyer: (1) used unreliable data; (2) did not understand computers or computer markets; (3) invoked no consumer surveys to support his conclusions, despite testifying that relevant market was determined by consumer purchasing patterns; (4) did not calculate cross-elasticity of demand to identify substitute products; (5) changed his testimony from his earlier report; and (6) did not address changes in computer market.  Particularly troubling is Dr. Beyer's attempt to spin handful of informal conversations with consultants from limited geographic area into rigorous evidence of worldwide product market. 

Fonix, Inc. v. Clarke, No. 01-4051 (10th Cir. Aug. 28, 2002) (unpublished).  Did parties' ambiguous agreement re venture capital provide for finders to receive "trailing fees"?  Software company says no, relying on Robert Miller, expert with extensive experience in investment field, who testifies that trailing fees are rare and that industry practice is to include them in agreements explicitly when they do occur.  Admissibility affirmed.  Finders say Miller was biased because he advised fund that had previously invested in software company.  But finders did not raise this argument below, and it will not be considered on appeal.

Wilson v. Muckala, 303 F.3d 1207 (10th Cir. 2002).  In sexual harassment suit, district court: (1) permits plaintiff's treating psychiatrist to testify re her psychological condition, but not to opine on veracity of plaintiff's allegations of harassment; (2) excludes testimony from plaintiff's human resources expert on reasonableness of defendant's institutional response to plaintiff's allegations of harassment, finding that relevant facts did not require expert explication.  Exclusion affirmed.  Expert testimony on veracity of witnesses is not generally appropriate.  Subjects on which human resources expert would have testified were within ken of average juror and not so impenetrable as to require expert testimony.

United States v. Carter, No. 01-6241 (10th Cir. July 19, 2002) (unpublished), cert. denied, 537 U.S. 1061 (2002).  Federal agent Mike Sanders testifies for prosecution re meaning of code words in drug trade.  Defendant objects that agent is not qualified to opine on meaning intended by defendant in using such language, and that such testimony constitutes improper "profiling" evidence.  District court overrules objections and jury convicts.  Admissibility affirmed.  This is not profiling evidence, and witness did not testify to meaning that defendant attached to any particular language, but only to points of general usage.  Defendant also argues on appeal that testimony was inadmissible under Fed. R. Evid. 403, but this point was not raised below, and no plain error appears.

United States v. Hernandez, No. 01-1194 (10th Cir. June 19, 2002) (unpublished).  Prosecution offers Joseph Mongeluzzo to testify as handwriting expert in tax fraud case.  After Daubert hearing, district court holds that expert may testify on physical characteristics and mechanics of handwriting, and may point to similarities between handwriting on documents and known exemplar from defendant, but may not opine that handwriting on documents is defendant's.  Admissibility affirmed.  Expert had extensive experience, and district court's Solomonic order did not abuse discretion.

Gifford v. Vail Resorts, Inc., No. 01-1155 (10th Cir. June 14, 2002) (unpublished), cert. denied, 538 U.S. 980 (2003).  Plaintiff's son dies after falling into natural gully while skiing.  Plaintiff sues ski resort for wrongful death, claiming resort should have marked gully with "danger" sign.  At trial, plaintiff offers Richard Penniman, ski accident investigator, to opine on accident.  District court qualifies Penniman and permits his testimony but bars plaintiff from referring to Penniman as "expert" in jury's hearing.  Jury finds for resort.  Affirmed.  Plaintiff failed to object at trial to district court's prohibition, and so decision below may be reversed only if it was patently erroneous and prejudicial.  It was neither.  District court permitted witness to offer opinions, and also advised jury that persons with specialized knowledge were permitted to testify to opinions.  Jury was therefore fully advised as to nature and substance of Penniman's testimony.

United States v. Cantwell, No. 01-4171 (10th Cir. May 15, 2002) (unpublished).  At mail fraud trial, government offers testimony from certified fraud examiner, Alan Funk, on pyramid schemes.  Admissibility affirmed.  Witness was qualified.  He testified to experience with 300 investigations, including many fraud investigations, some specifically involving pyramid schemes.  Defendant argues that testimony was irrelevant and/or prejudicial because defendant was not charged with operating pyramid scheme, but testimony was plainly relevant to show scheme to defraud under mail fraud statute.

Hollander v. Sandoz Pharmaceutical Corp., 289 F.3d 1193 (10th Cir.), cert. denied, 537 U.S. 1088 (2002).  Woman takes Parlodel to suppress postpartum lactation, suffers stroke, and sues Parlodel's manufacturer, offering causation testimony from three physicians: Dr. Kenneth Kulig (toxicology), Dr. Leslie Iffy (obstetrics and gynecology), and Dr. Pedro A. Jose (biophysics).  District court excludes testimony from all three as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Some argot alkaloids cause vasoconstriction, and Dr. Kulig concludes from this that bromocriptine, an ergot alkaloid contained in Parlodel, may also do so.  But bromocriptine has different chemical structure from other ergot alkaloids, and even minor differences in chemical structure can lead to major differences in physiological effects.  Dr. Kulig's testimony on Parlodel's pharmacological properties is similarly speculative; e.g., he does not identify "company studies" on which he purports to rely.  Dr. Jose also testifies to pharmacological mechanism by which bromocriptine might cause vasoconstriction, but although Dr. Jose's theory is elegant, it is untested, and district court did not show manifestly unreasonable judgment in excluding it.  Both Dr. Kulig and Dr. Iffy testify based on studies linking Parlodel to postpartum hypertension, but those studies did not address strokes.  Likewise, animal studies invoked by plaintiffs' experts show only that bromocriptine may act as vasoconstrictor in certain animals and narrow circumstances, and do not suffice to establish stroke causation.  Plaintiffs' experts also rely on case studies and differential diagnosis, which district court rejected as unscientific methodologies.  Tenth Circuit need not reach question whether these techniques can ever constitute sound methodology, because even assuming that differential diagnosis is legitimate medical technique, district court could reasonably conclude that plaintiffs' experts provided no sound basis on which to "rule in" bromocriptine as potential cause.  District court could also properly discount reliance on rechallenge and dechallenge data, especially given sparsity of those data. 

Standard v. Union Pac. R.R., No. 00-7083 (10th Cir. Apr. 8, 2002) (unpublished).  Defendant in FELA action challenges qualifications of plaintiff's vocational rehabilitation expert, Dr. Cary Bartlow.  Admissibility affirmed.  Defendant's challenge was to expert's qualifications; no explicit Daubert challenge attacked expert's methods for want of reliability.  District court conducted extensive hearing on admissibility and acted within its sound discretion in admitting testimony.  Credibility issues were for jury.

United States v. Turner, 285 F.3d 909 (10th Cir.), cert. denied, 537 U.S. 895 (2002).  District court rejects criminal defendant's Daubert challenge to prosecution's fingerprint evidence without conducting Daubert hearing, believing fingerprint identification to constitute example of evidence whose reliability "is properly taken for granted" under KumhoConviction affirmed.  More detailed findings by district court would have been desirable, but any error was harmless.

Bristol v. Board of County Commissioners, 281 F.3d 1148 (10th Cir. 2002), vacated in part on other grounds, 312 F.3d 1213 (10th Cir. 2002) (en banc).  Dr. Joanne Bourn testifies in support of plaintiff's claims under Americans with Disabilities Act, opining re: (1) impairment caused by plaintiff's heart condition; and (2) plaintiff's qualifications for various positions.  Admissibility affirmed.  Defendants offer no evidence that trial court abused its discretion.

Rogers v. United States, 281 F.3d 1108 (10th Cir. 2002).  Individual purchases substantial interest in Kansas City Royals baseball team.  Hounded by creditors, same individual later borrows $34 million from Royals via nonrecourse note secured by his interest in team.  On repayment date, individual transfers his interest to team in lieu of foreclosure.  Come tax time, team's owner deducts $34 million as bad debt, claiming collateral to be without value.  IRS denies deduction, because it views repayment transaction as redemption of stock.  IRS offers testimony from four experts, including Andrew Zimbalist, who appraised value of team as of date of loan.  Owner moves to strike.  District court denies motion to strike and awards summary judgment to IRS.  Affirmed.  Because transaction was sale, not loan, Mr. Zimbalist's testimony is irrelevant, and its reliability need not be reached.  Were it to be reached, owner has not met burden of establishing that admitting testimony was abuse of discretion under Kumho Tire.

United States v. Caballero, 277 F.3d 1235 (10th Cir. 2002).  In criminal fraud and conspiracy trial, INS financial analysts summarize defendants' financial records.  Admissibility affirmed.  Because witnesses did not give opinion testimony, they were not testifying as experts.  They merely summarized defendants' financial records, as Fed. R. Evid. 1006 permits.  Consequently, neither Daubert nor the expert discovery provisions of Fed. R. Crim. P. 16 were applicable.

Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002), cert. denied, 125 S. Ct. 2301 (2005).  Man convicted of murder in state court petitions for habeas corpus, alleging that state trial court erred in barring testimony from petitioner's physician re "Steroid Rage Syndrome" (SRS), and that counsel rendered ineffective assistance by not presenting expert's more general testimony re effects of steroids on petitioner's state of mind.  District court denies petition.  Reversed.  District court determined that state trial court did not err in barring testimony re SRS, because defense counsel: (a) failed to establish reliability of SRS theory under either Daubert or Frye; (b) expressly disclaimed any intent to use SRS evidence in guilt phase; (c) did not seek to offer steroid evidence in sentencing phase.  Tenth Circuit agrees with district court's conclusions, but dispositive fact is that state trial court barred only testimony relating specifically to SRS, leaving admissibility of other steroid evidence open, and never barring the latter.  Remaining question is whether trial counsel rendered ineffective assistance in failing to offer any steroid evidence.  As to guilt phase, petitioner has failed to show that counsel's performance fell sufficiently far below par to constitute ineffective assistance; steroid evidence would not have lessened defendant's culpability.  As for penalty phase, however, physician's testimony re effects of steroid usage was relevant and reflected emerging scientific consensus (although physician conceded that "Steroid Rage Syndrome" was not specifically recognized).  Testimony was therefore admissible under Daubert.  District court should determine on remand whether counsel's failure to offer that testimony during sentencing phase amounted to ineffective assistance.

Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir. 2001).  After surgery for cancer of femur, patient trips and fractures femur.  Device is surgically implanted to hold bones together so they can heal.  Patient subsequently twists leg at work, and physical examination reveals that implanted device has broken.  Original surgeon replaces original device with intramedullary nail.  Plaintiff subsequently complains of pain.  Specialist in oncologic orthopedics examines patient and concludes that original fractures have failed to heal, though not by reason of any failure of original device.  New orthopedic surgeon removes intramedullary nail and performs total knee replacement.  Patient brings failure to warn claim against manufacturer of original device and offers second surgeon as expert.  District court excludes testimony from second surgeon because she is unqualified and also for want of reliability under Daubert.  Summary judgment is then awarded to defendant.  Exclusion affirmed.  Court of appeals need not reach reliability issues, because district court properly excluded witness as unqualified.  Expert's sole qualification was that she was orthopedic surgeon.  Expert admitted she was not expert in intramedullary nailing, had done no research on subject, was not retained as expert on warnings, and had never drafted any warnings for this or any other medical product. 

United States v. Walters, No. 00-3307 (10th Cir. Dec. 7, 2001) (unpublished).  Criminal defendant stipulates to admissibility of polygraph before test but objects when unfavorable test results are offered.  District court conducts Daubert hearing and concludes that polygrapher has offered sufficient defense of polygraph exam's reliability.  District court also declines to exclude evidence as more prejudicial than probative.  Admissibility affirmed.  Defendant did not present any evidence to rebut polygrapher's testimony re methodology, and in fact had stipulated to its admissibility.  Moreover, district court crafted lengthy jury instruction to prevent jurors from giving undue weight to polygraph results.  District court did not abuse discretion in Daubert analysis or in refusing to exclude testimony as unduly prejudicial.

United States v. Adams, 271 F.3d 1236 (10th Cir. 2001), cert. denied, 535 U.S. 978 (2002).  Responding to residential disturbance call, police find semi-automatic pistol during vehicle search.  When questioned, man in vehicle admits to purchasing gun and repeats same story at station, giving date, time, and location of sale and identity of seller.  After being charged with illegal possession of handgun by felon, however, man changes story and says he was lying to police to protect girlfriend, whom he had believed to be pregnant.  Trial court excludes testimony from clinical psychologist that man's low neurocognitive functioning and dependent personality structure raise strong possibility that confession was untruthful.  Exclusion affirmed.  Blanket prohibition on credibility witnesses in criminal trials may be unconstitutional, but witnesses must still pass evidentiary muster.  There are many reasons why expert testimony such as this may be inadmissible: (1) it may encroach on jury's function; (2) it may exceed scope of witness's expertise; (3) it may unduly sway jury.  Trial court was within discretion in concluding that testimony here would not assist jury.

United States v. McPhilomy, 270 F.3d 1302 (10th Cir. 2001), cert. denied, 535 U.S. 966 (2002).  Defendants remove several tons of stone from government community pit without proper permits and are charged with theft.  Defendants object to testimony from government's geologist re quality, quantity, and value of stone.  Admissibility affirmed.  Geologist inspected stone, had considerable training and experience, and used same methods he utilized when performing work for Bureau of Land Management (BLM).  More extensive and costly tests might have been preferable, but geologist's work was sufficiently reliable to support his opinion on quality of stone.  He also employed common method for estimating tonnage -- i.e., he estimated volume of stone and calculated weight based on data provided for that purpose in BLM publication.  And geologist could properly estimate retail value by inquiring at other stone yards about retail prices of comparable stone. 

Black v. M&W Gear Co., 269 F.3d 1220 (10th Cir. 2001).  Tractor mower rolls over, killing rider.  In products liability action against mower's manufacturer, plaintiff's theory is that mower was defective because it did not have any rollover protective structure (ROPS).  Manufacturer offers engineering expert to testify that ROPS would not have prevented fatality.  District court excludes testimony because expert made no tests or calculations.  Exclusion affirmed.  Trial court cannot be said to have abused discretion.

Hyler v. Geo-Seis Helicopters, Inc., 269 F.3d 1190 (10th Cir. 2001).  Plaintiff's expert in wrongful death claim attributes helicopter crash to failed tail rotor.  District court excludes testimony under Daubert and awards judgment as matter of law to defendants.  Affirmed.  Even assuming testimony was admissible, plaintiff offered insufficient evidence to establish other necessary elements -- e.g., that rotor was defectively overhauled.

Noel v. Martin, No. 00-1532 (10th Cir. Oct. 19, 2001) (unpublished).  Plaintiff brings legal malpractice action against counsel who sought to prove damages in underlying commercial litigation by calculating what plaintiff would have earned had he invested in Standard & Poor's 500 securities rather than franchise management corporation.  Defendants in underlying litigation had countered that plaintiff's actual investment history did not reflect investments in securities of S&P 500 caliber, but rather in fast food franchises, oil and gas ventures, real estate, vacation homes, and race horses.  In malpractice action, plaintiff offers expert testimony from trial lawyer, who opines that no reasonable attorney would offer evidence so vulnerable to attack.  Exclusion affirmed.  Plaintiff contends that expert could reliably opine on general question of counsel's reliance on vulnerable evidence despite expert's lack of experience with stock valuation cases and expert's unfamiliarity with facts underlying previous lawsuit.  Plaintiff's position is too simplistic.  First, plaintiff cannot have been prejudiced if he was unable to prove any damages under alternative theories, and there was nothing to support expert's assumption that plaintiff could do so.  Second, expert assumed that plaintiff had never invested in stock market, but plaintiff's financial statements showed otherwise, and in fact plaintiff was licensed securities dealer.  Moreover, expert assumed that outcome in original action would have been different if lost earnings evidence had not been presented, but that assumption was pure speculation.  Expert failed to read transcript of underlying litigation or familiarize himself with evidence therein.  District court in instant litigation could properly exclude expert's testimony as unreliable.

Alfred v. Caterpillar, Inc., 262 F.3d 1083 (10th Cir. 2001), cert. denied, 535 U.S. 928 (2002).  Operator accidentally propels paver in wrong direction and pins woman against tree, causing injuries requiring amputation of her leg.  In defective design suit against paver manufacturer, woman offers testimony from engineer that paver's use of rotary speed control instead of lever violated industry standards and made for "counterintuitive" operation.  Trial court grants motion to exclude engineer's testimony after close of plaintiff's evidence and awards judgment to defendant as matter of law.  Exclusion reversed in part.  In Macsenti (see below), Tenth Circuit upheld district court's refusal to consider tardily filed Daubert motions and criticized practice of filing Daubert motions after close of evidence.  Here, district court chose to consider defendant's Daubert motion instead of treating it as waived.  But because of its disposition on merits, Tenth Circuit will leave further development of jurisprudence on timing of Daubert motions for another day.  District court erred in excluding engineer's testimony that use of rotary speed control  violated engineering standards promulgated by Society of Automotive Engineers.  But expert's opinion on "counterintuitive" operation involved analysis of human factors, which fell outside engineer's expertise.  Without latter testimony, plaintiff had insufficient evidence to prove defect, and award to defendant of judgment as matter of law was therefore appropriate.

Hellums v. Williams, No. 00-2100 (10th Cir. Aug. 8, 2001) (unpublished).  Man is accused of molesting child.  In New Mexico's state criminal proceedings, prosecution introduces expert testimony from psychologist Dr. Robert Zussman and counselor Julia Barker.  Jury convicts.  In federal habeas corpus proceedings, man complains that prosecution experts impermissibly vouched for victim's credibility.  District court grants habeas relief and orders new state trial.  Affirmed.  New Mexico follows federal rule on expert testimony, and that rule holds that expert opinions on victim's credibility are beyond scope of experts' specialized knowledge.  Admission of testimony was not harmless error. 

Veile v. Martinson, 258 F.3d 1180 (10th Cir. 2001).  Wyoming mortuary brings civil rights action claiming constitutional property interest in rotation policy for county coroner cases.  District court strikes testimony from mortuary's expert -- Ronnie W. Flud, coroner for Clark County, Nevada -- for want of reliability.  Summary judgment is then awarded to defendants.  Exclusion affirmed.  Mortuary failed to include expert's report in record, and Tenth Circuit is therefore unable to evaluate district court's evidentiary ruling.

United States v. Busby, No. 00-5014 (10th Cir. July 3, 2001) (unpublished), cert. denied, 534 U.S. 1031 (2001).  FBI document expert testifies at criminal trial that certain records obtained in police investigation were consistent with and in format of "an illegal drug organization's record keeping."  Admissibility affirmed.  District court did not abuse discretion or offend Daubert or Kumho Tire.

Turck v. Baker Petrolite Corp., No. 00-5082 (10th Cir. May 31, 2001) (unpublished).  To prove damages in wrongful retaliatory discharge claim, worker offers testimony from accountant, which district court admits over defendant's objection.  Admissibility affirmed.  Accountant was qualified because he held bachelor's degree in accounting, had worked as accountant since 1972, and had run his own accounting business since 1983.  As for reliability, accountant used salary data supplied by plaintiff to project future lost wages with aid of computer program.  District court did not abuse discretion in admitting testimony.

United States v. Sparks, No. 99-6387 (10th Cir. May 2, 2001) (unpublished).  Defendants solicit deposits for "bank" and convert "deposits" to their own use.  On trial for mail fraud and money laundering, defendants offer accountant to testify that "bank's" holding company had sufficient funds to cover deposits.  Trial judge excludes further testimony from accountant because: (a) authenticity of documents on which accountant has relied is questioned and questionable; and (b) holding company's possession of funds is irrelevant to show solvency of "bank" absent legal obligation by holding company to back "bank's" deposits.  Exclusion affirmed.  Accountant could not establish authenticity of documents, which he received from defendants, nor was documents' authenticity reliably established by defendants' own testimony.  And accountant himself testified that nothing in documents established any obligation by holding company to back or guarantee deposits in defendants' "bank."

United States v. Arney, 248 F.3d 984 (10th Cir. 2001).  On trial for bank fraud, defendant offers testimony from Nelson Bonifeld, CPA and former IRS agent, re: (1) applicable accounting methods and IRS reporting requirements for farmers; and (2) unlikelihood that banks would place material reliance on falsified tax returns submitted by defendant.  District court excludes testimony and defendant is convicted.  Exclusion affirmed.  Defendant argues that CPA's testimony on first point was relevant to fraudulent intent.  Any such relevance is questionable, but in any event, district court permissibly excluded testimony as cumulative and likely to confuse jurors.  Defendant had opportunity to testify re his intent, and CPA presumably did not have greater expertise on this subject than defendant himself.  As for second point, district court permissibly excluded CPA's testimony because it found his expertise did not extend to knowledge of types of documents on which banks rely in extending credit.

Tusshani v. United States, No. 00-8031 (10th Cir. Apr. 5, 2001) (unpublished).  Prisoner brings Federal Tort Claims Act Claim for medical malpractice, alleging transfer to different facility interrupted rehabilitative treatment for his spinal injuries, permanently and/or temporarily interfering with his recovery.  Treating physician testifies at deposition that interruption did adversely affect condition but that she knows of no reason why interruption should prevent prisoner from reaching full potential for ambulation upon resumption of treatment.  District court awards summary judgment to United States, relying on treating physician's testimony that with resumed therapy prisoner could achieve his full potential for ambulation, excluding physician's other testimony on "fit" grounds, and noting absence of any neurological evidence.  Exclusion affirmed in part and reversed in part.  Physician did testify that interruption in treatment caused substantial non-permanent injuries to prisoner, and so summary judgment should not have been awarded as to those.

Stills v. Dorsey, No. 00-2475 (10th Cir. Mar. 29, 2001) (unpublished).  Prisoner brings habeas action, alleging his New Mexico murder conviction should be overturned because polymerase chain reaction (PMR) method of DNA testing, on which prosecutors relied, is invalid.  Appeal dismissed (admissibility affirmed)On convict's initial appeal, New Mexico Supreme Court thoroughly analyzed PMR testing and concluded it satisfied Daubert.  Convict's objections to PMR evidence go to weight, not admissibility.

Phillips v. Hillcrest Medical Center, 244 F.3d 790 (10th Cir. 2001), cert. denied, 535 U.S. 905 (2002).  Decedent's estate brings medical malpractice action after emergency personnel misdiagnose his acute bacterial endocarditis as pneumonia.  District court permits hospital, in support of its comparative negligence defense, to introduce evidence that decedent failed to inform them of his use of illegal drugs when decedent provided his medical history.  (Hospital contends knowledge of illicit drug use would have precipitated more extensive testing.)   Decedent's estate seeks to rebut with physician testimony that any illicit drug use did not cause decedent's death.  Exclusion affirmed.  Ordinarily, Tenth Circuit would review exclusion of expert testimony under standards set forth in Daubert, but district court  excluded physician's testimony not pursuant to Daubert, but as irrelevant, because causation of death was not in issue.  Such decisions are reviewed for abuse of discretion, and will not be reversed unless district court's ruling was "arbitrary, capricious, whimsical, or [showed] manifestly unreasonable judgment."  Estate suffered no prejudice, because hospital never argued that decedent's drug use caused his death.

United States v. Martinez, No. 00-2054 (10th Cir. Mar. 26, 2001) (unpublished), cert. denied, 534 U.S. 881 (2001).  Defendant is accused of aggravated sexual assault of ten-year-old girl.  At trial, victim's mental health counselor, Dr. Judith Tyler, testifies as prosecution expert, opining without objection that victim's symptoms are consistent with trauma.  Jury convicts.  Admissibility affirmed.  Because defendant raised no reliability challenge at trial, review is for plain error.  District court should have made reliability findings, but did not abuse discretion in admitting testimony.  Witness was amply qualified, and explained how she drew her conclusions.  Defendant also explored expert's reasoning on cross-examination.  Nor was testimony's probative value outweighed by any prejudicial effect.

Macsenti v. Becker, 237 F.3d 1223 (10th Cir.), cert. denied, 533 U.S. 950 (2001).   An Oklahoma dentist (Dr. Jon David Becker) leaves patient on nitrous oxide and other medications for over ten hours, while dentist: (a) passes out ten to fifteen times during procedure (from exhaustion, he says); (b) leaves office to attend municipal court hearing for driving under suspended license; and (c) is arrested again for driving under suspended license on his way back to office.  In action for personal injury and intentional infliction of emotional distress, patient offers testimony from expert on oral surgery opining that plaintiff has suffered brain injury from diffusion hypoxia caused by medications administered by dentist, whose counsel does not object at time of oral surgeon's testimony but later moves for exclusion under Daubert after close of evidence.  Admissibility affirmed.  Because objection was untimely, admissibility decision is reviewed for manifest error.  None appears.

Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (10th Cir. 2000).  In dispute over gas lease for carbon dioxide production, lessors offer economist to testify on fair market value.  Economist's theory is that market prices do not provide reliable indicator of value, because most carbon dioxide producers are vertically integrated and produce primarily for their own use, creating incentives to keep prices artificially low.  Economist would instead compute fair market value by equating price in hypothetical competitive market with economic benefit derived by purchaser from use of carbon dioxide.  District court holds hearing on motion in limine and permits economist to testify only based on actual sales data in West Texas.  Exclusion affirmed.  District court found that economist had developed his views for litigation, had not employed same methods on previous occasions to determine market value of carbon dioxide, and had not subjected his methods to peer review.  District court also found that economist failed to take account of actual prices of carbon dioxide in West Texas and comparable markets.  Although economists can and sometimes must estimate price by hypothetical means, courts prefer data from actual markets.  Judged by this standard, district court did not err in concluding that economist strayed too far from actual data.  Tenth Circuit might reach different conclusion from district court if addressing issue in first instance, but standard of review on Daubert issues is deferential.

United States v. Allerheiligen, No. 99-3144 (10th Cir. Aug. 1, 2000) (unpublished), cert. denied, 531 U.S. 1079 (2001).  Law enforcement personnel find large numbers of marijuana plants on man's property, along with marijuana-growing paraphernalia.  Man offers testimony from three putative experts (one columnist for High Times magazine, one law enforcement officer, and one lawyer) on differences between marijuana grown for distribution versus marijuana cultivated only for personal use.  District court excludes testimony from all three as extending beyond any specialized knowledge they possess.  District court also excludes testimony from physician re defendant's medical and psychological conditions, because no medical necessity defense to marijuana possession is recognized.  Exclusion affirmed.  District court did not abuse discretion in excluding testimony from distribution-versus-personal-use witnesses.  Defendant says physician's testimony was relevant not only to medical necessity defense but also to show that quantity of marijuana on premises would be consistent with personal consumption, but district court could nevertheless exclude physician's testimony as likely to confuse jury under Fed. R. Evid. 403.

Mimaco, LLC v. Maison Faurie Antiquities, No. 99-2072 (10th Cir. July 31, 2000) (unpublished).  Antique book dealer sells estate collection.  Did he first remove some books from collection?  Purchaser offers testimony from two book collectors re items they would have expected to find in collection and value thereof.  Admissibility affirmed.  It is true that experts had no firsthand knowledge of items in collection, but experts do not require firsthand knowledge, and in any event they did not testify that defendant removed books.

Call v. State Industries, No. 99-8046 (10th Cir. July 24, 2000) (unpublished).  Home burns down.  Homeowners' insurer brings subrogation action against manufacturer of hot water heater and offers two experts of some kind [on design defect? on causation?].  Admissibility affirmed.  District court conducted extensive hearings to establish qualifications of experts and reliability of testimony.  Establishing precise "rate of error" or showing that experts' theories have been subjected to peer review and publication are not prerequisites to finding of reliability in all instances.  Moreover, any deficiencies in expert testimony were grist for cross-examination.

Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000).  Train breaks down in Moffat Tunnel -- which is six miles long and crosses continental divide in Colorado at altitude of nearly two miles.  Conductor attributes subsequent neurological symptoms to prolonged inhalation of diesel fumes while trapped in tunnel.  Over railroad's objection, district court admits testimony from conductor's toxicologist to this effect.  Admissibility reversed.  District courts enjoy considerable leeway in procedures they adopt to evaluate reliability, but nothing in record indicates that district court conducted any Daubert inquiry at all, as it should on remand.  [For developments following remand, see Goebel v. Denver & Rio Grande Western R.R., No. 02-1391 (10th Cir. Oct. 9, 2003), supra.]

Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000).  Operator of construction equipment fails to notice coworker, whose leg is consequently crushed by machine and subsequently amputated.  Should machine have had mirrors, which might have rendered injured worker visible to operator?  Or would mirrors just foster undue operator complacency, thereby causing more accidents than they prevented?  In product liability suit against machine's manufacturer, injured worker offers testimony on design defects from human factors engineer and from safety consultant, as well as nonquantitative testimony on hedonic damages from forensic economist.  Jury returns verdict of $27 million in compensatory and punitive damages.  Admissibility affirmed.  Manufacturer objects that neither engineer nor safety consultant had firsthand experience with relevant machine, but such firsthand knowledge is not prerequisite to admissibility of expert testimony.  This objection goes to weight.  As for forensic economist, defendant succeeded in excluding economist's testimony on value of plaintiff's hedonic damages, and so economist testified only to commonsense qualitative proposition that value of life is not measured exclusively by individual's earning power.  District court soundly exercised discretion in permitting this component of economist's testimony, so that jury would not overlook component of damages permitted under relevant law.

United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000), cert. denied, 541 U.S. 1069 (2004).  At prosecution for sexual abuse of child on Indian reservation, government offers testimony from two psychologists that child's statements and behaviors are consistent with episode of abuse.  District court refuses to conduct reliability analysis and defendant is convicted.  Admissibility reversed.  District court erred in failing altogether to exercise gatekeeping function, and error was not harmless.

Hynes v. Energy West, Inc., 211 F.3d 1193 (10th Cir. 2000).  Gas pipeline is damaged, natural gas leaks into basement of apartment building, and plaintiffs are injured when gas explodes.  In their tort action against gas company, plaintiffs contend, among other things, that dangerous condition went undetected because gas company improperly odorized its natural gas.  In support, plaintiff's chemist testifies that gas lost its odor by interaction with alkalines and/or iron oxides in soil between pipeline leak and building basement, and that use of odorant thiophene would have prevented or mitigated odor loss.  Admissibility affirmed.  Defendants argue that chemist's testimony satisfied none of Daubert's four factors.  But those factors are not talismanic.  Chemist had substantial education and industry experience, and was able to articulate scientific process through which gas odor loss would occur.

Garrett v. Bryan Cave L.L.P., No. 98-6282 (10th Cir. Apr. 21, 2000) (unpublished).  Action for legal malpractice.  Did plaintiff's counsel disclose privileged or confidential information in proffer session with United States Attorney's office, leading to plaintiff's indictment?  To fend off summary judgment, plaintiff offers testimony from expert attorney who finds it "extremely difficult to believe that an attorney could investigate all of these matters for a period of over two years, then have a discussion with someone about those transactions, and not divulge either direct privileged communications or the fruit of those privileged communications."  Summary judgment affirmed.  Expert admitted he did not have personal knowledge of what was said at proffer session, and conclusory affidavit about what expert found "difficult to believe" was not sufficient to create genuine issue of fact (citing Daubert).

Storts v. Hardee's Food Systems, Inc., No. 98-3285 (10th Cir. Apr. 6, 2000) (unpublished).  After being abducted from parking lot of fast-food establishment along Kansas Turnpike, woman is raped and sodomized at gunpoint.  Woman sues Hardee's for supplying inadequate security and offers three experts to testify re security measures Hardee's should or could have taken.  District court admits testimony from all three.  Jury returns verdict for plaintiff.  Admissibility affirmed.  Expert "Mallard" had extensive experience in law enforcement and personal knowledge of Kansas Turnpike.  Fred DelMarva had extensive background in restaurant management and security, especially re fast food parlors.  And Michael Witkowski's testimony was based on theory of Crime Prevention Through Environmental Design ("CPTED"), which enjoys widespread acceptance and was employed by Hardee's as part of its security program.  Testimony from experts Mallard and Witkowski re foreseeability of harm did not improperly invade jury's province by addressing ultimate issue, because both explained bases for their testimony in detail.

United States v. Koruh, No. 99-2138 (10th Cir. Apr. 3, 2000) (unpublished).  Charged with sexual abuse of his two underage nieces in Indian country, defendant denies any molestation.  Prosecution offers pediatrician, Dr. Renee Ornelas, to testify that children commonly do not disclose sexual abuse for years, and also that when children are sexually abused but not penetrated, she would expect no medical findings.  District court admits testimony and jury convicts.  Admissibility affirmed.  Defendant did not contest expert's qualifications at trial, but objects that expert had not spoken with either victim, and was improperly offered to bolster victims' credibility.  But profile evidence that generally describes emotional and psychological characteristics of abused children is helpful to trier of fact, where molestation is contested, and is admissible without regard to performance of medical or physical examination.  No abuse of discretion.   

United States v. Ocho-Zaragoza, No. 99-4051 (10th Cir. Feb. 17, 2000) (unpublished).  Hispanic defendant offers linguist, Dr. Steven Sternfeld, to testify that defendant lacked sufficient English comprehension to carry on extended conversation.  District court permits that opinion, but excludes testimony from linguist re defendant's ability to comprehend police during two specific conversations.  Exclusion affirmed.  District court did not abuse discretion, given that expert was not present during conversations at issue.

United States v. Ledesma, No. 99-8026 (10th Cir. Feb. 14, 2000) (unpublished).  Criminal defendant seeks to offer testimony from chemist-toxicologist re effects of methamphetamine use on perceptions and memories of witnesses who were or had been drug abusers.  Exclusion affirmed.  District court was concerned that witness's training and experience focused primarily on detection of toxic substances and chemicals in tissue and fluids, not on pharmacological or psychological effects of methamphetamine use.  Although witness may have read some literature on effects of drug use on perception and memory, district court was also concerned that her testimony would be time-consuming and potentially confusing to jury.  Same general points could be elicited from other witnesses.  District court acted within its sound discretion in concluding that proffered testimony, even if reliable, would not have assisted jury.

Questar Pipeline Co. v. Grynberg, 201 F.3d 1277 (10th Cir. 2000).  In civil action arising from dispute over natural gas contracts, purchaser objects to trial testimony from seller's damages witness but only after testimony has concluded.  District court initially overrules objection as untimely but issues post-trial ruling that testimony was methodologically unsound and should not have been presented to jury.  Exclusion reversed.  Purchaser waived objection by withholding objection until testimony was complete.  Purchaser argues that district court could exclude evidence sua sponte, but Daubert does not abrogate requirement of timely objection, and district court's post-trial reconsideration prejudiced seller, which had no way to know during trial that it needed to present further evidence on issue.  Moreover, purchaser points to no record material indicating that witness was even testifying as expert.

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