Volume II, Issue 5 (week ending 1/30/04)   

To view the list of cases and rules of evidence
currently being tracked, go to:
http://dev.dauberttracker.com/gatekeepingstandards.cfm
1. Bourne vs. E.I. Dupont De Nemours & Co.
Date of Decision: 1/27/2004 Jurisdiction: Federal
Docket Numbers: 02-1469 Court: 4th Circuit
Area of Law: Products Liability Judge(s): Before WIDENER, NIEMEYER and GREGORY, Circuit Judges
Gatekeeping Issue: Federal Cases;Kumho, Federal Rules;Rule 702, Federal Cases;Joiner, Federal Cases;Daubert    
Expert Discipline Area of Expertise Disposition
Dr. Charles Vyvyan Howard, M.D. Medicine;Pathology, Medicine;Pediatric Pathology Exposure to Benlate and teratogenicity; Fetal toxio-pathology Testimony properly excluded.
Dr. Randall L. Tackett, Ph.D. Pharmacology, Toxicology Exposure to Benlate and teratogenicity Testimony properly excluded.
Dr. Howard A. Maibach, Ph.D. Medicine;Dermatology Dermal transmission rate of benomyl into human blood Defense expert not challenged.
Dr. Alexander M. Walker, M.D., Ph.D. Medicine;Epidemiology Benomyl exposure and anophthalmia Defense expert not challenged.

Case Summary:

 A minor plaintiff sued defendant (the maker of a pesticide called "benlate"--active ingredient "benomyl"). Plaintiff alleged the pesticide caused his teratogenic birth defects. The lower court barred his experts who were to opine as to both specific and general causation. The district court excluded the testimony of Bourne's experts finding it unreliable under Daubert and Rule 702. The court then granted defendant's motion for summary judgment and dismissed the case. Plaintiff appealed, and argued the lower court erred. The appeals court disagreed, and noted the lower court balanced the two guiding, and sometimes competing, principles underlying the Daubert analysis. As to general causation, the lower court concluded the analytical gap between the rat evidence relied upon by Drs. Howard and Tackett and the inferences drawn therefrom was simply too wide, rendering the extrapolations a poor "fit" for the facts of the case. As to specific causation, the lower court likewise rejected the testimony. Whether (a) derived from the molecular weight of 5-HBC (a benomyl metabolite) in subjects' urine in the plaintiff's human dermal absorption study or (b) extrapolated directly from 20-year old Belasco tests involving the administration of benomyl to permeable rat skin for extended durations, the 3.5% dermal absorption rate used by Drs. Howard and Tackett could not be said to be methodologically sound. The judgment was affirmed.
2. Children's Broad. Corp. vs. Walt Disney Co.,
Date of Decision: 1/26/2004 Jurisdiction: Federal
Docket Numbers: 02-3161/02-3310 Court: 8th Circuit
Area of Law: Intellectual Property Judge(s): Before LOKEN, Chief Judge, HEANEY and RILEY, Circuit Judges
Gatekeeping Issue: Federal Cases;Kumho, Federal Rules;Rule 702
Expert Discipline Area of Expertise Disposition
Dr. Jonathan Putnam, Ph.D., J.D. Economics;Economics (Unspec.), Law;Intellectual Property Valuation of trade secrets Testimony properly admitted.

Case Summary:

 Children's Broadcasting Company sued ABC Radio Networks, Inc. and The Walt Disney Company for breach of contractual duties to sell advertising and to maintain confidentiality, and for misappropriation of a trade secret. The case was tried to a jury, which awarded Children's $ 1.5 million for breach of contract, and $ 8 million for breach of the contractual duty of confidentiality and misappropriation of the trade secret. ABC Radio and Disney appealed, and argued the theories of Dr. Jonathan Putnam, the damages expert witness for plaintiff, were unfounded and speculative. The appeals court disagreed, and noted Putnam offered a theory regarding ABC Radio's and Disney's accelerated entry into children's radio. The appeals court noted the jury could have used all or some or none of Dr. Putnam's various acceleration intervals (eleven months to two years) as benchmarks to calculate the appropriate amount of damages, depending on the jury's findings regarding the amount of acceleration resulting from ABC Radio's and Disney's conduct. The district court stated it was satisfied with Dr. Putnam's credentials for valuing trade secrets, and Dr. Putnam used an accepted academic methodology. The trial court found Dr. Putnam's testimony relevant and reliable. The trial court concluded ABC Radio's and Disney's objections to Dr. Putnam's opinion were better directed to the weight of the testimony rather than admissibility. Finally, the district court found the defendants had a full opportunity to cross-examine Dr. Putnam and could have presented expert testimony to rebut Dr. Putnam's assertions. The appeals court agreed, and found no abuse of discretion. The judgment was affirmed.
3. City of Kodiak vs. Samaniego
Date of Decision: 1/23/2004 Jurisdiction: State
Docket Numbers: S-10365, No. 5772 Court: Alaska, Supreme Court
Area of Law: Personal Injury Judge(s): Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices
Gatekeeping Issue: Federal Rules;Rule 702
Expert Discipline Area of Expertise Disposition
Michael A. Brave, J.D. Law;Law (Unspec.), Security Use of force Testimony properly barred.

Case Summary:

 Samaniego sued the City of Kodiak for false confinement and battery when Sergeant Marsh of the Kodiak Police Department grabbed her and prevented her from leaving the scene of an Immigration and Naturalization investigation. At trial, the jury found that Sergeant Marsh had falsely confined and battered Samaniego. The Samaniegos moved to exclude the testimony of Michael A. Brave, one of Kodiak's expert witnesses. Brave was an expert on the use of force. The court granted the motion to exclude Brave's testimony, finding that his expert opinion contained credibility determinations regarding the witnesses in the case and would usurp the court's role in instructing the jury on the applicable law of "reasonable force." The City appealed, but the appeals court found no error below. The superior court acted within its discretion in determining that Brave's testimony would not assist the trier of fact. Brave's report contained solely conclusory opinions that Marsh's actions toward Samaniego "were at all times objectively reasonable," and that Marsh's seizure of Martha was objectively reasonable under the totality of the circumstances. The appeals court noted Brave's legal conclusion (that Marsh properly seized Martha as a material witness) conflicted with the trial court's correct conclusion that exigent circumstances did not exist. The superior court did give an instruction providing legal justification for Marsh's action if the jury determined that Marsh reasonably believed that Martha was subject to an INS investigation. Brave's expert testimony would not have been helpful to the jury on this point because his opinion was based on Martha's status as a witness, not as a subject of investigation. The judgment was affirmed.
4. Commonwealth vs. Serge
Date of Decision: 12/3/2003 Jurisdiction: State
Docket Numbers: 423 MDA 2002 Court: Pennsylvania, Superior Court
Area of Law: Criminal Law Judge(s): Before STEVENS, BOWES and CAVANAUGH, JJ.
Gatekeeping Issue: Federal Rules;Rule 401, Federal Rules;Rule 803, Federal Rules;Rule 403
Expert Discipline Area of Expertise Disposition
Trooper Bradley Beach Accident Recon./Invest., Crime Scene Rec/Invest, Police/Law Enf. Officer Crime scene reconstruction Testimony properly admitted.
Randy Matzkanin Crime Scene Rec/Invest Computer-generated animation in crime scene reconstruction Testimony properly admitted to authenticate animation.
Dr. George Jackson, Ph.D. Toxicology Intoxication Trial court did not err in allowing prosecutor to introduce certain medical records during its cross-examination of this defense witness.

Case Summary:

 Defendant was convicted of first degree murder for fatally shooting his wife. He argued the trial erred in allowing a state trooper to testify. The appeals court found no error, and noted the trial court did not abuse its discretion when it permitted Trooper Beach to testify as an expert witness in the reconstruction of the residence crime scene. The appeals court adopted the trial court's finding that Trooper Beach's training and experience in forensic investigations and applied physics gave him a reasonable pretension to specialized knowledge and thus qualified him to testify as an expert at trial. This legal conclusion was not altered by the fact that Trooper Beach's primary expertise lay in vehicular collision reconstruction rather than crime scene or bullet trajectory reconstruction. Beach provided unrebutted testimony that the same reconstruction principles applied to both reconstruction contexts. Any question regarding Trooper Beach merely went to the weight that the jury was free to attach to his opinions. Further, the appeals court noted all evidentiary requirements for admitting a computer-generated animation into evidence were satisfied. Thus, the trial court did not abuse its discretion in allowing the jury to view this demonstrative evidence. The animation illustrated expert opinions about how the fatal shooting occurred. Defendant also argued the trial court erred in permitting the Commonwealth to introduce certain medical records during its cross-examination of a defense witness, forensic toxicologist George Jackson. The appeals court disagreed, and noted the hospital-generated BAC test report--notwithstanding regulations regarding medical record confidentiality, was admissible as necessary for the administration of justice. Further, the appeals court noted defendant waived any confidentiality in the report by placing his alcohol tolerance into dispute. The judgment was affirmed.
5. Dee Kotla, Plaintiff and Respondent, vs. The Regents O...,
Date of Decision: 1/28/2004 Jurisdiction: State
Docket Numbers: A099228, A100918 Court: California, Court of Appeal
Area of Law: Labor & Employment Judge(s): Margulies, J.; Stein, Acting P. J., and Swager, J., concurred.
Gatekeeping Issue: CALIFORNIA;Evid. Code, ¤ 801, CALIFORNIA;Kelly
Expert Discipline Area of Expertise Disposition
Dr. Jay Finkelman, Ph.D. Psychology;Industrial Psychology Investigations of retaliation, discrimination, and harassment complaints Testimony improperly admitted.

Case Summary:

 Plaintiff Dee Kotla obtained a judgment for wrongful termination against the Regents of the University of California (the Lawrence Livermore Laboratory). Defendant appealed, and argued the trial court committed prejudicial error by allowing a human resources management expert to opine that certain facts in evidence were "indicators" that the Lab discharged Kotla for retaliatory reasons. The appeals court agreed, and noted the expert's testimony satisfied neither requirement of Evidence Code section 801. It improperly invaded the province of the jury to draw conclusions from the evidence and it lacked any reliable foundation in Dr. Finkelman's professional experience and expertise. The appeals court commented the trial court implicitly recognized this when it barred Dr. Finkelman from opining in a direct fashion that the Lab had acted out of a retaliatory motive. By thereafter--the trial court allowing Finkelman to testify that certain facts in evidence were "indicators" of retaliation. The appeals court noted the lower court substantially undercut its earlier ruling and abused its discretion. This error was compounded by jury instructions that, in effect, encouraged jurors to give unwarranted weight to Dr. Finkelman's view of the evidence. The facts of the case gave rise to conflicting interpretations. However experienced Dr. Finkelman was, it was extremely unlikely if not impossible that he had previously encountered circumstances duplicating those that gave rise to the instant litigation. No foundation was established at trial that Dr. Finkelman had so frequently observed employers exploiting information about computer misuse uncovered during employee depositions as pretexts for retaliation that he could confidently apply the same explanation to the instant case. Nor did Dr. Finkelman testify that there was some general formula, framework, or theory utilized specially by human resources experts, that allows motive to be calculated from any given set of circumstances. There was no basis in the record for believing that Dr. Finkelman possessed any special expertise for weighing the evidence of motive. The case was remanded and a new trial was ordered.
6. Douthitt vs. State
Date of Decision: 1/29/2004 Jurisdiction: State
Docket Numbers: 03-02-00810-CR Court: Texas, Court of Appeals
Area of Law: Criminal Law Judge(s): Before Chief Justice Law, Justices B. A. Smith and Puryear.
Gatekeeping Issue: Federal Rules;Rule 702, TEXAS;Havner, Federal Rules;Rule 401
Expert Discipline Area of Expertise Disposition
Antonio Ortiz Field Sobriety Testing Police department district breath testing program Testimony improperly admitted, but error deemed harmless on appeal.
Trooper Zurovec Field Sobriety Testing, Police/Law Enf. Officer Blood alcohol tests Testimony properly admitted as relevant.

Case Summary:

 Defendant was found guilty of intoxication manslaughter. He appealed, and argued the trial court erred by admitting retrograde extrapolation testimony based on intoxilyzer test results. The appeals court agreed. The court balanced factors discussed in an earlier Texas case that looked at the same issue, Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). The court looked at (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. The court concluded that the State failed to demonstrate by clear and convincing evidence that expert Ortiz's retrograde extrapolation was reliable. Under the circumstances, the district court erred by admitting the testimony over defendant's objection. Nonetheless, the admission of the testimony was deemed harmless. The retrograde extrapolation testimony was elicited from an expert, but there was no indication that the jurors were predisposed to give such testimony greater weight than the other evidence before them. The retrograde extrapolation testimony was cumulative of other evidence of intoxication and was not given special emphasis by the State. The judgment was affirmed.
7. Fitzgerald vs. State
Date of Decision: 12/9/2003 Jurisdiction: State
Docket Numbers: No. 2030, September Term, 2002 Court: Maryland, Court of Spec. Appeals
Area of Law: Criminal Law Judge(s): Argued before: Eyler, James R., Adkins, Moylan, Charles E., J., Retired, Specially Assigned, JJ. Opinion by: Moylan, J.
Gatekeeping Issue: Federal Cases;Frye, MARYLAND;Reed, MARYLAND;Hutton, Federal Cases;Daubert, MARYLAND;Md. Rule 5-702
Expert Discipline Area of Expertise Disposition
Officer Larry Brian Police/Law Enf. Officer Drug-sniffing canines Appeals court noted--in aside--that defendant's Frye challenge would have failed had it been properly presented.

Case Summary:

 Defendant was found guilty of possession of marijuana with the intent to distribute. At issue was the Fourth Amendment correctness of a single pretrial suppression ruling, and the reasonableness of using a drug-sniffing canine to gather probable cause for a search warrant. The appeals court affirmed the lower court's judgment. In an aside, the appeals court noted defendant's Frye-Reed challenge as to the reliability of drug-sniffing canine evidence was misplaced. The appeals court noted even if the Frye-Reed test ruling were before it on its merits, (it was not), the appeals court noted it would reject the claimed error. Even if the appeals court assumed, arguendo, that the olfactory sensitivity of dogs was a new scientific technique (a dubious proposition, in the appeals court's view), the Frye-Reed test was concerned only with the general scientific acceptance of the technique and not with the ad hoc reliability of a particular dog on a particular occasion. Moreover, the appeals court noted were a Frye-Reed issue actually before it, Frye- Reed law had no remote applicability to what a warrant-issuing magistrate might consider on the purely ex parte decision of whether there was a "substantial basis" to issue a warrant. The very concept of imposing a Frye-Reed inquiry onto a magistrate's ex parte review of a warrant application was deemed ludicrous by the appeals court. The warrant-issuing process was ex parte and was far less formal than a courtroom proceeding. The judgment was affirmed.
8. Gasparotto vs. Gallagher Power Fence
Date of Decision: 1/23/2004 Jurisdiction: State
Docket Numbers: 03-03-00383-CV Court: Texas, Court of Appeals
Area of Law: Consumer Law Judge(s): Before Chief Justice Law, Justices B. A. Smith and Patterson
Gatekeeping Issue: Federal Cases;Kumho, Federal Rules;Rule 702, TEXAS;Robinson
Expert Discipline Area of Expertise Disposition
Dr. Phillip Sponenberg, D.V.M. Veterinary Medicine Pathology and the care of goats and sheep Testimony properly admitted.

Case Summary:

 Suzanne Gasparotto appealed a judgment in favor of Gallagher Power Fence, Inc. ("Gallagher") following a jury trial. Gasparotto alleged that Gallagher misrepresented the effectiveness of electric fencing it sold to her for her goat ranch. She sued Gallagher under the Texas Deceptive Trade Practices Act ("DTPA"), as well as for breach of contract, breach of warranty, and promissory estoppel. The jury found in favor of Gallagher. On appeal, she argued the court erred in admitting the testimony of goat expert, Dr. Phillip Sponenberg. Gasparotto argued Sponenberg's testimony was improperly admitted because the district court did not perform its gatekeeping function by holding a pretrial hearing on the reliability of the expert testimony, per Robinson. The appeals court noted the record showed that a gatekeeping hearing was held on the admissibility of Sponenberg's testimony, but that the hearing was not transcribed in the record submitted by Gasparotto on appeal. The appeals court commented Gasparotto's failure to secure a transcript of the gatekeeping hearing warranted a greater degree of deference to the district court, not a reduced one. The appeals court held the expert was properly admitted. He was a professor of veterinary medicine specializing in pathology and the care of goats and sheep. He had over ten years of experience raising myotonic goats on his own ranch. Gallagher presented Sponenberg's testimony on limited issues. He testified as to his own qualifications and experience with myotonic goats. He discussed ways in which goats, including myotonic goats, commonly get caught in fences and die. He then explained that it would be extremely unlikely for a shock from an electric fence alone to kill a goat by stopping its heart because of the cycles of the heart and the way an electric current would travel through the goat. Sponenberg named ranchers he knew in Texas who used electric fences in raising myotonic goats. Finally, Sponenberg explained that goats need to be trained to avoid electric fences and that a change in the configuration of fences would require a rancher to retrain the goats. Sponenberg's testimony had a reasonable basis in his knowledge as a veterinary pathologist and experience as a myotonic goat rancher. Sponenberg's testimony did not contain the sort of "junk science" and rank speculation discussed in Robinson. The judgment was affirmed.
9. Go Med. Indus. Pty, Ltd. vs. Inmed Corp.
Date of Decision: 7/9/2003 Jurisdiction: Federal
Docket Numbers: 1:01-CV-313-TWT Court: Georgia, Northern District
Area of Law: Patent, Trademark, Copyright Judge(s): THOMAS W. THRASH, JR., United States District Judge.
Gatekeeping Issue: Federal Cases;Daubert, Federal Rules;Rule 702
Expert Discipline Area of Expertise Disposition
David A. Kennedy, C.P.A. Accounting Lost profits Testimony inadmissible.

Case Summary:

 Plaintiff alleged patent and trademark infringement. Before the court were motions for summary judgment filed by all parties. The court held that the defendants infringed the plaintiffs' patent, but the patent was invalid due to prior art because it was not entitled to a priority date of 1979. The conflicting claims to ownership of the O'Neil trademark for urinary catheters presented questions of fact to be decided at trial. The plaintiffs were entitled to summary judgment as to defendants' non-trademark state law counterclaims. The report of plaintiffs' expert, David A. Kennedy, was deemed insufficient to carry the lost profits issue to the jury, per 702. The expert was to provide a lost profits analysis based on what would happen in a hypothetical market - a market without the defendants' infringement. Nevertheless, the court noted the expert's opinion was based on speculation or guesswork. The court noted Kennedy's opinion was not based on his or anyone else's knowledge, and the court refused to consider it in the lost profits analysis. Kennedy's opinion as to manufacturing and marketing was based in large part on the inventor's guesses instead of actual knowledge of the capability of plaintiffs' facilities or the costs to upgrade them. Other parts of the opinion speculated and assumed premises without any indication of support, leaving the court without guidance as to the validity of the expert's assessment. Finally, the court noted at least one of Kennedy's key assumptions--that there were no non-infringing substitutes - was simply wrong. The court noted that plaintiffs failed to satisfy the capacity prong of the Panduit test. Granting summary judgment to defendants was deemed proper.
10. Grimes vs. State
Date of Decision: 1/29/2004 Jurisdiction: State
Docket Numbers: NO. 01-02-00817-CR, NO. 01-02-00818-CR, NO. 01-02-00819-CR Court: Texas, Court of Appeals
Area of Law: Criminal Law Judge(s): Panel consists of Justices Alcala, Hanks, and Hedges.
Gatekeeping Issue: Federal Rules;Rule 803
Expert Discipline Area of Expertise Disposition
Jim Bolding DNA, Forensic Science Prostatic specific antigen Trial court did not err in barring defendant from cross examining Bolding about article.

Case Summary:

 Defendant was convicted of indecency with a child, touching the genitals of a child, aggravated sexual assault of a child, and causing his sexual organ to penetrate the child's sexual organ. On appeal, he argued the trial court erred in refusing to allow him to cross-examine State expert Bolding about an article in the journal entitled "Journal of Clinical Chemistry." Below, Bolding testified that seminal fluid was present in a sample if, upon analysis, the results of both the AP Test and P-30 Test were positive, even if no evidence of sperm could be located upon microscopic examination. Because Bolding was unfamiliar with the Journal of Clinical Chemistry, and defense counsel did not otherwise establish the journal as a reliable authority, the appeals court held that the trial court did not abuse its discretion in refusing to permit defendant to cross-examine Bolding, per Rule 803. The judgment was affirmed.
11. Haidak vs. Corso
Date of Decision: 1/29/2004 Jurisdiction: State
Docket Numbers: 02-892 and 02-925 Court: District of Columbia, Court of Appeals
Area of Law: Medical Malpractice Judge(s): Before SCHWELB and GLICKMAN, Associate Judges, and NEBEKER, Senior Judge
Gatekeeping Issue: DISTRICT OF COLUMBIA;Dyas
Expert Discipline Area of Expertise Disposition
Dr. Charles Vacanti, M.D. Medicine;Anesthesiology Ischemic optic neuropathy Appellate challenge to trial court's decision to excluded testimony mooted since trial court did not exclude testimony on cross examination.
Dr. Robert Dobrzynski, M.D. Medicine;Hematology Ischemic optic neuropathy Testimony properly excluded.
Dr. Neil Miller, M.D. Medicine;Ophthalmology Ischemic optic neuropathy Testimony properly excluded.
Dr. Byron Hurwitz, M.D. Medicine;Ophthalmology Ischemic optic neuropathy Testimony properly excluded under discovery rules.
Dr. Mark Strom, M.D. Medicine;Cardiology, Medicine;Surgery Ischemic optic neuropathy Testimony properly excluded.

Case Summary:

 Plaintiff (Dr. Haidak) alleged that, after undergoing coronary bypass surgery, defendants negligently failed to provide proper care and failed to properly treat his ischemic optic neuropathy (ION, a process in which the optic nerve is starved of oxygen and which can result in degrees of blindness). The jury, by a special verdict, decided that Dr. Corso and the Center failed in their duty of care and treatment, but that such failure did not proximately cause the ensuing malady. On appeal, Haidak argued the trial court erred (a) when it refused to allow several of Dr. Haidak's experts to testify about the cause, prevention, and treatment of ION; and (b) when it refused to allow plaintiff's ophthalmologist (Hurwitz) to testify about the likelihood of successful treatment of ION because the expert reached an opinion on the issue after he gave deposition testimony and appellees had no notice of his newly formed opinion. The appeals court found no error below. Dr. Haidak offered Dr. Vacanti, a professor of medicine and an anesthesiologist, as an expert in the standard of care for physicians and patients in a hospital, anesthesia, and the treatment of ischemia. The appeals court noted it need not decide whether Dr. Vacanti had sufficient skill, knowledge, or experience to testify as an expert with respect to ION, or whether his testimony should have been allowed on direct examination since the trial court did not exclude his testimony on cross examination, and any prejudice to Dr. Haidak was minimal. As to expert Dobrzynski (a hematologist), the appeals court noted--regardless of whether ION should be considered an area relating to hematology--it could not fault the trial judge in ruling that Dr. Dobrzynski's skill, knowledge, or experience with ION would not have materially aided the finder of fact. Miller (a neuro-ophthalmologist) was also barred. Again, the appeals court noted there was no error below--the expert conceded he had an objectively well-founded conviction that there was no medical certainty that delayed response to Dr. Haidak's complaint of loss of vision harmed him. As to expert Hurwitz (the treating opthalmologist), the appeals court noted the trial judge focused on its concern that the evidence would incurably surprise appellees. Dr. Hurwitz was offered to testify as Dr. Haidak's ophthalmologist, not as an expert on ION. The appeals court noted Hurwitz was properly barred under the rules of discovery. Strom (a surgeon and cardiologist) was properly excluded since the expert admitted that he never used Levophed, and conceded that it wasn't used much anymore, that he had never conducted any studies, tests, trials, or research on it, that he did not know proper dosages, and that he could not testify that Levophed caused ION. Further, the expert noted he would defer to an ophthalmologist as to whether treatment could prevent development of ION. The judgment was affirmed.
12. Half Price Books, Records, Magazines, Inc. vs. Barn...,
Date of Decision: 8/15/2003 Jurisdiction: Federal
Docket Numbers: 3:02-CV-2518-G Court: Texas, Northern District
Area of Law: Patent, Trademark, Copyright Judge(s): A. JOE FISH, CHIEF JUDGE.
Gatekeeping Issue: Federal Rules;Rule 702, Federal Cases;Daubert
Expert Discipline Area of Expertise Disposition
Gabriel M. Gelb Journalism, Marketing Surveys in IP litigation Testimony admissible, Daubert challenge not addressed.

Case Summary:

 Plaintiff Half Price and the defendant Barnesandnoble.com, LLC both sell new and used books. In April of 2002, BN.com began designating certain discounted books on its web site with the phrase "Half-Price Books & Special Values" or "Half-Price Books." Half Price filed a trademark infringement suit together with a motion for preliminary injunction to prohibit BN.com from using the name "Half-Price Books" or similar derivations. BN.com answered the trademark infringement complaint and filed a response to the motion for preliminary injunction supported, in part, by the report of Gabriel M. Gelb. Half Price moved to exclude the Gelb Report. In support of this position, Half Price relied primarily upon 702 and Daubert. The court deemed this reliance misplaced, and noted the law was well-settled that because the procedures governing a preliminary injunction were generally less formal than those at trial, the court could rely upon otherwise inadmissible evidence when considering a preliminary injunction. Because the court was permitted to give weight to otherwise inadmissible evidence in considering an application for a preliminary injunction, Half Price's motion to exclude the Gelb Report was denied.
13. Heistand vs. Heistand
Date of Decision: 1/23/2004 Jurisdiction: State
Docket Numbers: S-02-1412 Court: Nebraska, Supreme Court
Area of Law: Family Law Judge(s): Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
Gatekeeping Issue: Federal Rules;Rule 702
Expert Discipline Area of Expertise Disposition
Paula Wilson, J.D. Law;Law (Unspec.), Nursing Child welfare Testimony improperly admitted.

Case Summary:

 Mother (Lori Heistand) appealed from an order of modification entered by the district court in which physical custody of the parties' minor child (Abby) was transferred from Lori to Father (Brian Heistand). Mother argued the district court erred in permitting a guardian ad litem (Wilson) to give opinion testimony as a court-appointed expert. She also contended that the court erred in overruling certain hearsay objections to the guardian ad litem's testimony. The appeals court agreed, and noted there was no written appointment filed with the trial court. The appointment was apparently made verbally during a pretrial conference in chambers of which there was no verbatim record. Thus, the appeals court had no way to determine what "duties" the guardian ad litem was appointed to perform as a Rule 706 expert. The appeals court also noted the guardian ad litem lacked any scientific, technical, or other specialized knowledge which would assist the trier of fact to understand the evidence or to determine a fact in issue. Moreover, to the extent that the district court invited or considered the opinions of the guardian ad litem on issues of law, the appeals court noted it had held in another context that expert testimony concerning a question of law was generally not admissible. The opinion testimony of the guardian ad litem, and the hearsay incorporated therein, was erroneously admitted. The appeals court concluded the lower court abused its discretion in finding that there was a material change in circumstances which justified a modification of the original decree to remove Abby from the physical custody of Lori and award custody to Brian. Accordingly, the order of modification was reversed, and Abby was restored to the custody of Lori, subject to Brian's right of reasonable visitation. The trial court was instructed to craft a visitation order on remand.
14. Higginbotham vs. Kcs Int'l,
Date of Decision: 1/22/2004 Jurisdiction: Federal
Docket Numbers: 02-1527 Court: 4th Circuit
Area of Law: Products Liability Judge(s): Before WILKINS, Chief Judge, and KING and GREGORY, Circuit Judges. Affirmed by unpublished opinion. Judge Gregory wrote the opinion, in which Chief Judge Wilkins and Judge King joined.
Gatekeeping Issue: Federal Cases;Daubert, Federal Rules;Rule 702, Federal Cases;Kumho, Federal Cases;Joiner
Expert Discipline Area of Expertise Disposition
Kenneth Court Engineering;Mechanical Engin. Swim ladders Testimony properly barred.

Case Summary:

 The Higginbothams appealed the lower court's grant of summary judgment to defendants. Dr. Higginbotham was injured while attempting to use a broken swim ladder while on board his marina-docked yacht. The Higginbothams sued the manufacturer of the yacht, the manufacturer of the ladder, and the yacht broker, alleging negligence, breach of warranty, and defective design. After an evidentiary hearing, the district court excluded the testimony of the Higginbothams' sole expert because his testimony was deemed unreliable and unscientific. The expert sought to establish that the ladder was defective because it bent under the pressure exerted by Dr. Higginbotham's normal use of the ladder. Alternatively, the expert alleged that the ladder suffered from inherent metallurgical defects. Expert Kenneth Court was a naval architect marine engineer. The district court qualified him as a mechanical engineer with knowledge of ladders in a marine context. The appeals court noted he was not a metallurgist, and had no special training in the design of swim ladders. The appeals court found no error below, and noted the expert reached his conclusion without performing any testing on the actual ladder at issue or even an exemplar ladder. The appeals court noted his methodology was clearly speculative. During his deposition, the expert attempted to explain his methodology, but conceded that it rested upon "assumptions," not science. The judgment was affirmed.
15. In re PERKINS
Date of Decision: 1/23/2004 Jurisdiction: State
Docket Numbers: 07-02-0419-CV Court: Texas, Court of Appeals
Area of Law: Family Law Judge(s): PANEL E. Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.
Gatekeeping Issue: Federal Rules;Rule 702
Expert Discipline Area of Expertise Disposition
Bob Metz Real Estate;Real Estate Broker Property market analysis Testimony properly admitted.
David Stanley Real Estate;Real Estate Appraisal Real property valuation Defense expert not challenged.

Case Summary:

 Stanley Alton Perkins challenged portions of a decree dissolving his marriage to Linda Kay Perkins. Stanley argued the trial court abused its discretion in admitting expert Metz's testimony. Mertz opined as to the value of the real property. Stanley contended Metz was not a qualified appraiser. Per 702, the appeals court found no error. The appeals court noted Metz had been a licensed real estate agent for six years at the time of trial. His work included helping home sellers decide what price to ask for their homes. He admitted he was not a licensed appraiser, and was careful not to describe his valuation as an appraisal, but used the term "market analysis" instead. Metz testified without contradiction that he had six years experience as a real estate agent, which included determining approximate values of real property. That evidence was sufficient to support the trial court's finding that he was qualified under Rule 702 to give opinion testimony on that question. Although Stanley argued that "only an appraiser can render an expert opinion on values on the basis of comparable values," the appeals court noted 702 contained no such requirement. Stanley also argued the trial court erred in finding Metz's methods reliable. The appeals court disagreed, and noted the testimony was reliable. The judgment was affirmed.
16. In re William J. Stevens
Date of Decision: 1/27/2004 Jurisdiction: State
Docket Numbers: 4-01-0748 Court: Illinois, Appellate Court
Area of Law: Criminal Law Judge(s): JUSTICE STEIGMANN delivered the opinion of the court. TURNER and McCULLOUGH, JJ., concur.
Gatekeeping Issue:
Expert Discipline Area of Expertise Disposition
Dr. Jacqueline Buck, Ph.D. Psychology;Clinical Psychology Assessing probability of re-offending with additional acts of sexual violence Testimony properly admitted.
Dr. Phil Reidda, Ph.D. Psychology;Clinical Psychology Assessing antisocial personality disorder Testimony properly admitted.
Dr. Terry Brelje, Ph.D. Psychology;Clinical Psychology Assessing traits for commitment of potentially sexually violent persons Petitioner's expert not challenged.

Case Summary:

 A jury found respondent Stevens to be a sexually violent person under the Sexually Violent Persons Commitment Act. The trial court ordered him committed to the Department of Human Services for institutional care in a secure setting. He appealed, and argued the trial court abused its discretion by denying his motion for a Frye evidentiary hearing on the admissibility of evidence regarding actuarial instruments used by the State's experts in assessing his risk of reoffending. The appeals court disagreed, and noted actuarial risk-assessment instruments of the sort used in the case--namely, the Minnesota Screening Tool-Revised, the Static-99, and the Violence Risk Assessment Guide--did not purport to involve a scientific principle, method, or test to which Frye applied. Further, even if the appeals court assumed that the sort of actuarial instruments used by State experts Buck and Reidda involved a scientific principle, method, or test, those instruments did not involve the kind of "new" or "novel" scientific principle, method, or technique to which Frye applied. Finally, the court noted, even assuming that the Frye standard applied, it agreed with the trial court that the use of actuarial risk-assessment instruments was generally accepted by professionals who assess sex offenders for risk of reoffending. In closing, the appeals court noted--even accepting respondent's contention that the trial court erred by failing to conduct a Frye hearing--any error was harmless because the evidence presented established that the actuarial risk-assessment instruments at issue were generally accepted by professionals who assess sex offenders for risks of reoffending. The judgment was affirmed.
17. Jennings vs. Palomar Pomerado Health Systems, Inc.
Date of Decision: 12/11/2003 Jurisdiction: State
Docket Numbers: D040393 Court: California, Court of Appeal
Area of Law: Medical Malpractice Judge(s): McDONALD, J.; Haller, Acting P. J., and O'Rourke, J., concurred.
Gatekeeping Issue: CALIFORNIA;Evid. Code, ¤ 801
Expert Discipline Area of Expertise Disposition
Dr. Herman Howard Miller, II, M.D. Medicine;Infectious Disease Cause of injury Testimony properly excluded.

Case Summary:

 Jennings developed a subcutaneous abdominal infection following a surgical procedure. Jennings filed a medical malpractice action against defendants, and claimed a cause of the infection was that defendants negligently left a ribbon retractor in his abdominal cavity after the surgery. The trial court struck the testimony of Dr. Miller, the expert on whom Jennings relied to show the retention of the retractor in his abdomen following surgery was a cause of the abdominal infection. The lower court concluded Dr. Miller's opinion was based on speculation. Jennings appealed. The appeals court found no error below, and noted, per Ca. Evid. Code Sect. 801, Jennings needed to offer an expert opinion that contained a reasoned explanation illuminating why the facts had convinced the expert, and therefore should convince the jury, that it was more probable than not the negligent act was a cause-in-fact of his injury. The appeals court noted Miller's opinion was not supported by a reasoned explanation illuminating the etiology connecting the infected subcutaneous tissue to the nidus inside the peritoneal cavity where the retractor was retained, and did not contain a reasoned explanation accounting for or reconciling his theory with the apparent lack of inflammation or infection along the theorized migratory route. The appeals court agreed with the trial court that the opinion was therefore inadmissible under Evidence Code section 801 because it could not assist the jury to perform its role of determining whether it was more probable than not that the retention of the retractor in the peritoneal cavity of the abdomen contributed to the infection in the subcutaneous tissue. The judgment was affirmed.
18. King vs. State
Date of Decision: 1/21/2004 Jurisdiction: State
Docket Numbers: 10-02-132-CR Court: Texas, Court of Appeals
Area of Law: Criminal Law Judge(s): Before Chief Justice Gray, Justice Vance, and Justice Reyna. (Chief Justice Gray concurring).
Gatekeeping Issue: Federal Rules;Rule 702
Expert Discipline Area of Expertise Disposition
Officer Zacharias Police/Law Enf. Officer Drug dealing Testimony properly admitted as opinion testimony by lay witness, per 701.

Case Summary:

 A jury convicted defendant King of possession with intent to deliver cocaine, four grams or more but less than 200 grams. The State called Officer Zacharias who testified that he did not observe any burn marks on King's lips and fingers. Burn marks are usually found on those who smoke crack cocaine. The appeals court noted the inference was that the cocaine King had was for delivery, as charged, and not for personal use. Zacharias also testified that the amount and placement of the cash found on King, and the amount of drugs found, were consistent with King being a drug dealer. King objected that the State was using Zacharias as an expert on drug dealing, and that (1) Zacharias was not qualified as an expert, and (2) the field of "drug dealing" was not a legitimate field under Rule 702. The trial court overruled this objection. The appeals court noted Zacharias's testimony did not fall under Rule 702. Rather, it fell under Rule 701 (opinion testimony by a lay witness). The appeals court noted the witness had ten years experience as a police officer, for two years of which he had been on a neighborhood narcotics enforcement team. During these years he had many encounters with drug dealers and users. His testimony combined his actual knowledge as well as his lay opinion about facts in issue. The judgment was affirmed.
19. Lin vs. Amtrak
Date of Decision: 12/31/2003 Jurisdiction: State
Docket Numbers: CV990431868 Court: Connecticut, Superior Court
Area of Law: Wrongful Death Judge(s): Arnold, J.
Gatekeeping Issue: Federal Cases;Kumho, Federal Cases;Joiner, CONNECTICUT;Porter, CONNECTICUT;Ct. Code Evid. ¤ 7-2, Federal Cases;Daubert, Federal Cases;Frye
Expert Discipline Area of Expertise Disposition
Michael Miller Engineering;Human Factors Engin., Engineering;Mechanical Engin. Railroad accident investigation Testimony admissible.

Case Summary:

 Decedent Zhang was gathering crabs along a river. Zhang, along with another person, decided to move from the north bank of the river to the south bank. To accomplish this, Zhang proceeded across a nearby railroad trestle in a westerly direction. She was struck and killed by a train, allegedly managed and owned by the defendants, moving in an easterly direction across the trestle. Defendants moved to bar the testimony and evidence from the plaintiff's expert Michael Miller. The expert was to opine the trestle was hazardous to pedestrians because of the limited distance from which an oncoming train could be seen by a pedestrian, and that a train was not audible until it was "three to four seconds away." He based these visual and auditory observations by observing a train at his one on-site visit. Miller was expected to testify that the railroad trestle was hazardous and could have been made safer if defendant Metro-North had installed fencing to prevent trespassers from getting onto and crossing the tracks. He was also expected to testify that a walkway to permit trespassers to cross over the trestle without being on the tracks would have made the trestle safer. Miller also opined decedent may have suffered from a "hypervigilant response" (ie, panic or a perceptual narrowing), causing her to act inappropriately when she saw the train coming. Miller was a member of the Human Factors Ergonomics Society and has taught at seminars on human factors, including perceptual narrowing and hypervigilant response. Miller was also to opine the area surrounding the trestle could have been made more safe by: (1) blocking access to the site by pedestrians by installing adequate fencing and posting warning signs; (2) placing flashing lights and automatic gates at the trestle to warn trespassers; and (3) erecting "places of refuge" along the tracks, such as pedestrian walkways with handrails or guard systems. The court concluded that the premises underlying Miller's testimony were not the type of evidence contemplated by Porter (a seminal gatekeeping case in Connecticut). His opinion was based on his own observations at the scene; his training as an engineer; and his experience as a safety expert, which included investigation of railroad cases. This was not the type of "junk science" that Porter was intended to guard against. Nor would his theories potentially mislead lay jurors. The fact that his opinions were not supported by treatises or studies was only one of several non-exclusive factors that the court was required to consider. The motion in limine was denied.
20. Mohney vs. United States Hockey
Date of Decision: 1/23/2004 Jurisdiction: Federal
Docket Numbers: 97-7417 Court: Ohio, Northern District
Area of Law: Products Liability Judge(s): DAVID A. KATZ, U. S. DISTRICT JUDGE
Gatekeeping Issue: Federal Cases;Kumho, Federal Rules;Rule 702, Federal Rules;Rule 703, Federal Cases;Daubert
Expert Discipline Area of Expertise Disposition
Norman Johanson Engineering;Mechanical Engin. Alleged product defects associated with helmet-mask Testimony admitted in part, barred in part.
Dr. Richard Collins, Ph.D. Engineering;Biomechanical Engin., Engineering;Mechanical Engin. Mechanism by which injuries sustained Testimony inadmissible.
Dr. Patrick J. Bishop, Ph.D. Engineering;Biomechanical Engin. Biomechanics and quadriplegia Daubert challenge denied as moot.
Dr. Joseph Torg, M.D. Medicine;Orthopaedic Surgery Cervical spine injuries Daubert challenge denied as moot.
Dr. Lawrence Thibault, Ph.D. Engineering;Biomechanical Engin. Traumatic injury Daubert challenge denied as moot.
David Halstead Engineering;Biomechanical Engin. Protective devices used in sporting equipment; Helmet safety Daubert challenge denied as moot.

Case Summary:

 Levi Mohney became a quadriplegic as a result of an incident that occurred while he participated in a scrimmage that was part of a developmental hockey camp. Levi and another player became entangled, lost control, and collided with the boards causing Levi to sustain severe spinal damage at the C5-C6 level resulting in quadriplegia. At the time of the accident, Levi was wearing a helmet manufactured by Bauer and a face mask manufactured by Karhu. The mask was a cage type mask held in place by two j-clips. Plaintiffs asserted that the mask released allowing Levi's head to torque into a crown position when the right-hand side j-clip dislodged when the two screw-nut combinations affixing the j-clip to the helmet vibrated loose. The Mohneys retained the services of experts Johanson and Collins. Bauer asserted that the opinions and testimony of both Mr. Johanson and Dr. Collins should be excluded for failing to satisfy any of the four factors for determining reliability set forth in Daubert. Defendant also argued that there was substantial evidence indicating that Dr. Collins abandoned his role as a scientist and become a paid advocate of Plaintiffs. Johanson opined that the helmet-mask combination was incompatible as shown by the asymmetric fit as supported by his inspection and associated measurements. The court acknowledged that the expert's visual inspection was sufficient to demonstrate that the helmet and mask fit together asymmetrically. The expert's measurements represented an objective assessment regarding the cause of the fit, which could be verified and critiqued. Johanson's testimony regarding the incompatibility of the helmet and mask had a reliable basis. The expert next opined that the right-hand side j-clip immediately and simultaneously dislodged as the result of the already loose fitting screw- nut combinations vibrating apart when Levi first collided with the boards. The court excluded this testimony, since the expert admitted he did not attempt to determine the thread class of the screws, and made no effort to test whether the thread class on the left-hand side was or was not sufficient even though such testing could have been done. Collins opined the release of the mask resulted in the complete dissipation of the horizontal force acting on Levi's head. The complete and instantaneous dissipation of the horizontal force allowed the vertical force to dominate, resulting in a vertical torque that caused Levi's head to move from a face first position to a crown position. The court rejected defendants' claim that Collins abandoned his role. However, the court noted Collins conceded that the velocity of Levi's impact was probably double what he estimated and as a result the amount of time for the torque to occur was half of the 14.55 milliseconds he estimated. Collins's testimony clarified that determining the frame rate would have been of assistance in conducting his method of analysis. He also conceded that he did not have the dimensions of the ice rink when he made his estimate, even though it would have been easy to obtain the blue print defendant produced. The court concluded the aforementioned shortcomings in Collins's analysis combined with an overwhelming reliance on assumed values impugned the reliability of his analysis, especially in light of the novelty of his theory. The expert could have employed computer modeling. He also might have used sensitivity analysis by assuming not only different values for all the assumed values but also different speeds. The expert's testimony was barred. Bauer had retained the services of four expert witnesses. These experts include Dr. Patrick J. Bishop, Dr. Joseph Torg, Dr. Lawrence Thibault, and Mr. David Halstead. The court did not consider whether defendant's expert witnesses satisfied the Daubert requirements. The opinions of Mr. Johanson and Dr. Collins did not satisfy the requirements set forth in Daubert. Plaintiff's failure to warn claim failed without considering the admissibility of any expert testimony. Therefore, the Mohneys motion to exclude defendant's expert witnesses was denied as moot. Defendant's motion for summary judgment was granted.
21. Moore vs. Cerling
Date of Decision: 1/20/2004 Jurisdiction: State
Docket Numbers: 243017 Court: Michigan, Court of Appeals
Area of Law: Personal Injury Judge(s): Before: Zahra, P.J., and Cavanagh and Cooper, JJ.
Gatekeeping Issue: MICHIGAN ;Anton, Federal Cases;Daubert, MICHIGAN ;Davis, Federal Cases;Frye
Expert Discipline