Daubert motions and Rule 104e hearings have become common place in toxic tort and in product liability cases, and have "crept over" into other practice areas as well. See Appendix of Pertinent Case Summaries, 2002 attached. Strategic analysis and thorough and early preparation are essential to a successful Daubert hearing. At the pretrial conference, the court must be educated on the need for such a hearing. Counsel should request motion and hearing deadlines. The court will determine whether an independent expert is warranted. The party filing a Daubert motion must submit admissible, relevant evidence to the court concerning the relevant scientific discipline and generally accepted methodology, comparing those methods with plaintiff's expert's testimony and methodology. The evidentiary submissions and record accompanying the motion are critical in making a persuasive oral argument and defending any ruling on appeal.

At the Rule 16 conference in federal court or at the status conference in state court, defense counsel should educate the judge regarding the potential expert testimony in the case. In the case management order, defense counsel should request that the order include deadlines for filing motions in limine to exclude expert testimony based on FRE 702 and Daubert, request a Rule 104(a) Daubert hearing, and advise the court that it will also file a motion for summary judgment to be heard and ruled upon after the Daubert hearing. The Daubert hearing needs to be set well in advance of trial because it is important for the court to allow sufficient time after the motions are filed to hold a Rule 104(a) hearing and rule upon the motions before trial. A case management order should be drafted setting forth the above timetable, ensuring that the deadlines for summary judgment motions should be set at the same time or after the deadline for dispositive motions.

Courts increasingly are retaining their own experts in either mass torts (the large cases with great impact) or technically complicated cases; this practice is sanctioned by the Supreme Court's decision in General Electric v. Joiner, 522 U.S. 136, 149, 118 S.CT. 512, 520 (1997). Court appointed experts are open to discovery by both parties and by the court. Courts have appointed experts and expert panels in toxic tort cases, most notably the federal breast implant cases. Court appointed experts are distinguished from the technical advisor, which the court can also appoint, but is one who is not subject to open discovery and only assists the court with technical issues. For additional information regarding court appointed experts, see Improving Judicial Gatekeeping: Technical Advisors and Scientific Evidence, Harvard Law Review, February 1997; Accepting Daubert's Invitation: Defining A Rule for Court Appointed Experts in Assessing Scientific Validation, 43 Emory L.J. 1995.

The factual and legal record needs to be developed well in advance of drafting the Daubert motion. Careful planning and execution are essential. The proper evidentiary predicate should be considered when preparing expert reports, deposing the plaintiff's experts and defending your own expert's deposition.

The expert's report should include his/her qualifications, the generally accepted and scientifically valid methodology at issue and a critique of the plaintiff's expert's methods and opinions. It must comply with FRCP 26(a)(2)(B).

The expert's complete file should be requested in advance of the deposition. Items that should be requested include all case specific files and materials, all published and unpublished literature and related data, depositions and trial transcripts, billings, etc.

The deposition of the expert witness must delve into the evidentiary predicate for the motion to exclude. The examination should include questioning related to the expert's qualifications in the relevant field, the methodology used in arriving at the conclusions, including Bradford- Hill and Daubert criteria, and the foundation for the conclusions. The expert's testimony in all of these areas should be thoroughly exhausted to prevent later rehabilitation by a subsequent expert submitting material not previously relied upon or questioned at the deposition. FRCP 30(d)(2) limits depositions to one day of 7 hours unless the parties agree otherwise or as ordered by the court. Cross-examination by the deponent's counsel is not included in the seven (7) hour time limit. Again, the deposition procedure and temporal limits are items to be placed in your case management order.

The advent of Daubert motion practice has sometimes caused counsel to question their own expert at a deposition in an effort to thwart the success of a motion in limine made under Daubert. Counsel will need to consider whether it is necessary to rehabilitate, that is to correct or supplement any testimony given by their own expert or to more fully develop the evidentiary record relating to topics not addressed on direct, such as the expert's extensive qualifications.

The Daubert motion is an in limine evidentiary challenge to the admissibility of the expert's testimony, which must be filed well in advance of trial and after expert discovery has been completed. The trial court's ruling excluding expert testimony is reviewed on appeal only for an abuse of discretion. General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 515-17(1997).

The proponent of the expert testimony has the burden of establishing, by a preponderance of the evidence, the foundation and reliability of the scientific principles and tests. See Daubert at p.595-596. Practically however, the burden is on the opponent of the expert's testimony to affirmatively establish that the expert is not qualified in the relevant scientific, technical and/or medical community, and that his methodology is unreliable and thus, inadmissible.

The motion should address the deficiencies in the expert's qualifications in the relevant scientific and medical discipline in terms of knowledge, skill, experience, training and education. Challenges to experts should be filed even if the expert appears well-credentialed as such experts will be excluded if their methodology is unreliable. See Rosen v. Ciba-Geigy Corp., 78 F.3d 316,318 (7th Cir. 1996), cert denied, 117 S.Ct. 73 (1996). The question is: Is the evidence genuinely scientific or is it unscientific speculation offered by a genuine scientist? See Daubert v. Merrill Dow Pharmaceuticals, 43 F.3d 1311-1315-1316 ("Daubert II") ("something doesn't become scientific just because it is uttered by a scientist"). Moreover, qualifications cannot replace unreliable methods, Clark v. Takata Corp., 192 F.3d 750,759n.5 (7th Cir. 1999).

The focus on the motion to exclude is on the expert's methodology, not upon the conclusions. Daubert, 509 U.S. at 595. The "overarching" subject is the scientific validity of the principles and methodology which "underlie" the expert's proposed testimony, and thus their evidentiary relevance and reliability. Id. at 594-595. A key aspect of the application of the Daubert standard is the requirement that the trial court "make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786 (1993). Rule 104(a) requires that the trial court act as a fact finder to determine whether the proposed expert testimony is reliable and relevant.

Daubert's requirement of reliability—i.e., knowledge derived from the methods of science—extends to each step in an expert's analysis all the way through to the step that connects the work of the expert to the particular case. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 711, 743 (3rd Cir. 1994). Any step that renders the expert's analysis unreliable under the Daubert factors renders the expert's testimony inadmissible. Id. at 745.

It is important to establish the applicable scientific and medical disciplines at issue and the general and specific causation methods in those disciplines to assist the court in analyzing the expert's methods. It is the generally accepted and reliable methodology with respect to the particular scientific or technical discipline at issue that will serve as the benchmark against which the trial court will measure the admissibility of the expert testimony. For example, in toxic tort cases alleging injury from chemical exposure, courts use the Bradford-Hill criteria in addition to Daubert. See Merrell Dow Pharmaceuticals vs. Havner, 953 S.W.2d at 715. Several resources can be used to establish the methodology at issue, including: expert affidavits and/or Rule 26 disclosures, learned treatises, published or peer-reviewed literature, and the Reference Manual on Scientific Evidence, to name a few.

The expert's general and specific causation methods should be scrutinized pursuant to amended FRE Rule 702 and the Daubert factors. Amended Rule 702 provides additional areas of inquiry and each factor applicable to the testimony should be included in the motion. The Daubert factors are:

Rate of Error: What is the known or potential rate of error in an expert's methodology? High rates of error detract from the reliability of the methodology and conclusions. See United States v. Dorsey, 45 F.3d 809, 815 (4th Cir.), cert. denied, 515 U.S. 1168 (1995).

Peer Review: Has the theory or technique been published in a peer reviewed journal? Such publication is a relevant consideration in accessing the scientific validity of a particular technique or methodology on which an opinion in premised

General Acceptance: Has the theory or methodology gained "general acceptance" in the relevant scientific community?

Federal Rule of Evidence 702 provides some general standards the trial court must use to access the reliability and helpfulness of proffered expert testimony:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Failure of plaintiff's expert to meet any one of the above factors is fatal to the plaintiff's expert, and hence the case. Plaintiff often argue that the amendments to Rule 702 mean that the courts should be more flexible and not rely on Daubert exclusively. See Michael H. Graham, The Expert Witness Predicament: Determining "Reliable" Under the Gatekeeping Test of Daubert, Kumho and Proposed Amended Rule 702 of the Federal Rules of Evidence, 54 U. Miami L. Rev. 317 (2002).

In 1965 Sir Austin Bradford Hill formulated specific criteria by which epidemiological evidence should be judged for the characterization of chemical hazards. These criteria have been utilized by scientists ever since in analyzing general chemical causation of disease. The Bradford-Hill criteria are listed below:

5. Biological gradient (i.e., the principle of dose-response where within some range of doses the incidence of the response increases with increasing dose)

6. Biological plausibility (the response in humans is consistent with the observed response in animal tests, or would be predicted from the known animal/human toxicology and known or believed mechanism of action for that toxicity)

7. Coherence (there is an internal and external consistency to all of the evidence)

8. Experiment (the response decreases or increases with corresponding decreases or increases in exposure)

Courts have used the Bradford-Hill criteria when analyzing epidemiological evidence in toxic tort cases involving claims of cancer and birth defects. See Havner, 953 S.W.2d at 781; Castellow v. Chevron, 97 F. Supp.2d 780.786 (S.D. Tex. 2000); In re Breast Implant Litigation, 11 F. Supp.2d 1217, 1233 (D.Colo.1998); In re Joint Eastern and Southern Dist. Asbestos Lit. v. United States Mineral Prods. Co., 52 F.3d 1124, 1128 (2d Cir. 1995). Different medical disciplines have their own general causation methodology. Whether relying upon the Bradford-Hill criteria or other established methods, the Daubert motion should compare and contrast the expert's methodology at issue with the generally accepted and reliable methodology applicable to the particular scientific or technical issues the case presents.

The generally accepted specific causation methodology for determining whether exposure to a toxic substance in fact caused an injury to a person requires identification of the specific substance at issue, identification of the duration and level of the exposure, quantification of the dose of the exposure received, an analysis of the relevant scientific and medical literature to determine whether there is valid scientific proof of an established causal relationship between a particular dose of a potentially toxic substance and a specific medical condition, and a differential diagnosis.

Exposure and dose are the key words in determining personal injury in a toxic tort case. First, there has to be some exposure. The amount of that exposure that is taken into an individual's body is the dose; the human body responds differently to different levels of dose. Responses to dose varies in animals, hence toxicology, and in humans, hence epidemiology. Plaintiff's expert must rely on competent evidence of exposure and dose and cite relevant peer reviewed literature as a condition to the admissibility of their testimony. Minimally, the plaintiff's expert testimony regarding exposure should utilize techniques subject to objective, independent validation in the scientific community. The expert should describe the method needed to arrive at the level of exposure and the scientific data supporting that determination. Moore v. Ashland Chem.Inc., 151 F.3d 269, 278-79 (5th Cir.1998); Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir. 1996) ("A plaintiff in a toxic tort case must prove the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure to the defendant's toxic substance before he or she may recover.").

The motion to exclude should outline the plaintiff's evidence of exposure and dose, the relevant literature and compare and contrast this information with the generally accepted and specific causation methodology. Such comparison may include an analysis of any published standards or occupational exposure guidelines for the industry, such as the no observed effect levels (NOEL'S) and residential and occupational exposure guidelines. The argument is if the dose is below these guidelines, the NOEL's or LOEL's, then there is no injury and the testimony is inadmissible.

Differential diagnosis must be negated for plaintiff's expert to prevail in toxic tort cases. Plaintiff's expert must exclude other potential causes to survive a Daubert hearing. Daubert II, 43 F.3d at 1319; Paoli, 35 F.3d at 763-764. The motion to exclude should include an analysis of the plaintiff's pre-and post-exposure medical records, psychological and social history and related information, and the method the plaintiff's expert used to exclude other potential causes of the alleged injuries included in the records. Did the expert have a complete medical history? Did the expert rule out all pre-exposure illnesses and conditions? Be aware that some courts have allowed plaintiff's experts to testify even if they only considered a differential diagnosis rather then actually eliminating other possible causes, Heller v. Shaw Industries Inc., 167 F.3d 146 (3rd Cir. 1999); Turner v. Iowa Fire Equipment Co., 229 F.3d 1202, 1208 (8th Cir. 2000).

The motion to exclude should include an argument that the causation methodology employed by the plaintiff's expert does not have any independent or objective basis. The expert's "bald assurance" that his or her methodology is valid is insufficient. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir.), cert. denied, 116 S.Ct. 189 ("Daubert II"). The proponent of the expert testimony must show that the expert's findings are based on sound science, and this requires some objective, independent validation of the expert's methodology. Daubert II noted that an important consideration in determining admissibility of expert scientific testimony is whether the expert is proposing to testify about matters growing naturally and directly out of research they have conducted independent of litigation, or whether they have developed their opinions expressly for purposes of testifying at trial. The motion to exclude should attack the plaintiff's failure to independently and objectively verify their expert's methods

The evidentiary submission is the most important document filed in connection with a Daubert motion. The submission should include affidavits and/or reports from the defense expert witnesses outlining the relevant scientific and medical disciplines, the proper cause and effect methodologies and citations to treatises and published, peer-reviewed literature. It should include competent, relevant evidence rebutting plaintiffs' exposure evidence (if any) and relevant medical records and literature demonstrating that plaintiff's expert failed to consider differential diagnoses. The record should include affidavits from defendants' expert witnesses along with published peer reviewed literature establishing the generally accepted methods relating to each of the medical and scientific disciplines at issue, and a detailed summary of the deficiencies in the plaintiff's expert's methods. See Hannan, et. al. v. Pest Control Services, Inc., et al., 734 N.E.2d 674 (Ind. Ct. App. 2000). Recently, a unanimous Supreme Court affirmed the Eight Circuit's decision holding that Rule 50 permits an appellate court to direct the entry of judgment as a matter of law when it determines that evidence was erroneously admitted at trial and that the remaining properly admitted evidence is insufficient to support plaintiffs' claims. Weisgram v. Marley Co., 528 U.S. 440 (2000).

Motions for summary judgment based on lack of medical causation should be filed along with the Daubert motion. The plaintiff must submit competent, admissible expert testimony to establish medical causation. If the court excludes the experts and the plaintiff has no other causation evidence, summary judgment should be granted. A summary judgment motion based on lack of causation should be considered only after the court has evaluated the expert testimony under Rule 702. The motion to exclude should stress that the court must evaluate the testimony under Rule 702 and not the summary judgment standard.

The plaintiff will likely argue that all issues pertaining to the expert's methodology go the weight and not the admissibility of the testimony and can be addressed during cross-examination at trial. Plaintiffs frequently cite the U.S. Supreme Court's comment in Daubert, 509 U.S. at 596, 113 S.Ct. at 2798, that "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence…"

However, the response is that an expert's opinion must have some basis other than hypothesis before the opinion may have the privilege of being assailed by cross-examination. The U.S. Supreme Court in Daubert cited Judge Weinstein in connection with FRE 403 on this point that expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.

The procedure for evaluating evidence presented at a Daubert hearing has varied widely among federal and state courts. Courts have yet to agree on the necessity of Daubert hearings. For example, the Third Circuit Court of Appeals has held that it was in the trial court's discretion whether to hold a Daubert hearing. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3rd Cir. 1999). Yet, in the decision, the court also noted that failure to hold an evidentiary hearing in some cases could be an abuse of the court's discretion. The Sixth Circuit has held that a trial court is never required to hold an actual hearing to comply with Daubert. Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999) reh'g, en banc, denied, 1999 U.S. App. LEXIS 26480 (6th Cir. October 8, 1999). More recently, the Tenth Circuit noted that the most common method for fulfilling the gatekeeping function is a Daubert hearing. The court held that a district court must adequately demonstrate the specific findings on the record that it has performed its duty as a gatekeeper. Goebel v. Denver and Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000) (remanded case for new trial finding that district court had not fulfilled its "gatekeeping function" in failing to hold a Daubert hearing upon plaintiff's request). See Kumho Tire Co. v. Carmichael, [143 L.Ed.2d 238,] 119 S.Ct. 1167, 1176 (1999) (noting that the trial judge has the discretion “both to avoid unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises.”).

Nevertheless, many courts have recognized that Daubert hearings should be granted upon request because parties should be allowed to "present the best evidence available." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997); Tanner v. Westbrook, 174 F.2d 542, 545, 549 (5th Cir. 1999). Courts are recognizing that evidentiary hearings are useful in complicated cases involving multiple expert witnesses, turning the Daubert hearing into a mini trial and enabling the court to examine complicated scientific issues early in the case so as to aid in later decision making in the trial process. The trend in evidentiary hearings on Daubert motions is likely to continue.

The amendment requires that the testimony must be the product of reliable principles and methods that are reliably applied to the facts of the case. Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, or training or education—may not provide a sufficient foundation for expert testimony.

The trial court's gatekeeping function applies to testimony by any expert. An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist. See Watkins v. Telsmith, Inc., 121 F.3d 984,991 (5th Cir. 1997) ("[I]t seems exactly backwards that experts who purport to rely on general engineering principles and practical experience might escape screening by the district court simply by stating that their conclusions were not reached by any particular method or technique.") Some types of expert testimony will not rely on anything like a scientific method, and so will have to be evaluated by reference to other standard principles attendant to the particular area of expertise. The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert's testimony must be grounded in an accepted body of learning or experience in the expert's field, and the expert must explain how the conclusion is so grounded. See, e.g., American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) ("[W]hether the testimony concerns economic principles, accounting standards, property valuation or other non-scientific subjects, it should be evaluated by reference to the "knowledge and experience' of that particular field.").

Subpart(1) of Rule 702 calls for a quantitative rather than qualitative analysis. The amendment requires that experts testimony based on sufficient underlying "facts or data." The term "data" is intended to encompass the reliable opinions of the experts. The language "facts or data" is broad enough to allow an expert to rely on the hypothetical facts that are supported by the evidence. Id. When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment on "sufficient facts or data" is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.

The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3d Cir. 1999) (expert testimony cannot be excluded simply because the expert uses one test rather than another, when both tests are accepted in the field and both reach reliable results). As the court stated in In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994), proponents “do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable . . . The evidentiary requirement of reliability is lower than the merits standards of correctness.” See also, Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (scientific experts might be permitted to testify if they could show that the methods they used were also employed by “a recognized minority of scientists in their field.”); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998) (“Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance.”).

At the conclusion of any Rule 104 hearing, the moving party should submit proposed findings of fact and conclusions of law. The proposed findings will assist the court in the overwhelming task of evaluating the law and science at issue and rendering a favorable order that can be defended on appeal.

PRODUCTS LIABILITY

1. Dorthy Clark, Individually and as Administratrix of the Estate of Charles Clark v. Chrysler Corporation, 310 F.3d 461 (2002)

No. 97-6380. Argued: Nov. 2, 1999. Decided and Filed: Oct. 24, 2002. Administratrix brought product liability action in diversity against manufacturer after her husband was killed in automobile collision. The United States District Court for the Eastern District of Kentucky, Jennifer B. Coffman, J., granted judgment for administratrix. Manufacturer appealed. The Court of Appeals, Oliver, District Judge, sitting by designation, held that: (1) court's decision to admit testimony of expert witnesses was not abuse of discretion under Daubert; (2) prior accidents were admissible on basis that they were substantially similar; (3) court's refusal to give jury instruction requested by manufacturer was not abuse of discretion; (4) defective latch was substantial factor in bringing about husband's death; (5) automobile manufacturer showed reckless disregard for safety of others; and (6) punitive damages award was not so excessive as to violate due process clause.

Affirmed. David A. Nelson, Circuit Judge, filed an opinion concurring in part and dissenting in part.

2. Kimberly R. Smith v. BMW North America, Inc.; BMW AG; Roadshow Enterprises, Inc., doing business as Roadshow BMW Inc., 308 F.3d 913 (Oct. 24, 2002)

Motorist who was rendered a quadriplegic after sustaining severe injuries in motor vehicle accident brought products liability action against automobile manufacturers, alleging that her vehicle's air bag was faulty, and that had it properly deployed, it would have reduced or prevented her injuries. The United States District Court for the Eastern District of Arkansas, William R. Wilson, Jr., J., excluded testimony of plaintiffs experts, granted summary judgment in favor of defendants, and denied plaintiffs motion for relief from judgment. On plaintiffs appeal, the Court of Appeals, Bright, Circuit Judge, held that: (1) forensic pathologist's expert testimony as to how motorist sustained neck injury, and that to a reasonable degree of medical certainty a properly deploying air bag would have reduced her injuries, was admissible; (2) certified accident reconstructionist's expert testimony as to principal direction of force during accident was admissible, but his testimony regarding magnitude of barrier equivalent velocity was inadmissible because it was unreliable; and (3) genuine issue of material fact existed as to whether air bag should have deployed.

Vacated and remanded.

3. Hollander, et al. v. Sandoz Pharmaceuticals Corporation, 289 F.3d 1193 (May 10, 2002)

Following removal of products liability action against drug manufacturer, and other defendants, the United States District Court for the Western District of Oklahoma, Ralph G. Thompson, J., 95 F.Supp.2d. 1230 dismissed suit against manufacturer's parent corporation and entered judgment in favor o: manufacturer, and patient appealed. The Court of Appeals, Henry, Circuit Judge, held that: (1) alleged deficiencies in removal procedure did not divest the district court of subject matter jurisdiction where federal jurisdictional requirements were met at the time judgment was entered; (2) patient's expert testimony regarding the causal connection between prescription drug and intracerebral hemorrhages was no sufficiently reliable to be admissible; (3) court lacked personal jurisdiction over Swiss parent corporation; and (4) dismissal of Swiss corporation from products liability action should have been without prejudice.

Affirmed in part and remanded.

4. Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584 (Jan. 4, 2002)

Former employee at dry cleaner brought products liability action in state court against employer and manufacturer of dry cleaning fluid, and the action was removed, The parties cross-moved to exclude expert testimony. Following Daubert hearing, the District Court, Hochberg, J., held that: (1) plaintiff's physician's application of weight-of-the evidence methodology was flawed; (2) plaintiff's physician failed to use reliable scientific methodology in determining that perchloroethylene (PCE) was more likely than cigarette smoke to have caused leukemia; (3) defendant's physician's opinion that PCE was not cause of leukemia was not conclusory; (4) reasoning and methodology of defendant's physician were reliable, supporting admission of expert testimony; (5) certified industrial hygienist and engineer was qualified and sufficiently reliable to testify as an expert.

Motions granted in part and denied in part.

5. Mark Miller and Cheryl Miller, Individually and Mark Miller As Administrator of the Estate of Matthew Miller, Deceased v. Pfizer, Inc. (Roerig Division), 196 F.Supp.2d 1062 (Feb. 7, 2002)

Parents sued manufacturer of antidepressant medication, alleging that medication caused their 13-year-old son to commit suicide, and asserting claims under Kansas Products Liability Act (KPLA) for strict liability for marketing defects and misrepresentations, and negligence for failure to test and to warn On manufacturer's motion to exclude parents' expert witness, the District Court, Vratil, J., held that. (1) expert's opinion on general causation did not satisfy Daubert requirements, and (2) expert's opinion on specific causation did not satisfy requirements of rules of evidence.

Motion granted.

6. Coffey, et al. v. Dowley Manufacturing, Inc., et al, 187 F.Supp.2d 958 (Feb. 19, 2002)

User brought products liability suit against manufacturer of automotive tool which allegedly failed while he was removing a trapped hub on automobile. On manufacturer's motion to disqualify user's expert and for summary judgment, the District Court, Nixon, Senior District Judge, held that: (1) under Tennessee law, mechanic who did not read relevant portions of tool manual did not have claim for breach of express warranty and misrepresentation; (2) professor of mechanical engineering did not qualify as expert under Rule 702 or Daubert regarding his opinion on reason for failure of automotive tool, and (3) user could not make out products liability case in absence of admissible expert testimony regarding defective nature of tool.

Motions granted.

7. Kerrigan v. Maxon Industries, Inc. 223 F.Supp.2d 626 (April 16, 2002)

Cement truck driver brought products liability action against manufacturer and installer of cement mixer bowl, asserting defective design claims. Installer moved to exclude proffered expert testimony on behalf of driver. The District Court, Van Antwerpen, J., held that: (1) hearing on motion would not be required; (2) proposed expert was not qualified to testify as to proposed shut- off valve; (3) proposed expert was not qualified to testify as to proposed light and alarm safety features; (4) proposed expert was qualified to testify regarding overall operation of agitator and cause of accident; and (5) foundation existed that would permit fair comparison between agitator and sister, exemplar agitator.

Motion granted in part and denied in part.

8. Pipitone v. Biomatrix, Inc., 288 F.3d 239 (April 18, 2002)

Patient who contracted salmonella infection after receiving injection of synthetic fluid in his knee joint brought products liability action against fluid manufacturer. The United States District Court for the Eastern District of Louisiana, Ivan L.R. Lemelle, J., 2001 WL 568611, granted summary judgment for defendant, and appeal was taken. The Court of Appeals, W. Eugene Davis, Circuit Judge, held that: (1) treating orthopedist's testimony as to causation was properly excluded as irrelevant; (2) infectious disease expert's causation testimony was admissible; (3) fact issue existed as to whether defendant had complied with its FDA-approved manufacturing methods; and (4) plaintiff could recover only economic losses on his redhibition claims.

Reversed and remanded.

9. Blanchard v. Eli Lilly & Company, 207 F.Supp.2d 308 (March 29, 2002)

Father, individually and as administrator of estates of deceased minor children, and grandparents, individually and as personal representative of deceased mother's estate, brought products liability action against drug manufacturer, alleging that mother shot and killed minor children and then killed herself as result of her ingestion of antidepressant Prozac. Drug manufacturer moved for summary judgment. The District Court, Sessions, J., held that: (1) proffered expert testimony regarding specific and general causation did not fit facts of instant case; (2) physician's proffered expert testimony was not adequately supported; (3) proffered evidence was not probative of whether Prozac could cause suicide or violent behavior in mother who appeared to have calmly planned her actions; and (4) assuming manufacturer had duty to warn, plaintiffs could not prove that, had mother heeded a warning, she and children would not have died.

Motion granted.

10. McClain v. Metabolife International, Inc., 193 F.Supp.2d 1252 (March 27, 2002)

Diet product consumers and their spouses brought action against diet product manufacturers, alleging failure to warn, failure to test product, deceptive advertising, negligence or reckless advertising, breach of warranty, and related state law claims, arising from their consumption of diet products which contained ephedrine and caffeine. Manufacturer moved for summary judgment. The District Court, Buttram, J., held that: (1) failure to warn claims were not merged into consumers' claim under Alabama Extended Manufacturer's Liability Doctrine (AEMLD); (2) no right of recovery for failure to test existed; (3) deceptive advertising claims were not subsumed under AEMLD; (4) no right of recovery existed for negligent marketing; (5) essence of claim was that product was unreasonably dangerous; and (6) deficiencies in expert report were harmless.

Motion granted in part and denied in part.

11. Scrofani v. Stihl Incorporated, 44 Fed. Appx. 559, 2002 WL 1798805 (3rd Cir.(N.J.) (Filed Aug. 6, 2002)

Worker brought products liability suit against manufacturer of gasoline- powered saw, which worker had been using when he was burned at construction site. The United States District Court for the District of New Jersey, Stanley R. Chesler, J., granted summary judgment in favor of manufacturer, and injured worker appealed. The Court of Appeals, Barry, Circuit Judge, held that: (1) expert testimony was properly excluded as unreliable; (2) under New Jersey law, worker failed to prove his claim that fuel cap design was defective; and (3) under New Jersey law, worker's claim that saw contained inadequate warning had to fail in light of evidence that worker would have ignored even the most perfect of warnings.

Affirmed.

12. Chapman v. Maytag Corporation, 297 F.3d 682 (Decided July 29, 2002)

Wife of deceased brought wrongful death suit against appliance manufacturer alleging that husband was electrocuted when he touched a metal surface energized by a current emanating from a defective kitchen range manufactured by defendant. Following a jury trial, the United States District Court for the Southern District of Indiana, Kennard P. Foster, United States Magistrate Judge, granted verdict for wife, and manufacturer appealed. The Court of Appeals, Bauer, Circuit Judge, held that: (1) widow's expert was not qualified under Daubert to offer his opinion as an expert witness; (2) court's admission of plaintiffs expert's testimony was error, requiring a new trial; (3) district court's determination that defense of misuse was not a complete defense was not abuse of discretion; and (4) determination that under Indiana law failure to heed product warnings was not "misuse" for purposes of comparative fault analysis was not an abuse of discretion.

Reversed and remanded.

13. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (July 24, 2002)

Patient brought Florida strict product liability action against manufacturer and distributor of a catheter that erupted inside of him. After excluding an engineering expert's affidavit offered by patient, the United States District Court for the Southern District of Florida, No. 99-01250-CV-FAM, Federico A. Moreno, J., granted summary judgment to defendants. Patient appealed. The Court of Appeals, Kravitch, Circuit Judge, held that: (1) the district court did not commit reversible error in excluding patient's proffered engineering expert's affidavit, and (2) under Florida law, patient was entitled to a legal inference, or Cassisi inference, of product defect, and the district court erred in not affording him this inference.

Affirmed in part and reversed in part. Hill, Circuit Judge, filed dissenting opinion.

14. Mattis v. Carlon Electrical Products, 295 F.3d 856 (Filed: July 10, 2002)

Apprentice electrician brought products liability action against manufacturer of polyvinyl chloride (PVC) cement to recover for reactive airways dysfunction syndrome (RADS) he allegedly acquired as result of his exposure to cement vapors. The United States District Court for the District of South Dakota, Lawrence L. Piersol, Chief District Judge, granted judgment for electrician. Manufacturer appealed. The Court of Appeals, Heaney, Circuit Judge, held that: (1) cement was capable of causing, and did cause, RADS in electrician; (2) manufacturer did not comply with Federal Hazardous Substances Act (FHSA); (3) deficient label on manufacturer's cement was proximate cause of electrician's injuries; (4) exclusion of field monitoring studies performed by manufacturer was not abuse of discretion; and (5) admission of evidence concerning health complaints related to cement was not abuse of discretion.

Affirmed.

FN* Judge Wollman took no part in the consideration or decision of this case.

15. Rider v. Sandoz Pharmaceuticals Corporation, 295 F.3d 1194 (June 24, 2002)

Patients in two cases who suffered hemorrhagic strokes after taking bromocriptine drug postpartum brought products liability action against drug manufacturer. Manufacturer moved to exclude patients' expert testimony on issue of causation. The United States District Court for the Northern District of Georgia, Nos. 9503068-CV-TWT-1, 95-00965-CV-TWT-1, Thomas W. Thrash, J., 131 F.Supp.2d 1347, granted motion. Patients appealed. The Court of Appeals, Roney, Circuit Judge, held that expert testimony on causation was inadmissible under Daubert.

Affirmed.

16. In Re Air Crash At Little Rock Arkansas, On June 1, 1999. Anna Lloyd v. American Airlines, Inc., 291 F.3d 503 (May 29, 2002)

Airplane passenger brought action against airline, pursuant to the Warsaw Convention, to recover for injuries sustained during crash. After jury verdict in favor of passenger awarding damages in the amount of $6.5 million, airline moved for judgment as matter of law. The United States District Court for the Eastern District of Arkansas, 118 F.Supp.2d 916, Henry Woods, J., denied motion and entered judgment on jury verdict. Airline appealed. The Court of Appeals, Beam, Circuit Judge, held that: (1) passenger failed to establish that all of her mental injuries flowed from her physical injuries; (2) evidence was insufficient to support finding that passenger's post-traumatic stress disorder (PTSD) was a compensable injury within meaning of Warsaw Convention; (3) physical manifestation of mental injuries would not be compensable under the Warsaw Convention; (4) award of $6.5 million in damages was excessive; (5) expert's conclusion that passenger had brain dysfunction lacked foundation and was inadmissible; (6) psychiatrist was qualified to give expert testimony on PTSD; (7) college professor was qualified to give lay opinion testimony regarding passenger's ability to successfully complete her student teaching requirements; and (8) airline would be permitted to file third-party complaint against the United States for contribution.

Affirmed in part, reversed in part, and remanded.

17. Bouchard v. American Home Productions Corp., 213 F.Supp.2d 802 (July 30, 2002)

Diet drug consumer brought action against manufacturer of dexfenfluramine hydrochloride, seeking to recover damages for personal injury allegedly arising from ingestion of the diet drug. The action was transferred and consolidated. Following remand, manufacturer moved to exclude evidence and for partial summary judgment, and patient moved to prohibit manufacturer from engaging in ex parte contact with treating physicians. The District Court, Katz, J., held that: (1) consumer would be required to bring separate tort action against physician arising from meeting with manufacturer, rather than motion to preclude ex parte communications; (2) consumer did not suffer neurological problems resulting from open heart surgery; (3) consumer failed to offer expert testimony to show elevations of her pulmonary artery pressure were more likely than not the product of valvular heart disease; (4) expert testimony regarding valve disease allegedly resulting from diet drug use would be limited; (5) probative value and relevance of evidence regarding manufacturer's labeling of another drug was outweighed by dangers of confusion and unfair prejudice; and (6) evidence that manufacturer misled Food and Drug Administration (FDA) would be excluded to extent it was offered to show that FDA was misled or that information was intentionally concealed.

Motions granted in part and denied in part.

18. Jack v. Glaxo Wellcome, Inc., 2002 WL 31936801(N.D.Ga.) (Aug. 23, 2002)

Patient, who was prescribed Zyban as a smoking cessation aid, brought action in state court against drug manufacturer, seeking damages for injuries allegedly sustained when ingesting Zyban at direction of her physician. Following removal, parties moved to exceed page limit established by local rules, defendant moved in limine, for summary judgment, and for evidentiary hearing on summary judgment motion. The District Court, Pannell, J., held that: (1) plaintiffs proffered expert testimony was not based on reliable methodology; (2) plaintiffs proffered expert testimony would be excluded for failure to comply with notice and discovery rules; (3) no evidence showed that Zyban could cause panic attacks or disorder; (4) drug manufacturer's liability would be limited by learned intermediary doctrine; and (5) patient's treating physician was adequately warned of risk of panic attack and panic disorder.

Motions granted in part and denied in part.

19. Clarke v. LR Systems, 219 F.Supp.2d 323 (Sept. 6, 2002)

User who lost parts of his right hand in plastic grinder machine brought products liability suit against manufacturer. Case was removed on basis of diversity jurisdiction. Manufacturer moved for summary judgment. The District Court, Trager, J., held that: (1) under New York law, user's actual knowledge of danger precluded failure to warn claim; and (2) expert's testimony that machine was defectively designed was admissible.

Motion granted in part and denied in part.

20. Christopher Newman, et al. v. Motorola, Inc., et al., 218 F.Supp.2d 769 (Sept. 30, 2002).

Cellular telephone customer brought state-court products liability and statutory consumer protection action against manufacturers/sellers, providers of transmission equipment and services, parent companies, and trade associations, alleging that use of phones had caused his brain cancer. Defendants removed action. The District Court, 125 F.Supp.2d 717, Blake, J., denied customer's motion for remand and granted parent companies' and trade associations' motions to dismiss. On cross-motions to exclude proffered expert testimony, the Court held that: (1) customer's proffered expert testimony on specific causation failed Daubert reliability test based on lack of peer support and lack of statistically significant findings; (2) customer's proffered expert testimony on general causation failed Daubert reliability test based on lack of human epidemiological studies; and (3) Daubert reliability requirement was satisfied as to defendants' proffered expert testimony, based on application of witnesses' expertise to subject of radiofrequency radiation (RFR).

Defendants' motion granted; customer's motion denied.

21. Kathleen Madaline Jarvis, Individually and as a parent and guardian of Paul Michael Attila Jarvis, a minor, v. Ford Motor Company, 283 F.3d 33 (Feb. 7, 2002).

Driver brought negligence and strict products liability action against minivan manufacturer, alleging that design defect caused sudden acceleration. A jury returned a verdict for driver on her negligence claim but not on her strict products liability claim and awarded her damages. The United States District Court for the Southern District of New York, Naomi Reice Buchwald, J., 69 F.Supp.2d 582, granted manufacturer's motions for judgment as a matter of law and for relief from an inconsistent verdict, reduced the verdict by the amount of collateral source payments, and thereafter denied driver's motion for relief from judgment, 2000 WL 1300444. Driver appealed. The Court of Appeals, Sotomayor, Circuit Judge, held that: (1) there was a legally sufficient evidentiary basis for jury to find that manufacturer had negligently designed the cruise control of minivan, causing sudden acceleration; (2) the weight given to conclusions in a report of he National Highway Traffic and Safety Administration (NHTSA), differing from those of driver's expert, was a matter for the jury to decide; (3) objection to an inconsistency between two general verdicts that is traced to an alleged error in the jury instruction or verdict sheet is properly made under Rule of Civil Procedure on objections to jury instructions, and not under Rule on special verdicts and interrogatories; (4) objection made to allegedly inconsistent verdicts, after the jury returned the verdicts, was untimely; (5) the expression of manufacturer's "fundamental position" that jury should not be instructed on both theories did not suffice to preserve its objection; (6) manufacturer was not excused from objecting before the jury retired, on ground that further objection would have been futile; (7) there was no fundamental error; and (8) the district court did not abuse its discretion in granting motion to reduce the amount of the jury verdict, on the basis of collateral disability payments, without holding a hearing.

Vacated and remanded with instructions in part and affirmed in part. Van Graafeiland, Senior Circuit Judge, filed an opinion concurring in part and dissenting in part.

22. Melvin Knotts, etc., et al., v. Black & Decker, Inc., et al., 204 F.Supp.2d 1029 (May 13, 2002).

Administrators of decedents' estates brought wrongful death and products liability actions against manufacturer of battery charger for decedents' deaths arising out of house fire allegedly caused by defective battery charger. Manufacturer moved for summary judgment. The District Court, Katz, . J., held that: (1) children, ages six and seven, were incompetent to testify as to the events of the fire; (2) statements made by young children four days after fire to fire investigator were inadmissible; (3) expert testimony of electrician and firefighter was inadmissible; (4) testimony of expert, offered on the functional capacity of battery charger to overheat and potentially cause a fire, was not sufficiently reliable for admission; and (5) administrators failed to establish a causal link between charger and fire.

Motion granted.

23. Raymond E. Lord v. Fairway Electric Corp., Gould, Inc., Siemens-Allis, Siemens Energy & Automation, Inc., 223 F.Supp.2d 1270 (July 1, 2002).

Master electrician brought products liability action, in state court, against manufacturer of breaker switch and load center, seeking damages for personal injury allegedly arising when an electrical arc struck him and he was seriously burned. Following removal, electrician moved for leave to file second amended complaint and manufacturer moved to exclude proffered expert opinion. The District Court, Antoon, J., held that: (1) factors weighed against allowing electrician to amend pleadings; (2) electrician did not show good cause for modification of scheduling order; and (3) proffered expert testimony was not sufficiently reliable, as required for admission.

Plaintiffs motion denied and defendant's motion granted.

24. David Masters v. Hesston Corporation, 291 F.3d 985 (May 31, 2002).

Farmer who lost part of right arm and severely injured left hand in hay baler accident sued manufacturer of baler in state court, asserting claims for strict products liability and negligence under Illinois law. Manufacturer removed action to federal court. The United States District Court for the Northern District of Illinois, Philip G. Reinhard, J., granted summary judgment to manufacturer. Farmer appealed. The Court of Appeals, Terence T. Evans, Circuit Judge, held that: (1) manufacturer did not modify baler, as required to toll statute of repose, and (2) farmer's proposed expert testimony on negligence was not reliable.

Affirmed.

25. Ginny V. White and Jimmie D. White v. Ford Motor Company and Orscheln Company, 312 F.3d 998 (Dec. 3, 2002).

Parents brought product liability action against manufacturer of truck which rolled over child. A jury in the United States District Court for the District of Nevada, David Warner Hagen, J-, found for parents and awarded punitive damages. Manufacturer appealed. The Court of Appeals, Kleinfeld, Circuit Judge, held that. (1) verdicts were not inconsistent; (2) expert's opinion as to cause of parking brake failure was admissible; (3) evidence of prior truck rollaway accident was admissible; (4) evidence of customer complaints about truck rollaways was admissible; (5) evidence was sufficient under Nevada law to support award of punitive damages; but (6) denial of jury instruction on extraterritorial conduct violated due process.

Affirmed in part and reversed and remanded in part.

Graber, Circuit Judge, filed opinion concurring in part and dissenting in part.

26. Frank A. Pretter, Sr., v. Metro North Commuter Railroad Company, 2002 WL 31163876 (S.D.N.Y.) (Sept. 30, 2002).

Railroad employees brought negligence action against railroad. On reconsideration of railroad's motion to strike proposed testimony of ergonomics expert, 206 F.Supp.2d 601, the District Court, Rakoff, J., held that: (1) court could evaluate expert's proposed testimony in total; (2) expert could not testify as percipient witness; (3) consideration of supplemental report of expert witness was not warranted; and (4) consideration of more recent publication of National Institute for Occupational Safety and Health (NIOSH), upon which expert offered to testify, was not warranted.

Motion denied.

PRODUCT LIABILITY-DECLARATION RELIEF

1. Ricardo Flores and Yolanda Flores v. Allstate Texas Lloyd's Company, 229 F.Supp.2d 697 (Oct. 21, 2002).

Homeowners brought action against homeowner's insurer, alleging breach of contract, bad faith, breach of statute, and seeking a declaration of their rights and temporary restraining order relating to coverage for water damage and ensuing mold growing in their home. Insurer moved to exclude testimony of homeowners' medical expert regarding health effects of household mold. The District Court, Crane, J., held that: (1) homeowners were required to prove that home could not be used for purposes for which it was intended and could not be restored, using ordinary repairs, without unreasonable interruption of the home's occupancy; (2) homeowners' medical expert's theory that homeowners' allergies were caused by the existence of mold in their home was not tested; (3) medical expert's technique supporting opinion had great potential for error; (4) expert's opinion was not subjected to peer review or publication; and (5) expert's opinion was not generally accepted within the relevant scientific community.

Motion granted.

CRIMINAL

1. United States Of America, v. Carlos Ivan Llera Plaza, Wilfredo Martinez Acosta, and Victor Rodriguez, 188 F.Supp.2d 549 (March 13, 2002)

Defendants, charged with drug conspiracy offenses and murders, moved to preclude latent fingerprint identification evidence. Government moved to admit latent print evidence. The District Court, Pollak, J., 179 F. Supp.2d 492, held that Federal Bureau of Investigation (FBI) fingerprint expert could not give opinion testimony that latent fingerprint was that of particular person. On petition for reconsideration, the District Court held that expert could give expert opinion, consistent with Daubert decision and federal procedure rule.

Order accordingly. Vacating, 179 F. Supp.2d 492.

2. United States Of America v. Kenneth Coleman, et al., 202 F.Supp.2d 962 (Feb. 15, 2002)

Defendant, indicted for numerous offenses relating to series of armed robberies of financial institutions, moved to exclude expert testimony based on mitochondrial DNA analysis. The District Court, Webber, J., held that (1) mitochondrial DNA analysis constituted scientific knowledge, was reliable, and would be helpful to the jury, and (2) any prejudicial effect of evidence based on mitochondrial DNA analysis was outweighed by its probative value.

Motion denied.

3. United States Of America v. Larry Reed & Sons Partnership, 280 F.3d 1212 (Feb. 12, 2002).

An agricultural partnership and its individual partners were found by a jury in the United States District Court for the Eastern District of Arkansas, Stephen M. Reasoner, J., to have submitted a false cotton crop insurance claim, in violation of the False Claims Act (FCA), and the partnership appealed. The Court of Appeals held that; (1) the jury had sufficient evidence to award $93,686.50 in damages against the partnership; (2) failure of the district court to give a limiting instruction with respect to admission of a witness' earlier statement for impeachment was not plain error; and (3) the district court did not abuse its discretion in admitting as reliable evidence expert testimony about the soil preparation of the partnership's farmland, which was based on the computer analysis of satellite images.

Affirmed.

4. United States Of America v. Cornelius Wayne Lester, --- F.Supp.2d --- (Dec. 19, 2002).

Defendant, charged with interference with commerce by force and possession and discharge of firearm in furtherance of crime of violence, in connection with attempted robbery of convenience store, moved in limine for permission to offer expert testimony regarding eyewitness identification generally. The District Court, Payne, J., held that failure to set forth details of scientific foundation underlying conclusions, as required by Daubert and Kumho decisions, precluded testimony.

Motion denied.

5. United States Of America v. Kevin Davis, et al., 233 F.Supp.2d 695 (Nov. 26, 2002)

Defendants were convicted of possession of cocaine with intent to distribute and possession of firearms in connection with drug trafficking offenses. Defendants moved for judgment of acquittal or for new trial. The District Court, Katz, Senior District Judge, held that: (1) evidence was sufficient to convict; (2) new trial was not required on grounds of inadequate pretrial discovery; (3) police officer could offer expert testimony as to habits of drug dealers; (4) in doing so, officer did not impermissibly testify as to state of mind of defendants in present case; and (5) nonresponsive testimony of police officer did not require declaration of mistrial.

Motions denied.

6. United States Of America v. Julio Adalberto Hidalgo, Sr.; Julio Hidalgo, Jr., 229 F.Supp.2d 961 (Nov. 6, 2002).

Defendants challenged the admissibility of expert witness testimony regarding handwriting analysis. The District Court, Martone, J., held that: (1) document examiner would not be permitted to testify that handwriting on questioned document was in fact the handwriting of the defendant, but (2) document examiner could testify to the mechanics and characteristics of handwriting, his methodology, and his comparisons of similarities and dissimilarities between the writings.

Ordered accordingly.

7. United States Of America v. Edward Lee Lewis, 220 F.Supp.2d 548 (Sept. 11, 2002).

Defendant, charged with mailing threatening communications and mailing threat to President, moved for judgment of acquittal at close of evidence. Following denial of motion and conviction, defendant again moved for judgment of acquittal, or for new trial. The District Court, Goodwin, J., held that: (1) government's handwriting analyst did not qualify as expert witness; (2) as matter of first impression, jury could find that sending of white powder was threatening nonverbal communication covered by threat statute; (3) jury could find that defendant sent letters in question; (4) jury could be instructed to keep deliberating, after court received word that jury was deadlocked eleven to one in favor of conviction; and (5) Allen instruction, admonishing each deadlocked juror to listen to arguments of others with disposition to be convinced, was not required.

Motion denied.

8. United States Of America v. Michael S. Prime, 220 F.Supp.2d 1203 (Sept. 20, 2002).

Defendant in counterfeiting case moved in limine for exclusion of proposed expert testimony that handwriting on counterfeit money orders and other documents was his. The District Court, Lasnik, J., held that: (1) Justice Department's solicitation of offers to study scientific validity of handwriting identification did not constitute admission that analysis was not scientific, and (2) testimony was admissible, under Supreme Court's Daubert and Kumho Tire decisions and federal evidence rule.

Motion denied.

9. United States Of America v. Christina Maria Mendoza-Paz, 286 F.3d 1104 (April 10, 2002).

Defendant was convicted by jury in the United States District Court for the Southern District of California, Judith N. Keep, Chief Judge, of importation of marijuana and possession with intent to distribute marijuana. Defendant appealed. On rehearing, the Court of Appeals, Wardlaw, Circuit Judge, held that: (1) statutes that established drug trafficking and drug importation offenses and set forth penalties for such crimes were facially constitutional; (2) drug quantity determination could be made by sentencing court; (3) government sufficiently complied with discovery rule with respect to disclosure of expert witness and bases for his testimony; (4) defendant was not prejudiced by government's alleged failure to make adequate disclosure of expert witnesses and bases for their testimony; (5) district court could reasonably conclude that expert was qualified to testify regarding value of seized marijuana; (6) district court was not required to conduct Daubert hearing outside presence of jury; and (7) admission of agent's lay witness opinion was not plain error.

Affirmed.

Opinion, 8 Fed.Appx. 732, superseded.

10. United States Of America v. Robert Turner, 285 F.3d 909 (April 2, 2002).

Defendant was convicted by a jury in the United States District Court for the District of Kansas, John Thomas Marten, J., of interference with commerce arising from two robberies, and for using or carrying a firearm during and in relation to two crimes of violence. Defendants appealed. The Court of Appeals, John C. Porfilio, Senior Circuit Judge, held that (1) any error in admission of fingerprint testimony was harmless, and (2) prior conviction for escape constituted "crime of violence" for purposes of sentencing as career offender.

Affirmed.

11. United States Of America v. Dennis J. Mooney, 315 F.3d 54 (Dec. 30, 2002).

Defendant was convicted in the United States District Court for the District of Maine, George Z. Singal, J., of conspiracy to obstruct commerce by robbery and using or carrying firearm in relation to crime of violence. Defendant appealed. The Court of Appeals, Bownes, Senior Circuit Judge, held that: (1) prosecutor's remarks in opening statement contrasting jurors' sense of community safety with defendant's alleged armed robbery of hotel were improper; (2) prosecutor's remarks were not severe enough to have affected trial; (3) prosecutor's improper comment in closing argument regarding defendant's failure to testify was harmless beyond reasonable doubt; (4) handwriting expert's testimony was reliable and based upon valid technical and specialized knowledge; and (5) government's delayed disclosure of evidence was not prejudicial to defendant.

Affirmed.

12. United States Of America v. Michael David Booth, 309 F.3d 566 (Oct. 25, 2002).

Defendants were convicted in the United States District Court for the Eastern District of Washington, Edward F. Shea, J., of wire fraud and money laundering. Defendants appealed. The Court of Appeals, Canby, Senior Circuit Judge, held that: (1) money laundering required proof of use of proceeds from unlawful activity in financial transaction with either defendant's intent to promote unlawful activity or defendant's knowledge that transaction was designed to conceal proceeds of unlawful activity; (2) exclusion of polygrapher's expert testimony was warranted; (3) government's alleged failure to disclose interviews and report did not constitute Brady violations; (4) government did not have duty to preserve hard drives of defendant's computers; (5) evidence was sufficient to support wire fraud convictions; (6) two-level sentencing enhancement based upon defendant's management role was warranted; and (7) imposition of upward departure based upon victims' desperation was barred for lack of notice.

Affirmed in part; vacated in part, and remanded.

13. United States Of America v. Justin Gabriel Hernandez, 299 F.3d 984 (Aug. 22, 2002).

Defendant was convicted in the United States District Court for the District of Nebraska, Richard G. Kopf, Chief District Judge, of conspiracy to distribute and possess with intent to distribute methamphetamine, cocaine, and marijuana, and distribution and possession with intent to distribute methamphetamine. Defendant appealed. The Court of Appeals, Beam, Circuit Judge, held that: (1) evidence was sufficient to support conspiracy conviction; (2) defendant was not prejudiced by district court's denial of motion for bill of particulars; (3) law enforcement officer was justified in relying upon consent given by coconspirator to search vehicle; (4) defendant failed to demonstrate a Brady violation; (5) admission of expert testimony regarding fingerprint analysis was warranted; (6) indictment was legally sufficient; and (7) sentence did not violate Apprendi.

Affirmed.

14. United States Of America v. Franklin Diaz, 300 F.3d 66 (Aug. 20, 2002).

Following jury trial before the United States District Court for the District of Rhode Island, Ernest . C. Torres, Chief District Judge, defendant was convicted of malicious destruction by fire of property used in interstate commerce. Defendant appealed. The Court of Appeals, Lipez, Circuit Judge, held that: (1) defendant's objections at trial were insufficient to preserve alleged Daubert error regarding methods employed by prosecution's experts in determining nature of fire; (2) admission of experts' testimony was not plain error; (3) challenge to denial of motions for judgment of acquittal did not raise challenge to sufficiency of all admitted evidence; and (4) court had no authority to grant new trial in response to tardy motion.

Affirmed.

15. United States Of America v. Mamdouh Mahmud Salim, 189 F.Supp.2d 93 (March 11, 2002).

Defendant of Arab ethnicity, charged with assault and other crimes in connection with attempted escape from correctional facility, made pretrial motions for change of venue, suppression of photograph, and suppression of fingerprint testimony. The District Court, Batts, J., held that: (1) venue would not be transferred on grounds that person of Arab ethnicity could not receive fair trial; (2) close-up picture of stabbing victim, taken postoperatively, would be excluded as being more prejudicial than probative; and (3) methodology undertaken by fingerprint expert satisfied Daubert requirements for admissibility.

Motion granted in part, denied in part.

16. United States Of America v. Timothy Jay Cline And Charles Williams Hopkins, 188 F.Supp.2d 1287 (Feb. 21, 2002).

Defendants charged with various drug trafficking offenses moved to exclude certain evidence. The District Court, Crow, Senior District Judge, held that: (1) denial of defendant's motion in limine to exclude evidence of defendant's prior drug use was warranted; (2) Daubert hearing was unnecessary to determine reliability of fingerprint identification analysis; (3) government witness testimony as to the defendant's prior bad acts involving the manufacture and distribution of methamphetamine was admissible; (4) denial of defendant's motion in limine to exclude law enforcement's seizure of cash from motorcycle, and evidence of odor of marijuana near cash was warranted; (5) evidence of membership of the defendant, co-conspirators and witnesses in motorcycle gang was relevant; (6) exclusion of defendant's wife's racially inappropriate comments contained in wiretap tapes was not warranted; and (7) denial of defendant's motion in limine to exclude evidence of firearms allegedly seized from defendant's residence was warranted.

Motions granted in part, and denied in part.

17. Timothy K. Ueland v. United States Of America, 291 F.3d 993 (June 3, 2002).

Inmate sued United States under Federal Tort Claims Act (FTCA), alleging that he was injured in collision between prison van in which he was riding and "chase car." Following trial to court, the United States District Court for the Northern District of Illinois, John W. Darrah, J., entered judgment for U.S. Inmate appealed. The Court of Appeals, Easterbrook, Circuit Judge, held that: (1) deposition of fellow federal inmate was admissible; (2) district court was required to hold Daubert hearing to determine qualifications of inmate's chiropractor to testify; and (3) Assistant United States Attorney was entitled to discuss inmate's medical history and condition with prison physician.

Reversed and remanded.

TITLE VII

1. Mohamed Osman Elsayed Mukhtar v. California State University Hayward, A Public entity, Carlos Navarro and Norma Rees, employees of the California State University in their Official and Individual Capacities, 299 F.3d 1053 (Aug. 7, 2002)

Professor sued state university under Title VII, alleging that it discriminated against him on basis of race in denying him tenure. Following jury trial, the United States District Court for the Northern District of California, Claudia Wilken, J., entered judgment in favor of professor. University appealed. The Court of Appeals, O'Scannlain, Circuit Judge, held that: (1) professor's testimony that arbitrator had ordered that he be granted tenure was not more prejudicial than probative; (2) university preserved its challenge to admission of expert testimony; (3) District Court failed to make reliability determination with respect to expert testimony, and thus failed to fulfill its gatekeeping role; and (4) such error was not harmless.

Vacated and remanded.

2. Pierre Bazile v. City Of New York, et al., 215 F.Supp.2d 354 (Aug. 2, 2002).

Police officer who shot pit bull and was placed on modified duty assignment pending completion of investigation and disciplinary proceedings filed action alleging he was subjected to hostile work environment and retaliation in violation of Title VII and New York State Human Rights Law (NYSHRL), and denial of equal protection in violation of § 1983. City, police department, and individual officers named as defendants moved for summary judgment. The District Court, Marrero, J., held that: (1) officer was procedurally barred from filing hostile work environment claims regarding modified duty assignment and walking post assignment he was subsequently transferred to, and officer also failed to show that conditions in either assignment rose to level of hostile work environment; (2) officer failed to establish prima facie case of retaliation under Title VII or § 1983 equal protection claim regarding his communications with newspaper reporter; and (3) proffered expert testimony was inadmissible under standards of Daubert and Kumho Tire.

Motion granted.

3. Barbara Jean Berry, et al., v. School District Of The City Of Benton Harbor, et al., 195 F.Supp.2d 971 (April 4, 2002)

School district and state moved for determination that district had attained unitary status, having previously been segregated, and for termination of desegregation suit commenced 35 years previously. The District Court, Hillman, Senior District Judge, held that: (1) experts could provide testimony regarding district's compliance with requirements of remedial order; (2) school district had complied in good faith with goal of equal achievement test performances by students of all races; (3) improvements eliminated last vestiges of school desegregation through improvements in performance level of minority students; and (4) state would be required to continue payments for transportation of students to other districts, and to reimburse district for state funding lost by student transfers, during period programs were being phased out.

Case dismissed. See, also, 515 F.Supp. 344.

BANKRUPTCY

1. In re Vincent Crisomia, Sr. and Dolores J. Crisomia, Debtors; Vincent Crisomia, Sr. and Dolores J. Crisomia v. Parkway Mortgage, Inc., Classic Exteriors by Alan Cherry, Inc., Citifinancial Mortgage Co. and the Chase Manhattan Bank, 286 B.R. 604 (Dec. 4, 2002).

Debtor brought proceeding to reduce lender's claim based on its alleged violations of the Truth in Lending Act (TILA). On debtor's motion to exclude expert witness, the Bankruptcy Court, Diane Weiss Sigmund, J., held that court would allow lender's expert to testify regarding adequacy of lender's disclosures.

Motion denied.

2. In re Armstrong World Industries, Inc., et al., Debtors, 285 B.R. 864 (Oct. 22, 2002).

Motion was made in the case of Chapter 11 debtor, the manufacturer of asbestos-containing floor tile, to exclude expert opinions and other evidence on grounds that it failed to meet the standards of scientific reliability and validity mandated by the Supreme Court's Daubert decision. The Bankruptcy Court, Randall J. Newsome, J., held that the "indirect method" for measuring airborne asbestos expounded in the American Society for Testing and Materials (ASTM) D5755 standard did not meet the Daubert test.

Motion to exclude granted.

SECURITIES FRAUD

1. Securities and Exchange Commission v. U.S. Environmental, Inc., 2002 WL 31323832 (Oct. 16, 2002)

Securities and Exchange Commission (SEC) brought action against, inter alia, market maker and its principal, alleging various securities fraud claims, and seeking permanent injunction and disgorgement order. On defendants' motion in limine to exclude testimony of SEC's proposed expert witness, the District Court, Leisure, J., held that: (1) expert testimony as to "wash trades" that occurred between defendants would be helpful to trier of fact in analyzing transactions of common stocks; (2) expert's conclusions were based on his knowledge of typical trading activity, and were supported by his 30 years of experience in the securities industry; (3) expert's conclusion that defendants violated duties owed by a broker-dealer would not be excluded as unreliable under Daubert; (4) expert's conclusions were factual conclusions that embraced ultimate issue, as opposed to inadmissible ultimate legal conclusions; and (5) expert's conclusions were not impermissibly based on witnesses' deposition testimony.

Motion denied.

UNFAIR TRADE PRACTICE

1. Lithuanian Commerce Corporation, Ltd., v. Sara Lee Hosiery, Sara Lee Hosiery International, Sara Lee International and Sara Lee Corporation, 202 F.Supp.2d 371 (June 12, 2002).

Lithuanian distributor of American pantyhose brought suit against manufacturer, asserting violations of New Jersey Franchise Practices Act (NJFPA) and claims for breach of express and implied warranties, fraud, breach of contract, and tortious interference with business relations. Manufacturer counterclaimed, alleging breach of Lanham Act, New Jersey Unfair Trade Practices Act, and common-law claims of negligent misrepresentation and libel. The District Court Orlofsky, J., entered judgment for distributor on all counts. Manufacturer appealed. The Court of Appeals, Garth, J., 248 F.3d 1130, affirmed in part and vacated in part. On remand the District Court, Orlofsky, J., held that: (1) District Court was not required to consider distributor's untimely motion in limine to limit scope of reports of manufacturer's expert, and (2) manufacturer's expert's reports were not unreliable under Daubert.

Motion in limine denied.

CERCLA

1. Dura Automotive Systems Of Indiana, Inc., v. Cts Corporation, 285 F.3d 609 (May 29, 2002). [FN*]

Environmental Protection Agency (EPA) sued automotive company under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover costs of cleaning up environmental contamination near company's plant, and company asserted third-party reimbursement claim against nearby plastics manufacturer. Following resolution of EPA's claims, the United States District Court for the Northern District of Indiana, Robert L. Miller, Jr., J., granted summary judgment for manufacturer. Company appealed. The Court of Appeals, Posner, Circuit Judge, held that: (1) treating affidavits as expert reports that were not disclosed in timely fashion, rather than as attestations showing that company's expert was competent to report results of modeling exercises undertaken by his colleagues, was not abuse of discretion, and (2) district court did not abuse its discretion when it refused to forgive untimely filing of additional expert reports and excluded those experts from testifying at trial.

Affirmed. Diane P. Wood, Circuit Judge, dissented and filed a separate opinion.

FN* Hon. Rana Diamond Rovner, Hon. Diane P. Wood, Hon. Terence T. Evans and Hon. Ann Claire Williams voted to grant the petition for rehearing en banc.

PATENT CASE

1. Astra Aktiebolag, et al., v. Andrx Pharmaceuticals, Inc. In re Omeprazole Patent Litigation. 222 F.Supp.2d 423 (Oct. 16, 2002).

Owner of patents for pioneer drug to treat gastrointestinal disorders brought infringement action against applicants for approval to market generic versions. The District Court, Jones, J., held that: (1) plaintiffs expert testimony was generally admissible; (2) patents for formulation of drug to control gastric acid production were literally infringed by all but one defendant; (3) formulation patents were neither obvious nor anticipated; and (4) method of use patent was invalid as anticipated.

Two patents infringed; one patent invalid.

1. Khammoung Praseuth v. Newell-Rubbermaid, Inc., 219 F.Supp.2d 1157 (July 18, 2002).

Former employee, who suffered from idiopathic thrombocytopenia purpura (ITP), which could have caused spontaneous bleeding due to decrease in platelet count, sued former employer, alleging violations of Americans with Disabilities Act (ADA) and Kansas Act Against Discrimination (KAAD). On cross motions for summary judgment, the District Court, Marten, J., held that: (1) employee's use of non-conclusory expert statements in support of summary judgment did not circumvent court's gatekeeping role under Daubert; (2) employer's parent corporation was not liable to employee for alleged discrimination under integrated enterprise test; (3) fact questions precluded summary judgment on issue of whether employee was disabled; (4) fact questions precluded summary judgment on issue of whether employee was able to perform functions of job; (5) statute of limitations began to run when employee was terminated, not when she was placed on leave of absence; (6) employer's termination of former employee at end of one-year leave of absence was not retaliation; (7) fact questions precluded summary judgment on issue of whether employer's attorney was agent authorized to enter into contract with employee on employer's behalf, (8) employer did not effectively terminate employee when she was placed on leave of absence without informing employee, as required to support claim of fraud by silence under Kansas law; (9) employer was not liable for coworkers' alleged invasion of employee's privacy under Kansas law; (10) fact questions precluded summary judgment on issue of whether employee mitigated her damages; (11) fact questions precluded summary judgment on issue of whether employee could claim was entitled to punitive damages; and (12) fact questions precluded summary judgment on issue of whether employee suffered from impairments that substantially limited one or more of her major life activities.

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