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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Ninth Circuit Limits Cause and Origin Testimony


In Turner v. Burlington Northern, et al. (Aug. 11, 2003), No. 02-35270, the Ninth Circuit Court of Appeals reviewed the district courtís limitation of a cause and origin investigator's trial testimony. The case involved a fire on a railroad right away. The fire spread across the range and destroyed the plaintiff's property to include personal property and pets.

Suit was filed alleging sparks from railroad cars caused the fire. The jury found for the plaintiffs. A fire investigator took samples from a debris pile. The report from the sample taken stated the samples contained a mixture of petroleum distillate consistent with gasoline. The expert would have testified that the fire resulted from arson. The district held his testimony was not admissible to prove the fire was started by gasoline.

The court noted under applicable federal rules of evidence that the lab report was the only evidence of gasoline in the soil. The court held the expert used the report not as data upon which and expert in his field would reasonably rely in forming an opinion but rather intended to use it as substantive evidence of his ultimate conclusion that the fire was intentionally created by pouring gasoline into the soil. The lab report was otherwise inadmissible hearsay evidence in the absence of foundation testimony by the laboratory that conducted the testing.

The court held prejudice would result from admission of the evidence was substantial. Hence, because the probative value of this otherwise inadmissible evidence did not outweigh its prejudicial effect, the inquiry was ended under Federal Rule of Evidence 703. Hence, the district court's ruling was affirmed excluding the expertís testimony.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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