Posts Tagged ‘expert testimony’

The Fourth Circuit’s unanimous published opinion in F.C. Wheat Maritime Corp. v. United States, released today, provides insight into the valuation of yachts and the difference between “allision” and “collision.” In the opinion, the court of appeals affirms an award of lower damages than sought by the owner of a docked yacht that was smashed up by an Army Corps of Engineers vessel whose captain fell asleep at the helm. Judge Duncan wrote the opinion, which was joined in by Judge Shedd and Judge Osteen (MDNC, sitting by designation).

The first footnote of the opinion reads as follows:

“An allision is a collision between a moving vessel and a stationary object.” Evergreen Int’l., S.A. v. Norfolk Dredging Co., 531 F.3d 302, 304 n.1 (4th Cir. 2008) (quoting Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-2 n.1 (4th ed. 2004)). See also Black’s Law Dictionary 88 (9th ed. 2009) (defining an allision as  [t]he contact of a vessel with a stationary object such as an anchored vessel or a pier”). The Marquessa was stationary at the time of the incident in this case.

Black’s explains, however, that “collision” is often used where “allision” was once the preferred term. Black’s Law Dictionary at 88. And as the Fifth Circuit has noted, “[i]n modern practice, courts generally use the term ‘collision’ as opposed to ‘allision’ when describing contact between vessels that gives rise to a suit.” Apache Corp. v. Global Santa Fe Drilling Co., No. 10-30795, 2011 WL 2747575, at *1 n.1 (5th Cir. Jul. 13, 2011)(unpublished). Indeed, the district court here used the term collision.

We adhere to the more precise usage, and are particularly mindful that admiralty law draws a distinction (albeit not one relevant to this appeal) between allisions and collisions. See Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 362 (6th Cir. 2010) (noting that admiralty law establishes a rebuttable presumption that in an allision, the moving object is at fault).


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The Fourth Circuit issued two published opinions in argued cases today. Judge Wynn authored both opinions, which were unanimous.

At issue in Creekmore v. Maryview Hospital was the admissibility, under Virginia Code § 8.01-581.20, of the testimony of an OB-GYN about the standard of care for a nurse’s postpartum monitoring of a high-risk patient with preeclampsia. The district court admitted the testimony and the court of appeals affirmed. The panel deciding the appeal consisted of Judge Wilkinson, Judge Wynn, and Judge Floyd.

In CGM, LLC v. BellSouth Telecommunications, the Court of Appeals held that a billing agent for competitive LECs lacked statutory standing to bring an action for declaratory relief against an incumbent LEC regarding the claim that the ILEC failed to pass on to CLECs the full value of discounts offered by the ILEC to its customers. No CLECs were parties in the case. Some key language:

CGM has no interconnection agreement with BellSouth. CGM has not brought this suit pursuant to any interconnection agreement. And no party to an interconnection agreement is a plaintiff in CGM’s suit. Because Section 251(c)’s resale duties and the related 47 C.F.R. § 51.613 are not free-standing but exist, to the extent that they do at all (given parties’ freedom to contract around them), only as embodied in interconnection agreements, CGM has no rights, and BellSouth no duties, under the circumstances of this case.

Although decided on statutory standing grounds, this case has some echoes of the Fourth Circuit’s decision on Article III standing in Neese v. Johanns:

In this case, any claim to a specific sum of money must flow from the contractual relationship between the Secretary and the producer. See 7 U.S.C. § 518b(a) (“The Secretary shall offer to enter into a contract . . . under which the producer of quota tobacco shall be entitled to receive payments under this section. . . .”) (emphasis added). Appellants, however, cannot maintain such a claim. After accepting the Secretary’s offer of payment contracts without reservation and entering into those contracts, they transferred all their rights under those contracts to third parties. Quite simply, appellants have no rights left to invoke and, therefore, lack standing to pursue further contracts or payments from the Secretary.

Procedure buffs may be interested in noting the court’s conclusion that a motion to dismiss for lack of statutory standing is properly brought under FRCP 12(b)(6) rather than FRCP 12(b)(1). It is also worth noting how easily the court dispatched the attempt to rely on the Declaratory Judgment Act as a free-standing cause of action.

The panel deciding CGM consisted of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith.

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The Fourth Circuit today affirmed the conviction and sentence of a former SEC lawyer who advised and participated in a “pump and dump” securities fraud conspiracy. Judge Niemeyer authored the opinion in United States v. Offill, which was joined in by Judge Wilkinson and Judge Traxler. The opinion contains extensive discussion of the admissibility of expert testimony about complex legal schemes. Here is a taste:

We conclude that the specialized nature of the legal regimes involved in this case and the complex concepts involving securities registration, registration exemptions, and specific regulatory practices make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury. The jury in this case needed to understand not only federal securities registration requirements but also the operation of several obscure Texas Code provisions and their relationship with the federal regime. To be sure, the ultimate responsibility for instructing the jury on the law belonged to the district court, but we cannot conclude that in these circumstances the district court abused its discretion by concluding that the expert testimony presented in this case would assist the jury. Indeed, we find it difficult to imagine how the government could have presented its case against Offill without the assistance of expert testimony to explain the intricate regulatory landscape and how securities practitioners function within it.

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