*1 summаry judgment. Appellant’s Br. at 43 less like the generalist “expert for hire” (“[I]f the Plaintiff is present allowed to epitomized by event, Friend. In any if the expert testimony Gary Friend, trial court is to granted “broad latitude” Plaintiff will have met her burden under both in selecting appropriate reliability Tennessee summary law and judgment given factors for a case as well inapрropriate.”). Gilfeather does make a applying each of those factors to the case’s attempt brief argue facts, Kumho, without 152-53, 526 U.S. at Friend, testimony of the exрerts put then we cannot conclude that his opponent, Manitowoc, magistrate judge exceeded this lati- get should suffice to past summary judg- tude in the instant case. 17-18;
ment. See id. at Reply Br. at 9-10. We therefore affirm. argument
This is without merit. An ap-
pellant cannot overcome judg-
ment in a case such as this simply by
cherry-picking statements from an appel- experts’
lee’s opinions, when the overall experts
conclusions run contrary
to the appellant’s position. The appellant
could introduce a expert reliable to dissect opinions CRAWFORD, William of the al., appellee’s experts, but et that оf course is what Gilfeather has tried Plaintiffs-Appellants, and failed do with Friend. sum, given our conclusion that MARION COUNTY ELECTION magistrate judge did not abuse her discre- BOARD, al., et Defendants- tion in excluding Friend’s testimоny, we Appellees. must also affirm of summary 06-2218, Nos. 06-2317.
judgment in favor of Manitowoc. United States Court of Appeals,
IV Based on magistrate judge’s thor- ough analysis of testing factor,
general-acceptance factor, and pre-
pared-solely-for-litigation factor, we con-
clude that she acted well within her discre-
tion tо exclude the testimony of Friend.
The most obvious cure would have been
Kenneth J. Falk (argued), Indiana Civil
for Friend to
produced
have
at least some
Union,
Liberties
(ar-
William R. Groth
еmpirical testing data on his proposed al-
gued), Fillenwarth, Dennerline, Groth &
design.
ternative
entirely
he
failed to
Towe,
IN,
Indianapolis,
for Plaintiffs-Ap-
do. Another cure would havе been for
pellants.
Gilfeather to have found someone with ex-
pertise
directly
more
related to the large
Thomas M. Fisher (argued), Steve Car-
truck
truck crane industry.
ter,
аnd/or
Such
Office of
General,
the Attorney
James
an expert might have
spared
been
Osborn,
the B.
M. Wright,
Kobi
Office of the
testing factor,
Daubert
as in Bah. And Corporation Counsel,
IN,
Indiаnapolis,
expert would probably look much Defendants-Appellees.
*2
by Judge Ev-
expressed
the concerns
Celestino-Horseman,
with
Indianapo-
Karen
panel’s
frоm the
Weiss,
writing in dissent
Paul,
ans,
Rosdeitcher,
IN, Sidney S.
lis,
cor-
majority
panel
Although the
opinion.
Garrison, New York
Rifkind,
&
Wharton
Court’s
Wilmer,
Zubler,
rectly notes that
Cut-
Todd Cornelius
City,
Takushi,
U.S.
Dorr,
v.
Washington,
in Burdick
cision
Hаle &
Pickering,
ler,
(1992),
119 L.Ed.2d
DC,
Curiae.
for Amicus
not re-
scrutiny is
strict
recognizes
EASTERBROOK,
H.
FRANK
every
of
last
the assessment
quired for
POSNER,
A.
RICHARD
Judge,
Chief
matter how trivial
regulation, no
election
FLAUM, Circuit
M.
JOEL
Judge,
Circuit
voting,
on
light the
rule or how
RIPPLE, Circuit
F.
Judge, KENNETH
also
that Burdick
panel assumes
MANION, Circuit
A
Judge, DANIEL
longer
scrutiny
strict
means
KANNE, Circuit
S.
MICHAEL
Judge,
case. As
any election
appropriate
ROVNER,
DIAMOND
Judge, ILANA
however,
clear,
Bur-
makеs
Judge Evans
WOOD, Circuit
P.
DIANE
Judge,
Circuit
contrary,
thing. To the
holds no
dick
EVANS, Circuit
T.
TERENCE
Judge,
a threshold
established
simply
Burdick
WILLIAMS,
CLAIRE
Judge, ANN
perform
court must
that a
quiry
SYKES,
S.
DIANE
and
Judge
Circuit
required
scrutiny
level of
decides
Judge.
Circuit
As I
it.
case before
seri-
below,
briefly
when
explain
ORDER
has been
law
an election
risk that
ous
plaintiffs-appel
January
On
an addi-
imposing
of
intent
with the
passed
with
rehearing
petitiоn
filed a
lants
to
right
significant burden
tional
banc,
on
and
rehearing en
suggestion
voters, the court
specific group
of a
vote
defendants-appellees
February
Only this
scrutiny.
ex-
apply strict
must
vote of
A
petition.
to the
an answer
filed
ensure that
to
will suffice
approach
acting
wheth
on
of the court
active members
deny these
to
being usеd
law is
request
rehearing en banc was
er to
to vote.
fundamental
have voted
judges
and a
opin
Judge Wood’s
petition.*
deny
rigor-
“the
held that
The
rehearing
denial
from the
dissеnting
ion
court’s]
of [the
ousness
appended.
banc is
en
depends
a state
election
propriety
the extent
upon
is therefore
Denied.
petition
The
Fourteеnth
and
First
burdens
regulation
Judge,
with whom
WOOD,
Circuit
rights.” 504
Amendment
EVANS,
ROVNER,
subjected
Judges
are
rights
If
S.Ct.
from the
dissenting
join,
reaf-
WILLIAMS
the Court
to “severe”
banc.
rehearing en
denial
be ‘nar-
that “the
firmed
rowly drawn
this case address-
opinion
panel’s
”
Id., quoting
importance.’
unresolved
important
exceptionally
es an
279, 289, 112
Reed, 502 U.S.
Norman
level of
of law: what
If,
(1992).
L.Ed.2d
evaluating manda-
use when
courts
рrovision
hand,
the other
agree
laws?
tory voter
*
rehearing
Wood,
en
Rovner,
Judge Evans
Judge
Judge
petition for
grant the
voted
Judge Williams
‘reasonable,
“imposes only
nondiserimina-
against [state
Recent
interests].”
national
tory
upon
restrictions’
the First and Four-
us,
history
election
tells
contrary,
rights
voters,
teenth Amendment
‘the
that disenfranchising
tiny
even a
perсent-
important
State’s
regulatory interests are
age of
can
enough
swing
*3
generally
justify’
sufficient to
the restric-
election outcomes. Christine Gregoire
434,
2059,
tions.” 504
at
112 S.Ct.
captured
gubernatorial
the
race in Wash-
Celebrezze,
quoting Anderson v.
460 U.S.
ington
2004 with margin
only
a
because asserted for the the benefit matter, the empiricаl as an is small
terest creates, Fed. cannot stand. issue it, “genuine puts
R.CrvP. *4 resolved not be may that fact”
material state’s ruling favor of FONSECA-SANCHEZ, America judgment. motion own Petitioner, ever, in has one fact, appears voter charged with history, been Indiana’s an requires
fraud. GONZALES, Respondent. R. Alberto by the “precise No. 06-2387. im- the burden justifications assert- the “facts” in this but posed,” Appeals, States United voter its state in by the true with- taken as were justification fraud re- they to see any examination out 8, 2007. Argued Feb. reality. flected 13, 2007. Decided ignore should court Finally, this Unfortunately, history. country’s in the not-so- used have been
regulations discriminatory reasons. past
distant harm case will in this often-marginalized identifiable
an undetermined some significant court should
gree. considering satisfactorily including
care, law, dis- behind motives injury.
counting such exacting under may
It for laws mandates
scrutiny Burdick which under severe
impose nar- whether decide drawn
rowly the Indiana importance, are not We stand.
challenged here inquiry. conduct position in a
yet task, full undertaking should decide
court kind and what a law of such review
govern