8th Circuit Bars Testimony on Sexual Transmissibility of Hepatitis

In United States v. Rushing, 313 F.3d 428 (8th Cir. 2002), a man was charged with importing a Chinese woman for sexual purposes. The woman testified that the pair had sex on a weekly basis for about a year. The man said that couldn't be true, because he was impotent, and also because she had hepatitis, whereas he didn't. To support his hepatitis argument, he offered testimony from a pharmacologist who opined that the woman would have transmitted the disease to the man if they had sex regularly over that time period. The district court excluded the pharmacologist's testimony as collateral under Fed. R. Evid. 403. The Eighth Circuit reversed, finding the testimony highly relevant, and remanding for a Daubert inquiry.

The Eighth Circuit has now upheld the trial court's decision, on remand, that the pharmacologist's testimony was unreliable. See United States v. Rushing, No. 01-3077 (8th Cir. Nov. 18, 2004) (McMillian & Melloy, JJ.). Among other difficulties, the pharmacologist had assumed that the pair had sex more frequently than the woman's testimony indicated.