In a case of first impression, the Fifth Circuit joins other circuits in holding that, following a timely objection, a trial court is required to conduct a Daubert inquiry and make findings on the record. Carlson v. Bioremedi Therapeutic Systems, No. 14-20691, 2016 U.S. App. LEXIS 8951 (5th Cir. May 16, 2016).
Carlson suffered amputation of one leg and the heel of his opposite foot after being treated with Defendant's product, the ProNeuroLight. He brought a products liability suit. Defendant's only witness at trial was a chiropractor who had examined Carlson and had been trained to use the ProNeuroLight. Before trial, Carlson moved to exclude the chiropractor's testimony. The district court denied the motion without explanation. Carlson also objected at trial to the chiropractor's testimony. The jury found for the defendants. Carlson appealed, challenging the admission of the expert testimony.
The Fifth Circuit found that Carlson had preserved error by filing a pre-trial objection to the proffered expert and objecting twice at trial to his testimony about medical causation. Adopting a rule from other circuits, the Fifth Circuit held that it was a clear abuse of discretion for the trial court to fail to conduct a Daubert inquiry and make a Daubert determination on the record. The Fifth Circuit explained that to perform its gatekeeping function, a district court must conduct some type of Daubert inquiry and make findings about a witness' qualifications to give expert testimony. At a minimum, a district court must create a record of its Daubert inquiry and articulate its basis for admitting expert testimony.
Because the chiropractor's testimony was the only evidence supporting the verdict, it could not be categorized as harmless. Concluding that the trial court's abuse of discretion affected Carlson's substantial rights, the Fifth Circuit reversed and remanded.
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