The Court of Appeals for the Fifth Circuit held that the court erred in permitting expert testimony without performing a Daubert inquiry. In Carlson v. Bioremedi Therapeutic Systems, Inc., 822 F.3d 194 (2016) plaintiff brought suit on three alleged products liability claims. Before trial plaintiffs filed a motion to exclude the testimony of a defendants’ expert. The district court denied the motion without explanation and the expert testified. In holding that the district court abused its discretion by permitting the testimony the court said:
“We need to decide whether Dr. Durrett was qualified to give expert testimony, however, because the district court clearly abused its discretion by not conducting a Daubert inquiry or making a Daubert determination on the record. True, a district court is not always required to hold a formal Daubert hearing. See United States v. John, 597 F.3d 263, 274-75 (5th Cir. 2010) (holding a Daubert hearing is not always necessary “in the context of fingerprint evidence”). Nonetheless, we agree with three of our sister circuits that a district court must still perform its gatekeeping function by perform in some type of Daubert inquiry and by making findings about the witness’s qualifications to give expert testimony. See Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013); Naeem v. McKesson Drug Co., 444 F.3d 593, 608 (7th Cir. 2006); Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). At minimum, district court must create a record of its Daubert inquiry and “articulate its basis for admitting expert testimony…” Rodriguez, 242 F.3d at 581.”
These circuits have also reviewed de novo “whether the district court actually performed its gatekeeping function in the first place…” See Smith, 732 F.3d at 64; Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010: Dodge, 328 F.3d at 1223. We do not decide whether de novo review applies, though, because we find grounds for reversal even under the more deferential abuse-of discretion standard of review.