The Fifth Circuit Court of Appeals held that the court’s failure to make a Daubert examination of the defendant’s experts qualifications was grounds for a new trial. In Carlson v. Bioremedi Therapeutic Systems, 822 F3d 194 (5th Cir. 2016) plaintiff suffered severe burn injuries to his feet allegedly due to a defective device used by a chiropractor. At trial plaintiff’s experts made a causal connection between the device and the plaintiffs’ injury. The defendants called the chiropractor whose office had done the treatment using the device. Over objection he testified that the device does not get hot enough to cause a burn and that the plaintiffs injuries looked like diabetic ulcers. The jury returned a verdict for the defendant and plaintiff appealed challenging the admission of the chiropractor’s expert testimony.
The court noted that the record reflected that no Daubert inquiry took place. The district court simply informed the jury that it found the testimony admissible. The Court of Appeals said it did not have to decide whether the chiropractor was qualified to give expert testimony, however, it held that the district court clearly abused its discretion by not conducting a Daubert inquiry or making a Daubert determination on the record. The Appellate Court noted that the district court is not always required to hold a formal Daubert hearing and said:
“Nonetheless, we agree with three of our sister circuits that a district court must still perform its gatekeeping function by performing some type of Daubert inquiry and by making findings about the witnesses qualifications to give testimony (citations omitted). At a minimum a district court must create a record of its Daubert inquiry and ‘articulate its basis for admitting expert testimony….’ Rodriquez 242 F3d at 381” P.201.