Commercial Litigation and Arbitration

No Requirement of Daubert Hearing If Movant Does Not Present Opposing Expert Evidence — Instruction to Disregard Infirm Expert Evidence Suffices to Avoid Mistrial Absent Undue Prejudice

From United States v. Bachynsky, 2011 U.S. App. LEXIS 3377 (11th Cir. Feb. 18, 2011):

There is no requirement that a Daubert hearing always be held. See United States v. Frazier, 387 F.3d 1244, 1264 (11th Cir. 2004); Hansen, 262 F.3d at 1234. As is well known, the trial court's obligation under Federal Rule of Evidence 702 is to serve as the gatekeeper for the admission of scientific expert testimony. *** In that regard, it is understandably given "considerable leeway" in evaluating the testimony's reliability. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

There was no abuse of discretion [here]. First, a Daubert hearing was not required because the Government proffered sufficient information to allow the court to qualify Dr. Sokol as an Daubert in areas of oncology and clinical pharmacology, and because defendant presented no evidence contesting Dr. Sokol's testimony or scientific knowledge. See Hansen, 262 F.3d at 1234 (a court should conduct a Daubert inquiry when the opposing party presents conflicting expert testimony). Second, Bachynsky objected to the relevance of Dr. Sokol's testimony because he lacked personal experience with DNP [a banned substance]. The district court considered this objection and determined the testimony was relevant because it assisted the jury in evaluating the truthfulness and accuracy of Bachynsky's and Helvetia's human-safety claims. See Daubert, 509 U.S. at 591-92 (noting a liberal standard for relevance to whether expert testimony will aid jury in resolving the facts). ***

Bachynsky further contends the Daubert hearing was necessary because it would have prevented Dr. Sokol's testifying erroneously that Bachynsky admitted to a felony in 1986. Pursuant to defendant's objection, the court struck that testimony and instructed the jury to disregard it.

An instruction to disregard evidence withdrawn from the jury is sufficient grounds for an appellate court to uphold a trial court's denial of a motion for mistrial unless the evidence is so highly prejudicial as to be incurable by the trial court's admonition. Such a level of prejudicial effect exists where there is a significant possibility . . . that . . . the stricken statement had a substantial impact upon the verdict of the jury.

United States v. Sawyer, 799 F.2d 1494, 1505-06 (11th Cir. 1986) (quoting United States v. Tenorio-Angel, 756 F.2d 1505, 1512 (11th Cir. 1985) (internal quotation marks omitted)).There is no indication of any "significant possibility" of highly prejudicial evidence. Again, pursuant to defendant's objection, the district court immediately struck the testimony and instructed the jury to disregard it***.

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