Expert Witnesses

United States v. Stephen Chalker (11th Cir. July 2020)

The Eleventh Circuit affirmed the defendant's conviction for healthcare fraud, holding that there was sufficient evidence based on testimony regarding "red flags" at the defendant's pharmacy, including patients from out of state, unrealistically high prices, and discrepancies in billing and inventory. The Court also rejected the defendant's challenges to lay witness testimony from patients stating they received medication that they did not need and held that the Government replacing its expert did not prejudice the defendant where the substance of the testimony stayed the same.

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United States v. David Pon (11th Cir. June 2020)

Evidence/Expert Testimony – Expert testimony discussing a theory that lacks sufficient testing, known or potential error rates, control standards, acceptance among the science community, and a connection between the theory and the underlying research is sufficiently unreliable to be excluded. Further, a peer-reviewed paper mentioning the theory is insufficient alone to prove reliability.

Evidence/Rebuttal – Evidence that contradicts a defendant’s contention is admissible.

Sixth Amendment/Surrebuttal Evidence – A defendant potentially has a Sixth Amendment right to a surrebuttal but must raise it in order to preserve it for appeal, and the denial of a defendant’s surrebuttal is harmless if there is sufficient evidence to support the conclusion that the jury’s verdict was not affected.

David Pon was convicted of twenty counts of health care fraud under 18 U.S.C. § 1347. He was sentenced to 121 months in prison.

Pon appealed, arguing that the district court should have allowed his expert to testify about the suitability of a treatment under Daubert and Federal Rule of Evidence 702. He also argued that the court should not have allowed the government to present rebuttal evidence about Pon’s billing and that the district court erred by limiting the scope of his surrebuttal evidence.

The Court disagreed, holding there was no abuse of discretion when the district court did not admit testimony it found unreliable. The Court noted that the lack of theory testing, the lack of known or potential error rates and control standards, the lack of acceptance within the scientific community, and the great analytical gap between research and the expert’s theory all supported the district court’s conclusion. A peer-reviewed paper, mentioning the theory, does not alone demonstrate “that [the] district court abused its discretion in not admitting the expert testimony.”

The Court also held that, since Pon presented evidence about how he treated a patient for reasons other than profit, “the district court did not abuse its discretion in admitting billings Pon had generated” as rebuttal.

The Court further held that Pon failed to argue that he had a Sixth Amendment right to present surrebuttal evidence and failed to preserve the issue. The Court noted that, even if the limitation violated Pon’s “Sixth Amendment rights, that error was harmless beyond a reasonable doubt.” The Court pointed out that because of the “great volume of evidence that the government discussed in its closing,” even if Pon’s surrebuttal evidence was not limited, “the jury would still have found Pon guilty as charged.”

Judge Martin concurred in part and dissented in part, arguing that the defendant’s denial of a surrebuttal violated his constitutional right to present a complete defense and would have required a new trial.

Appeal from the Middle District of Florida

Opinion by E. Carnes, joined by Rogers (by designation from 6th Cir)

Concurrence in part and dissent in part by Martin 

Click here to read the opinion.

United States v. Dane Gillis (11th Cir. September 2019)

The Court affirmed the defendant's convictions for enticing a minor under § 2422(b) but reversed his conviction under § 373 for solicitation to commit a crime of violence, holding that kidnapping under § 1201(a) is not a "crime of violence" under the categorical approach applicable to § 373. The Court also held that the defendant's right to a complete defense was not violated by the trial court's proper rulings on the inadmissibility of the defense experts' testimony.

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