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

The Federal Docket

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.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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