The Nacchio Appeal: Part 4 (The Missing Hearing)

One of the most discussed issues at the appeal was the failure of Judge Nottingham to hold a Daubert hearing on whether to exclude Daniel Fischel.  Judge Kelly was particularly hostile at the failure to provide the hearing, at one point noting that the treatment was "the most simplistic thing I've ever seen."  He described the role of a trial judge as a gatekeeper, not a guesser (alluding to the fact that any uncertainty about the nature of Fischel's testimony could have been cured through a hearing).  Likewise, Judge McConnell seemed sympathetic with the need for a hearing, Judge Holmes less so.

The issue would seem to be a slam dunk, reversible error, except for one thing.  The defense never requested a hearing.  Judge McConnell in particular questioned Mahoney on the issue.  When she claimed there was no opportunity to make the request because argument on the relevant motion wasn't allowed, Judge McConnell pointedly noted that the request could have been included in the motion.  When she contended that Fischel was the core of the defense, Judge McConnell asked "how do we know that?" 

There seems to be little question that the panel thought a Daubert hearing should have occurred.  If the panel does not reverse on this issue, it will be because of the defense's failure to request the hearing.