The majority

Judges Jerome Holmes, Mary Beck Briscoe, Harris Hartz, Carlos Lucero and Deanell Tacha

* U.S. District Judge Edward Nottingham acted properly when he excluded Joe Nacchio's main defense witness, professor Daniel Fischel, from giving expert testimony.

* The defense was required to provide a summary of what Fischel would testify to, as well as the methodology he used to reach his findings, so the court could determine if he was reliable before he took the stand.

* While Nacchio's attorneys summarized Fischel's qualifications and likely testimony in court filings, the methodology or basis for his opinions was woefully inadequate. "Although Professor Fischel generally has been permitted to testify in the past, and a district court might well respect his credentials, the court had an obligation to assess the methodology that Professor Fischel had employed in the case at hand. Mr. Nacchio could not assume that his expert's testimony would be admitted because other courts had allowed it."

The minority

Chief Judge Robert Henry, Judges Paul Kelly, Michael McConnell and Michael Murphy

* The rules that govern criminal trials don't require defendants to establish an expert witness is reliable before he takes the stand unless a judge specifically requires it, which Nottingham did not.

* It was Nottingham, not Nacchio's attorneys, who misunderstood the rules.

* Even if Nacchio's attorneys made a mistake, Nottingham abused his discretion by imposing such an extreme sanction.

Kelly, writing in a separate dissent: "Our founders must have had similar scenarios in mind when they wrote 'Nor shall any person . . . be deprived of life, liberty, or property, without due process of law.' "