concurring and dissenting:
I
I concur in Part I of the majority opinion and its conclusion that we cannot say the trial judge abused his discretion in admitting the evidence of Defendant’s pri- or conviction in light of United States v. Castillo, 140 F.3d 874 (10th Cir.1998). I also join in Part III of the opinion, reversing the Defendant’s conviction on Count I and remanding for the entry of a judgment of acquittal on that Count. I also concur *1274in the opinion’s rulings in Part II-B that the district court erred in admitting the conclusions of Dr. Ornelas, the prejudicial statements of Ms. Baum and Ms. Carlson, and the physical abuse-related opinion of Ms. Carlson.
However, I disagree with the majority on several critical questions, which I shall briefly set out now with a full explanation to follow. First, I would hold that there was error in the admission of Dr. Junkins’s testimony that sexual abuse “would” explain, and was a “unifying diagnosis” of, D.J.’s symptoms and history. As explained below, I believe that the prejudicial effect of this crucial testimony was too great to have been cured by Dr. Junkins’s later, subtle shift to say that sexual abuse “could” explain D.J.’s problems. Therefore I cannot join Part II-B(l) in holding there was no error or only harmless error in the admission of the testimony of Dr. Junkins. Second, with or without consideration of the error in the admission of such testimony of Dr. Junkins and the other errors discussed below, I cannot concur in Part II-C of the opinion holding that the numerous substantial errors the majority concedes occurred in the admission of doctors’ and counselors’ testimony were harmless and must respectfully dissent from that holding. I would have grave doubt about the influence of this evidence on the jury’s verdict, even if I were in agreement that the errors identified in the majority opinion were the only errors that occurred in this trial.
Finally, under the particular circumstances present in this case, I disagree with the majority’s refusal to consider arguments made in the petition for rehearing, which the majority justifies on the grounds that the points were not previously raised on appeal. Defendant Charley’s petition for rehearing on these points is based on an intervening change in the law: Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 148 L.Ed.2d 238 (1999), made a clear holding that the trial court’s “gatekeeping” obligation applies to all expert testimony, not just “scientific” testimony, id. at-, 119 S.Ct. at 1174, and thus overruled our narrower, contrary rule in Compton v. Subaru of America, Inc., 82 F.3d 1513, 1519 (10th Cir.1996). For the reasons explained below, I would hold that the issues are properly raised and would decide them in favor of the Defendant.
Accordingly, I would reverse the convictions on Counts II through VII and remand for further proceedings on those Counts.
II
A
I turn first to my disagreement with the harmless error conclusion of the majority opinion. As the opinion notes, we are instructed by Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), on the strict standard that applies for a conviction to be upheld despite error. The test that controls is clearly laid down by the Court:
But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
328 U.S. at 765, 66 S.Ct. 1239. See also United States v. McVeigh, 153 F.3d 1166, 1203 (10th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). And, as the majority further notes, the government ordinarily has the burden of proving that a non-constitutional error was harmless. United States v. Rivera, 900 F.2d 1462, 1469 n. 4 (10th Cir.1990) (en banc). In the instant case, however, the government in briefing for this court took an all-or-nothing stand that *1275there were no errors and made no alternative claim or showing that even if particular rulings were in error, they were nevertheless harmless. Even at argument, counsel for the government conceded only that opinion testimony had been offered and admitted at trial, contrary to counsel’s contention, which the trial judge accepted, that the doctors and therapists would testify only as fact witnesses. Thus, harmless error has been argued by the government only in response to the violation of Fed. R.Crim.P. 16, not as to the content of the opinions expressed by the expert witnesses.
Against this backdrop I will explain my reasons for being unable to join the majority’s harmless error conclusion. The prejudicial, substantial damage done to the Defendant’s case by the erroneous admission of evidence is treated below.
1. Dr. Edward P. Junkins, Jr.
In Dr. Junkins’s testimony, he first described the various symptoms for which he and others at the Crownpoint Healthcare Facility had seen D.J. in the past, before they were aware of any allegations of sexual abuse. These included several visits from April 7 through April 10, 1997. He was then asked if he had seen D.J. after April 10, 1997, and he said that he had. Then the following exchange occurred:
Q. And what, if anything, did she present to you that [sic] the point?
A. Yeah, it was at this point that I was asked to see her personally by her mother. Her mother caught me during my office time and said that there was something that she needed to tell me and that she had brought [D.J.] as well as her sister, [J.J.], and it was this visit on April the 11th that I became very concerned, and at the same time it became clear to me as a pediatrician what had been going on and what’s the cause of all these problems.
II R. at 155 (emphasis added). Dr. Jun-kins went on to read from the form that he fills out in suspected cases of abuse, at the bottom of which, he testified, he had added, “This patient presented finally when she had been seen several times for abdominal pain, urinary tract infections, neu-rologic symptoms, anuresis.” This question and answer followed:
Q. What did you mean by that?
A. I meant to make it clear in the chart that I thought that this, the history offered, of suspected abuse by her, would help me explain a lot of the symptoms. It was a unifying diagnosis, and — and evaluated, I think, as being clear by all of the symptoms that she had and the history tkat was offered. That’s why I yrrote that finally she had — she had something which I felt helped to bring all of these problems together.
Id. at 161-62 (emphasis added). As explained below, I believe the admission of this testimony by Dr. Junkins was in error for reasons the majority opinion gives as to Dr. Ornelas’s opinion. Maj. op. at 1266-68.
The majority cites testimony by Dr. Junkins on re-direct examination which was qualified — that is, testimony that sexual abuse could explain the other symptoms D.J. had reported — as “the essence of Dr. Junkins’ opinion, and what the jury was left with by way of information.” Maj. op. at 1264-65. I am not persuaded that the later testimony cured the error in the earlier testimony which clearly stated that suspected abuse “would” help explain many symptoms. There was no emphasis or clarification making it plain to the jury that Dr. Junkins was really saying that abuse “could” explain the symptoms. Dr. Junkins did not disclaim his testimony given on direct examination, did not assert that he was modifying or restricting that testimony, and in fact did not even refer to his testimony on direct examination when he gave the testimony on re-direct examination. Lacking anything of substance on which to justify ignoring Dr. Junkins’s testimony on direct examination, the majority resorts to a “characterization” of it (slip *1276op. at n. 16) in an unpersuasive attempt to avoid its probable impact on the jury.
Dr. Junkins’s unqualified opinion was nearly as forceful as that of Dr. Ornelas and was admitted in error for the same reasons explained so clearly by the majority with respect to the latter.1 The majority is wrong in dismissing this testimony and analyzing the issues as if these prejudicial statements had not been uttered. Also troubling is the majority’s facile statement that any error in the admission of Dr. Junkins’s unqualified opinion was harmless. I disagree with this conclusion and I believe that the majority short changes Defendant Charley by here focusing on this error in isolation, ignoring it when undertaking the more comprehensive harmless error analysis in Part II-C of the opinion.
In sum, when considered with the other erroneously admitted evidence, I believe this error had substantial influence or leaves me in “grave doubt” whether the jury concluded that Dr. Junkins’s diagnosis was that D. J. had in fact been sexually abused. I believe that admission of Dr. Junkins’s opinion was error for the same reasons explained by the majority in its discussion of Dr. Ornelas’s testimony. Maj. op. at 1266-68 (improper vouching for the testimony of D.J. and J.J. or error due to the lack of a reliability determination as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho).
The majority holds that Defendant Charley’s Daubert objections as to certain expert testimony were forfeited by failure to raise them until the petition for rehearing. Maj. op. at 1264 n. 16. I disagree with that holding. However, I do not understand the majority to hold that the Daubert errors were forfeited as to the unqualified opinions given by Dr. Jun-kins as discussed above (testimony that history of abuse “would help [Junkins] explain a lot of the symptoms.”). Accordingly, I must also dissent from the majority’s application of an erroneous standard of review and its implicit holding that the record in this case is adequate for consideration of reliability by this court, positions which are inconsistent with our precedents.
The majority states that the standard of review on the reliability issue is abuse of discretion. Maj. op. at 1261. This conflicts with our holding in United States v. Call, 129 F.3d 1402, 1405 (10th Cir.1997), that we first conduct de novo review as to whether the district court “properly followed the framework set forth in Dau-bert.” I would hold that the district court erred in not applying Daubert (even though the error was perhaps in reliance on Compton). On this record, this conclusion is inescapable.
Yet another problem lies in the majority’s treatment of the Daubert issues. The majority states that the trial court’s “evi-dentiary decisions do not warrant reversal if it determined, in ‘some apparent manner,’ that the expert testimony it admitted was reliable.” Maj. op. at 1261 n. 11. I must confess that I do not know how this statement relates to the majority’s analysis, for I do not find that the majority opinion at any point actually shows that the trial court here determined in some apparent manner that any of the expert testimony admitted was reliable. I must disagree with any suggestion that this record supports a finding that any of these witnesses’ opinions were reliable under Daubert, and I am distressed by the majority’s suggestion that the district judge here undertook some such reliability inquiry. It is painfully obvious that the trial judge made no such determinations. The government recognizes that “the district court did not make the preliminary determinations of relevance and reliability now required by Kumho Tire.” Opposition To Petition for Rehearing at 14. Instead, the *1277judge either was of the opinion that the witnesses were testifying only as fact witnesses as the government contended or, more likely, once it became apparent that the prosecution was eliciting opinion evidence, the judge determined that no Dau-bert screening was necessary because of our holding in Compton. In any event, expert witnesses neither described any method by which their opinions were reached, nor discussed the factors bearing on the reliability issue. See Kumho, 526 U.S. at -, 119 S.Ct. at 1167. Thus, it would indeed have been guesswork for the trial judge to find that the methods were reliable, and this court is likewise without a record developing factors that inform determinations of reliability of the experts’ opinions.
2. Dr. Renee Ornelas
I concur in the majority’s analysis that there was error in admission of the testimony of Dr. Ornelas. I add my observations to explain why I reach a different conclusion on harmless error than the majority. I am particularly concerned about Dr. Ornelas’s statement of her unqualified opinion of sexual abuse immediately in response to the early questions concerning D.J. The prosecutor’s questioning of Dr. Ornelas began by eliciting general information on her position and procedures. Then the first specific question asked about this case was whether she had examined D.J., to which Dr. Ornelas responded that she had. This colloquy immediately followed:
Q. And what were your findings based upon her medical history?
A. Was that she had a normal genital exam and that — my final conclusion was that she had been sexually abused.
Ill R. at 317-18 (emphasis added).
I join the majority opinion’s analysis and conclusions that there was error in the admission of Dr. Ornelas’s testimony. As persuasively explained by the majority opinion, Dr. Ornelas was erroneously permitted to testify it was her unconditional opinion that both D.J. and J.J. had been sexually abused. Ill R. at 317-18; 323. As the majority opinion points out, if those conclusions were based on the girls’ symptoms, those Fed.R.Evid. 702 opinions were admitted without the required special gate keeping determination on reliability of an expert’s opinion. Kumho, 526 U.S. at -, 119 S.Ct. at 1175-76. Or, if Dr. Ornelas’s opinion was largely based on crediting the accounts given by D.J. and J.J.,' Dr. Ornelas was actually vouching for their truthfulness and invading the credibility province of the jury. See United States v. Azure, 801 F.2d 336, 339-40 (8th Cir.1986); United States v. Samara, 643 F.2d 701, 705 (10th Cir.1981), and other authorities cited by the majority. Either premise for the admission of Dr. Ornelas’s damaging testimony was wrong, and admitting that testimony was error, as the majority opinion itself holds.
3. Joelle Baum and Kristine Lee Carlson
I agree with the majority opinion’s holding that there also was error in the admission of portions of the testimony of the counselors, Ms. Baum and Ms. Carlson.2 *1278Ms. Carlson’s opinion that D.J.’s symptoms were more consistent with those of children who have been sexually abused than with those of children who had witnessed physical abuse of their mother was erroneously admitted.3 No sufficient foundation had been laid for such statements, and no reliability analysis was made. Maj. op. at 1270. I agree and also join the holding that the counselors were erroneously permitted to give testimony that assumed the fact of abuse, which was for the jury to determine, and was “manifestly outside the counselors’ direct knowledge”; those statements were inadmissible under Fed.R.Evid. 403. Id. at 1270-71.
As noted by the majority, Baum and Carlson did express other opinions. I would hold that these opinions were admitted in error because there was no Daubert screening of the opinions for the reliability of the methods, if any, used in reaching the witnesses’ conclusions. This brings me to the question whether this Daubert reliability objection to these witnesses’ opinions is properly before us. I am convinced that it is.
4. Effect of change in controlling law.
The majority applies Daubert, as made applicable to all expert testimony by Kum-ho, where the majority deems the point to have been properly raised. Thus the majority properly recognizes that Kumho should be applied.by us as the prevailing law at the time of our decision. The government defends the trial judge’s failure to perform the gatekeeper function as to Ms. Carlson’s testimony that D.J.’s symptoms were consistent with symptoms of child sexual abuse. It argues that the judge “understandably did not specifically apply Kumho Tire because it was not decided at the time of trial.” Opposition To Petition For Rehearing at 13-14.
However, the rights of the parties, under our precedent, should be decided under the case law in effect at the time of our decision. Peterson v. Shearson/American Express, Inc. 849 F.2d 464, 466 (10th Cir.1988). Thus the failure to consider and decide reliability is not justified. Moreover, no defense for that failure can be grounded on a suggestion that the trial judge simply did not “specifically apply Kumho Tire,” by chapter and verse. The error was in not doing any reliability assessment under Daubert or Kumho standards. What the majority does not come to grips with is the impact of Compton v. Subaru, which was the prevailing law in our Circuit until months after oral argument of this appeal. In Compton we had held that Daubert applied only to testimony “based upon a particular methodology or technique,” 82 F.3d at 1519, not expert testimony based on the witnesses’s training and experience.
In light of Compton, and its being overruled by Kumho, I believe that Defendant should be allowed to assert his Daubert argument as to all of the opinion testimony. To hold, as the majority decision does, that Charley cannot raise additional Dau-bert issues for the first time in his petition for rehearing here is to ignore the precedent of Compton v. Subaru, to hold counsel to an impractical and unfair standard for raising issues controlled by adverse *1279extant precedent, and to require counsel to presciently divine the future course of the law. Although we ordinarily adhere closely to our procedural rules, I am persuaded that we should consider the expansion of defendant Charley’s Daubert argument because of the intervening change in the law. We are mindful that Defendant’s Petition for Rehearing and Rehearing En Banc says that “Kumho Tire did not create new law; it merely explained the application of Daubert and Fed.R.Evid. 702.” Petition at 7, n. 3. Nevertheless, in assessing the Defendant’s right to assert Daubert-Kum-ho objection to expert testimony, see id. at 8-11, I am persuaded that we should consider Kumho’s overruling of Compton and permit objections, now made viable by Kumho, challenging the lack of a record showing of reliability for Dr. Junkins’s and other expert opinions.
The rights of the parties, under our precedent, should be decided by this appellate court under the case law in effect as the time of our decision. Thus the sufficiency or defects in the records pertaining to the expert opinions and the assessment of their reliability should be weighed under Daubert and Kumho. See, e. g., United States v. Byers, 740 F.2d 1104, 1115 n. 11 (D.C.Cir.1984) (en banc); Nations v. Sun Oil Co., 695 F.2d 933, 936 (5th Cir.1983). In Byers, it appears that all twelve members of the court accepted the general proposition that an intervening change in the law may justify raising an issue for the first time on petition for rehearing, although two members of the court were of the view that in the exercise of judicial discretion the court should not have considered the issue raised there. See id. at 1132-35 (Robinson, J., concurring in the judgment).
Precedent of our court supports permitting a party to raise a new issue on appeal, contrary to the general rule, because of an intervening change in the law. E.g., Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 466 (10th Cir.1988) (absent injustice, an appellate court should apply case law in effect when its decision is rendered; before new decision, it would have been difficult to argue that assertion of new rule had a basis in existing law, as required by Fed.R.Civ.P. 11). As Justice Black once said:
[W]e have frequently allowed parties to raise issues for the first time on appeal when there has been a significant change in the law since the trial. This principle has most often been applied in proceedings relating to criminal prosecutions, but it has also been invoked in purely civil cases. The principle has not been limited to constitutional issues, and the Court has permitted consideration on appeal of statutory arguments not presented below. In deciding whether such new arguments can be considered, we have primarily considered three factors: first, whether there has been a material change in the law; second, whether assertion of the issue earlier would have been futile; and third, whether an important public interest is served by allowing consideration of the issue.
Standard Industries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586, 587-88, 90 S.Ct. 1310, 25 L.Ed.2d 590 (1970) (Black, J., dissenting, joined by Douglas, J.). And Judge Posner has observed for the Seventh Circuit:
A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not reasonably have been anticipated. A contrary rule would induce parties to drown the trial judge with reservations.
McKnight v. General Motors Corp., 908 F.2d 104,108 (7th Cir.1990).
In sum, the circumstances and precedents support the right of Defendant to have us consider this expanded Daubert and Kumho issue here. Doing so, I find fatal defects as to expert opinions admitted in evidence.
*1280B
Because of the combined impact of the evidence outlined above, I cannot agree with the harmless error conclusion of the majority. The several prejudicial errors at trial convince me that we cannot say with fair assurance, as Kotteakos and our precedent require, that after pondering all that happened, we believe the judgment was not substantially swayed by the errors that occurred. In any event, the damage done by those errors leaves me in grave doubt so that I cannot agree to let the convictions on Counts II through VII stand. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239.
As the majority opinion notes, the Defendant took the stand in his own defense and categorically denied the abuse of either D.J. or J.J. charged against him. IV R. 569, 571, 573-74, 575-76, 579-80. The opinion acknowledges that there were no eyewitnesses to the alleged misdeeds. Maj. op. at 1272. Furthermore, although repeated physical abuse of both D.J. and J.J. was alleged, there was no physical evidence of abuse noted, id., despite physical examinations of both girls by two pediatricians called by the government, Dr. Junkins and Dr. Ornelas. II R. at 142; III R. 313. Dr. Junkins did comment from his April 11, 1997, examination that D.J. had an abnormality, “a little small irregularity at the base of the hymen.” He just used his naked eyes with no means of magnification. II R. 163. Dr. Junkins said that unless a child is examined within 72 hours of an act, the findings are overwhelmingly normal. Id. at 166.
Dr. Ornelas testified that D.J. had “a normal genital exam,” III R. 317, but added in her opening remarks that “my final conclusion was that she had been sexually abused.” Id. at 317-18. She said “there weren’t any scars or tears or lacerations or defects in the hymen, those kinds of things.” Id. at 321. She made her abuse diagnosis because of the way she said the contact occurred, by “labial coitus.” Id. at 322. Dr. Ornelas said that J.J. “also had a normal examination” but said she concluded that J.J. was also sexually abused. Id. at 323. This was based on J.J.’s “history that we had from her sister” and from other information. Id. Doubt about what was related by J.J. is raised by the testimony of Dr. Ornelas explaining that children want to be polite saying “yes” or “no” to everything, but relating this information about J.J.’s interview: “And so what [J.J.] said in this case was that she had just been playing, that she wasn’t serious and that, in essence, nothing happened, and she didn’t want to talk about it.” Id. at 324 (emphasis added). Dr. Ornelas said this did not change her diagnosis as to J.J.
As to D.J., Dr. Ornelas testified that from her examination of the hymen, the vagina, the clitoris, the labia minora and labia majora, and the posterior four-chette — she found all were within normal limits with no tags, no tears, no bruising and no discharge. Ill R. at 332. J.J.’s examination by Dr. Ornelas also was completely, in every regard, within normal limits. Id. at 333.
Thus at trial substantial doubt was raised about the reported sexual abuse of D.J. and J.J., considering the record as a whole. Their own testimony, if truthful and accurate, did present a shocking view of Defendant Charley's conduct and laid a strong basis for the prosecution’s case. Nevertheless, our question is “not whether, omitting the inadmissible statements, the record contains sufficient evidence for a jury to convict the defendant,” United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.1995), as the majority opinion notes. Even where the government’s case against a defendant in a child sexual abuse case was “very strong,” the Eighth Circuit held such sufficiency of the evidence alone was not enough to support a finding of harmless error. United States v. Azure, 801 F.2d at 341. We must determine whether in light of the whole record, the erroneously admitted evidence substantially influenced the outcome of Defendant’s trial, or whether we are left in “grave doubt” as to whether it had such an effect. Tome, 61 *1281F.3d at 1455. If the answer to either inquiry is yes, the errors require reversal for a new trial. Id.
The review of the record made carefully by the majority opinion and the further references to the evidence I have presented above compel me to respectfully dissent as to the harmless error holding. Because of the lack of physical evidence, and the absence of other witnesses to the alleged conduct, this case turned almost entirely on the credibility of D.J. and J.J. By the time the two victims took the stand, their credibility had been improperly enhanced by the testimony of four witnesses who, although not formally proffered as experts, likely were very impressive to the jurors because of their professional standing. Whether the improperly admitted opinion evidence is considered as vouching for D.J.’s and J.J.’s testimony, or as lacking the proper foundation of a reliability determination by the judge, is not of controlling importance, once we reach the stage of determining whether the errors were harmless. Either way the expert opinions are analyzed, the result was unfairly prejudicial to Defendant.
Although I cannot say that Mr. Charley likely would have been acquitted if not for the erroneously admitted testimony, nevertheless I cannot say that the errors did not have substantial influence on the verdicts. In any event, I am in grave doubt as to the latter question, and accordingly I cannot hold that the errors were harmless. Therefore, I respectfully dissent from the affirmance of the convictions on Counts II through VIL I would reverse those convictions and remand for a new trial free of the serious errors in the admission of testimony.
. The majority concedes that defendant "raised Daubert-style reliability issues ... with respect to other statements by government witnesses, such as statements that the girls were in fact abused_” Maj. op. at 1264 n. 16. I do not see why Dr. Junkins's statements are not within this category along with those of Dr. Ornelas.
. The government's position that "each of its witnesses would be testifying as lay witnesses rather than as experts” (maj. op. at 1262), apparently accepted by the trial judge, placed the case in a posture where a direct Daubert challenge to the reliability of the expert testimony of the doctors and the health care professionals was made awkward. Nevertheless, Daubert was specifically raised by defense counsel below who challenged the testimony of the mental health witnesses and asserted: "I don’t think it’s scientifically reliable.” II R. 117. Continuing his argument, attorney Finzel stated:
So since Daubert if we had notice they intended to use them as experts we would be prepared to challenge their expertise on the basis that it’s not scientifically reliable nor is it necessarily accepted in the community, the basis for their opinions.
Id. at 118. When the mental health therapists’ testimony, "art therapy,” and the children’s drawings were brought up, defense counsel Finzel objected: "[Ijt’s my position that that could never pass the Daubert test for *1278admissibility as expert testimony and shouldn't be slid in sideways as being something with validity to it.” II R. 227. Counsel Finzel renewed his objection to the mental health care witnesses' testimony the next day just before the testimony of Ms. Baum; the judge responded that Finzel had his objection on the record and "you don’t have to renew it.” Ill R. 235. Thus Daubert and reliability were clearly raised below.
. I note also that this opinion of Carlson clearly appears to have been based in part on "art therapy,” contrary to the assertion in the majority opinion, p. 1268 n. 24, that no such opinions were given. In answer to the last of . several questions about her opinion, and in explaining her opinion, Carlson stated: "Some of the symptoms would fit under both, but the images she’s done in her artwork, the feeling uncomfortable wearing dresses, those are more symptomatic of sexual abuse than of witnessing physical abuse.” Ill R. 258 (emphasis added).