Daubert Alert!
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509
U.S. 579 (1993), sets forth the trial judge's
gatekeeping function with regard to expert
witnesses, which focuses on Rule 702 of the Federal
Rules of Evidence. Rule 702 provides:
If scientific,
technical, or other specialized knowledge will
assist the trier of fact to understand the
evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge,
skill, experience, training, or education, may
testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is
the product of reliable principles and methods,
and (3) the witness has applied the principles
and methods reliably to the facts of each
case.
CASE #1 May 23, 2000
Key Pathway examinations have been judicially
endorsed as admissible.
In Tennessee Circuit Court in Memphis, Tennessee on
May 23, 2000, after a lengthy Daubert hearing, the
Judge held Richard Pacheco had the "knowledge,
skill, experience, training, and education" to
testify and that the key pathway analysis would
"substantially assist" the jury in considering
whether the car in question was actually stolen.
The Tennessee rule on the admissibility of expert
testimony as actually more stringent than the
federal rule under Daubert because the expert
testimony under Tennessee's rules must substantially
assist the trier of fact.
Through testimony, photographs, and diagrams, the
process was explained, and under went
cross-examination of opposing counsel and the close
scrutiny of the Judge. The court admitted the
testimony and affirmatively stated it met all
applicable evidentiary and expert testimony
standards.
After a two and one half day trial the jury
deliberated for one and a half hours and ruled in
favor of the insurance company and further found the
plaintiff/insured had acted in bad faith.
The case is Charmaine J. Jones vs. Allstate
Insurance Company, Docket No. 88888-3 T.D., Circuit
Court of Shelby County (Memphis), Tennessee. Copies
of the hearing transcript can be obtained from
Michael P. Mills of MILLS & COOPER in Nashville
Tennessee (615) 221-8218, who represented Allstate.
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CASE #2 June 20, 2000
For the second time in a month Key Pathway Micro
Examinations have been judicially endorsed as
evidence admissible under the Daubert standard.
On June 20, 2000 a plaintiff?s attorney after being
given the Daubert decision rendered in the Jones vs.
Allstate case changed her tactics and requested a
Daubert hearing on the process leading to the Key
Pathway examination.
The judge revisited the Key Pathway process and then
visited the entire process from examination and
collection of the evidence at the scene to the Micro
examination (Key Pathway).
The Judge ruled again that the entire process was
admissible under the Daubert standards.
N.E.T.S. is now the only company that we know of
that has had its entire process from the scene exam
to the lab exam endorsed as admissible under the
Daubert standard.
Copies of the hearing transcript can be obtained
from Michael P. Mills of MILLS & COOPER in Nashville
Tennessee (615) 221-8218, who represented Allstate.
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CASE #3 January 22, 2001
Latest Court Decision for our side;
The United States District Court of Western District
of Kentucky, Louisville Division rendered an order
on January 22, 2001 in favor of State Farm Insurance
Company and their experts using the Daubert Standard
and Rule 702 of the Federal Rules of Evidence.
The court found the testimony of NETS technicians
"Both Relevant and Reliable" and that their
conclusions were "both relevant and helpful to a
Jury in determining whether the vehicle was, indeed
stolen". The court denied the Plaintiffs motion to
exclude said testimony.
Copies of the Rule are available from NETS upon
request.
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CASE #4 May 26, 2004
Latest Court Decision for our side;
Key Pathway (r) , Micro-analysis of Tool marks on
Locks and Keys was accepted under the Daubert
Standard in Federal
court, Pensocola Florida. To date, no court has
refused to allow the NETS technicians to testify
regarding the process used by us.
They have passed both the Daubert and Frye
tests several times. Copies of the Rule are
available from NETS upon request.
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Kathie Ann Ducharme, President/Owner
North Eastern Technical Services, Inc.
Letter from Dr. Gregory A. Robertshaw PhD.
June 26, 1999
To Whom It May Concern:
I, Gregory A. Robertshaw, am currently employed as a
lead engineer at MITRE Corporation in Bedford, MA.
My educational credentials include a B.S. from
Worcester Polytechnic Institute, and an M.S. and PhD
in Physics from Brown University. I am very familiar
with scientific method, simulation, and analysis.
While I have know of the work of North Eastern
Technical Services (NETS) for several years, more
recently I have had the opportunity to review the
process by which keys and locks are examined in
order to ascertain certain facts concerning the
means by which locks are operated and/or defeated.
For example, one can, in many circumstances,
determine the characteristics of a key that was used
to operate an automobile prior to its theft or
destruction.
From my review I have concluded the following:
1. NETS has a competent and experienced technical
staff.
2. NETS has demonstrated, via well-controlled
experiments, the efficacy of their proprietary
key-path analysis techniques.
3. The key-path analysis techniques are founded on
sound physical principles that can be understood by
any intelligent layman.
4. While physical evidence may not always be
sufficient to arrive at a specific key-path
determination, when such evidence does exist,
conclusions can be reached with high confidence.
Overall, I am impressed with the professionalism of
the NETS staff and the advances they have forged in
Forensic Science.
Sincerely,
Dr. Gregory A. Robertshaw
Lead Engineer