Should a forensic pathologist who partially relies on witness statements to formulate his opinion on the sequence of gunshots be permitted to testify?

The court, in Fancher v. Barrientos, Dist. Court, D. New Mexico 2014 after a Daubert hearing permitted the testimony.

The court stated:

Dr. Di Maio testified that the generally accepted diagnostic method in the field of forensic pathology is to examine the circumstances up to and including the death (the “history”), the physical condition of the decedent, and testing of the instruments involved in causing the injuries. To gain information for a history in the case of a victim’s death, a forensic pathologist may rely on witness statements, among other things. In the case of death, the physical evaluation is in the form of an autopsy. In the case of a death resulting from a firearm, Dr. Di Maio testified that the generally accepted methodology used in the field may include examining the range of tattooing on the victim’s body, examining the firearms used, conducting a trajectory analysis, and determining whether the wounds are consistent with eye witness accounts. Dr. Di Maio stated that a forensic pathologist may also rely on certain undisputed assumptions.

Dr. Di Maio testified that, in this case, to determine the sequence of shots, he considered the powder tattooing on the victim’s body; the trajectory of the bullets entering the victim’s body; that the decedent was seated in the vehicle; the undisputed fact that the vehicle moved in reverse as the shots were fired; and the slide in the New Mexico State Police report and power point presentation that depicted the arc of shell casings from the firearm. Dr. Di Maio testified that powder tattooing was the most important factor upon which he relied to determine both range of fire and the sequence of the shots.

The Court finds that Dr. Di Maio’s analysis was based on medical and forensic methodology that is generally accepted in the scientific community. Moreover, his analysis of the powder tattooing on the victim’s body and trajectory of the bullets are based on techniques that can be and have been tested in the scientific community and that also have been subject to peer review and publication. Dr. Di Maio wrote a book entitled Gunshot Wounds which analyzed firearms, ballistic, and forensic techniques.

The Court recognizes that Dr. Di Maio stated in his report that, in addition to the scientific evidence aforementioned, he also relied in part on “the account of the shooting.” See Pl.’s Mot. to Exclude, Ex. E, Doc. 102-2 at 6 of 7. Dr. Di Maio, however, testified that it is generally accepted in the field of forensic pathology to rely, in part, on the history of the incident, including witness statements, and to make certain assumptions based on undisputed facts, such as the decedent’s position being seated in the vehicle. Dr. Di Maio nevertheless emphasized that he has relied principally on the objective evidence in rendering his opinions and in determining whether the wounds sustained are consistent with the witness accounts of the incident. Dr. Di Maio testified that the accounts of the law enforcement officers were consistent with his conclusions, but not a basis for his opinion.

In sum, the Court finds that Dr. Di Maio’s opinnion is based on scientific, technical, and specialized knowledge that will help the jury understand the evidence; his testimony is based upon sufficient facts and data and is the product of reliable principles and methods; and he has reliably applied the principles and methods to the factss of the case. The Court will therefore allow Dr. Di Maio to testify concerning his opinion thhat, in all medical probability, Wound C was the first shot fired. The weight to be given Dr. Di Maio’s opinion will be up to the jury at trial.