5/12/2010            FOEENSIC SCIENCE:            "SHAKEN BABY" CASES               For: National Seminar for Federal Defe...
5/12/2010                                   SBS Is A MYTHo ShaMng alone of an otherwise healthy infant  cannot cause the c...
5/12/2010                                   SBS Is A MYTHo Shaking alone of an otherwise healthy infant  cannot cause the ...
5/12/2010                    MANY THINGS CAN CAUSE                     SUBDURAL HEMATOMAS              Video Clip: Short F...
5/12/2010                     MANY THINGS CAUSE RETINAL                                                     HEMORRHAGESo T...
5/12/2010                                           USING                  DAUBERT       TO CHALLENGE SBSo Goal: To block ...
5/12/2010                       ASSIMILATIVE CRIMESo Assimilative Crimes Act: 18 U.S.C. § 13 (reaches  crimes "not made pu...
Shaken Baby ExpertsBill Massello (Bismark)            Cannot review any cases at this time, due to his current position701...
Shaken Baby ExpertsChris Van Ee, Ph.D.             Injury biomechanics expertSenior Biomechanical Engineer   Highly recomm...
COMMONWEALTH OF KENTUCKY                             GREENUP CIRCUIT COURT                                CASE NO. 04-CR-2...
5. The admissibility of proposed expert medical and scientific opinions that the    injuries of the victim are consistent ...
1968. He performed his internship at Bronx Municipal Hospital Center, AlbertEinstein University College of Medicine, inNew...
Dr. Uscinski has made numerous presentations on the subject of shaken babysyndrome including locations at Washington, D.C,...
seem to be insignificant. There are no immediate symptoms, and retinalhemorrhaging, bleeding behind the eye, is a marker o...
Experimental whiplash injury in rhesus monkeys has demonstrated that      experimental cerebral concussion, as well as gro...
proportion to their bodies. Researchers needed to conduct further research to make thisdetermination. Second, the research...
Dr. Uscinski pointed out Guthkelchs work was based on several case studies andnot a scientific examination using controlle...
neck injury before it would receive a head injury simply because human shaking by ahuman cannot generate the forces necess...
confirmation based on studies conducted by Japanese researchers who have a great dealof interest in this problem.        I...
After discussing his review of the different reported studies on SBS, Dr. Uscinskitestified that considering the latest ev...
material yielded inadequate scientific evidence to establish afirmconclusion on mostaspects of causation, diagnosis, treat...
SBS including Patho biology and Biomecimnics of Inflicted Childhood Neurotrauma bySusan S. Margulies, PhD, and Betty S. Sp...
injury caused SDH or other intracranial pathology. "However, previous studies do notconsistently support this hypothesis."...
Dr. Spiveck testified that one question lead to another, and that a lot of research wascurrently ongoing in the area of SB...
The aspects of the Daubert doctrine are incorporated into KRE 703 that reads:      (a) The facts or data in the particular...
initiated. Caffey even stated that his conclusions were, "manifestly incompleteand largely circumstantial." Caffey, supra....
by no means all the patients so affected have external marks of injury on the head.This suggests that in some cases repeat...
the child to the point it has a subdural hematoma and bilateral retinal bleeding.But, blunt head trauma does not always ha...
A correlation in mathematics does not imply cause and effect.Mathematical correlations are numbers between -1 and +1 that ...
There can be little doubt that some testing has been accomplished byresearchers, however, their conclusions tend to point ...
subdural hematoma and bilateral ocular bleeding absent any manifest injuriessuch as bruising and broken bones.         The...
and other manifest observable injuries such as broken bones, bruises, etc. Toallow a physician to diagnose SBS with only t...
Therefore, the Court orders and holds that neither party may call a witaessto offer an expert opinion that a baby has rece...
A Critical Look at the                                       By Roger H. Kelly and Zachary M. BravosShaken Baby SyndromeRe...
the theory be scrutinized and its validity          Similarly, in late 2001, the supreme         en infant Syndrome." He d...
SHAKEN BABY SYNDROME I Continued     This "extraordinary diagnostic con-     reasonable person would expect injury. It    ...
hydrocephalus are subject to spontane-       retinal hemorrhages may be correlated chanicsBritish Journal of Neurosurgery,...
Page 2 of 55Westlaw.87 WAULR 1                                                                                            ...
Page 3 of 5587 WAULR 1                                                                                                    ...
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Forensic Science Shaken Baby Cases 2010

  1. 1. 5/12/2010 FOEENSIC SCIENCE: "SHAKEN BABY" CASES For: National Seminar for Federal Defenders, Seattle, Washington, June 2, 2010 J a n e McCIellan, AFPD, District of Arizona (based on previous presentation with AFPD Doug Passon) © WHAT IS SBS? Video Clip: Shaken Baby Syndrome ("SBS") Explanation WHEN WILL YOU SEE ACCUSATIONS INVOLVING SBS?o Retinal Hemorrhages • Bleeding: behind the retina that can range from a few scattered spots to extensive involvement of multiple layers ofthe retinao Subdural Hematoma • A collection of blood between the surface ofthe brain and the dura (tough, fibrous outer membrane surrounding the brain).o If you have these two things, there will be trouble! Oil
  2. 2. 5/12/2010 SBS Is A MYTHo ShaMng alone of an otherwise healthy infant cannot cause the constellation of injuries associated with SBS 0 SBS Is A MYTH Video Clip: Shaking Can Cause Injury e SBS is A MYTH Video Clip: Shaking Cnnnot Cause Injury o
  3. 3. 5/12/2010 SBS Is A MYTHo Shaking alone of an otherwise healthy infant cannot cause the constellation of injuries associated with SBS o Duhaime, A.C. et al. The Shaken Baby Syndrome: A clinical pathological, and biometrical study. Journal of Neurosurgery.o At least three organizations have abandoned their belief in SBS: o American Academy of Pediatrics o American Academy of Opthamology o National Association of Medical Examiners. o OTHER INJURIES MUST BE PRESENT TO PROVE BABY WAS SHAKEN Video Clip: No Other Injuries 0 OTHER INJURIES MUST BE PRESENT TO PROVE BABY WAS SHAKENo Neck/Spine injurieso ShaMng Marks o Finger marks o Bruises o Nail marks o
  4. 4. 5/12/2010 MANY THINGS CAN CAUSE SUBDURAL HEMATOMAS Video Clip: Short Falls Can Kill MANY THINGS CAN CAUSE SUBDURAL HEMATOMASo Accidental injuries in children can lead to subdural hemorrhages and even death. o Short falls.o A history of eougMng, vomiting, or choking can account for RH and subdural bleeding in otherwise healthy infants,o When a baby stops breathing, a lack of oxygen causes brain to swell and vessels to rupture. 0 MANY THINGS CAUSE RETINAL HEMORRHAGES Video Clip: Retinal Hemorrhages ©
  5. 5. 5/12/2010 MANY THINGS CAUSE RETINAL HEMORRHAGESo The number and location of retinal hemorrhages arent proof of child abuse. They are associated with a wide variety of conditions, o Bleeding Disorders o CPE and other resuscitation o Induced labor (4___dwn_„t_op_i_(c.n_)_ridE_,_n.._._) o Increased intracranial pressure from any cause (example: "bulging fontanelle") o Shortfalls! (of less than 10 ft.) o Mild to moderate vitamin C depletion o Vaccination with Hep B vaccine (given at birth) o Being born: oaaa __v.__.nB examined: i?a h_u _ o _H) O»_ tyi,_ no of / V iloli v ery cnn l_Hu.nc.}(„!_ther study looked nl 230 infants wllhln n lowdays of ___/ birth _3/l_.5K)M_ healthy infante- 1-/21.7K) MANY THINGS CAUSE BROKEN BONES AND BRUISING 1o Vitamin C depletion in infants can lead to bone fragility.o Corner Fractures are considered evidence of abuse. 1 1 o Metabolic disease ofthe premature o Osteogenesis imperfecta and other genetic 1 bone disorders 1 1 o Hyperparathyroidism o Vit. D deficiency and IdiopatMc juvenile 1 1 1 osteoporosis 0 MANY THINGS CAUSE BROKEN BONES AND BRUISINGo Thrombocytopenia (low blood platelet count) - platelets play a role in blood clotting = bruising.o Henoch-Schonlein P u r p u r a (HSP) is a form of blood vessel inflammation (vasculitis) - causes bruise-like rashes over buttocks and behind lower extremities. Also can cause severe joint inflammation and cramping pain i n abdomen.o Vaccines associated with HSP, Vasculitis, thrombocytopenia.o Flu shots can cause injection site bruising. Package insert warns against giving to people with, among other things, thrombocytopenia. o
  6. 6. 5/12/2010 USING DAUBERT TO CHALLENGE SBSo Goal: To block testimony about SBS, and to preclude govts expert from testifying that injuries were caused from shaldng.o Will most likely fail, but: o Educate judge. o First crack at the experts (dry run) o Persistence pays off! USING EXPERTS TO CHALLENGE SBSo Forensic Pathologisto Biomechanicso Radiologisto Pediatric NeurologistoEtc.o Dr. Posey (800-620-4644)o National Child Abuse Defense & Resource Center http://www.falseallegation.org/ DISCOVERY & INVESTIGATIONo Pre-natal recordso Birth recordso Post-birth health recordso Hospital policy records 1o Ambulance emergency records 1o False confession issueso Child suggestibility issues o
  7. 7. 5/12/2010 ASSIMILATIVE CRIMESo Assimilative Crimes Act: 18 U.S.C. § 13 (reaches crimes "not made punishable by any enactment of congress")o Govt: 18 U.S.C. § 1153(a) references "felony child abuse", but no specific child abuse statute. o Assault resulting in SBI on juvenile under 16 (18 USC 113(a)(7)) o Assault by striking beating wounding (a)(4) o Simple assault juvenile <16 (a)(5) .
  8. 8. Shaken Baby ExpertsBill Massello (Bismark) Cannot review any cases at this time, due to his current position701-328-6154 Avsncinfp Mpdical Kxaminpr in Miami-Dade dountv MK Dent1865 NE 214 Terrace • Interested in reviewing case at NO CHARGEMiami, FL 33179 • If needed for testimony will chargePHONE: 305-527-9535 • CV availableMshumanmd(o),netzero. netGeorge Nichols (Louisville) Number has been disconnected-no longer in service502-499-0077 • Currently researching Internet for a valid numberEd Willey Private Practice of forensic medical and pathological evaluation6727 1st Ave. South • Interested and available to review caseSuite 204 • When informed of injuries sustained by V, stated that these injuriesSt. Petersberg, FL 33707 are not necessarily caused by shakingPHONE: 727-345-2907 • Charges $250/hour • CV availableShaku Teas (Chicago) Not available to review case until July or August - backlogged with708-366-4389 other casescell: 708-415-8074 • Charges $325/hour to review and consult with attorney • $375/hour to testify; and $3,500.00 if involves overnight stay • Will forward CV for future purposesDr. Patrick Barnes Pediatric Neuro-radiologistDept. of RadiologyLucile Salter Packard ChildrensHospitalStanford Univ. Med. Ctr.725 Welch RoadPalo Alto, CA 94304PHONE: 650-407-8601David M. Posey, M.D. Forensic and neuropathologistGlenoaks Pathology MedicalGroup, Inc.2222 Foothill BoulevardSuite E-565La Canada, CA 91011PHONE: 818-249-1911posev(3),vel.net
  9. 9. Shaken Baby ExpertsChris Van Ee, Ph.D. Injury biomechanics expertSenior Biomechanical Engineer Highly recommended by several lawyers, the National Child AbuseDesign Research Engineering Defense Resource Center, and Dr. Posey, internationally renowned46475 DeSoto Ct. expert (we have copy of CV) and has a substantial lab to do state ofNovi, MI 48377 the art testing using crash test dummies.PHONE: 248-668-5533chrisv(2),dreng.comJohn Jerome Plunkett, M.D. He is a pathologist and an expert on head injuries.13013 Welch TrailWelch, Minnesota 55089PHONE: 507-263-4022
  10. 10. COMMONWEALTH OF KENTUCKY GREENUP CIRCUIT COURT CASE NO. 04-CR-205COMMONWEALTH OF KENTUCKY PLAINTIFFVS. ORDER AND OPINION ME: DAUBERT HEARINGCHRISTOPHER A. DAVIS DEFENDANT ^^i^^*_!t^.^_^^*^*^>J_^^_|-^^^tJi^>j$^^_fe_4<**%^**sS:ij!4:*****^^****H!*>!!**_:. On September 19,2005, the Defendant, by and through counsel, filed a motionfor a Daubert hearing pursuant to KRE 104 and Daubert vs. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993). In his motion the Defendant moved theCourt to determine: 1. The admissibility of proposed medical and scientific evidence that manual shaking can cause subdural hematomas and retinal hemorrhaging in infants. 2. Whether shaken baby syndrome meets the Daubert criteria for admissibility as a scientific theory to explain the injuries to the victim in this case. 3. The admissibility of proposed medical and scientific evidence that subdural hematomas and retinal hemorrhaging in infants can only be cause by manual shaking. 4. The admissibility of proposed medical and scientific evidence that the symptoms of subdural hematomas and retinal hemorrhaging would necessarily be immediately apparent.
  11. 11. 5. The admissibility of proposed expert medical and scientific opinions that the injuries of the victim are consistent with shaken baby syndrome. A Greenup Grand Jury indicted the Defendant of first-degree criminal abuse by-violently shaking achild-vrit__th_-initial______________> childs medical records indicate that the only significant injury for the victim was a subdural hematoma and retinal hemorrhaging and there was no significant bruising, fractures, or evidence of impact. The Commonwealths case is based upon the theory of shaken baby syndrome, hereinafter referred to as SBS. SBS is the theory that a caregiver can cause a subdural hematoma and retinal hemorrhaging by violently shaking a child without the childs head impacting with another surface. This theory explains why a baby can have the classic symptom of a subdural hematoma and a retinal hemorrhage usually in both eyes. But, the Defendant challenges whether there exists any basis in fact for the theory, and in particularly where the consequences can cause a person to be sentence to the state prison system from five (5) to ten (10) years. The Court conducted the hearing on Wednesday, March 29,2006. The Hon. Clifford Duval, Hon. Maridelle Malone, and Hon. Mel Leonhart were present representing the Commonwealth. The Hon. Sam Weaver and Hon. Amy Craft were present representing the Defendant. FINDINGS OF FACT The Defendant called as its first and only witness Dr. Ronald H. Uscinski. M.D., FACS. Dr. Uscinski earned his B.S. at Fordham University inNew York, New York in 1964. He earned his M.D. from Georgetown University in Washington, D.C in
  12. 12. 1968. He performed his internship at Bronx Municipal Hospital Center, AlbertEinstein University College of Medicine, inNew York from 1968 to 1969. Heperformed his residency in neurological surgery, Georgetown University andaffiliated-Hospital from 1971-to-_9_7_5.__- — Dr. Uscinskis experience included serving as a Medical Officer in the U.S. Navyat Parris Island, South Carolina, and aboard the U.S. S. Thomas A. Edison (SSNB610-B) Atlantic Submarine Force, from 1969 to 1971. Dr. Uscinski served as a Senior Surgeon, in.the U.S. Public Health Service, Surgical Neurology Branch, National Institute of Neurological and Communicative Disorders and Stroke, (NIH) in Bethesda, Maryland from 1975 to 1976. He served as an instructor in neurosurgery at NIH from 1976 to 1977, and as an instructor in neurosurgery at Medical University of South Carolina, Charleston, South Carolina from 1977 to 1980. In 1978 he become board certified with the American Board of Neurological Surgery. From 1980 to 2000 he served as a Clinical Assistant Professor in the Dept. of Surgery (neurosurgery), at Georgetown Universtty School of Medicine in Washington, D.C. From 2000 to the present he is still a Clinical Associate Professor at Georgetown. In 2004 he was appointed as an Adjunct Research Fellow at the Potomac Institute for Policy Studies, in Arlington, Va. Dr. Uscinski has published several papers including The Shaken Baby Syndrome, Uscinski R. Journal of American Physicians & Surgeons: Volume 9, #3; 76-77,2004; and The Shaken Baby Syndrome: An Odyssey. Uscinski RH. Neuroiogm medico- chirurgica (Tokyo) 46, 57-61,2006.
  13. 13. Dr. Uscinski has made numerous presentations on the subject of shaken babysyndrome including locations at Washington, D.C, London, England, andNara,Japan. See Dr. Uscinski Curriculum Vitae, Defendants Exhibit #1. Dr. Uscinski testified that as a practicing neurosurgeon he became interested inthe subject of SBS because it directly affected his medical practice. As a result of hisinterest, he began to survey the different medical publications that existed on thesubject of SBS. His study of the subject combined with his clinical practice led him tothe conclusion that based upon his training, education, and experience, and within areasonable degree of medical probability, there is insufficient proof in the medicalcommunity that human beings can generate the required rotational acceleration bymanual shaking necessary to cause an injury to a small child or infant resulting in a subdural hematoma and/or retinal bleeding unless there is an impact of the head with another surface. Dr. Uscinski opined that based upon the research conducted and reported so far, impact is necessary to generate adequate force to cause the injuries previously mentioned. Dr. Uscinski began his testimony by stating that a subdural hematoma is a pooling of blood in the subdural space of the human brain that results from the tearing of blood vessels. The brain has three membranes that enclose it. They are the outer layer, the dura, the middle layer, arachnoid, and a thin inner layer, the pia. The subdural is the space between the dura and the arachnoid layers. Hematomas can be either acute or chronic. Dr. Uscinski explained that a blow to the head causes an acute hematoma with symptoms that manifest themselves immediately after the injury. A chronic hematoma shows up weeks or months after an initial injury that often times
  14. 14. seem to be insignificant. There are no immediate symptoms, and retinalhemorrhaging, bleeding behind the eye, is a marker of the chronic hematoma. Dr. Uscinski testified that in 1974 Dr. John Caffey, an MD from Pittsburgh,Penn., released a paper in the professional magazine PEDIATRICS in which hesuggested that manual whiplash shaking of infants is a common primary type oftrauma in the so called battered infant syndrome. It appears to be the major cause inthese infants who suffer from subdural hematomas and intraocular bleedings." Dr.Caffey admitted that this opinion was based on, "both direct and circumstantial"evidence. See PEDIATRICS, The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities With Whiplash-Induced Intracranial and Intraocular Bleedings, Linked With Residual Permanent Brain Damage and Mental Retardation, Vol. 54 No. 4, October 1974. Dr. Caffey went on to state in the article that, "Current evidence, though manifestly incomplete and largely circumstantial, warrants a nationwide educational campaign on the potential pathogenicity of habitual, manual casual whiplash shaking of infants, and on all other habits, practices and procedures in which the heads of infants are habitually jerked and jolted (whiplashed)." Caffey, supra. Dr. Caffeys suggestion that a nationwide educational campaign be initiated took root, and the Nation went into a frenzy cautioning mothers, fathers, and caregivers to never shake your child. Although this was good advise, Dr. Caffey pointed out that his suggestion although sound, was not based on any type of scientific study. Dr. Uscinski testified that Ayub K. Ommaya, FRCS did experimentation with rhesus monkeys in 1968. This study concluded that:
  15. 15. Experimental whiplash injury in rhesus monkeys has demonstrated that experimental cerebral concussion, as well as gross hemorrhages and contusions over the surface of the brain and upper cervical cord, can be produced by rotational displacement of the head on the neck alone, without significant direct head impact, these experimental observations have been studied in the light of published reports of cerebral concussion and other evidence for central nervous system involvement after whiplashlnjury in maxiAlfaJour^^ Association, Vol. 204, No. 4, page 75 (285), April 22,1968. (Defendants Exhibit # 8) Dr. Uscinski pointed out that the Ommaya experiment study produced injury to 19out of 50 monkeys by seating them in a chair that accelerated whipping the monkeyshead back and forth. However, the experiment was preformed on monkeys instead ofhumans because they ended up killing the monkeys to examine their brains for injury.The purpose of this research was to study whiplash on humans in automobile accidents. Itwas suppose to illustrate that injuries could occur to primates through sheer accelerationforces without any impact to the monkeys head. Researchers in the Ommaya study produced an impact curve that predicted atwhat level of acceleration the monkeys would start to experience brain injuries from thesheer acceleration forces without any impact on the head. The researchers prepared animpact curve and from it were able to tell at what levei of acceleration they observedbrain injury to the monkeys. They called this level the threshold of injury. Dr. Uscinski pointed out that there were two flaws with the way later researchers interpreted the study. First, researchers must not assume that by extending out the impact curve they could accurately predict what threshold level of injury was necessary to produce injury to infant human brains. They could tell at what threshold they started to observe injuries to the monkeys; however, these results could not be extended out to predict injuries to humans because humans, although similar in structure, are still different with larger heads in
  16. 16. proportion to their bodies. Researchers needed to conduct further research to make thisdetermination. Second, the researchers failed to take into account that in some cases themonkeys hit their heads on the back of the "monkey seat" during the accelerationprocess. Dr. Uscinski also pointed out whipping a head back due to acceleration forcesone time in an acceleration chair is a different kind of motion than shaking a childrepeatedly by holding onto the childs torso. Next, Dr. Uscinski testified that Dr. A.N. Guthkelch conducted a study in 1971 published in the British Medical Journal. Dr. Guthkelch commented that, " One cannot say how commonly assault in the form of violent shaking rather that of direct blows on the head is the cause of subdural haematoma in infants who are maltreated by their parents. Possibly it will be found that the frequency of this mechanism varies between different nations according to their ideas of what is permissible, or at least excusable, in the treatment of children " British Medical Journal, Infantile Subdural Haematoma and its Relationship to Whiplash Injuries, 1971,2,430-431. (Defendants Exhibit # 13) Dr. Guthkelch concluded in his summary, "Subdural haematoma is one of the commonest features of the battered child syndrome, yet by no means all the patients so affected have external marks of injury on the head. This suggests that in some cases repeated acceleration/deceleration rather than direct violence is the cause of the haemorrhage, the infant having been shaken rather than struck by its parent. Such an hypothesis might also explain the remarkable frequency of the finding of subdural haemorrrhage in battered children as compared with its incidence in head injuries of other origin, and the fact that it is so often bilateral." See Guthkelch, supra. (Bold type in this quotation is placed there by Judge Nicholls to suggest emphasis.)
  17. 17. Dr. Uscinski pointed out Guthkelchs work was based on several case studies andnot a scientific examination using controlled experiments. In fact Dr. Guthkelch did notdo any experiments himself, he merely commented on, and suggested a possibleexplanationfor the-case-studies-he c i t e d J & i _ _ i _ ^ ^of Dr. Guthkelchs hypothesis was based on the flawed work of Dr. Ommaya. Dr.Guthkelchs use of words such as "hypothesis" and "suggests" is a cogent clue that these are his ideas to explain symptoms usually seen in a patient, rather than a solid verifiable scientific study. Dr. Uscinski then testified that a 1987 study at the University of Pennsylvania produced some surprising results. Dr. Ann-Christine Duhaime, M.D., Thomas A Gennarrelli, M.D., and others conducted a biomechanical study to test the hypothesis that infants were particularly susceptible to injury from shaking due to a relatively large head and weak neck. The researchers used models of 1-month old human babies and had college football players shake the models. The researchers measured the forces on the models and recorded them. The research team reached the conclusion that, "the shaken baby syndrome, at least in its most severe acute form, is not usually caused by shaking alone. Although shaking may, in fact, be a part of the process, it is more likely that such infants suffer blunt impact." J. Neourosurg. The shaken baby syndrome: A cluneal, pathological, and b i o m e d i c a l study, Vol. 66, page 409-415, March 1987. (Defendants Exhibit # 10) The conclusion they reported in the abstract stated, "severe head injuries commonly diagnosed as shaking injuries required impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome." Duhaime, supra. The Duhaime study also demonstrated that a baby would most likely receive a
  18. 18. neck injury before it would receive a head injury simply because human shaking by ahuman cannot generate the forces necessary to cause injury to the brain. The study wenton to conclude that, "unless a child has predisposing factors such as subdural hygromas,brain atrophy, or collagen-vascular disease, fatal cases of the shaken baby syndrome arenot likely to occur from the shaking that occurs during play, feeding, or in a swing, oreven from the more vigorous shaking given by a caretaker as a means of discipline.7Duhaime, supra. A second biomechanics study was conducted by Faris A. Bandak in 2004 andreported in 2005 in the professional magazine Forensic Science International, Shaken baby syndrome: A biomechanics analysis of injury mechanism. (Defendants Exhibit #9) The study concluded that, "we have determined that an infant head subjected to the levels of rotational velocity and acceleration called for in the SBS literature, would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine." See Bandak, supra. In other words, shaking alone would cause broken necks before one would expect to see subdural hematomas and ocular bleeding. The study called for a re-valuation of the current diagnostic criteria for shaken baby syndrome. Dr. Betty Spivack, M. D., witness for the Commonwealth, testified that physicians will diagnosis SBS when they observe a subdural hematoma bilateral (both sides of the brain) coupled with a retinal hemorrhage observed in both eyes. Thus, the Bandak study was calling for a re-valuation of these criteria for diagnosing SBS. Dr. Uscinski testified that based upon his own experience the subdural hematoma can actually cause the retinal hemorrhaging, and that his opinion is currently finding
  19. 19. confirmation based on studies conducted by Japanese researchers who have a great dealof interest in this problem. In response to he Bandak study Dr. Susan Margulies and others wrote a published--mzx-Xo-Xh&-For-ensicScience-Intematiow stated, "Based upon his flawed calculations, Bandak erroneously concluded that the neck forces in even the least severe shaking event far exceed the published injury tolerance of the infant neck. However, when accurately calculated, the range of neck forces is considerably lower, and includes values that are far below the threshold for injury. In light of the numerical errors in Badaks neck force estimations, we question the resolute tenor of Bandaks conclusions that neck injuries would occur in all shaking events. Rather, we propose that a more appropriate conclusion is that the possibility exists for neck injury to occur during a severe shaking event without impact." Forensic Science International, Shaken baby syndrome: A flawed biomechanical analysis, July 20,2005. (Defendants Exhibit # 12) Then, Dr. Duhaime and PhD Margulies wrote a response to criticism in a letter to the editor from Drs. Uscinski, Thibault, and Ommaya stating that, "To summarize, new research is needed to determine if injuries can occur in the brain, cervicomedullaiy junction, or cervical spinal cord as a result of a single or series of head rotations at these . low magnitudes, and if these injuries are primary or secondary in nature. Therefore, we cannot yet answer if shaking can cause intracranial injury in infants, and use of terminology that includes this mechanism should be avoided." See J. Newosurg. Voume 100/March, 2004. (Defendants Exhibit # 14) 10
  20. 20. After discussing his review of the different reported studies on SBS, Dr. Uscinskitestified that considering the latest evidence, we must look at the "unexplained headinjury" in a different light. Dr. Uscinski testified that trivial head impact after a fail of aslittle as 3 feet results in the same impact as hitting a hard surface at 9 miles per hourwhich is more than twice that necessary to fracture the skull of an infant. His point wasthat what seems like trivial head impacts for an infant, like falling off of a bed or out of achair, may result in a chronic subdural hematoma manifesting itself much later. Hepointed out that we should not jump to the conclusion that there has been parentalshaking. Dr. Uscinski testified that when a doctor first sees a child with a chronic subdural hematoma, it might exhibit fresh blood that is interpreted by the doctor of a recent injury. However, Dr. Uscinski stated that fresh blood has been observed in chronic subdural hematomas in adults and does not have to suggest a recent injury at all. In fact Dr. Uscinski stated that most neurosurgeons are aware that fresh bleeding can occur in chronic subdural hematomas along with older bleeding comprising the hematoma. Neurosurgeons are very much aware of this re-bleeding, and have observed it even when they know that there has not been an accompanying second trauma. Dr. Uscinski concluded that, "for an infant presenting with ostensibly unexplained intracranial bleeding with or without external evidence of injury under given circumstances, accidental injury from a seemingly innocuous fall, perhaps even a remote one, or even an occult birth injury, must be considered before assuming intentional injury." Neuro Med Chir (Tokyo) Shaken Baby Syndrome: An Odyssey, (Ronald H. Uscinski) 46,57-61, 2006. (Defendants Exhibit # 4) He concluded that, "some 32 years of cumulative 11
  21. 21. material yielded inadequate scientific evidence to establish afirmconclusion on mostaspects of causation, diagnosis, treatment, or any other matters pertaining to shaken babysyndrome." Uscinski, supra. He also stated," it was impossible to determine withscientific rigor what role shaking may have played in abusive head injury in thesereported cases. Finally, it was not possible from the case analyses to infer that anyparticular form of intracranial or intraocular pathology was causally related to shaking,and that most of the pathologies in allegedly shaken babies were due to impact injuries tothe head and body." Uscinski, supra. The Commonwealth called Dr. Betty S. Spivack, MD to the stand to testify. She isa forensic pediatrician with the Office of the Chief Medical Examiner located inLouisville, Kentucky. She graduated from Cornell University with a Bachelor of Arts in 1975 majoring in biology and mathematics. She earned her MD degree from S.U.N. Y.at Buffalo School of Medicine in 1979. She completed her residency in pediatrics at Childrens Hospital of Buffalo from July 1979 to June 1982. She received a fellowship in pediatric critical care at Childrens Hospital of Buffalo from July 1982 to June 1984; and a fellowship in forensic pediatrics from the Child Protection Program, Hasbro Childrens Hospital at Brown University in Providence, Rhode Island. She attended an advanced course in child sexual abuse evaluation at Orange, California from June 21 to 25,2004. Her academic appointments include assistant professor of pediatrics at S.U.N. Y. at Buffalo School of Medicine from July 1984 to April 1989, and at the University of Connecticut from May 1989 to June 1995. She has been an adjunct professor at the University of Hartford; an assistant clinical professor of pediatrics at the University of Wisconsin and the University of Louisville. She has published articles on the subject of 12
  22. 22. SBS including Patho biology and Biomecimnics of Inflicted Childhood Neurotrauma bySusan S. Margulies, PhD, and Betty S. Spivack, MD. (Commonwealths Exhibit # 11) Dr. Spivack testified in the form of a PowerPoint presentation. (CommonwealthsExhibit #10) She entitled her presentation "The Biomechanics of Abusive HeadTrauma" and outlined the history of research in the area of Shaken Baby Syndrome. Shethen answered additional questions from the Commonwealth and then under cross-examination from the Defense. Dr. Spivack testified that the injury would tell the story. She stated that the primary brain injury is a direct result of mechanical forces associated with complicating factors. She stated that the Duhaime study had never been duplicated. She opined that a child with a subdural hematoma and retinal hemorrhages bilateral (in both eyes) and a manifest contusion (bruise that you can see) was sufficient evidence that a doctor would say that a crime had been committed. Presumably, she was talking about that amount of suspicion that would cause a reasonable doctor in Kentucky to believe he/she was legally obligated to report child abuse to the Cabinet for Families and Children. She also testified that a subdural hematoma coupled with bilateral retinal hemorrhages was also evidence of a crime, and would presumably invoke the same responsibility on a doctor to report the incident to the Cabinet. Dr. Spivack testified that she had co-authored a paper with Dr. Susan s. Margulies, PhD that is titled Pathobiology and Biomechanics of Inflicted Childhead Neurotrauma, previous mentioned. In her paper Dr. Spivack pointed out that Ommaya concluded that neck or spinal cord injury would be present in all cases if whiplash only 13
  23. 23. injury caused SDH or other intracranial pathology. "However, previous studies do notconsistently support this hypothesis." See Spivack, supra. Dr. Spivack also testified that, "Retinal hemonhages also seem to have a much--stronger-correlation ^ ^ ^ ^ when the unintentional injury is severe." Spivack, supra. Dr. Spivack concluded in her paper that, "While the general paradigm of TBI (traumatic brain injury) has a solid research basis, the applicability of this paradigm to the spectrum of injuries seen in victims of abusive head trauma still presents significant gaps and challenges. Basic biomechanical properties have not been well established for infant skull or brain tissues, nor has the infant neck been well characterized Early evidence indicates that simple brain mass scaling does not accurately predict threshold for traumatic axonal injury in immature brains. Little or no experimental work has been performed using oscillatory loads, s. ch as shaking, to derive injury threshold in either mature or immature animals." See Spivack, supra. Dr. Spivack posed a number of questions and pointed out that further research will hopefiilly provide us with the answers. These questions include: 1. What is the deformation tissue tolerance of pediatric brain and cord (for primary injuries, such as contusions, tissue tears, hemorrhages, and axonal transport disruption), and bridging veins? 2. Do repetitive events alter the tissues thresholds for injury? 3. Is shaking the same thing aswhiplash? 4. How does development and myelinate affect these thresholds? 5. Do gray and white matter have differing thresholds for injury? 14
  24. 24. Dr. Spiveck testified that one question lead to another, and that a lot of research wascurrently ongoing in the area of SBS. Dr. Spiveck also testified that history plays a significant role in assisting a doctordiagnose child abuse and cited an article that appeared in PEDIATICS Magazine in 2003 as proof to support her conclusron. Drs. Joeli Hettler, MD, and Dr. David S. Greenes, MD wrote the article that concluded, "We have found that infants who have a head injury and present with no history of trauma are highly likely to be victims of child abuse. Similarly, infants with head injury and persistent neurologic injury and a history of low-impact trauma are highly likely to be victims of abuse. Cases in which the history changes or the injury is blame don home resuscitative efforts are likely to represent abuse as well. Our data support the us of these historical features as diagnostic criteria for identifying cases of abuse." PEDIATRICS, Can the Initial History Predict Whether a Child With a Head Injury Has Been Abused? Vol. 111 No. 3, March 2003. CONCLUSIONS OF LAW The burden of proof is on the party offering the evidence. Staggs v. Commonwealth, 877 S.W.2"d 604 (Ky. 1993) Thus, the burden of proof is on the Commonwealth to prove that the offered evidence meets the Daubert test since they are attempting to introduce evidence into the trial of SBS. But, the Defense could not just challenge the SBS expert testimony without producing initial evidence that expert testimony by the Commonwealths expert could not be presented to a jury for Daubert reasons. There is a burden shift from the party offering expert testimony to the party opposingthetestimony.F/o^e, Vs. Commonwealth, 120 S.W.3d699, (Ky. 2003) Therefore, the Defense presented their evidence first. 15
  25. 25. The aspects of the Daubert doctrine are incorporated into KRE 703 that reads: (a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonable relied upon by experts in the particular field in forming opinions or inference upon the subject, the facts or data need not be admissible in evidence. (b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of evaluation the validity and probative value of the experts opinion or inference. The "preliminary assessment" that a trial judge must make is a "a flexibleone" that requires the judge to focus "solely on principles and methodology, and not onthe conclusions that they generate." The Kentucky Evidence Law Handbook/A Edition),Lawson, Robert G., (LexisNexis, Matthew Bender, 2003). The assessment the court mustmake includes, but is not limited to: (1) whether the theory or technique in question can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential rate of error; (4) the existence and maintenance of standards controlling its operation; and (5) whether the theory or technique has been generally (or widely) accepted in a relevant scientific community. Daubert v. MZTDOW Pharmaceuticals, Inc., 509 U.S. 579, 593-594,113 S. Ct. 2786, 2796-2797, 125 L. Ed. 2d 469,482-483 (1993). We, begin our Daubert analysis with whether the theory of SBS can and has been tested. Most of the studies that have conducted thus far are not conclusive that SBS is caused by shaking the baby. Dr. Caffey study admitted his conclusion that SBS was caused by shaking was, "both direct and circumstantial." Dr. Caffey suspected that shaking a baby can cause neurological damage and suggested only that a nationwide campaign be 16
  26. 26. initiated. Caffey even stated that his conclusions were, "manifestly incompleteand largely circumstantial." Caffey, supra. In 1968 Ommaya conducted studies upon rhesus monkeys for the purposeof trying to assess injuries for whiplash for humans in automobile collisions.Ommaya concluded that when the monkey was placed in an acceleration chairthat injury to 19 of 50 monkeys sustained head and neck injuries withoutsignificant direct head impact, Ommaya, supra. Dr. Uscinski pointed out that the key here was no "significant direct head impact." Later researchers began to realize that the monkeys still possibility sustained impact to their heads as a result of hitting their heads on the back of the chair or on their bodies due to the significant forces involved. Dr. Uscinski also pointed out that the impact curve created by Ommaya was only a projection of at what threshold the scientists believed humans would sustain injuries. It failed to take into account the different structure of human babies as compared to adult monkeys, and what impact this difference would make. Dr. Guthkelch conducted a study in 1971 in which he was examining why in some cases the doctors observed SBHs (subdural hematoma) in babies, some without any other evidence of direct violence. In other words he observed that some babies have no bruises or other evidence of direct violence, yet they still observe subdural hematomas in the baby. Dr. Guthkelch was unable to explain a mechanism for this observation. He concluded his paper by stating that, "Subdural haematoma is one of the commonest features of the battered child syndrome, yet 17
  27. 27. by no means all the patients so affected have external marks of injury on the head.This suggests that in some cases repeated acceleration/deceleration rather thandirect violence is the cause of the haemorrhage, the infant having been shakenrather than struck by its parent. Such an hypothesis might also explain theremarkable frequency of the finding of subdural haemorrhage in battered childrenas compared with its incidence in head injures of other origin, and the fact that it is so often bilateral." See Guthkeoch, supra. Dr. Guthkelch even came out and stated that his idea was only a hypothesis, and that his observations might "suggest" a possible explanation. Dr. Uscinski pointed out that Guthkelchs work was based on several case studies and not a scientific examination using controlled experiments. Furthermore, Guthkelch leaned heavily on Ommayas possibly flawed study. Next, Dr. Ann-Christine Duhaime, M.D. and Thomas A. Germarrelli, M.D. conducted a biomechanical study to test the hypothesis that infants were particularly susceptible to injury from shaking due to a relatively large head and weak neck. The research team opined that, "the shaken baby syndrome, at least in its most severe acute form, is not usually caused by shaking alone. Although shaking may, in fact, be a part of the process, it is more likely that such infants suffer blunt impact." Duhaime, supra. The Duhaime study concluded, "Severe head injuries commonly diagnosed as shaking injuries required impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome." Duhaime, supra. Much of the testing leads one to the conclusion that the baby must experience a blunt head trauma in order to injure
  28. 28. the child to the point it has a subdural hematoma and bilateral retinal bleeding.But, blunt head trauma does not always have to leave a mark such as a bruise orother injury. Further research must be conducted in the area of biomechanics ofbabies. _ Faris A. Bandak conducted a second biomechanics study in 2004. This study concluded, "An infant head subject to the levels of rotational velocity and acceleration called for in the SBS literature, would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine." See Bandak, supra. In other works, shaking alone would cause broken necks before one would expect to see subdural hematomas and ocular bleeding. Dr. Bandak concluded his paper with a call for a re-valuation of the current diagnostic criteria for shaken baby syndrome. Dr. Spivack concluded in the paper she co-authored with Dr. Margulies that little or no experimental work had been conducted to determine the thresholds necessary to drive injury in either mature or immature animals such as pigs. Thus, she recommended that research must continue to determine the answer to questions such as whether shaking is the same thing as whiplash, whether repetitive shaking alter the thresholds for injury, and just how much stresses can a baby brain be exposed to before injuries such as contusions, tissue tears, and hemorrhages begin to occur? Dr. Spivack testified that, "Retinal hemorrhages also seem to have a much stronger correlation with abusive head trauma than with unintentional head trauma, even when the unintentional injury is severe." See Spivack, supra. 19
  29. 29. A correlation in mathematics does not imply cause and effect.Mathematical correlations are numbers between -1 and +1 that describe when oneevent occurs, then, another event will follow. A positive correlation means thatwhen one event occurs, one can observe that another event seems to occur as well.A negative correlation means that when one event occurs, then one observes thatanother event does not occur as often. When an observed set of events is observed, then a correlation of+1 means that the other event always occurs. When an observed set of events are observed, then a correlation of-1 means that the other event never occurs. For example, the amount of beer consumption and teacher salaries have a positive correlation. Does that mean that to raise teachers salaries, we must increase beer drinking? Certainly not! Teachers salaries and beer consumption are not events that cause each other. Instead, they are events that occur when another factor occurs, as in the example, that the economy is going well and people have money at their disposal. One does not cause the other. When Dr. Spivack observed that there was a stronger correlation between retinal hemorrhages with abusive head trauma than with unintentional head trauma, even when the unintentional injury is severe, this does not mean that every time a doctor observes retinal hemorrhages that abuse has occur. It may be that the retinal hemorrhage is cause by something else. In fact that is exactly what Dr. Uscinski pointed out. He said that there is increasing evidence from studies currently being conducted in Japan that the retinal hemorrhages are the result of the subdural hematoma blood flowing through paths that were previously unknown. 20
  30. 30. There can be little doubt that some testing has been accomplished byresearchers, however, their conclusions tend to point to shaking alone withoutimpact does not cause the subdural hematoma or retina bleeding. The research isnot yet completed and no definitive conclusions have been reached. The physicians, on the other hand, use a subdural hematoma and bilateralretinal bleeding as criteria for diagnosing abuse in the form of SBS. Dr. Spivackmade it clear that physicians currently use this diagnostic criterion. Theseclassical markers of diagnosing an infant brain are certainly in the realm ofphysicians duties. However, the diagnosis presupposes the cause. The physician is diagnosing the legal conclusion that someone has battered this child even without manifest signs of bruising, broken bones, or other evidence. The diagnosis is based upon research beginning over 30 years ago that made it into the medical field through research that is ongoing yet not conclusive. In fact the research is beginning to indicate that other causes totally unrelated to child abuse could be responsible for the injuries. The best the Court can conclude is that the theory of SBS is currently being tested, yet the theory has not reached acceptance in the scientific community. The theory of SBS may be accepted in the clinical medical community, but it could be based on flawed studies and concepts that are currently being tested and retested. The next criterion to be examined by the Court is whether SBS has been subjected to peer review and publication. It certainly has, and the peer review through publication has reached only the conclusion that additional testing must be accomplished before physicians obtain the actual reasons for the observed 21
  31. 31. subdural hematoma and bilateral ocular bleeding absent any manifest injuriessuch as bruising and broken bones. There is no known or potential rate of error in the studies that have beencompleted. Some studies have been conducted in accordance with establishedscientific protocols rending their conclusions useful in the area of SBS. However,other studies are merely educated guesses as to the cause of SBS based uponempirical studies, anecdotal cases, and advise to the public based on commonsense. The existence and maintenance of standards controlling the study of SBScertainly exists. However, not all of the studies have observed the scientific method in reaching conclusions. In fact the most damning studies supporting SBS are the ones that failed to follow the scientific method. The more recent studies appear to utilize a more scientific methodology to their research, but their preliminary conclusions appear to support the conclusion that the subdural hematoma and bilateral ocular bleeding are not caused by shaking alone, but require blunt force impact. Physicians routinely diagnose SBS and that has gained wide or genera! acceptance in the clinical medical community, if the baby has the two classical medical markers of subdural hematoma and bilateral ocular bleeding without any other manifest injuries. However, this diagnosis is based on inconclusive research conducted in the scientific research community. SBS has gained wide or general acceptance in the clinical community and research community, if the baby has the two classical medical markers of subdural hematoma, bilateral ocular bleeding, 2?
  32. 32. and other manifest observable injuries such as broken bones, bruises, etc. Toallow a physician to diagnose SBS with only the two classical markers, and noother evidence of manifest injuries, is to allow a physician to diagnose a legalconclusion. If the physician has the two classical markers (subdural hematomaand bilateral ocular bleeding) coupled with other manifest injuries, then thediagnosis arises to more than a legal conclusion—it becomes a medical opinion. The Court can only conclude that SBS has not gained wide or generalacceptance in the scientific community for the purposes of allowing an expert to testify that a baby has been subjected to abuse when the baby exhibits a subdural hematoma, bilateral ocular bleeding with no other manifest injuries such as bruising, broken bones, etc. The Court can further conclude that based on the medical signs and symptoms, the clinical medical and scientific research communities are in disagreement as to whether it is possible to determine if a given head injury is due to an accident or abuse. Therefore, the Court finds that because the Daubert test has not been met, neither party can call a witness to give an expert opinion as to whether a childs head injury is due to a shaken baby syndrome when only the child exhibits a subdural hematoma and bilateral ocular bleeding. Either party can call a witness to give an expert opinion as to the cause of the injury being due to shaken baby syndrome, if and only, the child exhibits a subdural hematoma and bilateral ocular bleeding, and any other indicia of abuse present such as long-bone injuries, a fractured skull, bruising, or other indications that abuse has occurred. ORDER & HOLDING 23
  33. 33. Therefore, the Court orders and holds that neither party may call a witaessto offer an expert opinion that a baby has received injuries as a result of beingshaken, unless there exists clinical evidence of at lease one subdural hematoma,bilateral ocular bleeding, and any other indicia of abuse present such as long-boneinjuries, a fractured skull, bruising, or other indications that abuse has actuallyoccurred. Entered this the / TiA day of April , 2006. LEWIS D. NICHOLLS CIRCUIT JUDGE I, Allan Reed, hereby certify that a true and correct copy of this document has been sent by U.S. Mail, postage repaid, to the following: Hon. Clifford Duvall Commonwealth Attorney 201 Harrison Street Greenup, Kentucky 41144 Hon. Samuel Weaver Department of Public Advocacy Courthouse 3d Floor Catlettsburg, Ky. 41120 (606)-739-4161 Fax (606)-739-8388 y (X.J-A<A D.C. 24
  34. 34. A Critical Look at the By Roger H. Kelly and Zachary M. BravosShaken Baby SyndromeRecent research shows that factors other than abuse may be the causeof damage thought to result from shaking, these defense lawyers argue. A pproximately 1,400 infants and young children are reported to suffer brain injury as a result of abuse each year in the U.S.1 Violent shaking is considered to be a leading cause of those injuries.2 The theory that violent shaking causes brain injuries in infants and young children is referred to as shaken baby syndrome. Is the theory valid? That question is critically important to those accused of shaking a child. Each year, many parents and child caregivers are ac- cused of child abuse as a result of shaken baby syndrome. Two specific findings, subdural hematoma (bleeding between the brain and the skull) and bilateral retinal hemorrhaging (bleeding behind the eye), • are considered classic signs of shaken baby syndrome. And in the classic case, the allegation of shaking is sustained solely by these two findings of internal bleeding, There are no long-bone injuries, spiral fractures, skull fractures, evidence of impact or blunt trau- ma, bruising, or other indications or evi- dence that abuse has occurred. Neglect and abuse proceedings and lengthy prison sentences often result from prosecutions based on the shaken baby syndrome. These serious, life-changing outcomes for those accused demand that 1. Center for Disease Control: Facts for Physicians, http://www.cdc.gov/ncip_ tbi/FactsJorJhysiciansJjooklet, pdf, plO. 2. Center For Disease Control: Preventing Inju- ries in America: Public Health in Action, http://wwv. cdc.go_ncipe/fa_-_book/l > revcndng%20_njuries%20 in%20America%2OPublic%2OHealth%20i„i%2O Action _006.pd..p 42. Roger H. Kelly and Zachary M. Bravos focus their practice on issues involving science and the law. They have offices in Wheaton and consult throughout the Unit- ed States. Mr. Bravos is legal editor of the journal Issues in Child Abuse Accusations.
  35. 35. the theory be scrutinized and its validity Similarly, in late 2001, the supreme en infant Syndrome." He drew upon the tested. court of the Australian Capital Terri- Guthkelch article, a Newsweek magazine Though shaken baby syfidrpme is still tory reviewed the science behind an ac- article, and the work of Ommaya. embraced by the medical establishment, cusation of shaking based upon subdural However, in 2002 Ommaya ques- some forensic scientists sharply criticize hemorrhages and bilateral retinal bleed- tioned the applicability of his research the theory as rooted in anecdote, bad ing in the absence of other injuries.7 The to support the shaken baby syndrome study, arid speculation. Some biomechan- Crowns theory was that the "constel- theory, commenting as follows:_ical_experts,_pathophysiologists,-physi-- lation— of- injuries-was-caused-by-shak— _[0]utexperimental results-were referenced- cians, medical specialists, and medical ing.. Seven Crown experts testified, over as providing the experimental basis of the researchers have tested elements of the objection, in support of the theory. Nev- "shaken baby syndrome" (SBS) by Caffey, theory .and have established a growing ertheless, the court found "The evidence GulthkeWh and others by analogy not re- revealed a paucity of empirical research alizing that the energy level of acceleration body of .evidence challenging many of its on potentially critical issues."8 The high in our work related to speeds at motor ve- assumptions. court ruled as follows: hicle crashes at 30 mph.14 This article briefly discusses this sci- In suggesting that the associated find- entific evidence. But first it looks at court Ifindthat the evidence .was not admissible ings of subdural hematoma and retinal rulings that have critically examined the to.the effect that the injuries were caused hemorrhages could be sufficient diag- foundations of the shaken baby syn- in that manner [shaking], whether by the nostic criteria to determine abuse, Caffey drome. accused or otherwise, or that they could acknowledged that die evidence support- only have been caused in that manner. ing his theory was contrary to medical Some courts question The evidence suggests that such opinions expectations. the syndrome would not be based wholly or even sub- stantially on the experts specialized body The most characteristic pattern of physi- Recent challenges have been success- of knowledge as a pediatrician but [ ] on a calfindingsin the whiplashed infant is the ful at the trial court level in Frye and combination of speculation, inference, and absence of external signs of trauma to the Daubert hearings.3 In April 2006, a a process of reasoning beyond the relevant head and the soft tissues of the face and Kentucky circuit court ruled that in the field of expertise. neck, and of the facial bones and calvaria, absence of other evidence of abuse, the 1 Empirical research is now being con- in the presence of massive traumatic in- ducted that examines the basic hypothe- tracranial and intraocular bleedings. This sis behind the theory that is an extraordinary diagnostic contradic- shaking can and does cause tion." the injuries observed. 3. Florida (Johnson v Florida, 933 So2d 568 (Fla Recent challenges to the History of the theory 2006)j and Florida v Sanidad, 00-524 CFEA (Cir Ct Flager Cty 2006)j Oklahoma {Oklahoma . Watts, theory have been successful In 1971, Dr. A. Norman CF-2001-43 (D Ct Woods Cty, Okla 2002)). Missouri {Missouri v Hyatt, 06 M7-CROD016-02 (Cir Ct Shelby Guthkelch suggested that Cty, MO), Order dated November 6, 2007): Tennessee at the trial court level in Frye repeated shaking could {People v Maze, M2000-0224.-CCA-R3-CD (Tenn Ct . cause subdural hematoma App Davidson Cty Tenn 2002); and Ohio {Ohio v Mills, and Daubert hearings. even in the absence of evi- 2006 CR 100315 (Ct Com Pleas, Tuscarawas Cty, Ohio 2006)). dence of external injury to 4. Commonwealth Of Kentucky v Davis, 04 CR • the head.10 To support his 205. Trial Court Opinion April 17, 2006 (Greenup Circuit Court), http://www.aap_nline.org/sbs/daubert. suggestion, Guthkelch ref- pdf. . erenced a series of 23 chil- 5. State . Edmonds, 308 Wis 2d 374, 746 NW2d 590 (2008).theory of shaken baby syndrome could dren of "proved or strongly suspected 6. Shaken baby convictions overturned, „ttp_www.not be introduced,4 The Wisconsin Ap- parental assault." He did not disclose guardian.co.uk/society/2005/ju_21/childrensservic_.pellate Court recently acknowledged the how these assault determinations were childprotection, 7. The Queen v Stuart lee, SCC 69 of-2000 (Supcontroversy regarding the shaken baby made. Ct Australian Capital Territory, Canberra), 2002 WLsyndrome theory by granting a new trial Of this group, five children had sub- 14350. dural hematoma with no evidence of 8. Id at para. 46.to a convicted babysitter who had been 9. Id at para. 52.imprisoned for over 10 years.3 direct trauma to the head. Guthkelch 10. A, N. Guthkelch, Infantile Subdural Haematoma Overseas courts have also ruled theorized that repeated. shaking rather and its Relationship lo Whiplash Injuries, British Medi- cal-Journal 2,430-31 (1971).against the admissibility of the theory. In than direct impact was the cause of 11. A. Ommaya, F. Faas, P. Yamell, Whiplash. Injury2005, the court of appeals in the United these Hematomas. He compared such and Brain Damage, JAMA, 204(4) 285-89 (1968).Kingdom overturned two convictions shaking to two cases of adults suffering 12. J. Caffey, On the Theory and Practice of Shaking Infants, American Journal of the Disease of Childrenfor murder and reduced the charges on subdural hematoma as a result of auto- 124,161-69 (1972).a third, all of which were based upon the mobile whiplash injury in rear-end col-, 13. J. Caffey, The Whiplash Shaken Baby Syndrome: Manual Shaking by the Extremities With Whiplash-theory of shaken baby syndrome.4 In each lisions published by Dr, Ayub Ommaya Induced Intracranial and Intraocular Bleedings, Linkedcase, there was no other evidence about in 1968." With Residual Permanent Brain Damage and Mentalwhat happened and no evidence of earlier Retardation, Pediatrics 54,396-403 (1974). The shaken baby syndrome theory 14. A. Ommaya, W. Goldsmith, L. Thibault, Bio-ill treatment. The court rejected the claim was brought further attention by Dr. mechanics and Neuropathology of Adult and Pedi-that subdural hematoma and retinal hem- John Caffey in his 1972 article On the atric Head Injury, British Journal of Neurosurgery, 16(3):220-42 (2002). •orriiaging automatically lead to a conclu- Theory and Practice of Shaking Infants1 15. Caffrey, The Whiplash Shaken Baby Syndrome atsion of unlawful killing or injury. and his 1974 paper The Whiplash Shak- 403 (cited in note U). 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  36. 36. SHAKEN BABY SYNDROME I Continued This "extraordinary diagnostic con- reasonable person would expect injury. It results. Shaking, even with impact on tradiction" remains unresolved. Indeed, is extremely violent and clearly abusive. foam, could not produce enough force the lack of external evidence of trauma is A defendants claim of innocence often to cause brain injury, including subdural the most troubling aspect of the shaken fails in the face of the expert testimony hematoma." baby syndrome theory because it raises that the only way subdural hematoma Even Dr. Ommaya,. whose primate the obvious question: can an infant be and retinal hemorrhages can be caused studies were used by Caffey and Guth- shaken with sufficient force to cause (other than some extremely rare genetic kelch, confirms that shaking alone pro--brain-injury^ and4eave-no~externahevi" conditions) is _hroughrviolent shaking;— duces maximum—angular-acceleration^ dence of trauma? However, obvious questions arise. "well below thresholds for cerebral con _ Many articles and papers advanced Why is there no evidence of external cussion,(SDH (subdural hematoma), sub- in support of the shaken baby syndrome trauma? Why are there no grab marks on arachnoid haemorrhage, deep brain hae- the body? Why are there.no morrhages and cortical contusions."20 injuries to the infant neck, a structure that seems so Other causes of subdural weak and vulnerable? This hematoma Though shaken baby syndrome is Caffeys "extraordinary A variety of conditions known and is still embraced by the medical diagnostic contradiction." unknown can cause subdural hemato- Can an infant be shak- mas. For example, subdural hematomas establishment, some forensic en so violently as to cause are a known complication of childbirth.21 scientists sharply criticize the the shaken baby markers They can occur with no history of birth without any sign of. exter-. trauma and have even been described theory as rooted in anecdote, nal injury? The science of prenataly.22 Hemorrhages have been bad study, and speculation. biomechanics, the applica- found in 70 percent of infants who died tion of mechanical princi- from non-traumatic causes, some with pals to living organisms,. bleeding identical to cases presented as —: has studied this question, classic "Shaken Baby Syndrome."23 Experiments have called In a recent survey of asymptomatic• theory are based on anecdote and experi- into question the shaken baby syndrome newborns, 16 percent had subdural he- ence, The quality of such papers and ar- theory. matomas. Fully 26 percent had some ticles have been criticized in peer reviews In 1987 Ann-Christine Duhaime, form of intracranial bleed.24 There is and subsequent articles," Indeed, some et al" sought to quantify.the forces in- no suggestion that these children were research appears to refute basic princi- volved in manual shaking of an infant. abused. ples behind the theory, As a result, some Model dolls were constructed,fittedwith Older infants with external hydro- scientists and medical practitioners now accelerometers, and then shaken. cephalus commonly suffer subdural question the very existence of shaken The results demonstrated that shak- hemorrhages." Children with external baby syndrome. ing alone.could only generate about 25 16. M, Donohoe, Evidence-Based Medicine and percent of the angular acceleration need- Shaken Baby Syndrome Part I: Literature Review, Biomechanics ed to cause brain concussion and only 1966-1998, American Journal of Porensic Medicine and Pathology 24(3), 239-42 (2003). A demonstration of the force claimed about 7 percent of the angular accelera- 17. A. C. Duhaime, T. Gcnnarelli, L. Thibault,.D. to cause shaken baby syndrome has a tion required to cause subdural hema- Bruce, S. Margulies, R; Wiser; The Shaken Baby Syn- powerful effect. Imagine a full-grown toma. The authors concluded that "the drome, A clinical, pathological, and biomechanical study, Journal of Neurosurgery 66; 409-15 (1987). man shaking an infant back and forth angular acceleration and velocity associ- 18. Id at 414. with all of his might and as rapidly as ated with shaking occurs well below the 19. M, Prange, B. Coats, A. C. Duhaime, S. Margu- he can. The head flops back and forth injury range."" lies, Anthropomorphic simulations of falls, shakes, and inflicted impacts in infants, Journal of Neurosurgery 99, violently as the arms, legs, and torso are This result has since been replicated. 143-50 (2003). shaken like a rag doll. In 2003, Grange, et al, used more real-. 20. A. Ommaya, W. Goldsmith, L. Thibault, Biome- chanics and neuropathology of adult and pediatric head The force involved is such that any istic baby models and obtained similar injury, British Journal of Neurosurgery, 16(3):220-42 (2002). 21. S. Chamnanvanakij, N. Rollins, J. Perlman, Si _- dura! Hematoma in Term Infants, Pediatric Neurology 26(4), 301-04 (2002). 22. Id. 23. J. Geddes,R. Taskert, A. Hackshaw, C.Nickols, G. Adams, H. Whitweli, I, Scheimberg, Dura! haemor- rhage in non-traumatic infant deaths: does it explain the The lay science magazine Discover took up tie syndrome last December in its bleeding in shaken baby syndrome?, Neuropathology article Do$s t/ie Shaken Baby Syndrome Really Exist7 In addition to reviewing and Applied Neurobiology 29,14-22 (2003). 24. C. Looney, et al, Intracranial Hemorrhage in As- the scientific debate, it discusses a Rantoul case in which charges against a parent ymptomatic Neonates: Prevalence on MR Images and Were ultimately dropped and includes quotes from Urbana lawyer and ISBA Relationship to Obstetric and Neonatal Risk Factors, member K.ris;ten Fischer Radiology, 242(2) 5 3 5 ^ 1 (2007). 25. P. McNeely, J. Atkinson, G. Saigal, A.. OGorman, The articlejs pp the Web at ^tpZ/discpvei nnagazine,corn/.2008/de c/02- J. Farmer, Subdural Hematomas in Infants with Benign does-shaken-baby-syhdrome-really-exist ,, . , " Enlargement of the Subarachnoid Spaces Are Not Pathognomonic for Child Abuse, American Journal of Neuroradiology, 27:1725-28 (2006).202 | ILLINOIS BAR JOURNAL | APRIL 2009 | VOL. 97
  37. 37. hydrocephalus are subject to spontane- retinal hemorrhages may be correlated chanicsBritish Journal of Neurosurgery, pediatric head injury, and neuropathology of adult and 16(3):220-42 ous subdural hematoma at a rate of up by a third factor - increased intracranial (2002). to 11 percent.26 pressure - not presumed shaking. 28. A. C. Duhaime, C. Christian, L. Rorke, R. Zim- To conclude that manual .shaking merman, Nonaccldental Head Injury England Journal "Shaken-Baby Syndrome," The New in Infants - The Other causes of retinal causes both subdural hematoma and of Medicine, 338(25):1822 - 1829 (1998). J. Geddes, hemorrhages retinal hemorrhage because they occur G. Tolberr, Paroxysmal coughing, subdural and retinal bleeding: a computer modeling approach, Neuropa- Proponents of shaken baby syn- together in instances where it is theorized thology and Applied Neurobiology 32, 625-34 (2006)._ d___n_"argue~that~ret_mHiemo_r_ages~ -that-manual-shaking Tiasoccurred-is-to- —29-_-MullerrJ—De-kj-Intraoculai^and-oplic-nerve— sheath hemorrhage in cases of sudden intracranial hy- are caused by mechanical traction on construct a circular argument that fails pertension, Journal of Neurosurgery 41,160-66 (1974). the optic nerve and retina during shak- in its proof because the truth of what it A. Ommaya, W.,Goldsmith, L. Thibauit, Biomechanics ing.27 However, the exact cause of retinal seeks to prove is assumed. and neuropathology of adult and pediatric head injury, British Journal of Neurosurgery, 16(3):220-42 (2002). 28 hemorrhages remains unknown. There R. Uscinski, Shaken Baby Syndrome: fundamental appears to be a relationship to increased Biomechanics and the neck questions, British Journal of Neurosurgery, 16(3): 217- 19 (2002). intracranial pressure, which has been If an act of manual shaking is suffi- 30. J. Piatt, A pitfall in the diagnosis of child abuse: 2 known for decades. Extensive, bilateral. ciently violent to cause subdural hemato- external hydrocephalus, subdural hematoma, and reti-. retinal hemorrhages that in other con- ma and retinal hemorrhaging, how then rial hemorrhages, Neurosurgical Focus, 7(4): Article 4, (1999). texts could lead to diagnoses of shaken does the violently shaken infant escape 31. J. Baum, C. Bulpitt, Retinal and Conjunctival baby syndrome have been described in serious neck injury? Haemorrhage in the Newborn, Archives of Disease in cases of external hydrocephalus.30 The mechanical limitations of the in- Childhood 45,344-49 (1970). in Imaging Nonacclden- 32. P. Barnes, Ethical Issues Retinal hemorrhages are common. fant neck can be determined. In 2005, tal Injury: Child Abuse, Topics in Magnetic Resonance Approximately 30 percent of children are Dr. Faris Bandak performed biomechani- Imaging 13(2), 86-93 (2002), H. Gardner, A Witnessed born with them.3 Since children are not cal research on infant shaking and its Short Fall Mimicking Presumed Shaken Baby Syn- drome (Inflicted Childhood Neurotrnuma), Pediatric routinely screened for retinal hemorrhage, consequences dn the head-neck-to deter- Neurosurgery 43, ,433-35 (2007). Geddes and Talberr, there is no good data regarding their rate mine if it is possible for the infant neck Paroxysmal coughing at 625-34 (2006) (cited in note 24). M, Goetting, B. Sowa, Retinal Hemorrhage after of occurrence for older infants. However, , to withstand Shaken Baby Syndrome der Cardiopulmonary Resuscitation in Children: An Etio- the fact that they are common and relat- fined levels of head accelerations without logic Reevaluation, Pediatrics 85(4), 585-88 (1990). ed to many other conditions, known and injury.36 The study concluded that cervi- P, Lantz, Researchers Say Criterion for Diagnosing Child Abuse Not Always Accurate, Science Daily, 02- unknown is well documented.32 cal spine or brain stem injuries, perhaps 26-2006. P. Lantz, S, Sinai, C. Stanton, R. Weaver, Evi- even lethal injuries, would occur "at dence based case report, Perimacuiar retinal folds from Concurrence of subdural levels well below those reported for the childhood head trauma, British Medical Journal 328, 754-56 (2004). hematoma and retinal Shaking Baby Syndrome."37 Peer review 33. Duhaime, et al, Nonaccldental Head Injury at 38 hemorrhage of this work is supportive. 1822-29 (cited in note 24). 34. Muiler and Deck, Intraocular and optic nerve at Retinal hemorrhage and subdural he- 160-66 (cited in note 25). . matoma are found together, at reported Conclusion 35. Uscinski, Shaken Baby Syndrome at 217-19 (cit- ed in note 25), rates of 65-95 percent,33 However, the No one would disagree that the pro- 36. E Bandak, Shaken baby syndrome: a biomechan- relation, if any, between these two condi- tection of innocent children is a laudable ics analysis of injury mechanisms, Forensic Science In- tions remains unproven. goal. However, this protection must be ternational, 151(1): 71-79 (2005). 37. Id. Proponents of shaken baby syndrome grounded in reproducible scientific con- 38. Geddes and Talbcrt, Paroxysmal coughing at assert that manual shaking causes these cepts. We have an obligation to put sci- 625-34 (2006) (cited in note 24). R. Uscinski, Shaken Baby Syndrome: An Odyssey, Neural Med Chir (To- conditions. However, the cause(s) of reti- ence to the test lest the innocent become kyo) 46,57-61 (2006). nal hemorrhages, as already noted, is un- victims themselves. known, with several theories postulated The history of medicine isfilledwith but none proven. unwise and unfortunate diagnostic ap- Both subdural hematoma and retinal proaches and failed theories .of causa- hemorrhage can appear at birth or from tion, healing, and disease. Until we learn multiple non-traumatic causes. To argue all that there is no know about all aspects that they are causally related to manual of medical science, such failures are to be shaking goes beyond the evidence. They expected and represent a normal course may be related as a result of a third or of learning. even multiple different causes as yet un- As attorneys we are not only advo- determined. cates, we are an integral part of the le- For example, there is a body of re- gal system, a system engaged in the truth search that asserts that retinal hemor- seeking process. Justice is served when we rhages are caused by increased intracra- are open to considering well-grounded www.cafepress.com/isbawebboutique nial pressure.31 Further, subdural hema- research, even when it challenges long- toma is a competent medical cause for established theories, • increased intracranial pressure.35 Therefore, it follows that subdural he- 26. J, Piatt, A pitfall in ihe diagnosis of child abuse: external hydrocephalus, subdural hematoma, and reti- matoma, from whatever cause, may also nal hemorrhages, Neurosurgical Focus 7 (4): Article 4, ipjfjMcHasi^liyj^^lJjnS^ be associated with retinal hemorrhage. .(1999). l___r_Eern!^|J$ei^|^[Ti9i|i0$j In other words, subdural hematoma and 27, A. Ommaya, W. Goldsmith, L. Thibauit, Siome- VOL. 97 I APRIL 2009 | ILLINOIS BAR JOURNAL | 203
  38. 38. Page 2 of 55Westlaw.87 WAULR 1 Page 187 Wash. U. L. Rev. 1 Washington University Law Review 2009 Article *1 THE NEXT INNOCENCE PROJECT: SHAKEN BABY SYNDROME AND THE CRIMINAL COURTS Deborah Tuerkheimer [FNal] Copyright (c) 2009 Washington University; Deborah Tuerkheimer Eveiy year in this country, hundreds of people are convicted of having shaken a baby, most often to death. In a pro-secution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the de-fendant caused the infants death by shaking, and that the shaking was sufficiently forceful to constitute depraved indif-ference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely onthe presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundationsof thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluationsof the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge.This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions con-tinue to be affirmed, and new prosecutions commenced, as a matter of course. *2 This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The concep-tual implications of the inquiry-for scientific engagement in laws shadow, for future systemic reform, and for our under-standing of innocence in a post-DNA world-should assist in the task of righting past wrongs and averting further in- justice. Table of Contents I. Introduction 2 II. The Age of SBS 9 III. Scientific Evolution 10 A. Flawed Science 12 B. Shifted Consensus 16 1. The Myth of Pathognomony 17 i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs^ 5/11/2010
  39. 39. Page 3 of 5587 WAULR 1 Page 287 Wash. U. L. Rev. 1 2. Lucid Intervals 18 3. Removing the Shaking from the 19 Syndrome IV. SBS and the Law 22 A. Investigation and Prosecution 26 1. Prosecutorial Training 28 2. Caregiver Accounts 30 3. Reification 32 B. Evidentiary Challenges 32 C. Jury Verdicts 37 D. Insufficiency Claims 41 E. Post-Conviction Proceedings 48 I.Edmunds 48 2. Beyond Edmunds 51 V. Conclusion 56 I. Introduction Natalie Beard died on October 16, 1995. [FN1] That morning, her mother had brought the seven-month-old to thehome of her day care provider, Audrey Edmunds. [FN2] The baby was by all accounts fussy. [FN3] According to thecaregivers account, shortly after the baby was delivered to her, Edmunds *3 propped Natalie in her car seat with a bottle,[FN4] left the room, and returned a half-hour later to discover her limp. [FN5] Edmunds-herself a mother-immediatelycalled 911 to report that Natalie appeared to have choked and was unresponsive. [FN6] Rescue workers respondedminutes later and flew the baby to the hospital, where she died that night. [FN7] Prosecutors charged Edmunds with murder based on the theory that Natalie had been shaken to death. [FN8] No wit-ness claimed to have seen the defendant shake the baby. [FN9] There were no apparent indicia of trauma. [FN 10] Ed- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http ://web2 .westlaw. com/print/printstream. aspx?rs=WLWl 0.04&destination=atp&prft=H... 5/11/2010

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