2. 5/12/2010
SBS Is A MYTH
o 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. 5/12/2010
SBS Is A MYTH
o 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 SHAKEN
o Neck/Spine injuries
o ShaMng Marks
o Finger marks
o Bruises
o Nail marks
o
5. 5/12/2010
MANY THINGS CAUSE RETINAL
HEMORRHAGES
o The number and location of retinal hemorrhages
aren't 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
1
o 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 BRUISING
o 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. 5/12/2010
USING
DAUBERT TO CHALLENGE SBS
o Goal: To block testimony about SBS, and to
preclude govt's 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 SBS
o Forensic Pathologist
o Biomechanics
o Radiologist
o Pediatric Neurologist
oEtc.
o Dr. Posey (800-620-4644)
o National Child Abuse Defense & Resource Center
http://www.falseallegation.org/
DISCOVERY & INVESTIGATION
o Pre-natal records
o Birth records
o Post-birth health records
o Hospital policy records
1
o Ambulance emergency records
1
o False confession issues
o Child suggestibility issues
o
7. 5/12/2010
ASSIMILATIVE CRIMES
o 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. Shaken Baby Experts
Bill Massello (Bismark) Cannot review any cases at this time, due to his current position
701-328-6154
Avsncinfp Mpdical Kxaminpr in Miami-Dade dountv MK Dent
1865 NE 214 Terrace • Interested in reviewing case at NO CHARGE
Miami, FL 33179 • If needed for testimony will charge
PHONE: 305-527-9535 • CV available
Mshumanmd(o),netzero. net
George Nichols (Louisville) Number has been disconnected-no longer in service
502-499-0077 • Currently researching Internet for a valid number
Ed Willey Private Practice of forensic medical and pathological evaluation
6727 1st Ave. South • Interested and available to review case
Suite 204 • When informed of injuries sustained by V, stated that these injuries
St. Petersberg, FL 33707 are not necessarily caused by shaking
PHONE: 727-345-2907 • Charges $250/hour
• CV available
Shaku Teas (Chicago) Not available to review case until July or August - backlogged with
708-366-4389 other cases
cell: 708-415-8074 • Charges $325/hour to review and consult with attorney
• $375/hour to testify; and $3,500.00 if involves overnight stay
• Will forward CV for future purposes
Dr. Patrick Barnes Pediatric Neuro-radiologist
Dept. of Radiology
Lucile Salter Packard Children's
Hospital
Stanford Univ. Med. Ctr.
725 Welch Road
Palo Alto, CA 94304
PHONE: 650-407-8601
David M. Posey, M.D. Forensic and neuropathologist
Glenoaks Pathology Medical
Group, Inc.
2222 Foothill Boulevard
Suite E-565
La Canada, CA 91011
PHONE: 818-249-1911
posev(3),vel.net
9. Shaken Baby Experts
Chris Van Ee, Ph.D. Injury biomechanics expert
Senior Biomechanical Engineer Highly recommended by several lawyers, the National Child Abuse
Design Research Engineering Defense Resource Center, and Dr. Posey, internationally renowned
46475 DeSoto Ct. expert (we have copy of CV) and has a substantial lab to do state of
Novi, MI 48377 the art testing using crash test dummies.
PHONE: 248-668-5533
chrisv(2),dreng.com
John Jerome Plunkett, M.D. He is a pathologist and an expert on head injuries.
13013 Welch Trail
Welch, Minnesota 55089
PHONE: 507-263-4022
10. COMMONWEALTH OF KENTUCKY
GREENUP CIRCUIT COURT
CASE NO. 04-CR-205
COMMONWEALTH OF KENTUCKY PLAINTIFF
VS. ORDER AND OPINION
ME: DAUBERT HEARING
CHRISTOPHER A. DAVIS DEFENDANT
^^i^^*_!t^.^_^^*^*^>J_^^_|-^^^tJi^>j$^^_fe_4<**%^**sS:ij!4:*****^^****H!*>!!**'_:.
On September 19,2005, the Defendant, by and through counsel, filed a motion
for a Daubert hearing pursuant to KRE 104 and Daubert vs. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). In his motion the Defendant moved the
Court 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. 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______________>
child's 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 Commonwealth's 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 child's 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. 1968. He performed his internship at Bronx Municipal Hospital Center, Albert
Einstein University College of Medicine, inNew York from 1968 to 1969. He
performed his residency in neurological surgery, Georgetown University and
affiliated-Hospital from 1971-to-_9_7_5.__- —
Dr. Uscinski's experience included serving as a Medical Officer in the U.S. Navy
at Parris Island, South Carolina, and aboard the U.S. S. Thomas A. Edison (SSNB
610-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. Dr. Uscinski has made numerous presentations on the subject of shaken baby
syndrome including locations at Washington, D.C, London, England, andNara,
Japan. See Dr. Uscinski Curriculum Vitae, Defendant's Exhibit #1.
Dr. Uscinski testified that as a practicing neurosurgeon he became interested in
the subject of SBS because it directly affected his medical practice. As a result of his
interest, he began to survey the different medical publications that existed on the
subject of SBS. His study of the subject combined with his clinical practice led him to
the conclusion that based upon his training, education, and experience, and within a
reasonable degree of medical probability, there is insufficient proof in the medical
community that human beings can generate the required rotational acceleration by
manual 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. seem to be insignificant. There are no immediate symptoms, and retinal
hemorrhaging, 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 he
suggested that manual whiplash shaking of infants is a common primary type of
trauma in the so called battered infant syndrome. It appears to be the major cause in
these 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. Caffey's 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. 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. (Defendant's
Exhibit # 8)
Dr. Uscinski pointed out that the Ommaya experiment study produced injury to 19
out of 50 monkeys by seating them in a chair that accelerated whipping the monkey's
head back and forth. However, the experiment was preformed on monkeys instead of
humans 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. It
was suppose to illustrate that injuries could occur to primates through sheer acceleration
forces without any impact to the monkey's head.
Researchers in the Ommaya study produced an impact curve that predicted at
what level of acceleration the monkeys would start to experience brain injuries from the
sheer acceleration forces without any impact on the head. The researchers prepared an
impact curve and from it were able to tell at what levei of acceleration they observed
brain 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. proportion to their bodies. Researchers needed to conduct further research to make this
determination. Second, the researchers failed to take into account that in some cases the
monkeys hit their heads on the back of the "monkey seat" during the acceleration
process. Dr. Uscinski also pointed out whipping a head back due to acceleration forces
one time in an acceleration chair is a different kind of motion than shaking a child
repeatedly by holding onto the child's 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. (Defendant's 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. Dr. Uscinski pointed out Guthkelch's work was based on several case studies and
not a scientific examination using controlled experiments. In fact Dr. Guthkelch did not
do any experiments himself, he merely commented on, and suggested a possible
explanationfor the-case-studies-he c i t e d J & i _ _ i _ ^ ^
of Dr. Guthkelch's hypothesis was based on the flawed work of Dr. Ommaya. Dr.
Guthkelch's 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. (Defendant's
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. neck injury before it would receive a head injury simply because human shaking by a
human cannot generate the forces necessary to cause injury to the brain. The study went
on 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 are
not likely to occur from the shaking that occurs during play, feeding, or in a swing, or
even from the more vigorous shaking given by a caretaker as a means of discipline.7'
Duhaime, supra.
A second biomechanics study was conducted by Faris A. Bandak in 2004 and
reported in 2005 in the professional magazine Forensic Science International, Shaken
baby syndrome: A biomechanics analysis of injury mechanism. (Defendant's 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. confirmation based on studies conducted by Japanese researchers who have a great deal
of 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 Badak's neck force estimations, we question the resolute
tenor of Bandak's 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.
(Defendant's 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. (Defendant's Exhibit # 14)
10
20. After discussing his review of the different reported studies on SBS, Dr. Uscinski
testified that considering the latest evidence, we must look at the "unexplained head
injury" in a different light. Dr. Uscinski testified that trivial head impact after a fail of as
little as 3 feet results in the same impact as hitting a hard surface at 9 miles per hour
which is more than twice that necessary to fracture the skull of an infant. His point was
that what seems like trivial head impacts for an infant, like falling off of a bed or out of a
chair, may result in a chronic subdural hematoma manifesting itself much later. He
pointed out that we should not jump to the conclusion that there has been parental
shaking.
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. (Defendant's Exhibit # 4) He concluded that, "some 32 years of cumulative
11
21. material yielded inadequate scientific evidence to establish afirmconclusion on most
aspects of causation, diagnosis, treatment, or any other matters pertaining to shaken baby
syndrome." Uscinski, supra. He also stated," it was impossible to determine with
scientific rigor what role shaking may have played in abusive head injury in these
reported cases. Finally, it was not possible from the case analyses to infer that any
particular 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 to
the head and body." Uscinski, supra.
The Commonwealth called Dr. Betty S. Spivack, MD to the stand to testify. She is
a forensic pediatrician with the Office of the Chief Medical Examiner located in
Louisville, 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
Children's Hospital of Buffalo from July 1979 to June 1982. She received a fellowship in
pediatric critical care at Children's Hospital of Buffalo from July 1982 to June 1984; and
a fellowship in forensic pediatrics from the Child Protection Program, Hasbro Children's
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. SBS including Patho biology and Biomecimnics of Inflicted Childhood Neurotrauma by
Susan S. Margulies, PhD, and Betty S. Spivack, MD. (Commonwealth's Exhibit # 11)
Dr. Spivack testified in the form of a PowerPoint presentation. (Commonwealth's
Exhibit #10) She entitled her presentation "The Biomechanics of Abusive Head
Trauma" and outlined the history of research in the area of Shaken Baby Syndrome. She
then 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. injury caused SDH or other intracranial pathology. "However, previous studies do not
consistently 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 tissue's 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. Dr. Spiveck testified that one question lead to another, and that a lot of research was
currently ongoing in the area of SBS.
Dr. Spiveck also testified that history plays a significant role in assisting a doctor
diagnose 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 Commonwealth's 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. 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 expert's opinion or inference.
The "preliminary assessment" that a trial judge must make is a "a flexible
one" that requires the judge to focus "solely on principles and methodology, and not on
the conclusions that they generate." The Kentucky Evidence Law Handbook/A Edition),
Lawson, Robert G., (LexisNexis, Matthew Bender, 2003). The assessment the court must
make 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. initiated. Caffey even stated that his conclusions were, "manifestly incomplete
and largely circumstantial." Caffey, supra.
In 1968 Ommaya conducted studies upon rhesus monkeys for the purpose
of trying to assess injuries for whiplash for humans in automobile collisions.
Ommaya concluded that when the monkey was placed in an acceleration chair
that injury to 19 of 50 monkeys sustained head and neck injuries without
significant 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 SBH's (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. 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 haemorrhage in battered children
as 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 Guthkelch's work
was based on several case studies and not a scientific examination using
controlled experiments. Furthermore, Guthkelch leaned heavily on Ommaya's
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. 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 or
other injury. Further research must be conducted in the area of biomechanics of
babies. '_
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. A correlation in mathematics does not imply cause and effect.
Mathematical correlations are numbers between -1 and +1 that describe when one
event occurs, then, another event will follow. A positive correlation means that
when 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 that
another 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 teacher's
salaries, we must increase beer drinking? Certainly not! Teacher's 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. There can be little doubt that some testing has been accomplished by
researchers, however, their conclusions tend to point to shaking alone without
impact does not cause the subdural hematoma or retina bleeding. The research is
not yet completed and no definitive conclusions have been reached.
The physicians, on the other hand, use a subdural hematoma and bilateral
retinal bleeding as criteria for diagnosing abuse in the form of SBS. Dr. Spivack
made it clear that physicians currently use this diagnostic criterion. These
classical markers of diagnosing an infant brain are certainly in the realm of
physician's 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. subdural hematoma and bilateral ocular bleeding absent any manifest injuries
such as bruising and broken bones.
There is no known or potential rate of error in the studies that have been
completed. Some studies have been conducted in accordance with established
scientific protocols rending their conclusions useful in the area of SBS. However,
other studies are merely educated guesses as to the cause of SBS based upon
empirical studies, anecdotal cases, and advise to the public based on common
sense.
The existence and maintenance of standards controlling the study of SBS
certainly 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. and other manifest observable injuries such as broken bones, bruises, etc. To
allow a physician to diagnose SBS with only the two classical markers, and no
other evidence of manifest injuries, is to allow a physician to diagnose a legal
conclusion. If the physician has the two classical markers (subdural hematoma
and bilateral ocular bleeding) coupled with other manifest injuries, then the
diagnosis arises to more than a legal conclusion—it becomes a medical opinion.
The Court can only conclude that SBS has not gained wide or general
acceptance 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 child's 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. Therefore, the Court orders and holds that neither party may call a witaess
to offer an expert opinion that a baby has received injuries as a result of being
shaken, unless there exists clinical evidence of at lease one subdural hematoma,
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 actually
occurred.
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. A Critical Look at the By Roger H. Kelly and Zachary M. Bravos
Shaken Baby Syndrome
Recent research shows that factors other than abuse may be the cause
of 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_nju'ries%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. 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- Crown's 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 expert's 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 (Sup
controversy regarding the shaken baby made. Ct Australian Capital Territory, Canberra), 2002 WL
syndrome 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. Injury
2005, 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 Children
for 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, Linked
case, there was no other evidence about in 1968." With Residual Permanent Brain Damage and Mental
what 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 Infants'1 15. Caffrey, The Whiplash Shaken Baby Syndrome at
sion of unlawful killing or injury. and his 1974 paper The Whiplash Shak- 403 (cited in note U).
VOL. 97 | APRIL 2009 | ILLINOIS BAR JOURNAL I 201
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 defendant's 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 Caffey's "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.. O'Gorman,
The articlejs pp the Web at ^tp'Z/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. 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, 3'38(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.3'1 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-
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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 infant's 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 on
the 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 foundations
of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations
of 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 law's 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
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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 the
home of her day care provider, Audrey Edmunds. [FN2] The baby was by all accounts fussy. [FN3] According to the
caregiver's 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-immediately
called 911 to report that Natalie appeared to have choked and was unresponsive. [FN6] Rescue workers responded
minutes 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.
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