by Susan Jackson Balliet and Erin Hoffman Yang
From depositions and Daubert[1] hearings in a Kentucky case out of Greenup County,[2] it has emerged that Shaken Baby Syndrome (SBS) has disintegrated into three separate theories, and two out of three are no good. First, there is the old SBS theory, that shaking alone can cause subdural hematoma and retinal hemorrhaging. This old SBS theory has fallen from favor and is no longer accepted as valid within the scientific community. There is no reported case rejecting the theory, but the Commonwealth’s experts in the Greenup case admitted the theory is no longer considered valid and declined to rely on it. Second, there is a newer, emerging SBS theory that the injuries are caused by shaking plus hard impact. This second theory has some case support and stronger science behind it, as acknowledged in the Greenup case. Finally, third, there is the most recent, least tested, least litigated theory, that subdural hematoma and retinal bleeding can be caused by shaking plus impact with a soft surface leaving no visible injuries. The Greenup court rejected this third theory, and ruled that because there were no visible external injuries in the two cases presented, no SBS opinion evidence would be allowed. The Commonwealth’s appeal of the ruling is pending.
The good news out of Greenup County is that the vast majority of reported SBS cases deal with the old, discredited shaking alone theory,[3] and are now completely irrelevant. Only a few cases address the new, shaking plus hard impact theory, which applies only to cases involving obvious, severe injuries.[4] And there is not a single reported case that deals with the Commonwealth’s latest, emerging SBS theory, that shaking plus impact with a soft surface leaving no significant visible injuries can cause subdural hematoma or retinal hemorrhaging.
In the Greenup cases, there was only a hint of evidence that shaking plus impact with a soft surface –like a mattress—could possibly cause SBS injuries. One expert, Dr. Ann-Christine Duhaime, opined that shaking together with impact with a soft surface leaving no visible injuries might cause SBS, and the treating physician, Dr. Phillip Scribano, testified that evidence of impact might show up later in an autopsy. There were a few case studies that were “suggestive.” But the scant evidence supporting the Commonwealth’s SBS soft impact theory was overshadowed by emerging studies indicating that it is impossible to generate sufficient velocity by shaking alone to cause SBS,[5] and the new Japanese studies that indicate retinal bleeding can be caused by bleed-through from an earlier hematoma. In published studies, the Commonwealth's own expert opined that there are critical gaps in the medical community's understanding of traumatic brain injury.[6] According to the Commonwealth’s own witness, Scribano, “The problem in 2006 is that we don’t have enough science….”
Shaken Baby Syndrome is a Daubert question, and not a matter of simple medical “causation.”
The Commonwealth argued in Greenup that SBS wasn’t a Daubert issue because any doctor can get on the stand and diagnose Shaken Baby Syndrome as a simple matter of “medical causation.” But the Kentucky Supreme Court has held that when the substance of testimony is “beyond the mere observational or perceptional capability of any mere lay witness,” and where the “substance” of testimony requires “considerable knowledge, training, and experience,” under KRE §702 the Commonwealth must qualify both the subject area (i.e., the “substance”) and the witness under Daubert:
… the Commonwealth asserted [Maiden] was a lay witness. The substance of his testimony, however, is contrary to this assertion and beyond the mere observational or perceptional capability of any mere lay witness. The substance of Maiden's testimony clearly required considerable knowledge, training, and experience, and thus, the Commonwealth was required to first qualify him as an expert witness.[7]
In Dougherty, the subject was blood spatter, i.e., a relatively simple matter of the physics of dispersing liquids. And the proposed witness was a sheriff, who had probably seen a lot of crime scenes, and a lot of blood. Yet our high Court reversed in Daugherty, because it found that even the relatively simple topic of blood spatter was beyond a lay witness’s expertise. SBS is far more complex than blood spatter, i.e., an evolving medical sub-speciality, in the over-lapping fields of medical diagnosis and biomechanics. Understanding SBS requires expertise in medicine, pediatric biology, biomechanics, and physics, i.e., a comparison of an infant’s symptoms with the effects of various rotational velocities, accelerations, and varieties of impact. SBS is no topic for a lay witness.
There are cases that say doctors can testify to simple matters of medical causation. But these cases tend to deal with a far less complicated question.[8] It doesn’t take much science to figure out that a vaginal tear could be caused by insertion of a foreign object, and it is no surprise that no one raised a Daubert challenge to the medical “causation” opinion in such cases. It is also no surprise that there was no Daubert challenge in another common-sense case, Hicks’ Adm’x,[9] where a nurse who disobeyed orders to hold an unconscious patient’s chin up caused his strangulation. These cases stand for the limited proposition that when causation is obvious, and no one challenges opinion testimony, the courts tend to admit it without Daubert testing.
But when there is a challenge, expert opinion evidence (including medical “causation” evidence) is only admissible if it meets relevancy requirements under KRE §401 and Daubert. As stated in Stringer, medical causation opinion is admissible only:
… so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of [Daubert], (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702.[10]
Once you get the court to agree it’s a Daubert issue, the next problem is convincing the court that the Commonwealth bears the ultimate burden of proving Shaken Baby Syndrome is relevant and reliable.
Placing the burden on the defendant violates Daubert.
According to Footnote 20 in Daubert the proponent of so-called scientific evidence must bear the burden of proof, and the level of proof is a preponderance.[11] Despite this clear directive, Kentucky has adopted an opposite rule, requiring the opponent of a long list of so-called “scientific” evidence to bear the burden of proof.[12] Kentucky’s practice of grandfathering “presumptively valid” so-called scientific specialities by taking judicial notice that they are already considered valid under Daubert (often based on their previous acceptance under the old Frye[13] standard) and then shifting the burden to the opponent to prove unreliability violates footnote 20 in Daubert. Kentucky’s burden-shifting rule should be vigorously challenged.
The burden shift should definitely be challenged when applied to any type of so-called science that is not listed in Johnson, and not otherwise accepted in Kentucky as reliable. SBS is not one of the “presumptively valid” scientific theories judicially noticed in Johnson. Kentucky’s appellate courts have never ruled that any SBS theory, old or new, is valid science, and have never considered under Daubert a fact situation where there is no significant evidence of any injury or abuse apart from retinal hemorrhaging and subdural hematoma.
Arguably Stringer requires defendants to meet only an initial burden of coming forward with some evidence in order to show that an objection to SBS is not frivolous. After that initial burden is met, then, in accord with footnote 20 in Daubert—the trial court must require the Commonwealth to bear the burden of establishing the admissibility of SBS evidence by a preponderance. According to the Daubert experts who wrote the encyclopedic reference, Modern Scientific Evidence, that is the “correct solution”:
The confusion in Daubert hearings is perhaps understandable, because the first voice heard is that of the opponent of proffered expert testimony. This has given some lawyers and judges the impression that the opponent has the burden of convincing the court that the witness does not meet Daubert’s requirements. This impression may be all the more compelling when the expertise being challenged is a type that has become familiar to the courts. But the correct procedure is the opposite of that.
The opponent of expert evidence need only make a showing sufficient to convince a trial court that the objection to the evidence is not frivolous; this triggers a Daubert hearing under Rule 104(a). In a Rule 104(a) hearing on the question of the admissibility of expert evidence, ‘These matters should be established by a preponderance of proof.’[cite to Daubert omitted] The proponent has the initial burden of production and the ultimate burden of persuading the court that the proffered expert evidence satisfies Rule 702.[14]
In the Greenup County cases, the circuit court ruled that it would not allow opinion on SBS except in a case where there was some actual, physical evidence of abusive impact. In other words, while rejecting SBS theories one and three, the court recognized that theory two, shaking plus impact (hard surface) meets Daubert. But since the doctors agreed there was no significant evidence of hard impact, SBS theory two (shaking plus hard impact) was irrelevant to the facts presented. In the end, the Greenup court excluded SBS (shaking plus hard impact) opinion evidence on relevance grounds.
The Kentucky Supreme Court is moving away from judicial notice and the old Frye cases.
A recent Westlaw search produced 982 cases containing the phrase “Shaken Baby Syndrome.” But even though the Kentucky Supreme Court might once have relied on these (mostly) old Frye cases to support judicial notice of the reliability of SBS, since taking that approach in Johnson[15] our high Court has backed away from judicial notice as a proper method for recognizing a new “science.” Indeed, reliance on old Frye cases proved risky. Just one year after Johnson, the national Innocence Project exonerated a Kentuckian by proving that microscopic hair analysis –judicially noticed in Johnson as reliable—is in fact unreliable:
[Gregory’s] conviction was vacated in 2000 after DNA tests established that the sole physical evidence linking [Gregory] to either of the crime scenes-several hairs-could not have come from [Gregory]. All charges against [Gregory] were dismissed on August 25, 2000, after [Gregory] had spent more than seven years in custody.[16]
DNA testing proved that the hair in Gregory’s case was not Gregory’s and –contrary to the old Frye cases the Johnson Court relied on— it turned out to be unreliable.
Given that the bulk of the reported cases deal with the now discredited “shaking alone” SBS theory, or the “shaking plus hard impact” theory, it seems unlikely that our high Court would judicially notice old, irrelevant cases in order to validate a newer, untested sub-theory of SBS. Indeed, in Fugate, while the Court approved RFLP and PCR methods of testing DNA, it did not use judicial notice to approve the relatively untested sub-method of mitochondrial DNA testing, and still has not approved this newer method.
The Court’s more recent decision in Ragland embodies the Court’s post-Johnson approach, which focuses not on judicial notice, and not on old outdated cases, but on scientific data, research and testing.[17] Ragland moves Kentucky beyond Fugate and Johnson by mandating consideration of underlying scientific reliability. Implicitly rejecting Johnson, the Ragland Court found lead bullet analysis was completely unreliable without citing Johnson, and without paying any attention to all the old Frye cases upholding ballistics.
Ragland represents a significant retreat from the judicial notice approach of Fugate and Johnson and a closer adherence to Daubert.[18] Contrary to Johnson (which found “ballistics” scientifically reliable based entirely on past Frye cases), the Court in Ragland specifically states that past cases admitting lead bullet analysis are “not the equivalent of scientific acceptance, owing to the paucity of published data, the lack of independent research, and the fact that defense lawyers have generally not challenged the technique.”[19] In Ragland, the Kentucky Supreme Court noted that for lead bullet analysis “[a]dditional testing would be needed to fully satisfy the Daubert/Kumho testing requirement.”[20]
Similarly, 982 Westlaw cases mentioning SBS “are not the equivalent of scientific acceptance, owing to the paucity of published data, [and] the lack of independent research.” Additional testing is needed before the two Shaken Baby Syndrome theories rejected by the Greenup court (shaking alone, and shaking plus impact leaving no visible injuries) will satisfy KRE §401 and Daubert. We need to keep a careful watch on all “Shaken Baby” cases, to see which sub-theory the Commonwealth is advancing. Shaken Baby Syndrome, like Humpty Dumpty, has fallen down and broken into little pieces. We need to challenge the Commonwealth any time it attempts to introduce Shaken Baby Syndrome opinion evidence, keep an eye on which sub-theory is presented, and demand full Daubert hearings.
[1] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“general acceptance” is not a necessary precondition to admissibility; trial judge must ensure that any and all scientific evidence is both relevant and reliable.)
[2] Kudos to Assistant Public Advocates Samuel Weaver and Amy Craft, who won the extensive Daubert proceedings on SBS in Greenup Circuit Court, relied on as the basis for this article.
[3] E.g., Johnson v. State, 933 So.2d 568 (Fla. 2006), and State v, McClary, 541 A.2d 96 (Conn. 1988).
[4] See, Minor v. State, 914 So.2d 372, 384 (Ala. 2004) (victim had skull fracture, organ damage and rib fracture); Deese v. State, 786 A2d 751 (Md. 2001) (victim had broken leg, bruises, old and new wounds, case decided under Frye standard); State v. Carrilo, 562 S.E.2d 47 (N.C. 2002); Ray v. State, 838 N.E.2d 480 (Ind. 2005) (victim had bruises and bone fractures); Steggal v. State, 8 S.W.3d 538 (Ark. 2000) (victim endured extensive skull fractures, rib fractures, and forearm fractures).
[5] Faris A. Bandak, Shaken Baby Syndrome: A biomechanics analysis of injury mechanisms, Forensic Science International 151 (2005) 71-79; and Ann-Christine Duhaime, M.D., et al., The Shaken Baby Syndrome; A clinical, pathological, and biomechanical study, in J. Neurosurg 66:409-415 (1987), and Head Injury in Very Young Chilrden: Mechanisms, Injury Types, and Ophthamologic Findings in 100 Hospitalized Patients Younger than 2 Years of Age, in Pediatrics (1992).
[6] Pathobiology and Biomechanics of Inflicted Childhood Head Trauma, Susan B. Marguiles, PhD and Betty S. Spivack, pg. 222, 228-229.
[7] Dougherty v. Commonwealth, 2006 WL 3386576. There is no published opinion on point.
[8]Richardson v. Commonwealth, 161 S.W.3d 327 (Ky. 2005) (Spivack permitted to testify to hymenal injury); Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky. 1992) (vaginal tears); Pevlor v. Commonwealth, 638 S.W.2d 272 (Ky. 1982) (vaginal tears).
[9] Hicks’ Adm’x v. Harlan Hospital, 21 S.W.2d 125 (Ky.App. 1929) (nurse failed to follow orders)
[10] Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997)(also a vaginal injury case).
[11] Daubert, 509 U.S. at 593 n. 20.
[12] Florence v. Commonwealth, 120 S.W.3d 699, 703 (Ky. 2003); see also, Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999) (recognizing RLFP and PCR types of DNA testing); and, Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999) (recognizing hair analysis, breath testing to determine blood alcohol content, HLA blood typing to determine paternity, fiber analysis, ballistics analysis, and fingerprint analysis).
[13] Frye v. United States, 293 F.1013 (D.C. Cir. 1923).
[14] David L. Faigman et al., Modern Scientific Evidence, Vol. 1, at 26 (2006-2007 Ed.).
[15] Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999)
[16] Gregory v. City of Louisville, 444 F.3d 725, 731 (6th Cir. 2006) (police officers and forensic experts not immune from §1983 actions by exonerated prisoners).
[17] Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006)
[18] Cf., dissent in Johnson, 12 S.W.3d at 267-268 (Justice Stumbo, joined by Justice Lambert)
[19] Ragland v. Commonwealth, 191 S.W.3d at 579.
[20] Ragland v. Commonwealth, 191 S.W.3d at 578.
