Wolfe, Jennifer Banner

PD-0292-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/17/2015 4:35:05 PM

Accepted 12/18/2015 8:08:53 AM

ABEL ACOSTA

IN THE COURT CLERK

OF CRIMINAL APPEALS OF TEXAS

JENNIFER BANNER WOLFE, §

APPELLANT §

§

V. § PD-0292-15

§

THE STATE OF TEXAS, §

RESPONDENT §

December 18, 2015

§ § §

STATE'S MERIT BRIEF

§ § §

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney

Chief, Post-Conviction

TANYA S. DOHONEY

Assistant Criminal District Attorney

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687 FAX (817) 884-1672

State Bar No. 02760900

ccaappellatealerts@tarrantcountytx.gov

LISA C. MCMINN,

State Prosecuting Attorney

SUBJECT INDEX

SUBJECT INDEX ....................................................................................... ii

INDEX OF AUTHORITIES .......................................................................... v

STATEMENT OF THE CASE ..................................................................... 1

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2

STATEMENT OF FACTS ........................................................................... 2

SIGNIFICANT SECONDARY RESOURCES ............................................ 14

ARGUMENT AND AUTHORITIES ............................................................ 15

I. A note about Appellant’s first ground for review ........................ 15

II. Applicable legal standards ........................................................... 19

III. The court of appeals correctly upheld the trial court’s

reliability ruling .............................................................................. 23

A. Acceptance and Literature factors .......................................... 24

Acceptance—the extent to which the underlying scientific

theory and technique are accepted as valid by the

relevant scientific community, if such a community can be

ascertained

Literature—the existence of literature supporting or

rejecting the underlying scientific theory and technique

ii

B. Qualifications and Application factors ..................................... 29

Qualifications—the qualifications of the expert(s) testifying

Application—the experience and skill of the person(s)

who applied the technique on the occasion in question

1. The pediatric neurologist ........................................................ 29

2. The pediatric opthalmologist ................................................... 30

3. The pediatric child abuse expert ............................................. 30

4. Differential diagnosis methodology ......................................... 33

C. Rate of Error—the potential rate of error of the technique....... 35

D. Other Available Experts—the availability of other experts

to test and evaluate the technique .......................................... 40

E. Clarity—the clarity with which the underlying scientific

theory and technique can be explained to the court ................ 40

IV. This Court should uphold both lower courts’ rulings ................. 40

CONCLUSION AND PRAYER .................................................................. 42

CERTIFICATE OF COMPLIANCE ............................................................ 43

CERTIFICATE OF SERVICE .................................................................... 44

APPENDIX A ..............................................................................................A

Sandeep Narang, M.D., J.D., A Daubert Analysis of Abusive

Head Trauma/Shaken Baby Syndrome, 11 HOUS. J. HEALTH L. &

POL'Y 505 (2011)

iii

APPENDIX B ..............................................................................................A

Sandeep Narang, M.D., J.D., John D. Melville, M.D.,

Christopher S. Greeley, M.D., James D. Anderst, M.D.,

Shannon L. Carpenter, M.D., & Betty Spivack, M.D., A Daubert

Analysis Of Abusive Head Trauma—Part II: An Examination Of

The Differential Diagnosis, 13 HOUS. J. HEALTH L. & POL'Y 203

(2013)

iv

INDEX OF AUTHORITIES

CASES

Bekendam v. State,

441 S.W.3d 295 (Tex. Crim. App. 2014) .................................... 21, 23

Davis v. State,

329 S.W.3d 798 (Tex. Crim. App. 2010) .......................................... 20

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) .................................................................passim

Ex parte Henderson,

384 S.W.3d 833 (Tex. Crim. App. 2012) .......................................... 27

Ex parte Robbins,

WR-73,484-02, ___ S.W.3d ___, 2014 WL 6751684

(Tex. Crim. App. 2014) ................................................. 22, 22n, 27-28

Ex parte Robbins,

360 S.W.3d 446 (Tex. Crim. App. 2011)

(J. Cochran, dissenting) ................................................................... 22

Kelly v. State,

824 S.W.2d 568 (Tex. Crim. App. 1992) ...................................passim

Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137 (1999) ........................................................................ 19

State v. Esparza,

413 S.W.3d 81 (Tex. Crim. App. 2013) ............................................ 35

Tillman v. State,

354 S.W.3d 425 (Tex. Crim. App. 2011) .............................. 20, 21, 23

Wolfe v. State,

459 S.W.3d 201 (Tex. App.—Fort Worth 2015) ........................passim

v

RULES

Tex. R. Evid. 702 ...............................................................................passim

Tex. R. Evid. 705 ...................................................................................... 21

TEX. R. APP. P. 9.4 .................................................................................... 43

OTHER AUTHORITIES

Gaurav Bhardwaj et al.,

A Systematic Review of the Diagnostic Accuracy of

Ocular Signs in Pediatric Abusive Head Trauma,

117 OPHTHALMOLOGY 983 (2010) ..................................................... 38

Harvey Brown & Melissa Davis,

Eight Gates for Expert Witnesses: Fifteen Years Later,

52 HOUSTON LAW REV. 1 (2014)........................................................ 47

A. Elstein & A. Schwartz,

Clinical Problem Solving and Diagnostic Decision Making:

Selective Review of the Cognitive Literature,

324 BRIT. MED. J. 729 (2002) ........................................................... 23

Clyde Haberman,

Shaken Baby Syndrome: A Diagnosis That Divides

the Medical World, N.Y.TIMES, Sept. 13, 2015,

at A1, http://nyti.ms/1MlkQ7g ........................................................... 26

E. Imwinkelried,

The Admissibility and Legal Sufficiency of Testimony About

Differential Diagnosis (Etiology): Of Under-and Over-Estimations,

56 BAYLOR L. REV. 391 (2004) .......................................................... 22

vi

J. Kassirer & F. Sonnenberg,

The Scientific Basis of Diagnosis,

TEXTBOOK OF INTERNAL MEDICINE (W.N. Kelley ed., 1989) ................. 23

Alex V. Levin et al.,

Clinical Report: The Eye Examination in the

Evaluation of Child Abuse,

126 PEDIATRICS 376 (2010) .............................................................. 38

S. Maguire,

Which Clinical Features Distinguish Inflicted from

Non-Inflicted Brain Injury? A Systematic Review,

94 ARCHIVES DISEASE CHILDHOOD 860 (2009) ................................... 36

Jakob Matschke et al.,

Nonaccidental Head Injury is the Most Common Cause of

Subdural Bleeding in Infants <1 Year of Age,

124 PEDIATRICS 1587 (2009) .......................................................... 38n

Sandeep Narang, M.D.,

A Daubert Analysis of Abusive Head Trauma/Shaken Baby

Syndrome,

11 HOUS. J. HEALTH L. & POL'Y 505 (2011) .................................passim

Sandeep Narang, M.D., J.D., John D. Melville, M.D., Christopher S.

Greeley, M.D., James D. Anderst, M.D., Shannon L. Carpenter, M.D.,

& Betty Spivack, M.D.,

A Daubert Analysis Of Abusive Head Trauma—Part II:

An Examination Of The Differential Diagnosis,

13 HOUS. J. HEALTH L. & POL'Y 203 (2013) .................................passim

STEDMAN’S MEDICAL DICTIONARY (28th ed. 2006) ........................................ 16

vii

IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

JENNIFER BANNER WOLFE, §

APPELLANT §

§

V. § PD-0292-15

§

THE STATE OF TEXAS, §

RESPONDENT §

STATE’S MERIT BRIEF

TO THE HONORABLE JUDGES OF

THE COURT OF CRIMINAL APPEALS:

Comes now the State of Texas, by and through her Tarrant County

Criminal District Attorney, and respectfully urges this Court to affirm the

decision of the Court of Appeals for the Second District of Texas.

STATEMENT OF THE CASE

A bench trial before the Honorable Louis Sturns culminated in

Appellant’s injury-to-a-child conviction. (1CR1: 274–76; RR8:4).

1

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

In February 2015, the Fort Worth Court of Appeals affirmed the trial

court in a published opinion authored by Chief Justice Livingston. Wolfe v.

State, 459 S.W.3d 201 (Tex. App.—Fort Worth 2015). Justice Walker filed

a dissenting opinion. Id. at 214 (J. Walker, dissenting). No one sought

rehearing. On September 16, 2015, this Court granted discretionary review

on Appellant’s two-ground petition. After one extension, the State timely

files her merit brief on or before December 17, 2015.

STATEMENT OF FACTS

Appellant raises two grounds regarding the Second Court’s upholding

the admission of expert witness testimony. Hence, the issues presented

relate to the implementation of the Supreme Court’s decision in Daubert

and its progeny. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993) (citations omitted). Appellant’s sole point of error before

the Fort Worth court focused on the reliability/admission of expert testimony

relating to Abusive Head Trauma [AHT]. Wolfe, 459 S.W.3d 201. This

appeal’s focus on the admission and reliability of expert testimony

necessitates a general summary of the evidence.

2

The seven-month-old victim suffered serious brain and eye injuries

while in Appellant’s care. Emergency medical personnel arrived at

Appellant’s behest to her residence where she ran an in-home daycare;

they found the infant unconscious, performed CPR, and rushed the little

boy to Fort Worth’s Cook Children’s Medical Center. RR4:38, 76. The

boy’s parents also arrived, only to learn their infant son needed immediate

brain surgery to stop the bleeding in his brain. RR4:62–63. Meanwhile, the

caregiver—Appellant—explained to the mother that her little boy had eaten

that morning, been crying and, when she set him down, he fell backward.

RR4:59–61. Surgery continued for several hours, and the child remained

hospitalized for nine days. RR4:64–65.

Backtracking to earlier events, the child’s mother had dropped him off

at 7:15 a.m. for daycare. RR4:55–57. Later, Appellant’s morning included

an unexpected trip to retrieve her daughter from school for illness-related

reasons; all the children went with Appellant on this unexpected trek.

RR4:119; RR5:140; RR9:SX34 [non-custodial statement]. When Appellant

returned home, she seated the child-victim on the floor and then retrieved

another child from her vehicle. She said the little boy fell back onto the

interlocking foam pads on the carpeted floor and cried. RR4:119–21, 212;

3

RR5:127, 140; RR9:SX34. Appellant explained that she told the child he

needed to sit up, sat him up again, and she stepped away to see a cake at

her decorating table. RR4:122; RR5:128–29,140–41 [SX34]. Appellant

said that the child fell back again and went silent while she was looking at

the cake; after about thirty seconds, Appellant came closer to the boy and

realized he was limp. RR4:122; RR5:128–29.

Appellant made a voluntary statement to a child abuse detective;

when the officer said he thought her account was inconsistent with the

child’s injuries, Appellant spoke with her husband and then supplemented

what she had written. RR5:101–02, 145–46; RR6:5–11, 17–20. She

added: "When I set [the boy] down, it was possibly hard. I do not

remember shaking him. I picked him up, sat him down, and told him he

needed to sit. This is a true account in my own words." RR5:145; RR6:9.

Based on his experience working child abuse cases, the detective

believed Appellant faced multiple stressors on the day of this little boy’s

injuries. RR6:17–18. First, the teething child was fussy. RR5:118,127;

RR6:15. Second, the high school sent Appellant’s daughter home before

10:00 a.m. when her attendance would count and, on top of that, Appellant

had to pick up her daughter. RR5:127, 140; RR6:15. Third, Appellant’s

4

growing cake-decorating business was busy with orders for Easter

celebrations that upcoming weekend. RR4:54; RR5:126–27; RR6:15. The

child abuse detective opined that outside stressors could cause someone

to lash out at a child.1 RR5:126; RR6:17–18.

Investigators uncovered other concerns and inconsistencies.

Appellant told the paramedics at the scene that the little boy might have

choked on food; she said he had been crying, screaming loudly, and “just

fell back unconscious.” RR4:15,17,30. This choking history provided to the

EMTs, however, did not correspond to his heart rate. RR4:17–18. Later

that same day, Appellant confided to a friend that she had sat the child in a

chair and, when she returned, found he had inexplicably collapsed.

RR4:161–62, 165–66. The inconsistent descriptions caused concern.

Another concern involved Appellant’s being busy and distracted.

Additionally, the thriving cake business Appellant looked forward to running

in the future ran afoul of the licensing regulations for in-home child care

providers. RR4:53, 87–88, 114–16, 120–23, 134–35, 160; RR5:125–27.

1

Another witness corroborated the detective’s opinion regarding Appellant’s state of

frustration. The witness, a friend of Appellant’s, explained that Appellant desired to

curtail her in-home child-care business at the end of school so she could, instead, focus

on cake decorating. RR4:160, 164. In addition to the desire to shift the focus of her

employment, Appellant had also verbalized specific frustrations to her friend about this

seven-month-old. Appellant described the little boy as a child who cried all the time.

RR4:160.

5

The approaching weekend with the Easter holiday increased the demand

for cake orders. RR5:125–27. Appellant admitted to investigators that she

had a large number of orders that she still needed to fill. RR5:127.

In addition to the non-medical testimony, the State’s case included

three doctors who practice pediatric medicine and treated this little boy.

Dr. Richard Roberts, a pediatric neurosurgeon for Cook Children’s Medical

Center, first treated the child. RR4:180. The boy presented with

“extremis,” bleeding and compression of the brain, which was worrisome

for his survival. RR4:192–93. Dr. Roberts performed an emergency

craniotomy to evacuate a hematoma and to decrease the pressure in the

brain. RR4:200. The child-victim suffered a subdural hematoma [SDH]

with an acute component. RR4:196. During surgery, Dr. Roberts also

noted an avulsed bridging vein; he believed this very recent injury could

only have been caused by a high-energy impact such as a car crash or an

extreme fall. RR4:203–04, 214–18, 225–27 [narrowing the time of injury],

277. The doctor’s medical conclusions lacked congruity with Appellant’s

explanation of the mechanism of the injury. RR4:216–17, 260–61.

Instead, the doctor’s experience informed him that the injuries were

consistent with non-accidental trauma cases. RR4:227, 260.

6

Dr. Roberts also learned that the victim suffered retinal hemorrhaging

[RH] and retinal tears. RR4:218–19, 261–62. The presence of these

retinal injuries combined with the neurosurgeon having detected an avulsed

bridging vein, swelling of the brain, and a SDH, constituted classic

symptoms associated with high-energy force to the head. RR4:218–20,

224. According to Dr. Roberts, the injury-causing mechanism had to

include acceleration and deceleration in order to cause a vein avulsion; the

mechanism could also include shaking and impact against a padded play

surface. RR4:219–32, 248–50, 272–73, 280–81. The doctor contended

that the force necessary to cause the boy’s injuries would be of a degree

known to be dangerous. RR4:231–32. Toppling backwards while seated

on a padded floor was inconsistent with the injuries presented and the

infant’s spinal development; more force than reported would give rise to the

injuries presented by the child. RR4:211–32, 260–61, 285–86.

The State’s second expert, pediatric ophthalmologist Dr. Ann

Rannelle, treated the child-victim, too. RR5:5, 12–13. Dr. Rannelle found

the boy’s right eye uninjured, but his left eye revealed multiple intraretinal

hemorrhages, a large subretinal hemorrhage, preretinal hemorrhages, and

also vitreous hemorrhages, with a small line indicating retinoschisis, as

7

well. RR5:38–39. In essence, the child suffered multilayered, confluent

retinal hemorrhaging in every layer of his eye. RR5:46–47. Multilayered

RHs are consistent with non-accidental trauma.2 RR5:47–48.

Yet, this case involved more than “mere” retinal hemorrhaging. The

pediatric ophthalmologist’s findings included retinoschisis, a condition

encompassing the retina splitting apart. RR5:49. The torn retina causes a

blood pocket. RR4:219–20, 224; RR5:39, 49, 51–52. The confluence of

these distinct injuries confirmed that a high-energy aspect of the

mechanism of injury.3 RR4:219–20, 224.

In addition to the scientific conclusions drawn about the force

required in light of the medical findings, the little boy’s eye injuries were not

consistent with Appellant’s explanation but, instead, required an

acceleration/deceleration type of force and significant, violent, high-energy

trauma. RR5:48–49, 52. The ophthalmologist explained she had treated

children who had fallen out of second story windows or shopping carts onto

concrete floors and they did not present with the serious eye retinal injuries

the child-victim experienced. RR5:52–53. Dr. Rannelle stated that

2

When RHs are congenital, the condition is bilateral. RR5:54.

3

As mentioned, knowledge of this extreme condition—retinoschisis—also

contributed to the neurosurgeon’s AHT conclusion. RR4:219-20, 224.

8

Appellant’s explanation for the boy’s injuries was not possible in light of the

severity of the eye injuries. RR5:53. The pediatric ophthalmologist’s

findings dovetailed with those of the pediatric neurologist.

Dr. Jayme Coffman rounded-out the State’s expert witness lineup.

Dr. Coffman, a board-certified practitioner in both general pediatrics and

child abuse pediatrics, is the medical director of the CARE team at Cook

Children’s Medical Center. RR6:65–71. She began focusing her medical

practice on the various forms of child abuse in approximately 1993.

RR6:69–77. Dr. Coffman has testified as an expert in child abuse and the

treatment of child abuse repeatedly. RR6:78. Dr. Coffman treated the

child in this case after his injuries. RR6:79. Based upon the child-victim’s

history and the injuries he suffered, especially the multiple types of injuries

witnessed by the treating physicians, Dr. Coffman opined that there had to

be impact or a combination of impact and shaking. RR6:95–105. Dr.

Coffman did not find the little boy’s injuries consistent with his falling from a

seated position. Having listened to the defense expert’s testimony during

9

the instant bench trial, Dr. Coffman also rebutted assertions put forward by

the defense expert (who had testified out-of-order).4 RR6:107–10.

In her practice, Dr. Coffman does not rely on what has been called

“Shaken Baby Syndrome,” but she bases her child abuse diagnosis on the

specific mechanism of injury presented and a differential diagnosis with

observation; the differential diagnosis methodology is an all-encompassing

process-of-elimination consideration of every possible cause and is

generally accepted in the medical community. RR6:81, 83, 89–95, 107–13.

Dr. Coffman stated there is not “unrest” within the pediatric world—

including all pediatric disciplines—regarding AHT findings. RR6:108–11.

Dr. Coffman acknowledged the existence of divergent opinions in fields not

involving pediatric practitioners with live patients; for instance, medical

examiners and those in the field of biomechanics have questioned AHT as

a diagnosis. RR6:108–11. Dr. Coffman confirmed that pediatrics experts

resoundingly support the validity of AHT as a medical diagnosis;

4

For instance, the defense expert opined that retinoschisis can progress from

retinal hemorrhages. RR6:127. Dr. Coffman flatly rejected this claim, stating she knew

of no evidence-based medical literature supporting this contention and, likewise, she

had never seen this clinically. RR6:126-28. Dr. Roberts also rejected alternative

causes for retinoschisis. RR4:223-24.

Dr. Coffman noted her familiarity with papers authored by Tuerkheimer, Gabaeff,

and others cited by the defense as challenging aspects of AHT methodology. RR6:120-

27. Dr. Coffman dismissed these papers and studies in light of the wealth of evidence-

based medical literature to the contrary and her experience. RR6:125.

10

accordingly, the American Academy of Pediatrics recognizes Abusive Head

Trauma as a diagnosis. RR6:113–14. Finally, Dr. Coffman explained that,

to make an accurate differential diagnosis in this case, everything must be

considered, including conditions that the defense expert dismissed.

RR6:127–29.

Summing up, the child’s prognosis is unknown. Post-surgery, the boy

initially lost right side movement, but regained it after months of therapy.

RR4:68–69, 212. An initial vision loss in his left eye improved after

treatment. RR4:70. The child will still have "dead spaces" in his brain and

has suffered some loss of brain volume and function. RR4:221–22, 233.

Since his brain is still developing, his prognosis is unclear. RR4:233.

Appellant called Dr. Robert Rothfeder, an emergency physician from

Utah to rebut the State’s experts. RR5:155. Dr. Rothfeder testified he had

spent fifteen years conducting personal research on Shaken Baby

Syndrome [SBS], now AHT. RR5:163–173. Dr. Rothfeder contended that

the medical community lacks agreement regarding whether the

combination of injuries—SDHs, RHs, and swelling of the brain—constitute

non-accidental injury previously referred to as SBS. RR5:85, 167–71, 174,

183. The emergency medicine doctor agreed that pediatrics practitioners

11

recognize these theories, but represented that non-pediatric physicians

disagree. RR5:174.

The defense expert attempted to discount AHT based upon its

purported disuse elsewhere as valid diagnosis. He testified that in many

jurisdictions, including Canada and the United Kingdom, expert testimony

that draws a conclusion of AHT from the mere presence of the discussed

triad of unexplained symptoms is inadmissible. RR5:202–03. However,

during the cross-examination of Dr. Rothfeder, the witness backed off from

his sweeping statements, acknowledging his comments were limited to a

few cases with specific problems. RR5:228–30.

Even based upon the proverbial “cold record,” cross-examination

appeared to severely undermine this expert’s credibility. Dr. Rothfeder had

no formal pediatric experience, had a limited emergency room practice

regarding young patients, and he had not consulted with any of the treating

physicians in this case. RR5:23–32. For more than a decade, the

physician worked referrals from a law firm that handled car wreck cases.

Further, in spite of his limited pediatric experience, Dr. Rothfeder had spent

several years in the consulting/testifying business for defense attorneys

regarding child abuse, even though he had no peer-review articles on the

12

subject, had not attended specialized seminars on the matter, and could

not identify any specific child abuse case he had treated. RR5:158–59,

213–16, 222–26. Dr. Rothfeder also holds a law license, testifies twelve to

fifteen times a year as a consultant for defense counsel in child abuse

cases, and receives approximately $8000 per case. RR5:158, 214–28.

13

SIGNIFICANT SECONDARY RESOURCES

The Houston Journal of Health Law and Policy has published two

extensive articles comprehensively providing an overview of evidence-

based medical literature relating to the validity of abusive head trauma as a

medical diagnosis; the primary author of these papers holds dual

credentials—medical doctor and attorney. See Sandeep Narang, M.D.,

J.D., A Daubert Analysis of Abusive Head Trauma/Shaken Baby

Syndrome, 11 HOUS. J. HEALTH L. & POL'Y 505 (2011) [hereinafter A

Daubert Analysis—Part I; Appendix A]; Sandeep Narang, M.D., J.D., John

D. Melville, M.D., Christopher S. Greeley, M.D., James D. Anderst, M.D.,

Shannon L. Carpenter, M.D., & Betty Spivack, M.D., A Daubert Analysis of

Abusive Head Trauma—Part II: An Examination of the Differential

Diagnosis, 13 HOUS. J. HEALTH L. & POL'Y 203 (2013) [hereinafter A Daubert

Analysis—Part II; Appendix B].

During the bench trial, the parties discussed A Daubert Analysis—

Part I; likewise, both the State and Second Court referred to it on appeal.5

Wolfe, 459 S.W.3d at 212 & n.18–19. In late 2013 after this case was set

5

The parties provided Dr. Narang’s 2011 AHT survey to the trial court during a

break, agreeing that the judge should review the document; the original copy,

designated State’s Exhibit No. 42, was mistakenly marked up and no new “clean” copy

was proffered into evidence. RR6:64-65,115. Wolfe, 459 S.W.3d at 212 & n.18.

14

for submission below, Dr. Narang published his second article to discuss

the differential diagnosis aspect of AHT conclusions and to refute

challenges premised on alternative diagnoses to AHT. Dr. Narang

authored this follow-up survey along with five other physicians. See A

Daubert Analysis—Part II. The two law journal articles bookend any

analysis of the validity of AHT diagnosis, and the State attached both

publications as appendices and borrows liberally from both herein.

ARGUMENT AND AUTHORITIES

Appellant’s two grounds for discretionary review lack merit because

the court of appeals properly determined that no abuse of discretion

occurred. The appellate ruling correctly determined that the trial judge’s

Daubert ruling did not constitute an abuse of discretion because the three

physicians who provided AHT testimony proffered reliable expert evidence,

both in general and as it applied to this case’s specific facts.

I. A note about Appellant’s first ground for review

Appellant’s first allegation complains that the Second Court’s

decision too narrowly determined the issue of reliability. Tethering her first

15

discretionary claim to the argument voiced in Justice Walker’s dissent,

Appellant insists that the majority opinion merely focused on the general

scientific reliability of AHT evidence and failed to consider the evidence’s

reliability in light of the victim’s unique medical history.

The State contends that the expert testimony and conclusions which

found non-accidental injury and abusive head trauma came to fruition after

application of a methodology called differential diagnosis. Medical science

defines “differential diagnosis” as “the determination of which two or more

diseases with similar symptoms is the one from which the patient is

suffering, by a systematic comparison and contrasting of the clinical

findings.” STEDMAN’S MEDICAL DICTIONARY (28th ed. 2006); A Daubert

Analysis—Part II, at 302. Simplistically speaking, this type of analysis

relies on process-of-elimination reasoning. Id. at 304. “In differential

diagnosis, if there are four possible diagnoses and you eliminate three,

logic points to the last illness as the correct diagnosis.” E. Imwinkelried,

The Admissibility and Legal Sufficiency of Testimony About Differential

Diagnosis (Etiology): Of Under-and Over-Estimations, 56 BAYLOR L. REV.

391, 392 (2004); A Daubert Analysis—Part II, at 304.

16

Decades of research reveal that this diagnostic process employs a

non-linear, unstructured method of inferential and deductive problem

solving. See J. Kassirer & F. Sonnenberg, The Scientific Basis of

Diagnosis, TEXTBOOK OF INTERNAL MEDICINE (W.N. Kelley ed., 1989); see

also A. Elstein & A. Schwartz, Clinical Problem Solving and Diagnostic

Decision Making: Selective Review of the Cognitive Literature, 324 BRIT.

MED. J. 729, 730 (2002); A Daubert Analysis—Part II, at 303 & n.629. Dr.

Jayme Coffman, the medical director of the CARE Team at Cook Children’s

Medical Center in Fort Worth, relied on this differential diagnosis protocol

when concluding that this little boy suffered AHT. RR6:80–94, 106–07,

112, 128, 140, 151–55.

In the context of Appellant’s two discretionary review claims and even

when considering the difference between the lower court’s majority opinion

and the dissent’s rationale, the differential diagnosis methodology renders

the difference (and the first ground for review) moot. The State suggests

avoiding the dualistic consideration of the two appellate approaches voiced

by the competing opinions from the lower court. An either-or approach is

not logical since the State’s medical experts relied on the differential

diagnosis methodology. This methodology treated the child’s unique

17

medical history as integral to the diagnosis decision. See A Daubert

Analysis—Part I, at 571–72.6 By relying on the differential diagnostic

method, Dr. Coffman’s conclusions ruled out other possible causes,

general ones and those that were specific to this child. RR6:80–94, 106–

07, 112, 128, 140, 151–55. Therefore, whether Appellant’s brief to the

court of appeals argued that the complained-of expertise was unreliable in

relation to this child-victim’s specific circumstances and medical history

does not matter because the expert opinions developed before the trial

judge included full consideration of the child’s unique medical history

including the fact that the child bore no external signs of injury. RR4:222–

24, 227–38, 248–59, 274–75, 283–85 [Dr. Roberts]; RR5:170–74, 212–54

[Dr. Ranelle]; RR6:30–33, 56–59, 80–94, 105–28, 140, 151–55 [Dr.

Coffman].

By definition, when a physician conducts the complex inferential and

deductive process of differential refinement and reaches an AHT

conclusion, this established, reliable, step-by-step evaluation rules out

other causes. See generally A Daubert Analysis, Part II, at 302–22.

Differential diagnosis is a reliable methodology for applying AHT to

6

The differentials for subdural hematomas and retinal hemorrhages, the two most

common injuries involved in AHT, are found in Appendix B and C of A Daubert

Analysis—Part I.

18

specific facts. Id. Therefore, in this case, the prosecution amply bore its

burden to show the reliability of the expert testimony and opinions of the

pediatric medical team who treated this child-victim—both in general and

as they were applied to this child’s specific circumstances.

II. Applicable legal standards

The court of appeals correctly determined that the trial judge, acting

as a Daubert/Kuhmo gatekeeper, properly exercised his discretion after

hearing a wealth of diverse information. See Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137 (1999). Together, these two Supreme Court

decisions squarely place the admissibility of scientific and other technical or

specialized evidence in the discretionary lap of the trial court. In this case,

as the interim appellate court found, no abuse of discretion occurred.

Wolfe, 459 S.W.3d 201.

The threshold determination regarding the admissibility of expert

evidence is whether the testimony will be helpful to the finder of fact. In this

case, the trial court acted as finder of fact. Although the trial judge’s

experience through the years has encompassed much scientific and/or

medical testimony, the specifics of pediatric neurology, pediatric

19

ophthalmology, and even pediatric physical abuse would surely assist in

this case. See Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)

(same trial judge properly applied evidentiary rules to admit DNA evidence

in this landmark case).

This Court’s unanimous Tillman decision comprehensibly addressed

the admissibility of expert testimony. Tillman v. State, 354 S.W.3d 425

(Tex. Crim. App. 2011). A trial judge's decision on the admissibility of

evidence is reviewed under an abuse of discretion standard and will not be

reversed if it is within the zone of reasonable disagreement. Id. at 435;

Davis v. State, 329 S.W.3d 798, 813–14 (Tex. Crim. App. 2010). The

State’s AHT evidence and her three treating physicians passed the

admission hurdle.

Rule 702 of the Texas Rules of Evidence governs the admission of

expert testimony. This rule allows testimony from a witness qualified as an

expert by knowledge, skill, experience, training, or education to testify when

scientific, technical, or other specialized knowledge can assist a factfinder’s

understanding of the evidence and determination of facts in issue. TEX. R.

EVID. 702. To be admissible, a party offering expert scientific evidence

must demonstrate by clear and convincing evidence that the testimony “is

20

sufficiently reliable and relevant to help the jury in reaching accurate

results.” TEX. R. EVID. 702, 705(c); see Bekendam v. State, 441 S.W.3d

295, 303 (Tex. Crim. App. 2014); Kelly, 824 S.W.2d at 572. While other

factors go into the admissibility of scientific evidence, Appellant only

contests the reliability of the State’s AHT evidence in this case. See

Tillman, 354 S.W.3d at 435. To be considered reliable, evidence based on

a scientific theory must satisfy three criteria: (1) the underlying scientific

theory must be valid; (2) the technique applying the theory must be valid;

and (3) the technique must have been properly applied on the occasion in

question. Kelly, 824 S.W.2d at 573; TEX. R. EVID. 702.

Judge Hervey’s Tillman decision opined that courts analyze reliability

to determine whether the proffered expert evidence is founded on sound

scientific methodology in order to weed out “junk science.” Id. at 435–36.

The reliability determination hinges on several factors that include the

following:

(1) the extent to which the underlying scientific theory and

technique are accepted as valid by the relevant scientific

community, if such a community can be ascertained;

(2) the qualifications of the expert(s) testifying;

(3) the existence of literature supporting or rejecting the

underlying scientific theory and technique;

(4) the potential rate of error of the technique;

21

(5) the availability of other experts to test and evaluate the

technique;

(6) the clarity with which the underlying scientific theory and

technique can be explained to the court; and

(7) the experience and skill of the person(s) who applied the

technique on the occasion in question.

Kelly, 824 S.W.2d at 573. These factors should not be considered a

“definitive checklist or test” but, instead constitute guidelines for a trial

judge’s assessment. Daubert, 509 U.S. at 593. The Supreme Court

mandated that the focus must be on the principles and methodology,

not on the conclusions generated. Id. at 594–95 (emphasis added).

The State recognizes that some members of this Court have

previously voiced concerns—in a disparate scenario—about the

“fundamental disconnect between the worlds of science and of law” when

applying legal principals to evolving scientific theories. See Ex parte

Robbins, 360 S.W.3d 446, 469–70 (Tex. Crim. App. 2011)7 (J. Cochran,

dissenting); see also Ex parte Robbins, WR-73,484-02, ___ S.W.3d ___,

2014 WL 6751684 (Tex. Crim. App. 2014) (habeas relief granted after

statutory amendment) (rehearing granted May 13, 2015). In this case, the

State seeks to show that the trial court did not abuse his discretion when

7

In a case involving multiple theories of how (or whether) the child was

asphyxiated, the medical examiner re-ruled the manner-of-death from homicide to

undetermined, leading to appellate action regarding the conviction’s validity. Ex parte

Robbins, 2014 WL 6751684, *5.

22

applying Daubert-related guidelines to discern the reliability of the State’s

evidence (the ground for review) and that the science utilized herein

remains reliable.

III. The court of appeals correctly upheld the trial court’s

reliability ruling8

Relying on decisions such as Tillman, Beckendam, and other Daubert

progeny from this Court, the court of appeals correctly set out the proper

analytical constructs to determine that the trial court’s ruling did not fall

outside the zone of reasonable disagreement. Wolfe, 459 S.W.3d at 204–

205 (citing Tillman, 354 S.W.3d 425; Beckendam v. State, 441 S.W.3d 295

(Tex. Crim. App. 2014)) (additional citations omitted). With their

jurisprudential guidelines squarely addressed, the Fort Worth court

methodically reviewed the expert testimony in a manner consistent with the

Kelly factors. Wolfe, 459 S.W.3d at 204–09, 211–14. The majority

contrasted the information from the State’s experts with that of the defense

expert and the concerns voiced by the dissenting justice. Id. at 209–14.

8

Pretrial, Appellant proposed that the trial court carry its gatekeeping ruling as the

court heard the State’s experts. RR4:7-8; RR7:4-5. At the end of the evidence, the trial

judge took the ruling under advisement to afford him time to read the provided

materials. RR7:21. When the parties reconvened, the judge ruled that each of the

State’s witnesses met the requirements of Rule 702 under Kelly and Daubert; the court

specifically recognized each witness as being an expert. RR8:4-5. Appellant did not

request any further finding.

23

The Second Court of Appeals properly applied the Rules of Evidence and

the law regarding the admissibility of expert testimony. See Beckendam,

441 S.W.3d at 305.

The Fort Worth Court’s ruling reviewed the extensive direct

examination and spirited cross-examination of the State’s three pediatric

experts, as well as the evidence from the physician who testified for the

defense; this record and the subsequent appellate review support

upholding the trial judge’s ruling that each of the experts met the

requirements of Rule 702 and Daubert. RR8:4–5.

In its decision, the lower court set out and applied the well-known

Kelly factors. Specific consideration of those guidelines follows. Several of

the factors are grouped together based on their subject’s evidentiary

overlap.

A. Acceptance and Literature factors:

Acceptance—the extent to which the underlying

scientific theory and technique are accepted as valid by

the relevant scientific community, if such a community

can be ascertained

Literature—the existence of literature supporting or

rejecting the underlying scientific theory and technique

24

Both the acceptance and the literature factors strongly undergird the

validity of the Second Court’s decision regarding the reliability of AHT as a

scientific theory. As noted by the Fort Worth court, A Daubert Analysis—

Part I comprehensively reviewed the “voluminous” peer-reviewed medical

literature on the AHT issue. Wolfe, 459 S.W.3d at 212 & n.19. The article

explains, “there have been at least 8 systematic reviews, over 15 controlled

trials, over 50 comparative cohort studies or prospective case series, and

numerous well-designed, retrospective case series/reports, comprising

thousands of cases, supporting the diagnosis of AHT.” Id. at n. 19.

Additionally, the article cites a multitude of “verifiable references”

including various international and domestic medical organizations that

have publicly acknowledged the validity of AHT as a medical diagnosis

including:

The World Health Organization; The Royal College of

Paediatrics and Child Health; The Royal College of

Radiologists; The Royal College of Ophthalmologists; The

Canadian Paediatric Society; The American Academy of

Pediatrics; The American Academy of Ophthalmology; The

American Association for Pediatric Ophthalmology and

Strabismus; The American College of Radiology; The American

Academy of Family Physicians; The American College of

Surgeons; The American Association of Neurologic Surgeons;

The Pediatric Orthopaedic Society of North America; The

American College of Emergency Physicians; and The American

Academy of Neurology.

25

A Daubert Analysis—Part I, at 575–76 (footnotes and citations omitted).

This worldwide list of physicians is a veritable Who’s Who of esteemed

medical organizations who recognize AHT as a valid scientific medical

diagnosis. Id. Footnotes contained within the Part I law review show

extensive literature supporting the science behind AHT. Id. (citations

omitted but, for convenience, please reference Appendix A).

It is true that some recent literature and media reports have appeared

to question the validity of AHT as a valid medical diagnosis; indeed,

Appellant cites to some of these articles. (App. Brief at vi–vii). See A

Daubert Analysis—Part II, at 205–06. Undersigned counsel even noticed

an article in the New York Times the Sunday before this case’s petition was

granted. See Clyde Haberman, Shaken Baby Syndrome: A Diagnosis

That Divides the Medical World, N.Y.TIMES, Sept. 13, 2015, at A1,

http://nyti.ms/1MlkQ7g. Nevertheless, Dr. Narang describes the

controversy as “inexplicable” to many physicians. A Daubert Analysis—

Part II, at 205.

At the onset, two fundamental principles must be clarified and

recognized. First, the terms “Abusive Head Trauma” and “Shaken Baby

Syndrome” are not interchangeable. SBS is a commonly recognized

26

subset of AHT, and any controversy regarding the reliability of the science

primarily focuses on SBS, not AHT. See A Daubert Analysis—Part II, at

205 & n.1. Second, the peer-reviewed medical literature supporting AHT

squarely supports this medical diagnosis; the evidence-based medical

literature overshadows the vast majority of the papers and media that

attempt to question the validity of AHT. See A Daubert Analysis—Part I, at

540–41 (comparing the quality of the supporting treatises versus

questioning literature); A Daubert Analysis—Part II, at 207, 210–12

(providing a metric, the Centre for Evidence Based Medicine [CEBM] scale,

to evaluate the best available evidence-based medical literature and

studies).

To assert the purported unreliability of the State’s experts, Appellant

cites to secondary sources that question the legitimacy of the previous

child-abuse-related SBS diagnosis. (App. Brief at vi–vii). Appellant also

refers to two habeas cases where the expert trial testimony was later

deemed inaccurate based upon the expert’s conclusion changing. See Ex

parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (medical

examiner changed cause of death ruling in short fall case involving an

infant); Ex parte Robbins, No. WR-73,484-02, ___ S.W.3d ___, 2014 WL

27

6751684 (Tex. Crim. App. 2014) (rehearing granted) (post-trial, medical

examiner changed cause of death from asphyxia by strangulation to

undetermined).

Unlike the habeas cases, the instant trial judge heard specific

evidence during the bench trial involving the “debate” about the validity of

AHT as a diagnosis. Appellant proffered a Utah doctor in an attempt to

undermine the validity of the State’s experts’ AHT findings. The State

brought forward the three children’s hospital physicians who actually work

with pediatric patients, treated this patient, and have experience, training,

and expertise in the medical specialty, pediatric child abuse. The

prosecutors offered also significant supporting information; one article,

already mentioned and appended herein, reveals that recognition of

Abusive Head Trauma as a valid diagnosis is based on years of clinical

experience, has been an extensively peer-reviewed topic of medical

science, and is a diagnosis endorsed by a verifiable list of national and

international medical societies. See A Daubert Analysis—Part I. RR6:64–

65 (trial court confirms receipt and reading of this study as suggested by

both parties).

28

The State’s evidence and argument, along with the articles contained

in the State’s appendices, reveal the overwhelming validity of the science

behind an AHT diagnosis. The Second Court of Appeals decision should

stand.

B. Qualifications and Application factors:

Qualifications—the qualifications of the expert(s)

testifying

Application—the experience and skill of the person(s)

who applied the technique on the occasion in question

The qualifications of the State’s three experts, especially double-

board-certified Dr. Jayme Coffman, are beyond credible debate. The depth

of their qualifications also supports a strong showing for how their

knowledge was correctly applied, especially with respect to Dr. Coffman’s

differential diagnosis of AHT.

1. The pediatric neurologist

The State’s case included three doctors who practice pediatric

medicine; each actually treated the young boy in this case. Dr. Richard

Roberts, a pediatric neurosurgeon for Cook Children’s Medical Center

treated the child-victim upon his arrival to the hospital. RR4:180. Dr.

Roberts performed an emergency craniotomy on the seven-month-old boy

29

in order to evacuate the hematoma and to decrease the pressure in the

brain. RR4:200.

2. The pediatric opthalmologist

The State’s second pediatric physician, Dr. Ann Rannelle who is a

pediatric ophthalmologist, treated the victim after his craniotomy. RR5:5,

12–13. Dr. Rannelle found that the boy’s right eye had no hemorrhages,

but in his left eye he had multiple intraretinal hemorrhages, a large

subretinal hemorrhage, and some preretinal hemorrhage and vitreous

hemorrhages, with a small line indicating retinoschisis, as well. RR5:38–

39.

3. The pediatric child abuse expert

Dr. Jayme Coffman completed the State’s expert witness lineup.

Dr. Coffman, a board-certified practitioner in both general pediatrics and

child abuse pediatrics, is the medical director of the CARE team at Cook

Children’s Medical Center. RR6:65–71. Her resume includes a biology

degree with a minor in chemistry; during the early-mid 1980’s, she attended

medical school at the University of Texas Health Science Center in San

Antonio. RR6:66.

Dr. Coffman developed a passion for pediatrics during her third-year

clinical rotations in medical school. RR6:67. She treated children during

30

her pediatric subspecialty rotation, and the remainder of her training

followed this interest. RR6:67–68. Dr. Coffman’s pediatric internship and

residency training occurred at the Texas Tech University Health Science

Center in Lubbock. RR6:66. Upon completing her medical school

program, she remained in Lubbock to teach while also working in the

emergency room for a year; then she went into private practice. RR6:68–

69. For about two years, Dr. Coffman practiced medicine as the sole

pediatrician in a small Texas town. RR6:69. Next, Tyler’s Medicaid and

Indigent Pediatric Program recruited Dr. Coffman as its medical director.

RR6:69–77. After approximately five years with the Tyler program and also

as the medical director of the Mother of Frances Hospital pediatric clinic,

Dr. Coffman started her own non-profit clinic in Longview, treating indigent

pediatric patients. RR6:69.

Dr. Coffman’s pediatric practices in these several forums led her to

focus on the various forms of child abuse. RR6:69–70. Dr. Coffman

returned to Cook in 1995. She participates in two LISTSERVs that are

honorary societies for child abuse physicians. RR6:71–72. These groups

involve treating physicians with multiple specialties such as pediatricians,

radiologists, neurosurgeons. RR6:72. Dr. Coffman did not think that the

31

groups included any research-oriented physicians or biomechanical

engineers. RR6:72.

Dr. Coffman has attended multiple advanced medical conferences on

the evaluation of physical abuse and child maltreatment. RR6:73–74. She

attended the Shaken Baby Syndrome Conference in 2002, a Pediatric

Forensic Conference, and a Crime Against Children Conference. Her

annual continuing education focuses on child abuse. RR6:72–73.

This expert child abuse pediatrician has authored seven papers on

various child-abuse-related topics, including protocols on how to recognize

and evaluate abuse and a book chapter on child fatality primal response.

RR6:74–75. Similarly, Dr. Coffman has given countless presentations

sharing her expertise with others. RR6:75. In the courts, Dr. Coffman has

testified as a child abuse expert repeatedly. RR6:78. She has treated

many children who suffered serious physical injury, and she treated the

infant in this case after his injuries. RR6:79.

Dr. Coffman’s extensive work in the field of child abuse-related

pediatrics has been officially recognized. Child Abuse is a recently

recognized subspecialty of pediatric medicine. RR6:70. There are now

fellowships and board certification in child abuse. Dr. Coffman’s two board

32

certifications are in general pediatrics (1990) and child abuse pediatrics

(2009). RR6:70. She was “grandfathered-in” for the child abuse

certification; the board allowed her to take the certification exam without a

fellowship out of respect for her child abuse experience since she has

spent more than fifty percent of her practice specifically evaluating possible

victims of abuse. RR6:70.

4. Differential diagnosis methodology

Reliance on the differential diagnosis methodology reveals that the

valid AHT science was properly applied. As previously detailed in

Section I, supra at 17–21, Dr. Coffman bases a child abuse diagnosis on

the individual mechanism of injury presented by a child while using a

differential diagnosis methodology to apply her observations, training, and

knowledge to the case. RR6:107–13.

For instance, this child suffered no external injuries. Each of the

State’s treating pediatric experts discussed this fact when explaining their

observations, assessments, actions, and opinions; each expert fully

considered the child’s unique medical history including this fact which was

recognized in the affirmance and highlighted in Justice Walker’s dissent.

See Wolfe, 459 S.W.3d at 211 (majority), 215 (dissent). RR4:222–24,

33

227–38, 248–59, 274–75, 283–85 [Dr. Roberts]; RR5:170–74, 212–54 [Dr.

Ranelle]; RR6:30–33, 56–59, 80–94, 105–28, 140, 151–55 [Dr. Coffman].

Dr. Coffman’s already-discussed extensive pediatric/child abuse

credentials, her dispositive explanation of differential diagnosis

methodology, and the lack of substantive diminution of her testimony by the

defense expert combine to indicate that the State fulfilled its Daubert

burden regarding Dr. Coffman’s application of her AHT expertise to this

case, in general and as specifically applied to this child.

The comprehensive studies described in both Daubert Analysis

articles likewise reinforce finding that Dr. Coffman properly applied her

medical training, knowledge, and experience to arrive at a correct

differential AHT diagnosis with respect to the child-victim in this case. The

second survey article by Dr. Narang covers the medical utilization and

acceptance of the differential diagnosis methodology and additionally

refutes typical alternatively posited diagnosis. A Daubert Analysis, Part II.

Finally, the reliability of the AHT science and application is further

enhanced on the specific facts of this case which include findings, not only

of SDHs, RHs, and swelling of the brain, but also the unique discovery of

retinoschisis, along with Appellant’s inconsistent history of falling from a

34

seated position. RR5:219–20; RR6:60. As Dr. Coffman stated, to make an

accurate differential diagnosis in this child’s case, everything must be

considered, including the unique circumstances presented with this child-

victim. RR6:127–29.

Both factors—experts’ qualifications and application via differential

diagnosis methodology—promote a strong finding of reliability in this case.

Again, the Fort Worth Court of Appeals correctly determined that the trial

judge did not abuse his discretion in this AHT case.

C. Rate of Error—the potential rate of error of the

technique

The lower court correctly noted that the proponent of scientific

evidence is not typically required to establish empirical reliability of an

underlying scientific theory. Wolfe, 459 S.W.3d at 204–05 (citing State v.

Esparza, 413 S.W.3d 81, 86 (Tex. Crim. App. 2013); TEX. R. EVID. 702).

Yet, potential rate of error undergirds the reliability analysis. Kelly, 824

S.W.at 573. The 2011 survey by Dr. Narang, Appendix A, provided the trial

judge with the tools to assess reliability on this basis. That wealth of

information is further supplemented by the second article’s assessments of

alternative diagnoses to AHT and, significantly, the metrics to assay the

validity of various studies and publications. See generally Appendix A & B.

35

Dr. Narang writes that several well-designed prospective studies and

retrospective reviews consider the validity and reliability of the statistical

evidence on SDHs and AHT. A Daubert Analysis—Part I, at 548. The

statistical results run parallel in multiple fields including pathology,

radiology, and general pediatrics. Id. The studies produced the same

results: the significant statistical association of SDHs with non-accidental

trauma over accidental trauma. Dr. Narang’s review of the evidence-based

medical literature revealed no published, peer-reviewed clinical studies that

conclude differently. Id.

Significantly, recent studies and systemic reviews have calculated the

specificity and positive predictive value of severe RHs for abusive head

injury. In 2009, publication of a systematic review show the results of all

the scientific literature to identify clinical features that distinguished inflicted

from non-inflicted brain injury. See S. Maguire, Which Clinical Features

Distinguish Inflicted from Non-Inflicted Brain Injury? A Systematic Review,

94 ARCHIVES DISEASE CHILDHOOD 860, 860 (2009). The survey reviewed

“20 [electronic] databases, websites, references and bibliographies, using

over 100 keyword combinations,” and the authors identified over 6000

studies, which were relevant to the topic, reviewing 320 of them. Id. at 861,

36

864. Secondary to strict inclusion criteria (including only those studies that

compared the clinical features of inflicted and non-inflicted brain injury with

consecutive case ascertainment), the authors found 14 studies that met

those criteria, representing over 1600 children. Id. at 863–64. Cases were

included only if strict definitional criteria for “inflicted” brain injury (i.e., those

with witnessed abuse, confessions, legal decisions, or outcome

confirmation by multi-agency child protection teams) was met. Id. at 861.

The authors specifically excluded all studies where the decision of abuse

relied solely on clinical features, to eliminate concerns for “selection bias”

and “circularity.” Id.

Conducting a multi-level logistic regression analysis, the survey

authors concluded that RHs were “strongly associated with inflicted brain

injury, with a positive predictive value of 71% and an odds ratio of 3.504.”

Id. at 865. Hence, a comprehensive review of all the literature involving

RHs shows that they are 3.5 times more likely to occur in inflicted

circumstances than non-inflicted ones. The authors concluded, “By

producing a multilevel logistic regression of specific clinical features on

over 1600 children, we have shown that there is scientific evidence to

support the distinction between [inflicted brain injury] and [non-inflicted

37

brain injury] . . . . “ This review is the largest of its kind, and offers for the

first time a valid statistical probability of [inflicted brain injury] when certain

key features are present (e.g., retinal hemorrhages).” Id.; A Daubert

Analysis—Part I, at 556–57.

Pair the findings of the Maguire et al. with a systematic review

published in 2010 focusing on the diagnostic accuracy of RHs in AHT. See

Gaurav Bhardwaj et al., A Systematic Review of the Diagnostic Accuracy of

Ocular Signs in Pediatric Abusive Head Trauma, 117 OPHTHALMOLOGY 983,

987 tbl.1 (2010) (the authors identified 971 articles, choosing fifty-five which

met their criteria, then qualitatively narrowing their focus to twenty studies).

The Bhardwaj review found that the specificity of intraocular hemorrhages

for AHT was 94 percent in high quality “Level II” context. Id. at 991; see

also Alex V. Levin et al., Clinical Report: The Eye Examination in the

Evaluation of Child Abuse, 126 PEDIATRICS 376, 376–77 (2010) (discussing

use of intraocular hemorrhage diagnoses in assessing AHT). See

generally A Daubert Analysis—Part I, at 539–561 (describing other

38

statistical evidence derived from well-designed comparative studies

includes studies from pediatrics, pathology, and radiology disciplines9).

Dovetailing with these comprehensive surveys, Dr. Coffman testified

that SDH are statistically more common in abuse than accident. RR6:110–

11. Likewise, the extensive retinal hemorrhages seen in this child-victim

are also seen statistically more often with abuse than accidental causes.

RR6:110–11. These statistical findings are held across multiple disciplines,

according to Dr. Coffman. RR6:111. Although not necessary, the numbers

also support the lower courts’ rulings.

9

Since some medical examiners appear to fall in the column of AHT doubters, note

a pathology study that confirmed the predominance of non-accidental trauma as the

cause of SDHs. The publication involved results from a fifty-year retrospective review of

the causes of death for infants less than one year old. E.g., Jakob Matschke et al.,

Nonaccidental Head Injury is the Most Common Cause of Subdural Bleeding in Infants

<1 Year of Age, 124 PEDIATRICS 1587-88, 1594 (2009). The survey concluded that most

SDHs are attributable to trauma, with non-accidental head injuries substantially

outnumbering accidental injuries. Id. at 1594.

39

D. Other Available Experts—the availability of other

experts to test and evaluate the technique

The State did not call outside experts to evaluate Dr. Coffman’s

differential diagnosis methodology or the other two treating pediatric

specialists. Based upon the myriad publications cited in both Daubert

Analysis articles, many physicians are available. See generally

Appendix A & B.

The State contends that Appellant’s medical expert provided a

dubious critique; indeed, had the gate-keeping function been applied to the

defense expert, his testimony would likely be excluded.

E. Clarity—the clarity with which the underlying

scientific theory and technique can be explained to

the court

As noted earlier, Dr. Coffman had testified multiple times in cases

involving child victims, as had the defense expert. RR5:158, 214–28;

RR6:78. The experienced trial judge has successfully contended with

scientific evidence in the past, even of a novel nature. Kelly, 824

S.W.2d 568. Nothing in the record indicates any problem with explaining

the science or its application in this case.

IV. This Court should uphold both lower courts’ rulings

40

The Daubert/Kelly reliability factors and considerations all weigh

heavily in favor of holding the State’s AHT theory of prosecution reliable.

Daubert, 509 U.S. at 593; Kelly, 824 S.W.2d at 573. AHT has long been

recognized as a clinically valid medical diagnosis; it should continue to be

so recognized. See A Daubert Analysis—Part I, at 505.

Daubert’s flexible guidelines for the admission of expert scientific

testimony do not undermine the two prior court rulings in this case, nor do

they impede cases presenting even stronger competing theories. An article

relied upon Justice Walker in her dissent recognizes this premise. The

article focused on trial judges’ gatekeeping function regarding expert

witness testimony. Wolfe, 459 S.W.3d at 216 (citing Harvey Brown &

Melissa Davis, EIGHT GATES FOR EXPERT WITNESSES: FIFTEEN YEARS LATER,

52 Houston Law Rev. 1 (2014)). That article does not discuss AHT;

however, it mentions SBS in a footnote. The footnote recognizes that there

can be competing schools of thought within a discipline, even with both

sides passing muster under Daubert. Brown & Davis, 52 Houston Law

Rev. at 236, n.1439. The footnote’s proposition rings true in light of the

Supreme Court’s express language about focusing on principles and

methodology, not conclusions. Daubert, at 594–95.

41

While there may be a legitimate battle regarding the reliability of SBS,

the same is not true regarding the differential AHT diagnosis in this case.

Again, in light of the voluminous high-caliber evidence-based diagnostic

literature supporting AHT as a valid diagnosis, the science is trustworthy;

the previous rulings on this issue should be upheld. See generally

Appendix A & B. Additionally, Cook Children’s Medical Centerl fortunately

employs a uniquely-qualified, board-certified, child abuse pediatrician who

thoroughly understands the ADT science, as well as its application within

the context of a differential diagnosis methodology. See A Daubert

Analysis—Part II, at 302–21. Dr. Coffman applied the best available

scientific knowledge, utilizing the respected differential diagnosis

methodology which, in doing so, ruled out this child’s unique

circumstances. The Court should uphold the Court of Appeals ruling

affirming this conviction.

CONCLUSION AND PRAYER

Applying the proper standards of review, the decision of the Court of

Appeals for the Second District of Texas should be affirmed, upholding the

trial court’s ruling, as well.

42

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney

Chief, Post-Conviction

/s/ Tanya S. Dohoney

TANYA S. DOHONEY

Assistant Criminal District Attorney

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672

State Bar No. 02760900

ccaappellatealerts@tarrantcountytx.gov

CERTIFICATE OF COMPLIANCE

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44

APPENDIX A

Sandeep Narang, M.D., J.D.

A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome

11 HOUS. J. HEALTH L. & POL'Y 505 (2011)

[A Daubert Analysis—Part I]

APPENDIX B

Sandeep Narang, M.D., J.D., John D. Melville, M.D.,

Christopher S. Greeley, M.D., James D. Anderst, M.D.,

Shannon L. Carpenter, M.D., & Betty Spivack, M.D.

A Daubert Analysis of Abusive Head Trauma—Part II:

An Examination of the Differential Diagnosis

13 HOUS. J. HEALTH L. & POL'Y 203 (2013)

[A Daubert Analysis—Part II]

A

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11 Hous. J. Health L. & Pol'y 505

Houston Journal of Health Law & Policy

Summer 2011

Article

A DAUBERT ANALYSIS OF ABUSIVE HEAD TRAUMA/SHAKEN BABY SYNDROME

Dr. Sandeep Narang, M.D., J.D. a1

Copyright (c) 2011 Houston Journal of Health Law & Policy; Dr. Sandeep Narang, M.D., J.D.

Abusive Head Trauma (AHT) has been known over the years by multiple terms-- “Whiplash Shaken Baby Syndrome,” 1

“Whiplash Shaken Infant Syndrome,” “Shaken Impact Syndrome,” “Inflicted Childhood Neurotrauma,” “Non-Accidental

Trauma,” and others. To the lay public, it is most commonly referred to, or recognized as “Shaken Baby Syndrome” (SBS).

Irrespective of the vernacular, 2 AHT has long been recognized as a clinically valid medical diagnosis. 3 However, recent legal

literature, 4 public media, 5 *506 and court decisions have called into question the foundation, and consequent validity, of

AHT/SBS as a valid medical diagnosis. 6

Because of the diagnosis' direct translation and impact in the legal arena, some have gone so far as to champion the cause of its

invalidation under philosophical banners of “protection of the innocent” and “justice.” 7 Broad assertions and generalizations

have been proffered, such as: “the scientific underpinnings of SBS have crumbled over the past decade;” 8 or the medical

research underlying SBS is a “flawed science” 9 predicated upon “circular reasoning,” “data gaps,” and “inconsistency of

case definition.” 10 Additionally, it has been asserted that “as technology and scientific methodology advanced, researchers

questioning the basis for SBS reached a *507 critical mass.” 11

Despite the assertions, what has not been published thus far is a detailed, critical analysis of the medical literature surrounding

AHT, and not only whether that literature meets the Trilogy (Daubert, Joiner, and Kumho) criteria for admissibility of scientific

evidence/testimony, but whether that literature is “flawed” and consequently not predicated upon sound scientific and medical

principles. 12 Part I of this paper shall examine the Trilogy (Daubert, Joiner, and Kumho) criteria for admissibility of expert

testimony/evidence, and the medical and legal quests for sound scientific evidence. Part II of this paper shall explore the issues

surrounding the medical diagnosis of AHT. Specifically, we shall review basic statistical principles utilized in critical evaluation

of medical/scientific literature and then critically analyze the medical literature involving some of the more common injuries 13

associated with AHT. Finally, Part III of this paper shall assess not only whether the medical literature suffices under Daubert,

Joiner, and Kumho scrutiny, but shall briefly examine the contemporary legal *508 issues surrounding admissibility of AHT

testimony and proffer some solutions for those issues.

I. The Trilogy: Daubert, Joiner, and Kumho

A. Daubert v. Merrell Dow Pharmaceuticals, Inc.

For many years in the twentieth century, expert testimony on novel scientific evidence was admissible only if the opinion offered

was based on a “well-recognized scientific principle or discovery . . . [that was] sufficiently established to have gained general

acceptance in the particular field in which it belongs.” 14 That standard, enunciated in Frye v. United States, was also known

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as the “general acceptance” test. 15 In 1993, with the Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

that standard changed. 16

In Daubert, the Supreme Court evaluated the propriety of a lower court's ruling excluding certain expert testimony in a tort

liability case. 17 In the case, Petitioners Jason Daubert and Eric Schuller were minor children born with serious birth defects. 18

They and their parents had sued the respondent, Merrell Dow Pharmaceuticals, alleging that the birth defects were caused by

the mother's ingestion of Merrell Dow's drug, Bendectin (an antinausea medication). 19 The Petitioners sought to proffer expert

testimony. 20 The district court, applying the “general acceptance” test of Frye, denied the admissibility of the petitioner's expert

testimony, and granted summary judgment for the respondent. 21 To settle the divisions among the lower courts regarding the

proper standard for the admission of expert testimony, the Supreme Court granted *509 certiorari. 22

The Court held unanimously that the Frye test had not survived. 23 With regards to the admissibility of expert testimony/

evidence, the Court held that Federal Rules of Evidence (FRE) 702 governs, not Frye. 24 The Daubert court held the text of FRE

702, its drafting history, and prior case law 25 mandated a “liberal” and “relaxed” approach to the admission of expert opinion

testimony. 26 The inquiry into admission of expert testimony/evidence was within the province of the trial judge. While the

trial judge's inquiry was to be a “flexible one,” 27 the Daubert court required trial judges to ensure “that any and all scientific

testimony or evidence admitted is not only relevant, but reliable.” 28

With regards to reliability, the Daubert Court stated that “[t]he subject of an expert's testimony must be ‘scientific . . .

knowledge.”’ 29 The Court noted there were definitional differences between science and law on “reliability.” 30 But the Court

went on to state that “evidentiary reliability will be based upon scientific validity.” 31 The Court enunciated four factors a trial

judge could consider in the preliminary assessment of whether proposed testimony was scientifically valid:

1) whether a theory or technique could be (and had been) tested--also known as “falsifiability” or “testability”;

2) whether the theory or technique had been subject to peer review and publication;

3) whether there was a known or potential rate of error; and

*510 4) whether there was general acceptance in the relevant scientific community. 32

The Court remarked that these factors were not a “definitive checklist or test,” but merely factors for consideration in a trial

judge's overall assessment. 33 The Court concluded by stating, “[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible

one . . . . The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” 34

With regards to relevance, the Court explained that expert testimony cannot assist the trier of fact in resolving a factual dispute,

as required by Rule 702, unless the expert's theory is “sufficiently tied to the facts of the case.” 35 The Court remarked, “Rule

702's ‘helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” 36

B. General Electric Co. v. Joiner

In General Electric Co. v. Joiner, the Court, in expanding upon the Daubert standard, examined and decided two additional,

significant issues regarding the admissibility of scientific expert testimony. 37 First, the Court determined the appropriate

standard for appellate review of a trial court's determination of admissibility of scientific expert testimony. After establishing an

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abuse of discretion standard for appellate review, 38 the Court went on to examine a more important issue of whether existing

scientific evidence can be generalized to address specific causal relationships. 39

In Joiner, the plaintiff asserted that exposure to polychlorinated biphenyls had promoted the development of his small-cell

lung *511 cancer. 40 The plaintiff argued that collective consideration of epidemiologic studies (which, when considered

individually and separately, were equivocal), demonstrated a causal relationship. 41 In rejecting this argument, the Court

determined the lower court had not abused its discretion in excluding this scientific testimony because there was no logical

nexus between the methodology employed by the expert and the expert's conclusion. 42 The Court stated:

Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal

Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only

by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between

the data and the opinion proffered. 43

C. Kumho Tire Co. v. Carmichael

In Kumho Tire Co. v. Carmichael, the Court examined the issue of the extent of a trial court's “gate-keeping” obligation. 44 Did it

extend only to expert testimony based upon “scientific” knowledge or did it also apply to expert testimony based on “technical”

and/or “other specialized knowledge”? In unanimously holding that a trial court's “gate-keeping” obligation extended to

ALL expert testimony, the Court remarked that Federal Rule of Evidence 702 “makes no relevant distinction between

‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge.” 45 Assurance of reliability of expert testimony,

whether “scientific” or based upon “technical or other specialized knowledge,” was still required. 46

*512 In grappling with this issue, the Court remarked that there will be witnesses “whose expertise is based purely on

experience. . . .” 47 The Court anticipated there would be times when such proffered expert testimony would have to be excluded

because the expert's field lacks reliability. 48 But other than citing astrology and necromancy as such excludable disciplines, the

Court gave no specific guidance on how a trial court could come to such a conclusion. 49 Instead, the Court proffered general

guidance--the “intellectual rigor” test. 50

The Court noted that the four Daubert factors “may or may not be pertinent [: it will all depend] on the nature of the issue,

the expert's particular expertise, and the subject of his testimony.” 51 The Court concluded that a trial court must exercise its

gate-keeping obligation so that the expert, whether relying on “professional studies or personal experience, . . . [will, when

testifying, employ] the same level of intellectual rigor” that the expert would use outside the courtroom when working in the

relevant discipline. 52 In the words of one legal scholar:

The Court seems less absorbed in epistemological issues, in formulating general rules for assessing reliability, or in fleshing

out *513 the implications of its having singled out testability as the preeminent factor of concern. It appears less interested

in a taxonomy of expertise and more concerned about directing judges to concentrate on “the particular circumstances of the

particular case at issue.” This flexible, nondoctrinaire approach is faithful to the intention of the drafters of the Federal Rules

of Evidence . . . . 53

Essentially, for physicians, the Court's decision in Kumho “tethered” the admissibility standard of expert testimony to the

standards of medical practice. 54

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D. The Quest for Sound “Scientific Evidence/Testimony”

“Science is simply common sense at its best; that is, rigidly accurate in observation and merciless to a fallacy in logic.” 55

Thomas Henry Huxley

1. The Legal Perspective

The objective of law is justice. 56 Yet, justice is not merely the search for dispassionate truth, but dispassionate truth that results

in fair and equitable decisions. 57 As the age of science has flourished, science and medicine have increasingly permeated the

law and played crucial roles in the courtroom. 58

In criminal law, the emergence of DNA sampling has resulted in the exoneration of those who were unjustly convicted and

has *514 provided greater confidence in the reliability of future convictions. 59 In tort law, courts are constantly confronted

with causation or risk of injury determinations, which rely heavily on scientific or medical information. 60 In patent law, cases

are heavily immersed in, and decisions frequently hinge upon, technical or scientific information. 61 And, in recent years, the

Supreme Court has examined scientific and medical issues ranging from the propriety of statistical sampling techniques in the

undercounting of certain identifiable groups on the decennial census, 62 to the constitutionality of a state psychopath statute, 63

to the constitutional question of whether the right to liberty in the Due Process Clause of the Fourth Amendment affords citizens

a “right to die.” 64

As our scientific world has grown increasingly complex, courts have become increasingly wary of exposing juries to such

potentially confusing evidence. Additionally, courts have recognized the inherent weight and persuasiveness the designation of

“scientific evidence” can have in the minds of triers of fact. Bolstering that concern, some research suggests that as evidence

becomes more complex and difficult to comprehend, jurors shift their focus to “peripheral indicia of reliability such as the

expert's qualifications or demeanor,” and are more likely to defer to the expert's opinion rather than forming their own. 65 This

deference to *515 scientific evidence has been labeled by some courts as the “aura of infallibility.” 66 Furthermore, a few

recent case reports of wrongful convictions have exacerbated those concerns of juror over-reliance on “scientific evidence.” 67

Nevertheless, in hopes of diminishing the admission of unreliable testimony, courts and legal scholars, both domestic and

international, have endeavored to define sound scientific evidence. The Daubert Court stated:

The adjective “scientific” implies a grounding in the methods and procedures of science. . . . “Science is not an encyclopedic

body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations

about the world that are subject to further testing and refinement” . . . . Proposed testimony must be supported by appropriate

validation--i.e., “good grounds,” based on what is known. 68

In the words of one learned commentator, evidence is scientifically valid if “it results from sound and cogent reasoning.” 69

Other scholars, echoing the Court's decisions in Daubert and Kumho state, “[i]t is how conclusions are reached, not what the

conclusions are, that makes them ‘good science.”’ 70 In the words of the Honorable Stephen Breyer, Associate Justice of the

Supreme Court:

*516 The search is not a search for scientific precision. . . . A judge is not a scientist, and a courtroom is not a scientific

laboratory. But consider the remark made by the physicist Wolfgang Pauli. After a colleague asked whether a certain scientific

paper was wrong, Pauli replied, “That paper isn't even good enough to be wrong!” Our objective is to avoid legal decisions

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that reflect that paper's so-called science. The law must seek decisions that fall within the boundaries of scientifically sound

knowledge. 71

In the United Kingdom, the Law Commission recently proposed reformation of English Law with regards to admissibility of

expert scientific evidence. 72 After a comprehensive review of the topic, the Commission found the Daubert court's analysis

and conclusions regarding the admissibility of expert scientific testimony and evidence to be cogent, sound, and, ultimately,

convincing. 73 Noting that many judges in England and Wales were already making admissibility decisions based upon the

Daubert standard, the Commission recommended formal adoption of Daubert's “gate-keeping” role for a trial judge and

Daubert's validity-based (reliability and relevance) admissibility test for expert scientific evidence. 74

Although many have judged the trilogy (Daubert, Joiner and Kumho) to be a laudable attempt to bridge the treacherous

crosscurrents of science and law, numerous issues regarding the determination of “sound scientific testimony” have remained

unanswered. For example, with regards to the “analytical gap” between research data and expert opinion addressed in Joiner, 75

what is a sufficient amount and quality of evidence an expert may rely upon in bridging that “gap” in forming his/her opinion?

Are medical textbooks (which are essentially expert treatises) authoritative references upon which experts may rely in forming

their opinions? With regards to the “intellectual rigor” test of Kumho, what will be the applicable standard of professional

practice to apply when, as often occurs in medical practice, multiple disciplines *517 are involved? Who determines the

applicable standard of professional practice? Individual experts? National organizations? Additionally, some have echoed

concerns about the onerous burden Daubert's gate-keeping requirements have placed on the single trial judge. 76 As the

Honorable Judge Alex Kozinski of the Ninth Circuit Court of Appeals stated:

Our responsibility, then, unless we badly misread the Supreme Court's opinion, is to resolve disputes among

respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is

no scientific consensus as to what is and what is not “good science,” and occasionally to reject such expert

testimony because it was not “derived by the scientific method.” Mindful of our position in the hierarchy

of the federal judiciary, we take a deep breath and proceed with this heady task. 77

Empirical evidence has substantiated Judge Kozinski's concerns. In a 2001 survey of 400 state court judges, 96% of the

judges failed to demonstrate even a basic understanding of two of the four Daubert criteria. 78 When assessing the concept of

“falsifiability,” a principle specifically enunciated in Daubert, 96% of *518 the judges lacked even a basic understanding of

this core scientific concept. 79 When asked to comment on the value of Daubert to their decision-making process, only 55% of

judges found Daubert to provide a “great deal” of value. 80 Consequently, the researchers concluded that “[t]he survey findings

strongly suggest that judges have difficulty operationalizing the Daubert criteria and applying them . . . .” 81

Expectedly, the courts have grappled with confusion and responded with variable and inconsistent decisions. Some courts have

attempted to reduce determinations of sound scientific evidence to “simple all-or-nothing rules, such as . . . doubling . . . the

background rate of disease as proof of causality.” 82 Some have required peer-reviewed studies 83 or statistical data 84 prior

to admitting expert testimony. Some have dismissed case reports as non-scientific, 85 whereas other courts have given them

significant weight. 86 Finally, some courts have disallowed expert testimony when such reliance was based primarily upon

“animal studies [, have] cautioned against extrapolation of dosage levels, and [have] objected to generalization across similar

substances.” 87

Whereas courts once greeted scientific evidence and testimony with deferential respect and relative trust, recent empirical data

demonstrates that the legal pendulum has swung the other way. An *519 “analysis by the Rand Corporation of a sample of 399

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published and unpublished federal district court decisions” demonstrated a more restrictive approach by federal courts to the

admissibility of scientific testimony and a shift “toward excluding proffered scientific and technical evidence.” 88 Additionally,

a recent survey of federal judges and attorneys by the Federal Judicial Center “confirmed a shift toward more demanding

standards for admissibility” of scientific testimony and evidence. 89 In the words of one learned commentator, “[t]he courts

appear to be asserting standards that they attribute to the medical profession, but that are inconsistent and sometimes more

demanding than actual medical practice.” 90

2) The Medical Perspective

If the objective of law is justice, then the objective of medicine is to care for the patient. To truly understand the medical

perspective, one must understand and accept the canon that medicine is inherently, by its nature, an inexact science. 91 There are

aspects of medicine (for example laboratory research), which are more scientific in nature. But the fields of medicine that deal

with direct patient interaction, also known as clinical medicine, are not exclusively scientific. The human interaction inherently

introduces variables (such as the nuances of effective communication and an individual's behavioral, social, economic, and

cultural norms and biases) that are not readily reducible to empirical scientific data and most certainly affect the outcome. The

medical provider's judicious interplay of the human variable with the scientific data of the *520 human body is what has been

termed by many as the art 92 of clinical medicine. 93

It is important to understand that the designation of an “art” is not a relegation to imprecision or lack of reliability. On the

contrary, clinical medical decision-making is grounded in the roots of the scientific method. As Dr. Mark McClellan, Co-

Chair of Institute of Medicine's 2007 Annual Meeting, stated, “[physicians'] education includes the scientific basis of health

and disease. They have been trained to use scientific literature to compare alternative approaches to diagnosis and treatment.

They do their best to stay up-to-date through reading and conferences.” 94 Additionally, physicians receive basic training on

statistical analysis, often apply those principles to critically evaluate the medical literature, and sometimes pursue advanced

degrees in statistical expertise (like biostatistics or epidemiology).

While the cognitive underpinnings of the diagnostic process are rational and scientifically sound, ultimately, “[a]ll diagnostic

hypotheses represent probabilistic judgments . . . that have variable probabilities of being correct.” 95 Furthermore, physicians

are as susceptible as anyone to biases, preconceptions, or “intrusions of emotion,” any or all of which can influence clinical

judgment and actions. 96 Physicians can, and do, avoid, or at least minimize, errors in cognition by maintaining awareness of

the pitfalls of heuristics, and how personal biases and emotional temperature can affect them. 97

*521 Physicians have continually reflected upon the clinical decision-making process, repeatedly assessing its cogency and

need for improvement. 98 As technologic advancements in medical informatics occurred in the 1970s and 1980s, large volumes

of medical literature were synthesized into computer indices and became available for large-scale statistical analysis. 99 This

bred a new type of medical evidence, the systematic review. 100 On the heels of these technologic innovations, and the

consequent ability to conduct comprehensive reviews of large volumes of medical literature, the Evidence-Based Medicine

(EBM) movement came afoot. 101

EBM has been characterized by one of its pioneers, Dr. David Sackett, as the “conscientious, explicit, and judicious use

of current best evidence in making decisions about individual care.” 102 Dr. Harvey Fineberg, President of the Institute of

Medicine, recently stated that, “[t]he central notion in EBM [is] the importance of integrating individual clinical expertise

with the best available external evidence.” 103 This will provide “a helpful framework for providers to navigating uncertainty

inherent in patient care.” 104 In fact, most healthcare providers strive to be “evidence-based” in their *522 practice. 105

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Despite an increased focus on “evidence basis” in their practice, “studies repeatedly show marked variability in what healthcare

providers actually do in a given [clinical] situation.” 106 Many had hoped that EBM would be the panacea to the judicial pains

over medical practice guidelines and interpretation of medical evidence. However, as lingering controversies between reputed

medical bodies 107 demonstrate, it has not been that panacea. 108 Additionally, there are some areas of medicine, where the

evidence is so sparse, that EBM simply cannot be instructive either for Medicine or Law. 109

Ultimately, the physician must sagely balance his scientific knowledge, underscored by statistical data, his emotional

temperature and potential biases, and the myriad complexities that make up the “human” variable. “Statistics cannot substitute

for the human being before you; statistics embody averages, not individuals. Numbers can only complement a physician's

personal experience . . . .” 110 That is the “Art” of Clinical Medicine. Explicit evidence is only a portion of what physicians do.

II. Abusive Head Trauma as a Medical Diagnosis

“Those who cannot remember the past are condemned to repeat it.” 111

George Santayana

*523 A. History

Much of what we currently know about AHT is the result of decades of meticulous, tireless work by physicians from various

disciplines from all over the world. 112 Many of these historical clinicians did not have the benefit of advanced laboratory or

radiographic techniques such as coagulation (clotting) studies, CTs or MRIs. They relied only upon their clinical skills and

acumen. As time and medical technology have evolved, additional studies have corroborated their clinical suspicions, lending

further credence to their clinical acumen.

While it can safely be said that the medical community, and society in general, did not recognize child abuse as a valid entity

until the mid-twentieth century, it was a French forensic physician, Auguste Ambroise Tardieu (fig. 1), who penned the first

detailed medical description of child abuse in his 1860 publication Etude Medico-Legale sur les Sevices et Mauvais Traitements

Exerces sur des Enfants (Forensic Study on Cruelty and Ill Treatment of Children; fig. 2). 113 Tardieu was the leading forensic

expert of his time, holding prestigious positions such as dean of the faculty of medicine at the University of Paris and president of

the French Academy of Medicine. 114 He published works on child physical abuse, child sexual abuse, and child labor laws. 115

In his 1860 publication, Tardieu detailed thirty-two cases of child abuse, describing bruises of varying colors, skeletal fractures,

and subdural hemorrhages (SDHs). 116 Tardieu also described findings of infanticide, including cases without external signs

of injury, but where hemorrhage in the brain and collections of blood *524 over the brain were described. 117 In these

writings, Tardieu clearly expressed his belief that the abuse was inflicted by parents or caretakers of the child. 118 Although

his considerable influence led to revision of French child labor laws, Tardieu's works on child abuse went unappreciated and

essentially ignored. 119

The mid-to-late nineteenth century was a period of significant medical advancements. 120 Secondary to the works of Louis

Pasteur and others, Germ theory became the predominant explanation for previously unexplained maladies. 121 Diseases such

as scurvy, rickets, and even SDHs, were thought to be infectious. 122 A highly prominent physician, Rudolf Virchow, proposed

the theory that SDHs, because they frequently presented with a membrane, were caused by inflammation and infection. 123 He

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termed this theory “pachymeningitis hemorrhagica interna”. 124 Because of Virchow's significant stature within the medical

community, and because the theory fit within the greater framework of the prevailing germ theory, the inflammation/infection

theory of SDHs (“pachymeningitis hemorrhagica interna”) was accepted for many decades. 125

It was not until the early twentieth century that trauma began to be realized as an important cause of SDHs. 126 While earlier

reports of the 20 th century (despite a significant lack of evidence) still tended to support infectious or nutritional deficits as

the cause of the SDHs, *525 later reports began to identify trauma as the primary etiology. 127 Additionally, many of those

reports documented the association of SDHs, ophthalmic hemorrhages, and sometimes bone lesions in infants. 128

In 1914, the prominent British neurosurgeon, Wilfred Trotter (fig. 3), published a report declaring trauma as the true cause of

SDHs. 129 Trotter was a distinguished and accomplished physician who held many significant positions, not the least of which

was his position as private physician to King George V. 130 Frustrated by the term “pachymeningitis hemorrhagica interna,”

Trotter asserted that the term presumed an infectious or inflammatory etiology and thus was a misleading hypothesis. 131

Trotter stated, “[h]aemorrhagic pachymeningitis is almost if not quite invariably a true traumatic haemorrhage coming from

veins torn in their course between the brain and a dural sinus.” 132 Trotter's work paved the way for other physicians,

especially neurosurgeons, to re-examine the pathophysiology of SDHs. 133 As a consequence, multiple case reports by well-

reputed physicians began to question other previously well-recognized causes-- syphilis, 134 hydrocephalus, 135 nutritional

(scurvy), 136 and other infectious 137 --as the primary *526 etiology for SDHs. 138

Then, in 1946, Dr. John Caffey (considered by many to be the father of pediatric radiology), examined the correlation of SDHs

and long bone fractures in a separate field of medicine--radiology. 139 After seeing repetitive cases of injuries over many years,

Caffey published a case series of six infants with SDHs and long bone fractures. 140 In none of the six cases was there a historical

report of trauma or of systemic disease. 141 Nevertheless, after systematically ruling out all other causes, Caffey concluded

that trauma was the most logical etiology for these radiologic findings. 142 Caffey even associated the retinal hemorrhages in

several of these cases to trauma. 143 Caffey, however, was reluctant to conclude inflicted injury in these cases. 144

Secondary to Caffey's work, in 1953, another prominent radiologist, Frederic Silverman, catalogued radiographic signs of what

he termed to be the “most common bone ‘disease’ of infancy”: skeletal trauma. 145 In identifying trauma as the most common

cause of SDHs and bone fractures in infants, Silverman meticulously ruled out all nutritional and metabolic causes. 146 In

the two decades following Caffey's historic article, multiple articles from national and international authors confirmed the

association of SDHs with *527 inflicted trauma. 147

It was not until 1962 that the work of an eminent pediatrician, C. Henry Kempe (fig. 4) and his colleagues (radiologist Frederic

Silverman and psychiatrist Brandt Steele) brought the issue of child abuse to the medical and national forefront. In their landmark

article, The Battered-Child Syndrome (fig. 5), Kempe et al. carefully and thoughtfully described a syndrome of various injuries,

including SDHs, that resulted from trauma. 148 However, unlike the vast majority of physicians that preceded them, Kempe

et al. concluded that these injuries resulted from the intentional acts of parents or other care-givers. 149 Kempe et al. stated

that abuse:

should be considered in any child exhibiting evidence of fracture of any bone, subdural hematoma, failure

to thrive, soft tissue swellings or skin bruising, in any child who dies suddenly, or where the degree and

type of injury is at variance with the history given regarding the occurrence of trauma. 150

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In support of their conclusions, the authors had surveyed 71 hospitals nationwide, with a report of over 300 cases in which 33

children had died and 85 had suffered permanent brain damage in one year. 151

*528 As a consequence of Kempe et al.'s historic work and the general medical community's increasing acceptance of child

abuse as a viable medical diagnosis, case reports continued to publish the presence of concurrent SDHs, retinal hemorrhages,

and bony lesions in infants, often without external signs of trauma. 152 Finally, in the early 1970s, based upon the work of

Wilfred Trotter, numerous case reports, and the experimental biomechanical evidence of Ommaya and his colleagues, 153 a

British neurosurgeon, A. Norman Guthkelch, and the father of pediatric radiology, John Caffey, proposed shaking or whiplash

injury as the cause of infantile SDHs. 154

In theorizing that multiple acceleration and deceleration events, caused by head shaking, resulted in the intracranial injuries,

Guthkelch stated that, “the relatively large head and puny neck muscles of the infant must render it particularly vulnerable

to whiplash injury.” 155 Meanwhile, Caffey published a series of case reports identifying the “pattern of concurrent SDHs,

[sometimes] bony lesions, and retinal hemorrhages in infants thought to be injured by shaking.” 156 In fact, in the words of

two learned authors: “It is difficult to comprehend how the common association between SDH and skeletal injuries, and the

etiologic factors [trauma] linking the two, could have eluded the scrutiny of all but a handful of physicians and surgeons dealing

with children until Caffey reported *529 his historic observations.” 157

B. “A Flawed Science”? 158

As mentioned earlier, certain legal scholars have asserted that “the scientific underpinnings of SBS have crumbled over the past

decade,” 159 that the medical research underlying “SBS is a flawed science” 160 predicated upon “circular reasoning,” “data

gaps,” and “inconsistency of case definition,” 161 and that “as technology and scientific methodology advanced, researchers

questioning the basis for SBS reached a critical mass.” 162 In order to appropriately assess the sufficiency of the scientific

evidence underlying AHT/SBS, some basic statistical concepts must be discussed.

1. Basic Statistical Principles & Quality of Evidence

Statistical evidence is an important complement to the practice of clinical medicine. Statistical evidence can offer probabilities

and estimations of the risk of disease states in certain patient populations. It can help guide determinations of appropriate and

inappropriate diagnostic testing in certain clinical scenarios. Moreover, it can provide empirical support for optimal therapeutic

interventions in cases where treatment is warranted. However, statistical evidence cannot substitute for clinical judgment. It

is a complement, not a replacement.

The field of statistics generally encompasses collecting, analyzing, presenting, and drawing inferences from data. 163 For the

limited purposes of this article, we will review the general statistical *530 principles involved in collecting and drawing

inferences from data. 164

a. Collection of Data

It has been stated that “[a]n analysis is only as good as the data on which it rests.” 165 The attainment of valid, reliable data

is, to a large extent, determined by the design of the study. 166 When the issue is causation, there are three general types of

explanatory information provided: anecdotal evidence, observational studies, and controlled experiments. 167 Each of these

types of information has its limitations. 168

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Anecdotal reports, while offering information that can be the stimulus for further study, can be misleading and, therefore, are

insufficient to conclusively establish association. 169 Observational studies can provide strong evidence of association, but

further analysis is necessary “to bridge the gap from association to causation.” 170 And controlled experiments, while ideal for

determining causation, are often too expensive and cumbersome to undertake. 171 Examples of observational studies include

case reports or case reviews, where as examples of controlled experiments include randomized controlled trials (RCTs) or non-

randomized *531 controlled studies (such as non-randomized dose finding studies). 172 Because observational studies and

controlled experiments are the more reliable types of information, 173 it is important to understand the value of, and distinction

between, the two.

“In a controlled experiment, the investigators decide which subjects are exposed to the factor of interest and which subjects go

into a control group.” 174 In “observational studies, the subjects themselves choose their exposures.” 175 Thus, in observational

studies, the experimental” (or “treatment”) group will most likely differ from the control group “with respect to . . . [many]

factors other than the one of primary interest. 176 These many “other factors” are also known as “confounding variables,” and

could be limitations to the validity of the results if not properly accounted for in the design of the study. 177 “In randomized

controlled experiments, investigators assign subjects to [experimental (or “treatment”) and] control groups at random.” 178 By

assigning subjects randomly to either the experimental or control groups, the investigator “tends to balance the groups with

respect to possible confounders,” thus enhancing the likelihood that the groups are comparable except for the factor of interest

(or treatment). 179

It is noteworthy that “[t]he bulk of the statistical studies . . . [presented] in court are observational, not experimental.” 180

Observational studies (i.e., case reports and case reviews) can provide compelling evidence when certain circumstances are

present:

*532 1) When “[t]he association is seen in studies of different types among different groups” (“This reduces the chance that

the observed association is due to a defect in one type of study or a peculiarity in one group of subjects.”);

2) “[W]hen the effects of plausible confounding variables are taken into account by appropriate statistical techniques;” and

3) When “[t]here is a plausible explanation for the effect of the independent variables.” 181

In general, “observational studies succeed to the extent that their [experimental (or treatment)] and control groups are

comparable.” 182 If a study is well designed, accounting for confounding variables, it is deemed to be internally valid. 183

However, the generalization of the conclusions of a study, or its “external validity,” is a different matter. 184 Finally, a study

is “reliable” if its results are reproducible by scientists in separate studies. 185

In the realm of clinical medicine, observational studies are not just the norm but the cornerstone of medical diagnoses. Almost

all well-established, undisputed medical diagnoses have no randomized controlled trials (RCTs) supporting or validating their

diagnostic criteria. For example, migraine headaches have an extensive historical basis in the medical literature for evaluation,

diagnosis, and therapy. In fact, the International Headache Society lists clear diagnostic criteria for migraine headaches, and

provides the most up-to-date medical literature in support of that diagnostic criterion. 186 Yet, throughout the extensive body

of medical literature on migraine headaches, there is not one RCT evaluating the diagnostic criteria for migraine headaches, or

their validity. But *533 there is no dispute regarding the validity of migraine headaches as a medical diagnosis. 187 Such is

also the case for multiple other well-established, undisputed, common medical diagnoses--viral upper respiratory infections (the

common cold), community acquired pneumonia, otitis media (ear infection), depression, and all other psychiatric disorders. In

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short, the requirement that an RCT is necessary in order to validate diagnostic criteria of a particular medical diagnosis is not

only inaccurate but also inconsistent with the vast majority of clinical medicine. 188

At this point, it is relevant, and important, to examine one piece of medical literature which is often cited by opponents 189

of AHT as evidence of the paucity of sound medical literature on AHT (SBS): “Evidence-Based Medicine and Shaken Baby

Syndrome Part 1: Literature Review, 1966-1998.” 190 In this four-page article, the author proffers “neutrality,” and proceeds to

educate the reader about properly conducted studies, with sound methodological design, which fall into a “quality of evidence

ratings” system. 191 Based upon the author's search of the Medline database, and the Internet via “Internet Explorer,” using only

the search term “shaken baby syndrome,” the author finds only seventy-one articles (in a span of thirty-two years of medical

literature) on the topic of AHT (SBS). 192 The author then reduces those seventy-one articles to fifty-four because some of the

articles “only peripherally mention” SBS or are somehow “unrelated” to SBS. 193 Of those fifty-four remaining *534 articles,

the author finds only one “randomized control trial” and twenty-six case series (twenty-five retrospective and one prospective),

and a total of 307 cases of SBS. 194 Based upon the author's review of this literature, he concludes that in studies conducted

before 1999 there exist “serious data gaps, flaws of logic, [and] inconsistency of case definition” in SBS; catch-phrases which

have been frequently reified in some medical and legal literature. 195 Consequently, the author concludes that “the commonly

held opinion that the finding of SDH and RH in an infant was strong evidence of SBS was unsustainable, at least from the

medical literature.” 196

Evidence-Based Medicine and Shaken Baby Syndrome Part 1: Literature Review, 1966-1998 is a prime example of poor

medical literature, which somehow makes its way into a medical publication. Ironically, the article itself suffers from fatal

methodological flaws and data gaps, but professes to assess the methodology of SBS studies and finds “data gaps” in them. 197

It is unclear why, and unacceptable that, the author chooses to conduct his search with the confining search term of “shaken

baby syndrome.” The author fails to search other common terms such as “inflicted neurotrauma,” “non-accidental trauma,”

“whiplash shaken infant/baby syndrome,” or even more general terminology such as “subdural hemorrhage/hematoma” or

“retinal hemorrhage.” 198 Because of this methodological flaw, as will be demonstrated below, the author misses the vast

majority of literature on AHT and even the seminal articles by Guthkelch and Caffey. 199 Additionally, the author offers no

critical analysis of any of the articles cited, no assessment of the designs of any of the individual studies, no reference to the

statistical information, and no analysis of any of the statistical data *535 or the inferences drawn from them. 200

Finally, the author incorrectly uses the quality of evidence ratings system. The author asserts that the best evidence is “Level

1” quality of evidence (RCTs), and this is not found in the diagnostic studies involving AHT/SBS. 201 However, as discussed

above, RCTs (the “Level 1” quality of evidence) are NOT appropriate for diagnostic studies. The AHT literature, like many

other diagnoses (such as migraine headaches), should not be criticized for the existence of a “higher” level of evidence that

is inappropriate to the question being asked. Thus, even the most ardent EBM advocate would admit that the best quality of

evidence that can be expected in diagnostic studies is “Level 2” evidence (well-designed case series). And of this, as will be

detailed below, there is abundant evidence in the AHT literature.

It is troubling that legal scholars and some courts have relied upon this article as an adequate assessment of the medical literature

surrounding AHT. 202 Any future reliance upon this article should be seriously questioned.

b. Drawing Inferences from Data

Upon attainment of data, an investigator must determine what significance should be given to that data. In so doing, the

investigator must determine whether the results obtained are attributable to random error. 203 Did “chance” produce the

results? 204 Would a different pattern emerge if more data were collected? 205 In assessing the potential impact of chance error,

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an investigator must consider the precision of the data (i.e., the standard deviation and *536 degree of confidence) and the

statistical significance (the p-value) of the data. 206

In assessing precision of the data, a standard deviation (or standard error) gives the investigator an estimate of the magnitude

of random error. 207 A standard deviation is a variability range of data from the “mean” of the data. 208 Assuming a normal

distribution of data, one standard deviation from the mean of data is commonly understood to encompass 68% of the data. 209

For example, the average height for adult women in the United States is about 64 inches, with a standard deviation of around

3 inches. 210 This means that most women (about 68%, assuming a normal distribution) have a height within 3 inches of the

mean (61-67 inches). 211 Two standard deviations from the mean encompass 95% of the data. 212 Thus, in our example with

height of adult women in the United States, two standard deviations would be a height within 6 inches of the mean, or 58-70

inches. Since the standard deviation “measures the likely size of the random error[, i]f the standard deviation or error is small,

the estimate probably is close to the truth.” 213

Confidence intervals are another manner of expressing reliability in the interval data. 214 Again, assuming a normal distribution

curve, a 95% confidence interval indicates a range of data from -2 standard deviations to +2 standard deviations. 215 “A *537

high confidence level alone means very little, but a high confidence level for a small [data] interval is impressive, indicating

that the random error in the . . . [interval] is low. 216

In assessing statistical significance, it is important to understand the concept of the p-value. The p-value is “[t]he probability of

getting, just by chance, a test statistic as large as or larger than the observed value.” 217 In more simple terms, it is the probability

the result obtained is secondary to chance. 218 In social sciences and medicine, this “observed significance level” (the p-value)

is usually set at 5% (or 0.05) for “statistically significant,” 1% (or 0.01) for “moderately high” statistical significance, and 0.1%

(or 0.001) for “high or strong” statistical significance. 219 Thus, “[i]f p is smaller than 5% [(or 0.05)], the result is said to be

‘statistically significant.”’ 220 Small p-values speak against the hypothesis that the *538 result can be explained by chance,

while large p-values indicate that chance cannot be ruled out as an explanation for the data. 221

A few other statistical concepts in clinical medicine are important to discuss briefly: “sensitivity,” “specificity,” “positive

predictive value,” “negative predictive value,” and “odds ratio.” “Sensitivity” is “the probability that a test for a disease will

give a positive result” when the patient actually has the disease. 222 Put simply, it is actually the chance the condition will

be found by the test. 223 “Specificity” is “the probability that a test for disease will give a negative result when the patient

does not have the disease.” 224 Put simply, it is the chance that someone without the disease will actually have a negative

test. 225 “Positive predictive value” is the proportion of patients who have positive test results and actually have the disease

or condition. 226 This value is very important in diagnostic testing as it reflects the probability that a positive test reflects the

underlying condition being tested. 227 “Negative predictive value” is the “proportion of patients with negative test results who

are correctly diagnosed.” 228 “An “odds ratio” is a way of comparing whether the probability of a certain event is the same for

two groups.” 229 “An odds ratio of one implies that the event is equally likely in both groups. 230 An odds ratio greater than

one *539 implies that the event is more likely in the first group.” 231

2. The Statistical Evidence

The peer-reviewed medical literature on the topic of AHT is voluminous. It is somewhat confusing how any author could assert

there is a paucity of “quality” medical literature on the topic. 232 In hopes of clarifying and substantiating this matter, this author

has compiled a brief bibliography (Appendix A) 233 of the peer-reviewed medical literature on the topic, organized by types

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of articles in the various subspecialties, so the reader may judge the literature for himself/herself. 234 A critical analysis of the

quality of some of that literature will be discussed herein below.

In general, there have been at least two treatises, comprising more than 880 pages, on the topic of AHT. 235 Additionally, there

are at least 14 chapters, comprising another approximate 260 pages, on the topic of AHT within larger child maltreatment/

abuse texts. 236 In addition to that, there are over 700 peer-reviewed, clinical medical *540 articles, 237 comprising thousands

of pages of medical literature, published by over 1000 different medical authors, from at least 28 different countries 238 on

the topic of AHT. Furthermore, the topic of AHT has been examined, studied, and published in the following disciplines:

biomechanical engineering, general pediatrics, neonatology, neurology, neurosurgery, nursing, obstetrics, ophthalmology,

orthopedics, pathology (including forensic pathology), radiology, and rehabilitative medicine.

With regards to the “quality” of medical literature, it bears remembering that retrospective reviews are not inherently (by

the nature of being retrospective or non-randomized) unreliable. It is the design of the review and the quality of the analysis

(i.e., accountability for bias, confounding variables, interpretation of data, etc.) that determines the validity of the results.

Nevertheless, even with that proviso, there have been at least eight systematic reviews, over fifteen controlled trials, over

fifty comparative cohort studies or prospective case series, and numerous well-designed, retrospective case series/reports,

comprising thousands of cases, supporting the diagnosis of AHT. 239 As will be discussed in detail below, in this author's

review of all of the published, peer-reviewed, clinical *541 medical literature (greater than 700 articles), there is not one

clinical study that demonstrates a greater statistical association of either subdural hemorrhages or retinal hemorrhages with

accidental trauma over abusive head trauma. Additionally, since there has been criticism of the questionable “quality” of the

medical literature supporting AHT (i.e., a lack of randomized, controlled studies), 240 it is important to note that almost all of

the papers “questioning” the validity of AHT (save two or three) are non-randomized, retrospective case series/reports, and

without comparative control groups. In fact, many are single case reports.

a. Subdural Hemorrhages

The differential diagnosis (i.e., list of potential causes) for subdural hemorrhages (SDHs) is extensive. A summarized list of

those causes is detailed in Appendix B. When traumatic, the mechanism for the SDH is either a contact (or impact) force or

an inertial (acceleration-deceleration) force or both. 241 “Contact . . . [forces] cause damage at the site . . . [where] contact

occurs. 242 “Disruption of the skull's integrity secondary to the contact force can result in a disruption of the underlying blood

vessels and consequent development of a hemorrhage. 243 These hemorrhages can be epidural (outside the dura mater), subdural

(in the potential space underneath the dura mater), or, sometimes, intradural (within the layers of the dura). 244 In inertial events,

the acceleration-deceleration motion of the brain results in strain upon the cortical bridging veins, which exceeds their tolerance

levels and subsequently leads to rupture and hemorrhage (subdural and/or subarachnoid). 245

Although there are many potential causes of SDHs, several *542 studies indicate that trauma is the most common cause. 246

In one such prospective study of all infants ages zero to two in the U.K. and the Republic of Ireland, from 1998 to 1999, Hobbs

et al. identified 186 infants with SDHs (by CT, MRI, ultrasound, or post-mortem examination). 247 Of the 186 infants with

SDHs, 113 (61%) had SDHs caused by trauma, 30 (16%) by infection or other non-traumatic medical cause, and 43 (23%) by

an undetermined cause. 248 Of the 113 traumatic SDHs, 106 (94%) were determined to be of non-accidental etiology, and only

7 (6%) were determined to be accidental. 249 Similar results were noted in retrospective reviews by Jayawant et al. in Wales

and southwest England from 1993 to 1995, Trenchs et al. in Barcelona, Spain from 1995 to 2005, and Tzioumi & Oates' in the

Royal Alexandra Hospital for Children in Australia. 250

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Feldman et al. confirmed a predominance of non-accidental injury over accidental injury as the etiology of SDHs in their

2001 prospective study of 66 children, under age three, with SDHs. 251 Feldman et al. excluded patients that presented with

SDHs secondary to known hemorrhagic disease (i.e., bleeding disorder), prior neurosurgical procedure, previously recognized

perinatal (i.e., near birth) brain injury, or infection. 252 In efforts to avoid “circularity” concerns, Feldman et al. designed their

study such that retinal hemorrhages (RHs) were not a part of the classification *543 criteria for intentional injury. 253 In their

cohort, Feldman et al. found that of the 66 patients, 39 (59%) patients were confirmed as suffering intentional injury, 15 (23%)

were unintentional or accidental, and 12 (18%) were undetermined. 254

Pathology studies have also confirmed the predominance of trauma, and more specifically non-accidental trauma, as the cause

of SDHs. 255 In 2009, Matschke et al., published the results of their fifty-year retrospective review of the causes of death for

infants less than one year old. 256 Of 715 infant deaths, only 50 infants (7%) were identified with SDHs. 257 Of those 50

SDHs, 15 (30%) were traumatic, 13 (26%) were secondary to bleeding/clotting disorders, 13 (26%) were perinatal, 4 (8%)

were infectious, 4 (8%) were undetermined, and 1 (2%) was secondary to metabolic disease. 258 Of the traumatic SDHs, 14

(93%) were secondary to non-accidental trauma, and only 1 (7%) was accidental. 259 Thus, Matschke et al. concluded that

“most . . . [SDHs are] attributable to trauma, with NAHI [(Non-Accidental Head Injuries)] substantially outnumbering accidental

injuries . . . .” 260

Although SDHs are not specific 261 for non-accidental injury, several well-designed prospective studies demonstrate a

significant and strong association of SDHs with non-accidental/inflicted trauma over accidental trauma. 262 In 1992, Duhaime

et al. published *544 the results of their prospective study of 100 patients less than two years of age who suffered head

injuries. 263 In efforts to avoid “circularity” concerns, Duhaime et al. used strict criteria for determining “inflicted” injury. 264

The authors excluded retinal hemorrhages (RHs) as a diagnostic criterion, and they only included SDHs that had no history of

trauma but had clinical or radiologic findings of blunt impact to the head. 265 Thus, the authors designed an algorithm, which

was “deliberately biased to reduce false positives and thus may underestimate the true incidence of child abuse.” 266 In Duhaime

et al.'s cohort, 76 patients were determined to be from accidental causes and 24 were determined to be “inflicted.” 267 Duhaime

et al. found that only 3 out of 76 (8%) patients in the accidental group had SDHs, while 13 out of 24 (54%) patients in the

“inflicted” group had SDHs. 268 This computed to a p-value of less than 0.0002, meaning these findings could have occurred

by random chance no more than two times in 10,000 patients. 269 Thus, Duhaime et al. concluded that the relationship between

inflicted injury and SDHs was highly statistically significant. 270

In 2004, Bechtel et al. produced similar results. 271 The authors prospectively studied 82 children, age zero to twenty-four

months, who were admitted to Yale New Haven Children's Hospital from *545 August 2000 to October 2002 for head

trauma. 272 In avoiding “circularity” concerns, the authors classified “inflicted” head injury only if there was clear evidence of

head injury and no trauma history provided, if there was a traumatic history incompatible with the developmental capabilities

of the infant, if there was a confession of inflicting the injury, if there was a witnessed inflicted injury, or if there was evidence

of other physical injuries which were characteristic of inflicted injury (e.g., patterned bruises, etc.). 273 The authors did not

include RHs in the diagnostic criterion of “inflicted” injury. 274 Of the eighty-two patients, sixty-seven were determined to be

“accidental,” and fifteen were determined to be “inflicted.” 275 Bechtel et al. found that 12/15 (80%) patients in the “inflicted”

head injury group had SDHs, while only 18/67 (27%) patients in the “accidental” head injury group had SDHs. 276 This

computed to a p-value of less than 0.001. 277 Again, this meant that these findings could have occurred by chance or randomly

no more than one in 1,000. 278 Thus, Bechtel et al. also concluded that the association of SDHs with inflicted injury was highly

statistically significant. 279

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In 2010, Vinchon et al. published the results of their prospective series of eighty-four patients, from 2001 to 2009, with

independent corroboration of head injury. 280 In Vinchon et al.'s cohort, thirty-nine patients were witnessed accidents and forty-

five patients were confessed inflicted head injury. 281 Only 17 out of 39 (44%) witnessed accidents had SDHs, while 37 out

of 45 (82%) inflicted head injury *546 patients had SDHs. 282 This computed to a p-value of less than 0.001. 283 As with

Duhaime et al. and Bechtel et al., Vinchon et al. concluded that the association SDHs with non-accidental injury was highly

statistically significant. 284 Several other well-designed, prospective and retrospective general pediatric studies have found

similar results and come to the same conclusion. 285

Radiology studies have helped to further characterize the appearance of SDHs seen in AHT cases. Multifocal SDHs,

interhemispheric SDHs (located between the two hemispheres of the brain), and convexity SDHs (located at the front or back

“curves” of the brain) have a stronger statistical association with non-accidental trauma than with accidental trauma. 286 In

2002, Wells et al. published the results of a retrospective review of the CTs of 293 children, under age three, with intracranial

hemorrhage at the *547 Children's Hospital of Wisconsin from 1991 to 2001. 287 Blinded to the CT findings, an injury

was classified as “intentional if there was a confession of abuse, the injuries were incompatible with the stated mechanism

of injury, or the caretaker offered no explanation for the injuries.” 288 “An injury was classified as “unintentional if it was

witnessed by someone other than the caretaker or there were no discrepancies between the described mechanism and the

physical findings.” 289 Then, blinded to the clinical findings, a pediatric radiologist reviewed the CT findings for the presence

and location of intracranial hemorrhage and other intracranial abnormalities. 290 Wells et al. found that 105 out of 148 (71%)

intentional injury patients had an interhemispheric SDH, while only 21 out of 109 (19%) unintentional injury patients had an

interhemispheric SDH; and, 99 out of 148 (67%) intentional injury patients had a convexity SDH, as compared with 14 out of

109 (13%) unintentional injury patients. 291 For both these injuries, this computed a p-value of less than 0.05. 292 Thus, Wells

et al. concluded that there was a statistically significant association with convexity and interhemispheric SDHs and intentional

injury. 293 Similar results were produced by Hymel et al. and by Datta et al. 294 Additionally, in the Datta et al. study, there

was a statistically significant association with multifocal SDHs and non-accidental injury. 295

*548 Thus, with regards to the validity and reliability of the statistical evidence on SDHs and AHT, there are several well-

designed prospective studies and retrospective reviews. Additionally compelling is that the statistical results are similar along

multiple lines of research-- pathology, radiology and general pediatrics. All have produced the same results: the significant

statistical association of SDHs with non-accidental trauma over accidental trauma. This author's review of the evidence-based

medical literature has revealed no published, peer-reviewed clinical studies that conclude differently.

b. Retinal Hemorrhages

The retina is the multi-layered, inner lining of the eye. 296 The posterior pole is the area of the retina that encompasses the major

blood vessels, the macula, the fovea, and the optic nerve head (the optic disc). 297 The fovea is the area of the retina where

the central visual axis through the pupil falls. 298 The area of retina surrounding the fovea is the macula. 299 These structures

are depicted in Figures 6 and 7.

In young children/infants, the vitreous gel that fills the eye is adhered much more strongly to the macula, peripheral retina, and

the retinal blood vessels as they course on the retinal surface. 300 This difference in anatomy from the adult eye is relevant to

the theory of how RHs are formed (repetitive acceleration-deceleration forces) in the setting of AHT. 301

“Hemorrhages [can] occur on the surface of the retina (preretinal), under the retina (subretinal), or within the retinal *549

[layers (intraretinal)].” 302 Hemorrhages can have a certain appearance and size, and can be confined to the posterior pole or

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extend to the ora serrata (the edges of the retina). 303 “Flame” or “splinter” RHs are hemorrhages that lay in the superficial nerve

fiber layer of the retina. 304 “Dot” and “blot” RHs are round and amorphous-shaped hemorrhages within the deeper layers of

the retina. 305 An important form of RHs is retinoschisis--where there is splitting of the retinal layers with blood accumulating

in the intervening space. 306 Retinoschisis can sometimes be accompanied by circumlinear pleats or folds in the retina at the

edges of the schisis. 307 Retinoschisis with pleats or folds is an important finding, because, other than AHT, in children younger

than five years it has only been reported in two cases of fatal crush injuries to the head, one case of leukemia, and in cases of

severe, fatal motor vehicle accidents. 308

Mild RHs are generally understood to be a few, dot/blot or flame/splinter-shaped RHs, in the intraretinal or preretinal layers,

and confined to the posterior pole. 309 Severe RHs are generally understood to be diffuse, too numerous to count hemorrhages,

extending to the periphery of the retina (not confined to the *550 posterior pole), usually involving multiple layers of the

retina (intraretinal, preretinal or subretinal), and sometimes accompanied by retinoschisis with or without folds. 310 Mild RHs,

severe RHs, and retinoschisis are depicted below in figures 8, 9, 10.

As with SDHs, the differential diagnosis for subdural hemorrhage RHs is extensive. A summarized list of those causes is

detailed in Appendix C. Assessing the diagnostic significance of RHs requires the consideration of other medical causes and an

understanding of the spectrum of injury patterns observed in accidental trauma. Through the inferential and deductive process

of eliminating other potential mechanisms, one recognizes the significant probability that repetitive acceleration-deceleration

forces are the causative mechanism of severe RHs. 311

While several studies demonstrate an association of RHs with birth, several factors distinguish birth-related RHs from the RHs

commonly seen in AHT. 312 First, the vast majority of birth-related retinal hemorrhages are intraretinal. 313 Multi-layered RHs,

as commonly seen in AHT, have not been reported in the medical literature in association with birth. 314 Second, study of the

natural history of birth-related RHs reveals that the vast majority of these RHs resolve by two to four weeks of life. 315 This led

one author to conclude that RHs “in infants older than 1 month . . . [are] not likely related to birth”. 316 Finally, retinoschisis

(splitting of the retina) has *551 never been reported in association with birth injury. 317

The commonality, and somewhat similarity, of birth-related RHs and the RHs commonly seen in AHT compels one to consider

increased intracranial pressure or increased intrathoracic pressure as potential causative mechanisms for RHs. 318 Additionally,

because rib fractures are occasional concurrent injuries in AHT cases, increased intrathoracic pressure is naturally thought to

be implicated. 319

Studies examining the effects of chest compressions in CPR (cardio-pulmonary resuscitation) have failed to demonstrate any

severe RHs (the kind seen in AHT). 320 In one such study, Odom et al. prospectively examined the prevalence and character of

RHs in patients in a pediatric ICU who had received at least one minute of chest compressions and survived. 321 After excluding

patients that had evidence of trauma, documented retinal hemorrhages before CPR, suspicion of child abuse, or diagnosis of

near-drowning or seizures, Odom et al. found 43 patients that met inclusion criteria. 322 In fact, “[a]ll of the precipitating

events leading to cardiopulmonary arrest occurred in their intensive care unit, eliminating the possibility of physical abuse as an

etiology.” 323 Of the 43 patients, “[t]he mean duration of chest compressions was 16.4 minutes . . . with 58% lasting between

1 and 10 minutes. Five patients had chest compressions lasting less than 40 minutes, and two patients had open chest cardiac

massage. All patients survived their resuscitative *552 efforts.” 324 Odom et al. found small punctate retinal hemorrhages in

only one patient. 325 There was no patient with severe RHs. 326 Well-designed studies involving other clinical scenarios that

increase intrathoracic pressure, e.g., coughing, vomiting, or seizures, also have failed to demonstrate any of the type of severe

RHs commonly seen in AHT. 327

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With regards to increased intracranial pressure as a cause for severe RHs in children, in 2002, Schloff et al. published the results

of a prospective study, which was designed to find the incidence of RHs in children with intracranial hemorrhage and increased

intracranial pressure (also known as Terson's syndrome). 328 Only children from known non-abuse cases were included in their

study. 329 Of the 57 children studied, 27 were from known accidental trauma (MVA's, sports accidents, falls, etc.), 24 from

surgeries, and six from other causes (vessel malformations, infection, etc.). 330 Fifty- *553 five out of fifty-seven children

(96%) had no evidence of RH. 331 “One . . . [child] had a single dot hemorrhage associated with [a] presumed infectio[n] . . . .

The second . . . [child] had three flame and two deeper dot intraretinal hemorrhages.” 332 She was the victim of a motor vehicle

accident. 333 No child had severe or multi-layered RHs. 334 These results accord with the retrospective review conducted by

Morad et al., also published in 2002. 335

Furthermore, the postulated mechanism of RHs in the setting of increased intracranial pressure--obstruction of venous outflow

from the eye (i.e., blood flowing out of the eye, through the head, and back towards the heart)--produces a pattern of hemorrhages

that is not the pattern of hemorrhages seen in AHT. 336 The accidental head injury literature also demonstrates no severe RHs,

and many of the children in those studies experienced increased intracranial pressure. 337

On the other hand, several lines of research and analysis point towards acceleration-deceleration forces at the vitreo-retinal

interface (remembering, from above, that the anatomy of an infant is *554 such that the vitreous gel is much more strongly

adherent to the retina than in adults) as the causative mechanism for severe RHs. 338 First, “the pattern of hemorrhages . . . [in

severe RHs] correlates with the . . . anatomy [of the eye in] the young child where[] the vitreous is most adherent with blood

vessels” (in the periphery of the retina, and in the area of the posterior pole where retinoschisis occurs). 339 Second, severe

RHs are not commonly seen in single acceleration-deceleration traumatic events (such as motor vehicle accidents and falls). 340

Third, in fatal cases, postmortem studies reveal that the vitreous is often still attached at the top of retinal folds, indicating a

traction mechanism. 341 Finally, as will be detailed below, there is an extremely high, statistically significant association of

severe RHs with AHT. 342

In 2005, Vinchon et al. sought to study the diagnostic significance of RHs in cases of child abuse. 343 Their prospective study of

150 children included all children under two years old, who were admitted with head injury over a three year period. 344 Utilizing

the strict algorithmic criteria of Duhaime et al. (discussed above) for determining “inflicted” injury, Vinchon et al. identified

57 cases of abuse, 88 eighty-eight accidental cases (household, birth trauma, and traffic accidents), and five undetermined. 345

Retinal data was available for 129 children (56 abuse, 73 accidents). 346 Moderate to severe RHs were found in 37 cases, all

of them “abuse”. 347 Vinchon et al. found the sensitivity, specificity, and positive predictive value of moderate or severe RHs

for abuse to be 66.1%, 100%, and 100%, *555 respectively. 348

Vinchon sought to re-examine this data, and its reproducibility, except this time with independent corroboration of head injury,

so as to avoid any “circularity” concerns in his design. 349 In 2010, Vinchon et al. published the results of a prospective series

of 84 patients who sustained injuries from either witnessed accidents (N=39) or confessed inflicted head injury (N=45; obtained

from judicial sources). 350 Of the thirty-nine witnessed accidents, only one patient (2.5%) had moderate or severe RHs--that is

the patient had a known impact to his head. 351 Of the 45 confessed inflicted injury patients, 34 (76%) had moderate or severe

RHs. 352 Conversely, 34 out of 39 (87%) accident patients had mild or no RHs; and, 10 out of 45 (22%) of the inflicted head

injury patients had mild or no RHs. 353 This data is graphically depicted (figure 11) below, and computed to a p-value of less

than 0.001 (0.1%). 354 In further statistical analysis, Vinchon et al. determined the specificity and positive predictive value

of severe RHs for abusive injury to be 97% and 96%, respectively. 355 Vinchon et al. calculated the specificity of SDH, RH

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and the absence of evidence of impact to be 100% for abusive injury. 356 Thus, Vinchon et al. concluded that, in the absence

of ocular impact, severe RHs were specific for inflicted head injury. 357 Similar results have been produced in well-designed

prospective and retrospective studies by Pierre-Kahn et al., Bechtel et al., and Reece and Sege. 358

*556 Pathology studies have produced similar results. Riffenburgh studied 197 confirmed child abuse deaths and compared

them to 401 controlled patients (deaths secondary to auto accidents, drowning, SIDS). 359 Riffenburgh found 47% of child

abuse deaths had RHs whereas only 4% of controls had RHs. 360 This computed to a p-value of less than 0.001 (0.1%), and an

odds ratio of 18.9 for RHs and abuse. 361 Remembering “odds ratio” from the statistics section above, this means that RHs in

abuse is almost nineteen times more likely than RHs in other circumstances (auto accidents, drowning, SIDs, etc). 362 Other

authors have published comparable findings. 363

In 2009, Maguire et al. published the results of their systematic review of all the scientific literature to identify clinical features

that distinguished inflicted from non-inflicted brain injury. 364 After reviewing “20 [electronic] databases, websites, references

and bibliographies, using over 100 keyword combinations,” Maguire et al. identified over 6000 studies, which were relevant to

the topic, and reviewed 320. 365 Secondary to strict inclusion criteria (including only those studies that compared the clinical

features of inflicted and non-inflicted brain injury with consecutive case ascertainment), *557 Maguire et al. found 14 studies

that met those criteria, representing over 1600 children. 366 Cases were included only if strict definitional criteria for “inflicted”

brain injury (i.e., those with witnessed abuse, confessions, legal decisions, or outcome confirmation by multi-agency child

protection teams) was met. 367 The authors specifically excluded all studies where the decision of abuse relied solely on clinical

features, so as to eliminate concerns for “selection bias” and “circularity.” 368

Conducting a multi-level logistic regression analysis, Maguire et al. found that RHs were “strongly associated with inflicted

brain injury, with a positive predictive value of 71% and an odds ratio of 3.504.” 369 Again, remembering odds ratios, based upon

a comprehensive review of ALL the literature involving RHs, RHs are 3.5 times more likely to occur in inflicted circumstances

than non-inflicted ones. The authors concluded, “By producing a multilevel logistic regression of specific clinical features on

over 1600 children, we have shown that there is scientific evidence to support the distinction between [inflicted brain injury] and

[non-inflicted brain injury] . . . . “This review is the largest of its kind, and offers for the first time a valid statistical probability

of [inflicted brain injury] when certain key features are present (e.g., retinal haemorrhages).” 370

In 2010, Bhardwaj et al. also published a systematic review of the diagnostic accuracy of RHs in AHT. 371 Upon examining three

large medical databases, the authors identified 971 articles, and fifty-five met their relevance criteria for grading purposes. 372

Using a published grading checklist (designed to ensure the highest quality of design in studies), Bhardwaj et al. found twenty

studies that met *558 inclusion criteria. 373 Similar to the “Quality of Evidence Ratings system” employed by Donohoe (a

ratings system that was used to critique the quality of literature behind AHT), Bhardwaj et al. found that the specificity of intra-

ocular hemorrhages (RHs) for AHT was 94%. 374 The authors concluded:

Currently, there is level II evidence from prospective controlled studies, supporting a significant relationship

between IOH [(intraocular hemorrhage)] and AHT. . . . Level I evidence is impossible to achieve in this

field, for obvious reasons. . . . Combined data from prospective studies of head injury indicate that IOH

have a specificity of 94% for abuse. 375

Thus, again, with regards to validity and reliability, there are two systematic reviews (comprising over thirty well-designed

clinical studies and thousands of children), several well-designed prospective studies, and numerous retrospective reviews from

multiple lines of research, general pediatrics, ophthalmology, and pathology, all of which have produced the same results:

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the highly significant statistical association of severe RHs with AHT. To this author's review of the evidence based medical

literature, there are no published, peer-reviewed clinical studies that conclude differently.

c. Other Statistical Evidence

Well-designed comparative studies have demonstrated a statistically significant worse outcome (for both physical and cognitive

functioning) for AHT patients over accidental trauma *559 patients. In 1997, Haviland and Russell published the results of

their comparative retrospective review of the outcomes of fifteen children, under age two, admitted to the pediatric ICU with

AHT, and ten children, under age two, admitted to the same pediatric ICU during the same time-frame with known accidental

head trauma. 376 Haviland and Russell followed the children for up to three years. 377 Of the AHT group, two patients died. 378

Of the remaining thirteen survivors, seven (54%) showed “severe” (meaning total mental and physical dependence) handicap,

four (31%) had “moderate” (meaning partial paralysis, blindness, and developmental delay), one (8%) had “mild” (meaning

partial paralysis and seizures), and only one (8%) was considered “normal” at a three-month follow-up. 379 Of the accidental

group, one patient died. 380 Of the remaining nine survivors, only one (11%) had severe handicap, one (11%) had mild handicap,

and seven were considered normal at discharge. 381 This computed to a p-value of less than 0.01 (1%). 382 Similar results were

reproduced by Hymel et al., Vinchon et al., Keenan et al., and Ewing-Cobbs et al. 383

*560 Other studies have focused on the significance of a discrepant clinical history to explain significant traumatic findings.

A clear, biomechanically plausible account for how the injuries occurred should be available. When the history is absent,

minimal, changing, or mechanistically implausible, suspicion of abusive injury is raised. In 2003 Hettler and Greenes, members

of an emergency medicine group from Children's Hospital of Boston, examined the very issue of whether certain historical

features are predictive of AHT. 384 Their retrospective review of 163 children, age three or younger, included patients admitted

from 1993 to 2000 with acute traumatic intracranial injury. 385 The authors classified cases “as either ‘definite abuse’ or ‘not

definite abuse’. . . [based upon] radiologic, ophthalmologic, and physical examination findings, without regard to the presenting

history.” 386 Forty-nine out of 163 (30%) were classified as “definite abuse” and 114 out of 163 (70%) were classified as “not

definite abuse.” 387 Upon statistical analysis Hettler and Greenes found that no history of trauma had a 97% specificity and

92% positive predictive value for AHT. 388 When analyzed in the subgroup of patients with persistent neurologic abnormality

at discharge, no history of trauma had a specificity of 100% and positive predictive value of 100% for AHT. 389 Studies by

Duhaime et al. and Keenan et al. also confirm the association of discrepant clinical history and AHT. 390

*561 d. Fallacy of Circular Reasoning, Alternative Hypotheses, & Data Gaps

i. “Circular Reasoning”?

It is appropriate at this point to address a criticism frequently levied against the medical literature on AHT: the logical fallacy

of “circular reasoning.” 391 While certainly some of the medical literature suffers from these design flaws, there are several

factors not addressed by this critique. First, how does the logical fallacy of “circular reasoning,” which essentially states a

poor design of the medical studies, explain the associative findings of subdural hemorrhage and retinal hemorrhages found

by Ingraham, Caffey, Guthkelch, Silverman, Kempe, and countless other historical authors, who reported these findings even

before the diagnosis of Non-Accidental Injury existed? 392 What was their improper “design” in reporting these associative

findings? Were these physicians somehow biased towards reporting these findings? Is it that these astute physicians were not

rigorous or meticulous enough in their reasoning and evaluations to exclude other important causes such that the association of

SDHs and RHs was not valid? Or is it that we are simply going to attribute the multiple reports of these associated findings to

chance? 393 Why is it that multiple historical physicians, separated by significant geographical distance, in unrelated, various

fields of medical study, and with no social or medical inclination to make these findings, collectively found the same associated

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findings? In order to dismiss the associative strength of these findings (subdural hemorrhages and retinal hemorrhages), an

appropriate response must first be given to all these historical physicians.

*562 Second, some circularity is inevitable, because we are unwilling to experimentally shake infants, and even reliably

confessed accounts have some doubt. As detailed above, to the greatest extent possible, numerous well-designed studies set

out to control circularity in their experimental design. When scientists critically examined those studies for bias secondary to

circularity, not only was that bias lacking, but also scientists found results that were consistent with the rest of the clinical

literature. 394 Therefore, although the possibility of circularity is present, and to some degree inevitable, we are unlikely to find

substantially better evidence than we currently have for the absence of circularity.

Finally, telling evidence arguing against circularity is the absence of any large trials demonstrating a lack of association of

either SDHs or RHs with AHT. If circularity were truly a valid criticism of the current clinical medical literature, in over twenty

years of research on the topic, would there not exist one well-designed study that demonstrated a lack of association of either

SDHs or RHs with AHT? Where is that study?

ii. Alternative Hypotheses

There have been two recent alternative hypotheses 395 for SDHs and RHs that have been the subject of some controversy--

Geddes' “Unified Hypothesis,” and Squier & Mack's “dural immature vascular plexus theory.” 396 Geddes' Unified Hypothesis

purports that “hypoxia [(lack of oxygen)], brain swelling and raised central *563 venous pressure cause blood to leak from

intracranial veins into the subdural space, and that the cause of subdural bleeding in some cases of infant head injury is therefore

not traumatic rupture of bridging veins, but a phenomenon of immaturity.” 397 The essential components of this hypothesis are

that hypoxic (lack of oxygen) injury to the brain results in increased intracranial pressure and brain swelling, which leads to

“leaky” intracranial veins and subdural hemorrhage. 398

The basis for Geddes' hypothesis was a cohort of fifty postmortem cases: seventeen fetuses, three spontaneous abortions, sixteen

perinatal (within a week of life), five neonatal (within one month of life) and nine infant (within one year of life) deaths--

all which resulted from non-traumatic causes. 399 Geddes et al. found microscopic intradural (within the layers of the dura,

but not on the surface of the brain) blood in thirty-six of the fifty cases (72%). 400 However, if one excludes the fetuses and

abortions, microscopic intradural blood was found in just thirteen of the thirty (43%) of the perinatal/neonatal/infant cases. 401

Macroscopic SDH (visible on the surface of the brain) was found in only one of the fifty cases (2%), an infant with overwhelming

sepsis (infection). 402 Although an ophthalmologist was a co-author of the study, the authors did not examine or comment

on retinal hemorrhages in their cohort. 403 Based upon the microscopic intradural findings, Geddes et al. hypothesized that

intradural blood could “ooze” in the potential subdural space and result in macroscopic SDHs, although this did not occur in

forty-nine out of fifty patients in their cohort. 404 Furthermore, based upon their data and calculations, Geddes et al. determined

the p-value of hypoxia and macroscopic SDH to be *564 0.15. 405 Thus, based upon their own data, the authors could not

even conclude that chance had been ruled out. 406 These results cannot be construed as statistically significant. 407 Geddes et

al.'s results were three times higher than the highest limit of statistical acceptability (p=0.05). 408 This is truly notable when

one compares it to the vast majority of statistical data supporting AHT (as discussed above), where p-levels are in the order

of 0.01 to 0.001. 409

Since the Unified Hypothesis was published in 2003, only one other peer-reviewed, clinical study has been published in

the medical literature supporting this hypothesis. 410 In 2007, Cohen and Scheimberg published the pathologic results of a

prospective series of twenty-five fetuses (age twenty-six to forty-weeks) and thirty neonates (age one hour to nineteen days)

who suffered hypoxic (lack of oxygen)-ischemic (lack of blood) injury (HII). 411 Cohen and Scheimberg found macroscopic

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SDHs in sixteen out of twenty-five (64%) fetuses, and twenty out of thirty (66%) neonates. 412 As with Geddes' study, no

examination or comment was made on the concurrent presence or absence of

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