# Wolfe, Jennifer Banner > Court of Appeals of Texas · December 18, 2015 URL: https://www.frixlaw.com/law-library/cases/4062714 ## Case - **Court:** Court of Appeals of Texas - **Decided:** December 18, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4062714 ## How later opinions describe it (automated extraction) - stating that “a ‘differential diagnosis [is] a technique that identifies the cause of a medical condition by eliminating the likely causes until the most probable cause is isolated.”’ - holding that testimony of two state medical experts regarding Pediatric Condition Falsification was sufficiently relevant and reliable under Daubert when those experts “soundly performed” their differential diagnosis - holding error to permit testimony on shaken baby syndrome without first conducting a Daubert hearing since no Kentucky case had specifically determined it was a “reliable” theory ## Opinion text 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 This document complies with the typeface requirements of TEX. R. APP. P. 9.4(e) (conventional typeface no smaller than 14-point text and 12- point footnotes); this document also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i) (less than 10,100 words, excluding TEX. R. APP. P. 9.4(i)(1) exemptions, as computed by Microsoft Word computer software). /s/ Tanya S. Dohoney TANYA S. DOHONEY 43 CERTIFICATE OF SERVICE A true copy of the State's petition for discretionary review has been e- served to opposing counsel, the Hon. David Pearson, 222 W. Exchange Ave., Ste. 103, Fort Worth, Texas, 76164, at david@lawbydap.com, on this, the 17th day of December, 2015. /s/ Tanya S. Dohoney TANYA S. DOHONEY H:\DOHONEY.D11\BRIEFS\101115 wolfe AHT expert testimony merit CCA.docx 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 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 A DAUBERT ANALYSIS OF ABUSIVE HEAD..., 11 Hous. J. Health L.... 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-acciden [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4062714. Public record. Not legal advice.