In the Interest of: M.M.-A., a Minor

J-S68013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.M.-A., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: LACKAWANNA COUNTY :

CHILDREN AND YOUTH :

:

:

: No. 928 MDA 2017

Appeal from the Order Entered May 10, 2017

In the Court of Common Pleas of Lackawanna County Civil Division at

No(s): CP-35-DP-0000154-2016

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 01, 2017

The Lackawanna County Office of Youth and Family Services (“Agency”)

appeals from the order, entered in the Court of Common Pleas of Lackawanna

County, denying a finding of child abuse and ordering bone density and genetic

testing of the minor, M.M.-A. (“Child”). Upon careful review, we affirm.

On November 12, 2016, Child, then three months old, was taken by her

parents to Moses Taylor Hospital for treatment of a possible cold. During

treatment, hospital staff discovered that Child had multiple rib fractures,1 for

which her parents, V.A. and A.M. (collectively, “Parents”) had no explanation.

Child and her sister – who did not present with any injuries – were taken into

protective custody based upon Child’s unexplained injuries.

____________________________________________

1 It was ultimately determined that Child had approximately 38 rib fractures.

____________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S68013-17

On November 15, 2016, the Agency filed a petition seeking a finding of

dependency of Child and also seeking a finding of child abuse against Parents

pursuant to the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-6386

(the “Act”). After a multi-day adjudication hearing, on May 10, 2017, the trial

court issued findings of fact and conclusions of law, as well as an order

adjudicating Child to be dependent pursuant to 42 Pa.C.S.A. § 6302, based

on evidence that Child suffered 38 rib fractures while in Parents’ care and

control, as well as the fact that Child had been diagnosed with failure to thrive.

The court declined, however, to issue a finding that Child was a victim of

abuse. The court also ordered further health evaluations in the form of testing

for genetic disorders and/or bone deficiency disorders.

On June 7, 2017, the Agency filed a notice of appeal and concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2). The Agency raises the following claims for our review:

1. Whether the [t]rial [j]udge erred . . . and/or abused her

discretion by not determining credibility of witnesses, including

expert witnesses and resolving conflicts in the testimony?

2. Whether the trial judge erred and/or abused her discretion by

not making a finding of child abuse against the parents.

3. Whether the trial judge erred and/or abused her discretion in

reviewing the medical testimony by admitting novel medical

testimony from Doctors Holick, Hyman and Gootnick in

violation of the Frye[2] standard, and by accepting Dr.

____________________________________________

2 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) (holding novel scientific evidence

admissible if methodology underlying evidence has general acceptance in

relevant scientific community).

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J-S68013-17

Gootnick as a pediatric radiology expert despite a lack of

qualifications or training in said specialty[?]

4. Whether the trial judge erred and/or abused her discretion by

finding that pediatrician Dr. Burke had diagnosed the child as

fail[ing] to thrive (finding of fact #167) which is not supported

by the evidence; and further erred and disregarded test results

showing no evidence that the child had OI (osteogenesis

imperfecta) and had normal Vitamin D levels, by ordering

genetic testing, bone density disorders testing and [that the

Agency] follow any and all recommendations when the experts

agree [Ehlers-Danlos Syndrome] has no test to identify it, and

no metabolic disease or genetic disorders of the child have

been diagnosed by treating physicians[?]

Brief of Appellant, at 8.

The Agency first asserts that the trial court erred and/or abused its

discretion by failing to make determinations as to the credibility of witnesses,

including expert witnesses, and failing to resolve conflicts in the testimony.

This claim is meritless.

In this case, four different experts testified regarding the cause of Child’s

fractures. One of those experts, Kent Hymel, M.D., testifying on behalf of the

Agency as an expert in child abuse pediatrics and pediatrics, concluded that

the injuries were the result of child abuse. The other three experts concluded

that Child’s injuries had clinical explanations and were not caused by abuse.

Susan Gootnick, M.D., an expert in pediatric radiology, testified that she was

certain that Child’s fractures were caused by rickets and that there was no

evidence of non-accidental trauma. Charles Hyman, M.D., an expert in child

abuse, testified that Child suffered from bone fragility and that rickets was a

possible contributing factor. Doctor Hyman further testified that there were

“absolutely no objective criteria that there was abuse.” N.T. Hearing, 7/5/17,

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J-S68013-17

at 68. Finally, Michael Holick, M.D., Ph.D., testified as an expert in

endocrinology, metabolism and nutrition, calcium, collagen disorders,

metabolic bone disease, and Vitamin D deficiencies. Doctor Holick diagnosed

both of Child’s parents with EDS, hypermobility type 3. As a result, Dr. Holick

determined that Child had a 75% chance of also suffering from that genetic

disorder, which would place her at higher risk of bone fracture.

In its opinion, the trial court stated that it “considered the direct and

circumstantial evidence and expert medical opinions” presented by the

Agency. However, the court ultimately found more compelling the testimony

of the three other experts who each concluded, to a reasonable degree of

medical certainty, that Child’s injuries were not the result of non-accidental

trauma. In making this determination, the court factored in other evidence,

including that Parents regularly took Child for medical visits to both her

pediatrician and specialists and that Child’s physician, a mandatory reporter,

never made any reports of child abuse. See Trial Court Opinion, 5/7/17, at

5-6. In sum, it is apparent that the trial court weighed the evidence before

it, resolved any conflicts in testimony to the best of its ability based on the

totality of the evidence presented, and concluded that the Agency failed to

establish by clear and convincing evidence that Parents had abused Child. We

can discern no abuse of discretion.

The Agency next claims that the trial court erred and/or abused its

discretion by failing to make a finding of child abuse against Parents. The

Agency asserts that it presented clear and convincing evidence that Parents

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J-S68013-17

were reckless with respect to Child’s torn frenulum as well as her fractured

ribs and, as a result, the court should have made a finding of abuse under

section 6303(b.1) of the Act. This claim is meritless.

We begin by noting our standard and scope of review in dependency

cases:

The standard of review which this Court employs in cases of

dependency is broad. However, the scope of review is limited in

a fundamental manner by our inability to nullify the fact-finding of

the lower court. We accord great weight to this function of the

hearing judge because he is in the position to observe and rule

upon the credibility of the witnesses and the parties who appear

before him. Relying upon his unique posture, we will not overrule

his findings if they are supported by competent evidence.

Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997), quoting In re R.R.,

686 A.2d 1316, 1317 (Pa. Super. 1996) (citations omitted).

Child abuse is defined under section 6303 of the Act, in relevant part,

as follows:

(b.1) Child abuse.--The term “child abuse” shall mean

intentionally, knowingly or recklessly doing any of the following:

(1) Causing bodily injury to a child through any recent act

or failure to act.

...

(5) Creating a reasonable likelihood of bodily injury to a

child through any recent act or failure to act.

23 Pa.C.S.A. § 6303(b.1). A finding of abuse must be supported by clear and

convincing evidence. In Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.

Super. 1993).

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Here, the Agency asserts that it met its burden of establishing Parents’

recklessness in causing damage to Child’s frenulum and her rib fractures. With

respect to the torn frenulum, the Agency cites the testimony of Dr. Hymel that

Child could not have caused the injury to herself and the injury could have

been caused by a bottle being forced in Child’s mouth. The Agency asserts

that Dr. Hyman’s testimony, that frenulum injuries in children are very

common, was “not specific enough to be convincing.” Brief of Appellant, at

14. As to Child’s rib fractures, the Agency cites Parents’ claim that they did

not know how the injuries occurred and the testimony of Dr. Hymel, who

excluded metabolic bone disease as a potential cause and, instead, “gave a

solid opinion with a reasonable degree of medical certainty of physical abuse.”

Id. at 16. Based on this evidence, the Agency claims that it established that

Parents acted recklessly and that the court erred in failing to make a finding

of child abuse as defined in section 6303(b.1) of the Act.

In presenting this claim, the Agency is essentially asking this Court to

reweigh the evidence in its favor. That, however, is not our role. Rather, we

must defer to the trial court, who sees and hears the witnesses, can determine

their credibility and, ultimately, renders a decision informed by the court’s

own observations and its longitudinal understanding of the case. So long as

the court’s conclusions are supported by the record, we are in no position to

disturb its decision. Matter of C.R.S., supra.

Although Dr. Hymel opined that Child’s injuries were the result of abuse,

the trial court heard from multiple other witnesses, both fact and expert, who

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J-S68013-17

concluded otherwise. Child’s own pediatrician, Christine Burke, M.D., testified

that she never suspected that Child’s torn frenulum was non-accidental.

Rather, based on the large size of the nipple on Child’s bottle, Dr. Burke

concluded that the tear likely came from pressure exerted by the nipple.

Doctor Hyman also testified that torn frenula are “very common” in children

and can be caused by bottles or pacifiers. N.T. Hearing, 5/3/17, at 52. He

concluded that Child’s torn frenulum was “absolutely” not caused by abuse.

Id. at 56. Similarly, with regard to the rib fractures, three experts testified

as to their belief that the fractures were caused not by non-accidental trauma,

but rather by bone fragility.

It was within the province of the trial court to evaluate and weigh the

conflicting testimony and arrive at a finding based on its determination as to

the credibility of the witnesses. See Commonwealth v. Ratushny, 17 A.3d

1269, 1272 (Pa. Super. 2011) (“The weight to be accorded conflicting

evidence is exclusively for the fact finder, whose findings will not be disturbed

on appeal if they are supported by the record.”). Accordingly, we decline the

Agency’s invitation to reweigh the evidence. The trial court’s findings are

supported by the record and will not be disturbed.

Next, the Agency claims that the trial court erred in admitting novel

medical testimony from Drs. Holick, Hyman and Gootnick in violation of Frye.

The Agency also alleges that the court erred in admitting Dr. Gootnick as an

expert in pediatric radiology despite a lack of qualifications or training in that

specialty. The first claim is waived and the second is meritless.

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J-S68013-17

In determining whether novel scientific evidence is admissible in

criminal trials, Pennsylvania courts apply the test set forth in Frye

[]. See Commonwealth v. Topa, [] 369 A.2d 1277 ([Pa.] 1977)

(adopting the Frye test in Pennsylvania). Under Frye, novel

scientific evidence is admissible if the methodology that underlies

the evidence has general acceptance in the relevant scientific

community. See Grady v. Frito–Lay, Inc., [] 839 A.2d 1038,

1044–1045 ([Pa.] 2003). While the United States Supreme Court

has since found that the Frye test has been superseded by the

more permissive Federal Rules of Evidence, see Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [] (1993),

Pennsylvania courts are not bound by the Federal Rules of

Evidence, and continue to apply the Frye standard, see Grady,

[] 839 A.2d at 1044.

Commonwealth v. Einhorn, 911 A.2d 960, 974–75 (Pa. Super. 2006).

“Whether a witness is qualified to render opinions and whether his testimony

passes the Frye test are two distinct inquiries that must be raised and

developed separately by the parties, and ruled upon separately by the trial

courts.” Grady v. Frito-Lay, Inc., 839 A.2d at 1045–46.

While the Agency now claims that the testimony of Drs. Holick, Hyman

and Gootnick was inadmissible pursuant to Frye, it never filed a motion

seeking to preclude the doctors’ testimony on the basis of Frye, nor did the

Agency raise the issue at all at the time of hearing in this case. Generally,

“issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P., Rule 302(a). Because the Agency failed to

preserve this claim in the trial court, the issue is waived.

The Agency also claims that the trial court erred in admitting Dr.

Gootnick as an expert in pediatric radiology. This claim is premised solely on

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J-S68013-17

the fact that Dr. Gootnick is not a Board Certified pediatric radiologist. The

Agency is entitled to no relief.

The admission or exclusion of evidence, including the admission

of testimony from an expert witness, is within the sound discretion

of the trial court. We may only reverse upon a showing that the

trial court clearly abused its discretion or committed an error of

law. To constitute reversible error, an evidentiary ruling must not

only be erroneous, but also harmful or prejudicial to the

complaining party.

McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000)

(citation, ellipses and brackets omitted).

In Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995), our Supreme

Court held that a witness without a medical degree, who acted in the dual role

of mortician and county coroner, could give expert testimony as to time of

death. In doing so, the Court noted that

[i]t is well established in this Commonwealth that the standard for

qualification of an expert witness is a liberal one. The test to be

applied when qualifying an expert witness is whether the witness

has any reasonable pretension to specialized knowledge on the

subject under investigation. If he does, he may testify and the

weight to be given to such testimony is for the trier of fact to

determine.

Id. at 528.

Here, Dr. Gootnick testified that she holds a medical degree and has

been certified by the American Board of Radiology since 1977. She testified

that she participated in a three-month rotation in pediatric imaging during her

residency and reads pediatric radiological images on a daily basis as part of

her practice. She testified that, at the time of her residency, there was no

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J-S68013-17

fellowship in pediatric radiology and that she has “more experience than

somebody with a current pediatric [radiology] fellowship.” N.T. Hearing,

5/4/17, at 8.

Based on the foregoing, it is readily apparent that Dr. Goodnick

“possesses more knowledge than is otherwise within the ordinary range of

training, knowledge, intelligence or experience” in pediatric radiology.

McClain, 761 A.2d at 157, quoting Miller, 664 A.2d at 528. The fact that she

does not hold a board certification in the specialty is of no moment.

Accordingly, the trial court did not abuse its discretion in admitting Dr.

Gootnick as an expert in pediatric radiology.

Finally, the Agency claims that the trial court erred in making a finding

of fact that Dr. Burke, Child’s pediatrician, had diagnosed Child with failure to

thrive. The Agency further asserts that the court erred in ordering further

testing to determine if Child suffers from any genetic bone density disorders.

These claims are meritless.

We begin by noting that it is unclear as to how the Agency is aggrieved

by either of these alleged errors. Indeed, it would appear that the Agency

would look with favor upon the court’s finding that Child was diagnosed with

failure to thrive, as it was “[b]ased in part on Dr. Burke’s testimony that Minor

Child was diagnosed as failing to thrive . . . [that] this [c]ourt found that Minor

Child was without proper parental care or control.” Trial Court Opinion,

7/7/17, at 13. In any event, the Agency is incorrect that there is no support

for this finding. Specifically, Dr. Burke testified as follows:

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J-S68013-17

Q: In your treatment of [Child], was she ever treated as a baby

that was one labelled as failure [sic] to thrive?

A: Yes, but it was difficult to distinguish because she was having

so many mouth issues. I wasn’t sure if that was contributing to

her slow weight gain.

N.T. Hearing, 3/23/17, at 16.

Similarly, the Agency’s claim that the court erred in ordering genetic

testing is meritless. “In a dependency case, a hearing court is given broad

discretion in meeting the goal of entering a disposition ‘best suited to the

protection and physical, mental, and moral welfare of the child.’” In re S.M.,

614 A.2d 312, 315 (Pa. Super. 1992), quoting In re Lowry, 484 A.2d 383

(Pa. 1984). In her Rule 1925(a) opinion, the Honorable Julia Munley cogently

sets forth her rationale for ordering the tests of which the Agency complains.

See Trial Court Opinion, 7/7/17, at 13-15. Based on Judge Munley’s findings,

we can discern no abuse of discretion on her part in ordering that Child

undergo further testing to determine whether she suffers from any genetic

disorders that may have contributed to or caused the injuries that form the

basis for the adjudication of dependency. The parties are instructed to attach

Judge Munley’s opinion in the event of further proceedings in this matter.

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J-S68013-17

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2017

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Circulat

: IN THE COURT OF COMMON PLEAS

OF LACKAWANNA COUNTY

IN RE: M. M. -A. JUVENILE DIVISION

CP-:35- DP -154 -2016

MUNLEY, JULIA, J. July 7, 2017

RULE 1925(a) OPINION IN SUPPORT OF ORDER DATED MA'-Y 0, zwi7

. >

The Lackawanna County Office of Youth and Family Services ("0.0AfileTa Pg.

seeking a finding of dependency of Minor Child.M. M. -A. (D.O.B. 081 /7614f-Iased one

allegations of physical abuse by Mother V A ("Mother") and Fattrei:h. !

.

("Father") and failure by Minor Child's parents to provide proper parental care or control. -

OYFS's Petition also sought a finding of child abuse against Mother and Fathtr pursuant to the

Child Protective Services Law, 23 Pa.C.S.A. § 6301 et ceq, ("CPSL")

A sheltercare hearing was held on November 14, 2016. The adjudication hearing was

held on March 23, 24; April 11; and May 3, 4, 2017.

Having weighed and considered the relevant evidence and testimony in this matter, this

Court entered an Order dated May 10, 2017 and also issued specific Findings of Fact and

Conclusions of Law. Sec Pa. Rule S. C. P. 1409 mt. (citing In re LaRue, 244 Pa. Super. 218,

366 A.2d 1271 (1976); In re Frank W.D., Jr., 315 Pa. Super. 510, 462 .A.2d 708 (1983); In re

Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976)). On May 10,2017, this Court granted

OYFS's petition in part, finding that Minor Child is a dependent child as defined by 42 Pa. C.S.

§ 6302 based on evidence that Minor Child sustained as many as thirty-eight rib fractures while

in Mother and Father's care and control, Prior to the discovery of the rib fractures, Minor Child

was also diagnosed as failing to thrive and Mother and Father missed at least two appointments

with Minor Child's pediatrician after a failure to thrive diagnosis was made. This Court denied

Page 1 of 16

OYES 's petition in regard to a finding of child abuse under the CPSL for the reasons set forth in

the Findings of Fact and Conclusions of Law and discussed below.

On June 7, 2017, OYFS filed a Notice of Appeal and a Concise Statement of Errors.

Although the reasons for this Court's May 10, 2017 Order appear of record in the

aforementioned Findings of Fact and Conclusions of Law, this Court, having the benefit of the

transcripts from the adjudication hearing, provides this brief Opinion pursuant to Pennsylvania

Rule of Appellate Procedure 1925(a). The matters raised by OYFS on appeal are listed below

and addressed in turn.

The trial judge erred by and/or abused her discretion by not determining credibility of

witnesses, including expert witnesses and resolving conflicts in the testimony.

As trier of fact, this Court is the sole judge of the credibility of witnesses. See In re

Adoption of J.J. 511 Pa. 590, 594, 515 A.2d 883, 886 (1986). Conflicts in testimony are to be

resolved by this Court. Id.

In considering this matter, this Court heard witness testimony from several fact witnesses

and medical expert witnesses. As detailed in the Findings of Fact and Conclusions of Law, this

Court fully considered all of the relevant evidence and testimony and closely scrutinized the

medical experts' testimony and conclusions in light of the other facts in this case.

An evaluation of the credibility of witnesses can be found in the Court's Findings of Fact

and Conclusions of Law. This Court found all witnesses to be at least partially credible and

noted where witness testimony was less reliable or less weighty to the Court in light of the other

facts that emerged over the course of the hearing. See e.g. 1173, 88, 91-102 (discussing the

facts that weakened the credibility of OYFS expert Dr. Kent Hymel and eroded his conclusion

that child abuse occurred).

Page 2 of 16

Resolution of the conflicts in testimony can also be found in the

Court's Findings of E.trt

high number of fractures to

and Conclusions of Law. For example, Dr. Hymel relied on the

91-92. Defense expert

support his conclusion that there was child abuse. 03/24/2017 Trans. at

to support his conclusion that

Dr. Charles Hyman also relied on the high number of fractures

Trans. at 56-59. Where

Minor Child had a medical disorder causing bone fragility. 05/03/2017

Court resolved conflicting

the Medical experts disagreed regarding a finding of child abuse, this

to meet OYFS 's

testimony when it found that the testimony of Dr. Hymel was insufficient

and convincing evidence when

burden of proving child abuse against Mother and Father by clear

Dr Hyman, and Dr. Susan

contrasted with the testimony of defense experts Dr. Michael Holick,

Gootnick.

21 The trial judge erred and/or abused her discretion by not making a finding of child

abuse against the parents.

extensive expert

This Court had the opportunity to fully evaluate the evidence, including

Based on the totality of the

medical testimony, and to weigh the credibility of all witnesses.

Conclusions of Law, OYFS failed to

circumstances, as summarized in the Findings of Fact and

.

the victim of child abuse as defined

show by clear and convincing evidence that Minor Child was

by 23 Pa. C.S. § 6303(b.1), (c).

doing any of the

The term "child abuse" means intentionally, knowingly or recklessly

following:

(1) Causing bodily injury to a child through any recent act or

failure to act [...]

(5) Creating a reasonable likelihood of bodily injury to a child

through any recent act or failure to act [...]

23 Pa. C.S.A. § 6303 (b.1).

Page 3 of 16

tl.

or creates a risk of injury or harm to a

"Conduct that causes injury or harm to a child

is no evidence that the person acted

child shall not be considered child abuse if there

causing the injury or harm to the child or creating a

intentionally, knowingly or recklessly when

C.S.A. § 6303(c).

risk of injury or harm to the child." 23 Pa.

child abuse by the clear and convincing

OYFS must demonstrate the existence of

determinations. See In re L Z 631 Pa. 343,

evidence standard applicable to most dependency

and convincing evidence is defined "as testimony that

361, .111 A.3d 1164, 1174 (2015). Clear

as to enable the trier of fact to come to a clear

is so clear, direct, weighty and convincing

of the precise facts in issue." in re K.M. 53 A.3d 781,

conviction, without hesitance, of the truth

quotations omitted).

786 (Pa. Super.2012) (citations and internal

and convincing that Mother or Father

The evidence and testimony in this case is not clear

to cause Minor Child's injuries or to create a risk of

acted intentionally, knowingly, or recklessly

Pa.C.S.A. § 302(b)(1)-(3).

injury or harm to the child. See 18

the direct and circumstantial

In reaching the above conclusion, this Court considered

by OYFS in support of their petition. Dr.

evidence and expert medical opinions presented

have resulted from sudden and dangerous

Hymel opined that the rib fractures might

as a mechanism of injury. 03/24/2017 Trans.

at 82, 143.

compressions to the Minor Child's chest

that Mother, Father, or any other person actually made

However, there was no other evidence

chest. Rather, Dr. Holick, Dr. Hyman, and Dr. Gootnick

sudden compressions to Minor Child's

Minor Child's rib fractures within a reasonable

each provided non-abusive explanations for

degree of medical certainty.

Dr. Holick opined that Minor Child's rib

fractures were fragility fractures that could

occur at birth or with normal handling

of an infant, such as picking up the child or swaddling.

Page 4 of 16

04/10/2017 Trans. at 74-75. According to Dr. Hyman, Minor Child had a constellation of

factors that caused rib fractures, tom frenulum, and failur&to thrive that were not abuse.

05/03/2017 Trans. at 55-61. Dr Hyman opined that Minor Child had some type of bone fragility

and that the high number of healing or occult rib fractures supported his opinion. Id. at 56-59.

Dr. Hyman also indicated that non-abusive reasons for Minor Child's injuries were either

ignored or not objectively considered by Minor Child's treating physicians. Id. at 56, 68, 105-

106. Dr. Gootnick testified that she observed radiographic evidence of healing

rickets on Minor

Child's X-Ray films, called a rachitic rosary. 05/04/2017 Trans. at 18. She testified that the

rachific rosary is a pathognomonic sign, a characteristic unique to rickets. Id. at 22. Dr.

Gootnick opined within a reasonable degree of medical certainty that Minor Child had abnormal

bones based on her X-Ray findings and that there was no radiological evidence of non -accidental

observed on

trauma. Id. at 18-21, 27. Dr. Gootnick also suggested that some of the abnormalities

X-Ray as healing fractures were actually signs of rickets. Id. at 19-20.

Furthermore, two of the defense medical experts in this matter testified that considerable

bone density loss had to occur before it would be observable on an X -Ray. 04/11/2017 Trans. at

57 (Natick: 30-50% loss of bone density); 05/03/2017 Trans. at 70-71 (Hyman 20%-40% loss of

bone density). Dr. Hymel, on behalf of OYFS, could not completely rule out that Minor Child

had reduced bone density, See 03/24/2017 Trans. at 135-137, 175-177.

There was other evidence that this Court weighed before finding that Mother and Father

a risk of

did not intentionally, knowingly, or recklessly cause Minor Child's injuries or create

to medical

injury or harm to Minor Child. Minor Child was taken by Mother and Father

providers at least twelve times in three months, including her pediatrician

and to several

at 40.

specialists outside the Scranton area. 03/23/2017 Trans. at 44-45; 05/03/2017 Trans.

Page 5 of 16

Taylor Hospital by Mother and Father where the rib fractures

Minor Child was taken to Mcises

2016. Id. at 38-39, 53-54. Prior to

November 12, 2016,

were discovered on November 12,

specialists did not make any reports of child abuse for

Minor Child's pediatrician and heating

even though these physicians were mandated reporters. Id. at

torn frenulum or failure to thrive

Minor Child was not

119, 245. Additionally, OYFS's caseworker Lisa Herie testified that

110,

referral at Moses

when Herie responded to the initial

in any discomfort and was not crying

Minor Child was

the time Herie responded to the hospital,

Taylor Hospital. Id. at 54-56. At

did not present with any

Child's one-year-old sister I.M.-A.

restrained in a car seat. Id. Minor

Id. at 63.

injury when Minor Child M.M.-A.'s rib fractures were discovered.

signs of physical

it was not

consideration of all the evidence and testimony presented in this case,

After

abuse.

Mother and Father committed child

clear and convincing to this Court that

by

her discretion in reviewing the medical evidence

The trial judge erred and/or abused in

front Doctors Holick, Hyman, and Gootnick

admitting novel medical testimony radiology

violation of the Frye standard

and by accepting De: Gootnick as a pediatric

in said specialty.

expert despite a lack of training

was

of Dr. Holick, Dr. Hyman, and Dr. Gootnick

In this matter, the expert testimony

Rules of Evidence 702-705.

properly admitted pursuant to Pennsylvania

by knowledge, skill,

witness who is qualified as an expert

Rule 702(c) provides that "[a]

or otherwise if the

may testify in the form of an opinion

experience, training, or education

accepted in the relevant field."

The admission of expert

expert's methodology is generally

is an evidentiary matter for the trial court's discretion. Grady v. Frito-Lay

scientific testimony

a wide latitude for the

546, 559, 839 A.2d 1038, 1046 (2003). Rule 702 provides

Inc. 576 Pa.

600-01 (Pa. Super. 2006).

of expert testimony. See Long v. Mejia,896 A.2d 596,

admission

the admission of the medical testimony

of Dr.

In this appeal, OYES now challenges

States 293 F. 1013 (D.C. Cir.

Dr. Hyman, and Dr. Gootnick pursuant to Frye v. United

Holick,

Page 6 of 16

1923). On a preliminary note, OYFS did not move to exclude expert testimony prior to the

adjudication hearing. During the hearing, OYFS did not raise the issue of the admissibility of

testimony of any of the defense medical expert witnesses on the grounds of an issue with the

experts' methods. Although there were no objections by OYFS in regard to the defense experts'

methods during the hearing, this Court considered the expert opinions and admitted Mother and

Father's expert witness testimony pursuant to the above-cited Pennsylvania Rules of Evidence.

Under Frye the proponent of novel scientific evidence bears the burden of establishing

that the methodology used by the expert has gained general acceptance in the relevant field, but

not "that the scientific community has also generally accepted the expert's conclusion." Grady

576 Pa. at 558, 839 A.2d at 1045. As an exclusionary rule of evidence, Frye "must be construed

narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search

for truth." Trach v. Fellin 817 A.2d 1102, 1104- (Pa. Super. 2003) (en bane), app. denied, 577 Pa.

725, 847 A.2d 1288 (2004).

"[Ain expert witness need not cite to medical literature or medical treatises to support his

opinion." Catlin v Hamburg, 56 A.3d 914, 921 (Pa. Super. 2012)(citing Joyce v. Blvd. Phys.

Therapy & Rehab. Ctr., P.C. 694 A.2d 648, 656 (Pa.Super. 1997); Smith v. Grab 705 A.2d 894,

900 (Pa. Super. 1997)). However, at a minimum, "the proffered expert testimony must point to,

rely on or cite some scientific authority-whether facts, empirical studies, or the expert's own

research-that the expert has applied to the facts at hand and which supports the expert's ultimate

conclusion" Snizavich v. Rohm & Haas Co. 83 A.3d 191, 197 (Pa. Super. 2013). Expert

testimony as to a causal relationship may be admissible, even if based solely on the experts

review of medical records and his experience and expertise in the applicable medical field, when

the expert can point to some scientific authority that supports the causal connection. Id. Medical

Page 7 of 16

experiences in their fields of expertise in

witnesses may rely upon their individual professional

v. Moses Taylor Hospital, No. 11 -CV -

formulating opinions regarding medical matters. Page

1402, 2016 WL 2606520 *5 (Lacka. C.C.P.)(Nealon,

J.)(citations omitted).

a. Dr, Holick

F. Holick, Ph.D., M.D., a

Mother and Father presented the testimony of Michael

chief of endocrinology, and director of the

professor at Boston University Medical Center, prior

Program. 04/11/2017 Trans. at 23-25; Exh.

Ehlers-Danlos Syndrome ("EDS") Clinical Research

4. Dr. Holick testified that he is the director

of the bone health care clinic at Boston University

include Vitamin D, metabolic bone

Medical Center. Id. at 24. Dr. Holick's areas of research

over 500 times in these fields. Id. Dr.

disease, and collagen disorders and he has been published

nutrition, metabolism and collagen

Holick was thus admitted as an expert in endocrinology;

Id. at 31, 41.

disorders; metabolic bone disease; and vitamin D deficiency.

Dr. Holick diagnosed Mother and Father

Within a reasonable degree of medical certainty

physical examination of

with EDS hype ability type 3, based on a review of factors after his

used to diagnose Mother and Father with

both parents. Id. at 44 49. The factors Dr. Holick

findings and Mother and Father's

EDS hyperrnobility type 3 were based on Dr. Holick's clinical

diagnosis called a Beighton score to diagnose

self-reporting. Id. Dr. Holick used a method of

3. Id. at 45-48. At no time did OYES raise any

Mother and Father with EDS hyperraobility type

Mother and Father with EDS.

objections to the use of Beighton scoring to diagnose

Dr. Holick also opined within a reasonable degree

of medical certainty that because

that Minor Child has EDS, a 75% chance. Id. at

Mother and Father have EDS, it was very likely

simple mathematics because EDS is an

51-54. Dr. Holick reached that conclusion using

also testified that there is no genetic test to

autosomal dominant genetic disorder. Id. Dr. Holick

Page 8 of 16

type 3. Id. at 69. Given Dr. Holick's

determine whether a person has EDS hypermobility

methods, this Court admitted and

testimony and no challenge from OYES as to Dr. Holick's

in the medical and scientific community.

considered Dr. Holick's methods as generally accepted

had been properly raised and

Even if an objection to Dr. Holick's methodology

did not determine that Minor Child suffered from

considered at the hearing, this Court ultimately

multiple, bilateral rib fractures. Rather, this Court

EDS or that EDS was the specific cause of her

that non-abusive explanations for Minor Child's rib

found credible from Dr. Holick's testimony

out in this matter by the treating physician, Dr. Hymel

fractures existed and could not be ruled

b. Dr Hyman

of Charles Hyman, M D, who was

Mother and Father also presented the testimony

qualified by this Court as an expert in the

field of child abuse. At the hearing, OYES and the

Guardian ad Litem objected regarding Dr

-

Hyman's qualifications only specifically, his lack of

and that he had been precluded from testifying about

board certification in child abuse pediatrics

Dr. Hyman was not board-certified in child

bones in past cases. 05/03/17 Trans. at 27-28.

provide answers on the board-certification test that

abuse because, as he stated, he would have to

OYES and the Guardian ad Litem's objections were

he did not believe were accurate. Id. at 26.

as a child abuse expert based on his education,

overruled and Dr. Hyman was admitted

experience, research, and extensive review

of the medical records. Id.

Dr. Hyman's methodologies. "Whether

There was no objection at the hearing regarding

a witness is qualified to render opinions

and whether his testimony passes the Frye test are two

separately by the parties." Grady 576 Pa. at

distinct inquiries that must be raised and developed

Commw. v. Arroyo 555 Pa. 125, 723 A.2d 162,

558-59, 839 A.2d at 1045-46 (2003) (citing

170 (1999)).

Page 9 of 16

and has

testified that he is a board-certified pediatrician

As to qualifications, Dr. Hyman

8-9. Early in his medical

medicine for 50 years. 05/03117 Trans. at

been involved in pediatric

in newborn intensive care at

Pittsburgh

a two-year fellowship

career, Dr. Hyman completed

Hyman developed a

Id. at 5. After moving to Southern California, Dr.

Children's Hospital.

five

Hospital in 1976 and chaired that department for

Linda Children's

child abuse team at Loma

a member of the hospital faculty.

to maintaining a private practice and being

years in addition

in the child protection team at St. Bernadines Hospital,

was involved

Id. Thereafter, Dr. Hymel

5, 12-13, 18. Dr. Hymel

with Lorna Linda Children's Hospital. Id. at

while still affiliated

until about 2000. Id. at 6.

remained in private practice

years of his professional work on research and

Dr. Hyman has concentrated the last thirty

regarding child abuse is the professional

the predominant views

studies that are contrary to

and the

the views held by the American Academy of Pediatrics

medical community, including

advised he is a member of a loose

-

Id. at 19, 21-22. Dr. Hymel

Society of Pediatric Radiology.

injury." Id. at

"interested in sorting out the debate on infant

knit group of medical professionals

that disputes

that there is another segment of the medical community

7. Dr. Hyman explained

Dr.

called "the child abuse community." Id. at 22-23.

Dr. Hyman

the conclusions of what

areas of trauma,

are peer -reviewed studies and literature in the

Hyman testified that there

positions held

and bone science that challenges or refutes the

genetics, endocrine, biomechanics,

child

and the Society of Pediatric Radiologists regarding

of Pediatrics

by the American Academy

in approximately fifty-six

As part of his work, Dr. Hyman has testified

abuse. Id. at 21-22.

Hyman

general pediatrics and child abuse. Id. 12-13, 18. Dr

trials since 2002 in the

field of

this matter.

expert medical opinion regarding child abuse in

an

was thus qualified to render

Page 10 of 16

certainty, Dr. Hyman opined

thatthe injuries to

degree of medical

Within a reasonable

05/03/17 Trans. at 55-61. In

support of his

the result of child abuse.

Minor Child were not

abuse and that there were non

-abusive reasons for

were no objective signs of

opinion that there

records and his experience

injuries, Dr. Hyman cited his review of the medical

Minor Child's

is not novel.

to other research and studies. Id. This approach

along with citation

by OYFS and the Guardian

ad Litem during

were challenged

. Dr. Hyman's conclusions

Child met '

cross-examination, Dr. Hyman agreed that Minor

Under

the adjudication hearing.

by the American Academy of Pediatrics for suspicion of child abuse,

seven of nine factors listed

is no "gold standard" for a child abuse diagnosis. Id. at 79-84,

there

but testified that he believes

conclusions are generally

accepted, only that an

not prove that an expert's

116. A party need

Frye is not implicated

are generally accepted. See Grady supra. Moreover,

expert's methods

expert testimony

into the courtroom; rather, it applies only to proffered

every time science comes

was

Pa. at 557, 839 A.3d at 1045. As indicated above, there

Id., 576

involving novel science.

not used in a

methodology and Dr. Hyman's methods were

nothing novel about Dr. Hyman's

opinions were properly admitted.

novel way. Thus, Dr. Hyman's

c. Dr. Gootnick

radiologist. The qualifying

that Dr. Gootnick was admitted as a pediatric

OYFS objects

witness has any reasonable

to testify as an expert witness is whether the

test for a witness

Miller v. Brass Rail

specialized knowledge on the subject Under investigation.

pretension to

may testify and

664 A.2d 525, 528 (1995). If she does, she

Tavern, Inc., 541 Pa. 474, 480-81,

such testimony is for the trier of fact to determine. Id.

the weight to be given to

she graduated from the University of California, San

As to Dr. Gootnick's qualifications,

and residency in radiology. 05/04/2017

Medical School and completed an internship

Francisco

Page 11 of 16

was a resident,

no pediatric radiology fellowships when Dr. Gootnick

Trans. at 4. There were

her residency

but she did undergo a three-month rotation during

according to Dr. Gootnick,

imaging. Id. at 5, 7-8. Dr.

Gootnick has been board

reviewed pediatric

where she specifically

certified in the field of

Board of Radiology since 1977, but not board

certified by the American

radiology, Dr.

Id. at 4-5, 10. Although not board certified in pediatric

pediatric radiology.

every

has read and interpreted radiologic images of pediatrics patients

Gootnick testified that she

Id. at 5, 8-9. Of the pediatric

images that she

of her 42 year career.

workday over the course

she mostly reads the X -Rays

of newborns. Id. at 14. Based

testified that

reviews, Dr.-Gootnick

and extensive experience in

reviewing radiological

education, training,

on Dr. Gootnick's

expert in the field of

and children, the Court permitted her to testify as an

imaging of infants

to do so.

Id. at 16. Dr. Gootnick was clearly qualified

pediatric radiology.

pursuant to Frye. There was

nothing novel about Dr.

OYFS also challenges Dr. Gootnick

based on her

consisted of reviewing X-Rays and offering an opinion

Gootnick's methods, which

her qualifications. and her use

of generally accepted

experience. Given

education, training, and

was properly

her expert medical opinions, Dr. Gootnick's testimony

methods in reaching

702.

admitted pursuant to Rule

discretion by finding that the

pediatrician Dr.

abused her

The trial fudge erred and/or (finding ofFact #167) which is not

Burke had diagnosed the child' is failure to Indite test results showinggio

the evidence; and further erred and disregarded D

supported by

had 01' (oSteogenesis imperfecta) and had normal Vitamin

evidence that the child disorders testing and follow

disorders testing, bone density

levels, by ordering genetic the experts agree that

in the Adjudication Order when

any and all recommendations metabolic disease or

Syndrome] has no test to identifi, it, and no

EDS lEhlers-Danlos have been diagnosed by the

treating physicians.

genetic disorders of the child

a. Dr. Burke and the Failure to Thrive Diagnosis

at

of Christine Burke, M.D., Minor Child's pediatrician

OYFS offered the testimony

Minor Child from birth and

Center as a fact witness. Dr. Burke treated

Scranton Primary Health

Page 12 of 16

issues over her first three

months of life prior to

Child had several medical

testified that Minor

medical issue was a diagnosis

of failure

03/23/2017 Trans. at 199-219. One

OYFS involvement.

diagnosis and treatment

for failure to thrive as

testified to the

to thrive. Dr. Burke specifically

follows:

ever treated

Child M.M.-A.], was she

Q. In your treatment of [Minor

as failure to thrive?

as a baby that was one labelled

to distinguish because she

was having so

A. Yes, but it was difficult her slow

mouth issues. I wasn't sure if that was contributing to

many

weight gain.

' Id. at 212.

consulted with a pediatric

hospitalist in the

that she

Additionally, Dr. Burke explained

placement

Child's

Marks, regarding the failure to thrive, prior to Minor

Geisinger system, Dr.

that Minor Child was

As of December 7, 2016, Dr. Burke testified

216, 278.

with OYFS. Id. at

in part on Dr. Burke's

diagnosis of failure to thrive. Id. at 285. Based

still carrying the

to

diagnosed as failing to thrive and Mother and Father's failure

was

testimony that Minor Child

was without proper parental

care or

Court found that Minor Child

attend appointments, this

by the record.

Dr. Burke's diagnosis of failure to thrive is supported

control.

Syndrome

bnperfecta, Vitamin .D Levels, and Ehlers-Danlos

b. Osteogenesis

child, the Court may make

additional orders best

found to be a dependent

If the child is

42 Pa.

physical, mental, and moral welfare of the child. See

and

suited to the safety, protection

to remain with her

(providing that the Court may permit the child

C.S.A. § 6351(a)

Based on the evidence

custody subject to conditions and limitations).

parent/guardian or transfer

Order

hearing, this Court included a provision in the Adjudication

and testimony in the five-day

and for Minor

for genetic disorders and bone deficiency disorders

that Minor Child be evaluated

Page 13 of 16

pa.rents to follow any and all recommendations. See May

Child's foster parents / kinship foster

10, 2017 Order, 1112(b).

imperfecta

Child was found not to have osteogenesis

OYFS raises the issue that Minor

at Penn State Hershey Medical

Center, as

Vitamin D levels upon testing

and had normal

and no metabolic

Hymel. OYFS also argues that EDS has no test to identify it,

explained by Dr.

treating physicians.

child have been diagnosed by the

disease or genetic disorders of the

his credibility. See

Dr. Hymel's testimony and weighed

This Court carefully considered

Findings of Fact and Conclusions

of Law, May 10, 2017 Ti 60-104.

disorders and disease as a cause

of the

out genetic

Dr. Hymel testified that he ruled

03/24/2017

disease, rickets, and Vitamin D deficiency.

fractures, including metabolic. bone

found nothing

73-74. Dr. Hymel opined that Minor Child had normal bones and

Trans. at 66-68,

Id. at 66, 151, 184. Dr.

there was something wrong with Minor Child's bones.

to suggest that

Test, which was negative for osteogenesis

Ilymel ordered a Connective Tissue Genetics

at 77. However, the negative

test for osteogenesis imperfecta did

imperfecta for Minor Child. Id.

Dr. Hymel also

rule out the condition, according to Dr. Hymel. Id. at 182-184.

not completely

136.

not be visible radiologically. Id. at

testified that loss of bone density may

Id. at 74.

also testified that he excluded EDS as a diagnosis for Minor Child.

Dr. Hymel

other

stated he has not diagnosed EDS and would rely on geneticists and

However, Dr. Hymel

a patient with EDS.

EDS. Id. at.37, 44. Dr. Hymel did not recall ever having

experts regarding

Id. at 43.

and

the testimony of Dr. Holick, Dr. Hyman,

In contrast, Mother and Father presented

Hyman, Dr. Gootnick, and

This Court carefully considered the testimony of Dr.

Dr. Gootnick.

of Law, May 10,

weighed their credibility. See Findings of Fact and Conclusions

Dr. Holick and

Page 14 of 16

Minor Child had some type of bone fragility and that

2017 ¶j 105-151. Dr. Hyman opined that

his opinion. 05/03/17 Trans. at 56-57.

the high number of healing or.occult fractures supported

of rickets on Minor Child's radiological

Dr. Gootnick testified that she observed evidence

examined Mother and Father and diagnosed both

studies. 05104/2017 Trans. at 18. Dr. Holick

on a review of clinical factors. 04/11/2017 Trans. at

44-

with EDS hypermobility type 3, based

Child had a 75% chance of having EDS. Id. While

49, 5I-54. Dr. Hoick opined that Minor

EDS hypermobility type 3, Dr. Holick's

there may not be a specific genetic test to diagnose

may diagnosed through a history and physical

testimony identified one manner in which EDS

examination.

including the treating physicians, this

Given the testimony of all the medical experts,

to be more fully evaluated for the genetic

and

Court found it was warranted for Minor Child

extensively by the medical experts in this case.

bone density disorders that were discussed

of these medical diagnoses during his treatment of

OYFS's expert, Dr. Hymel, excluded several

testified

Dr. Hymel's testimony. Rather, Dr. Hymel

Minor Child. This Court did not disregard

for the diagnosis of EDS and that the current testing

for

that he would defer to other specialists

Mother

rule out that condition. Dr. Holick diagnosed

osteogenesis imperfecta does not totally

-3 based on clinical testing, not genetic

testing, and

and Father with EDS hypermobility type

of having the condition. Out of concern for Minor

opined that Minor Child had a 75% chance

found it warranted for further medical evaluations

Child's best interests and welfare, this Court

evidence and testimony provided to this Court during

to be ordered out based on the medical

these proceedings.

Page 15 of 16

Conclusion

For all the above reasons, this Court

granted OYFS's petition in part, finding that Minor

Child. M.M.-A. is a dependent child,

but denied OYFS's petition in regard to a

finding of child

abuse against Mother V - k and Father A Mc - Additionally, this Court

ordered further measures regarding medical

evaluations for Minor Child M.-M.A. that

were

appropriate and in her best interests.

BY THIS COURT:

/7.

HONO Nrs t JULIA K. MUM EY

cc: Written notice of the enhy of the foregoing

-1/4R e 1925(a) Opinion has been

each party pursuant to Pa. R Civ. P. 236

t'irt) and (d) by

provided to

transmitting time -stamped copies to:

Joseph Gardner Price, Esq.

Craig P. Kalinoski, Esq.

Leigh Redmond, Esq.

108 North Washington Ave.

Lackawanna County Office of Youth and

Suite 604

Family Services

Scranton, PA 18503

Interdepartmental Mail Attorney for Mother

Kevin O'Hara, Esq.

Edward Blodnick, Esq.

Guardian ad Litem

1325 Franklin Ave.

Interdepartmental Mail Suite 555

Garden City, NY 11530

Lori A. Barrett, Esq. Attorney for Mother -Pro Hac Vice

345 Wyoming Ave.

#1 George Gretz, Esq.

Scranton, PA 18503 304 N Washington Ave.

Attorney for Mother Scranton, PA 18503

Attorney for Father

Page 16 of 16