IN THE CIRCUIT COURT OF SHELBY COUNTY, MISSOURI

STATE OF MISSOURI, Plaintiff, vs. KATHY HYATT, Defendant

) ) ) ) ) ) ) )

Cause No. 06M7-CR00016-02

REQUEST FOR “FRYE” HEARING AND BRIEF IN SUPPORT OF REQUEST GRANTING A “FRYE” HEARING AS TO THE ADMISSIBILITY OF CERTAIN EVIDENCE IN THIS CASE COMES now the defendant, by and through her attorney, and respectfully requests this Court grant defendant’s request to hold a “Frye” hearing as to the admissibility of expert testimony regarding the alleged existence of Shaken Baby Syndrome and how such testimony relates to the facts in this case due to the fact that testimony regarding Shaken Baby Syndrome lacks scientific foundation. Specifically the defendant requests this Court to determine 1) The admissibility of proposed medical and scientific evidence that manual shaking can cause subdural hematomas and retinal hemorrhaging in infants, 2) Whether shaken baby syndrome meets the Frye criteria for admissibility as a scientific theory to explain the injuries to the victim in this case, 3) The admissibility of proposed medical and scientific evidence that subdural hematomas and retinal hemorrhaging in infants can only be caused by manual shaking, 4) The admissibility of proposed medical and scientific evidence that the symptoms of subdural hematomas and retinal hemorrhaging would necessarily be immediately apparent and, 5) The admissibility of proposed expert medical and scientific opinions that the injuries of the victim are consistent with shaken baby syndrome.

I.

FACTS RELEVANT TO THIS MOTION

On December 9, 2004, babysitter and current defendant Kathy Hyatt was babysitting Delaney Richardson and her sister in the Hyatt’s household. Around 11:00 a.m. Kathy called her husband, Kevin Hyatt, a member of the Missouri Highway patrol, and reported that Delaney had

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fallen from the couch and was currently unconscious. Kevin caused an ambulance to come to the Hyatt household in order to treat Delaney. Kevin himself proceeded to the Hyatt household. Delaney was unconscious when the ambulance arrived and it was reported by one of the emergency personnel that Delaney was suffering from a seizure.

Delaney regained

consciousness shortly thereafter. Delaney was transported to the Macon hospital, and then transported to University Hospital in Columbia by helicopter. Delaney arrived at the Columbia Hospital at approximately 12:52 AM. Shortly after arriving at the hospital, a CT scan was conducted and a small subdural hematoma was detected. Also, upon further examination, there was evidence of older and newer retinal hemorrhaging detected. There was no evidence of significant bruising detected, nor evidence of fractures to any part of Delaney’s body, including the arms or ribs, and no evidence of impact to the head. No investigation whatsoever was ever done of the defendant’s home where this fall occurred. The state’s case is based on the theory of shaken baby syndrome or SBS. This theory suggests that a caregiver can cause a subdural hematoma and retinal hemorrhaging by violently shaking a child without the child’s head impacting with another surface. There is no basis in fact for this theory, and cannot be used to potentially cause a person to be sentenced to prison for five to fifteen years.

II.

THE ISSUES PRESENTLY BEFORE THE COURT

The defendant has been charged with abuse of a child based on the claims regarding causation made by the treating physicians, and by members of the STAT team. The defendant anticipates that the state intends to proffer to this Court the testimony of Delaney’s treating physicians and STAT team that Delaney’s injuries were caused as the result of human manual shaking, and that the last person with Delaney is responsible. It is also anticipated that the state will proffer so-called testimony to establish the amount of force required to inflict these injuries, and that a short, accidental fall or another minor impact could not be responsible for these injuries.

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The question of how pediatric head injury is caused; the actual mechanisms involved, is a hard science question. However, there is, as yet, little hard science to answer the question. What limited scientific and biomechanical research has been performed strongly suggests that human manual shaking could not have caused Delaney’s injuries. See, Duhaime, A.C., M.D., et al., “The shaken baby syndrome, a clinical pathological and biomechanical study”, J. Neurosurgery 66:409-415, March, 1987). This “shaking” model of pediatric head injury causation, that subdural hematoma and retinal hemorrhages in infant children are caused by human, manual shaking has never been validated, and is disputed by, biomechanicians, whose specialty it is to study and determine the mechanisms and forces involved in causing human head injury. Although there is a competing body of literature (discussed in detail infro.) which hypothesizes that the type of injuries seen in Delaney “could” be caused by shaking, the only study that attempted to test this hypothesis includes data which contradicts the theory that a human being can cause such injury by shaking. Id. Further, there is no data to determine the minimum impact velocity required to cause intracranial injury by blunt impact. Medical case series studies also suggest that relatively minor impact to the head may cause the type of injuries which Delaney suffered. These studies suggest that Delaney’s injuries could have been caused by an accident and did not have to be “inflicted,” for example, by the strength of an adult. Plunkett, J., M.D., Fatal Pediatric Head Injuries Caused by Short-Distance Falls, Am. J. For. Medicine and Pathology, 22(1):1-12, 2001. In light of the fact that the “science” of so-called “shaken baby syndrome” or “shaken baby impact syndrome” is seriously disputed, the defendant urges this Court to take special care in performing its gate-keeping function under Frye v. United States, 293 F 1013 (D.C. Cir. 1923). The defendant submits that as to issues of human shaking and impact velocities, the state will be unable to carry its burden under any standard for the admissibility of scientific testimony. Accordingly, the defendant moves to exclude any testimony that Delaney’s injuries were caused in whole or in part by human, manual shaking, or, that if caused by impact, they could only have been caused by significant force equivalent to massive impact velocities.

III.

THE FRYE STANDARD

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The Court has the central role in determining questions of admissibility of testimony that is proffered as “scientific evidence.” In performing that role, Missouri criminal courts follow the test set forth in Frye v. United States, 293 F 1013 (D.C. Cir. 1923). State v. Davis, 814 S.W.2d 593 (Mo. Banc 1991) (approving DNA “fingerprinting”); Alsbach v. Bader, 700 S.W. 2d 823 (Mo. Banc 1985) (disapproving hypnotically refreshed testimony); State v. Biddle, 599 S.W.2d 182 (Mo. Banc 1980) (disapproving results of polygraph examinations because the polygraph “did not have wide scientific approval”); State v. Elbert, 831 S.W.2d 646 (Mo. Ct. App 1993) (disapproving the results of Minnesota Multiphasic Personality Inventory (MMPI), a psychological test, to show a person has the psychological profile of a sex offender). Under the Frye test, a “scientific principle or discovery” that forms the basis for an expert’s deductions “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” 293 F. at 1014. In exercising it role under Frye, the trial court must immerse itself in the science underlying the expert’s opinion to determine if the procedure, principles, discoveries, techniques, or methods are “sufficiently established to have gained general acceptance in the particular field which it belongs.” Id. at 1014. In discussing Frye the Missouri Supreme Court stated that while “a scientific procedure may [have been] disallowed as evidence at a given point, this does not forever preclude admissibility, if at a later time it attains general acceptance and recognized reliability in the scientific community.” State v. Davis, 814 S.W.2d 593 (Mo. Banc 1991). For instance, in Davis, the court considered the admissibility or results from DNA comparison tests. The Court acknowledged that “in determining whether a specific procedure has gained acceptance within the scientific community, our courts frequently look for guidance in the decisions of other jurisdictions, as well as professional literature and surveys of the history of the process involved.” State v. Sager, 600 S.W.2d at 569-72. The discussion in Davis shows that expert opinions on the results of the comparison testing should be evaluated as two distinct steps: a chemical and biological process of examining a DNA sample, and the statistical methodology used to identify the significance of that examination. Cites omitted. Applying these principles to the instant case, we will show that the state cannot meets its burden to show that testimony about shaken baby syndrome or about minimum impact velocity needed to cause intracranial injury in children meets the standard of admissibility under Frye;

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such testimony should therefore be excluded.

IV.

THE STATE CANNOT SHOW THAT TESTIMONY ABOUT SHAKEN BABY

SYNDROME, RETINAL HEMORRHAGE, MINIMUM IMPACT VELOCITY NEEDED TO CAUSE INTRACRANIAL INJURY IN CHILDREN, OR TIMING OF THE INJURY MEETS THE STADARD OF ADMISSIBILITY UNDER FRYE; THEREFORE, SUCH TESTIMONY SHOULD BE EXCLUDED

The forces and mechanisms required to cause pediatric head injury, such as a subdural hematoma or retinal hemorrhages are areas of inquiry which raise questions of science. However, there is little science available to answer the questions, and what little there is strongly suggests that human manual shaking alone cannot cause such injuries.

Hard

science

questions relevant to the injuries at issue in this case are: 1.

By shaking a child, can a human being generate the amount of acceleration-

deceleration force necessary to cause intracranial injuries, such as a subdural hematoma? 2.

Can retinal hemorrhages arise from a direct impact or as a secondary symptom of

subdural hematoma or resulting brain swelling, or do they arise only from the shaking of a child? \

3.

Even if shaking could theoretically cause intracranial injuries, have “scientific”

principles and methods been reliably applied to the facts of this case? 4.

While massive impact velocities, such as a drop of two stories, head first onto

concrete may cause intracranial pathology or injury such as subdural hematoma; what is the minimum impact velocity required to cause a subdural hematoma? As the courts explained, it must address the science behind each of these questions individually. However, before examining the question of “general acceptance,” the first inquiry must involve a determination of the field to which the relevant scientific principles belong. Frye, supra.

A.

The Field to Which the Principles at Issue Belong:

Claims that human manual shaking is the mechanism of intracranial and/or ocular injuries and claims about a minimum specified impact velocity required to cause

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these injuries, are not generally accepted in the field to which the science of causation of pediatric head injury belongs. Although some physicians may harbor opinions on these issues -- as may any number of other persons in other fields -- the field to which these scientific principles belong is the field of head injury biomechanics and, more specifically, pediatric head injury biomechanics. As with issues such as identification and credibility, the determination of causation is integral to the trial. “Shaken Baby Syndrome” is not merely a statement of claimed “diagnosis.” It is a statement of causation. As will become apparent, physicians are not the proper professionals to render opinions about pediatric head injury causation because they are neither biomechanicians, nor do they have any expertise in the area of biomechanics. While the state's physicians are unquestionably the proper persons to express opinions as to their diagnosis: Subdural Hematoma, retinal hemorrhage, and resulting brain swelling, the question of what forces may have caused these conditions are another matter. Unlike the diagnosis questions which are based upon the doctor's observations and testimony, the causation question is based on the practical application of a theory, and this theory is one of pediatric head injury biomechanics, not medicine. Bioengineering is the application of traditional engineering principles to living systems, including the human body. Human injury biomechanics, a sub-specialty of bioengineering, studies how mechanical loads applied to the human body cause injury. Biomechanics is a quantitative science based on the knowledge of the ‘loading’ conditions such as impact velocity, and the response of the human body and its parts, under these loads. Biomechanics, a subspecialty of bioengineering, includes the science of human injury causation. This area of science is concerned, in part, with quantifying the stresses and strains on human tissue and quantifying the point at which human tissue fails, or in other words, the point at which it is injured. How much force, for example, does it take to fracture a skull? An infant skull? The skull of a two year old? These are biomechanics questions. Biomechanics is applied, for example, in the automobile industry in the area of injury causation to determine whether a vehicle is crashworthy. Based on the work of biomechanicians there are now head rests on the seats of all new cars manufactured in the United

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States. (For some of the seminal work on determining the tolerance criteria for head injury, see, e.g., Ommaya, A.K., FRCS, FAAS, M.D., et al, “Whiplash Injury and Brain Damage - An Experimental Study,” JAMA, Vol. 204, No. 4, April 2, 1968, and studies cited therein). In the area of pediatric head injury, it is critical to appreciate the importance of biomechanics in determining causation of cranial (skull), intracranial (subdural), and intercranial (brain) injuries. Biomechanicians have studied some of the issues of pediatric head injury causation. For example, in 1978, Drs. Gregg K. McPherson and Timothy J. Kreiwall from the Department of Obstetrics and Gynecology, University of Michigan, Ann Arbor, studied the material properties of the fetal head to determine what loads (impacts) applied during labor caused the fetal head to mold or change shape while passing through the uterus. This research was a first step in determining the biomechanical conditions which cause catastrophic head injury, such as cerebral palsy, during birth. (See, McPherson, G.K., and Kreiwall, T.J., “The Elastic Modulus of Fetal Cranial Bone: A First Step Towards an Understanding of the Biomechanics of Fetal Head Molding,” J. Biomechanics, Vol. 13, pp. 9-16). In this paper, McPherson and Kreiwall studied: (1) the mechanical properties of the tissues; (2) the structural configuration, particularly the structural configuration of the cranial bones, dura mater and brain; and (3) the loads applied during labor and delivery. One important conclusion of the paper, based on the analysis that biomechanics as a science provided, was that: “[T]he significant differences in properties [of the bone of fetal skull] which exist between the preterm and term material could be one factor in the explanation as to why preterm infants are more at risk for cerebral trauma than are term infants.” Id. In other words, the more premature the child is, the thinner the skull and, therefore, the greater the risk of injury during birth. Armed with the scientific analysis of how human skull tissue at specific stages of fetal development may respond to loads, or stress, obstetricians can take necessary precautions during the births of premature children to ensure that these children do not sustain catastrophic brain injury, such as cerebral palsy. In other words, the science of head injury biomechanics plays the central role in determining head injury causation. Data about the material properties of the skull of the child is also critical to include in any analysis of how head injury may have occurred. Head injury biomechanics is further divided into subspecialties. For example,

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whereas McPherson and Kreiwall were studying the premature fetal skull under the impact loading conditions caused by the contractions of the uterus during birth, others have studied the effects of impacts on infants. In August, 2000, head injury biomechanicians Susan S. Margulies and Kirk L. Thibault, published their pioneering research on the role which the material properties of the infant (neonate) skull plays in underlying brain injury on impact of the skull. (See, Margulies, S.S., and Thibault, K.L., “Infant Skull and Suture Properties: Measurements and Implications for Mechanisms of Pediatric Brain Injury,” J. of Biomechanical Engineering, Vol. 122, pp 365-371, August, 2000.) The authors noted that “previous biomechanical studies of traumatic pediatric head injury neglected the role of the skull when determining the mechanical response of the pediatric head to trauma, or have relied on qualitative approximations of its mechanical properties.” Id., at 364. The authors concluded that the compliant nature of the infant skull and its membranous suture properties were associated with large cranial shape changes and, therefore, a more diffuse pattern of brain distortion -- which causes injury to the underlying brain -- than when the skull takes on adult properties. Id., at 364, 371. The question of how much force is required to deform the infant skull and cause underlying intracranial or intercranial injury is a pediatric head injury biomechanics question. That question is discussed, infra, with respect to the scientific validity of the theory of “Shaken Baby Syndrome.” While head injury biomechanicians are trained to identify the mechanisms which cause head injury, doctors on the other hand are trained to diagnose the existence of a head injury. Once the existence of a head injury is diagnosed, the physician is then able to treat or “manage” the head injury. For example, if after impacting the head, a child presents to the emergency room with symptoms suggestive of possible head injury, the ER physician should begin treating the child. If the child has intracranial bleeding, and the mass of the blood is expanding, then neurosurgical intervention is indicated to evacuate the clot. The diagnosis of the existence of the head injury results in treatment or management of the head injury. Diagnosis is for treatment purposes. It is not for purposes of determining causation. It is critical to realize that physicians are not trained in issues of biomechanical causation and they are not required to study the biomechanics of head injury causation.

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A graduate of medical school who decides to become a pediatrician, a neurosurgeon, or a pathologist and, in pursuit of becoming boarded in one of those fields, completes a residency and takes the appropriate examination. But this same medical school graduate is not required to study the biomechanics of head injury. There is no curriculum requirement that medical school students take courses in head injury biomechanics in medical school. See, Liaison Committee on Medical Education, the body which sets the curriculum standards for medical schools. Pediatricians are not trained in biomechanics.

See, “Program Requirements for Residency

Education in Pediatrics,” American College of Graduate Education, which sets the residency requirements for pediatricians. In the area of traumatic injuries, identification of the existence of an injury is not the same as the identification of the causation of the injury. Unlike a diagnosis which is made for the purposes of treatment, the issue of traumatic head injury causation in the court room, is a medico-legal or forensic issue. The identification of causation is for purposes of imposing liability or responsibility. One would no more want a medical doctor to identify the cause of traumatic head injury in a court room, than one would want a biomechanic to perform neurosurgery in the operating room. As anyone from the automobile companies would testify, biomechanics is the science of choice in determining head injury causation. Therefore, the question of general acceptance within the field must be addressed with respect to general acceptance within the field of biomechanics because biomechanics comprise the relevant scientific community. The state will offer no evidence that its asserted propositions are accepted by any biomechanicians, and thus, they will fail to meet their burden under Frye . B.

Even if the Relevant Scientific Community Were Physicians, the State

Cannot Meet its Burden under Frye to Show That Shaking Can Cause the Injuries Associated with "Shaken Baby Syndrome"

The state’s doctors may assert that a large (but gradually dwindling) number of clinicians accept so-called “SBS” as a theory of head injury causation. There are several problems with this assertion.

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The first problem the state cannot even adequately define the precise symptoms associated with this "syndrome."

Although the "syndrome" allegedly consists of several

symptoms, the particular symptoms vary from article to article, and physician to physician. All cases seem to involve an intracranial bleed, but the bleed may be one or more of several distinct types, e.g., Subdural Hematoma, subarachanoid hemorrhagic; some bleeds may be interhemispheric hemorrhages, etc. Most cases, but not all, include retinal bleeding and swelling of the brain, but it is unknown whether these symptoms are primary or whether they are complications of the intracranial bleed (in the latter case, they do not add a symptom to the "syndrome"). Some articles associate long bone fractures with the "syndrome", e.g., Caffey, J., Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma, Am. J. Roentgenol and Radium Therapy, 1946, Vol. 56, No. 2, p 163, while others include cervicomedullary bleeds or spinal cord contusions as symptoms, e.g., Hadley, M.N., M.D., Sonntag, V.K., M.D., et al, The Infant Whiplash-Shake Syndrome: A Clinical and Pathological Study, Neurosurgery 1989, Vol. 24, No. 4, pp. 536-40, neither of which are present in the instant case. In short, SBS is a bit like a pediatrician's obscenity: he can't define it, but he knows it when he sees it, or at least he thinks he does. The second problem with the state's position is that they offer no proof of the numbers of physicians who accept this "syndrome" or exactly what symptoms each one considers the "syndrome" to involve, as they have conducted no surveys and do not claim to have spoken with a statistically valid group. Thus, any assertion that many physicians accept the SBS theory is probably inadmissible and is certainly entitled to little if any, weight. The third major problem with the state's position is that, even if there were admissible proof that the majority of doctors did accept SBS as a valid theory, there is no evidence as to the training of these physicians in biomechanics that would show they are qualified to have such opinions. As the Court said, "mere numerical majority support or opposition of persons minimally qualified to state an authoritative opinion is not alone dispositive . . . " Finally, the fourth -- and perhaps most significant -- problem with the state's position is that, to the extent that some physicians may harbor this belief, they do so based upon flaws in the seminal medical literature in which the theory of shaking as a mechanism of head injury was first postulated. As the courts have made clear, in

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determining the general acceptance issue, trial courts must consider "the quality, as well as the quantity, of the evidence supporting or opposing a new scientific technique." Thus, we proceed to analyze the "science" behind SBS. The fact that testimony might have been admitted (without serious challenge) in previous SBS cases does not make this “science.” The state cannot, under the scrutiny of the harsh light of scientific analysis and robust scientific debate, meet Frye’s standard for admissibility of the evidence proffered on human, manual shaking, as a mechanism of head injury in children. Before continuing it should be observed that while there are numerous appellate cases in Missouri mentioning the theory of SBS, no case in Missouri has been reviewed wherein a Frye hearing was held on this subject. In State v. Candela, 929 S.W.2d 852 (App. Ct. 1996), on appeal, the defendant claimed an unpreserved foundational error for the introduction of the SBS theory at her trial. In spite of the fact that this was the first time she complained of this error, the court reviewed the issue ex gratia. No Frye hearing had been held. The court noted that Shaken Infant Sydrome has implicitly been accepted by Missouri Courts and cited State v. Toran, 878 S.W.2d 913; State v. Townsend, 870 S.W.2d 501; and State v. Bragg, 867 S.W.2d 284. Again, it must be emphasized that no defendant has challenged this so-called scientific principle of SBS in a Frye hearing.

1.

History of the Theory of SBS that Shaking Causes Subdural Hematoma (SDH)

and Retinal Hemorrhage.

The theory of “SBS” is generally put forth as follows: By shaking a child, the head moves back and forth rapidly. When the child’s head moves back and forth rapidly, the brain bashes against the sides of the child’s skull or rotates within the skull. This motion causes tearing and sheering of the vasculature beneath the dura or arachnoid, causing an intracranial bleed such as a subdural hematoma, and/or a subarachnoid hemorrhage. This traction also causes bleeding between the delicate layers of the retina. Often times, there is also swelling of the brain, which proponents say is caused by the shaking, but which can also be caused by the intracranial bleed or a number of other secondary factors. Hundreds of articles have been written and published about so-called "shaken

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baby syndrome." One early article was written by John Caffey in 1946. Medical doctor Caffey described four cases of children who had subdural hematomas (SDH) and long bone fractures. See, Caffey, J., “Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma,” Am. J. Roentgenol and Radium Therapy, 1946, Vol. 56, No. 2, p 163. Dr. Caffey -- at that time -- drew no conclusions about the way in which the four children sustained their respective intracranial injuries; yet, this article is frequently cited as "proof" for the existence of this syndrome. In 1971, Guthkelch hypothesized -- based on only two cases of children who had SDHs, with no external evidence of impact -- that the SDHs had been caused by human manual shaking. See, A.N. Guthkelch, “Infantile Subdural Hematoma and its Relationship to Whiplash Injuries,” BMJ, 1971; 2:430-31. Guthkelch did not, however, devise a way in which to test his hypothesis. Yet, once again, the article has been cited numerous times by physicians in numerous case series studies. In 1972 and 1974, Caffey wrote what is considered in this case the seminal paper on the subject. In these papers, Caffey suggested that whiplash shaking was the explanation for cases of subdural hematoma in which there was no sign of external trauma to the scalp. See, Caffey, J., “On the theory and practice of shaking infants. Its potential residual effects of permanent brain damage and mental retardation,” Am. J. Dis Child 1972; 124:161-9), and Caffey, J., “The Whiplash Shaken Infant Syndrome: manual shaking by the extremities with whiplash-induced intracranial and intraoccular bleedings, lined with residual permanent brain damage and mental retardation”, Pediatrics, 54:396-403. One of Caffey’s “factual” premises for his 1972 article was what he termed the "shake prone nurse.” Never once did Caffey refer to the actual medical data of the children the nurse was supposed to have shaken. Instead, he relied on a Newsweek article. See “The Boys Jeered Her,” Newsweek, Sept. 10, 1956. Nurse maid Virginia Jaspers of New Haven, Connecticut, was said to have admitted to shaking several infants in her care. As part of the factual “basis” for his 1972 article that the children in the nurse’s care were, in fact, shaken, Caffey quoted the confession the nurse allegedly made “that she shook some children.” The confession was not made directly to Caffey. Caffey quoted the alleged confession from Newsweek.

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As noted in later criticisms of the paper, there is no record of the nurse being asked whether she also impacted the head of the children, see, Duhaime, 1987, infra, and we have no idea why this nurse allegedly "confessed" to the Newsweek reporter. In any event, the 1972 Caffey paper was not a paper that presented science; it merely presented a hypothesis. Caffey's 1974 article is even less scientific. Relying again on the "shake-prone" nurse story, this article suggests that "casual habitual" shaking may cause intracranial injuries. The article does not refer to any testing or clinical research but claims it has "meager proof" to suggest its assertion through the "reliable" admission of an assailant, namely the nurse. Most importantly, however, the article readily admits that it is not intended to be science which proves its hypothesis. Rather, it concludes by stating that current evidence “though manifestly incomplete, and largely circumstantial,“ warrants a nationwide educational campaign on the potential pathogenesity of habitual manual casual whiplash shaking of infants. The SBS theory of causation has never been validated by biomechanicians or even by physicians.

Only one study has ever sought to test the hypothesis. In 1987, a group of

neurosurgeons and a biomechanician tested the hypothesis that shaking by a human being, could cause subdural hematomas or other intracranial pathology, such as subarachnoid hemorrhage and diffuse axonal injury. The researchers in the 1987 Duhaime study, constructed a model baby and placed an accelerometer on the neck. First, the researchers had adults shake the model, without impacting the head in any way. By human manual shaking alone, these experimenters were unable to generate the accelerations-deceleration forces necessary to cause intracranial injury in a real child. Next, the researchers had the experimenters impact the head of the model baby on various contact surfaces: a metal bar and a padded surface. The conclusions from the data in the study were that: (1) a human being, by shaking alone, could not create the angular acceleration necessary to create concussion, subdural hematoma (SDH) or diffuse axonal injury (DAI), and in fact, a human being could generate only about one twentieth of the required force; (2) a human being, by impacting the child’s head on a surface, can generate the angular velocity necessary to cause concussion, SDH and DAI; and (3) acceleration forces due to impact are significantly greater than those obtained by shaking; on the average, impact acceleration forces exceed shake

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acceleration forces by a factor of nearly 50 times. See, Duhaime, 1987, p 413, supra, at Figure 2 (a scattergram). The Duhaime study was the first and only biomechanical study designed to test the hypothesis that human manual shaking, alone, could cause intracranial injuries. It is critical to note that the scientific conclusion of the 1987 Duhaime study has never been invalidated. No one has been able to prove the data to be false in any way. According to this experiment, human manual shaking cannot generate sufficient force to cause a subdural hematoma.

Understanding the Modern Scientific Method: Inference and anecdote do not constitute science. Scientific conclusions result from carefully designed observations known as “tests” or experiments. Science can only apply to those things that are measurable and to those things that are reliably measured. Science can only apply to those things, those measurements, those tests and experiments, which are capable of being reproduced and therefore are capable of being confirmed. The scientific method is a process whereby a theory, i.e., a hypothesis, is formed and then it is tested. (See, Moenssens, A., Starrs, J.E., et al, “Scientific Evidence in Civil and Criminal Cases,” Section 1.03, pp 11, 13). Moenssens, et al, have outlined that process as follows: Stage 1:

A theory is postulated.

Stage 2:

Experiments are designed to verify the validity of the theory.

Stage 3:

If the theory’s validity is not disproved after searching inquiry and

empirical testing, it is “proven” valid and a court of law then appropriately may take judicial notice of the theory. Stage 4:

A technique is devised, or an instrument is designed and built, that will

permit the theory to be applied practically in a forensic setting. Stage 5:

After devising a methodology, further tests must demonstrate a positive

correlation between the results and the underlying theory. This stage is necessary to prove that the effects observed are not the result of some unidentified cause. Stage 6:

After the test has been shown to yield reliable results that are relevant to

disputed issues in a law suit, a court then may admit these results properly into evidence, and a

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qualified expert may interpret the results before the jury. To gain scientific validity, theories or hypotheses must be tested. The theory of shaking as the mechanism or cause of SDHs and retinal hemorrhages, has never been verified by testing. The theory has, however, been falsified. See, Duhaime, et al., 1987, supra. The modern day approach to testing a hypothesis which contains a scientific proposition is to attempt by the test to disprove the theory. This is known as “falsification,” and was promoted in the early 1900s by philosopher Karl Popper as the defining characteristic of empirical science. See, Foster, R.K, and Huber, P.W., “Judging Science -- Scientific Knowledge,” Ch.3, p 38, et seq. The advantage of falsifiability is that it avoids confirmation bias, that is, the phenomenon in investigation that one finds that for which one is looking. Medical literature containing so-called “studies” of alleged shaken baby cases is replete with confirmation bias and, except for the one Duhaime experiment, no attempts have been made to falsify the theory that human, manual shaking, alone, is the cause of intracranial pathology. The confirmation bias in the field of shaken baby medical studies is found mainly in the form of selection bias: the children with intracranial pathology who are included in articles are assumed, without any scientific proof, to have sustained these injuries by human manual shaking. The mechanism of injury is inferred from the presence of the specific injuries, such as subdural hematoma, subarachnoid hemorrhage, and retinal hemorrhages. Tests -- or medical studies -- must be designed in such a way that the hypothesis that shaking causes intracranial pathology, is capable of empirical observation and, while capable of falsification, cannot be falsified in well designed tests and experiments. In evaluating medical literature, it is important to distinguish between a hypothesis that cannot be falsified, that is, one that is impossible to test empirically, and one that is not, in fact, falsified after well-designed testing. Well-designed testing means, in part, that the test is capable of repetition and that the result is also capable of repetition. The ability to duplicate, or verify, is the hallmark of a reliable test. Daubert, supra. The medical literature about shaking as a mechanism of injury is merely hypothesis and thereby an unproved, untested theory. To date, as noted, there is no biomechanical validation of

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the theory that human, manual shaking can cause subdural hematomas, subarachnoid hemorrhages, diffuse axonal injury, or retinal hemorrhages. Besides the article by Caffey, John, M.D., “The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities With Whiplash-Induced Intracranial and Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation,” Pediatrics, Vol. 54, No. 4, 396-403, October 1974, discussed above, another article by Hadley, M.N., M.D., Sonntag, V.K., M.D., et al, entitled “The Infant Whiplash-Shake Syndrome: A Clinical and Pathological Study,” Neurosurgery 1989, Vol. 24, No. 4, pp. 536-40, considers the cases of 13 infants of three months median age presenting for medical treatment with seizures, retinal hemorrhages and subarachnoid and/or subdural bleeds. The following observations were made: Autopsies were performed on 6 of these infants and only one was found to have a surface bruise. 5 of the 6 autopsied had injuries at the cervicomedullary junction consisting of sub or epidural hematomas of the cervical spinal cord and proximal spinal cord contusions (none of these injuries were not present in the instant case). Based upon these findings and particularly the lack of evidence of a surface bruise in 5 cases, the article concludes that it is possible to cause these injuries (which are different than the injuries in the case at bar) without direct trauma, i.e., by shaking. The article also claims to have documented the histories to support this; however, the "documented" histories are reported as nothing more than suspicions of social workers. As with the other articles tendered, this article does not present science where a hypothesis is tested. Rather, it examines five anecdotal cases for which it cannot find another cause and assumes the cause was shaking. This is pure confirmation bias and proves nothing. Indeed, the article admits that the mechanisms of "neurological injury in this syndrome remain elusive [because] it is often difficult to retain a reliable history of abuse," id. at 538, thus hindering correlation. The article further admits that its "data does not conclusively demonstrate that [shaking can cause these injuries] because most of these [assumed] assaults are not witnessed, [so that] doubt remains as to the true mechanism." Id. At 539. Finally, the article acknowledges that it has no dispute with Duhaime’s 1987 conclusion that most infants diagnosed with the shaken baby syndrome have in actuality sustained some form of direct trauma (which can be accidental or inflicted). Id. at 539. In short, not only does this article not prove the state’s position, but it explicitly admits that it does not prove what the state would have us believe. In another article Conway, E.E., Jr., M.D., “Nonaccidental Head Injury in Infants: The

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Shaken Baby Revisited. Pediatric Annals, 27:10/ October 1998, pp. 677-690, is a general article about pediatric head injury, which describes other articles such as those of Caffey and Conway, supra, and contains no research of its own. The article cites to the nurse relied upon by Caffey as its "most significant example of proved pathogenic whiplash shaking injuries." Id. at 680. It further notes that one of the mechanisms that may account for high mortality seen in infants with so-called SBS involves injury to the cervicomedullary junction, citing Hadley, which injuries are not present in the instant case. This article acknowledges Duhaime's work that proves a direct impact is required to produce these injuries, but dismisses it in a sentence: "There is ample literature supporting infants suffering severe intracranial and intraocular injury from shaking alone without an impact-injury." Id. at 678, citing four articles. However, none of these articles contain any research and only one, discussed infra, can even be offered by the state as proof of its position. This article is a good example of the sophistry present in this debate whereby without research, each author claims to have proof of his position by citing the next author's conjectures. Eventually, many respectable physicians may come to believe that the earth is flat because so many "authorities" say so. In any event, this article specifically draws no conclusion about whether shaking can cause these injuries, stating instead: "I think that terminology such as nonaccidental head trauma (NAHT) is more correct [to describe these cases] in that it describes an intentional injury without implying a mechanism of injury. Although the question of shaking versus impact continues to be debated, the focus of the evaluation should be in the brain injury itself." Id. at 678. Thus, the three articles hardly present the sort of scientific proof to establish the state's underlying position. There is an article the state might point to, to show that retinal hemorrhages were more likely to result from shaking than a direct impact. Once again, an analysis of the article shows that it proves nothing. Betz, P., Puschel, K., M.D., et al, “Morphometrical Analysis of Retinal Hemorrhages in the Shaken Baby Syndrome,” Forensic Science International 1996 Mar 5; 78(1): 71-80 (ISSN: 0379-0738). This article begins by acknowledging that while some authors view retinal hemorrhage as proof of vigorous shaking, other literature

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suggests that retinal hemorrhage "can also occur in other conditions, for example, following accidental head injury or even CPR, [thus] limiting the value of the diagnosis of child abuse." Id. at 72. The article proceeds to examine the eyes of 32 individuals, aged 2 months to 72 years (average =32 years) who died of head injury, and compared the findings to those arising from examination of the eyes of 7 babies "showing apparent signs of physical child abuse." The article states that massive bilateral retinal hemorrhages were found in 6 out of 7 cases of “physical child abuse,” while it was unusual to find such retinal hemorrhages in the 32 mostly adult control cases. Therefore, the article concludes that massive retinal hemorrhages are indicative of violent shaking. The flaws in this article's reasoning are many and substantial. First, there is no scientific determination of how the authors knew these children died of child abuse or what was the nature of the child abuse, i.e., alleged shaking, impact, etc. Two of the cases apparently involved admissions to shaking and blunt trauma -- the exact circumstances of which admissions we do not know, and four others were all claimed by the caretaker to be accidental injuries or injuries of unknown etiology. Only one case involved an admission to shaking alone and that was the one of the seven cases where bilateral retinal hemorrhage was not found. See Table 2 on p.77. Despite these circumstances of injury reported by the caretakers, the article assumes that each of the cases involved child abuse, and because all but one had bilateral retinal hemorrhages, concludes that child abuse therefore causes retinal hemorrhage. However, the underlying assumptions of child abuse are only assumptions and the conclusions are, therefore, nothing but a classic example of confirmation bias. Second, even if we assume that each of these cases involved child abuse, there is no indication that any of these children were shaken without impact, except with respect to the one case that did not have bilateral retinal hemorrhages. So, at most, the article can claim that severe child abuse can result in retinal hemorrhages, a proposition which we do not dispute where that abuse involves a direct impact trauma to the head. Third, the "control" group used by the authors was not a valid control group as, by and large, it did not consist of babies, but of persons with an average age of 32. The skull and brain of a baby is physiologically very different than that of an adult, so any attempt to compare the two nullifies

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any conclusions that the authors seek to draw from the comparison. Fourth, this article admits that "we cannot explain the finding," id. at 77, that the one case of seven where only pure shaking was the alleged cause of injury did not result in bilateral retinal hemorrhage. Fifth, this article acknowledges that retinal hemorrhages can also be caused by cranial hemorrhage, coagulopathy, polycythemia, and many other causes, expressly stating: "The mechanics which are responsible for the appearance of retinal hemorrhages in SBS remains speculative." Id. at 75. The article theorizes that the most probable mechanism of retinal hemorrhage seems to be an increased cerebral and intrathoracic pressure due to severe thoracic compression which arises when a baby is grasped around the chest leading to an increased blood volume, especially of the cerebral veins. Of course, there is no evidence, such as bruising or finger marks to the chest that would suggest that any of these children were so grabbed (nor is there any such evidence in the instant case). This is mere idle speculation and is not supported by any research or, indeed, even by speculation in other literature. Sixth, the article acknowledges that retinal hemorrhages sometimes occur from accidental falls, although without sufficient data, the authors suggest it is a rare event (2 out of 24 cases). We now know it is not so rare as a result of recently analyzed data from the U.S. Consumer Products Safety Commission. See Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, Am. J. For. Medicine and Pathology, 22(1):1-12, 2001. But, even if such hemorrhages are an unusual phenomenon in an accidental fall, how do we know that this is not one of those cases? Finally, this article concludes by stating that "the number of cases investigated in the series is limited, but is sufficient to confirm the hypothesis that massive bilateral retinal hemorrhages cannot be explained by a single traumatic event." This is a bizarre statement as the article acknowledges at least some cases where accidental falls resulted in such retinal hemorrhages, as is now an established fact as a result of the recent Plunkett article. Moreover, even the assumed inflicted injuries are "single traumatic events." As is shown above, this article is seriously flawed in how it selected its data, its control group, and in its reasoning. This article is the only article that can be offered by the state to show that retinal hemorrhages are indicative of human manual shaking and it proves no such

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thing. The article admits that nobody knows the mechanism by which these retinal hemorrhages arise. As the state must readily admit, numerous articles postulate numerous theories as to what might cause retinal hemorrhages and none of these articles agree. The state can offer one last category of articles which are offered to more generally support their proposition that these injuries can be caused by human manual shaking. Once again, however, an analysis of the articles shows that they do not support that assertion. Articles that can be offered by the People that Otherwise Support their Conclusions. Duhaime, A-C, M.D., Alario., A.J., et al, “Head Injury in Very Young Children: Mechanisms, Injury Types, and Ophthalmological Findings in 100 Hospital Patients Younger than 2 Years Age,” Pediatrics, Vol. 90, pp. 179-85, August 1992. The author of this article, Dr. Duhaime, is the only author who has actually done valid scientific research on the SBS issue. Her landmark paper is found at P-7 and is discussed both supra and infra. This latter article does not deal with shaking as a postulated mechanism of injury, but concludes that retinal hemorrhages are not particularly associated with shaking. The article repeats Dr. Duhaime's earlier findings that although subdural hematomas in abuse cases have been attributed to shaking, it is believed that they result from the application of a rapid angular deceleration to the brain which requires an impact to occur. Dr. Duhaime notes that "previous autopsy studies and biomechanical analysis suggests that shaking alone does not generate sufficient deceleration forces to cause subdural hemorrhage and brain injury. The frequent radiographic or clinical findings of blunt impact in series of "shaking" injuries corroborate this conclusion, as does the rarity of an unsolicited history of shaking." This article considers one hundred children admitted to hospital with head injury. All children underwent ophthalmologic exam within 36 hours of admission and an ‘algorithm’ was developed to classify injuries as inflicted or accidental, based on the injury, the best history attainable, and radiographic findings. Based upon this algorithm, twenty-four (24) children were classified as “presumed inflicted injury.”

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The 24 patients had the following reported histories: consisted of 8 with falls of less than four feet, 2 admitted assaults, and no history in 14 patients. Retinal hemorrhage was found in ten (10) patients, nine (9) of which were from the pool of "presumed inflicted," but two (2) of these reported a history of trivial fall, one (1) an admitted assault, and six (6) having no history of trauma. Except for one resuscitation shaking, no patients had a history of shaking. The article explains that the postulated mechanisms for retinal hemorrhages include shaking, pressure to the central retinal vein, increased intracranial or introthoracic pressure, and direct head trauma; also, there are some studies linking CPR to retinal hemorrhage which are inconclusive. The article further explains: “it is clear that retinal hemorrhage can occur in a variety of circumstances including vaginal deliveries, spontaneous subarachnoid hemorrhage, hypertension, intracranial hypertension, thoracic or abdominal trauma, and in hospital resuscitation. Whether superimposed hypoxia or ischemia (present in many head trauma cases) exacerbates the finding remains unknown." Id. at 183. The article further notes that "threshold values for the degree of deceleration required to result in retinal hemorrhage have not been established." Id. at 183-84. The article also observed that after the study, Dr. Duhaime's saw three patients with well-witnessed accidental head injuries who had acute retinal hemorrhages. The article concludes: “Because of the variable etiologies and unclear biomechanical thresholds for retinal hemorrhages, it is at the present time impossible to extrapolate a specific mechanism of injury for a given patient with this finding.” Id. at 184. While the article concludes that retinal hemorrhage is more common in cases of inflicted injury as opposed to accident cases, but see Plunkett, supra, it clearly establishes that retinal hemorrhages are not specific to shaking. Caffey, John, M.D., “On the Theory and Practice of Shaking Infants: Its Potential Residual Effects of Permanent Brain Damage and Mental Retardation,” Amer. J. Dis. Child, Vol. 124, pp. 161-69, Aug. 1972. This thirty year old article contains no research, but is a copy of a speech given by Dr. Caffey in 1972. The speech argues that habitual repeated relatively mild whiplash shakings which are inflicted in the ordinary course of disciplining infants are probably more dangerous than the less frequent conspicuous shaking during a willful assault. It is entirely irrelevant to the issues at hand, but does

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show the extent to which the state will reach for "literature" to support its theory. Gilliland, M.G.F., M.D., and Folberg, R., M.D., “Shaken Babies – Some Have No Impact Injuries,” Journal of Forensic Sciences, Vol. 41, No. 1, January, 1996, pp. 114116. This study investigated 80 deaths from head trauma to determine whether manual shaking alone can cause severe intracranial injuries. It concluded that in 9 of the 80 cases, death occurred by shaking. The criteria that the paper established to classify a death as a death by shaking have no validity. Particularly, this article defines a shaking death to be one where there is the presence of two of the following: 1) finger marks and/or rib fractures, 2) subdural and/or subarachnoid hemorrhage, or 3) a history of vigorous shaking, together with the complete absence of scalp or skull injuries. The problem with this definition is that any or all of the criteria can be -- and often are -- present in the absence of shaking, so there is no proof, beyond this arbitrary definition, that these deaths occurred by shaking. Finally, the absence of a scalp wound is not inconsistent with a direct trauma. Although this article attacks Duhaime’s work as inadequate to explain death in the handful of children with no scalp injuries after complete autopsy, Dr. Duhaime and her co-authors' (including a biomechanic) response to this critique is contained in her original article: [I]f the head strikes a soft padded surface, contact forces will be dissipated over a broad area and external or focal injuries may be undetectable while intracranial rotation shear forces can be sufficient to result in subdural hemorrhage and severe brain injury. Gilliland, M.G.F., M.D., and Waters Luckenbach, M, M. D., “Are Retinal Hemorrhages Found After Resuscitation Attempts?: A Study of the Eyes of 169 Children,” Am J of Forensic Med. Pathol, Vol. 14, No. 3, p. 187-92, 1993. This article examines cases of children who died with retinal hemorrhages and found that many had undergone resuscitation attempts, but that in most of those, the cause of death was classified as trauma. However, there is no explanation as to how that classification was made. Also, the trauma cases do not distinguish between direct impacts and shaking, but included blunt force, shaking, crush injuries, and combined blunt force and shaking. Thus, this article does not address the issue at bar. Hymel, K.P., M.D., Abshire, Thomas C., “Coagulopathy in Pediatric Abusive Head Trauma,” Pediatrics, Vol. 99, NO. 3, p. 371-5, March, 1997. This article looks at data which shows that many children who die with retinal hemorrhage show evidence of

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a coagulopathy (a bleeding disorder) which could account for retinal hemorrhages. The article hypothesizes, however, that it is highly unlikely that these abnormalities reflect a pre-existing hemorrhagic disease, and that, in many cases, the coagulopathy may develop secondary to the other injuries. The article offers no evidence about SBS or the other issues at bar. Vowles, G.H., Sholtz, C.L., “Diffuse Axonal Injury in Early Infancy,” J. Clin. Pathol. 1987: 40: 185-189. The authors studied 10 infant brains (children of five months and younger) which had been allegedly subject to non-accidental injury. The article notes that the amount and nature of trauma to which the infants have been subjected was difficult to quantify. The history of these children was not reliably assessed and was not medically obtained. None of these children were said to have been shaken. Some, but not all, of these infants had diffuse axonal injury (DAI) to the brain. The article concludes that the presence of DAI is evidence of recent and generally repeated injury. The theory presented in this article is that shaking can cause DAI, but so can many other phenomena, such as being on a respirator, stopping of breathing, etc. (Brianna was on a respirator and had stopped breathing). This article offers no evidence about SBS as a valid theory. Most importantly, the same author -- Vowles -- published an additional article in 2001. See Geddes, Vowles, et al., Neuropathology of Inflicted Head Injury in Children, Brain (2001) 124, pp. 1290-1306. The author notes in his new article that his earlier work, has been widely quoted, but is wrong. The new article concludes that "diffuse axonal injury is an uncommon sequel of inflicted head injury in children." Id. at 1290.

This

new article makes no attempt to determine whether shaking can cause intracranial pathology, but assumes that it does, citing many of the same articles. Its point is not about whether SBS is a valid diagnosis, but that in such cases where the diagnosis is made, such a diagnosis is not supported by a finding of diffuse axonal injury, as had been reported. This article certainly takes the wind out of whatever significance the prior article may have had. Riffenburgh, R.S., M.D., and Sathyavagiswaran, L, M.D., “Ocular Findings at Autopsy of Child Abuse Victims,” Ophthalmology, Vol. 98, pp. 1519-1524, 1991. This paper concludes that the mechanism of retinal bleeding in infants has not been shown. In the

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study presented, 23 of 55 children with “definite” signs of abuse (history of abuse, bruises, abrasions) had retinal hemorrhages; 20 of 43 children had retinal hemorrhages where abuse was possible but not proven; and 3 of 92 had retinal hemorrhages with no evidence of non-accidental trauma. The study concludes that retinal hemorrhages are not pathognomonic of child abuse, let alone shaking. Although the study suggested that some of the cases of trauma may have involved shaking, it failed to mention from where it draws that inference. This article fails to support the state's assertion about SBS as a valid theory, but to the contrary, suggests that retinal hemorrhages can have a variety of causes. Green, MA., Lieberman, G, et al, “Ocular and Cerebral Trauma in Non-Accidental Injury in Infancy: Underlying Mechanisms and Implications for Pediatric Practice,” British Journal of Ophthalmology, 1996; 80: pp. 282-287. After citing Duhaime, and without presenting any research on the point, this article blurts out that "it is now increasingly accepted that shaking alone can cause cerebral injuries," id. at 282, citing to Hadley. However, the Hadley article provides no authority for such a proposition, see discussion of Hadley, supra, and this is but another example of one author citing another who cites another without any valid research to prove any of their propositions. The article goes on to examine 25 children whose death was attributable to "unequivocal non-accidental injury determined from court transcripts, witness statements and autopsy findings," but no data is given such as what the court transcripts and witness statements say. For example, were the transcripts the opinions of misguided doctors or social workers like those herein and a defense lawyer who did not challenge the testimony? If the instant case were to result in a conviction, would that be unequivocal evidence of non-accidental injury? In any event, after stating that "the exact pathogenesis of retinal hemorrhage is disputed," id. at 282, and noting that several mechanisms have been postulated, by using court transcripts and witness statements, the article concludes that the more severe the trauma, the more severe the retinal injury. This article does not purport to differentiate between so-called cases of "shaking" and cases of impact and does not purport to offer proof that SBS is a valid theory. Munger, C.E., Ph.D., Peiffer, R. L., D.V.M., Ph.D., et al., “Ocular and Associated Neuropathological Observations in Suspected Whiplash Shaken Infant Syndrome.” Am J. Forensic Med Pathol., Vol. 14, No. 3, pp. 193-200, 1993. This article examines the

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eyes of 12 infants who were labelled as SBS deaths. All 12 cases had retinal hemorrhages, 11 had intracranial hemorrhage and cerebral edema was found in 10 cases. The article states that these 12 children died subsequent to suspected violent shaking. In 4 of the 12 cases of suspected shaking, there was a history of shaking, the other 8 were characterized as presumptive shaking, despite no history of shaking. Two (2) of the 4 cases that were characterized as definite SBS had evidence of head trauma, suggesting that pure shaking could not have been responsible for all of the injuries. The article does not seek to determine whether shaking can cause these injuries, but cites to Duhaime for the proposition that "SBS has become a recognized manifestation of child abuse caused by vigorous shaking of infants by the extremities." Of course, Duhaime says just the opposite, namely, that such injuries can not be caused in this manner. One must wonder if this author bothered to read the sources he cited. Despite this gaffe in scholarship, the article does go on to say that retinal hemorrhages occur frequently in SBS cases, but are not pathognomonic. Indeed, the article postulates that retinal hemorrhages may arise in a variety of ways, including secondarily from the other symptoms of intracranial injury: Our observations fail to define further the pathogenesis of retinal hemorrhages in the shaken baby syndrome, which have been postulated to result from themodynamic forces elicited by compression of the infant's thorax (purscher's retinopathy), central retinal vein obstruction from disc edema, vitreoretinal traction causing retinoschisis, an increase in intracranial pressure via cerebral edema or hemorrhage (Terson's syndrome), or direct head trauma. Id. at 199. This article concludes: “We believe that acceleration/ deceleration injury of shaking is accurately attributed to a clinical syndrome, but we cannot dispute that other forms of injuries such as blunt trauma may manifest in the same fashion. Increase in intracranial pressure arising from sudural hemorrhage and cerebral edema correlates highly with retinal hemorrhages, but is just as likely to represent a direct effect of trauma upon an adjacent tissue as a causal relationship.“ Id. at 199-200. Thus, the article proves nothing about SBS and finds that there is no way to know whether retinal hemorrhages are caused by shaking because direct trauma manifests in the same way, either as a result of the trauma or secondarily to other

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symptoms of the trauma, such as an intracranial bleed. Krous, H.F., Byard, R.W., “Shaken Infant Syndrome: Selected Controversies,“ Pediatric and Developmental Pathology, Vol. 2, 497-498, 1999. This two page article presents no research and merely asserts the authors’ view that SBS exists. This is not science and does not support the People in any way. Hymel, K.P., M.D., Bandak, F.A., Ph.D., “Abusive Head Trauma? A Biomechanics-based Approach.” Child Maltreatment, Vol. 3, pp. 116-28, 1998. This article is authored by Dr. Bandak, a noted biomechanic. The point of this article is as follows: In the presence of severe or fatal head injuries, the critical question is whether or not the biomechanical history explains significant cranial acceleration. Hayashi, T., Hashimoto, T., M.D., “Neonatal Subdural Hematoma Secondary to Birth Injury,” Child’s Nervous System (1987) Vol. 3: pp. 23-29. This article is irrelevant to the SBS question. Aoki, N., M.D., “Chronic Subdural Hematoma in Infancy,” J. Neurosurgery 73: 201-205, 1990. This article is irrelevant to the SBS question. Gleckman, A.M., M.D., Bell, M.D., Evans, R.J., M.D., et al, “Diffuse Axonal Injury in Infants with Nonaccidental Craniocerebral Trauma,” Arch Pathol Lab Med, Vol 123, p. 146, February, 1999. This article is irrelevant to the SBS question. Thus, 19 articles later and not one offers any proof to sustain the state's position that shaking causes the injuries seen in this case. The state has the clear burden of proof to justify the reliability of its scientific assertion. The state will be unable to meet its burden. In spite of the burden being on the state, the defense can rely on the following: First, the defense relies on the 1987 Duhaime study, discussed above which offers significant proof that the forces that can be generated by human manual shaking are only about one twentieth of those necessary to cause these injuries in children by shaking alone. In addition, in “The “Shaken Baby Syndrome”: what is the evidence of commonly accepted markers of the phenomenon?” Jan E. Leestma, M.D, a neuropathologist who practices forensic neuropathology, reviewed a substantial portion of the medical literature on SBS to determine the answer to the question: “Can an infant or child actually suffer serious injury with non-impact shaking forces alone, and if such cases

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occur, what pathological findings and biomechanical data support the thesis that shaking caused the injury(s)?” Analyzing the medical literature to determine if he could find (1) biomechanical data; and (2) pathological findings, Dr. Leestma collected cases of apparent child abuse culled from 53 articles between 1969 and 2000 (including the articles discussed above. In his survey of the body of medical literature published over the past 30 years on the subject of the so-called “shaken baby syndrome,” he found that there appears to be only 258 cases (within the 53 articles) with sufficient data provided in the reports to permit analysis of mechanism and pathology.

In the overwhelming majority of these cases, the

phenomenon of “shaking” is imputed by the authors from the existence of the symptoms, but is only rarely actually admitted by a caregiver or perpetrator and never witnessed by an unbiased observer. Only 48 such instances of admitted shaking (in any form or circumstance) could be discovered. Furthermore, in just 11 of these 48 cases over 30 years was apparently “pure” (with no impact) shaking reported in the medical literature. Owing to the small number of cases and variability in data reported, virtually no meaningful conclusions can be drawn regarding the allegedly “typical” pathologies associated with “pure” shaking trauma, nor can any component of observed injury be ascribed to shaking at all. Eleven (11) cases over 30 years are but anecdotal and as any good researcher will tell you, the plural of "anecdote" is not "data." Dr. Leestma observed that no statistical significance can be inferred from the medical and biomechanical “data” on so-called cases of “SBS.” And, the court will no doubt appreciate that such a small number of cases -- 11 cases -- is not the type of weighty evidence and is not the type of hard science that would satisfy Frye’s requirements for admissibility. The defendant also must address the subject of so-called "admissions" to shaking, the circumstances of such "admissions" we generally know almost nothing about. It should be noted that a confession to injuring a child by shaking for purposes of taking a plea, or helping medical personnel treat an injured child, cannot be used as the “factual” basis for the scientific proposition that shaking does, in fact, cause these injuries. A defendant during plea negotiations may admit to shaking because that is less culpable than slamming the child’s head on a flat surface, or as a requirement imposed to plead to a lesser offense. Similarly, a caregiver may admit to shaking to avoid being viewed as less culpable. Also, the word shaking is

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extremely vague and does not necessarily connote force. A person trying to revive, or wake up a child can easily admit they “shook“ the child, without ever suggesting it was violent, while this can easily then be turned into an “admission“ or “confession.” In any event, it would seem that if scientist were going to rely upon such "histories" as valid data, they can not do so selectively; yet, that is exactly what routinely happens: the authors of these articles are willing to accept admissions to shaking without any critique, but refuse to accept denials of shaking. That is not science. As we have previously discussed, in a new article, Dr. Plunkett has now conclusively shown that the injuries attributed to SBS are also found in cases involving accidental falls, so that any validity that might otherwise be ascribed to the hypothesis of SBS has been thoroughly debunked. Although Dr. Plunkett's new article's powerfulness proves our position, its findings are not new. As early as 1984, Dr. Aoki published his first article involving 26 children who had suffered subdural hematomas and retinal hemorrhages following minor heard trauma. See Aoki & Masuzawa, Infantile Acute Subdural Hematoma, 61 J. Neurosurgery 273-280 (August, 1984). The article explains that: The mechanisms of trauma and the clinical presentations of the patients with [infantile acute subdural hematoma] in this series were extremely similar. That is, shortly after minor head trauma, such as a fall, generalized tonic convulsions occurred, and on arrival at the emergency room, the patients demonstrated retinal and preretinal hemorrhage, and various degrees of altered consciousness and motor weakness. The children in Aoki's study had developed subdural hematoma and retinal hemorrhages following short falls onto Japanese mats, toys, or occasionally other objects. Id. at 274, Table I. Thus, it is clear that direct trauma -including accidental trauma -- can cause these very symptoms. There is no reliable scientific literature anywhere which proves that shaking is required to cause these symptoms, or that shaking has any role in the appearance of such symptoms. In sum, these other materials, e.g., Duhaime, Leestma, Plunkett, Aoki, show that the hypothesis of SBS is not reliable and is not generally accepted in the relevant field. The state cannot show that the theory of shaking as a mechanism of causing injuries such as those in the instant case is reliable science and, therefore, the state cannot meet the rigors of Frye.

C.

Where there is No Evidence that Retinal Hemorrhages are Caused by

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Shaking, and Where there are Many Different Etiologies of Retinal Hemorrhages Including Accidental Impact - Any Testimony Claiming that Shaking Causes Retinal Hemorrhages Should Be Excluded Because it Does not Meet the Frye Criteria.

The only article that can be offered by the state to support its position on this is Betz, P., Puschel, K., M.D., et al, “Morphometrical Analysis of Retinal Hemorrhages in the Shaken Baby Syndrome,” Forensic Science International 1996 Mar 5; 78(1): 71-80 (ISSN: 0379-0738). However, as discussed thoroughly supra, see pp. 36-37 herein, it proves nothing. Moreover, the article readily admits that nobody knows the mechanism by which these retinal hemorrhages arise. Numerous articles, postulate numerous theories as to what might cause retinal hemorrhages, including that they may be secondary to other symptoms, and none of these articles agree. Besides these articles, the defense proffers the following articles to show that retinal hemorrhages are most likely a secondary symptom to increased intracranial pressure or raised central nervous pressure, rather than the direct result of any trauma, whether allegedly shaking or direct, inflicted or accidental. Smith, S.C., et al, “Preretinal and Optic Nerve Sheath Hemorrhage: Pathological and Experimental Aspects in subarachnoid Hemorrhage,” Trans. Amer. Acad. Of Ophthal & Otolaryngol, 1957; 61:201-211. Taylor, D, Kaur,B. “Retinal Hemorrhages,” Archives of Disease in Childhood. 1990;66:13691372. Khan, S.G., and Frenkel, M., “Intravitreal Hemorrhage Associated with rapid Increase in Intracranial Pressure (Terson’s Syndrome),” Am. J. Ophthalmology, Vol. 80, No. 1, July 1975. Christian, C. W., Taylor, A.A., Hertel, R.W., and Duhaime, A-C, “Retinal Hemorrhages caused by accidental household trauma,” J. Pediatrics, July 1999, p 123. Kauer, B, and Taylor, D, “Fundus Hemorrhages in Infancy,” Survey of Ophthalomology, Vo. 37, No. 1, July-August, 1992. Still further, we once again rely on Plunkett and Aoki, who have now unequivocally established that retinal hemorrhages are observed in cases involving short accidental falls and are thus not specific to shaking. Thus, once again applying the Frye case law to these facts, it becomes clear that the state cannot meet its burden of proof to establish the scientifically reliable causal connection between shaking and retinal hemorrhages.

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D.

Even if Testimony about SBS was Admissible in some Cases, It is Not

Admissible Here Because the People's Witnesses have not Applied the "Science" of SBS Reliably to the Facts of this Case.

Even if the state had met its burden under Frye to show that SBS is reliable science and is generally accepted by the relevant scientific community, there is still another hurdle that the state must jump to admit its testimony in this case. As is explained in “Frye”: At a minimum, the Court should not admit the expert opinion unless it determines that the witness has applied the scientific principles and methods reliably to the facts of this case. In this case, the only injuries found were a Subdural Hematoma, and Retinal Hemorrhages. Significantly, there are no other symptoms such as finger nail marks, bruises related to shaking, old broken bones, damage to the cervicomedullary junction, epidural hematomas, or any of the other symptoms that some authors sometimes associate with shaken baby syndrome. We are then left with Subdural Hematoma and Retinal Hemorrhage. Every physician must agree that Subdural Hematoma can be caused by a direct impact. This is now an established fact. See Plunkett. Also, retinal hemorrhages may be caused by direct trauma or may be secondary to the other symptoms. Under these circumstances, any evidence that shaking caused these injuries must be excluded.

E.

The State Cannot Meet its Burden Under Frye to Present Any Scientific

Evidence About the Minimum Impact Velocity Required to Cause Intracranial Injury, so Testimony Suggesting that Injuries Could only Have Been Caused by "Great" (or other comparatives) Forces Should be Excluded.

Because the state will have to concede there was some impact to Delaney, they will likely claim that the impact involved some great force and attempt to quantify that force through comparisons or adjectives, e.g., significant force, force equivalent to a fall from three stories, etc., thereby concluding that the injuries had to be "inflicted." It is anticipated that the other part of the syllogism will be that because these injuries had to be inflicted, therefore, they could only have been caused by Mrs. Hyatt. The problem with the prosecution’s proposition that Delaney’s

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injuries could only have been caused by great impact forces, is that no one, that is, no one, knows the minimum impact velocity (F=ma) that is required to cause subdural hematomas or retinal hemorrhages. Indeed, clinical literature suggests that relatively minor falls may cause SDHs, and retinal hemorrhages. See Plunkett, supra. In Retinal Hemorrhages Caused by Accidental Household Trauma, Christian, C. W., Taylor, A.A., Hertel, R.W., and Duhaime, A-C, presented a series of three (3) cases in which the children had fallen from short heights and had sustained subdural hematomas and/or retinal hemorrhages. In Infantile Active Subdural Hematoma, Clinical Analysis of 26 cases, Aoki, et al., presented a series of 26 children who developed subdural hematomas and retinal hemorrhages from short falls onto Japanese mats or toys. See, Aoki & Masuzawa, Infantile Acute Subdural Hematoma, 61 J. Neurosurgery 273-280 (August, 1984). In The Mortality of Childhood Falls, Hall, et al, reviewed the files of the Cook County [Illinois] Medical Examiner’s office for deaths related to childhood falls. See, The Mortality of Childhood Falls, Hall, J.R., M.D., et al, J. Trauma, Vol, Issue 29, pp1273-1275, Sept., 1989. Eighteen children included in the study suffered what the authors described as "minor" falls sustained while running or from falls from furniture (less than three feet). Id. at 1274. Elaborating on this group, the authors wrote: These [18] all died from head injuries without any associated injury. Nine children had a delay of definitive treatment of greater than 4 hours with deterioration of eight. Six of these involved delays on the part of the parents and three of the six also had a delay due to hospital transfer. The one DOA in this group was an 8month-old girl who fell off a couch onto a hard wood floor and was dead on arrival at the hospital. Her autopsy revealed a large acute subdural hematoma. Id. Contrary to Plunkett's, Aoki's, and Hall's papers’ conclusions that short falls can cause serious injury, some child advocates have suggested that short falls could not cause such injury. Discussing the dispute within the medical community about whether short falls can cause serious intracranial injury in small children, Irving Root, M.D., wrote: “Since the generative article by Helfer [suggesting that short falls could not cause significant trauma], there has been serious doubt raised whenever a young child presents with a head injury and history of a fall from a sofa chair or bed. This is an alert to implement a fullscale child abuse investigation.” The conclusions reached in the Helfer article have led child

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abuse experts to testify that injuries of this nature could not result from a fall of 10 ft, maybe not even from one of 20 or possible 30 ft. Further confusion and arguments have resulted from the Weber article on infant cadavers dropped onto stone, carpet, and foam-backed linoleum (15 total) all sustained skull fractures. In an additional group of ten, the drop was onto a 2 cm thick foam rubber mat, from which one (1) fracture resulted. A final group of twenty-five (25) were dropped onto a double-folded, camel hair blanket, with four (4) resulting fractures. These seemingly contradictory results led Dr. Leestma to comment in some detail on the apparent discrepancies, and to wonder if the experimental design might account for the discrepancy.

Perhaps it was the experimental design of the Helfer study that creates the

confusion. As a further piece in the puzzle, Taylor . . . references the work of Chaussier, who allowed stillborn infants to fall head down on a paved surface for a distance of 18 in. Twelve of fifteen tests resulted in skull fracture. See Root, I., M.D., Head Injuries from Short Distance Falls, Am. J. Forensic Med. And Path, 13(1):85-87, 1992, at 85. Attempting to analyze what he characterized as “a preconceived mindset that head injuries in children cannot occur from short distant falls, e.g., falls from beds, chairs or tables,” against the backdrop of “seemingly conflicting observations,” Root gave a brief, but illuminating lesson on the physics of a “free fall.” Root created a table in which he gave the terminal velocities from given heights. Root calculates the terminal (impact) velocities starting from the heights given in the table, i.e., heights ranging from two feet to 30 feet. In discussing the falls from heights and the mph or terminal velocity impacts, Root writes as follows: To put this in common perspective, the average adult will walk at a sustained speed of 2.5-4 mph and will be able to run a short sprint at top speed of [about] 9-12 mph. (World class sprinters achieve a 100 yd dash in 10 [seconds] and attain a speed of 22 mph.) To put this further in perspective, assume yourself to be an average adult and imagine running, at your top speed, headlong into a brick wall. It does not take a great deal of imagination to grasp the magnitude of the impact. Weber and Chaussier have demonstrated that free falls from 18 in (6.7 mph) to 33 in ([about] 9 mph) impacting on the head can and probably will result in skull fracture

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in infants. In these studies, the conditions were held constant to insure that impact was to the head. In the Helfer study, there was absolutely no information as to the mechanics of the fall. We have no idea if impact was to the head. (For the three children who sustained skull fractures, there probably was some impact to the head.) Id., at 86. Root cautions that in considering what, if any, damage will result from a given force, one must consider: Where and how that force is delivered and distributed. Over what area and time is the energy impacted? Which specific part of the anatomy that hit; Whether all the force was taken up at once; Whether the body rolled and dissipated the force; Whether the fall was a free fall; Whether the body slid down with friction on the edge or side of, for example, a bed or a chair (which, Root notes, would slow the free fall and lessen the energy of impact.); What was the actual distance of the fall; Whether the child was sitting up or standing when the fall began (thus adding distance from the head to the floor); Whether there was some initial impelled added energy, i.e., some rocking motion or an attempt to catch the balance and, possibly, throw oneself further off. Id. Most of the medical literature describing children who have sustained subdural hematomas and and/or skull fractures from falls involves children who have fallen from great heights. It is no surprise that children who fall from great heights are seriously injured. That is common sense. What is not known, however, is what is the minimum amount of impact velocity required to cause subdural hematomas and retinal hemorrhage? It is nonsense to claim because children who fell from heights of several stories and sustained such injuries (and died), that this means that in order to cause those injuries a child must fall from five stories or more. This is inductive reasoning. It is not science. When one analyzes the articles, including Hall, Plunkett, and Aoki, it is clear that there is no general acceptance in the medical community about the minimum amount of impact velocity -- whether from a blow or from a fall -- that it takes to cause a subdural hematoma. There is certainly no agreement about this in the community of biomechanics whose role it is to determine issues of pediatric head injury causation. Finally, even if the state had met its burden under Frye to show that there is reliable and generally accepted science on the issue of minimum velocity of impact to cause intracranial pathology, as was the case for SBS, the state

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must still show that such science has been reliably applied to the facts of this case.

F.

The State Cannot Meet its Burden under Frye to Present Any Scientific

Evidence about the Extent to Which a Lucid Period Exists Between the Time of Injury, Assuming the Existence of an Injury, and the Onset of Severe Symptoms

The state may opine that there could have been no lucid period in this case between the time of the alleged shaking which they say caused these injuries and the onset of severe symptoms. However, the state cannot offer any scientific evidence which would show any valid basis for such a proposition, either generally, or as applied to the facts of this case. Gilliland examined 5 so-called pure shaking cases and found that 4 of them resulted in severe symptoms in less than 24 hours, but one child (20%) did not have severe symptoms for 24-48 hours. See Gilliland, Interval Between Injury and Severe Symptoms in Nonaccidental Head Trauma in Infants and Young Children, Journal of Forensic Sciences, 1998:43(3): 723-725. Gilliland also reports that in 39 blunt trauma cases resulting in death, 6 did not develop severe symptoms for 24-48 hours, 3 for 48-72 hours, and 3 did not develop severe symptoms for greater than 72 hours. Id. at 724. Even in fatal cases labeled as "combined" shaking and blunt trauma, 8 of 32 children did not develop severe symptoms for 24-48 hours, and one did not develop severe symptoms for more than 72 hours. The article concludes: “Enough variability in the interval between injury and the time of severe symptoms or presentation for medical care in fatally injured children exists to warrant circumspection in describing such an interval for investigators or triers of fact. Our data indicate that the interval is brief (less than 24 hours) in almost 3/4 of cases of head injury, especially in shaking injuries. However, in more than 1/4 of the cases, the interval from injury to the onset of severe symptoms is longer.” Id. at 724. Thus, there is clearly no general acceptance of the proposition that trauma of any kind will result in the immediate or near immediate onset of severe symptoms. And, as applied to this case, where there is the suggestion of some direct impact -- even though it was accidental -- there is certainly no valid generally accepted scientific principle that Delaney couldn’t have suffered a prior impact and had a significant lucid interval. Under these circumstances, the state should be precluded from presenting any

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opinion testimony that there could be no significant lucid period between the time of injury, assuming there was one, and the time that Delaney’s symptoms arose.

V.

REQUEST FOR RELIEF

For the above reasons of fact and law, the defendant respectfully moves this Court, for an Order granting defendant a “FRYE” hearing as to the admissibility of certain evidence in this case and for such other and further relief as this Court deems just and equitable.

Respectfully submitted,

_______________________________ Kirk S. Zwink P.O. Box 233 Macon, MO 63552 Phone 913-395-9433 Fax 913-395-9433 Certificate of Service I certify that a true and correct copy of this above motion was _______________ To the Raymond Haight on ______________________. _______________________________ Kirk S. Zwink

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