Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. Nos. 510347, 510348, Nancy B. Williamsen, Commissioner.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Kane, J.
After appellant B.G. (mother) severely injured her infant nephew, the juvenile court removed her two children from her custody. On appeal, mother contends (1) the juvenile court erred by denying her motion to strike the testimony of a child abuse expert, Dr. Fields, and (2) without his testimony, the evidence was insufficient to support the court’s order to remove one of her children from her custody. We will affirm the juvenile court’s orders.
PROCEDURAL AND FACTUAL BACKGROUND
A petition filed on September 25, 2007, pursuant to Welfare and Institutions Code section 300, alleged that mother’s children, six-month-old J.M. and six-year-old M.K., were at risk of substantial physical harm because their cousin, four-month-old D., had suffered severe brain injury while in mother’s care. D. was a foster child who had been placed with mother.
The facts, other than Dr. Fields’s testimony, are not relevant to the issues, so we begin with the contested jurisdictional hearing on March 3, 2008. After extensive voir dire, Dr. Fields was designated an expert in child abuse. In Dr. Fields’s opinion, D. was the victim of child abuse, specifically, shaken baby syndrome (SBS). Dr. Fields testified that D. was transferred from Memorial Hospital in Modesto to Children’s Hospital in Madera because he needed a higher level of care and specialized consultants, such as Dr. Fields. Dr. Fields was brought in as a consulting physician for D. shortly after his admission to Children’s Hospital. Dr. Fields remained a consulting physician while D. was in the intensive care unit (ICU), then Dr. Fields became D.’s attending physician when he was stabilized and moved to the acute care floor.
When D. arrived at Children’s Hospital, he was gravely ill and on life support. He had increased intracranial pressure, massive cerebral edema, a subdural hematoma and retinal hemorrhages in both eyes. Dr. Fields was asked to consult because the ICU attending physician did not believe that the explanation regarding D.’s injuries was plausible.
Dr Fields was concerned that D. had suffered a substantial weight loss. According to D.’s records, at two months old, he weighed eight pounds eight ounces and, at four months old, he weighed 10 pounds. When D. arrived at Memorial Hospital nine days after his last weighing, he was down to about six pounds 10 ounces (three kilograms). Dr. Fields described his weight as “falling off the chart.” Such a dramatic weight loss in nine days could have been caused by dehydration and improper nutrition. When D. was admitted to Children’s Hospital, he weighed seven pounds eight ounces (3.4 kilograms), a slight increase due to his intake of fluids and food as part of his resuscitation.
Some of these weights were reported in kilograms. We take judicial notice that one kilogram equals 2.2 pounds and one pound equals 16 ounces, and we present the figures in pounds for purposes of comparison.
Dr. Fields described SBS as follows:
“[SBS] generally consists of a constellation of symptoms or signs, in which various things may be present and/or absent. Typically, you will see a child who is in extremis, a child who is -- has an altered mental status. When you begin your work up, you will often find subdural hematomas, or cerebral edema. Further on exam, retinal hemorrhages are generally found. Depending on the child, you may have fractures of the long bones. You may have fractures of [the] skull. You may have fractures of ribs, generally in the posterior location, but that’s not an absolute. They can be anterior as well. [¶] Can range anywhere from a child that comes in and recovers well, to an estimated death rate up to 38 percent.”
D.’s symptoms included cerebral edema, subdural hematomas, and retinal hemorrhages in both eyes, but no fractures. The absence of fractures was not significant in Dr. Fields’s opinion because fractures were often absent in shaken children. Dr. Fields described D.’s current condition as neurological devastation. His brain had shrunk significantly and had become sponge-like. It would continue to shrink. He would be developmentally disabled and unlikely to walk or talk. He would be vision impaired, if not completely blind, and probably also hearing impaired. It was unlikely that he would live beyond adolescence.
Dr. Fields explained that retinal hemorrhages that result from violent shaking occur in a particular pattern -- on the posterior pole, mid-periphery and periphery. Increased intracranial pressure can cause retinal hemorrhages, but the location and morphology of those hemorrhages is different than those in cases involving violent shaking. Dr. Fields had never seen retinal hemorrhages in restrained children who were involved in car accidents. If, however, retinal hemorrhages did occur due to a car accident, the hemorrhages would be mild and limited to the posterior pole of the eye. D.’s hemorrhages, by contrast, were found on the posterior pole, mid-periphery and periphery. While D. was in the hospital, Dr. Fields ordered an ophthalmology consultation with an expert, who, after examining D., agreed that he was a victim of SBS.
Dr. Fields also conducted metabolic tests on D. to determine whether he suffered from Glutaric Aciduria Type I. When he received conflicting test results, he consulted with the metabolic geneticist. They proceeded with a genetic test, which confirmed that D. was not afflicted with this condition and therefore it could not account for his symptoms.
Dr. Fields consulted with various experts, including an ophthalmologist, pediatric intensive care specialists, pediatric neurosurgeons and pediatric radiologists. The ophthalmologist agreed that D. was a victim of SBS, and none of the experts disagreed with the SBS diagnosis.
Dr. Fields also based his opinion on the history of D. and his family. Mother told Dr. Fields that D.’s injuries were caused in the following manner: Mother pulled her vehicle into the driveway, got out and removed J. from the vehicle in his car seat and set him down. She then reached back into the vehicle to remove D.. As she pulled D. out of the car in his car seat, she tripped over J. and flung D. onto the driveway. From mother’s description, Dr. Fields estimated that D. fell from approximately the height of mother’s hip. Mother’s story concerned Dr. Fields because the explanation that D. had fallen a short distance in his car seat did not correspond with his complete neurological devastation. Children who are restrained in car seats should not experience extensive head movement. Furthermore, every day during his 14-year practice, Dr. Fields examined children who had fallen or been dropped and suffered little or no injury, much less complete neurological devastation. Children involved in car accidents, for example, typically have few or no injuries if they are restrained in a child seat. Mother’s explanation made no sense to Dr. Fields.
Dr. Fields had also been shown a video of mother’s reenactment of the alleged accident for a detective. She provided two reenactments, the second one in slower motion. Dr. Fields noticed that in the first reenactment, mother tripped and the car seat fell onto the driveway. In the second reenactment, mother flung the car seat over her shoulder. This discrepancy also confirmed Dr. Fields’s opinion that the injuries were not caused in the manner mother described.
Moreover, Dr. Fields did not believe mother’s statement that D. had been injured 17 hours before his admission to the hospital. According to Dr. Fields, this was unlikely. In his experience, children with injuries as serious as D.’s usually had a rapid onset of symptoms and a high risk of death. They generally suffered seizures and vomiting within 10 to 15 minutes of being injured. Dr. Fields believed D. would likely not have survived had he not received medical treatment within two hours of being injured. Mother’s explanation that his injuries had occurred 17 hours before she got D. to the hospital also suggested to Dr. Fields that D.’s injuries had not occurred as mother described because if she had really believed she had injured D. by dropping him on the pavement, she would have taken him to the hospital sooner.
Dr. Fields also considered social stress factors in forming his opinion. He noted that mother had reported being overwhelmed with the care of two infants. This was a typical social red flag. People with poor coping skills could eventually lose control.
When Dr. Fields received all the laboratory data, he made the final diagnosis that D. suffered from SBS. The diagnosis was Dr. Fields’s reasonable medical opinion.
On cross-examination, Dr. Fields repeated that he believed D.’s injuries were caused by being picked up and violently shaken. The evidence he had to support this belief was D.’s injuries -- cerebral edema, subdural hematoma, retinal hemorrhages and neurological devastation -- plus an explanation that did not fit the pattern of injuries. Dr. Fields stressed that a SBS diagnosis relies on the child’s symptoms and the family’s history and social stressors. He explained: “I developed a differential diagnosis from day one that I saw him. I went through systematic approaches to rule out other causes. Ultimately, when I got all my tests back, I made my final diagnosis. So I started on my fact pattern day one, when I saw him, 9-20-07, in the ICU.”
On March 14, 2008, mother filed a motion to strike Dr. Fields’s testimony because it was conclusory and based on speculation. The court denied the motion on March 20, 2008.
DISCUSSION
Mother contends the trial court abused its discretion when it denied her motion to strike Dr.Fields’s testimony that D.’s symptoms were caused by violent shaking and that he suffered from SBS. Mother claims Dr. Fields’s opinion was conclusory and not accompanied by a reasoned explanation.
Mother relies on Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, which states:“A person who qualifies as an expert may give testimony in the form of an opinion if the subject matter of that opinion ‘is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (a);[citation].) It is undisputed that qualified medical experts may, with a proper foundation, testify on matters involving causation when the causal issue is sufficiently beyond the realm of common experience that the expert’s opinion will assist the trier of fact to assess the issue of causation. [¶] However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert’s opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.] Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ [Citation.] [¶] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide? [Citation.] Therefore, an expert’s opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury, does not provide assistance to the jury because the jury is charged with determining what occurred in the case before it, not hypothetical possibilities. [Citation.] Similarly, an expert’s conclusory opinion that something did occur, when unaccompanied by a reasoned explanation illuminating how the expert employed his or her superior knowledge and training to connect the facts with the ultimate conclusion, does not assist the jury. In this latter circumstance, the jury remains unenlightened in how or why the facts could support the conclusion urged by the expert, and therefore the jury remains unequipped with the tools to decide whether it is more probable than not that the facts do support the conclusion urged by the expert. An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” (Id. at pp. 1116-1118.)
In this case, Dr. Fields was subjected to three days of rigorous examination. He repeatedly explained the factual foundation for his ultimate conclusion that D.’s injuries were the result of being violently shaken. Even Dr. Fields referred to his testimony as, “what we have discussed a[d] nauseum for the last several days.” It is hardly fathomable to us that mother challenges Dr. Fields’s testimony as conclusory and speculative. The record establishes that Dr. Fields went to great lengths to thoroughly examine and test D. and to provide, for three days, detailed factual testimony to explain his analysis. His opinion was not based on guess, surmise, assumption or conjecture, but rather on a reasoned, systematic and thoughtful method, which he explained in comprehensible detail. He provided “a reasoned explanation illuminating how [he] employed his ... superior knowledge and training to connect the facts with the ultimate conclusion ....” (Jennings v. Palomar Pomerado Health Systems, Inc., supra, 114 Cal.App.4th at p. 1117.) Mother’s claim is entirely without merit. The trial court did not err by denying mother’s motion to strike Dr. Fields’s testimony. Because we so conclude, we need not address mother’s claim that without this testimony the evidence was insufficient.
DISPOSITION
The juvenile court’s orders are affirmed.
WE CONCUR: Wiseman, Acting P.J. Levy, J.