Opinion
ID 0312018542, Cr.A. No. 04-01-0225, Assault By Abuse.
Decided: November 19, 2004.
On Defendant's Motion to Exclude Evidence of Shaken Baby Impact Syndrome or Inflicted Head Trauma Syndrome. DENIED.
ORDER
This 19th day of November, 2004, it appearing to the Court that:
The defendant, Kimberly D. Vandemark, is charged with assault by abuse involving a child named Doran Herbert. Doran was born on June 26, 2002. The act of abuse is alleged to have occurred on October 21, 2003 when Doran was almost sixteen months old.
The record shows that Doran was taken to Bayhealth Medical Center ("Bayhealth") on October 22, 2003. The history given was that Doran fell from a couch while under defendant's care as a babysitter. According to defendant, Doran was totally lifeless and his eyes rolled back into his head immediately after the fall. The next day, because of decreased responsiveness and irritability, Doran was taken to Bayhealth by his mother.
A computerized tomography scan ("CT") found Doran had a small subdural hematoma. It had mass effect on the left side. A magnetic resonance imaging ("MRI") test performed on October 28th showed an extensive subacute left-sided subdural hematoma wrapping around the left cerebral hemisphere laterally, superiorly and inferiorly.
The MRI is a more sensitive test than the CT. The MRI uncovered what the CT was not able to do. The MRI revealed the extent of the subdural hematoma as it passed over and around the surface of the left cerebral hemisphere. This was much larger than what the CT showed.
In addition to the supratentorial blood on the left side, there was infratentorial bleeding below the tento rium in the subdural space. This was a second site of bleeding. A third site of subdural hemorrhage was also found.
On October 29, 2003, Doran was seen at the DuPont Hospital for Children. The chart indicated Doran had unilateral retinal hemorrhage along with subdural hematoma and head trauma symptoms. The retinal hemorrhage was diagnosed on October 24, 2003 after examination at the Wills Eye Hospital in Philadelphia, Pennsylvania.
A number of doctors have seen Doran and consulted about his injuries. Dr. Lowell Scott saw him at Bayhealth. Dr. Allen DeJong saw him at the DuPont Hospital. Dr. William Tasman saw him at the Wills Eye Institute. Dr. Robert A. Zimmerman of the Children's Hospital of Philadelphia reviewed the CT exam and the MRI test. Dr. Cindy W. Christian, an Associate Professor of Pediatrics of the Children's Hospital of Philadelphia with the University of Pennsylvania School of Medicine, has reviewed the medical record and statements by defendant to the police and offers expert testimony. Her testimony is consistent with all the diagnosis' made by Doran's treating and consulting physicians.
All of the physicians believe the injuries observed in Doran are consistent with Shaken Baby Impact Syndrome or Inflicted Head Trauma. They believe the observed injuries are not consistent with a fall from a couch. They believe the observed injuries are not accidental.
The defense filed a motion in limine which seeks to bar testimony about Shaken Baby Impact Syndrome. A hearing was held on October 6, 2004. Dr. Christian was the only person who testified.
Dr. Christian has an eighteen page resume . She is a pediatrician, professor, lecturer and author. She is a director of a child abuse program and has given expert testimony in trials involving child abuse. From her background, training, and experience, she is well qualified to speak about child physical abuse, shaken baby impact syndrome, and inflicted head trauma. Among her achievements, she has played significant organizing roles in scientific meetings regarding child abuse questions relevant to this case. She has authored textbook materials on the subject and written over eighty papers. Twenty involved research in this area, and her publications have been peer reviewed. One of her articles which she co-authored was titled "Non-accidental Head In jury in Infants — The Shaken-Baby-Syndrome." It appeared in the New England Journal of Medicine in the June 18, 1998 issue.
According to Dr. Christian, it is generally accepted in the scientific community in the field of pediatrics that shaking, blunt force or a combination injure children. A classic constellation of findings includes subdural and retinal hemorrhages. As Dr. Christian explained, subdural bleeding occurs under the dural membrane but outside the brain tissue. It usually results from serious rotational injury, back and forth. The rotational forces stretch out bridging veins and cause pressures with bleeding. Hemorrhage is both a marker for the threshold of force required to cause the in jury and likely contributes to the brain damage. While shaking is a component of these forces, contacts with surfaces magnify the angular rotational and acceleration/deceleration forces.
Children manifesting these injuries are virtually all under 3 years of age. The appearance of retinal hemorrhage suggests a diagnosis of Shaken Baby Impact Syndrome or Inflicted Head Trauma together with a history of a child's prior good health, bleeding in the brain, and trauma to other parts of the body. In this regard, she noted that Doran had a bruise on the back of his head. Her New England Journal of Medicine article discusses the Shaken Baby Impact Syndrome in detail. It has eighty-six references; this work was cited in twenty-four articles, including reviews by professionals studying child abuse injuries, and inflicted, non-accidental trauma. The reviews cover the period from 1998 through 2003.
Delaware Rule of Evidence 702 governs the admissibility of expert witness testimony. Del. R. Evid. 702 provides: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise . . ." To be admissible, expert testimony must be both relevant and reliable. D.R.E. 702 is identical to its federal counterpart, and the Delaware Supreme Court has adopted the United States Supreme Court's holdings in Daubert and Kumbo Tire Co., Ltd. v. Carmic heal, 562 U.S. 137 (1999) "as the correct interpretation of Delaware Rule of Evidence 702." State v. Jones, 2003 W L 21519842, at *2 (Del.Super.Ct.), citing, M.G. Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 522 (Del. 1999). As the proponent of the proffered expert testimony, the State bears "the burden of establishing relevance, reliability, and admissibility by a preponderance of the evidence." Minner v. American Mort. Guar. Co., 791 A.2d 826, 843 (Del.Ch. 2000). Therefore, the Court must analyze the proffered testimony in light of the following six factors before an expert may testify. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594 (1993); Nelson v. State, 628 A.2d 69, 75 (Del. 1993); New Haverford Partnership v. Stroot, 772 A.2d 792, 799 (Del. 2001).
1. The witness is qualified as an expert by knowledge, skill, experience, training or education. D.R.E. 702.
2. The evidence offered is otherwise admissible, relevant and reliable. D.R.E. 401. D.R.E. 402.
3. The expert's opinion is based upon information "reasonably relied upon by experts in the particular field." D.R.E. 703.
4. The specialized knowledge being offered "will assist the trier of fact to understand the evidence or to determine a fact in issue. . . ." D.R.E. 702.
5. The expert testimony will not create unfair prejudice, confuse the issues or mislead the jury. D.R.E. 403.
6. The probative value of the evidence upon which the expert relies substantially outweighs the risk of prejudice. D.R.E. 703.
Furthermore, it is well established that "[u]nder Daubert, Kumho Tire and M.G. Bancorporation, the Trial Judge acts as the gatekeeper to ensure that scientific testimony is not only relevant but reliable." Minner, 791 A.2d at 843, citing M.G. Bancorporation, 737 A.2d at 521 (citations omitted). These factors include whether a theory or technique can be and has been tested, whether it has been subjected to peer review and publication, whether, in respect to a particular technique, there is a high, known, or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.
When considering this analysis, the Delaware Supreme Court has stated that: "When determining reliability, factors illuminated in Daubert are meant to be helpful, not definitive, and may or may not be pertinent depending on the nature of the issue, an expert's particular expertise, and the subject of the testimony." Norwood v. State, 813 A.2d 1141 (Table), 2003 WL 29969, at *2 (Del.). The Norwood court observed that the facts and testimony of the particular expert opinion did not lend themselves to peer review and reliability rates.
In Norwood, the expert opinion concerned the commercial nature of a drug transaction.
In reviewing the cases, it seems that the science behind Shaken Baby Impact Syndrome has been accepted in Delaware and just about every jurisdiction . See Walls v. State, 834 A.2d 827 (Table), 2003 W L 22317134 (Del.); Aiken v. State, 648 A.2d 423 (Table), 1994 WL 330014 (Del.), rev'g, 1993 WL 1609589 (Del.Super.Ct.). The physician seeing Doran at the DuPont Hospital for Children, Dr. De Jong, concluded that a child was a victim of inflicted head trauma, or shaken baby impact syndrome in the case of In Re Truselo, 846 A.2d 256 (Del.Fam.Ct. 2000). In that case, the Family Court authorized a do not resuscitate order on the chart.
In State v. Leibhart, 662 N.W.2d 618, 624 (Neb. Supr. 2003), the Nebraska Supreme Court, in 2003, affirmed a lower court's decision that testimony regarding shaken baby impact syndrome was admissible because it had been clinically tested and was generally accepted within the scientific medical community. It noted that expert testimony about shaken baby impact syndrome had previously been admitted by courts in Nebraska, it had been found to be generally accepted by courts in other states, and a reexamination under Daubert was not warranted because studies raising doubt about shaken baby impact syndrome "needed further testing and that the prevailing literature adhered to previously relied upon theories regarding shaken baby impact syndrome." Id. at 628. Also, the Leibhart court stated: "We note that the evidence presented at the Daubert hearing . . . was not extensive and consisted mainly of Moran's testimony and his reference to the relevant literature. . . . Daubert does not require that courts reinvent the wheel each time that evidence is addressed." Id. at 628.
Moran was a pediatrician.
In State v. Cort, 766 A.2d 260 (N.H. Supr. 2000), the New Hampshire Supreme Court, in 2000, upheld a lower court ruling denying a Frye hearing on the basis that the SBS testimony was opinion and not scientific evidence subject to a Frye analysis. It was conceded that shaken baby impact syndrome was generally accepted in the medical community. Therefore, an expert could testify that the symptoms in question generally require vigorous shaking. Id. at 265-66.
Shaken baby impact syndrome has been described as a sub-category of shaken baby syndrome, the difference being between impact on a hard surface and violent shaking. See State v. Hoover-Moore, 2004 WL 2341691 (Ohio Ct.App.).
After reviewing the record and law, I find that evidence concerning shaken baby impact syndrome and inflicted head trauma will be admitted. These diagnoses are compatible and are generally accepted in the field of pediatrics. They have been admitted into evidence in the most serious criminal trials.
The theory behind the syndrome was discussed at the hearing and is the subject of Dr. Christian's New England Journal of Medicine article. As she acknowledged at the hearing, although there is difference of opinion, the sudden deceleration associated with forceful striking of the head against a surface is responsible for most inflicted brain injuries but shaking itself can injure children. Her opinion is partly based on injuries observed in studies of children in automobile accidents. They encounter rotational forces to the he ad, and they often have subdural hematomas.
Children, who are seriously injured in this way, do not have significant lucid intervals. Dr. Christian cited research to support the idea that in infants and young children, household falls causing head injuries mainly involve low-velocity straight line forces rather than those produced by rotational or angular decelerations. Evidence relied upon in her profession shows that subdural and rotational hematoma's result from rotational forces. They do not result from the force expected in a short fall. Dr. Christian cited the findings of investigators in the pediatric profession who found subdural hematomas and retinal hemorrhages to be among the constellation of findings associated with the syndrome. These findings are consistent with children suffering major rotational forces well beyond normal child care activities.
Evidence of this nature was considered by the Supreme Court of Colorado, in 2004, in People v. Dunaway, 88 P.3d 619 (Colo. Supr. 2004). There, the defendant, Dunaway, was convicted of child abuse resulting in serious bodily injury. Dunaway attributed the injury to a fall from a couch. The trial court permitted a doctor to testify that massive force was required to cause infant subdural hematoma. The expert noted like Dr. Christian here — that because it would obviously not be possible to test a child's response to intentional injury, it was impossible to know what minimum force was required to cause an infant's subdural hematoma.
In another Colorado Supreme Court decision, in 2003, similar expert testimony was permitted that subdural hematoma "requires massive, violent force." This was a first degree murder case of an infant from shaken baby impact syndrome. Part of this testimony was:
that a subdural hematoma rarely occurs and does so only in limited situations: where a baby falls from a several story building; in a high speed motor vehicle accident either as a pedestrian or where the ba by is unrestrained; or when a baby is violently shaken or violently shaken and slammed.People v. Martinez, 74 P.3d 316, 320 (Colo. Supr. 2003).
In Martinez, the expert could properly rely upon violent accident scenario evidence as a basis of opinion. As the Martinez court said: "The basis is sound because it is based on empirical data and under C.R .E. 702, the expository information assists the jury in better understanding the nature of subdural hematoma: that it occurs only in a few known situations. Similarly, the jury understands that a simple fall is unlikely to cause a subdural hematoma." Id. at 323-324.
Given the reasoning of these Colorado decisions, an expert cannot say that the amount of force used by the defendant was the same amount of force generated in the accidents. An expert cannot infer — and a prosecutor cannot argue — that the violent accident scenarios represented the minimum force required to cause a subdural hematom a. As Dr. Christian shared: the minimum force required to cause the injury is not known.
Moreover, Dr. Christian discussed a study of one hundred seventy-three children younger than three years with head injuries caused by abuse. The study found that about thirty-one percent of the child abuse cases were missed and not diagnosed correctly. Several deaths from subsequent abuse might have been avoided. This subject was reported in an article titled "Analysis of Missed Cases of Abusive Head Trauma" in the February 17, 1999 issue of the Journal of the American Medical Association. Carole Jenny, et al., Analysis of Missed Cases of Abusive Head Trauma, 281 J.Amer. Med. Ass'n 621-626 (Feb. 17, 1999). This article stated that: "Because shaking, impact to the head or both are all potentially harmful to infants and toddlers, all head injuries caused by abuse were grouped into the single category of Abusive Head Trauma." Id. at 622. Dr. Christian's New England Journal of Medicine article was referenced in this paper at footnote 6.
The defense argues that since a rate of error was established for certain undisputed cases of abusive head trauma, there must be a rate of error for overreported cases or cases of false positives. This may be an apples to oranges comparison. The American Medical Association analysis involved a retrospective study of charts of cases of head trauma caused by abuse of the children between 1990-1995 at the Children's Hospital, Denver, Colorado, a referral center for Colorado, Wyoming, Montana and western Nebraska. Under the circumstances, this is the best of what can be expected as children cannot be tested.
Certainly, this study is additional clinical support for the theory of abusive head trauma which is equivalent to shaken baby imp act syndrome and inflicted head injury. Dr. Christian acknowledged that the rate of error for cases wrongfully diagnosed as inflicted head traumas was not known. However, no suggestion was made about how to structure such an analysis. In this regard, mistakes in recognized medical diagnosis do occur. Errors may form the basis of a malpractice suit. Yet they do not mean that the diagnosis itself is invalid or cannot be made reliably in other circumstances. As the Colorado Supreme Court observed in Martinez, 74 P.3d at 322, the standard of admissibility is relevance and reliability, not certainty.
Like the Leibhart court, I find that the reasoning or methodology underlying testimony about shaken baby impact syndrome or inflicted head trauma is sufficiently reliable under Daubert. The theory has been clinically tested and peer reviewed. The findings have been documented by considerable literature. The findings are generally accepted within the field of pediatrics. Indeed, all the physicians involved in Doran's case made this diagnosis. The absence of a known rate of error reflects the limitations of the subject matter. Testimony regarding the specific injuries related to shaken baby impact syndrome or inflicted head trauma fits this case because Doran's injuries are similar to them. Causes from low height accidental falls or prior injuries can be excluded . Areas of defense interest can be explored by cross examination, and the jury can give this evidence the weight it deserves.
Finally, I conclude that Dr. Christian is qualified as an ex pert by know ledge, skill, experience, training, and education; that the evidence is otherwise admissible, relevant and reliable, that her opinion is based upon information reasonably relied upon by experts in her particular field, that the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, that this expert testimony will not create unfair prejudice, confuse the issues or mislead the jury and the probative value of the evidence upon which the expert relies substantially outweighs the risk of prejudice.
Considering the fore going, the State has satisfied its burden, and the motion in limine to exclude evidence about shaken baby impact syndrome or inflicted head trauma is denied.
IT IS SO ORDERED.