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Commonwealth of Kentucky Court of Appeals
NO. 2006-CA-002236-MR COMMONWEALTH OF KENTUCKY APPELLANT

v.

APPEAL FROM GREENUP CIRCUIT COURT HONORABLE LEWIS D. NICHOLLS, JUDGE ACTION NO. 04-CR-00076 APPELLEE NO. 2006-CA-002237-MR

RAYMOND MARTIN AND:

COMMONWEALTH OF KENTUCKY

APPELLANT

v.

APPEAL FROM GREENUP CIRCUIT COURT HONORABLE LEWIS D. NICHOLLS, JUDGE ACTION NO. 04-CR-00205

CHRISTOPHER A. DAVIS

APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** ** BEFORE: THOMPSON, JUDGE; BUCKINGHAM AND HENRY, SENIOR JUDGES.1 HENRY, SENIOR JUDGE: In these consolidated cases, the Commonwealth appeals from orders of the Greenup Circuit Court entered on October 10, 2006. At issue is whether the circuit court erred in ruling that expert medical testimony about shaken baby syndrome was unreliable and therefore inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Because we have concluded that the circuit court abused its discretion in excluding the testimony, we reverse and remand for further proceedings. Raymond Martin was indicted on May 27, 2004, for assault in the second degree for intentionally injuring E.G., his three-month-old son, by excessively shaking him. Christopher A. Davis was indicted on December 16, 2004, for criminal abuse in the first degree for severely shaking his four-month-old son, A.D. In both cases, the infants displayed the symptoms of subdural hematomas (pooling of blood in the membranes enclosing the brain) and bilateral retinal hemorrhaging (bleeding in both eyes) while they were in the sole care of their fathers. Both infants were admitted to Our Lady of Bellefonte hospital in Ashland, and thereafter were transferred for treatment to the Children's Hospital in
Senior Judges David C. Buckingham and Michael L. Henry sitting as Special Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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Columbus, Ohio. A.D. underwent a craniotomy to relieve the hematoma on his brain. E.G. has sustained nerve damage which will permanently affect his eyes. Martin and Davis made motions for a Daubert hearing, seeking to exclude the testimony of the Commonwealth's proffered expert witness, Dr. Betty S. Spivack, on the grounds that her testimony to the effect that the injuries of E.G. and A.D. were the result of shaken baby syndrome, was unreliable. The court held a joint Daubert hearing because the factual circumstances of the cases were so similar. At the hearing, which was held on March 29, 2006, testimony was heard from the defendants' expert, Dr. Ronald Uscinski, and from Dr. Spivack. Dr. Uscinski is a distinguished neurosurgeon who serves as a Clinical Associate Professor at Georgetown University School of Medicine in Washington D.C. In Dr. Uscinski's opinion, there is insufficient evidence to support the view that an infant can sustain a subdural hematoma from shaking alone. Dr. Uscinski has not performed any primary research or conducted any studies on this subject, although he has published two short articles (one page and four pages respectively) which set forth his views. It is unclear whether these publications were peerreviewed. Dr. Uscinski has also made presentations on shaken baby syndrome to several eminent organizations, and has served as an expert defense witness in numerous "shaken baby" cases. In his testimony before the Greenup Circuit Court, Dr. Uscinski provided an overview of the various studies that have investigated the effects of whiplash and shaking on the brain. In each instance, he described various
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weaknesses that, in his opinion, detracted from the value of the studies. For example, in 1968, an attempt was made by Dr. Ayub K. Ommaya to replicate the effects of whiplash on the brain by strapping rhesus monkeys into a seat that was rapidly accelerated and then suddenly stopped. The monkeys were then killed and dissected; nineteen of the fifty monkeys had suffered intracranial injuries such as concussions and subdural hematomas. Dr. Uscinski opined that Ommaya's research was flawed because he never quantified precisely how much rotational acceleration would be necessary to cause a subdural hematoma in an infant by manual shaking. Dr. Uscinski also pointed out further weaknesses in the study: that it was conducted on monkeys, which have smaller heads and stronger, thicker necks than human beings; that the whiplash action was different from shaking; and that it was possible that some of the monkeys hit their heads on the back of the seat, which suggests that their brain injuries were not due to movement alone. Dr. Ommaya later tested squirrel monkeys and chimpanzees in a similar manner. Using the experimental data from the different animals, Dr. Ommaya extrapolated to determine the threshold force required to injure adult humans. Again, Dr. Uscinski was critical of this study due to the difference in anatomy between humans and monkeys. Dr. Ommaya's experiment was relied upon in the 1970s by Drs. Guthkelch and Caffey, who wrote seminal articles about shaken baby syndrome. Dr. Guthkelch, a pediatric neurosurgeon, reported in 1971 on 13 infants and toddlers with subdural hematomas from suspected abuse. Ten of these children
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had bilateral retinal hemorrhaging. Of these ten, five had no external marks of injury. In two instances, their families reported shaking the children vigorously. Dr. Caffey in 1972 reported on 27 cases where shaking was all or part of the mechanism causing subdural hematomas in children. Dr. Uscinski then described an experiment published by Dr. A.C. Duhaime in 1987, in which she created three different models of a baby's neck and brain, and had subjects shake the models. They were unable to generate the acceleration hypothesized by Ommaya as necessary in order to cause injury. Duhaime consequently developed the concept of shaken impact syndrome, hypothesizing that an impact was necessary to cause the injuries associated with shaken baby syndrome, but that an impact against a soft surface could create sufficient force to cause concussion and subdural hematomas. Uscinski also alluded to a recent study by Faris A. Bandak, which relied on a nineteenth-century experiment by Dr. Matthew Duncan in which the cadavers of days-old infants were suspended and weights attached to their ankles. Duncan then recorded the level at which the weights caused decapitation. (This experiment was conducted by Duncan to determine how much force could be used when attempting to assist the delivery of a baby by using forceps.) On the basis of this data, Bandak concluded that shaking violent enough to produce brain damage in an infant would also cause a neck injury before any damage occurred to the brain, because infants' necks are relatively weak and their heads are relatively large and heavy.
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The Commonwealth's witness, Dr. Betty Spivack, is a forensic pediatrician on the staff of the Kosair Children's Hospital in Louisville. She is a professor of pediatrics and pathology at the University of Louisville School of Medicine. Her testimony covered much of the same ground as Dr. Uscinski's. She criticized Bandak's methodology, since the nineteenth-century study on which he relied involved gradually increasing the weights on the infants' cadavers rather than on abrupt shaking. She testified that other researchers had attempted to replicate Bandak's results and had been unable to do so. She also criticized Dr. Duhaime's study by pointing out that the models used were not "corroborated" test dummies, and that the volunteers shook the dummies straight back and forth which uses relatively weak, small muscles and does not create high acceleration. Dr. Spivack also testified regarding various clinical trials and studies. For instance, she alluded to a study performed in 1989 on 36 children who had suffered abusive head trauma. Of this group, 13 showed no evidence of impact. Of the six who were autopsied, five showed no signs of impact. They did have evidence of epidural and subdural hematomas of the cervical spinal cord. Dr. Spivack explained that it was possible to have impact without outward evidence such as bruising. She stated that bilateral, extensive retinal hemorrhages, in conjunction with a hematoma, are a good indicator of a shaking event because in automobile or bike accidents, children who suffer subdural hematomas rarely display retinal hemorrhages. In her opinion, this was borne out by multiple studies which have confirmed that up to 80% of abusive head trauma cases have retinal
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hemorrhages. She testified that she is aware of only one documented case where bilateral, extensive retinal hemorrhages were found in an accident case, which occurred when an infant pulled a television weighing over 40 pounds down on his head. Dr. Spivack acknowledged that the scientific studies underlying shaken baby syndrome are not complete and that further research is needed. On April 17, 2006, the court entered an opinion and order in both cases, ruling that Dr. Spivack's testimony about shaken baby syndrome did not meet the Daubert test for scientific reliability. Essentially, the court determined, relying largely on the testimony of Dr. Uscinski, that shaking alone could not cause the type of injuries sustained by the victims. The court drew a distinction between the "scientific" and "clinical" communities, and concluded that there were insufficient studies using the "scientific method" to support Dr. Spivack's opinion. It stated in relevant part: The existence and maintenance of standards controlling the study of SBS [Shaken Baby Syndrome] certainly exists. However, not all of the studies have observed the scientific method in reaching conclusions. In fact the most damning studies supporting SBS are the ones that failed to follow the scientific method. The more recent studies appear to utilize a more scientific methodology to their research, but their preliminary conclusions appear to support the conclusion that the subdural hematoma and bilateral ocular bleeding are not caused by shaking alone, but require blunt force impact. Physicians routinely diagnose SBS and that has gained wide or general acceptance in the clinical medical community, if the baby has the two classical medical markers of subdural hematoma and bilateral ocular bleeding without any other manifest injuries. However,
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this diagnosis is based on inconclusive research conducted in the scientific research community. SBS has gained wide or general acceptance in the clinical community and research community, if the baby has the two classical medical markers of subdural hematoma, bilateral ocular bleeding, and other manifest observable injuries such as broken bones, bruises, etc. To allow a physician to diagnose SBS with only the two classical markers, and no other evidence of manifest injuries, is to allow a physician to diagnose a legal conclusion. If the physician has the two classical markers (subdural hematoma and bilateral ocular bleeding) coupled with other manifest injuries, then the diagnosis arises to more than a legal conclusion

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