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25
a means to preclude a government expert who strictly adheres to the
majority view of SBS.
Recall that the first Daubert prong asks whether or not the preferred
scientific theory has been tested.
126
A review of the medical studies
presented herein calls into debate whether or not the majority view of
SBS actually meets this threshold. To the contrary, armed with the
biomechanical studies of the minority and emerging views,
127
counsel
could demonstrate that the underlying scientific basis or premise of the
shaking alone theory (i.e., that humans have sufficient strength to shake
an infant to the point of traumatic brain injury) is “falsifiable.”
128
Remember, as demonstrated by Dr. Duhaime in her landmark study,
when Dr. Caffey’s theory was tested, it was falsified.
129
The second Daubert prong asks whether or not the theory has been
published in peer-reviewed journals.
130
The majority view, and more
recently the minority and emerging views, have all enjoyed moderate to
widespread publication.
131
Publication, however, belies two critical
points with regard to the majority view. First, “it is significant that in all
four previously cited original papers regarding the hypothesis of shaking,
both Guthkelch and Caffey refer to a single paper by Ommaya published
in 1968 as biomechanical justification for this concept.”
132
The
implication, of course, is that the cornerstone upon which the majority
theory is premised is flawed. A theory built on a flawed premise is itself
flawed regardless of the number of times it has been published. Second,
as noted by the court in Daubert, “publication is not the sine qua non of
admissibility; it does not necessarily correlate with reliability.”
133
To the
126
Daubert, 509 U.S. at 593.
127
See supra pt. IV, §§ A2, B.
128
Genie Lyons, Shaken Baby Syndrome: A Questionable Scientific Syndrome and a
Dangerous Legal Concept, 2003 U
TAH
L.
R
EV
. 1109, 1115; see also Daubert, 509 U.S. at
593 (“The criterion of the scientific status or theory is its falsifiability, or refutability, or
testability.”). Falsifiable is defined as capable of being tested (verified or falsified) by
experiment or observation. WordReference.com, English Dictionary,
http://www.wordreference.com/definition/ falsifiable (last visited Sept. 13, 2006).
129
Duhaime et al., supra note 3, at 409, 414.
130
Daubert, 509 U.S. at 593.
131
See generally supra pt. IV& V.
132
Uscinski, supra note 22, at 76-7 (referring to the following studies that are considered
the genesis of the shaking alone theory: Annan Guthkelch, Infantile Subdural Hematoma
and Its Relationship to Whiplash Injuries, 2 B
RIT
.
M
ED
.
J.
430 (1971); John Caffey, The
Parent-infant Traumatic Stress Syndrome, 114 AM.
J.
R
OENTGENOLOGY
217 (1972);
Caffey, Whiplash, supra note 2; Caffey, Theory and Practice, supra note 2).
133
Daubert, 509 U.S. at 593.
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contrary, “submission to the scrutiny of the scientific community is a
component of ‘good science’ in part because it increases the likelihood
that substantive flaws in methodology will be detected.”
134
Arguably, the
present situation is just the type of “scrutiny” the court in Daubert
envisioned, with the minority and emerging views pointing out and
critically addressing the “substantive flaws” in the majority view.
135
The third Daubert factor inquires as to the “potential rate of error”
regarding a proffered scientific theory.
136
Other than the separate
biomechanical studies performed by Doctors Ommaya,
137
Duhaime,
138
Goldsmith, Plunkett,
139
and Bandak,
140
which support the minority and
emerging views, there are virtually no other quantifiable studies from
which to deduce an error rate. In an attempt to determine the quality of
the science supporting SBS, Dr. Mark Donohoe conducted an exhaustive
review of the SBS literature from 1968 to 1998.
141
Dr. Donohoe “found
the scientific evidence to support a diagnosis of shaken baby syndrome
to be much less reliable than generally thought.”
142
More precisely, Dr.
Donohoe opined that “the evidence for shaken baby syndrome appears
analogous to an inverted pyramid, with a very small database
(most of it
poor quality original research, retrospective in
nature, and without
appropriate control groups) spreading to
a broad body of somewhat
divergent opinions.”
143
As such, defense could argue that the lack of an
error rate means that the majority view of SBS fails this Daubert prong.
The fourth Daubert prong asks if the proffered theory is generally
accepted within the scientific field.
144
Granted, the majority view of SBS
is generally accepted; however, “respect for precedent does not require
courts to ignore flaws in logic. The law must adapt when prior scientific
theories are undermined by scientific logic.”
145
The minority and
134
Id.; Lyons, supra note 128, at 1129.
135
Lyons, supra note 128, at 1129.
136
Daubert, 509 U.S. at 594.
137
Ommaya, supra note 22.
138
Duhaime et al., supra note 3.
139
Goldsmith & Plunkett, supra note 26.
140
Bandak, supra note 28.
141
Geddes & Plunkett, supra note 8, at 719.
142
Id.
143
Id. at 719-20 (citing Mark Donohoe, Evidence-Based Medicine and the Shaken Baby
Syndrome, Part I: Literature Review: 1966-1998, 24 A
M
.
J.
F
ORENSIC
M
ED
.
&
P
ATHOLOGY
239 (2003)).
144
Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 594 (1993).
145
Lyons, supra note 128, at 1132.
46
2006]
SHAKEN BABY IMPACT SYNDROME
27
emerging views have clearly undermined the scientific logic of the
premise upon which the majority view of SBS is based.
146
The more
these theories gain a foothold within the medical community, the more
opportunities counsel have to argue that the majority view of SBS has
lost its “general acceptance” within the medical community.
Understanding the experts’ biases is critical. In this article’s
hypothetical, a government expert adhering to the majority view would
likely opine that it was the shaking that either caused or significantly
aggravated the subdural hematoma, which then caused the brain to swell
and the child to die. Defense counsel, however, would want to contest
the expert’s opinion since such testimony would put his client at the
scene of the crime at the time the government is likely to allege the
incident causing the traumatic brain injury occurred. Faced with this
challenge, counsel need not capitulate when confronted with a
government expert who strictly adheres to the majority view of SBS to
the exclusion of other sound theories. Instead, counsel can seek to
disallow an expert who refuses to consider either the minority or
emerging view by demonstrating how the majority view of SBS may fail
each of the Daubert criteria and, consequently, the reliability prong of
MRE 702.
XI. Current Controversies within the Realm of SBS
There are numerous sub-controversies within the realm of SBS that
cannot be neatly pigeonholed into the majority, minority, or emerging
views. Such controversies include, but are not limited to the following:
whether falls from short-distances can be fatal; whether diffuse axonal
injury can be caused by events other than SBS/SIS (i.e., can being on a
respirator for a prolonged period cause, mimic, or mask diffuse axonal
injury); whether a preexisting, yet benign subdural hematoma, can re-
bleed and turn fatal due to a subsequent, yet minor head injury; and
whether certain vaccinations can mimic those injuries normally
associated with SBS/SIS.
147
Two of these sub-controversies merit further
discussion: whether short falls can or do kill and whether a preexisting
146
See supra pt. IV.
147
SBSDefense.com, Forensic Truth Foundations, Shaken Baby Syndrome for
Beginners: Shaken Baby Syndrome-Questions and Controversies, http://
www.sbstruth.com/Questions%20and%20controversies.htm (last visited Sept. 14, 2006)
[hereinafter SBSDefense.com Controversies].
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or chronic subdural hematoma can re-bleed due to a subsequent or
second impact.
Some experts assert that traumatic brain injury cannot be caused by
short falls (e.g., fall out of a crib, fall off of a swing, fall off a kitchen
stool, etc.).
148
Rather, a repeated theme proffered by these experts is that
traumatic brain injury can only be caused by “significant force . . . such
as major motor vehicle crashes, falls from a second-story window, or
inflicted severe blunt force trauma.”
149
Any expert subscribing to this
theory would automatically dismiss or discredit any alternate theory of a
case where the defendant is claiming the injury occurred because of
some form of short fall. In recent years, however, several credible
studies have been published that question the theory that traumatic brain
injury cannot be caused by short falls.
150
In one such study, “the author
reviewed the January 1, 1988 through June 30, 1999 United States
Consumer Product Safety Commission database for head injuries
associated with the use of playground equipment.”
151
The author’s stated
objective was to determine if there were any “witnessed or investigated
fatal short-distance falls that were concluded to be accidental.”
152
The
study noted eighteen head injury fatalities from falls off of playground
equipment ranging in height from “0.6 to 3 meters (2–10 feet).”
153
Of
the eighteen fatal falls, twelve were “directly observed by a
noncaretaker” witness.
154
As a result, the author concluded “that an
infant or child may suffer a fatal head injury from a fall of less than 3
meters (10 feet).”
155
Armed with this information, traumatic brain injury
resulting from a drop in the tub certainly seems more plausible than
previously thought.
Another controversy surrounding SBS is the “re-bleed” or “second
impact” theory. The re-bleed theory purports that an otherwise non-
148
Plunkett, supra note 6, at 1-2, tbl. 1.
149
United States v. Buber, No. 20000777, at 8 (Army Ct. Crim. App. Jan. 12, 2005)
(unpublished); Goldsmith & Plunkett, supra note 26, at 95 (“There has been sworn
testimony in courts of law by expert witnesses who state that trauma caused by shaking is
equivalent to a fall from a two-story (or higher) window on to the pavement. . . . This
analogy of a “shaking” injury to a two-story fall is not justifiable.”).
150
SBSDefense.com Controversies, supra note 147; Goldsmith & Plunkett, supra note
26, at 95-96.
151
Plunkett, supra note 6, at 1.
152
Id. at 2.
153
Id.
154
Id.
155
Id.
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SHAKEN BABY IMPACT SYNDROME
29
lethal previous head injury may be exacerbated by a second, yet trivial,
head injury, which leads to death.
156
A practical application of this
theory would, for example, be a case where a child falls and suffers a
minor subdural hematoma. Before the minor subdural hematoma either
dissipates or is reabsorbed by the body, the child suffers another minor
head injury. This second injury aggravates the preexisting subdural
hematoma causing it to re-bleed, resulting in a fatal secondary injury
(e.g., cerebral edema).
157
The crux of this theory is not whether re-bleeds
occur, but what amount of force is needed to cause the re-bleed,
158
and
whether the subsequent or second impact has to be proximate to the
original subdural hematoma.
159
That is, does the force have to be
extreme, indicating violence or a non-accident, or can it be from
something as simple as a parent and child bumping heads while playing a
game of football?
160
Several experts believe “there is no evidence to
support the concept that re-bleeding of an older subdural hematoma can
result from trivial injury and cause an infant to suddenly collapse and
die.”
161
The emerging re-bleed theory, however, reasons that subsequent
trauma does not have to be proximate to the original subdural
hematoma
162
and that the amount of force required to initiate a re-bleed
can be de minimus.
163
Applying the re-bleed theory to the hypothetical,
if the drop in the tub caused a subdural hematoma, then perhaps the
father’s brief shaking of the child caused the original subdural hematoma
to re-bleed. The question for the court then becomes whether or not the
father’s actions were in any way criminally negligent. For example, did
he shake the child forcefully and violently such that it could be
considered an assault, or did he softly shake the child (e.g., playing or
trying to wake child up, etc.) in such a manner that no reasonable person
would have expected an injury to occur.
156
United States v. Buber, No. 20000777, at 9 (Army Ct. Crim. App. Jan. 12, 2005)
(unpublished); SBSDefense.com Controversies, supra note 147.
157
See “edema” infra app. A.
158
SBSDefense.com Controversies, supra note 147.
159
Goldsmith & Plunkett, supra note 26, at 97.
160
Buber, No. 20000777, at 9 (noting that “testimony from the government experts
failed to exclude the reasonable possibility that Ja’lon might have accidentally suffered a
previous head injury during a fall down the stairs, which was exacerbated by a second
injury, caused while playing football.”). Id.
161
Robert M. Reece & Robert H. Kirschner, Shaken Baby Syndrome/Shaken Impact
Syndrome, http://dontshake.com/Audience.aspx?categoryID=9&Page
Name=SBS_SIS.htm (last visited Sept. 14, 2006).
162
Goldsmith & Plunkett, supra note 26, at 97.
163
SBSDefense Controversies, supra note 147.
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As has been demonstrated through the hypothetical, there are no
clear-cut answers in cases where SBS/SIS is alleged. As such,
understanding these controversies may help counsel in shaping the
theory of their case, in challenging an opposing expert during a Daubert
hearing, or both.
XII. Conclusion
If the issues are much less
certain than we have been
taught to believe, then to admit uncertainty
sometimes
would be appropriate for experts. Doing so may make
prosecution more difficult, but a natural desire to
protect
children should not lead anyone to proffer
opinions unsupported
by good quality science. We need
to reconsider the diagnostic
criteria, if not the existence,
of shaken baby syndrome.
164
Should one automatically conclude that a child who shows
symptoms of traumatic brain injury without any form of external cranial
trauma is suffering from SBS? Does the average adult have sufficient
strength to shake a child to the point of causing traumatic brain injury?
Or, are there other sound medical explanations for a child who has
traumatic brain injury but no corresponding external cranial trauma? The
answers to these questions are nebulous and, as demonstrated, have
divided the best minds of the medical community. As such, it is
incumbent upon military practitioners faced with a potential SBS/SIS
case to fully and independently educate themselves on the controversies
surrounding SBS so as to ensure the administration of justice is based on
fact and vetted scientific theories, instead of conjecture merely masked
as such. As succinctly noted by Dr. Uscinski, “[W]hile the desire to
protect children is laudable, it must be balanced against the effects of
seriously harming those who are accused of child abuse solely on the
basis of what is, at best, unsettled science.”
165
164
Geddes & Plunkett, supra note 8, at 720.
165
Uscinski, supra note 22, at 77.
45
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SHAKEN BABY IMPACT SYNDROME
31
Appendix A
When familiarizing themselves with the medical terms defined
below, practitioners should pay particular attention to the specific
causation element or triggering mechanism of each type of injury.
Coup Contusion: “Coup contusions occur beneath a site of cranial
impact. Skull imbending from cranial impact may cause direct injury to
the brain and its surface. Brain contusions may occur at multiple sites
remote from the point of cranial impact under some circumstances.”
166
Contra-coup Contusion: “Contra Coup injuries occur when there is an
injury to the opposite side of the head from the impact site. Contra coup
injuries are generally thought to be an indicator of a moving head hitting
a stationary, unyielding force or object.”
167
A contra-coup injury is a
contusion directly opposite the impact.
Diffuse Axonal Injury:
[S]evere primary diffuse brain injury may manifest
clinically as immediate loss of consciousness with
prolonged traumatic coma without mass lesions. This
clinical presentation is frequently associated with
widespread structural damage to the axons – a condition
know as diffuse axonal injury. Diffuse axonal injury is
the result of deep acceleration strain within the brain
parenchyma. Histological evidence of diffuse axonal
injury includes axonal swelling and axonal retraction
balls.
168
[Diffuse axonal injury] is a type of diffuse brain injury,
meaning that damage occurs over a more widespread
area than in focal brain injury. Diffuse axonal injury,
which refers to extensive lesions in white matter tracts,
is one of the major causes of unconsciousness and
persistent vegetative state after head trauma
(Wasserman, 2004). The major cause of damage in
diffuse axonal injury is the tearing of axons, the neural
166
Hymel, supra note 46, at 119.
167
SBSDefense.com, supra note 57.
168
Hymel, supra note 46, at 120.
70
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processes that allow one neuron to communicate with
another.
169
Edema (cerebral): “[G]eneralized swelling caused by changes in
vascular permeability and autoregulation.”
170
Cerebral edema is an increase in brain volume caused by
an absolute increase in cerebral tissue water content.
Diffuse cerebral edema may develop soon after head
injury. Cerebral herniation may occur when increasing
cranial volume and ICP overwhelms the natural
compensatory capacities of the CNS. Increased ICP
may be the result of posttraumatic brain swelling, edema
formation.
171
In layman’s terms, swelling of the brain can cause death by starving the
brain of oxygen or blood, or by herniating the brain by pushing it through
the brain stem.
172
(see “Herniation” for a description of the relationship
between edema and herniation).
Epidural Hematoma: “Epidural hematoma is a traumatic accumulation
of blood between the inner table of the skull and the stripped-off dural
membrane. The inciting event often is a focused blow to the head, such
as that produced by a hammer or baseball bat.”
173
Extravasted Blood: “Bruising and/or free blood within the epidural
layer (scalp).”
174
Not as serious as an epidural hemorrhage; usually
attributable to some form of impact (can occur from minor trauma).
175
169
Wikipedia, The Free Encyclopedia, Diffuse Axonal Injury,
http://en.wikipedia.org/wiki/Diffuse_axonal_injury (last visited Sept. 14, 2006).
170
Mary E. Case et al., Position Paper on Fatal Abusive Head Injuries in Infants and
Young Children, 22
A
M
.
J.
F
ORENSIC
M
ED
.
&
P
ATHOLOGY
112, 118 (2001).
171
Library of the National Medical Society, Brain Edema and Cerebra Edema,
http://www.medical-library.org/journals2a/brain_edema.htm (Oct. 2, 2005).
172
Plunkett Telephone Interview, supra note 55.
173
Daniel Price & Sharon Wilson, Epidural Hemorrhages, E
MEDICINE
,
http://www.emedicine.com/EMERG/topic167.htm (Jan 13, 2004).
174
Brain Injury Association of America, Types of Brain Injury,
http://www.biausa.org/Pages/types_of_brain_injury.html (last visited Sept. 14, 2006)
[hereinafter BIAA].
175
Plunkett Telephone Interview, supra note 55.
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