Jennifer Banner Wolfe v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00188-CR
JENNIFER BANNER WOLFE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1200447D
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OPINION 1
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Appellant Jennifer Banner Wolfe pled not guilty to knowingly causing
serious bodily injury to a child, a first-degree felony. 2 Following a bench trial, the
trial court found her guilty and sentenced her to five years’ confinement. In one
1
This appeal was originally submitted without oral argument on
September 30, 2013. The court, on its own motion on June 10, 2014, ordered
the appeal reset without oral argument on July 1, 2014 and assigned it to the
current panel. The undersigned was assigned authorship on December 3, 2014.
2
See Tex. Penal Code Ann. § 22.04(a)(1), (e) (West Supp. 2014).
point, appellant asserts that the trial court abused its discretion by admitting
allegedly unreliable medical expert opinion testimony on abusive head trauma.
We affirm.
Background Facts
Appellant maintained an in-home day care and was a state-certified
childcare provider. As part of her certification, she received training about the
risk of abusive head trauma in small children.
On April 1, 2010, near 7:15 a.m., Mrs. Smith, a teacher, dropped off seven-
month-old Jack Smith 3 at appellant’s home. Although Jack was fighting a cold,
had struggled with acid reflux, and had been fussy the night before, that morning,
he had been behaving normally.
At 10:22 a.m., an ambulance was dispatched to appellant’s home. When
paramedics arrived, Jack’s skin was blue-hued; he was lying on his back and
was receiving CPR by fire department personnel who had already arrived. He
did not have a pulse or spontaneous respirations, meaning that he was not
getting oxygen and was clinically dead. Appellant said that after eating, Jack had
screamed “real loud and just fell back unconscious.” Jack had not yet been able
to sit up by himself at that time.
3
To protect the anonymity of the child at issue, we will use aliases to refer
to him and his mother. See Daggett v. State, 187 S.W.3d 444, 446 n.3 (Tex.
Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim.
App. [Panel Op.] 1982).
2
In the ambulance, following the administration of more CPR and advanced
life-support procedures, Jack began to have spontaneous respirations along with
a weak pulse. He also vomited, but he did not have visible external signs of
injury. Upon reaching Cook Children’s Hospital, he was awake and crying.
At approximately 10:40 a.m., Mrs. Smith received a call telling her to go to
the hospital because Jack was being rushed there. Appellant told Mrs. Smith on
the phone that after she had sat Jack down, he had fallen backward.
Mrs. Smith and her husband arrived at the hospital, saw that Jack was
pale and still, and learned that he needed immediate surgery to stop bleeding in
his brain. During the surgery, a Fort Worth police officer spoke with Jack’s
parents. Later that day and night, the same officer and personnel from the Texas
Department of Human Services interviewed appellant, and she again said that
Jack had simply fallen on his head on a foam-padded floor and had immediately
gone limp. Eventually, she wrote a statement stating the same but conceding
that she had “possibly” sat Jack down hard.
Jack suffered multiple injuries, including a subdural hematoma and retinal
hemorrhaging. 4 He suffered no fractures or other external physical injuries. He
remained at the hospital for nine days after his surgery.
4
A subdural hematoma occurs when there is bleeding beneath the dura.
The dura is the thick, leathery-like covering of the brain. Hemorrhaging occurs
when blood leaks out of an artery or a vein.
3
Dr. Richard Roberts, a pediatric neurosurgeon, treated Jack. A
preoperative CT scan of Jack’s brain showed the presence of two older stages of
blood, as well as new bleeding. Dr. Roberts performed an emergency
craniotomy to evacuate the hematoma and to decrease the pressure in Jack’s
brain. Dr. Roberts determined that a bridging vein connected to the sagittal sinus
had avulsed, or had been pulled off of the sagittal sinus, causing the brisk
bleeding in Jack’s brain.
Dr. Ann Ranelle, a pediatric ophthalmologist, assessed Jack’s eye injuries
after his craniotomy. Jack’s right eye was uninjured, but his left eye suffered
multilayered retinal hemorrhages that were consistent with nonaccidental trauma
and retinoschisis, which occurs when the retina splits apart. That eye also
suffered chemosis, which is swelling of a covering over the white part of the eye.
The vitreous 5 base had also separated from the retina in Jack’s left eye.
Dr. Jayme Coffman, a child-abuse pediatrician, consulted on Jack’s case while
he was in the hospital and determined that his injuries could not have been
caused by falling from a seated position, as appellant had claimed.
A grand jury indicted appellant with knowingly causing serious bodily
injury 6 to Jack by shaking him or by striking him against a hard surface. The
indictment included paragraphs alleging that appellant had used her hands as a
5
The vitreous is a jelly-like substance that gives the eye structure.
6
Parts of Jack’s brain are dead, but as of the time of trial, it was too early to
determine the long-term effects of his injuries.
4
deadly weapon during the crime. Appellant retained counsel; filed several
pretrial motions, including requests for a hearing on the reliability of scientific
evidence to be presented by the State; waived her right to a jury trial; and pled
not guilty. Dr. Roberts, Dr. Ranelle, and Dr. Coffman testified for the State at
trial, each opining that Jack’s injuries were the result of nonaccidental, abusive
head trauma. 7 Appellant’s expert disputed the State’s experts’ conclusions and
proposed that Jack’s injuries could have been caused by an unresolved, birth-
related subdural hematoma. The trial court convicted appellant and sentenced
her to five years’ confinement. She brought this appeal.
Reliability of Expert Testimony
Rule of evidence 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.”
Tex. R. Evid. 702. Rule of evidence 705(c) governs the reliability of expert
testimony and states that “[i]f the court determines that the underlying facts or
data do not provide a sufficient basis for the expert’s opinion under Rule 702 or
7
At the beginning of the trial, appellant objected to this expert testimony,
and the trial court carried the objection through the trial. Specifically, she
challenged “the underlying principle” of shaken baby syndrome or abusive head
trauma as unreliable in the scientific community and not reliable in this case.
After the State rested, the parties presented arguments on the reliability of the
testimony provided by the State’s experts, and the trial court overruled
appellant’s objection.
5
703, the opinion is inadmissible.” Tex. R. Evid. 705(c); see Bekendam v. State,
441 S.W.3d 295, 303 (Tex. Crim. App. 2014). Reliability depends upon whether
the evidence has roots in sound scientific methodology. Vela v. State, 209
S.W.3d 128, 133 (Tex. Crim. App. 2006); see Bekendam, 441 S.W.3d at 303;
Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (“[T]he proponent
must prove two prongs: (1) the testimony is based on a reliable scientific
foundation, and (2) it is relevant to the issues in the case.”).
We review a trial court’s ruling admitting expert scientific testimony for an
abuse of discretion. Tillman, 354 S.W.3d at 435; Mata v. State, 46 S.W.3d 902,
908 (Tex. Crim. App. 2001). Thus, we reverse the ruling only when the trial
court’s decision was outside the zone of reasonable disagreement. Tillman, 354
S.W.3d at 435.
The proponent of scientific evidence is not typically called upon to
establish its empirical reliability as a predicate to admission until the opponent of
that evidence raises an objection under rule 702. State v. Esparza, 413 S.W.3d
81, 86 (Tex. Crim. App. 2013); see Tex. R. Evid. 702. Once the party opposing
the evidence asserts a rule 702 objection, the proponent bears the burden of
demonstrating by clear and convincing evidence that the evidence is reliable.
Esparza, 413 S.W.3d at 86; Mata, 46 S.W.3d at 908.
6
For “hard” scientific evidence, 8 the proponent satisfies this burden by
showing the validity of the underlying scientific theory, the validity of the
technique applying the theory, and the proper application of the technique on the
occasion in question. Mata, 46 S.W.3d at 908; Kelly v. State, 824 S.W.2d 568,
573 (Tex. Crim. App. 1992); see Tillman, 354 S.W.3d at 435 (“The focus of the
reliability analysis is to determine whether the evidence has its basis in sound
scientific methodology such that testimony about ‘junk science’ is weeded out.”).
Factors that could affect a trial court’s determination of reliability include
(1) the extent to which the underlying scientific theory and technique
are accepted as valid by the relevant scientific community, if such a
community can be ascertained; (2) the qualifications of the expert(s)
testifying; (3) the existence of literature supporting or rejecting the
underlying scientific theory and technique; (4) the potential rate of
error of the technique; (5) the availability of other experts to test and
evaluate the technique; (6) the clarity with which the underlying
scientific theory and technique can be explained to the court; and
(7) the experience and skill of the person(s) who applied the
technique on the occasion in question.
Kelly, 824 S.W.2d at 573. Even if the traditional Kelly reliability factors do not
perfectly apply to particular testimony, the proponent is not excused from proving
its reliability. Vela, 209 S.W.3d at 134.
8
“The ‘hard’ sciences, areas in which precise measurement, calculation,
and prediction are generally possible, include mathematics, physical science,
earth science, and life science.” Weatherred v. State, 15 S.W.3d 540, 542 n.5
(Tex. Crim. App. 2000).
7
Dr. Roberts’s testimony
Dr. Roberts 9 testified that Jack suffered a subdural hematoma with a
significant accumulation of blood; he presented with “compression of the brain
that would be worrisome for surviving.” His brain had shifted from the left side
toward the right side of his head, which was an indication of increased pressure.
Unless treated, the injury would have compressed Jack’s brain stem to the point
of causing him to become brain dead, and it also could have permanently
paralyzed the right side of his body. Dr. Roberts performed an emergency
craniotomy and evacuation of the subdural hematoma to decrease the pressure
in Jack’s brain and to allow it to return to its normal state.
During the craniotomy, Dr. Roberts determined that the bridging vein
connected to the sagittal sinus 10 had avulsed. Although he did not locate a torn
or avulsed vein, he determined that the vein had avulsed, through some sort of
force applied to Jack’s head, because the bleeding stopped when he placed a
hemostatic agent against the sagittal sinus. Dr. Roberts explained that Jack’s
brain had to deform far enough to stretch the bridging vein and tear it from the
sagittal sinus. Dr. Roberts explained that the amount of force necessary to
9
Dr. Roberts attended medical school at Louisiana State University. He
completed a six-year residency focused on neurosurgery, and during that time,
he assessed children who had brain trauma. He had been working at Cook
Children’s Hospital as a pediatric neurosurgeon for more than four years at the
time of the trial.
10
The sagittal sinus is a triangular draining vein in the top of the brain.
8
avulse a bridging vein must arise from a high-energy impact such as a car
accident or a fall from a second-story window; he opined that the bridging vein
could not have avulsed merely from a fall backwards onto a padded surface from
a sitting position.
Dr. Roberts testified that retinal hemorrhage, tearing of the retina
(retinoschisis), subdural hematoma, and an avulsed bridging vein “are all
classically associated with high-energy input to the head,” not including toppling
backwards from a seated position. He opined that Jack’s injury was
nonaccidental trauma based on the finding of retinal hemorrhages (including
retinal tearing), brain swelling, and the subdural hematoma, coupled with the fact
that Jack’s injuries were inconsistent with appellant’s explanation of what had
happened. 11 Dr. Roberts testified that his opinion was based on principles that
the medical community generally accepts.
Dr. Roberts explained that Jack’s injuries could have been caused by
striking Jack with or against a hard surface, including a padded play floor like the
one in appellant’s house, or by shaking Jack and then exerting upon him some
sort of impact, but not by shaking alone. According to Dr. Roberts, the
11
Dr. Roberts testified,
[W]e are taught . . . that a patient with a subdural hematoma,
including mixed-density subdural hematoma, which can indicate
previous trauma, retinal hemorrhaging, and brain swelling are the
. . . things that we need to call a . . . non-accidental trauma when . . .
the described action does not meet the injuries.
9
mechanism had to include acceleration and deceleration in order to cause the
bridging vein to avulse.
Dr. Roberts proposed that with the exception of the old blood (the chronic
subdural hematoma), the remainder of Jack’s injuries (the brain swelling, the
acute subdural hematoma, the retinal hemorrhaging, and the retinal tearing) all
occurred at once because of the impact or the shaking with impact. He also
suggested that the amount of force necessary to cause Jack’s injuries would
have been to a degree that a person would know that she was doing a
dangerous act. Jack’s lack of external injuries, bruises, fractures, spinal or neck
injuries, or grip marks did not change Dr. Roberts’s opinion that force had to be
applied to avulse the bridging vein.
On cross-examination, Dr. Roberts explained that he had learned that the
constellation of subdural hematoma, retinal hemorrhaging, and brain swelling is,
in absence of an explanation for the injuries, the result of a nonaccidental
trauma. He was trained that shaking impact, rather than shaking alone, typically
causes that collection of symptoms. He admitted that Jack did not have visible
signs of impact-caused injury to his head, but he testified that the lack of such
signs did not change his opinion that force was required to avulse the bridging
vein.
Appellant asked Dr. Roberts whether he was familiar with certain studies
about shaken baby syndrome, and Dr. Roberts said that he was not familiar with
10
those studies. Dr. Roberts also testified that he had not written any articles in the
field of child abuse.
Dr. Ranelle’s testimony
Dr. Ranelle 12 found no hemorrhages in Jack’s right eye but found
hemorrhaging in all retinal layers of his left eye. 13 Dr. Ranelle testified that Jack’s
left eye also suffered retinoschisis, which occurs when the retina splits apart and
causes a pocket of blood, and that the vitreous base had separated from the
retina in the left eye.
Dr. Ranelle testified that the conjunction of Jack’s eye injuries with his
brain injuries was consistent with violent, high-energy, intentional trauma, even
considering that there were no visible external injuries. She explained in part that
nonaccidental trauma caused by an accelerating and decelerating force may be
diagnosed from a “baby with a subdural hematoma and multilayered retinal
hemorrhages that are confluent [and] that go to the ora.”
Based on her experience in treating other, less-severe eye injuries,
Dr. Ranelle stated that it was not possible for appellant’s version of the facts, the
medical treatment that Jack had received, or Jack’s birth to have caused his eye
12
Dr. Ranelle attended medical school at what is now called the Kansas
City University of Biomedical Sciences. After completing an osteopathic
ophthalmology residency and a pediatric ophthalmology fellowship, she started
practicing pediatric ophthalmology in Fort Worth in 2005 and had treated
“thousands” of patients, mostly children, by the time of her testimony.
13
Dr. Ranelle could not explain why violent force would cause
hemorrhaging in only one eye’s retinal layers.
11
injuries. Dr. Ranelle opined that Jack’s injuries were consistent with an
acceleration/deceleration type of force. She explained that she had treated
children who had fallen out of second story windows or out of shopping carts
onto concrete floors without suffering the serious retinal injuries that Jack had
experienced.
Dr. Ranelle explained that retinoschisis can be congenital or result from
nonaccidental trauma, but when it occurs in conjunction with the separation of
the vitreous base, it is most often from nonaccidental trauma. Dr. Ranelle
testified that the retinoschisis and the separation of the vitreous base could not
have been secondarily caused by the swelling in Jack’s brain.
Dr. Ranelle based her opinions on her training and her experience with
healthy children who present this collection of symptoms, which is “very
consistent with a violent shaking, traumatic abusive force.” She explained that
the training she had received during her fellowship taught her to be strongly
suspicious of nonaccidental trauma when a child presents with retinal
hemorrhaging, subdural hematoma, and no explanation for these injuries:
A. Well, there’s usually -- in Pediatric Ophthalmology there
will still be a chapter on assessing nonaccidental trauma.
Q. And that conclusion is reached in that chapter regarding
this constellation that you’re testifying about.
A. . . . [W]hat conclusion?
Q. Of nonaccidental trauma.
12
A. Right. . . . [H]ow do you be suspicious of it? You know,
that’s the goal. They give you guidelines which you follow. And kind
of a procedure, dilate the eye using indirect ophthalmoscope, those
types of things. They give you a procedure to follow and then
basically outline a situation in which, you know, you should be
strongly suspicious of nonaccidental trauma.
....
Q. . . . It doesn’t out -- it doesn’t [rule out] any other type of
cause.
A. Well, yes. It tells you how to rule out other causes, you
know.
....
Q. So is it your belief based on those factors in a healthy
child, that’s [an] axiomatic or automatic conclusion?
A. Yes.
Q. Always.
A. You know, when you say “always,” you’re talking about an
infinite number of times. But, yeah, I mean, I would say 99 percent
of the time if in these exact same circumstances, that’s what you
would look at as child abuse, yeah.
Dr. Ranelle testified as to the theories that cause retinal hemorrhages:
“one is just the acceleration and deceleration force basically causes the blood
vessels to leak”; another is that the vitreous base tears away from the retina and
pulls on the blood vessels, causing hemorrhaging; and a third is when a
subarachnoid hemorrhage tracks through the optic nerve up into the retina. She
opined that Jack’s injuries were caused by an acceleration and deceleration
13
force. 14 When asked about the lack of external injuries to Jack, Dr. Ranelle
testified, “I don’t know what happened to [Jack]. Nobody came up with an
explanation of what happened to [Jack]. . . . All I can tell you is that with this
constellation of symptoms, you know, other children that I’ve seen, it is very
consistent with a violent shaking, traumatic abusive force.”
Dr. Ranelle stated on cross-examination that she was not familiar with
literature questioning the use of retinal hemorrhages in a diagnosis of child
abuse. She testified that she was aware that “some doctors” question the validity
of retinal hemorrhages in nonaccidental trauma, but she disagreed that the
medical community, specifically pediatric ophthalmologists, are in a “state of
unrest” concerning a diagnosis of child abuse based on retinal hemorrhages
without physical injuries.
Dr. Coffman’s testimony
Dr. Coffman 15 testified that she is the medical director of the Child
Advocacy, Resource, and Evaluation (CARE) Team at Cook Children’s Hospital.
She consulted on Jack’s case while he was in the hospital to opine whether his
14
Regarding the second theory, Dr. Ranelle testified that because the
vitreous base is “very highly attached” in children, that theory is not likely.
Regarding the third theory, Dr. Ranelle testified that Jack had hemorrhages
coming off the optic nerve but no significant swelling.
15
Dr. Coffman attended medical school at the University of Texas Health
Science Center in San Antonio. She completed a pediatric residency, opened a
pediatric practice, and eventually began working at Cook Children’s Hospital.
She is board certified in general pediatrics and child-abuse pediatrics.
14
injuries were consistent with appellant’s story. After examining Jack in the
hospital and reviewing his family and medical histories, Dr. Coffman concluded
that Jack’s injuries were the result of a high-energy, violent impact or a
combination of impact and shaking, causing sudden acceleration and
deceleration. She opined that the injuries could not have been caused by falling
onto a foam-padded floor from a seated position. She explained that the avulsed
bridging vein caused the brisk bleeding in Jack’s brain and that “there had to be
some sort of trauma to cause that [avulsed bridging vein].” Dr. Coffman’s review
of Jack’s medical history and her observations of him revealed no alternative
diagnosis for his injuries.
Regarding retinoschisis, Dr. Coffman testified that it is only seen in severe
trauma other than one case of leukemia. Dr. Coffman explained that blood
testing on Jack revealed that he did not have leukemia or any blood disorder; he
also did not have any clotting disorder. She testified that retinoschisis results
from severe trauma, both accidental and nonaccidental.
Dr. Coffman testified that there is no “unrest” in the medical field as to a
diagnosis of abusive head trauma, although there is unrest in the biomechanical
and medical examiner fields. She explained that research of an infant’s brain is
ongoing but that all fields draw similar conclusions that subdural hemorrhages
and extensive retinal hemorrhages are more common in abuse than accident.
Dr. Coffman said that she does not use the term “shaken baby syndrome” or rely
only on “the triad” of injuries. She explained,
15
[T]he triad is a fallacy because we don’t make our diagnosis based
on a triad. The diagnosis is based on the individual patient’s
presentation and . . . findings. So I would no more diagnose abusive
head trauma based on a triad than I would with anything else. . . .
It’s based on that individual patient’s history, presentation, and
findings. I don’t use shaken baby syndrome because that is an
isolated type of injury. . . . I’m not there when the child gets injured.
I don’t know if there’s impact involved . . . .
Dr. Coffman opined that the mechanism used in Jack’s case was violent
and high energy. She said that an impact onto something padded could cause
no bruising or could cause bruising underneath the scalp that would be visible
only during an autopsy. She testified that she has seen numerous cases of head
trauma in which the child had no visible external scalp bruising but the autopsy
revealed bruising underneath the scalp. Dr. Coffman has both had personal
experience and read about cases with children sustaining injuries similar to
Jack’s after having been impacted against a soft surface similar to the padded
mat in appellant’s house. Dr. Coffman agreed with Dr. Roberts that all of Jack’s
head and eye injuries occurred simultaneously. Finally, she testified that studies
and papers upon which appellant’s expert witness relied were flawed and that
appellant’s expert witness failed to properly consider Jack’s retinoschisis in his
report. On cross-examination, Dr. Coffman agreed that there is ongoing
research into the tolerance and failure limits of the intracranial structures and
bridging veins and into what forces cause subdural hematomas and retinal
hemorrhages in infants.
16
Defense witness Dr. Robert Rothfeder’s testimony
Appellant’s expert witness, Dr. Robert Rothfeder, an emergency-room
physician, testified that he has researched abusive head trauma for fifteen years.
He stated that the medical community disagrees about the principles for
diagnosing abusive head trauma and that this disagreement is “far and away the
area of greatest dispute in any medical topic [he has] encountered.”
Dr. Rothfeder explained that abusive head trauma was once called shaken
baby syndrome and that the theory originally was that the triad of subdural
hematoma, retinal hemorrhages, and brain swelling (cerebral edema) could be
caused by shaking a baby, which would not produce an external injury or impact
point. After studies cast doubt on whether shaking alone could injure the brain of
a healthy child, the principle evolved into shaking with impact and, ultimately, into
what is now called abusive head trauma. Dr. Rothfeder said that the principle is
still based on the same triad. He testified that professionals within the medical
community disagree about the validity of the principle; according to
Dr. Rothfeder, the principle is accepted by the majority of pediatricians and “the
minority of anyone else who is active in the field.”
He also testified that a main problem with diagnosing abusive head trauma
is that a child who has no external signs of injury could not likely have been
impacted in a significant enough way to cause the triad of injuries. He explained,
“The big issue for me in this case is the lack of any . . . superficial trauma to the
17
scalp, to the head, . . . to anything in a case where it’s alleged that the subdural
hematoma was caused by impact.”
Regarding Jack’s case, Dr. Rothfeder testified that the probability that the
bridging vein could have avulsed by impact without any external signs of impact
“is somewhere between zero likelihood and extremely unlikely.” Contrary to
Dr. Roberts’s and Dr. Coffman’s testimony, Dr. Rothfeder testified that some of
Jack’s injuries could have occurred as a result of others. He opined that the
swelling of Jack’s brain was most likely caused by the lack of oxygen to the brain
when Jack went into cardiac arrest and that the retinal hemorrhaging could have
been secondarily caused by the swelling of Jack’s brain. He also said that the
retinoschisis was a progression of the retinal hemorrhages and explained that
hemorrhaging in the retina can cause a splitting of the layers sufficient to tear the
retina. He opined generally that Jack’s injuries may not have been acute and
postulated specifically that Jack had suffered from a hemorrhagic stroke with a
cause that was unknown but perhaps related to earlier chronic subdural bleeding.
In his written report admitted as Defense Exhibit 12, Dr. Rothfeder stated that an
alternative explanation for Jack’s injuries was that he had an asymptomatic birth-
related subdural hematoma that did not resolve, continued to ooze and bleed,
perhaps causing intermittent fussiness and other nonspecific symptoms, and
finally broke loose spontaneously with rapid bleeding on April 1, 2010.
Dr. Rothfeder testified that 46% of babies suffer subdural hematomas during
birth.
18
Dr. Rothfeder also testified that his opinions in this case were based in part
on an article by Dr. Steven Gabaeff entitled, “Challenging the Pathophysicologic
Connection between Subdural Hematoma, Retinal Hemorrhage and Shaken
Baby Syndrome.” That article was admitted as Defense Exhibit 13. The article
states that bridging veins can be torn because of severe head trauma or extreme
cerebrocranial disproportion, which is extra space around the brain. According to
the article, cerebrocranial disproportion can occur “in infants with previous birth-
related [subdural hematoma]” and “can stretch [bridging veins] to their tensile
limit with even minor movement.” Thus, according to Dr. Gabaeff, tearing of
bridging veins “is an unlikely cause of [subdural hematoma] in a previously
healthy infant, but may play some role in the rebleed of an infant with severe
[cerebrocranial disproportion] from previous [subdural hematoma or] chronic
subdural hematoma.”
On cross-examination, Dr. Rothfeder agreed that he has spent the majority
of his career as an emergency-room physician, that he is not board certified in
pediatrics, that he has not conducted pediatric neurosurgery, that the minority of
his patients are children, that he stopped working full time as an emergency room
physician in the mid-1990s, that he had not published articles or conducted
research regarding issues related to child abuse, that he received about $8,000
plus expenses for his engagement as an expert in this case, and that most
recently he has been primarily working with a personal injury law firm treating
motor-vehicle accident patients. In the previous year, he testified as a consultant
19
for the defense in approximately twelve to fifteen child abuse cases. He also
admitted that studies upon which he relied have been criticized.
Reliability of the State’s experts’ testimony
On appeal, appellant challenges only the reliability of the State’s medical
expert testimony regarding a diagnosis of abusive head trauma—in general—on
the basis of the “triad” of subdural hematoma, retinal hemorrhaging, and brain
swelling, without evidence of external injuries. In other words, she argues only
that the general theory behind diagnosing abusive head trauma is flawed, relying
on debate and disagreement within the scientific community about the general
theory. Indeed, she summarizes her argument as follows:
The trial court abused its discretion by allowing medical expert
testimony on shaken baby syndrome (or its current vernacular,
“abusive head trauma”) as support for its findings. The State
presented testimony that the child suffered a non-accidental,
intentional . . . head injury; yet, the child displayed no external,
physical signs of trauma. There [is] a vigorous debate supported
from multiple sources and studies against the opinion that subdural
hemorrhage and retinal hemorrhage in an infant is indicative of
Shaken Baby Syndrome (SBS).
The fact of the matter is that there is growing unrest in the
medical community regarding the diagnosis of abusive head trauma
on the basis of subdural hematoma, retinal hemorrhaging, and brain
swelling, and the trial court abused its discretion to admit and
consider the opinions relying on these markers. [Emphasis added.]
Appellant does not, at any point within her brief, alternatively argue that
even if a diagnosis of abusive head trauma could be reliable with respect to a
typical patient based on the symptoms that Jack presented with, it was not
reliable as to Jack based on his prior medical history, including the prior bleeding
20
in his brain. 16 All cites to authority within the brief focus only on attacking the
theory of diagnosing abusive head trauma generally. Only three sentences
within the eleven-page argument portion of the brief even mention Jack’s old
brain bleeds; these sentences are unconnected with legal citations and do not
purport to challenge the reliability of the experts’ testimony based on the old
bleeds. Thus, we will examine only the general reliability of testimony relating to
diagnosing abusive head trauma. 17
Applying the Kelly factors, we cannot conclude that the trial court abused
its discretion by overruling appellant’s objection and by admitting the evidence
provided by the State’s experts. 824 S.W.2d at 573. The experts, who
demonstrated their unchallenged qualifications to testify about pediatrics
generally and the injuries Jack suffered specifically, see id., clearly articulated the
16
We recognize that much of appellant’s focus in the trial court, particularly
during her cross-examination of the State’s experts, was on the prior bleeding.
But on appeal, appellant characterizes her trial-court complaint as being that the
court “should [have] disregard[ed] the State experts’ opinions due to the general
disagreement and retraction in the medical community that a certain constellation
of symptoms was exclusively child abuse.” [Emphasis added.] Similarly, on
appeal, appellant highlights the “modern unease in the medical community with
the reliability of shaken baby or shaken with impact syndrome.”
17
“We do not, and cannot, create arguments for parties—we are neither the
appellant’s nor the appellee’s advocate.” Meyer v. State, 310 S.W.3d 24, 26
(Tex. App.—Texarkana 2010, no pet.); see also Tex. R. App. P. 38.1(i) (requiring
a brief to contain a clear argument for the contentions made); Lesher v.
Doescher, No. 02-12-00360-CV, 2013 WL 5593608, at *3 (Tex. App.—Fort
Worth Oct. 10, 2013, pet. denied) (mem. op.) (“It is not the proper role of this
court to create or develop arguments for an appellant; we are restricted to
addressing the arguments actually raised, not those that might have been
raised.”).
21
conditions under which they diagnosed abusive head trauma and confirmed that
the pediatric medical community generally accepts the diagnosis of abusive head
trauma from the types of injuries that Jack suffered. See id. Specifically,
Dr. Roberts confirmed that his diagnosis was based on principles generally
accepted with the medical community. See id. Dr. Ranelle testified that the
majority of her peers—pediatric ophthalmologists—would have reached the
same conclusions that she did and that she did not “personally know” any
doctors who question the link of retinal hemorrhages to nonaccidental trauma.
And Dr. Coffman testified that there is no unrest about the diagnosis of abusive
head trauma within the fields of pediatric ophthalmology, pediatric radiology, or
pediatric neurosurgery, although she recognized unrest with medical examiners
and “in the biomechanical world that doesn’t deal with real people.”
Next, the State provided the court with literature supporting the diagnosis
of abusive head trauma with the types of injuries that are present here. See id.
State’s Exhibit 42 is a paper by Dr. Sandeep Narang. 18 The paper addresses
18
See Sandeep Narang, M.D., J.D., A Daubert Analysis of Abusive Head
Trauma/Shaken Baby Syndrome, 11 Hous. J. Health L. & Pol’y 505 (2011).
Although the paper was not submitted into evidence, the trial court stated on the
record that both sides had agreed that the court should read the paper, and it
indicated that it had reviewed and “marked . . . up” the paper. On appeal,
appellant cites other literature related to the validity of a diagnosis for abusive
head trauma.
We do not intend to cast a vote on vigorous, longstanding disagreements
within the medical community on the plethora of issues concerning the diagnosis
of abusive head trauma. We hold only that under the evidence presented here,
22
recent legal literature, public media, and court decisions calling into question the
validity of abusive head trauma as a medical diagnosis. It details the medical
literature on abusive head trauma, 19 research- and evidence-based studies on
the relation of subdural hematoma and retinal hemorrhaging in abusive head
trauma, and case law confirming the validity of abusive head trauma. The paper
also includes a list of possible causes of subdural hemorrhages and of retinal
hemorrhages in children and details several studies demonstrating the
“significant statistical association” of both subdural hematomas and retinal
hemorrhages with abusive head trauma. Finally, the paper lists fifteen
international and domestic medical organizations that have publicly
acknowledged the validity of diagnosing abusive head trauma. Dr. Coffman
testified that she had reviewed Dr. Narang’s paper and that the paper refuted
conclusions made by Dr. Rothfeder.
the trial court did not abuse its discretion by concluding that the State’s experts’
testimony was reliable and by therefore overruling appellant’s objection to it.
19
The paper states that “peer-reviewed medical literature on the topic of
[abusive head trauma] is voluminous.” The paper also asserts that “there have
been at least 8 systematic reviews, over 15 controlled trials, over 50 comparative
cohort studies or prospective case series, and numerous well-designed,
retrospective case series/reports, comprising thousands of cases, supporting the
diagnosis of AHT.” [Footnotes omitted.] See Kelly, 824 S.W.2d at 573 (stating
that reviewing courts should evaluate, among other factors, “the extent to which
the underlying scientific theory and technique are accepted as valid by the
relevant scientific community” and “the availability of other experts to test and
evaluate the technique”).
23
Furthermore, we note that the trial court’s acceptance of the diagnosis of
abusive head trauma in this case was not novel but is instead in line with the
decisions of other courts, including courts in Texas, that have upheld convictions
based on such testimony. See Thomas v. State, No. 03-07-00646-CR, 2009 WL
1364348, at *4–7 (Tex. App.—Austin May 14, 2009, pet. ref’d) (mem. op., not
designated for publication); see also Day v. State, 2013 OK CR 8, ¶ 7, 303 P.3d
291, 296 (Okla. Crim. App. 2013) (“We have upheld convictions based on
evidence of violent shaking, or explicitly of SBS, since at least 1989.”), cert.
denied, 134 S. Ct. 1303 (2014).
Although evidence exists in the record that some doctors, biomechanical
engineers, and medical examiners question the validity of a diagnosis of child
abuse based on the “triad” of injuries, that disagreement in and of itself does not
make the State’s expert testimony unreliable. See Day, 2013 OK CR 8 at ¶ 8,
303 P.3d at 296 (“Expert testimony is not rendered unreliable by criticism.”); see
also United States v. Barnette, 211 F.3d 803, 816 (4th Cir. 2000) (holding that a
trial court did not err by admitting expert evidence although there was a
“disagreement between professionals” concerning the reliability of the evidence);
New Hampshire Ins. Co. v. Allison, 414 S.W.3d 266, 276 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (“Conflicting theories between experts . . . do not
automatically render one unreliable.”).
Moreover, to the extent that the sources cited by appellant challenge the
reliability of a diagnosis of abusive head trauma based on shaking alone, those
24
sources are inapposite because both Dr. Roberts and Dr. Coffman testified that
Jack’s injuries could not have occurred by shaking alone. See, e.g., Cavazos v.
Smith, 132 S. Ct. 2, 10 (2011) (Ginsburg, J., dissenting) (“Doubt has increased in
the medical community ‘over whether infants can be fatally injured through
shaking alone.’”) (quoting State v. Edmunds, 2008 WI App. 33, ¶ 15, 746 N.W.2d
590, 596 (Wis. Ct. App. 2008, pet. denied)). 20
20
Appellant relies on Cavazos and Edmunds. We note that Cavazos
concerned evidentiary sufficiency, not admissibility. See 132 S. Ct. at 3–4.
Likewise, the decision in Edmunds did not hinge on the admissibility of expert
testimony but instead concerned whether newly discovered evidence required
the granting of a motion for new trial. See 746 N.W.2d at 595–99. In fact, the
Wisconsin court appeared to base its decision on a jury’s entitlement to hear
“competing credible medical opinions in determining whether there is a
reasonable doubt [of] guilt.” See id. at 599 (emphasis added).
Appellant also directs us to two recent habeas corpus cases from the court
of criminal appeals concerning expert testimony presented at trial that was later
viewed as inaccurate based on new scientific evidence. See Ex parte
Henderson, 384 S.W.3d 833, 833–34 (Tex. Crim. App. 2012) (remanding for new
trial because of medical examiner’s changing manner of death from “homicide” to
“undetermined” based on new science showing that infant’s injuries could have
been sustained by accidental, short fall onto concrete); Ex parte Robbins, 360
S.W.3d 446, 471 (Tex. Crim. App. 2011) (Cochran, J., dissenting) (noting
“current legitimate concerns” about the scientific reliability of forensic science in
courtrooms), cert. denied, 132 S. Ct. 2374 (2012). These cases involve
testimony by experts who changed their opinions based on medical advances
that they believed discredited their original testimony. The cases do not squarely
address the admissibility of expert testimony on abusive head trauma, and they
are therefore inapposite.
Finally, the medical articles cited by appellant, while representative of
Dr. Rothfeder’s testimony and the ongoing dispute concerning the diagnosis of
abusive head trauma, do not compel us to hold that the trial court abused its
discretion by admitting the State’s expert testimony in this case.
25
For all of these reasons, applying the Kelly reliability factors, we cannot
conclude that the trial court abused its discretion by admitting the testimony of
the State’s experts; even if the principles supporting the testimony are not
universally accepted in various medical fields, we cannot hold that the State
presented inadmissible “junk science.” See 824 S.W.2d at 573; see also Tillman,
354 S.W.3d at 435. In other words, even acknowledging that reasonable
disagreement exists about the scientific reliability and admissibility of the
testimony at issue, our standard of review forecloses reversal of the trial court’s
implicit ruling that the evidence was clearly and convincingly reliable. See
Tillman, 354 S.W.3d at 435. Thus, we overrule appellant’s sole point.
Conclusion
Having overruled appellant’s sole point, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
WALKER, J., filed a dissenting opinion.
PUBLISH
DELIVERED: February 26, 2015
26