People v. Schuit

Digitally signed by
Illinois Official Reports Reporter of Decisions
Reason: I attest to the
accuracy and integrity
of this document
Appellate Court Date: 2016.12.02
09:48:14 -06'00'
People v. Schuit, 2016 IL App (1st) 150312Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JASON SCHUIT, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-15-0312
Filed September 30, 2016
Rehearing denied November 14, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-5551; the
Review Hon. Colleen Ann Hyland, Judge, presiding.
Judgment Affirmed.
Counsel on Zachary M. Bravos and Kathleen M. DiCola, both of Bravos &
Appeal DiCola, of Wheaton, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Marci Jacobs, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE HOWSE delivered the judgment of the court, with opinion.
Presiding Justice Ellis and Justice Burke concurred in the judgment
and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Cook County convicted defendant, Jason
Schuit, of aggravated battery of a child. The victim was defendant’s newborn son, Dylan (born
October 2, 2009). The trial court denied defendant’s motion for a new trial and sentenced him
to ten years’ imprisonment. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 The State charged defendant with two counts of aggravated battery based on injuries to
defendant’s newborn son Dylan. Specifically, the State charged defendant with aggravated
battery to a child in that defendant shook Dylan resulting in great bodily harm (count I) and
permanent disability (count II). Before trial, defendant moved to bar evidence of “Shaken
Baby Syndrome” and requested a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). The trial court denied defendant’s motion. Following a bench trial the court
convicted and sentenced defendant. On appeal defendant challenges the trial court’s order
denying his motion for a Frye hearing and the sufficiency of the evidence to prove his guilt
beyond a reasonable doubt.
¶4 Dylan was born October 2, 2009. Dr. John McInerney delivered Dylan by cesarean section
(C-section). The medical records from the delivery noted bruises on Dylan’s lip and scalp after
his birth. Dr. McInerney testified that photographs of Dylan show a bruise on Dylan’s lip and a
bruise or birthmark on Dylan’s forehead. Dylan’s mother, defendant’s wife Jeanette, testified
that during the delivery she was being jerked around and was vomiting. Defendant similarly
testified that Dylan’s birth was difficult. However, Dr. McInerney testified Dylan had a
normal, nontraumatic birth by C-section and that Dylan was born healthy.
¶5 On October 14, 2009, Dylan’s pediatrician, Dr. Christopher Calvert, examined Dylan. Dr.
Calvert gave Jeanette medication for a yeast infection in Dylan’s mouth and found Dylan to be
healthy and thriving. Jeanette testified that on October 15 Dylan started crying and could not
be soothed. The following day Jeanette called the pediatrician, who changed Dylan’s formula
and prescribed another medication. On that day Dylan cried most of the time and could not be
consoled. Jeanette called the doctor again, and he saw Dylan on October 17, 2009. Dr. Calvert
testified that on October 17 he talked to Dylan’s parents about reflux and prescribed a
medication to help. Dr. Calvert testified he saw no signs of abuse on Dylan. Jeanette testified
the medication for reflux did not help and Dylan would not stop crying. Jeanette called Dr.
Calvert’s office on October 22 and November 3. Dylan saw an associate of Dr. Calvert on
November 9, 2009, and again on November 18, 2009. The records from those two visits do not
indicate any suspicions of abuse. Jeanette testified Dylan continued to cry and was throwing up
more than a typical baby would in her experience (including as a daycare worker).
¶6 On December 13, 2009, Dylan suffered projectile vomiting. Jeanette called the
pediatrician, and as a result she and defendant took Dylan to the emergency room. Dylan’s
parents told doctors that Dylan’s older brother had a pyloric stenosis. Pyloric stenosis can
cause projectile vomiting. Increased intracranial pressure is another cause of projectile
vomiting. Dylan was admitted for pyloric stenosis surgery. Dylan’s surgery occurred on
December 19, 2009. It was later determined Dylan did not have pyloric stenosis. After surgery,
Dylan had another episode of projectile vomiting, and he also vomited if he was fed more than
one ounce. Dylan had a low fever, and one radiologist believed that an October 16 chest X-ray
-2-
suggested bronchiolitis. The hospital discharged Dylan on December 17, 2009. On the day of
his discharge, Dylan took 1 ounce of fluid without vomiting but vomited with a 1.5-ounce
feeding.
¶7 Jeanette testified that after Dylan was discharged from the hospital, Dylan slept more than
usual and continued to have a fever. On December 19, 2009, Jeanette and Dylan returned to Dr.
Calvert, and she reported that Dylan was in pain. Dr. Calvert testified there was no bruising or
indications of abuse on Dylan’s body. He believed Dylan was completely normal. Later that
afternoon, Jeanette left Dylan with defendant, their other son Tyler, and defendant’s brother
Michael. Defendant and Michael testified Dylan spent the afternoon sleeping, eating, playing,
and in a bouncy chair. Defendant testified they tried to get Dylan to smile but could not.
Jeanette attempted to call home, but no one answered. Then, at approximately 6:50 p.m.
defendant answered and told Jeanette that Dylan was getting sick. Jeanette planned to call the
pediatrician for an appointment. Defendant testified that between 10 and 15 minutes later he
put Dylan in his bouncy chair and put Tyler to bed. When defendant came back from putting
Tyler to bed he found Dylan hunched over. Dylan had thrown up. When defendant picked
Dylan up, Dylan’s head went back. Dylan took a breath, and defendant knew something was
not right. Defendant called 911 and reported that Dylan was not breathing. Defendant was
instructed to perform CPR. When a paramedic arrived and defendant let her in, she saw that
Dylan was blue indicating a lack of oxygen. She immediately took Dylan from the floor and
started performing CPR on her way back to the ambulance. The paramedic testified that when
performing CPR on Dylan, she did not taste, see, or smell vomit, but she did taste “boogers,
snots, and slime.” Dylan’s heartbeat and pulse were restored, and he was eventually transferred
to Hope Children’s Hospital (also referred to as Christ Hospital (Christ)).
¶8 Tests revealed that Dylan had both new and old bleeding all around his brain. Additional
tests at Hope revealed severe “bilateral retinal hemorrhages,” a healing twisting fracture at the
end of his left tibia, and a bruise on his forehead. Someone advised Jeanette that Dylan was the
victim of “Shaken Baby Syndrome” (SBS). Jeanette utilized a computer at the hospital to do
some research, and as a result she requested a magnetic resonance imaging (MRI) test for
Dylan, but it was not performed. At the time of this incident, defendant was on a methadone
maintenance program for a prior heroin addiction. As a result of his injuries, Dylan is
permanently disabled. He is blind and likely deaf, cannot breathe or eat on his own, and will
never walk.
¶9 The State’s Expert Witnesses
¶ 10 The following experts provided testimony for the State:
1. Dr. Richard Kampanatkosol
2. Dr. Nagendra Polavarapu
3. Dr. Jose Ramilo
4. Dr. Alexander Khammar
5. Dr. Mohamed Homsi
6. Dr. Jill Glick
-3-
¶ 11 1. Dr. Richard Kampanatkosol
¶ 12 Dr. Kampanatkosol testified as an expert in pediatrics and neonatology (the care of
critically ill infants). Dr. Kampanatkosol first saw Dylan at Palos Hospital (Palos), where the
ambulance took him, which was 4 or 5 days before Dylan was transferred to Christ Hospital.
He learned that Palos Hospital had performed a CT scan of Dylan’s head that showed an
intracranial bleed. He also learned that Dylan was born full-term via C-section and was feeding
normally. There were no developmental concerns at all. When Dr. Kampanatkosol saw Dylan
at Christ, Dylan was intubated and unresponsive. He observed bruising on Dylan’s forehead
that was “bluish and faint,” which can be indicative of a recent bruise. He also saw “mild
petechiae” on Dylan’s shoulder, which is usually indicative of low platelets. Dr.
Kampanatkosol did not see anything indicative of a skull fracture. Dylan had a tremor in his
left arm, which is usually indicative of a seizure. Dr. Kampanatkosol’s neurological
examination revealed neurological injury and injury to the cranial nerves.
¶ 13 Dylan was admitted to the pediatric intensive care unit, and tests were ordered. Tests for
white blood cell count, hemoglobin, and platelets were “all within normal limits.” Dr.
Kampanatkosol testified that a computed tomography (CT) scan of Dylan’s head showed
bleeding in the brain, specifically “a right frontal parietal bleed and left temporal subarachnoid
hemorrhage.” Dr. Kampanatkosol also testified that X-rays indicated multiple healing rib
fractures.
¶ 14 The State asked Dr. Kampanatkosol if, based on his treatment of Dylan, he diagnosed what
happened to Dylan. Dr. Kampanatkosol responded nonaccidental trauma. He stated he arrived
at that diagnosis “[g]iven the findings of the intracranial bleeds, the retinal hemorrhages seen
by the ophthalmologist and the multiple rib fractures, those combined.”
¶ 15 On cross-examination, Dr. Kampanatkosol clarified his testimony that the bruising on
Dylan’s forehead was recent, stating “recent” meant “within a few days.” Dr. Kampanatkosol
testified that in his opinion, the bruise did not cause or contribute to Dylan’s condition. He had
no opinion as to how old Dylan’s intracranial bleed was. According to the report of the scan,
there were both old and new bleeds. Dr. Kampanatkosol initially testified a vitamin D level is
not needed to check for rickets because rickets is diagnosed by X-ray. But he later said that to
rule out rickets, a vitamin D level is needed. He agreed that bone can lose a lot of calcium
before there is any suggestion of that on an X-ray; bone can lose up to 30% of its calcium and
still appear normal on an X-ray.
¶ 16 2. Dr. Nagendra Polavarapu
¶ 17 Dr. Nagendra Polavarapu testified as an expert pediatric critical care physician. He worked
with his pediatric intensive care unit (PICU) physician “Dr. Kamp” when he evaluated Dylan.
When Dr. Polavarapu saw Dylan, the infant was “somewhat comatose,” and his brain stem
functions were “inadequate or not there at all.” Dr. Polavarapu observed “a few old bruise
marks, a hemangioma also on the body as well as minimal swelling on the forehead or the scalp
area.” Dr. Polavarapu testified that they “followed up the CAT scan,” “touched base with some
of our subspecialists,” and performed an electroencephalogram (EEG) to assess brain wave
function. An ophthalmology exam and a skeletal survey and blood work were also performed
“to rule out other diseases or types of physiology that could present this way.”
¶ 18 Dr. Polavarapu saw Dylan from the time he was admitted through the morning. A
computerized axial tomography (CAT) scan of Dylan’s head showed “intraparenchymal
-4-
bleeding, and chronic subdurals.” A skeletal survey showed “bilateral healing, anterolateral rib
fractures that were healing.” An eye exam showed extensive bilateral retinal hemorrhages. Dr.
Polavarapu explained that Dylan had both intracranial (within the brain itself) and subdural
bleeds. He was able to obtain a time line of how old those injuries were. Dylan’s intracranial
bleeds were acute, meaning within 2 days of the CAT scan, and there were chronic subdural
bleeds, meaning anywhere from 7 to 14 days before the scan. Dr. Polavarapu testified the EEG
showed minimal brain activity but no seizure activity. Dr. Polavarapu testified that because
they knew Dylan “would not improve or get worse,” they gave his mother an option to enter a
DNR (do not resuscitate)/DNI (do not intubate) order. Dylan’s breathing tube was removed,
and he survived. At the time of Dr. Polavarapu’s testimony, Dylan was in a rehabilitation
center. He still needed feeding through a tube. Dr. Polavarapu later testified Dylan will never
walk and is blind, and Dr. Polavarapu is not sure if Dylan can hear.
¶ 19 Dr. Polavarapu testified he had a diagnosis of what happened to Dylan. He stated: “It’s a
diagnosis of exclusion, meaning that we rule out other pathophysiological diagnoses and it was
nonaccidental or inflicted trauma.” When asked if he formed an opinion as to the mechanism
for this nonaccidental trauma to Dylan, Dr. Polavarapu testified that he did not. He clarified:
“As physicians, what we try to do is we come up with a diagnosis, when it comes to
suspected child abuse and non-accidental trauma, we don’t make any assumptions. It’s
more of an objective finding. We go with the labs and go with the radiological studies,
and if we rule out the other diagnoses that can be suggestive of how the child is
presented, we rule that out, and then that is where the diagnosis comes from.”
Dr. Polavarapu agreed it is “consistent” with SBS but testified that term “is going out of phase
now.”
¶ 20 Dr. Polavarapu was aware of a controversy in the medical community as to whether or not
shaking a child could cause the injuries thought to be indicative of SBS. On
recross-examination, Dr. Polavarapu agreed with the statement that “[o]ne of the reasons [he]
didn’t do any more testing is because the history and presentation [he] had was consistent with
Shaken Baby Syndrome.” The State later elicited testimony that numerous doctors from all of
the different fields in the hospital aided in the diagnosis and they all agreed with it.
¶ 21 On cross-examination, Dr. Polavarapu testified that he practices evidence based medicine.
He stated: “Evidence based medicine is what we call clinical evidence based medicine, that we
follow certain peer reviewed studies, research and guidelines that would direct us in the type of
medicine and care that we provide.” He testified that he has been able to see retinal
hemorrhages in infants using a direct ophthalmoscope, if they are severe enough. Dr.
Polavarapu’s report says that when he examined Dylan, he did not see any bruises on Dylan’s
head, back, or chest. He did not see any grab marks anywhere on Dylan. When asked whether
he had an opinion as to whether Dylan had pyloric stenosis, Dr. Polavarapu testified that one of
the diagnoses that had to be excluded was whether Dylan vomited and aspirated. He testified
the size of Dylan’s pyloric muscle was “at the border of whether he needed to go for surgery or
not.” Dr. Polavarapu agreed with defense counsel that if Dylan exhibited bruising on the head
when he was delivered, that would indicate “some birth trauma to the head.”
¶ 22 Dr. Polavarapu testified increased intracranial pressure can cause vomiting, but he did not
know if it would be projectile vomiting or not. Dr. Polavarapu thought that when testing for
gestational rickets, the mother’s vitamin D level is important. He agreed that there could be
significant bone loss before that bone loss shows up on an X-ray. He did not check to see if
-5-
Dylan had a viral infection. He also agreed that having a normal calcium level, alone, does not
necessarily mean there is not metabolic bone disease. Dr. Polavarapu did not recall Dylan
having bronchiolitis. Bronchiolitis can result in apnea, or a cessation of breathing for 20
seconds.
¶ 23 3. Dr. Jose Ramilo
¶ 24 Dr. Jose Ramilo testified as an expert in radiology and pediatric radiology. As part of his
consultation on Dylan, Dr. Ramilo was in communication with a team of treating physicians
from Christ Hope Children’s Hospital. He reviewed the X-rays and CT scans that were done of
Dylan. Dr. Ramilo reviewed a bone survey, and it was his opinion that there was a fracture at
the end of Dylan’s tibia, which appears like a spur, and the mechanism of the injury that led to
that fracture was “a twisting and a pulling injury of the leg.” The fracture was in Dylan’s left
metaphyseal, located at the end of the tibia in the area of the ankle. Dr. Ramilo testified
Dylan’s fracture was already healed and stated that the bone starts to heal from 7 to 10 days,
and when it is completely healed, it may be two weeks or more in age. This type of injury could
be caused by a traumatic birth, but Dr. Ramilo had never seen one. It would not be usual to see
this type of injury in only one bone if there had been a traumatic birth, and Dr. Ramilo had
never seen one.
¶ 25 Dr. Ramilo also observed mild swelling in Dylan’s left leg that could have been a few days
old. Dr. Ramilo viewed an X-ray and testified that Dylan’s fracture is at the very end of the
tibia in the area of the ankle. He described the fracture as a healed corner fracture of the long
bone. Dr. Ramilo noted injuries to Dylan’s ribs. It was his opinion that there were “multiple
hidden fractures of the ribs” on the left side, whereas on the right side, there were fractures
located at the ends of the ribs “anteriorly” where there is cartilage joining the bone. On the left,
the fractures were on the fourth rib to the ninth rib, on the side of the rib. The fractures on the
right side were at the ends of the ribs on the same level as on the left. Dr. Ramilo estimated the
age of the fractures at two weeks. He has seen rib fractures result from traumatic births one or
two times in 35 years’ experience. You would not be likely to see injury of this type in a
nontraumatic C-section birth.
¶ 26 Dr. Ramilo testified it does not appear Dylan has rickets. In a child with rickets the ribs
could break without any injury. Dr. Ramilo also reviewed Dylan’s CT scan to look for the
presence or absence of intracranial bleeds. Dr. Ramilo testified he saw acute, or new, blood
along the surface of the brain and a small amount in the tissue of the brain close to the surface,
and he saw chronic, or older, subdural fluid underneath the membrane of the inner membrane
of the skull above the surface of the brain. The acute blood could be between a few minutes to
a week old. He testified chronic bleeding is usually about two weeks old. He did not feel it was
necessary to look at an MRI in this case because “it’s practically seen in the CT scanner that
there are two types of fluid along the surface of the brain; hence I don’t think it’s necessary to
do that.” Dr. Ramilo testified that most brain bleeds are secondary to dropping or hitting the
head, but in those cases there would be a fracture. Where there is no fracture, there would be
other mechanisms that might produce the bleeding. He stated that in conjunction with the
findings in the ribs and in the long bone, “it’s the usual way of mechanism that when a child is
shaken with the person holding *** the chest and shaking it, then the brain goes into back and
forth motion and hence you will break the veins along the surface of the brain and the blood
will come out along the surface of the brain.” Dr. Ramilo viewed images of Dylan’s CT scan.
-6-
He identified areas where sutures (which he later testified were the plates that make up the
skull) in the brain were beginning to separate, which indicates increased pressure in the skull
from the older bleeds filling the space in the brain. He testified he saw fresh blood throughout
Dylan’s brain, as well as some old brain bleeds.
¶ 27 The State asked Dr. Ramilo for his opinion as to the mechanism of injury regarding
Dylan’s healed rib fractures. He stated: “Generally rib fractures are secondary to a squeezing
injury of the chest. When you hold the chest sideways or backwards or in front and you force,
you produce a force within the hands, then the ribs will crack.” This “usually” includes the
shaking of a baby backwards and forwards, “or shaken baby.”
¶ 28 On cross-examination, Dr. Ramilo testified he did not actually see a fracture in the leg but
a bone spur. You could have a bone spur without trauma. He agreed the “fracture” was, at
minimum, 3 to 4 weeks old, and it could be as much as 10 weeks old. Someone could have
inadvertently done the twisting that would have caused the fracture, including in childbirth. Dr.
Ramilo could point to no research that says that rickets is bilateral and symmetrical, but he
stated that all of the textbooks say it is bilateral. He testified that you could see a spur on the
distal end of the left tibia in a child with rickets but you would also get a spur on the opposite
side. He testified the rib fractures could be as many as 10 weeks old but that was unlikely. Dr.
Ramilo agreed gestational rickets occurs because the mother’s vitamin D level is low and the
child receives its vitamin D from the mother; and with regard to rickets you also want to know
the vitamin D level of the child and the child’s parathyroid hormone because they work
together to maintain blood calcium, which influences the rate at which calcium is deposited on
a fracture and consequently the rate of healing. Dylan’s rib fractures were “more or less” in
alignment on the same ribs on each side. Dr. Ramilo did not agree “that is exactly what you see
in rickets” because, he testified, “usually in rickets, it involves the ends of the long bones,” and
on the left side of the chest, Dylan’s fractures are in the middle of the bone and not the end.
Dylan’s fractures would be painful during the acute phase, which would last 7 to 10 days or
longer if healing were delayed.
¶ 29 Dr. Ramilo opined Dylan did not have pyloric stenosis because the measurement of the
pylorus was within normal limits. Dr. Ramilo testified that if Dylan did not have pyloric
stenosis then projectile vomiting would not be related to pyloric stenosis. He stated intracranial
bleeding is one of the causes of projectile vomiting. He also stated that separation of the
sutures in the skull is seen with increased intracranial pressure and that intracranial bleeding is
a cause of increased intracranial pressure. Dr. Ramilo could not say how many episodes that
caused intracranial bleeding Dylan had, but he could say there was at least one remote and then
at least one more recent episode causing intracranial bleeding. He agreed that it was possible
that if Dylan’s projectile vomiting on December 13 was caused by intracranial bleeding, the
projectile vomiting could have been caused by the acute bleeding Dr. Ramilo observed on the
imaging from December 19. The older bleeding could be as old as from when Dylan was born.
¶ 30 Dr. Ramilo agreed that when there is blood beneath the dura and there is fluid between the
dura (the first layer after the skull) and the arachnoid (the next layer after the dura), the blood
vessels between the arachnoid and the dura come under tension and it is possible those blood
vessels could rupture and cause new bleeds. Dr. Ramilo testified there were also hemorrhages
in the surface of the brain (intraparenchymal hemorrhage) and hemorrhages at the cortex, or
surface, of the brain. There was also fluid outside the brain tissue. He agreed a parenchymal
hemorrhage can be caused by a stroke. It could also be caused by venous thrombosis, or dural
-7-
or cerebral venous involvement, which requires an MRI to diagnose. Dr. Ramilo testified an
intracranial bleed would not necessarily be immediately symptomatic. The time frame depends
on the size of the bleed.
¶ 31 4. Dr. Alexander Khammar
¶ 32 Dr. Alexander Khammar testified as an expert in ophthalmology and pediatric
ophthalmology. Dr. Khammar performed an internal examination of Dylan’s eyes and
discovered preretinal (in front of the retina and behind the vitreous), subretinal (below the
retinal layers), and intraretinal (within the substance of the retina) hemorrhages in both the
right and left eyes. Dr. Khammar has performed “thousands upon thousands” of internal
examinations of the eye. Dr. Khammar reviewed photographs he took of Dylan’s eyes during
his testimony. He testified that the photos show multiple areas of hemorrhage covering the
entire back portion of both Dylan’s left and right eyes. He stated “this is one of the most severe
cases of bilateral retinal hemorrhages that I have seen in my professional career.” Dr.
Khammar testified that he performed a CT scan of Dylan, and the fact the retinal hemorrhages
showed up on the CT scan, which is uncommon, “speaks to the extent of the bilateral retinal
hemorrhages in this particular case.”
¶ 33 The State asked Dr. Khammar if he reached an opinion as to the mechanism of injury in
this case. Dr. Khammar responded as follows:
“The patient has a history of intracranial hemorrhage combined with healed rib
fractures and the presence of bilateral retinal hemorrhages involving multiple layers of
the retina.
In the absence of any identifiable cause, my diagnosis is non-accidental trauma or
child abuse. Shaken Baby Syndrome.”
¶ 34 The State asked Dr. Khammar if he could say to a reasonable degree of medical certainty
whether this injury involves some type of acceleration/deceleration force. Dr. Khammar
testified he believed the mechanism of Dylan’s injury was an accelerations/deceleration force
“which caused the bridging blood vessels of his brain to cause a subarachnoid hemorrhage and
have shearing injuries to the blood vessels in the retina to cause the findings that we reviewed.”
Dr. Khammar testified it was his assertion that Dylan’s retinal hemorrhages were “caused by
an acceleration/deceleration injury of the head.” He stated that based on the information
presented he believed that “the diagnosis of Shaken Baby Syndrome with the
acceleration/deceleration injury that I had described was the mechanism for these injuries.”
When asked “mechanically what is it about the acceleration/deceleration that causes the retinal
hemorrhaging?” Dr. Khammar responded “That is really up for debate.” He stated that aside
from knowing that the retinal hemorrhages are an acceleration/deceleration injury, the actual
mechanism is up for debate because “you cannot do prospective studies on these patients
cannot [sic] be definitely proven.” Dr. Khammar stated that his opinion, that the mechanism of
Dylan’s retinal hemorrhaging was acceleration deceleration injury, was based on “the
additional findings on examination of intracranial hemorrhage and rib fractures.” He agreed
this was what laymen would call SBS. When asked on cross-examination if he was familiar
with “the basis upon which the Shaken Baby Syndrome is based” Dr. Khammar testified he is
“familiar with the mechanism in [sic] which I described to you.” He was “generally familiar”
with efforts to “validate the notion” that shaking an infant can cause the physical
characteristics he described.
-8-
¶ 35 Defense counsel asked Dr. Khammar if he could cite or refer to any scientific experiments
supporting SBS. Dr. Khammar, referring to what he described as “a comprehensive review of
multiple articles written about the subject,” testified as follows:
“[T]here is a policy statement from the American Academy of Pediatrics written by
Alex Levin, which was considered state of the art research for Shaken Baby Syndrome.
And in that article, which is considered the standard for the American Academy of
Pediatrics, he indicates that acceleration/deceleration injury ***is the mechanism of
Shaken Baby Syndrome.”
Dr. Khammar noted that the Levin article cites other articles supporting Levin’s hypothesis
and testified that the article supports his testimony. He agreed there is a dispute in the medical
community regarding the existence of SBS.
¶ 36 On cross-examination Dr. Khammar testified that he did not believe that an emergency
room physician using a direct ophthalmoscope would be able to make an accurate diagnosis of
the presence or absence of retinal hemorrhages without dilating the eye. (Dr. Khammar
testified he dilated Dylan’s eyes and used an indirect ophthalmoscope to view Dylan’s retinal
hemorrhages.) He would not find valid a conclusion that an emergency room physician
observed no retinal hemorrhaging if there was no dilation performed at the time the emergency
room physician made that conclusion. Dr. Khammar testified that retinal hemorrhages can
have myriad causes. In certain instances they can be caused by increased intracranial pressure
or resuscitation efforts and are known to exist at birth, although Dr. Khammar questioned the
assertion that they are common at birth. He testified that “[i]t is known that *** there is
absence of external findings in patients who have a diagnosis of Shaken Baby Syndrome,” so
whether there was head bruising at birth or whether there were external symptoms, or not,
would not change his opinion in this case.
¶ 37 5. Dr. Mohamed Homsi
¶ 38 Dr. Homsi saw Dylan at Christ on December 28, 2009, “just as a follow-up” after Dylan
was admitted to the PICU. He reviewed Dylan’s medical records and CT scan and examined
Dylan. Dr. Homsi’s assessment of Dylan was “two-month old male with Shaken Baby
Syndrome and severe hypoxic ischemic encephalopathy.” Hypoxic ischemic encephalopathy
“is an injury to the brain especially caused by sudden drop of oxygen supply to the brain.” The
State asked Dr. Homsi what led him to the diagnosis of SBS. He testified as follows:
“It’s—when I reviewed the medical record and I reviewed the initial presentation
of the patient to the emergency room and the outside hospital and then what we have
regarding the EEG result, the brain imaging, CT scan and the MRI and also from the
other findings including the eye exam; the funduscopic exam, which showed bilateral
hemorrhage and also the rib fractures, so all these constellations give us a group of
symptoms; gives us the diagnosis of Shaken Baby Syndrome.”
¶ 39 Dr. Homsi described what he saw on the imaging of Dylan’s head. Dr. Homsi stated the
acute bleeding could be only “up to 24 hours” and he stated that “subacute” bleeding could be
from one day up to two weeks, while chronic bleeding is more than two weeks old. He testified
there was intracranial hemorrhage and subdural hemorrhage that was acute and chronic
subdural hemorrhage. Dr. Homsi testified Dylan could have had the chronic hemorrhage in the
morning, when he saw his pediatrician, and appear normal. He testified Dylan could not have
-9-
had the acute bleeding and appeared normal; therefore, between seeing his pediatrician in the
morning and appearing at the hospital at seven o’clock, there was another process of shaking.
¶ 40 On cross-examination, Dr. Homsi agreed that the condition that is causing Dylan to be in
his current state is hypoxic ischemic encephalopathy, which is caused by a lack of oxygen to
the brain. He also agreed that if a baby were to vomit and choke on vomit—if he aspirated and
there was a complete cessation of breathing—that could result in hypoxic ischemic
encephalopathy. Dr. Homsi testified that when he saw Dylan he already had a diagnosis of
SBS, and it was not Dr. Homsi’s job to diagnose SBS. Dr. Homsi stated that rib fractures are
usually one piece of evidence of an episode of shaking. Dr. Homsi testified a child does not
always become unresponsive after an episode of shaking. He did not know what the time lag
could be until the child became unresponsive. Dr. Homsi testified he is not aware of research
that has substantiated the SBS theory. He is not aware of any controversy in the medical
community as to whether shaking alone can cause the injuries that are thought to be
characteristic of SBS. On redirect examination, Dr. Homsi testified he agreed with the
diagnosis of SBS based on “the evidence, according to the funduscopic exam, the
hemorrhages, the rib fractures being that there was chronic subdural hemorrhage and acute and
intraparenchymal hemorrhage.” Dr. Homsi testified that SBS is accepted in the medical
community and the American Academy of Pediatrics.
¶ 41 On recross-examination Dr. Homsi testified that retinal hemorrhages are caused by severe
trauma. He agreed that a number of children are born with them, later testifying on redirect that
it could be from a traumatic birth. When asked on cross-examination what causes retinal
hemorrhages in cases of SBS, Dr. Homsi testified as follows:
“Especially Shaken Baby Syndrome at age less than three months when the baby
cannot hold the head, so with the shaken baby holding his body and shaking him, the
head will go forward and backward and this—also the eyeballs it’s connected to the
optic nerves and it’s connected to the brain, so they will make the eyeballs very loose
and if we say this is the eyeball and this is the optic nerve, so this angle it would be very
loose and here this is the side that the retinal hemorrhages occur. It’s the connection
between the eyeball and the optic nerve and this would be very loose causing it.”
Dr. Homsi agreed with defense counsel that meant “it’s actually mechanical force that acts on
the eye.”
¶ 42 Dr. Homsi agreed that an MRI is a more accurate scan than a CT scan, and he did not
remember if one was done on Dylan. He testified that intraparenchymal hemorrhage can result
from stroke, hypertension, and excessive cerebral blood flow, cerebral venous thrombosis, and
reperfusion injury (an injury resulting from resuscitation after the brain is without oxygen for a
period of time). A lack of oxygen can also cause cortical hemorrhage, but Dr. Homsi doubted a
lack of oxygen could cause subdural hemorrhage. Dr. Homsi testified he would disagree with
the pediatric radiologist if he said the acute bleed was hours to seven days old. But he also said
that, generally, if Dr. Ramilo had a different opinion from his own, he would defer to him. Dr.
Homsi agreed that a subdural collection would cause the space between the dura and the
arachnoid to expand, which theoretically would make the bridging veins more subject to
rebleeding.
¶ 43 Dr. Homsi agreed that increased intracranial pressure can cause projectile vomiting. If left
untreated, and if severe, increased cranial bleeding can cause “brain herniation and death.” It
could also cause seizures and affect the ability to breathe. He agreed that if you stop breathing,
- 10 -
you get hypoxic ischemic encephalopathy. He doubted that chest compressions can cause an
elevation in intracranial pressure and agreed that resuscitation efforts can increase intracranial
pressure, but he testified it was unusual. If Dylan were already suffering from increased
intracranial pressure and then given vigorous chest compressions, that could cause intracranial
bleeding.
¶ 44 6. Dr. Jill Glick
¶ 45 Dr. Glick reviewed Dylan’s records at the request of the State. Dr. Glick testified that in
coming to a diagnosis of Dylan she reviewed birth records, primary care notes, hospital
admissions for his surgery and for his “central injury or head trauma,” all of the images,
Department of Children and Family Services notes, police notes, the “run sheets,” and the 911
call. She also reviewed the “Retcam photographs of his eye findings in the hospital.” Prior to
her testimony she also reviewed records of Dylan’s admission to the University of Chicago in
2011 or 2012 and opinions of her colleagues and defense experts. Dr. Glick’s conclusions upon
reviewing the materials were largely consistent with the treating physicians’ testimony.
Additionally, in part, she reviewed Dylan’s spinal tap taken when he was transported to Palos
by ambulance on December 19.
¶ 46 Dr. Glick testified Dylan’s EEG was compatible with encephalopathy, meaning there is a
brain dysfunction. She said that encephalopathy was nonspecific. “It doesn’t tell you etiology;
that is, the cause. And then there’s multiple causes between brain damage.” Dr. Glick testified
she reviewed the notes of the subspecialties that were consulted on Dylan’s case: neurology,
ophthalmology, and neurosurgery. Notably, she stated that ophthalmology “was called in
because the prevailing diagnosis at the time was non-accidental trauma or if you want to call it
inflicted trauma or shaken baby.” Dr. Glick testified that after reviewing all of the reports and
imaging, her impression was that Dylan’s diagnosis was abusive head trauma. Dr. Glick
testified that abusive head trauma was manifested by Dylan’s clinical picture, his history of
acute onset, and his prior history of irritability that substantiates concern for old as well as new
injury. She continued: “The radiographic findings of old and new subdural hematoma,
subarachnoid bleeds, cerebral edema, and *** the neurosurgeon even called it maybe
contusion, centrally. The bloody tap is consistent with that.” Dr. Glick testified that Dylan’s
retinal hemorrhages were “a very unique finding” and added that retinal hemorrhage alone is
not diagnostic of anything. She stated, however, in “this pattern and in the context of this
child’s clinical condition it substantiates the diagnosis.” She also noted the skeletal trauma,
stating “the reason that’s important is that these were noted prior to his acute event on the 19th.
So he had old remote as well as new injury which was manifested by the brain trauma that
day.”
¶ 47 Dr. Glick testified her opinion as to how the injury was inflicted was, “because of all the
medical findings are consistent with cranio-rotations or as we use in laymen’s terms, shaking,
violent shaking.” She added: “We see this kind of pattern when forces are applied that cause
acceleration/deceleration to the brain.” Dr. Glick also testified that she had seen this pattern in
one or two children in very bad car accidents. “[I]t’s that kind of forces that cause these clinical
findings that Dylan had.” Dr. Glick opined that Dylan suffered an episode of shaking after he
saw his doctor on the morning of December 19. When asked what her opinion was based on,
Dr. Glick testified as follows:
- 11 -
“The opinion is based upon how severe traumatic brain injury presents. Dylan had
severe traumatic brain injury when he presented on the 19th. When you have severe
brain injury like that you have immediate symptoms.
This was extreme brain injury. I mean, Dylan, when he presented, he had a
Glasgow Coma Scale of 3, which is compatible with death. And this was acute onset.
He was seen by a doctor as well that morning. *** He was medically well that
morning.”
¶ 48 On cross-examination, Dr. Glick testified that she disagrees with Dr. Norman Guthkelch,
the author of one of the first articles to bring SBS to the medical community, when Dr.
Guthkelch says that SBS and abusive head trauma are hypotheses that have been advanced to
explain findings and are not yet fully understood. She also disagrees that it is wrong to fail to
advise parents and courts that they are hypotheses and not proven medical or scientific facts.
She testified it is not extraordinary to find massive internal injuries, particularly massive
traumatic intracranial and intraocular bleeds, without external signs of trauma, “[n]ow that
we’ve seen so many children with this, it’s not extraordinary.”
¶ 49 Defense counsel asked Dr. Glick about several studies, including a 1987 study that used
models of one-month old infants that found that shaking alone could not produce the angular
acceleration that was thought to be required to cause a subdural hematoma. Dr. Glick testified
that study “makes it very clear that they could not make a biofidelic model that replicates the
infant brain.” Dr. Glick also pointed out a 2005 study that replicated the 1987 study. According
to Dr. Glick, the 2005 study “developed a better biofidelic model, and in fact found that
shaking alone could reach those angular forces to cause the injury.” She added that the forces
were what were considered by a biomechanical engineer to be sufficient to cause cerebral
hematoma. When asked about another study from 2002, which used models and forces greater
than those generated by shaking, Dr. Glick stated, in part, “the prevailing understanding is we
still have not created a biofidelic model to study this. And people are still searching for that.”
At one point in her cross-examination, Dr. Glick stated “we still don’t understand the
pathophysiology of the retinal hemorrhages, extensive multiretinal hemorrhages we see
associated in the human baby, and they [(referring to a study involving shaking piglets)]
couldn’t replicate it in the piglet.”
¶ 50 Testifying about a 2011 article in the Journal of Forensic Biomechanics that found manual
shaking of biofidelic mannequins has failed to generate the rotational accelerations believed
necessary to cause intracranial symptoms in human infants, Dr. Glick questioned the validity
of that study. She explained she was suspicious because the 2011 study quoted an earlier study
by an individual who, it was discovered, “made some flaws.” Dr. Glick testified the “idea
that’s still quoted makes me suspect of the quality.” Dr. Glick did not agree that all attempts at
producing the physical manifestations of SBS by shaking animals had failed because some of
those studies demonstrated that shaking can cause brain injury. Dr. Glick did not disagree we
cannot “replicate it in the lab to show that the accelerations can cause the brain injury, in the
lab” but added “[w]e don’t have a good biofidelic model.” Dr. Glick did reference one
individual who she believed had “been able to duplicate the *** forces,” but Dr. Glick did not
know if that research was published. Dr. Glick thought it was plausible that mechanical
traction on the optic nerve can cause retinal hemorrhages, and she agreed that increased
intracranial pressure can cause retinal hemorrhages. She also agreed that a rebleed can increase
intracranial pressure, and that pressure could cause the baby to stop breathing.
- 12 -
¶ 51 Dr. Glick testified that you can get a “six nerve palsy” from a cranial nerve impingement
that results from increased intracranial pressure. She noted Dylan did not have a history of eye
palsy and he was examined by doctors on December 13 and 19. Dr. Glick testified she could
not precisely date Dylan’s rib fractures; therefore, she did not know if he had them when he
saw his pediatrician on October 17. When asked if it was her belief that the fractures were
caused by some kind of squeezing motion, Dr. Glick stated: “All I can say is a force applied. It
can be direct impact; it can be squeezing.” Dr. Glick could not say with certainty that Dylan’s
chronic subdural bleeds were present when he had his pyloric stenosis surgery, but she
gathered they were.
¶ 52 Dr. Glick testified Dylan’s chronic subdural collections were the result of inflicted trauma
that would be consistent with an episode of shaking. Defense counsel asked Dr. Glick if SBS
was a diagnosis of exclusion. She stated “[a]ll diagnoses are a diagnosis of exclusion. We
exclude everything else, and we come to a prevailing diagnosis. So it is a diagnosis of
exclusion like any other—many, many other disease entities.” Dr. Glick agreed it was a fair
statement that the evidence for SBS is “essentially clinical experience, case studies, and
confessions. Dr. Glick testified there is not a medical controversy regarding the existence of
SBS. “It is a well-established accepted diagnosis.”
¶ 53 Defense Expert Witnesses
¶ 54 The following experts provided testimony for the defense:
1. Dr. Patrick Barnes
2. Dr. Jan Leestma
¶ 55 1. Dr. Patrick Barnes
¶ 56 Dr. Patrick Barnes testified as an expert in pediatric radiology and pediatric
neuroradiology. The trial court also allowed Dr. Barnes to offer his expert opinion in the fields
of the imaging of children and in recognizing child abuse and mimics of child abuse through
imaging. Dr. Barnes explained that the ability has been developed to “uncover a number of
conditions that clinically and by imaging can look like abuse but, in fact, can represent
accidental traumatic injury as well as a number of medical conditions.” Dr. Barnes reviewed
the imaging of Dylan and the “imaging examinations” but not the other radiologists’ reports.
Dr. Barnes reached an opinion based on the materials he reviewed. Dr. Barnes opined that
Dylan’s chronic subdural or subarachnoid collections were anywhere from two to three weeks
old or could be several weeks old or go back to his birth. He testified the imaging showed more
recent hemorrhage or clot or thrombosis (which he testified are all different things) that was
anywhere from a few hours up to 7 to 10 days old. But he testified the images do not show any
swelling in the brain or any skull fractures. Dr. Barnes testified the images showed “this was
maybe a case of venous thrombosis” and identified the potential causes. The first was trauma,
then infection and a bleeding or clotting disorder. (Later in his testimony, Dr. Barnes testified
that thrombophilia—an over-clotting of blood that can cause blockages in veins—was more
likely.) Dr. Barnes testified as to what would need to be looked at to determine if one of those
potential causes was the cause of what was seen on the imaging. He also stated “the imaging
cannot tell you the difference between accidental and nonaccidental injury.”
- 13 -
¶ 57 Dr. Barnes testified the sutures in Dylan’s skull were too wide. He stated that means “there
is either increased intracranial pressure from the collection, from the hemorrhage or brain
swelling or these wide sutures can also be a sign of rickets ***. So that’s the differential
diagnosis 1 for that ***.” Dr. Barnes also testified the images showed Dylan’s skull was
incompletely developed, which is a sign of neonatal rickets, and he also said irregularity of the
sutures could be caused by increased pressure spreading them or rickets.
¶ 58 Dr. Barnes testified regarding a CT scan taken on December 21. It showed some fluid
collections that were getting larger. Dr. Barnes testified that is what happens with rebleeds. He
added: “It doesn’t tell us the cause, accidental versus nonaccidental or was it trauma that was
long ago with more recent rebleeds and the collecting of these.” He stated this CT was the first
to show swelling of the brain, which he stated “is consistent with the evolution of brain
swelling that we would see particularly due to a lack of oxygen or lack of blood flow that
occurred one to two days earlier.” He testified: “Where as if this were due to direct traumatic
injury of the baby’s brain we would expect to see that on the very first CT scan.” Dr. Barnes
testified that with the December 21 CT scan, “what we are seeing now is most consistent with
what we call a global lack of oxygen or blood flow to this baby’s brain now that we are seeing
edema and swelling.” He added that hemorrhages that are small, as with Dylan, “can occur
associate [sic] with hypoxia ischemia only without any trauma accidental or nonaccidental,
and the same for venous thrombosis.” Dr. Barnes stated the evolution shown in Dylan’s scans
was “most consistent with a lack of oxygen or blood flow.”
¶ 59 Defense counsel asked Dr. Barnes if the images he had reviewed to that point “indicate that
the source of the injury was trauma, especially shaking.” Dr. Barnes replied: “Not as the only
consideration. We still can’t rule out trauma, *** or accidental versus nonaccidental but we
have strong finding now for the doctors to look for other causes and we would be really
focusing on why a baby stopped breathing or the baby’s heart stopped beating.” Dr. Barnes
testified this pattern (what was shown from the first to the second image) could be seen in a
baby who had some block in the airway or was not getting oxygen into the lungs, or “we would
be looking at did the baby’s heart stop beating.” He stated you would look for whether the heart
stopped “because these particular findings are symmetric in the brain with regard to the edema
and swelling,” and they “were not present on the first CT as we would expect if this were direct
traumatic injury to the brain.” You would look to other images of the baby to look for those
causes.
¶ 60 Dr. Barnes testified using Dylan’s chest X-ray. He stated he noted that on the left side, the
ribs showed either fractures or pseudofractures. Fractures are “by definition due to trauma,”
while pseudofractures “imply that the bone is not normal and maybe fractured, with normal
handling or other nontraumatic events. And that is a classic sign that we might see in neonatal
rickets.” Dr. Barnes testified you cannot really distinguish between the two from just a chest
film, but a CT scan is recommended “to get a better idea of what exactly these are.” He added
that he saw either fractures or pseudofractures on the right, and if they are on both sides that is
another finding seen with neonatal rickets.
¶ 61 Dr. Barnes testified that rickets is a bone fragility disorder that causes incomplete bone
formation “due to lack either of the mineral calcium, another mineral called phosphorus, or
that those minerals can’t get there because the baby doesn’t have adequate vitamin D to be able
1
A “differential diagnosis” is a list of all possible causes.
- 14 -
to enable that baby to absorb calcium and phosphorus through what the baby eats or drinks to
go to the bones.” Dr. Barnes also testified Dylan’s skeletal survey showed signs of possible
viral pneumonia. The pneumonia could be seen with a baby who aspirated fluid during a
feeding or who regurgitated and then it aspirated into the lungs. That aspiration could cause the
baby to stop breathing, leading to hypoxia ischemia.
¶ 62 Dr. Barnes reviewed images of Dylan’s lower extremities taken during the skeletal exam.
Dr. Barnes stated he felt Dylan’s bones were incompletely ossified, and that is “one of the
earliest findings that you will see in a baby of this age for neonatal rickets.” He also noted the
bones in the lower extremities were not straight, and he stated that is “another indicator that
these bones are incomplete bone formations so they are soft and they will bow instead of being
straight.” Dr. Barnes testified the spur in Dylan’s left tibia can be related to accidental or
nonaccidental trauma and can be a characteristic finding in rickets. He added the fact it is
asymmetric tells us there have been asymmetric forces on the baby’s ankles whether by
caretakers or doctors. The bottom of the tibia is “rounder than it should be,” and that is
“another characteristic finding in neonatal rickets.” Dr. Barnes observed “ulnar cupping” in
Dylan’s upper left extremity and “two areas of interruption of the growth center.” He testified
those are both findings associated with neonatal rickets.
¶ 63 Defense counsel asked Dr. Barnes if he had an opinion as to whether the imaging he
reviewed indicates Dylan was suffering from neonatal rickets. Dr. Barnes testified “I cannot
rule out trauma, accidental, including what may have happened at birth ***. I cannot rule out a
prior postnatal accidental or nonaccidental injury. However, the findings are entirely
consistent, more probably than not, with neonatal rickets.” Dr. Barnes testified the mother
supplies enough calcium to the child before birth to prevent rickets, provided the mother’s
calcium and phosphorus levels are adequate. He also testified that the mother is the baby’s only
source of vitamin D before birth, and if the baby does not get vitamin D from the mother, the
baby is born vitamin D deficient. Postnatal supplementation may not be enough to get that
baby back to normal levels, “and then that’s how we can see it manifest as neonatal rickets.”
¶ 64 On cross-examination, Dr. Barnes testified that as part of a child abuse team, he gives his
differential diagnosis—or all the different things that could have happened to cause what he
sees on the imaging—to the doctors of different specialties who are part of the team, and those
doctors make the diagnosis based on the history, test results, and everything in front of them
medically.
¶ 65 Dr. Barnes testified that he saw more acute or subacute hemorrhaging in the earlier images
than the later because the blood was being infused. He testified that is “more characteristic of
subarachnoid hemorrhage” and subarachnoid hemorrhage “is not the characteristic distribution
of hemorrhage for abusive head trauma.” He added that some of the blood is subdural. The
recent hemorrhages could have been caused by trauma. Dr. Barnes did not agree that the acute
hemorrhaging alone could have resulted in the increased intracranial pressure that would have
made Dylan’s sutures widen. He agreed the acute and chronic hemorrhaging likely would raise
the intracranial pressure. Dr. Barnes testified that his report listed the differential diagnosis “in
order of proper consideration for a neonate of this particular age and then in my conclusions I
refine that somewhat for the major considerations.” An item of particular importance in Dr.
Barnes’s report is “the psychosocial evaluation of the caretaker to see if there is [sic] any at risk
features for abuse.” He agreed that drug abuse is potentially an accurate feature.
- 15 -
¶ 66 On redirect examination, Dr. Barnes testified that intracranial bleeding can occur from
birth, even birth by C-section. Then, on recross-examination, he agreed that in the study he
relied on for that proposition, the hemorrhaging resolved in the children born with subdural
hemorrhaging who were reimaged later, but not all of the children in the study were reimaged.
Dr. Barnes further explained that with thrombophilia, blocked veins can cause blood to back
up into the brain and cause hemorrhages. He added “that is very commonly reported in this
particular age group over the last decade and a half.” Dr. Barnes testified acute bleeding such
as he observed in Dylan can occur by spontaneous rebleeding of old subdural collections
without trauma. Dr. Barnes testified on recross that “in the majority of children” who might
have a traumatic birth experience, small subdural hemorrhages resolve quickly without
substantial consequences, but up to 5% do not. He also agreed that thrombophilia was another
differential diagnosis.
¶ 67 2. Dr. Jan Leestma
¶ 68 Dr. Jan Leestma testified as an expert in pathology and neuropathology. Dr. Leestma
testified that neuropathology is a recognized medical specialty relating to how diseases
(including physical injury) of the brain and nervous system work and determining the cause of
an injury. He studies the mechanical and biomechanical causes of brain injury. Dr. Leestma
testified that increased intracranial pressure that cannot be compensated for by changes in the
volume of cerebrospinal fluid can result in irritability, vomiting, poor feeding, lethargy,
sleepiness, choking, respiratory failure, unconsciousness, and possibly seizures. The
symptoms would come in that order as the situation deteriorates. These symptoms are caused
by pressure on the brain stem. Dr. Leestma also opined as to how retinal hemorrhages occur.
He testified that because the pressure around the optic nerve is the same pressure that is inside
the cranial compartment, when intracranial pressure increases “what you end up with is
basically a constriction around the optic nerve which collapses the veins.” Because the veins
remove the blood feeding the retina, when there is a constriction, there is no way for the blood
to get out. Therefore, the blood dilates the smaller vessels in the retina, and if the additional
pressure is high enough for a long enough time, the smaller vessels will rupture, and you get
bleeding in the retina. Dr. Leestma said this was “a scientifically based robust explanation of
how retinal hemorrhages occur,” specifically, intracranial pressure.
¶ 69 Dr. Leestma opined that SBS most likely does not exist as presently defined. Defense
counsel asked Dr. Leestma if he had an opinion as to whether or not vigorous shaking alone
causes intracranial bleeding and retinal hemorrhages thought characteristic of an injury caused
by shaking alone. Dr. Leestma testified “it probably does not occur that way.” He testified that
retinal hemorrhages occur in the way he described: intracranial pressure closing off venous
outflow from the retina. Dr. Leestma stated that evidence of SBS based upon case studies,
clinical experience, and confessions was “of a low quality level of evidence, which largely is
anecdotal case reports.” He continued: “It doesn’t conclude with experiments, double blind
studies, things like this that escalate the pyramid of veracity ***.” Dr. Leestma testified that
intracranial bleeding has been known to occur as a result of childbirth by C-section.
¶ 70 Defense counsel asked Dr. Leestma to describe the course of a subdural hematoma from
development to how it evolves. Dr. Leestma testified in part that “[u]sually in response to some
physical force *** blood vessels that are either in the dura or pass through it may become
injured in which bleeding occurs and it can dissect into *** [the] subdural space.” If healing
- 16 -
does not occur you can end up with a collection of subdural blood that “tends to increase
incrementally with time.”
¶ 71 Dr. Leestma testified that another way of relieving intracranial pressure is for the sutures in
the skull to open to create more space. He observed this in Dylan’s imaging. Dr. Leestma also
observed collections of fluid that he stated could be as old as from Dylan’s birth. He testified
the fluid had created a space between the brain and the skull, making Dylan susceptible to
rebleeding. He also saw newer bleeding on the right side of Dylan’s brain that could have been
several days old. Dr. Leestma opined that ventricles in Dylan’s brain were smaller than they
should be in the images, which he stated is caused by intracranial pressure squeezing the
ventricles, making them smaller. He stated that this would occur over many weeks and perhaps
months. He also testified that increased cranial pressure could cause sleepiness and vomiting.
¶ 72 On cross-examination, Dr. Leestma stated he was not diagnosing Dylan with sixth nerve
palsy, but that was a differential diagnosis for what he saw of Dylan’s eyes in photographs (one
eye appearing to drift toward Dylan’s nose). Dr. Leestma agreed that a study he cited in his
report in support of his position that subdural hematomas could rebleed in a child does not
demonstrate that proposition because the position of the author of that study was that if new
symptoms were seen, there must have been a significant new brain injury. He also agreed he
extrapolated from a study involving adults (but no children) to reach his conclusions about
children. He agreed adult brains and baby brains are different in many ways. Dr. Leestma
confirmed he was saying that it was conceivable that some of the old bleeds he saw in Dylan
could have come from birth, and he agreed that subdural bleeds in newborns often lie in the
back part of the brain. Dr. Leestma wrote a book and a chapter in a book about injuries caused
by shaking, stating that retinal hemorrhages and subdural hematomas were “red flags” of child
abuse. Dr. Leestma agreed the American Academy of Pediatrics (AAP) “is very much in favor
of and supportive of the shaken baby concept.”
¶ 73 On redirect examination, Dr. Leestma said the AAP also says it is critical to do a
differential diagnosis in cases where SBS is suspected. He also said that “significant numbers
of pathologists and neuropathologists and forensic people don’t subscribe” to SBS. Dr.
Leestma testified he changed his position on SBS after the publication of the “first
biomechanical testing of what goes on if you *** [s]hake babies.” He stated this caused him to
reexamine all of the research and led him to change his position. Dr. Leestma testified about
biomechanical studies attempting to use models to replicate the forces thought necessary to
cause subdural hemorrhaging in infants. The latest study about which he testified, which was
conducted in 2011, concluded that shaking does not approach the angular accelerations
generally accepted as a minimum threshold for infant subdural hematoma.
¶ 74 The trial court found defendant guilty and sentenced him to ten years’ imprisonment. This
appeal followed.
¶ 75 ANALYSIS
¶ 76 In this appeal, defendant argues (1) the trial court erred in refusing to conduct a Frye
hearing before admitting evidence of “Shaken Baby Syndrome” (SBS) and (2) the State failed
to meet its burden to prove he committed the crime charged beyond a reasonable doubt. The
admission of incompetent testimony will not constitute reversible error if it appears that such
testimony could not reasonably have affected the result. People v. Oparka, 105 Ill. App. 2d
158, 164 (1969). See also People v. McKown, 226 Ill. 2d 245, 276 (2007). In this case, we
- 17 -
cannot say that evidence of SBS could not have reasonably affected the result of defendant’s
trial. Therefore, we first address defendant’s argument the trial court should have conducted a
Frye hearing to determine the admissibility of testimony concerning SBS.
¶ 77 I. Frye Hearing
¶ 78 “The Frye test holds inadmissible expert testimony based on a scientific technique unless
that technique is generally accepted as reliable in the relevant scientific community. [Citation.]
The Frye test was designed to help courts distinguish the experimental from the demonstrable
stages of scientific discovery.” Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 613 n.3 (7th
Cir. 1993). Illinois has codified the Frye test in Rule 702 of the Illinois Rules of Evidence. Ill.
R. Evid. 702 (eff. Jan. 1, 2011); In re Detention of New, 2014 IL 116306, ¶ 25. The rule states
as follows:
“Where an expert witness testifies to an opinion based on a new or novel scientific
methodology or principle, the proponent of the opinion has the burden of showing the
methodology or scientific principle on which the opinion is based is sufficiently
established to have gained general acceptance in the particular field in which it
belongs.” Ill. R. Evid. 702 (eff. Jan. 1, 2011).
For purposes of continuity, we will continue to refer to the rule as the Frye test. “The purpose
of the Frye test is to exclude new or novel scientific evidence that undeservedly creates a
perception of certainty when the basis for the evidence or opinion is actually invalid.
[Citation.]” (Internal quotation marks omitted.) In re Detention of New, 2014 IL 116306, ¶ 26.
When a party challenges the admission of evidence under the Frye test, the threshold question
for the court is whether the evidence “is the type of scientific evidence subject to the screening
function served by the Frye test.” Id. ¶ 28. “[T]he Frye test does not concern an expert’s
ultimate conclusion but, instead, focuses on the underlying scientific principle, test, or
technique used to generate that conclusion.” Id. (citing Donaldson v. Central Illinois Public
Service Co., 199 Ill. 2d 63, 77 (2002), abrogated by In re Commitment of Simons, 213 Ill. 2d
523 (2004) (adopting a dual standard of review with respect to the trial court’s admission of
expert scientific testimony)). We review de novo both the “trial court’s determination of
whether a Frye hearing is necessary and whether there is general acceptance in the relevant
scientific community.” Id. ¶ 26. “In conducting such de novo review, the reviewing court may
consider not only the trial court record but also, where appropriate, sources outside the record,
including legal and scientific articles, as well as court opinions from other jurisdictions.” In re
Commitment of Simons, 213 Ill. 2d 523, 531 (2004).
¶ 79 In People v. Cook, 2014 IL App (1st) 113079, ¶ 52, the defendant was convicted of
involuntary manslaughter of the four-month-old victim after experts for the State testified that
based on their knowledge and experience, the injuries to the victim were caused by blunt
trauma and were consistent with the baby being shaken and thrown into a bassinet. This court
stated that SBS is not a “methodology,” but instead, “it is a conclusion that may be reached
based on observations and medical training.” Id. In Cook we found that the challenged expert
opinions in that particular case did not implicate Frye because the methodology the experts in
that case used to reach their conclusions as to what caused the victim’s injuries “was not a test
or a new or novel methodology, but their medical training and experience.” Id. ¶ 50. Although
the experts in Cook testified the victim’s injuries were caused by blunt trauma and one expert
testified the injuries were consistent with shaking, we held that even to the extent the experts
- 18 -
opined the victim was shaken, “those opinions were based on their conclusions reached after
an application of their medical training to their observations.” Id. ¶ 51.
¶ 80 The expert in Cook who did testify that the victim’s injuries were consistent with being
shaken, Dr. Michael J. Humilier, made that diagnosis based on the existence of subdural
hematomas on both sides of the victim’s brain. Id. ¶ 11. He testified that the most common
cause of subdural hematoma in infants is the tearing of the veins that go from the brain to the
top of the skull and that other causes include blunt trauma, certain natural diseases, and the
birthing process. Id. ¶ 8. Dr. Humilier testified that the subdural hematoma and retinal
hemorrhaging in that case “could be consistent with the baby’s head shaking back and forth in
a flopping motion in a violent manner.” Id. ¶ 7. Dr. Humilier also testified that the subdural
hematomas in that case were not caused by “cancer, a clotting disorder, infection, or by [the
victim] being born, and [were] not what one would expect to be seen from a normal fall.” Id.
¶ 11. Dr. Humilier testified that the injuries could have resulted from shaking alone, without
producing other visible injuries, because “the baby’s brain is very soft and very filled with
water, unlike an adult’s brain. *** [S]o it is very easy for any type of [blunt] trauma to the head
to cause tearing on the veins and causing [sic] that subdural blood.” (Internal quotation marks
omitted.) Id. ¶ 52. We found those opinions were based on “medical knowledge and
experience.” Id.
¶ 81 In this appeal, defendant argues this court’s holding in Cook, that SBS is a conclusion
based on observation, medical knowledge, and experience rather than a conclusion based on a
new or novel scientific principle, test, or technique, must be reconsidered in light of “more
recent developments in both the underlying scientific principles which underpin the SBS
hypothesis and case decisions questioning SBS.”
¶ 82 Defendant first argues that a Frye hearing has never been held in Illinois on the scientific
principles of SBS; for purposes of Frye, therefore, SBS is a novel issue in Illinois. Defendant
argues that because a Frye hearing had never been held on the issue of SBS, the trial court
erred when it allowed testimony about SBS without a Frye hearing. In support, defendant
relies on our supreme court’s decision in People v. McKown, 226 Ill. 2d 245 (2007). In
McKown, the defendant was convicted of driving under the influence of alcohol. At trial the
testimony consisted of the testimony of three occurrence witnesses and the testimony of a
police officer who administered a horizontal gaze nystagmus (HGN) test on the defendant.
Over the objection of defense counsel, the trial court allowed the officer to testify about the
results of the HGN test, with the court taking judicial notice of the general acceptance of the
reliability of the HGN test as an indicator of alcohol impairment based on previous Illinois
opinions. Id. at 248. As a result of the HGN test the officer administered to the defendant, the
officer opined that the defendant was under the influence of alcohol.
¶ 83 In McKown, our supreme court found the trial court erred in taking judicial notice of the
reliability of the HGN test because use of the HGN test as an indicator of alcohol impairment
was “novel” for purposes of Frye despite the fact it had been used by police officers for many
years. Id. at 257-58. First, the court held that a trial court should only accept evidence of new or
novel scientific principles where there are unequivocal and undisputed prior judicial decisions
or technical writings on the subject. Id. at 254. It is clear that our supreme court’s holding that
HGN testing was a novel scientific theory for purposes of Frye cannot be attributed solely to
the fact that no court in Illinois had held a Frye hearing on the matter. While part of our
supreme court’s reasoning in finding that the HGN test was novel for purposes of Frye was the
- 19 -
fact that a Frye hearing had never been held in Illinois on the matter, the court also devoted
significant attention to the fact that despite numerous legal challenges across the nation to the
admissibility of HGN test evidence, the issue remained unsettled; therefore the trial court
should not have taken judicial notice of the reliability of the HGN test. Id. at 257. The court
noted both that “our own appellate court has issued divergent opinions on the topic” (id.) and
that “many states have addressed the issue of whether HGN testifying satisfies Frye *** [with]
varying degrees of success” (internal quotation marks omitted) (id. at 258). In McKown, our
supreme court was faced with the question of the admissibility of scientific evidence where the
appellate court was in disagreement and there was no clear guidance from court’s across the
nation.
¶ 84 McKown does not control the outcome of this case. First, we observe McKown did not
challenge the officer’s conclusion that the defendant was under the influence of alcohol but
rather challenged the underlying scientific principle (the HGN test as an indicator of alcohol
impairment) that formed the basis of the officer’s conclusion. In contrast, defendant in this
case challenges the doctors’ conclusions (that the victim suffered nonaccidental trauma
consistent with SBS) rather than the underlying basis for the conclusion (the doctors’ training
and clinical experience). We have held that whether testimony regarding SBS is the type of
scientific evidence subject to Frye depends on the basis of the expert’s opinions. Cook, 2014 IL
App (1st) 113079, ¶ 52. In this case, the experts based their opinions upon their examination of
the victim and their medical training and experience and came to the conclusion that the victim
suffered nonaccidental trauma consistent with SBS. The experience and training of the medical
experts in this case is not a scientific principle or theory within the meaning of Frye; therefore,
McKown is inapplicable.
¶ 85 The fact that no prior Frye hearing has been held on SBS does not require a Frye test for the
conclusions of the experts in this case, which are based on their observations and experience.
The McKown court required a Frye test where the underlying science (the HGN test), which
supported the officer’s conclusion that the defendant was under the influence of alcohol, was
subject to divergent legal opinions. We note that unlike the situation in McKown, defendant
here challenges the experts’ conclusions rather than the underlying medical principles, and in
any event, defendant cites no conflicting Illinois judicial decision on the admissibility of SBS.
We find McKown is not controlling or instructive on the question of whether SBS is a “novel”
scientific theory.
¶ 86 Returning to the question of the applicability of Frye to the expert testimony in this case,
defendant next argues that in In re Detention of New, 2014 IL 116306, our supreme court
“refined” the holding in Cook “so that in a proper case a medical diagnosis based on training
and experience may be subject to a Frye analysis.” In New, a sex offender was involuntarily
committed after a jury found him to be a sexually dangerous person. At trial, experts for the
State testified that the defendant suffered from paraphilia, not otherwise specified (NOS), and
opined that it was substantially probable that he would commit acts of sexual violence in the
future. The issue on appeal was whether the trial court erred in admitting expert testimony
regarding a diagnosis of hebephilia2 at the respondent’s civil commitment trial without first
2
The experts diagnosed the respondent with paraphilia not otherwise specified, sexually attracted to
adolescent males, “which is otherwise referred in the academic literature as hebephilia.” In re Detention
of New, 2014 IL 116306, ¶¶ 4, 9, 16.
- 20 -
conducting a Frye hearing “to determine whether the diagnosis had been generally accepted as
a valid mental disorder in the relevant scientific community.” Id. ¶ 1. In New the State argued
“a diagnosis is never subject to Frye because it is not a scientific technique or test used to
diagnose but, rather, an expert’s conclusion based on training and experience.” Id. ¶ 28. In this
appeal defendant argues the court rejected the State’s argument and held that “a diagnosis may
be so unsupported by science that it should be excluded from consideration by the trier of fact.”
See id. ¶ 32. We disagree with defendant’s overly broad analysis of the decision in New. The
court held that certain mental diagnoses “may be so unsupported by science” that they should
be excluded from consideration by the trier of fact in civil commitment proceedings. Id.; see
also id. ¶¶ 30, 31.
¶ 87 The New court addressed “whether expert testimony involving a purported mental
diagnosis is the type of scientific evidence subject to the screening function served by the Frye
test.” Id. ¶ 28. The court found that the respondent did “not seek to test the conclusions drawn
by the experts *** based on their clinical observation and experience that [the] respondent
exhibits the characteristics of [hebephilia]” but rather to test “the science behind the condition”
as evidenced by “the supporting documentation presented by [the] respondent regarding
flawed methodology” (id. ¶ 33) used to establish hebephilia as a diagnosable mental condition.
The New decision did not go into detail about the methodological flaws in the research, but
there was at least some concern as to whether hebephilia was actually a mental condition (or
was, as the respondent’s expert testified, “statistically normal” (id. ¶ 20)) and whether it could
be reliably diagnosed. See id. ¶¶ 33, 36. The court concluded this was “the type of scientific
evidence that the analytic framework established by Frye was designed to address.” Id. ¶ 33.
¶ 88 The holding in New is not applicable here because the nature of the expert testimony in
New is distinguishable from the testimony in this case. In New, the experts offered their
opinions about the respondent based on the scientific principle that “hebephilia” is a mental
disorder. See Id. ¶¶ 9, 16 (diagnosing respondent with a mental disorder based largely on
sexual attraction to adolescent or early pubescent males). Thus, in New, an arguably suspect
mental disorder—hebephilia—led the experts to opine that the respondent suffered from a
mental condition. Both State experts’ opinions that the respondent suffered from hebephilia
were purportedly based on the then-current version of the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), which did not include
hebephilia as a specifically listed mental disorder. Id. In reaching its ultimate decision, the New
court placed emphasis on the fact that at the time, a proposal to add hebephilia to the DSM, “an
undisputed authoritative reference manual in the field of psychology and psychiatry,” was
rejected. Id. ¶¶ 42-45, 51.
¶ 89 It was the scientific validity of the underlying diagnosis (hebephilia) that our supreme court
subjected to a Frye hearing. Id. ¶ 53 (finding court had inadequate basis to determine whether
the diagnosis of hebephilia has gained general acceptance in the psychological and psychiatric
communities). In short, in New, the diagnosis of “hebephilia” formed the underlying basis for
the experts’ conclusion that the defendant suffered from a mental condition. However, that
diagnosis was not recognized by the leading authority on the subject—the DSM-IV-TR. In
contrast, in this case, defendant challenges the ultimate conclusion of the experts and not the
underlying training and experience that form the basis for their conclusions. Therefore New
does not affect the outcome of this case.
- 21 -
¶ 90 The judgment in New did not “clarify” the reach of Frye when the purported scientific
evidence is a medical diagnosis. The inquiry is the same: whether the expert is testifying based
on a new or novel scientific principle or whether the expert opinion is “derived solely based
upon observation and experience.” Id. ¶ 28 (citing In re Marriage of Alexander, 368 Ill. App.
3d 192, 197 (2006)). A Frye hearing is only required where an underlying scientific principle
leads to the expert’s conclusion. In New, the underlying scientific principle was the
classification of hebephilia as a mental disorder, and the conclusion was that the respondent
suffered from that mental condition because he exhibited its characteristics. In New, the
experts could not have reached their conclusion without relying on the underlying scientific
principle, and the court could not determine the principle had gained general acceptance. Id.
¶ 51. Here, unlike in New and despite defendant’s arguments to the contrary, the existence of
SBS did not lead the State’s experts to conclude that Dylan had been shaken. Instead, the
State’s experts observed Dylan’s injuries and went through a methodical process of
elimination to determine their cause. See Cook, 2014 IL App (1st) 113079, ¶ 52 (“Neither of
the State’s experts actually ‘diagnosed’ Anthony with SBS. Nor is SBS, had it been diagnosed,
a ‘methodology.’ Rather, it is a conclusion that may be reached based on observations and
medical training which is not new or novel.”). Further, in this case the State’s experts could
have reached their conclusion that Dylan’s injuries were caused by acceleration/deceleration
forces absent any “scientific theory” of SBS. Moreover, further distinguishing New, to any
extent SBS can be called a “diagnosis,” it is not in question by authoritative sources of medical
information. The United States Centers for Disease Control and Prevention (CDC), the
National Institutes of Health (NIH), and the American Academy of Pediatrics (AAP) 3 all
acknowledge SBS.
¶ 91 Because we find our supreme court’s decision in New is limited to the facts of that case and
is distinguishable from the circumstances presented here, New is not controlling in this appeal.
¶ 92 A. The Application of Frye to the Testimony
¶ 93 As we stated previously, the question this court must answer to address defendant’s
argument the experts’ testimony is subject to the Frye test is whether the experts’ testimony
was based on their own observations, experience, and medical knowledge, or whether they
merely adopted a scientific principle that shaking produces certain injuries and applied that
principle to their observations of Dylan. We must address that question to their testimony, if
they did so testify, that shaking alone produces sufficient force to cause Dylan’s symptoms.
3
Although the AAP has embraced the term “Abusive Head Trauma” (AHT), it has not expressed
any doubt about the existence of SBS: “Shaken baby syndrome is a term often used by doctors and the
public to describe abusive head trauma inflicted on infants and young children. While shaking an infant
can cause neurologic injury, blunt impact or a combination of shaking and blunt impact can also cause
injury. In recognition of the need for broad medical terminology that includes all mechanisms of injury,
the new AAP policy statement, ‘Abusive Head Trauma In Infants and Children,’ recommends
pediatricians embrace the term ‘abusive head trauma’ to describe an inflicted injury to the head and its
contents. Pediatricians should learn to recognize the signs and symptoms of abusive head trauma,
including those caused by both shaking and blunt impact, and consult with pediatric subspecialists
when necessary.” Press Release, American Academy of Pediatrics (Apr. 27, 2009),
https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/Abusive-Head-Trauma-A-New-Nam
e-for-Shaken-Baby-Syndrome.aspx (last visited July 25, 2016).
- 22 -
Drs. Kampanatkosol and Polavarapu testified Dylan’s injuries were caused by nonaccidental
trauma, with Dr. Polavarapu only stating that his injury was “consistent” with SBS. Dr. Ramilo
testified that the “usual” mechanism for injuries like Dylan’s was shaking, which causes the
veins along the surface of the brain to break. Drs. Khammar and Glick testified similarly that
the cause of Dylan’s injuries was nonaccidental trauma or what could be called SBS. Only Dr.
Homsi testified the “diagnosis” was SBS. All of the experts testified that it was their expert
opinion that Dylan’s injuries were caused by a force inflicted upon him and described the
forces shaking creates in the infant skull that cause injury. However, none of the State’s experts
testified that their opinion was based on the existence of a scientific theory that shaking causes
the injuries associated with SBS and the fact Dylan had those injuries. Most notably, Dr. Glick
testified that the evidence for SBS is “essentially clinical experience, case studies, and
confessions.”
¶ 94 Defense counsel elicited testimony that people accused of shaking children might confess
for various reasons. Defendant argues on appeal that those facing criminal charges based on
SBS might be coerced into a false confession. Defendant also argues “[m]any care givers do
shake their children when faced with a non-responsive child” and this “can be contorted into a
confession of shaking.” Defendant’s arguments on appeal that “experience” and “case studies”
are not “science” actually support finding that Frye does not apply in this context, and they fail
to demonstrate that a Frye hearing was needed in this case. Dr. Glick testified that “if you talk
to any ICU doctor in pediatrics in the last five years, they’ll say, oh, I’ve had people confess,
and these kids all look alike.” Caregiver reports to doctors that they shook a child can serve as
a report of the facts of what happened to a child before arriving at a hospital or presenting
symptoms—a commonly understood medical diagnostic tool. Moreover, Dr. Glick testified
that those confessions or reports are part of the clinical study undertaken by doctors in this
field. Defendant’s argument might go to the weight of the evidence. See Snelson v. Kamm, 204
Ill. 2d 1, 26 (2003) (“While Kamm contends that Sarnelle’s opinions were not adequately
supported, the basis for a witness’ opinion generally does not affect his standing as an expert;
such matters go only to the weight of the evidence, not its sufficiency.”). But defendant has not
established the existence of a “scientific principle” of SBS. There was testimony of attempts to
create a scientific principle of SBS through biomechanical studies, and there was testimony
that results of various experiments both supported and appeared to disprove the clinical
observations. That fact is irrelevant because none of the State’s experts testified to relying on
any of those biomechanical studies in forming their opinions.
¶ 95 This court has held that “[i]f an expert’s opinion is derived solely from his or her
observations and experiences, the opinion is generally not considered scientific evidence.”
In re Marriage of Alexander, 368 Ill. App. 3d at 197. In Cook, we stated that testimony as to
what caused the victim’s injuries in that case was “a conclusion that may be reached based on
observations and medical training.” Cook, 2014 IL App (1st) 113079, ¶ 52. The same is true
here and as such, Frye does not apply. See id. Florida’s Second District Court of Appeal has
explained clearly the distinction between the experts’ testimony in this case and expert
testimony subject to Frye. That court has written as follows:
“Under Florida law, the Frye standard is not applicable to ‘pure opinion testimony’
which is based on an ‘expert’s personal experience and training.’ [Citation.] In
particular, there is a distinction between an expert’s ‘pure opinion testimony based
- 23 -
upon clinical experience’ and testimony which ‘rel[ies] on conclusions based upon
studies and tests.’ [Citation.]
Expert testimony which ‘relies on some scientific principle or test *** implies
infallibility not found in pure opinion testimony.’ [Citation.] Because of the
implication of infallibility, such testimony ‘must meet the Frye test’ in order ‘to ensure
that the jury will not be misled by experimental scientific methods which may
ultimately prove to be unsound.’ [Citation.] Although pure opinion testimony is
‘cloaked with the credibility of the expert, [it] is analyzed by the jury as [the jury]
analyzes any other personal opinion or factual testimony by a witness.’ [Citation.]
Since opinion testimony does not have the same aura of infallibility as does testimony
which is based on a scientific principle or test, pure opinion testimony does not have
the same potential for misleading the jury as does testimony based on a novel scientific
methodology.
These general principles have been applied in determining whether expert
testimony concerning the issue of causation is subject to analysis under the Frye
standard. Accordingly, medical expert testimony concerning the causation of a medical
condition will be considered pure opinion testimony—and thus not subject to Frye
analysis—when it is based solely on the expert’s training and experience. And, of
course, Frye will be applied where particular expert testimony concerning the cause of
a medical condition is based on a novel scientific methodology. [Citations.]
It is also established that use of the technique of ‘differential diagnosis’ by an
expert medical witness in determining causation does not raise concerns under Frye.
‘Differential diagnosis’ is ‘an established scientific methodology in which the expert
eliminates possible causes of a medical condition to arrive at the conclusion as to the
actual’ cause of the condition. [Citation.] ‘[T]here is no question that the differential
diagnosis technique *** is generally accepted in the scientific community.’
[Citations.]” Gelsthorpe v. Weinstein, 897 So. 2d 504, 509-10 (Fla. Dist. Ct. App.
2005) (superseded by statute as stated in Perez v. Bell South Telecommunications, Inc.,
138 So. 3d 492, 497 (Fla. Dist. Ct. App. 2014) (statute changed Florida “from a Frye
jurisdiction to a Daubert jurisdiction”)).
¶ 96 The State’s experts in this case all engaged in a differential diagnosis when forming their
opinion as to Dylan’s etiology. They did not rely on a scientific theory then apply their
observations to that theory. Cf. In re Detention of New, 2014 IL 116306, ¶ 33. Defendant
argues that a “lynchpin of the [prosecution’s] case for conviction is that the extensive retinal
hemorrhages observed in Dylan are so characteristic of SBS that they can be relied upon in
concluding that Dylan had been shaken.” We disagree. The trier of fact could find from the
testimony that the nature and extent of Dylan’s retinal hemorrhages were indicative of severe
trauma, which served to eliminate other causes from the differential diagnosis. To the extent
the State’s experts relied on Dylan’s retinal hemorrhaging to diagnose the cause of his injuries
as inflicted trauma or shaking, they did so based on their medical training and experience.
¶ 97 Defendant’s arguments concerning other physical conditions that can result in the physical
injuries, which the State’s experts opined, based on their clinical experience, observation, and
medical knowledge, resulted from trauma consistent with or caused by manual shaking, are
better directed at his claim the evidence was not sufficient to prove his guilt beyond a
reasonable doubt. (We note the experts for the State and the defense testified as to the
- 24 -
differential diagnosis of Dylan’s condition, and the State’s experts testified why other causes
were eliminated. “The fact finder is free to accept the opinion of one expert witness over
another.” People v. Tademy, 2015 IL App (3d) 120741, ¶ 13.)
¶ 98 Defendant’s cited foreign court decisions in this arena are similarly unpersuasive. For
example, in State v. Edmunds, 2008 WI App 33, ¶ 1, 308 Wis. 2d 374, 746 N.W.2d 590, the
Wisconsin Court of Appeals reversed a lower court decision denying a motion for a new trial
on the basis of newly discovered evidence. The Wisconsin court found that the newly
discovered evidence in that case showed “the emergence of a legitimate and significant dispute
within the medical community as to the cause of [the victim’s] injuries.” Id. ¶ 23. The court
found that “[n]ow, a jury would be faced with competing credible medical opinions in
determining whether there is a reasonable doubt as to Edmunds’s guilt.” Id. Although the
Edmunds court did note a “shift in [the] mainstream medical opinion *** as to the causes of the
types of trauma [the victim] exhibited” (id.), we note that the Edmunds decision did not
describe that trauma—so we do not know how it compares to Dylan’s trauma—and in Illinois,
“[g]eneral acceptance does not require unanimity, consensus, or even a majority.” In re
Detention of New, 2014 IL 116306, ¶ 39.
¶ 99 In Del Prete v. Thompson, 10 F. Supp. 3d 907, 958 (N.D. Ill. 2014), the court only held that
a procedurally defaulted claim could be considered in a petition for writ of habeas corpus
because the petitioner in that case demonstrated that in light of new evidence, it was more
likely than not that no reasonable juror would have found her guilty beyond a reasonable
doubt. The Del Prete court found that evidence of prior abusive head trauma and testimony
concerning the possibility of lucid intervals gave rise to “abundant doubt” of the petitioner’s
guilt in that case. Id. at 957. In a footnote, the court noted that the inability to establish an injury
threshold for head injury to an infant as a result of rotational acceleration (shaking back and
forth) “arguably suggests that a claim of shaken baby syndrome is more an article of faith than
a proposition of science.” Id. at 958 n.10. Notably, in the same footnote, the court first wrote
that it was “not persuaded that the experimental testing *** definitively establishes that
shaking alone cannot cause injuries of the type [the victim] suffered.” (Emphasis added.) Id.
Thus the only issue addressed in Del Prete was the weight of the evidence, not its
admissibility. See generally Tademy, 2015 IL App (3d) 120741, ¶ 13. Both cases are
inapposite to the discussion here. Neither the Edmunds court nor the Del Prete court held that
expert medical testimony on either side of that debate was subject to the Frye test. In this case,
we find that the testimony in this case constituted “pure opinion testimony based upon clinical
experience” to which Frye does not apply.
¶ 100 II. Sufficiency of the Evidence
¶ 101 We now turn to defendant’s argument the evidence fails to prove his guilt beyond a
reasonable doubt.
“When reviewing a challenge to the sufficiency of the evidence, the relevant
question is whether, after viewing the evidence in a light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. [Citation.] Under this standard, a reviewing court resolves all
reasonable inferences in favor of the State. [Citation.] A criminal conviction will not be
set aside on appeal unless the evidence is so improbable or unsatisfactory that it creates
a reasonable doubt as to the defendant’s guilt. [Citation.]” People v. Tuduj, 2014 IL
- 25 -
App (1st) 092536, ¶ 72.
¶ 102 A. The State’s Burden
¶ 103 Defendant first asserts that one of the State’s experts testified that a lack of oxygen to
Dylan’s brain resulted in hypoxic ischemic encephalopathy (HIE) causing permanent
disability; thus, he argues, “[t]o prove guilt, the evidence must show that [defendant] violently
shook Dylan on December 19, 2009 thus causing [Dylan’s] HIE.” The State indicted defendant
on two counts of aggravated battery of a child charging that he “intentionally or without legal
justification and by any means, caused great bodily harm to any child under the age of 13
years, to wit: he shook Dylan Schuit” and that he “intentionally or without legal justification
and by any means, caused permanent disability to any child under the age of 13 years, to wit:
he shook Dylan Schuit.” The statute defines the offense as follows: “Any person of the age 18
years and upwards who intentionally or knowingly, and without legal justification and by any
means, causes great bodily harm or permanent disability or disfigurement to any child under
the age of 13 years ***, commits the offense of aggravated battery of a child.” 720 ILCS
5/12-4.3(a) (West 2010). The State was not required to prove that the result of defendant’s
conduct was specifically HIE. Even as to Count II, the State was not required to prove
defendant caused HIE. The State was only required to prove that defendant caused Dylan great
bodily harm or permanent disability. To prove Dylan is permanently disabled, the Sate only
had to prove that he “is no longer whole such that the injured bodily portion or part no longer
serves the body in the same manner as it did before the injury.” People v. Conley, 187 Ill. App.
3d 234, 240 (1989). Dylan’s disability is indisputable. To prove defendant caused Dylan’s
injury, the State had to establish that a reasonable certainty exists that defendant’s actions
caused the disability (People v. Ikerman, 2012 IL App (5th) 110299, ¶ 49), not that defendant
caused HIE.
¶ 104 B. The Trial Court’s Understanding of the Evidence
¶ 105 Defendant next argues the trial court mischaracterized and misstated the evidence.
“When reviewing a claim of insufficient evidence in a bench trial, we presume that
the trial court accurately recalled and considered all the evidence. [Citations.] As a
result, its determination is entitled to a great deal of deference on appeal. We will not
reverse its determination unless, after viewing the evidence in the light most favorable
to the State, we find that no rational trier of fact could have reached the same
conclusion as the trial court. [Citation.]
By contrast, with a claim of mistaken recall, the record contains affirmative
evidence that the trial court made a mistake in its decision-making process, thereby
undercutting the presumption that serves as the very foundation for the deferential
standard of review in an insufficient evidence claim—that the trial court accurately
recalled and considered all the evidence. [Citations.]
As a result, the claim of mistake must be reviewed under a completely different
standard of review. Instead of the highly deferential standard applied to a trial court’s
ruling in an insufficient evidence claim, we review de novo the question of whether the
record reveals that the trial court made an affirmative mistake in its decision-making
process. [Citation.]” People v. Williams, 2013 IL App (1st) 111116, ¶¶ 102-04.
- 26 -
¶ 106 First, defendant argues the trial court erroneously rejected Dr. Barnes’s opinion of the
likelihood of rebleeding in Dylan’s head on the grounds that Dr. Barnes did not address the
extent of Dylan’s retinal hemorrhages. Regarding Dylan’s retinal hemorrhages, the trial court
found, in part: “I don’t find that that is supported by Dr. Barnes’s theory in that he has failed to
address to me how those retinal hemorrhages are consistent or inconsistent with his rebleed
theory.” On appeal, defendant notes that Dr. Barnes testified rebleeding can cause an increase
in intracranial pressure that in turn can cause retinal hemorrhages, then defendant goes on to
discuss Dr. Barnes’s testimony concerning rebleeding. While defendant notes that Dr. Barnes
did offer an explanation for Dylan’s retinal hemorrhages that did not involve inflicted trauma,
defendant does not argue, nor do we find, that Dr. Barnes discussed the extensive multilayered
retinal hemorrhages in Dylan’s eyes. The trial court did not misstate Dr. Barnes’s testimony.
¶ 107 Next defendant complains the trial court referred to the “sutures in the dura,” when in fact
sutures are found in the skull. Defendant argues the trial court’s misstatement “demonstrates a
fundamental failure to comprehend the evidence in this admittedly medically complex case.”
We disagree. The trial court engaged in an extensive discussion of all of the evidence. We
agree with the State that with regard to sutures, the trial court made nothing more than a minor
“slip of the tongue.” We further find this minor misstatement had no effect on the basis of the
trial court’s ruling and did not result in a mistake in the decision-making process. The trial
court only referenced “sutures in the dura” in passing while addressing the lack of evidence
that Dr. Barnes’s rebleed theory was consistent with Dylan’s injuries.
¶ 108 Next, defendant argues the trial court conflated Dr. Leestma’s testimony regarding
separate medical findings. Specifically, defendant argues the trial court misunderstood Dr.
Leestma to testify that Dylan’s eye hemorrhages may have been caused by a sixth nerve palsy,
then erroneously concluded that testimony was directly contradicted by the ophthalmologist.
On appeal, defendant argues Dr. Leestma did not testify that sixth nerve palsy caused or could
have caused Dylan’s retinal hemorrhages. Defendant argues Dr. Leestma did testify as to “the
medical/scientific mechanism of retinal hemorrhages.” The trial judge found “I do not find that
the retinal hemorrhages caused in [Dylan’s] eyes could have been caused by that sixth nerve
palsy condition based upon the extent of those retinal hemorrhages that were testified to by the
ophthalmologist.”
¶ 109 We find no mistake in the trial court’s decision-making process. Defendant points out on
appeal that Dr. Leestma testified that photographs of Dylan indicated the possibility of sixth
nerve palsy “caused by intracranial pressure.” Defendant asserts to this court that the
“significance of the evidence of sixth nerve palsy in the photos was because it supports the
finding of increased intracranial pressure in Dylan’s head.” However, the significance of
increased intracranial pressure in Dylan’s head for purposes of the defense is, in part, that it
could explain Dylan’s retinal hemorrhages. Even if Dr. Leestma did not testify that sixth nerve
palsy caused Dylan’s retinal hemorrhages, he did testify that retinal hemorrhaging is caused by
an increase in intracranial pressure, which causes blood entering the vessels in the retina to
become trapped and eventually causes the vessels in the retina to bleed, and that sixth nerve
palsy indicates increased intracranial pressure; therefore, we reject defendant’s argument that
one finding has nothing to do with the other. The trial court’s statement does not constitute
affirmative evidence that it failed to consider “the crux” of defendant’s case or failed to
consider evidence when entering judgment. Cf. Williams, 2013 IL App (1st) 111116, ¶ 89.
Instead, we agree with the State that the trial judge’s findings indicate it considered and
- 27 -
rejected the defense theory that increased intracranial pressure caused Dylan’s retinal
hemorrhages due to a lack of evidence to support it in this particular case.
¶ 110 Finally, defendant argues the trial court misstated the evidence for rickets when the trial
judge stated that there was no evidence that Dylan’s mother had a calcium deficiency, where
no one claimed that she did. Defendant also argues that including the issue of rickets in the
assessment of guilt was improper where defendant “is not connected in any way to any past
abuse that could have caused rib fractures.” The parties assume, as do we from the trial judge’s
additional comments on the subject,4 that the trial judge was actually referring to Jeanette’s
vitamin D levels. On appeal, defendant argues this misstatement denied him a fair trial because
testing the mother’s vitamin D “is one of the easy, simple tests that you would do to rule out
rickets and it was never done by the prosecution witnesses *** again highlighting the failure to
follow the ‘diagnosis of exclusion’ that is central to the prosecution’s theory of guilt.” The
parties dispute whether Jeanette’s vitamin D level, taken after Dylan suffered his injuries, is in
evidence before the court. Although Dr. Glick read a report of that test and testified it indicated
vitamin D deficiency, and defendant’s expert opined Jeanette likely had the same vitamin D
level when defendant was born, the State argues that report was never admitted into evidence,
and defendant responds that none of the medical records were entered into evidence.
¶ 111 We have no need to resolve that dispute. It is clear that the crux of defendant’s complaint is
that the trial court erroneously rejected evidence of rickets as an alternative cause of some of
Dylan’s injuries because the trial court misapprehended the evidence surrounding rickets. That
position is affirmatively contradicted by the record, where the trial judge made additional
findings (other than the erroneous statement about Jeanette’s calcium levels) indicating her
understanding of the evidence and the defense argument, and rejecting it. The trial judge
stated: “I do have to consider that it’s possible that [Dylan] had rickets. When I do that, I have
to look at all the testimony I *** heard to substantiate or not substantiate whether or not he had
rickets.” The trial judge stated that when she looks at Dr. Barnes’s findings, she also has to
“consider the findings of the numerous doctors who personally examined [Dylan] and saw him
and reviewed his X-rays and provided their opinion.” The trial judge recounted in detail the
testimony of those doctors and concluded “[a]ll the evidence that I heard presented is to the
contrary with regards to how [Dylan] appeared upon his birth and to the pediatrician on all
visits as well as his growth during those visits, as well as the fact that the radiologist saw no
evidence of any type of abnormal bone density and it was not supported by any blood test. I do
not find any evidence that [Dylan] had rickets that is supported.” We find that the trial judge
accurately considered all of the evidence in reaching her verdict.
4
In its ruling the trial court stated: “There was some suggestion during the course of the trial that the
mother of [Dylan] had a calcium deficiency. I do have to comment on that because I find that that is not
supported by the evidence that the court received. It was only brought out as a hypothetical to the
doctor, Dr. Barnes, and I believe as to Dr. Glick, as to if that was the evidence would there be any
suggestion that it could be transmitted to the baby through a gestational rickets. But I heard no evidence
of the mother’s actual calcium deficiency at the time of [Dylan’s] birth. I heard nothing to support that
claim.” Defense counsel asked Dr. Glick if Jeanette would be considered vitamin D deficient based on
a test taken after Dylan sustained his injuries on December 19, 2009.
- 28 -
¶ 112 C. The Shifting of Burden of Proof
¶ 113 Next, defendant argues the burden of proof was shifted to him because the trial court
“found it significant” that the defense experts could not rule out nonaccidental injury.
Defendant argues that to comment that the defense failed to exclude nonaccidental injury
impermissibly shifts the burden to defendant to prove his innocence rather than for the State to
prove his guilt.
“Due process requires that the State bear the burden of proving beyond a reasonable
doubt all of the elements of the charged offense. [Citation.] That burden of proof
remains on the State throughout the entire trial and never shifts to the defendant.
[Citation.] The defendant is presumed innocent throughout the course of the trial and
does not have to prove his innocence, testify, or present any evidence. [Citations.]
The trial court is presumed to know the law regarding the burden of proof and to
apply it properly. [Citation.] That presumption, however, may be rebutted when the
record contains strong affirmative evidence to the contrary. [Citation.] In ruling upon
an allegation such as the one in the present case, the reviewing court must determine
whether the record contains strong affirmative evidence that the trial court incorrectly
allocated the burden of proof to the defendant. [Citation.] The trial court’s efforts to
test, support, or sustain the defense’s theories cannot be viewed as improperly diluting
the State’s burden of proof or improperly shifting that burden to the defendant.
[Citation.] The trial court is free to comment on the implausibility of the defense’s
theories, as long as it is clear from the record that the trial court applied the proper
burden of proof in finding the defendant guilty. [Citation.]” People v. Cameron, 2012
IL App (3d) 110020, ¶¶ 27-28.
¶ 114 The trial court’s comments that the defense experts failed to rule out nonaccidental injury
are not strong affirmative evidence that the trial court incorrectly allocated the burden of proof
to defendant. The trial court’s statements merely demonstrate its careful weighing of the
evidence. The trial court noted Dr. Barnes could not rule out nonaccidental trauma when
discussing rickets. The court explained its reasons for rejecting Dr. Barnes’s conclusion Dylan
had rickets, giving more weight to the testimony of the doctors “who personally examined
[Dylan] and saw him and reviewed his X-rays.” The trial court also noted that Dr. Barnes could
not rule out nonaccidental trauma when discussing the possibility of a rebleed. The trial court
found Dr. Barnes’s testimony in that regard undermined by the extent of the retinal
hemorrhages, which Dr. Barnes failed to address with his rebleed theory. Similarly, the trial
judge noted, “in addition” to her primary findings that Dr. Leestma could not rule out
nonaccidental trauma, that her decision was based on finding that Dylan’s retinal hemorrhages
could not have resulted from the increased intracranial pressure Dr. Leestma described (which
she mistakenly called the “sixth nerve palsy condition”). We find that the record is clear that
the trial judge commented on the defense theories and evidence but knew and properly applied
the burden of proof.
¶ 115 D. The Sufficiency of the Evidence
¶ 116 Defendant argues the State failed to meet its burden of proof because the State’s evidence
fell “far short of the reasonable degree of medical certainty necessary to sustain a conviction
beyond a reasonable doubt.” Defendant argues there is a lack of medical certainty because the
State’s experts failed to exclude other possible causes for Dylan’s symptoms. Defendant
- 29 -
argues evidence of his guilt comes “solely from the diagnosis of Shaken Baby Syndrome
(SBS)”; however, he argues, the “constellation of findings” in Dylan is insufficient to diagnose
SBS because natural causes or causes not related to defendant were not excluded as causes of
Dylan’s condition, and Dylan’s healing rib fractures are irrelevant “in the absence of any
evidence that [defendant] was responsible for past abuse.” Specifically as to other causes,
defendant argues Dylan’s brain edema is “most consistent with a global lack of oxygen or
blood flow” indicating the need to look for causes other than trauma focusing on why the baby
stopped breathing; nontraumatic causes of intraparenchymal hemorrhages were never
excluded; and rickets has not been excluded because the necessary testing was not
done—which is also indicative of “the failure of the medical professionals to conduct the
‘diagnosis of exclusion’ that is central to the prosecution’s case.”
¶ 117 Defendant’s factual contention that the State’s experts failed to exclude other causes is
contradicted by the record. The State’s experts did testify that other possible causes of Dylan’s
symptoms were excluded. Dr. Kampanatkosol testified Dylan was tested for a clotting disorder
or a bleeding disorder and there were no indications of either. There was no indication Dylan
had an infection or a metabolic disorder. Dr. Kampanatkosol testified there was no indication
of a hydrocephalus, which is “abnormal fluid collection within the brain.” He also testified
there was no indication the bleeding in Dylan’s brain was due to birth trauma because “if you
see bleeding within the brain due to birth trauma, that would happen within a couple days of
birth, not two months of age.” There was no evidence of rickets. Dr. Kampanatkosol explained
that with rickets, “typically, you see elevated alkaline phosphatase levels and we didn’t see that
in this baby.”
¶ 118 Dr. Polavarapu testified as to the results of the testing that was ordered. They received the
white blood cell count to determine if that was elevated due to some sort of infection, or if there
was anemia or blood loss, and what the platelet count—or clotting factors—were. Dr.
Polavarapu testified those were all within normal. He also stated they did coagulation profile
studies, which would tell them if there was some sort of bleeding disorder, and those were
normal as well. They tested electrolytes and calcium, phosphorus, and magnesium levels, and
they were all normal. Dr. Polavarapu testified Dylan’s mother requested vitamin C testing,
which was done, and the results were normal. He also testified they were able to rule out other
disorders. There was no indication Dylan’s injuries resulted from a clotting disorder, a
bleeding disorder, infection, or a metabolic disorder. There was no indication Dylan’s injuries
resulted from a nontraumatic Cesarean birth or any sign of a benign external hydrocephalus.
There were no signs of rickets. Dr. Polavarapu testified Dylan was tested “partially” for
vitamin D deficiency, explaining that certain lab levels would tell them to follow up and do a
more in-depth study for vitamin D deficiency. Those initial lab levels are calcium, phosphorus,
and alkaline phosphatase, and whether a skeletal survey showed signs of vitamin D deficiency.
All of the initial labs were within normal range, and the skeletal survey did not show signs of
vitamin D deficiency. Dr. Polavarapu clarified that additional testing for rickets was not
necessary because of the history and the way Dylan presented with the labs that were done. He
did testify, however, that if trying to rule out metabolic bone disease, a parathyroid hormone
test is one of the things you would do, and an MRI was not performed, nor was a CT venogram
or an MR venogram. He testified he knew Dylan’s birth was nontraumatic because the
residents did not get a history from the mother that the birth was traumatic.
- 30 -
¶ 119 On redirect examination, Dr. Polavarapu testified there was no indication this was a viral
infection or that Dylan’s condition was caused by bronchiolitis. He stated he did not find it
necessary to order a CT venogram or an MR venogram, which are more sensitive exams,
because that would be ordered if the brain bleed was “within the ventricles or certain areas of
the brain that the neurosurgeons and neurologists feel that could be caused by some sort of
venous malformation or arterial malformation” or if the brain bleed is “not consistent with the
history.” There was no evidence of vomiting upon Dylan’s admission to the hospital. Dr.
Polavarapu never learned of any trauma to the mother during the C-section when he was
treating Dylan. He only ordered the vitamin C test because Dylan’s mother requested it after
doing research on the Internet. Dr. Polavarapu would not have ordered the test otherwise
because there was no indication that there was any vitamin C deficiency, and the history and
presentation did not lead them in that direction. However on recross-examination, Dr.
Polavarapu agreed with the statement that “[o]ne of the reasons [he] didn’t do any more testing
is because the history and presentation [he] had was consistent with Shaken Baby Syndrome”
and he agreed with defense counsel that if Dylan exhibited bruising on the head when he was
delivered, that would indicate “some birth trauma to the head.” The State later elicited
testimony that numerous doctors from all of the different fields in the hospital aided in the
diagnosis and they all agreed with it.
¶ 120 Dr. Ramilo testified Dylan’s injury did not appear to be any type of bone deformity. He
testified the injury in Dylan’s tibia could not have been caused by neonatal or gestational
rickets. Dylan’s bone density appeared normal. Dr. Ramilo testified that with rickets, the most
common areas for this type of injury are in the area of the knee, wrist, and in the area of the
ankle. Injuries with rickets are usually symmetric. Dr. Ramilo opined that Dylan’s ultrasound
taken before the pyloric stenosis surgery was “a normal study.” He also stated that a thickening
in Dylan’s lung was in the normal range and Dylan did not have rickets. He did not believe
Dylan had bronchiolitis, but instead the images from December 16 (from which a different
doctor opined Dylan had bronchiolitis) could indicate that he could have aspirated, meaning
something went down into his lungs, or could indicate normal collapse from lying down.
Aspiration could cause one to stop breathing. It did not appear to Dr. Ramilo that Dylan’s brain
bleeds were from birth.
¶ 121 Dr. Khammar testified he did not believe CPR could bring on this extent of hemorrhaging,
nor could a Cesarean delivery that was nontraumatic. Dr. Homsi testified that choking on
vomit would not cause bilateral retinal hemorrhaging. Dr. Homsi stated it would not be
common to see such massive bilateral retinal hemorrhages from a baby that had a C-section
10½ weeks ago.
¶ 122 Dr. Glick reviewed Dylan’s spinal tap taken when he was transported to Palos by
ambulance on December 19. The fluid was very bloody. Dr. Glick testified that Dylan was
mildly anemic, the platelets were normal, and the white blood cell count (which is used to look
for infection) was also normal at the time of the spinal tap. At that point, there was no
laboratory evidence of any bleeding problems. Dr. Glick also testified “there was no real
indication of an acute large hemorrhage anywhere either.” Based on testing for sodium,
potassium, chloride, dehydration, and “alk phosphatase,” Dr. Glick “did not have any concerns
about any metabolic bone disease.” She added that with regard to Dylan’s fractures, “he also
had normal calcium levels.” Dr. Glick testified it was not possible Dylan had rickets because
he was full term and calcium and mineral deposits to the baby are highest in the third trimester;
- 31 -
rickets is not seen in babies who are formula-fed; and rickets is seen in third-world countries
where there is severe malnourishment. She also testified that congenital rickets, a genetic
disease, is “extremely, extremely rare” and it is “blatantly obvious” when those babies are born
that their bones are abnormal at birth. Dr. Glick explained that even with a vitamin D-deficient
mother, the placenta will take calcium out of her bones and deposit it in the baby. “So
regardless of the vitamin D status, if she is replete in calcium, then the baby gets plenty of
calcium even if she’s deficient.” Dr. Glick testified that you can get a “six nerve palsy” from a
cranial nerve impingement that results from increased intracranial pressure. She noted Dylan
did not have a history of eye palsy and he was examined by doctors on December 13 and 19.
On redirect examination, Dr. Glick testified that rebleeding could be a part of the acute
bleeding discovered in Dylan on December 19, 2009, but “it doesn’t explain the whole picture
of why he was so catastrophically ill.”
¶ 123 Given the State’s experts’ testimony as to the bases for their opinions, including the
exclusion of other causes of Dylan’s injuries, we reject defendant’s argument that the State’s
case is “devoid of support” and that there was a failure to perform the testing necessary to
determine what happened to Dylan. The State’s experts opined that the additional tests about
which defendant complains were not indicated by Dylan’s symptoms or initial test results.
Regardless, defendant’s argument goes to the strength of the State’s case, and the weight to be
assigned to an expert opinion is for the trier of fact to determine in light of the expert’s
credentials and the factual basis of the opinion. People v. Swart, 369 Ill. App. 3d 614, 633
(2006). The evidence can be found insufficient “only where the record evidence compels the
conclusion that no reasonable person could accept it beyond a reasonable doubt.” (Internal
quotation marks omitted.) Id. at 634-35. Defendant’s argument would require this court to find
that the record evidence compels a finding that no reasonable person could accept beyond a
reasonable doubt the State’s experts’ testimony that additional testing was not indicated in this
case. We find that the record evidence does not compel that finding.
¶ 124 Defendant argues that the evidence is “suspect” and that “the only competent medical
cause that is substantiated by the medical records is increased intracranial pressure from
chronic conditions that could advance and cause the symptoms that Dylan exhibited on
December 19, 2009.” Defendant also argues there was no explanation of how to differentiate a
cessation of breathing caused by shaking from all other causes, there is no support for Dr.
Glick’s testimony that Dylan had new subarachnoid bleeding or axonal injury, and
multilayered extensive retinal hemorrhaging is not diagnostic of SBS. On appeal, defendant
speculates Dylan’s appearance with his pediatrician on the morning of December 19 was
misinterpreted as improvement when in reality the symptoms from his increased intracranial
pressure from his chronic subdural hematomas were progressing from crying to lethargy,
“signaling a possible imminent collapse.” Although there was testimony as to the progression
of symptoms from intracranial pressure, defendant cites no evidence to support the conclusion
of “imminent collapse.” We reject defendant’s other arguments as an improper attempt to have
this court retry this case on appeal.
“[T]he trier of fact is not required to disregard inferences which flow normally from the
evidence and to search out all possible explanations consistent with innocence and
raise them to a level of reasonable doubt. [Citation.] *** Accordingly, this court is not
required to search out all possible explanations consistent with innocence ***. On the
contrary, we must ask, after considering all of the evidence in the light most favorable
- 32 -
to the prosecution, whether the record evidence could reasonably support a finding of
guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) People v.
Wheeler, 226 Ill. 2d 92, 117-18 (2007).
¶ 125 Defendant complains that the State’s experts relied on evidence of healed or healing
fractures to support their opinions. As noted above, defendant argued there was no evidence
defendant was involved in prior abuse of Dylan; therefore, the healing rib fractures are
irrelevant to the question of whether defendant shook Dylan on December 19. We disagree. A
reasonable trier of fact could infer that Dylan was shaken on a prior occasion and that
defendant shook him. “[T]he trier of fact need not *** be satisfied beyond a reasonable doubt
as to each link in the chain of circumstances.” (Internal quotation marks omitted.) Id. at 117.
Further, defendant specifically wrote: “The prosecution claimed that Dylan’s skeletal findings
were indicative of inflicted fractures from past abuse. The defense asserted that these same
findings were indicative of rickets.” Defendant then proceeded to summarize the competing
testimony. The finder of fact believed the prosecution. Stating the witnesses disagreed does not
establish the improbability of one witness’s testimony, or the unsatisfactory nature of
another’s; it states the reason for having a trial.
¶ 126 Defendant also argues the State failed to prove beyond a reasonable doubt that Dylan’s
injury “could only have occurred during the short window of time [defendant] was alone with
his children.” Dr. Glick opined that Dylan suffered an episode of shaking after he saw his
doctor on the morning of December 19. When asked what her opinion was based on, Dr. Glick
testified as follows:
“The opinion is based upon how severe traumatic brain injury presents. Dylan had
severe traumatic brain injury when he presented on the 19th. When you have severe
brain injury like that you have immediate symptoms.
This was extreme brain injury. I mean, Dylan, when he presented, he had a
Glasgow Coma Scale of 3, which is compatible with death. And this was acute onset.
He was seen by a doctor as well that morning. *** He was medically well that
morning.”
¶ 127 Dr. Glick’s testimony was positive and credible. “It remains the firm holding of this court
that the testimony of a single witness, if positive and credible, is sufficient to convict ***.”
People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). We also find Dr. Glick did not base her
testimony on a “constellation of injuries.” “In Yohan K., this court held that ‘relying on a
“constellation” theory when there is no preponderance of evidence proving abusive causation
as to each separate injury is akin to relieving the State of its burden of proof.’ [Citation.]” In re
Audrey B., 2015 IL App (1st) 142909, ¶ 34 (quoting In re Yohan K., 2013 IL App (1st) 123472,
¶ 113). In Audrey B., the respondent argued that a finding of abuse and neglect was against the
manifest weight of the evidence where the trial court relied on an expert’s testimony and that
expert’s opinion was based on a “constellation of injuries.” Id. ¶ 33. This court found the
expert had not relied on a “constellation of injuries” because she did not opine the child’s
injuries resulted from abuse because a nonabusive cause could not explain all of the injuries,
nor did the expert ignore a nonabusive cause for one injury because the nonabusive cause could
not explain other injuries. Id. ¶ 38. We found the expert did not base her opinion entirely on the
existence of multiple injuries but on the unusual nature of the injuries and the absence of a
reported incident to which the injuries could be attributed. Id. ¶ 37.
- 33 -
¶ 128 In this case, when defense counsel asked if SBS was characterized by a triad of symptoms
(because the animal studies that produced brain injury had failed to produce retinal
hemorrhaging—a statement with which Dr. Glick did not disagree), Dr. Glick again disagreed,
stating that “is a legal definition.” Defense counsel asked Dr. Glick what the physical
manifestations of SBS were. She testified: “it’s not just physical.” Dr. Glick continued:
“We diagnose in medicine. A diagnosis is made. Review of history. We look at
complaints, past medical history, clinical examination, physical findings. And then at
that point subsequent tests and laboratory. A differential diagnosis is made, and then a
diagnosis is made. We rule out.”
¶ 129 Defense counsel asked again what are the physical manifestations of SBS, and Dr. Glick
replied “[t]he clinical manifestations to provoke a diagnosis. *** It provokes a diagnosis which
needs to be substantiated.” Dr. Glick further stated:
“But if we have a child that has brain injury manifested clinically by brain
dysfunction, a child who has intrahemispheric bleeding, the child has parenchymal
injury that we see on MRI or clinically, a diffuse axonal injury, we see cerebral edema,
an absence of any other manifestation to explain those findings, plus extensive
multilayered retinal hemorrhaging now takes you [sic] brain injury plus the retinal
findings and skeletal trauma; we now have abusive injuries.
***
Again, it’s a very complicated involved process, but in the literature and clinical
experience and personal experience in terms of people confessing to me of shaking
children, I have to tell you it’s not done down to a triad.”
¶ 130 We find that in this case the State’s experts did not rely on Dylan’s constellation of injuries
for any opinions that he was shaken. Most illustrative is the testimony of Dr. Glick, who relied
on the extent and unusual nature of Dylan’s injuries, the history of acute onset, and the fact
other causes for those individual injuries were eliminated from the differential diagnosis.
There is nothing in any of the testimony to suggest that the opinions that Dylan suffered
inflicted trauma were based on the inability of a single alternative cause to explain all of
Dylan’s symptoms. Cf. Yohan K., 2013 IL App (1st) 123472, ¶ 147 (“the trial court erred in
disregarding the parents’ medical experts’ diagnoses because a single, uniform medical
condition could not explain every medical finding Yohan presented”). This case is further
distinguishable from Yohan K. This court wrote in Yohan K. that “[t]he trial court erred by
relying on the proponents’ ‘constellation of injuries’ theory to issue a judicial finding of child
abuse in the absence of any evidence of an abusive action by either of the children’s only
caretakers and a lack of evidence proving abusive causation as to each separate injury,
particularly in light of the substantial evidence that Yohan had a preexisting medical condition
known to mimic the signs of abuse.” Id. ¶ 156. Not only did the State’s experts not rely on a
“constellation of injuries” theory, the State elicited evidence of abusive causation as to each
separate injury and offered evidence to refute that Dylan suffered from any preexisting medical
conditions that could explain those injuries. The State elicited evidence Dylan did not have a
traumatic birth, and regardless, birth trauma would have resolved before December 19;
rebleeding would not explain his injuries; he did not have rickets; and the State’s experts
opined that both the bleeding in Dylan’s brain and the retinal hemorrhaging were caused by
inflicted trauma. The trier of fact was not required to accept defendant’s evidence of alternative
causes of Dylan’s symptoms. The evidence was sufficient to prove defendant’s guilt beyond a
- 34 -
reasonable doubt.
¶ 131 CONCLUSION
¶ 132 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 133 Affirmed.
- 35 -