In the Interest of: M.M.-A., a Minor

J-S68013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.M.-A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: LACKAWANNA COUNTY :
CHILDREN AND YOUTH :
:
:
: No. 928 MDA 2017
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): CP-35-DP-0000154-2016
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 01, 2017
The Lackawanna County Office of Youth and Family Services (“Agency”)
appeals from the order, entered in the Court of Common Pleas of Lackawanna
County, denying a finding of child abuse and ordering bone density and genetic
testing of the minor, M.M.-A. (“Child”). Upon careful review, we affirm.
On November 12, 2016, Child, then three months old, was taken by her
parents to Moses Taylor Hospital for treatment of a possible cold. During
treatment, hospital staff discovered that Child had multiple rib fractures,1 for
which her parents, V.A. and A.M. (collectively, “Parents”) had no explanation.
Child and her sister – who did not present with any injuries – were taken into
protective custody based upon Child’s unexplained injuries.
____________________________________________
1 It was ultimately determined that Child had approximately 38 rib fractures.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On November 15, 2016, the Agency filed a petition seeking a finding of
dependency of Child and also seeking a finding of child abuse against Parents
pursuant to the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-6386
(the “Act”). After a multi-day adjudication hearing, on May 10, 2017, the trial
court issued findings of fact and conclusions of law, as well as an order
adjudicating Child to be dependent pursuant to 42 Pa.C.S.A. § 6302, based
on evidence that Child suffered 38 rib fractures while in Parents’ care and
control, as well as the fact that Child had been diagnosed with failure to thrive.
The court declined, however, to issue a finding that Child was a victim of
abuse. The court also ordered further health evaluations in the form of testing
for genetic disorders and/or bone deficiency disorders.
On June 7, 2017, the Agency filed a notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2). The Agency raises the following claims for our review:
1. Whether the [t]rial [j]udge erred . . . and/or abused her
discretion by not determining credibility of witnesses, including
expert witnesses and resolving conflicts in the testimony?
2. Whether the trial judge erred and/or abused her discretion by
not making a finding of child abuse against the parents.
3. Whether the trial judge erred and/or abused her discretion in
reviewing the medical testimony by admitting novel medical
testimony from Doctors Holick, Hyman and Gootnick in
violation of the Frye[2] standard, and by accepting Dr.
____________________________________________
2 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) (holding novel scientific evidence
admissible if methodology underlying evidence has general acceptance in
relevant scientific community).
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Gootnick as a pediatric radiology expert despite a lack of
qualifications or training in said specialty[?]
4. Whether the trial judge erred and/or abused her discretion by
finding that pediatrician Dr. Burke had diagnosed the child as
fail[ing] to thrive (finding of fact #167) which is not supported
by the evidence; and further erred and disregarded test results
showing no evidence that the child had OI (osteogenesis
imperfecta) and had normal Vitamin D levels, by ordering
genetic testing, bone density disorders testing and [that the
Agency] follow any and all recommendations when the experts
agree [Ehlers-Danlos Syndrome] has no test to identify it, and
no metabolic disease or genetic disorders of the child have
been diagnosed by treating physicians[?]
Brief of Appellant, at 8.
The Agency first asserts that the trial court erred and/or abused its
discretion by failing to make determinations as to the credibility of witnesses,
including expert witnesses, and failing to resolve conflicts in the testimony.
This claim is meritless.
In this case, four different experts testified regarding the cause of Child’s
fractures. One of those experts, Kent Hymel, M.D., testifying on behalf of the
Agency as an expert in child abuse pediatrics and pediatrics, concluded that
the injuries were the result of child abuse. The other three experts concluded
that Child’s injuries had clinical explanations and were not caused by abuse.
Susan Gootnick, M.D., an expert in pediatric radiology, testified that she was
certain that Child’s fractures were caused by rickets and that there was no
evidence of non-accidental trauma. Charles Hyman, M.D., an expert in child
abuse, testified that Child suffered from bone fragility and that rickets was a
possible contributing factor. Doctor Hyman further testified that there were
“absolutely no objective criteria that there was abuse.” N.T. Hearing, 7/5/17,
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at 68. Finally, Michael Holick, M.D., Ph.D., testified as an expert in
endocrinology, metabolism and nutrition, calcium, collagen disorders,
metabolic bone disease, and Vitamin D deficiencies. Doctor Holick diagnosed
both of Child’s parents with EDS, hypermobility type 3. As a result, Dr. Holick
determined that Child had a 75% chance of also suffering from that genetic
disorder, which would place her at higher risk of bone fracture.
In its opinion, the trial court stated that it “considered the direct and
circumstantial evidence and expert medical opinions” presented by the
Agency. However, the court ultimately found more compelling the testimony
of the three other experts who each concluded, to a reasonable degree of
medical certainty, that Child’s injuries were not the result of non-accidental
trauma. In making this determination, the court factored in other evidence,
including that Parents regularly took Child for medical visits to both her
pediatrician and specialists and that Child’s physician, a mandatory reporter,
never made any reports of child abuse. See Trial Court Opinion, 5/7/17, at
5-6. In sum, it is apparent that the trial court weighed the evidence before
it, resolved any conflicts in testimony to the best of its ability based on the
totality of the evidence presented, and concluded that the Agency failed to
establish by clear and convincing evidence that Parents had abused Child. We
can discern no abuse of discretion.
The Agency next claims that the trial court erred and/or abused its
discretion by failing to make a finding of child abuse against Parents. The
Agency asserts that it presented clear and convincing evidence that Parents
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were reckless with respect to Child’s torn frenulum as well as her fractured
ribs and, as a result, the court should have made a finding of abuse under
section 6303(b.1) of the Act. This claim is meritless.
We begin by noting our standard and scope of review in dependency
cases:
The standard of review which this Court employs in cases of
dependency is broad. However, the scope of review is limited in
a fundamental manner by our inability to nullify the fact-finding of
the lower court. We accord great weight to this function of the
hearing judge because he is in the position to observe and rule
upon the credibility of the witnesses and the parties who appear
before him. Relying upon his unique posture, we will not overrule
his findings if they are supported by competent evidence.
Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997), quoting In re R.R.,
686 A.2d 1316, 1317 (Pa. Super. 1996) (citations omitted).
Child abuse is defined under section 6303 of the Act, in relevant part,
as follows:
(b.1) Child abuse.--The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
(1) Causing bodily injury to a child through any recent act
or failure to act.
...
(5) Creating a reasonable likelihood of bodily injury to a
child through any recent act or failure to act.
23 Pa.C.S.A. § 6303(b.1). A finding of abuse must be supported by clear and
convincing evidence. In Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.
Super. 1993).
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Here, the Agency asserts that it met its burden of establishing Parents’
recklessness in causing damage to Child’s frenulum and her rib fractures. With
respect to the torn frenulum, the Agency cites the testimony of Dr. Hymel that
Child could not have caused the injury to herself and the injury could have
been caused by a bottle being forced in Child’s mouth. The Agency asserts
that Dr. Hyman’s testimony, that frenulum injuries in children are very
common, was “not specific enough to be convincing.” Brief of Appellant, at
14. As to Child’s rib fractures, the Agency cites Parents’ claim that they did
not know how the injuries occurred and the testimony of Dr. Hymel, who
excluded metabolic bone disease as a potential cause and, instead, “gave a
solid opinion with a reasonable degree of medical certainty of physical abuse.”
Id. at 16. Based on this evidence, the Agency claims that it established that
Parents acted recklessly and that the court erred in failing to make a finding
of child abuse as defined in section 6303(b.1) of the Act.
In presenting this claim, the Agency is essentially asking this Court to
reweigh the evidence in its favor. That, however, is not our role. Rather, we
must defer to the trial court, who sees and hears the witnesses, can determine
their credibility and, ultimately, renders a decision informed by the court’s
own observations and its longitudinal understanding of the case. So long as
the court’s conclusions are supported by the record, we are in no position to
disturb its decision. Matter of C.R.S., supra.
Although Dr. Hymel opined that Child’s injuries were the result of abuse,
the trial court heard from multiple other witnesses, both fact and expert, who
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concluded otherwise. Child’s own pediatrician, Christine Burke, M.D., testified
that she never suspected that Child’s torn frenulum was non-accidental.
Rather, based on the large size of the nipple on Child’s bottle, Dr. Burke
concluded that the tear likely came from pressure exerted by the nipple.
Doctor Hyman also testified that torn frenula are “very common” in children
and can be caused by bottles or pacifiers. N.T. Hearing, 5/3/17, at 52. He
concluded that Child’s torn frenulum was “absolutely” not caused by abuse.
Id. at 56. Similarly, with regard to the rib fractures, three experts testified
as to their belief that the fractures were caused not by non-accidental trauma,
but rather by bone fragility.
It was within the province of the trial court to evaluate and weigh the
conflicting testimony and arrive at a finding based on its determination as to
the credibility of the witnesses. See Commonwealth v. Ratushny, 17 A.3d
1269, 1272 (Pa. Super. 2011) (“The weight to be accorded conflicting
evidence is exclusively for the fact finder, whose findings will not be disturbed
on appeal if they are supported by the record.”). Accordingly, we decline the
Agency’s invitation to reweigh the evidence. The trial court’s findings are
supported by the record and will not be disturbed.
Next, the Agency claims that the trial court erred in admitting novel
medical testimony from Drs. Holick, Hyman and Gootnick in violation of Frye.
The Agency also alleges that the court erred in admitting Dr. Gootnick as an
expert in pediatric radiology despite a lack of qualifications or training in that
specialty. The first claim is waived and the second is meritless.
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In determining whether novel scientific evidence is admissible in
criminal trials, Pennsylvania courts apply the test set forth in Frye
[]. See Commonwealth v. Topa, [] 369 A.2d 1277 ([Pa.] 1977)
(adopting the Frye test in Pennsylvania). Under Frye, novel
scientific evidence is admissible if the methodology that underlies
the evidence has general acceptance in the relevant scientific
community. See Grady v. Frito–Lay, Inc., [] 839 A.2d 1038,
1044–1045 ([Pa.] 2003). While the United States Supreme Court
has since found that the Frye test has been superseded by the
more permissive Federal Rules of Evidence, see Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [] (1993),
Pennsylvania courts are not bound by the Federal Rules of
Evidence, and continue to apply the Frye standard, see Grady,
[] 839 A.2d at 1044.
Commonwealth v. Einhorn, 911 A.2d 960, 974–75 (Pa. Super. 2006).
“Whether a witness is qualified to render opinions and whether his testimony
passes the Frye test are two distinct inquiries that must be raised and
developed separately by the parties, and ruled upon separately by the trial
courts.” Grady v. Frito-Lay, Inc., 839 A.2d at 1045–46.
While the Agency now claims that the testimony of Drs. Holick, Hyman
and Gootnick was inadmissible pursuant to Frye, it never filed a motion
seeking to preclude the doctors’ testimony on the basis of Frye, nor did the
Agency raise the issue at all at the time of hearing in this case. Generally,
“issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P., Rule 302(a). Because the Agency failed to
preserve this claim in the trial court, the issue is waived.
The Agency also claims that the trial court erred in admitting Dr.
Gootnick as an expert in pediatric radiology. This claim is premised solely on
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the fact that Dr. Gootnick is not a Board Certified pediatric radiologist. The
Agency is entitled to no relief.
The admission or exclusion of evidence, including the admission
of testimony from an expert witness, is within the sound discretion
of the trial court. We may only reverse upon a showing that the
trial court clearly abused its discretion or committed an error of
law. To constitute reversible error, an evidentiary ruling must not
only be erroneous, but also harmful or prejudicial to the
complaining party.
McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000)
(citation, ellipses and brackets omitted).
In Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995), our Supreme
Court held that a witness without a medical degree, who acted in the dual role
of mortician and county coroner, could give expert testimony as to time of
death. In doing so, the Court noted that
[i]t is well established in this Commonwealth that the standard for
qualification of an expert witness is a liberal one. The test to be
applied when qualifying an expert witness is whether the witness
has any reasonable pretension to specialized knowledge on the
subject under investigation. If he does, he may testify and the
weight to be given to such testimony is for the trier of fact to
determine.
Id. at 528.
Here, Dr. Gootnick testified that she holds a medical degree and has
been certified by the American Board of Radiology since 1977. She testified
that she participated in a three-month rotation in pediatric imaging during her
residency and reads pediatric radiological images on a daily basis as part of
her practice. She testified that, at the time of her residency, there was no
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fellowship in pediatric radiology and that she has “more experience than
somebody with a current pediatric [radiology] fellowship.” N.T. Hearing,
5/4/17, at 8.
Based on the foregoing, it is readily apparent that Dr. Goodnick
“possesses more knowledge than is otherwise within the ordinary range of
training, knowledge, intelligence or experience” in pediatric radiology.
McClain, 761 A.2d at 157, quoting Miller, 664 A.2d at 528. The fact that she
does not hold a board certification in the specialty is of no moment.
Accordingly, the trial court did not abuse its discretion in admitting Dr.
Gootnick as an expert in pediatric radiology.
Finally, the Agency claims that the trial court erred in making a finding
of fact that Dr. Burke, Child’s pediatrician, had diagnosed Child with failure to
thrive. The Agency further asserts that the court erred in ordering further
testing to determine if Child suffers from any genetic bone density disorders.
These claims are meritless.
We begin by noting that it is unclear as to how the Agency is aggrieved
by either of these alleged errors. Indeed, it would appear that the Agency
would look with favor upon the court’s finding that Child was diagnosed with
failure to thrive, as it was “[b]ased in part on Dr. Burke’s testimony that Minor
Child was diagnosed as failing to thrive . . . [that] this [c]ourt found that Minor
Child was without proper parental care or control.” Trial Court Opinion,
7/7/17, at 13. In any event, the Agency is incorrect that there is no support
for this finding. Specifically, Dr. Burke testified as follows:
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Q: In your treatment of [Child], was she ever treated as a baby
that was one labelled as failure [sic] to thrive?
A: Yes, but it was difficult to distinguish because she was having
so many mouth issues. I wasn’t sure if that was contributing to
her slow weight gain.
N.T. Hearing, 3/23/17, at 16.
Similarly, the Agency’s claim that the court erred in ordering genetic
testing is meritless. “In a dependency case, a hearing court is given broad
discretion in meeting the goal of entering a disposition ‘best suited to the
protection and physical, mental, and moral welfare of the child.’” In re S.M.,
614 A.2d 312, 315 (Pa. Super. 1992), quoting In re Lowry, 484 A.2d 383
(Pa. 1984). In her Rule 1925(a) opinion, the Honorable Julia Munley cogently
sets forth her rationale for ordering the tests of which the Agency complains.
See Trial Court Opinion, 7/7/17, at 13-15. Based on Judge Munley’s findings,
we can discern no abuse of discretion on her part in ordering that Child
undergo further testing to determine whether she suffers from any genetic
disorders that may have contributed to or caused the injuries that form the
basis for the adjudication of dependency. The parties are instructed to attach
Judge Munley’s opinion in the event of further proceedings in this matter.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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Circulat
: IN THE COURT OF COMMON PLEAS
OF LACKAWANNA COUNTY
IN RE: M. M. -A. JUVENILE DIVISION
CP-:35- DP -154 -2016
MUNLEY, JULIA, J. July 7, 2017
RULE 1925(a) OPINION IN SUPPORT OF ORDER DATED MA'-Y 0, zwi7
. >
The Lackawanna County Office of Youth and Family Services ("0.0AfileTa Pg.
seeking a finding of dependency of Minor Child.M. M. -A. (D.O.B. 081 /7614f-Iased one
allegations of physical abuse by Mother V A ("Mother") and Fattrei:h. !
.
("Father") and failure by Minor Child's parents to provide proper parental care or control. -
OYFS's Petition also sought a finding of child abuse against Mother and Fathtr pursuant to the
Child Protective Services Law, 23 Pa.C.S.A. § 6301 et ceq, ("CPSL")
A sheltercare hearing was held on November 14, 2016. The adjudication hearing was
held on March 23, 24; April 11; and May 3, 4, 2017.
Having weighed and considered the relevant evidence and testimony in this matter, this
Court entered an Order dated May 10, 2017 and also issued specific Findings of Fact and
Conclusions of Law. Sec Pa. Rule S. C. P. 1409 mt. (citing In re LaRue, 244 Pa. Super. 218,
366 A.2d 1271 (1976); In re Frank W.D., Jr., 315 Pa. Super. 510, 462 .A.2d 708 (1983); In re
Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976)). On May 10,2017, this Court granted
OYFS's petition in part, finding that Minor Child is a dependent child as defined by 42 Pa. C.S.
§ 6302 based on evidence that Minor Child sustained as many as thirty-eight rib fractures while
in Mother and Father's care and control, Prior to the discovery of the rib fractures, Minor Child
was also diagnosed as failing to thrive and Mother and Father missed at least two appointments
with Minor Child's pediatrician after a failure to thrive diagnosis was made. This Court denied
Page 1 of 16
OYES 's petition in regard to a finding of child abuse under the CPSL for the reasons set forth in
the Findings of Fact and Conclusions of Law and discussed below.
On June 7, 2017, OYFS filed a Notice of Appeal and a Concise Statement of Errors.
Although the reasons for this Court's May 10, 2017 Order appear of record in the
aforementioned Findings of Fact and Conclusions of Law, this Court, having the benefit of the
transcripts from the adjudication hearing, provides this brief Opinion pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a). The matters raised by OYFS on appeal are listed below
and addressed in turn.
The trial judge erred by and/or abused her discretion by not determining credibility of
witnesses, including expert witnesses and resolving conflicts in the testimony.
As trier of fact, this Court is the sole judge of the credibility of witnesses. See In re
Adoption of J.J. 511 Pa. 590, 594, 515 A.2d 883, 886 (1986). Conflicts in testimony are to be
resolved by this Court. Id.
In considering this matter, this Court heard witness testimony from several fact witnesses
and medical expert witnesses. As detailed in the Findings of Fact and Conclusions of Law, this
Court fully considered all of the relevant evidence and testimony and closely scrutinized the
medical experts' testimony and conclusions in light of the other facts in this case.
An evaluation of the credibility of witnesses can be found in the Court's Findings of Fact
and Conclusions of Law. This Court found all witnesses to be at least partially credible and
noted where witness testimony was less reliable or less weighty to the Court in light of the other
facts that emerged over the course of the hearing. See e.g. 1173, 88, 91-102 (discussing the
facts that weakened the credibility of OYFS expert Dr. Kent Hymel and eroded his conclusion
that child abuse occurred).
Page 2 of 16
Resolution of the conflicts in testimony can also be found in the
Court's Findings of E.trt
high number of fractures to
and Conclusions of Law. For example, Dr. Hymel relied on the
91-92. Defense expert
support his conclusion that there was child abuse. 03/24/2017 Trans. at
to support his conclusion that
Dr. Charles Hyman also relied on the high number of fractures
Trans. at 56-59. Where
Minor Child had a medical disorder causing bone fragility. 05/03/2017
Court resolved conflicting
the Medical experts disagreed regarding a finding of child abuse, this
to meet OYFS 's
testimony when it found that the testimony of Dr. Hymel was insufficient
and convincing evidence when
burden of proving child abuse against Mother and Father by clear
Dr Hyman, and Dr. Susan
contrasted with the testimony of defense experts Dr. Michael Holick,
Gootnick.
21 The trial judge erred and/or abused her discretion by not making a finding of child
abuse against the parents.
extensive expert
This Court had the opportunity to fully evaluate the evidence, including
Based on the totality of the
medical testimony, and to weigh the credibility of all witnesses.
Conclusions of Law, OYFS failed to
circumstances, as summarized in the Findings of Fact and
.
the victim of child abuse as defined
show by clear and convincing evidence that Minor Child was
by 23 Pa. C.S. § 6303(b.1), (c).
doing any of the
The term "child abuse" means intentionally, knowingly or recklessly
following:
(1) Causing bodily injury to a child through any recent act or
failure to act [...]
(5) Creating a reasonable likelihood of bodily injury to a child
through any recent act or failure to act [...]
23 Pa. C.S.A. § 6303 (b.1).
Page 3 of 16
tl.
or creates a risk of injury or harm to a
"Conduct that causes injury or harm to a child
is no evidence that the person acted
child shall not be considered child abuse if there
causing the injury or harm to the child or creating a
intentionally, knowingly or recklessly when
C.S.A. § 6303(c).
risk of injury or harm to the child." 23 Pa.
child abuse by the clear and convincing
OYFS must demonstrate the existence of
determinations. See In re L Z 631 Pa. 343,
evidence standard applicable to most dependency
and convincing evidence is defined "as testimony that
361, .111 A.3d 1164, 1174 (2015). Clear
as to enable the trier of fact to come to a clear
is so clear, direct, weighty and convincing
of the precise facts in issue." in re K.M. 53 A.3d 781,
conviction, without hesitance, of the truth
quotations omitted).
786 (Pa. Super.2012) (citations and internal
and convincing that Mother or Father
The evidence and testimony in this case is not clear
to cause Minor Child's injuries or to create a risk of
acted intentionally, knowingly, or recklessly
Pa.C.S.A. § 302(b)(1)-(3).
injury or harm to the child. See 18
the direct and circumstantial
In reaching the above conclusion, this Court considered
by OYFS in support of their petition. Dr.
evidence and expert medical opinions presented
have resulted from sudden and dangerous
Hymel opined that the rib fractures might
as a mechanism of injury. 03/24/2017 Trans.
at 82, 143.
compressions to the Minor Child's chest
that Mother, Father, or any other person actually made
However, there was no other evidence
chest. Rather, Dr. Holick, Dr. Hyman, and Dr. Gootnick
sudden compressions to Minor Child's
Minor Child's rib fractures within a reasonable
each provided non-abusive explanations for
degree of medical certainty.
Dr. Holick opined that Minor Child's rib
fractures were fragility fractures that could
occur at birth or with normal handling
of an infant, such as picking up the child or swaddling.
Page 4 of 16
04/10/2017 Trans. at 74-75. According to Dr. Hyman, Minor Child had a constellation of
factors that caused rib fractures, tom frenulum, and failur&to thrive that were not abuse.
05/03/2017 Trans. at 55-61. Dr Hyman opined that Minor Child had some type of bone fragility
and that the high number of healing or occult rib fractures supported his opinion. Id. at 56-59.
Dr. Hyman also indicated that non-abusive reasons for Minor Child's injuries were either
ignored or not objectively considered by Minor Child's treating physicians. Id. at 56, 68, 105-
106. Dr. Gootnick testified that she observed radiographic evidence of healing
rickets on Minor
Child's X-Ray films, called a rachitic rosary. 05/04/2017 Trans. at 18. She testified that the
rachific rosary is a pathognomonic sign, a characteristic unique to rickets. Id. at 22. Dr.
Gootnick opined within a reasonable degree of medical certainty that Minor Child had abnormal
bones based on her X-Ray findings and that there was no radiological evidence of non -accidental
observed on
trauma. Id. at 18-21, 27. Dr. Gootnick also suggested that some of the abnormalities
X-Ray as healing fractures were actually signs of rickets. Id. at 19-20.
Furthermore, two of the defense medical experts in this matter testified that considerable
bone density loss had to occur before it would be observable on an X -Ray. 04/11/2017 Trans. at
57 (Natick: 30-50% loss of bone density); 05/03/2017 Trans. at 70-71 (Hyman 20%-40% loss of
bone density). Dr. Hymel, on behalf of OYFS, could not completely rule out that Minor Child
had reduced bone density, See 03/24/2017 Trans. at 135-137, 175-177.
There was other evidence that this Court weighed before finding that Mother and Father
a risk of
did not intentionally, knowingly, or recklessly cause Minor Child's injuries or create
to medical
injury or harm to Minor Child. Minor Child was taken by Mother and Father
providers at least twelve times in three months, including her pediatrician
and to several
at 40.
specialists outside the Scranton area. 03/23/2017 Trans. at 44-45; 05/03/2017 Trans.
Page 5 of 16
Taylor Hospital by Mother and Father where the rib fractures
Minor Child was taken to Mcises
2016. Id. at 38-39, 53-54. Prior to
November 12, 2016,
were discovered on November 12,
specialists did not make any reports of child abuse for
Minor Child's pediatrician and heating
even though these physicians were mandated reporters. Id. at
torn frenulum or failure to thrive
Minor Child was not
119, 245. Additionally, OYFS's caseworker Lisa Herie testified that
110,
referral at Moses
when Herie responded to the initial
in any discomfort and was not crying
Minor Child was
the time Herie responded to the hospital,
Taylor Hospital. Id. at 54-56. At
did not present with any
Child's one-year-old sister I.M.-A.
restrained in a car seat. Id. Minor
Id. at 63.
injury when Minor Child M.M.-A.'s rib fractures were discovered.
signs of physical
it was not
consideration of all the evidence and testimony presented in this case,
After
abuse.
Mother and Father committed child
clear and convincing to this Court that
by
her discretion in reviewing the medical evidence
The trial judge erred and/or abused in
front Doctors Holick, Hyman, and Gootnick
admitting novel medical testimony radiology
violation of the Frye standard
and by accepting De: Gootnick as a pediatric
in said specialty.
expert despite a lack of training
was
of Dr. Holick, Dr. Hyman, and Dr. Gootnick
In this matter, the expert testimony
Rules of Evidence 702-705.
properly admitted pursuant to Pennsylvania
by knowledge, skill,
witness who is qualified as an expert
Rule 702(c) provides that "[a]
or otherwise if the
may testify in the form of an opinion
experience, training, or education
accepted in the relevant field."
The admission of expert
expert's methodology is generally
is an evidentiary matter for the trial court's discretion. Grady v. Frito-Lay
scientific testimony
a wide latitude for the
546, 559, 839 A.2d 1038, 1046 (2003). Rule 702 provides
Inc. 576 Pa.
600-01 (Pa. Super. 2006).
of expert testimony. See Long v. Mejia,896 A.2d 596,
admission
the admission of the medical testimony
of Dr.
In this appeal, OYES now challenges
States 293 F. 1013 (D.C. Cir.
Dr. Hyman, and Dr. Gootnick pursuant to Frye v. United
Holick,
Page 6 of 16
1923). On a preliminary note, OYFS did not move to exclude expert testimony prior to the
adjudication hearing. During the hearing, OYFS did not raise the issue of the admissibility of
testimony of any of the defense medical expert witnesses on the grounds of an issue with the
experts' methods. Although there were no objections by OYFS in regard to the defense experts'
methods during the hearing, this Court considered the expert opinions and admitted Mother and
Father's expert witness testimony pursuant to the above-cited Pennsylvania Rules of Evidence.
Under Frye the proponent of novel scientific evidence bears the burden of establishing
that the methodology used by the expert has gained general acceptance in the relevant field, but
not "that the scientific community has also generally accepted the expert's conclusion." Grady
576 Pa. at 558, 839 A.2d at 1045. As an exclusionary rule of evidence, Frye "must be construed
narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search
for truth." Trach v. Fellin 817 A.2d 1102, 1104- (Pa. Super. 2003) (en bane), app. denied, 577 Pa.
725, 847 A.2d 1288 (2004).
"[Ain expert witness need not cite to medical literature or medical treatises to support his
opinion." Catlin v Hamburg, 56 A.3d 914, 921 (Pa. Super. 2012)(citing Joyce v. Blvd. Phys.
Therapy & Rehab. Ctr., P.C. 694 A.2d 648, 656 (Pa.Super. 1997); Smith v. Grab 705 A.2d 894,
900 (Pa. Super. 1997)). However, at a minimum, "the proffered expert testimony must point to,
rely on or cite some scientific authority-whether facts, empirical studies, or the expert's own
research-that the expert has applied to the facts at hand and which supports the expert's ultimate
conclusion" Snizavich v. Rohm & Haas Co. 83 A.3d 191, 197 (Pa. Super. 2013). Expert
testimony as to a causal relationship may be admissible, even if based solely on the experts
review of medical records and his experience and expertise in the applicable medical field, when
the expert can point to some scientific authority that supports the causal connection. Id. Medical
Page 7 of 16
experiences in their fields of expertise in
witnesses may rely upon their individual professional
v. Moses Taylor Hospital, No. 11 -CV -
formulating opinions regarding medical matters. Page
1402, 2016 WL 2606520 *5 (Lacka. C.C.P.)(Nealon,
J.)(citations omitted).
a. Dr, Holick
F. Holick, Ph.D., M.D., a
Mother and Father presented the testimony of Michael
chief of endocrinology, and director of the
professor at Boston University Medical Center, prior
Program. 04/11/2017 Trans. at 23-25; Exh.
Ehlers-Danlos Syndrome ("EDS") Clinical Research
4. Dr. Holick testified that he is the director
of the bone health care clinic at Boston University
include Vitamin D, metabolic bone
Medical Center. Id. at 24. Dr. Holick's areas of research
over 500 times in these fields. Id. Dr.
disease, and collagen disorders and he has been published
nutrition, metabolism and collagen
Holick was thus admitted as an expert in endocrinology;
Id. at 31, 41.
disorders; metabolic bone disease; and vitamin D deficiency.
Dr. Holick diagnosed Mother and Father
Within a reasonable degree of medical certainty
physical examination of
with EDS hype ability type 3, based on a review of factors after his
used to diagnose Mother and Father with
both parents. Id. at 44 49. The factors Dr. Holick
findings and Mother and Father's
EDS hyperrnobility type 3 were based on Dr. Holick's clinical
diagnosis called a Beighton score to diagnose
self-reporting. Id. Dr. Holick used a method of
3. Id. at 45-48. At no time did OYES raise any
Mother and Father with EDS hyperraobility type
Mother and Father with EDS.
objections to the use of Beighton scoring to diagnose
Dr. Holick also opined within a reasonable degree
of medical certainty that because
that Minor Child has EDS, a 75% chance. Id. at
Mother and Father have EDS, it was very likely
simple mathematics because EDS is an
51-54. Dr. Holick reached that conclusion using
also testified that there is no genetic test to
autosomal dominant genetic disorder. Id. Dr. Holick
Page 8 of 16
type 3. Id. at 69. Given Dr. Holick's
determine whether a person has EDS hypermobility
methods, this Court admitted and
testimony and no challenge from OYES as to Dr. Holick's
in the medical and scientific community.
considered Dr. Holick's methods as generally accepted
had been properly raised and
Even if an objection to Dr. Holick's methodology
did not determine that Minor Child suffered from
considered at the hearing, this Court ultimately
multiple, bilateral rib fractures. Rather, this Court
EDS or that EDS was the specific cause of her
that non-abusive explanations for Minor Child's rib
found credible from Dr. Holick's testimony
out in this matter by the treating physician, Dr. Hymel
fractures existed and could not be ruled
b. Dr Hyman
of Charles Hyman, M D, who was
Mother and Father also presented the testimony
qualified by this Court as an expert in the
field of child abuse. At the hearing, OYES and the
Guardian ad Litem objected regarding Dr
-
Hyman's qualifications only specifically, his lack of
and that he had been precluded from testifying about
board certification in child abuse pediatrics
Dr. Hyman was not board-certified in child
bones in past cases. 05/03/17 Trans. at 27-28.
provide answers on the board-certification test that
abuse because, as he stated, he would have to
OYES and the Guardian ad Litem's objections were
he did not believe were accurate. Id. at 26.
as a child abuse expert based on his education,
overruled and Dr. Hyman was admitted
experience, research, and extensive review
of the medical records. Id.
Dr. Hyman's methodologies. "Whether
There was no objection at the hearing regarding
a witness is qualified to render opinions
and whether his testimony passes the Frye test are two
separately by the parties." Grady 576 Pa. at
distinct inquiries that must be raised and developed
Commw. v. Arroyo 555 Pa. 125, 723 A.2d 162,
558-59, 839 A.2d at 1045-46 (2003) (citing
170 (1999)).
Page 9 of 16
and has
testified that he is a board-certified pediatrician
As to qualifications, Dr. Hyman
8-9. Early in his medical
medicine for 50 years. 05/03117 Trans. at
been involved in pediatric
in newborn intensive care at
Pittsburgh
a two-year fellowship
career, Dr. Hyman completed
Hyman developed a
Id. at 5. After moving to Southern California, Dr.
Children's Hospital.
five
Hospital in 1976 and chaired that department for
Linda Children's
child abuse team at Loma
a member of the hospital faculty.
to maintaining a private practice and being
years in addition
in the child protection team at St. Bernadines Hospital,
was involved
Id. Thereafter, Dr. Hymel
5, 12-13, 18. Dr. Hymel
with Lorna Linda Children's Hospital. Id. at
while still affiliated
until about 2000. Id. at 6.
remained in private practice
years of his professional work on research and
Dr. Hyman has concentrated the last thirty
regarding child abuse is the professional
the predominant views
studies that are contrary to
and the
the views held by the American Academy of Pediatrics
medical community, including
advised he is a member of a loose
-
Id. at 19, 21-22. Dr. Hymel
Society of Pediatric Radiology.
injury." Id. at
"interested in sorting out the debate on infant
knit group of medical professionals
that disputes
that there is another segment of the medical community
7. Dr. Hyman explained
Dr.
called "the child abuse community." Id. at 22-23.
Dr. Hyman
the conclusions of what
areas of trauma,
are peer -reviewed studies and literature in the
Hyman testified that there
positions held
and bone science that challenges or refutes the
genetics, endocrine, biomechanics,
child
and the Society of Pediatric Radiologists regarding
of Pediatrics
by the American Academy
in approximately fifty-six
As part of his work, Dr. Hyman has testified
abuse. Id. at 21-22.
Hyman
general pediatrics and child abuse. Id. 12-13, 18. Dr
trials since 2002 in the
field of
this matter.
expert medical opinion regarding child abuse in
an
was thus qualified to render
Page 10 of 16
certainty, Dr. Hyman opined
thatthe injuries to
degree of medical
Within a reasonable
05/03/17 Trans. at 55-61. In
support of his
the result of child abuse.
Minor Child were not
abuse and that there were non
-abusive reasons for
were no objective signs of
opinion that there
records and his experience
injuries, Dr. Hyman cited his review of the medical
Minor Child's
is not novel.
to other research and studies. Id. This approach
along with citation
by OYFS and the Guardian
ad Litem during
were challenged
. Dr. Hyman's conclusions
Child met '
cross-examination, Dr. Hyman agreed that Minor
Under
the adjudication hearing.
by the American Academy of Pediatrics for suspicion of child abuse,
seven of nine factors listed
is no "gold standard" for a child abuse diagnosis. Id. at 79-84,
there
but testified that he believes
conclusions are generally
accepted, only that an
not prove that an expert's
116. A party need
Frye is not implicated
are generally accepted. See Grady supra. Moreover,
expert's methods
expert testimony
into the courtroom; rather, it applies only to proffered
every time science comes
was
Pa. at 557, 839 A.3d at 1045. As indicated above, there
Id., 576
involving novel science.
not used in a
methodology and Dr. Hyman's methods were
nothing novel about Dr. Hyman's
opinions were properly admitted.
novel way. Thus, Dr. Hyman's
c. Dr. Gootnick
radiologist. The qualifying
that Dr. Gootnick was admitted as a pediatric
OYFS objects
witness has any reasonable
to testify as an expert witness is whether the
test for a witness
Miller v. Brass Rail
specialized knowledge on the subject Under investigation.
pretension to
may testify and
664 A.2d 525, 528 (1995). If she does, she
Tavern, Inc., 541 Pa. 474, 480-81,
such testimony is for the trier of fact to determine. Id.
the weight to be given to
she graduated from the University of California, San
As to Dr. Gootnick's qualifications,
and residency in radiology. 05/04/2017
Medical School and completed an internship
Francisco
Page 11 of 16
was a resident,
no pediatric radiology fellowships when Dr. Gootnick
Trans. at 4. There were
her residency
but she did undergo a three-month rotation during
according to Dr. Gootnick,
imaging. Id. at 5, 7-8. Dr.
Gootnick has been board
reviewed pediatric
where she specifically
certified in the field of
Board of Radiology since 1977, but not board
certified by the American
radiology, Dr.
Id. at 4-5, 10. Although not board certified in pediatric
pediatric radiology.
every
has read and interpreted radiologic images of pediatrics patients
Gootnick testified that she
Id. at 5, 8-9. Of the pediatric
images that she
of her 42 year career.
workday over the course
she mostly reads the X -Rays
of newborns. Id. at 14. Based
testified that
reviews, Dr.-Gootnick
and extensive experience in
reviewing radiological
education, training,
on Dr. Gootnick's
expert in the field of
and children, the Court permitted her to testify as an
imaging of infants
to do so.
Id. at 16. Dr. Gootnick was clearly qualified
pediatric radiology.
pursuant to Frye. There was
nothing novel about Dr.
OYFS also challenges Dr. Gootnick
based on her
consisted of reviewing X-Rays and offering an opinion
Gootnick's methods, which
her qualifications. and her use
of generally accepted
experience. Given
education, training, and
was properly
her expert medical opinions, Dr. Gootnick's testimony
methods in reaching
702.
admitted pursuant to Rule
discretion by finding that the
pediatrician Dr.
abused her
The trial fudge erred and/or (finding ofFact #167) which is not
Burke had diagnosed the child' is failure to Indite test results showinggio
the evidence; and further erred and disregarded D
supported by
had 01' (oSteogenesis imperfecta) and had normal Vitamin
evidence that the child disorders testing and follow
disorders testing, bone density
levels, by ordering genetic the experts agree that
in the Adjudication Order when
any and all recommendations metabolic disease or
Syndrome] has no test to identifi, it, and no
EDS lEhlers-Danlos have been diagnosed by the
treating physicians.
genetic disorders of the child
a. Dr. Burke and the Failure to Thrive Diagnosis
at
of Christine Burke, M.D., Minor Child's pediatrician
OYFS offered the testimony
Minor Child from birth and
Center as a fact witness. Dr. Burke treated
Scranton Primary Health
Page 12 of 16
issues over her first three
months of life prior to
Child had several medical
testified that Minor
medical issue was a diagnosis
of failure
03/23/2017 Trans. at 199-219. One
OYFS involvement.
diagnosis and treatment
for failure to thrive as
testified to the
to thrive. Dr. Burke specifically
follows:
ever treated
Child M.M.-A.], was she
Q. In your treatment of [Minor
as failure to thrive?
as a baby that was one labelled
to distinguish because she
was having so
A. Yes, but it was difficult her slow
mouth issues. I wasn't sure if that was contributing to
many
weight gain.
' Id. at 212.
consulted with a pediatric
hospitalist in the
that she
Additionally, Dr. Burke explained
placement
Child's
Marks, regarding the failure to thrive, prior to Minor
Geisinger system, Dr.
that Minor Child was
As of December 7, 2016, Dr. Burke testified
216, 278.
with OYFS. Id. at
in part on Dr. Burke's
diagnosis of failure to thrive. Id. at 285. Based
still carrying the
to
diagnosed as failing to thrive and Mother and Father's failure
was
testimony that Minor Child
was without proper parental
care or
Court found that Minor Child
attend appointments, this
by the record.
Dr. Burke's diagnosis of failure to thrive is supported
control.
Syndrome
bnperfecta, Vitamin .D Levels, and Ehlers-Danlos
b. Osteogenesis
child, the Court may make
additional orders best
found to be a dependent
If the child is
42 Pa.
physical, mental, and moral welfare of the child. See
and
suited to the safety, protection
to remain with her
(providing that the Court may permit the child
C.S.A. § 6351(a)
Based on the evidence
custody subject to conditions and limitations).
parent/guardian or transfer
Order
hearing, this Court included a provision in the Adjudication
and testimony in the five-day
and for Minor
for genetic disorders and bone deficiency disorders
that Minor Child be evaluated
Page 13 of 16
pa.rents to follow any and all recommendations. See May
Child's foster parents / kinship foster
10, 2017 Order, 1112(b).
imperfecta
Child was found not to have osteogenesis
OYFS raises the issue that Minor
at Penn State Hershey Medical
Center, as
Vitamin D levels upon testing
and had normal
and no metabolic
Hymel. OYFS also argues that EDS has no test to identify it,
explained by Dr.
treating physicians.
child have been diagnosed by the
disease or genetic disorders of the
his credibility. See
Dr. Hymel's testimony and weighed
This Court carefully considered
Findings of Fact and Conclusions
of Law, May 10, 2017 Ti 60-104.
disorders and disease as a cause
of the
out genetic
Dr. Hymel testified that he ruled
03/24/2017
disease, rickets, and Vitamin D deficiency.
fractures, including metabolic. bone
found nothing
73-74. Dr. Hymel opined that Minor Child had normal bones and
Trans. at 66-68,
Id. at 66, 151, 184. Dr.
there was something wrong with Minor Child's bones.
to suggest that
Test, which was negative for osteogenesis
Ilymel ordered a Connective Tissue Genetics
at 77. However, the negative
test for osteogenesis imperfecta did
imperfecta for Minor Child. Id.
Dr. Hymel also
rule out the condition, according to Dr. Hymel. Id. at 182-184.
not completely
136.
not be visible radiologically. Id. at
testified that loss of bone density may
Id. at 74.
also testified that he excluded EDS as a diagnosis for Minor Child.
Dr. Hymel
other
stated he has not diagnosed EDS and would rely on geneticists and
However, Dr. Hymel
a patient with EDS.
EDS. Id. at.37, 44. Dr. Hymel did not recall ever having
experts regarding
Id. at 43.
and
the testimony of Dr. Holick, Dr. Hyman,
In contrast, Mother and Father presented
Hyman, Dr. Gootnick, and
This Court carefully considered the testimony of Dr.
Dr. Gootnick.
of Law, May 10,
weighed their credibility. See Findings of Fact and Conclusions
Dr. Holick and
Page 14 of 16
Minor Child had some type of bone fragility and that
2017 ¶j 105-151. Dr. Hyman opined that
his opinion. 05/03/17 Trans. at 56-57.
the high number of healing or.occult fractures supported
of rickets on Minor Child's radiological
Dr. Gootnick testified that she observed evidence
examined Mother and Father and diagnosed both
studies. 05104/2017 Trans. at 18. Dr. Holick
on a review of clinical factors. 04/11/2017 Trans. at
44-
with EDS hypermobility type 3, based
Child had a 75% chance of having EDS. Id. While
49, 5I-54. Dr. Hoick opined that Minor
EDS hypermobility type 3, Dr. Holick's
there may not be a specific genetic test to diagnose
may diagnosed through a history and physical
testimony identified one manner in which EDS
examination.
including the treating physicians, this
Given the testimony of all the medical experts,
to be more fully evaluated for the genetic
and
Court found it was warranted for Minor Child
extensively by the medical experts in this case.
bone density disorders that were discussed
of these medical diagnoses during his treatment of
OYFS's expert, Dr. Hymel, excluded several
testified
Dr. Hymel's testimony. Rather, Dr. Hymel
Minor Child. This Court did not disregard
for the diagnosis of EDS and that the current testing
for
that he would defer to other specialists
Mother
rule out that condition. Dr. Holick diagnosed
osteogenesis imperfecta does not totally
-3 based on clinical testing, not genetic
testing, and
and Father with EDS hypermobility type
of having the condition. Out of concern for Minor
opined that Minor Child had a 75% chance
found it warranted for further medical evaluations
Child's best interests and welfare, this Court
evidence and testimony provided to this Court during
to be ordered out based on the medical
these proceedings.
Page 15 of 16
Conclusion
For all the above reasons, this Court
granted OYFS's petition in part, finding that Minor
Child. M.M.-A. is a dependent child,
but denied OYFS's petition in regard to a
finding of child
abuse against Mother V - k and Father A Mc - Additionally, this Court
ordered further measures regarding medical
evaluations for Minor Child M.-M.A. that
were
appropriate and in her best interests.
BY THIS COURT:
/7.
HONO Nrs t JULIA K. MUM EY
cc: Written notice of the enhy of the foregoing
-1/4R e 1925(a) Opinion has been
each party pursuant to Pa. R Civ. P. 236
t'irt) and (d) by
provided to
transmitting time -stamped copies to:
Joseph Gardner Price, Esq.
Craig P. Kalinoski, Esq.
Leigh Redmond, Esq.
108 North Washington Ave.
Lackawanna County Office of Youth and
Suite 604
Family Services
Scranton, PA 18503
Interdepartmental Mail Attorney for Mother
Kevin O'Hara, Esq.
Edward Blodnick, Esq.
Guardian ad Litem
1325 Franklin Ave.
Interdepartmental Mail Suite 555
Garden City, NY 11530
Lori A. Barrett, Esq. Attorney for Mother -Pro Hac Vice
345 Wyoming Ave.
#1 George Gretz, Esq.
Scranton, PA 18503 304 N Washington Ave.
Attorney for Mother Scranton, PA 18503
Attorney for Father
Page 16 of 16