COMMONWEALTH OF KENTUCKY VS. MARTIN (RAYMOND)
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RENDERED: JUNE 13, 2008; 10:00 A.M.
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Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002236-MR
COMMONWEALTH OF KENTUCKY
v.
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 04-CR-00076
RAYMOND MARTIN
APPELLEE
AND:
NO. 2006-CA-002237-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 04-CR-00205
CHRISTOPHER A. DAVIS
OPINION
REVERSING AND REMANDING
APPELLEE
** ** ** ** **
BEFORE: THOMPSON, JUDGE; BUCKINGHAM AND HENRY, SENIOR
JUDGES.1
HENRY, SENIOR JUDGE: In these consolidated cases, the Commonwealth
appeals from orders of the Greenup Circuit Court entered on October 10, 2006. At
issue is whether the circuit court erred in ruling that expert medical testimony
about shaken baby syndrome was unreliable and therefore inadmissible under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). Because we have concluded that the circuit court abused its
discretion in excluding the testimony, we reverse and remand for further
proceedings.
Raymond Martin was indicted on May 27, 2004, for assault in the
second degree for intentionally injuring E.G., his three-month-old son, by
excessively shaking him. Christopher A. Davis was indicted on December 16,
2004, for criminal abuse in the first degree for severely shaking his four-month-old
son, A.D. In both cases, the infants displayed the symptoms of subdural
hematomas (pooling of blood in the membranes enclosing the brain) and bilateral
retinal hemorrhaging (bleeding in both eyes) while they were in the sole care of
their fathers. Both infants were admitted to Our Lady of Bellefonte hospital in
Ashland, and thereafter were transferred for treatment to the Children’s Hospital in
Senior Judges David C. Buckingham and Michael L. Henry sitting as Special Judges by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
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Columbus, Ohio. A.D. underwent a craniotomy to relieve the hematoma on his
brain. E.G. has sustained nerve damage which will permanently affect his eyes.
Martin and Davis made motions for a Daubert hearing, seeking to
exclude the testimony of the Commonwealth’s proffered expert witness, Dr. Betty
S. Spivack, on the grounds that her testimony to the effect that the injuries of E.G.
and A.D. were the result of shaken baby syndrome, was unreliable. The court held
a joint Daubert hearing because the factual circumstances of the cases were so
similar. At the hearing, which was held on March 29, 2006, testimony was heard
from the defendants’ expert, Dr. Ronald Uscinski, and from Dr. Spivack.
Dr. Uscinski is a distinguished neurosurgeon who serves as a Clinical
Associate Professor at Georgetown University School of Medicine in Washington
D.C. In Dr. Uscinski’s opinion, there is insufficient evidence to support the view
that an infant can sustain a subdural hematoma from shaking alone. Dr. Uscinski
has not performed any primary research or conducted any studies on this subject,
although he has published two short articles (one page and four pages respectively)
which set forth his views. It is unclear whether these publications were peerreviewed. Dr. Uscinski has also made presentations on shaken baby syndrome to
several eminent organizations, and has served as an expert defense witness in
numerous “shaken baby” cases.
In his testimony before the Greenup Circuit Court, Dr. Uscinski
provided an overview of the various studies that have investigated the effects of
whiplash and shaking on the brain. In each instance, he described various
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weaknesses that, in his opinion, detracted from the value of the studies. For
example, in 1968, an attempt was made by Dr. Ayub K. Ommaya to replicate the
effects of whiplash on the brain by strapping rhesus monkeys into a seat that was
rapidly accelerated and then suddenly stopped. The monkeys were then killed and
dissected; nineteen of the fifty monkeys had suffered intracranial injuries such as
concussions and subdural hematomas.
Dr. Uscinski opined that Ommaya’s research was flawed because he
never quantified precisely how much rotational acceleration would be necessary to
cause a subdural hematoma in an infant by manual shaking. Dr. Uscinski also
pointed out further weaknesses in the study: that it was conducted on monkeys,
which have smaller heads and stronger, thicker necks than human beings; that the
whiplash action was different from shaking; and that it was possible that some of
the monkeys hit their heads on the back of the seat, which suggests that their brain
injuries were not due to movement alone. Dr. Ommaya later tested squirrel
monkeys and chimpanzees in a similar manner. Using the experimental data from
the different animals, Dr. Ommaya extrapolated to determine the threshold force
required to injure adult humans. Again, Dr. Uscinski was critical of this study due
to the difference in anatomy between humans and monkeys.
Dr. Ommaya’s experiment was relied upon in the 1970s by Drs.
Guthkelch and Caffey, who wrote seminal articles about shaken baby syndrome.
Dr. Guthkelch, a pediatric neurosurgeon, reported in 1971 on 13 infants and
toddlers with subdural hematomas from suspected abuse. Ten of these children
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had bilateral retinal hemorrhaging. Of these ten, five had no external marks of
injury. In two instances, their families reported shaking the children vigorously.
Dr. Caffey in 1972 reported on 27 cases where shaking was all or part of the
mechanism causing subdural hematomas in children.
Dr. Uscinski then described an experiment published by Dr. A.C.
Duhaime in 1987, in which she created three different models of a baby’s neck and
brain, and had subjects shake the models. They were unable to generate the
acceleration hypothesized by Ommaya as necessary in order to cause injury.
Duhaime consequently developed the concept of shaken impact syndrome,
hypothesizing that an impact was necessary to cause the injuries associated with
shaken baby syndrome, but that an impact against a soft surface could create
sufficient force to cause concussion and subdural hematomas.
Uscinski also alluded to a recent study by Faris A. Bandak, which
relied on a nineteenth-century experiment by Dr. Matthew Duncan in which the
cadavers of days-old infants were suspended and weights attached to their ankles.
Duncan then recorded the level at which the weights caused decapitation. (This
experiment was conducted by Duncan to determine how much force could be used
when attempting to assist the delivery of a baby by using forceps.) On the basis of
this data, Bandak concluded that shaking violent enough to produce brain damage
in an infant would also cause a neck injury before any damage occurred to the
brain, because infants’ necks are relatively weak and their heads are relatively
large and heavy.
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The Commonwealth’s witness, Dr. Betty Spivack, is a forensic
pediatrician on the staff of the Kosair Children’s Hospital in Louisville. She is a
professor of pediatrics and pathology at the University of Louisville School of
Medicine. Her testimony covered much of the same ground as Dr. Uscinski’s.
She criticized Bandak’s methodology, since the nineteenth-century study on which
he relied involved gradually increasing the weights on the infants’ cadavers rather
than on abrupt shaking. She testified that other researchers had attempted to
replicate Bandak’s results and had been unable to do so. She also criticized Dr.
Duhaime’s study by pointing out that the models used were not “corroborated” test
dummies, and that the volunteers shook the dummies straight back and forth which
uses relatively weak, small muscles and does not create high acceleration.
Dr. Spivack also testified regarding various clinical trials and studies.
For instance, she alluded to a study performed in 1989 on 36 children who had
suffered abusive head trauma. Of this group, 13 showed no evidence of impact.
Of the six who were autopsied, five showed no signs of impact. They did have
evidence of epidural and subdural hematomas of the cervical spinal cord. Dr.
Spivack explained that it was possible to have impact without outward evidence
such as bruising. She stated that bilateral, extensive retinal hemorrhages, in
conjunction with a hematoma, are a good indicator of a shaking event because in
automobile or bike accidents, children who suffer subdural hematomas rarely
display retinal hemorrhages. In her opinion, this was borne out by multiple studies
which have confirmed that up to 80% of abusive head trauma cases have retinal
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hemorrhages. She testified that she is aware of only one documented case where
bilateral, extensive retinal hemorrhages were found in an accident case, which
occurred when an infant pulled a television weighing over 40 pounds down on his
head. Dr. Spivack acknowledged that the scientific studies underlying shaken baby
syndrome are not complete and that further research is needed.
On April 17, 2006, the court entered an opinion and order in both
cases, ruling that Dr. Spivack’s testimony about shaken baby syndrome did not
meet the Daubert test for scientific reliability. Essentially, the court determined,
relying largely on the testimony of Dr. Uscinski, that shaking alone could not cause
the type of injuries sustained by the victims. The court drew a distinction between
the “scientific” and “clinical” communities, and concluded that there were
insufficient studies using the “scientific method” to support Dr. Spivack’s opinion.
It stated in relevant part:
The existence and maintenance of standards
controlling the study of SBS [Shaken Baby Syndrome]
certainly exists. However, not all of the studies have
observed the scientific method in reaching conclusions.
In fact the most damning studies supporting SBS are the
ones that failed to follow the scientific method. The
more recent studies appear to utilize a more scientific
methodology to their research, but their preliminary
conclusions appear to support the conclusion that the
subdural hematoma and bilateral ocular bleeding are not
caused by shaking alone, but require blunt force impact.
Physicians routinely diagnose SBS and that has
gained wide or general acceptance in the clinical medical
community, if the baby has the two classical medical
markers of subdural hematoma and bilateral ocular
bleeding without any other manifest injuries. However,
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this diagnosis is based on inconclusive research
conducted in the scientific research community. SBS has
gained wide or general acceptance in the clinical
community and research community, if the baby has the
two classical medical markers of subdural hematoma,
bilateral ocular bleeding, and other manifest observable
injuries such as broken bones, bruises, etc. To allow a
physician to diagnose SBS with only the two classical
markers, and no other evidence of manifest injuries, is to
allow a physician to diagnose a legal conclusion. If the
physician has the two classical markers (subdural
hematoma and bilateral ocular bleeding) coupled with
other manifest injuries, then the diagnosis arises to more
than a legal conclusion – it becomes a medical opinion.
The Court can only conclude that SBS has not
gained wide or general acceptance in the scientific
community for the purposes of allowing an expert to
testify that a baby has been subjected to abuse when the
baby exhibits a subdural hematoma, bilateral ocular
bleeding with no other manifest injuries such as bruising,
broken bones, etc. The Court can further conclude that
based on the medical signs and symptoms, the clinical
medical and scientific research communities are in
disagreement as to whether it is possible to determine if a
given head injury is due to an accident or abuse.
As a result of this apparent conflict between “medical” and “scientific” opinion,
the court held that the Daubert test had not been met, and that neither party could
call a witness to give an expert opinion as to whether a child’s head injury was due
to shaken baby syndrome when the only symptoms exhibited by the child were a
subdural hematoma and bilateral ocular bleeding. However, the court qualified its
holding as follows:
Either party can call a witness to give an expert opinion
as to the cause of the injury being due to shaken baby
syndrome, if and only [if], the child exhibits a subdural
hematoma and bilateral ocular bleeding, and any other
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indicia of abuse present such as long-bone injuries, a
fractured skull, bruising, or other indications that abuse
has occurred.2
In response to this latter part of the opinion, the Commonwealth
moved for a hearing to determine whether there was evidence of any “other indicia
of abuse” present in these two cases. The Commonwealth submitted the
depositions of Dr. Phillip Scribano and Dr. Mary Lou McGregor, from the
Children’s Hospital in Columbus. Dr. Scribano is the Medical Director of the
Center for Child and Family Advocacy at the Hospital. He evaluated both E.G.
and A.D. when they were admitted. He testified that A.D. had a small bruise on
his lower lip and a bruise on his left ear when he was admitted. In Dr. Scribano’s
opinion, the injuries of both babies were consistent with having been violently
shaken. Although he could not say with certainty that the injuries were solely the
result of shaking, he explained that an impact with a soft surface, such as a
changing table or a crib mattress, would increase the acceleration fifty times. He
testified that many autopsies of victims of abusive head trauma had shown multiple
bruises on the inside of the brain, proving that an impact had occurred, but without
any evidence of bruising on the outside. Dr. McGregor, a pediatric
ophthalmologist, treated E.G., who displayed severe retinal hemorrhages in both
eyes at different layers. She testified that most experts in the field do not think that
the blood found in the eyes is caused by the pressure of the hematoma, but rather
At the subsequent hearing, the trial court clarified the wording of the order by explaining that a
subdural hematoma and/or ocular bleeding, plus other indicia of abuse, were what were required
by the order.
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by shaking. She stated that a CT scan showed that E.G. had subdural and
intracranial diffuse hemorrhages, which in her opinion did not occur
spontaneously.
Dr. Uscinski’s testimony largely consisted of his review of the
medical reports prepared at the hospitals in Ashland and Columbus where E.G. and
A.D. were treated. He opined that neither child showed any significant evidence
of an impact that could have caused the injuries in question.
On October 10, 2006, the trial court issued “findings of fact,
conclusions of law and order denying the Commonwealth’s expert witness;” the
court also entered an “amended order and opinion sustaining motion for Daubert
hearing” which reaffirmed the holding of its earlier orders. This appeal by the
Commonwealth followed.
In Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995), overruled
on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999), the
Kentucky Supreme Court adopted the analysis of Daubert, in which the United
States Supreme Court set out key considerations for admitting expert testimony
under the Federal Rules of Evidence.
When a party proffers expert testimony, the trial court
must determine in a preliminary hearing pursuant to KRE
104, “whether the expert is proposing to testify to (1)
scientific [, technical, or other specialized] knowledge
that (2) will assist the trier of fact to understand or
determine a fact in issue.” Goodyear Tire and Rubber
Company v. Thompson, 11 S.W.3d 575 (Ky. 2000). The
nonexclusive, flexible factors to be considered in
determining the admissibility of the proffered expert
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testimony as set forth in Daubert and adopted in Mitchell
are: (1) whether the theory or technique can be or has
been tested; (2) whether it has been subjected to peer
review or publication; (3) whether there is a known or
potential rate of error; and (4) whether the theory or
technique has general acceptance within its particular
scientific, technical, or other specialized community.
Florence v. Commonwealth, 120 S.W.3d 699, 702 (Ky. 2003) (internal citation
omitted).
The trial court’s findings of fact are reviewed for clear error; the
ultimate decision as to admissibility is reviewed for abuse of discretion. See Miller
v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004).
We turn first to the Commonwealth’s argument that the trial court
misallocated the burden of proof at the Daubert hearing. The general rule is that
the burden of proof is on the party proffering the expert evidence, except when the
party is offering expert testimony in a field of scientific inquiry so well-established
that it has been previously deemed reliable by an appellate court. In such a case,
the trial court may take judicial notice of the evidence, which
relieves the proponent of the evidence from the
obligation to prove in court that which has been
previously accepted as fact by the appropriate appellate
court. It shifts to the opponent of the evidence the burden
to prove to the satisfaction of the trial judge that such
evidence is no longer deemed scientifically reliable. The
proponent may either rest on the judicially noticed fact or
introduce extrinsic evidence as additional support or in
rebuttal.
Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999).
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In such circumstances, . . . the expert opinion would be
admissible without a Daubert hearing but . . . an
opposing party would be entitled to be heard with
evidence to the contrary. In this respect . . . judicial
notice relieves the proponent of the evidence from the
obligation to prove in court that which has been
previously accepted as fact by the appropriate appellate
court.
Florence v. Commonwealth, 120 S.W.3d 699, 703 (citations and quotation marks
omitted). In other words, “there is a burden shift from the party offering expert
testimony to the party opposing testimony.” Id. “This would result in a reverse
Daubert hearing where the party moving to exclude the evidence tries to prove that
the challenged expert testimony is based on ‘scientific, technical, or other
specialized knowledge’ that is not reliable.” Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 579 (Ky. 2000).
The Commonwealth argues that the trial court should have taken
judicial notice of shaken baby syndrome, thereby shifting the burden to the
appellees to prove that it was no longer reliable evidence – in essence, holding a
reverse Daubert hearing. Although we agree with the Commonwealth that
testimony regarding shaken baby syndrome is widely accepted in courts
nationwide, it has not been recognized as reliable in Kentucky for purposes of
judicial notice. (For a list of scientific methods and techniques which have been
recognized as reliable by our courts, see Johnson v. Commonwealth, 12 S.W.3d
258, 262 (Ky. 1999); they include certain types of DNA testing, breath testing to
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determine blood alcohol content, HLA blood typing to determine paternity, fiber
analysis, ballistics analysis and fingerprint analysis.)
The trial court correctly stated that, after the defendants had cast
sufficient doubt on the reliability of the Commonwealth’s expert testimony, the
Commonwealth bore the burden of showing that the evidence was reliable.
The Commonwealth contends that the court either overlooked or
misunderstood its theory of “soft impact,” that is, the possibility that, even if an
impact is necessary in order to inflict the type of injuries found in these infants,
this impact can be against a soft surface which will leave no external mark on the
child. This argument relates particularly to the second hearing and the court’s
determination that there was no evidence of abuse, such as it had determined was
required in addition to the subdural hematomas and retinal hemorrhaging, in order
to justify admitting the testimony of Dr. Spivack. The Commonwealth points out
that both Dr. Spivack and Dr. Scribano testified that an impact may indeed be
necessary to inflict the injuries seen here, but that this impact could be a soft
impact that leaves no outward mark.3
The appellees respond that under the highly deferential standard of
review for Daubert determinations set forth in Miller, supra, the trial court was
free to ignore whatever evidence it chose, as long as there was support in the
record for the findings that it did make. The appellees also rely on Miller for the
Dr. Spivack’s testimony in this regard also cited to recent bio-mechanical studies indicating that
an infant’s head could impact its own back and chest when shaken violently, which could cause
the type of increase in rotational forces necessary to cause intracranial and retinal hemorrhage
without external evidence of injury.
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proposition that when a lower court fails to make findings of fact, we should infer
the lower court’s implicit findings, namely, that given the current state of research
and testing, the theories of shaking alone or shaking plus impact on a soft surface
with no visible injuries were not adequately validated.
We are mindful that the Miller court cautioned us strongly against
performing a de novo review of findings of fact. See Miller, 146 S.W.3d at 916-17
(“Appellate courts must be careful to avoid the sort of unfettered review of the
record and of the trial court’s rulings that indicates a de novo review.”) But there
is a second component of the review process under Miller, which requires us to
determine whether the court’s ultimate decision to exclude Dr. Spivack’s testimony
was an abuse of discretion. The test for abuse of discretion is “whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Goodyear, 11 S.W.3d at 581. The trial court’s decision to exclude Dr.
Spivack’s testimony was an abuse of discretion, because it was founded on the
unsupported legal conclusion that because there was dispute amongst the experts as
to the possible cause of the infants’ injuries, it was the court’s role to choose the
side it found more convincing and exclude the side it found less convincing, based
in part on giving greater weight to “scientific” as opposed to “clinical” studies.
The Daubert test is designed to keep out unreliable or
“pseudoscientific” expert scientific testimony that would confuse or mislead the
jury, or that cannot legitimately be challenged in a courtroom. Daubert, 509 U.S.
at 592-93, 113 S.Ct. at 2796. “This ‘gatekeeping’ role of the trial court, Daubert,
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509 U.S. at 597, 113 S.Ct. at 2798, is designed to banish ‘junk science’ evidence
from the courtroom[.] Elsayed Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063
(9th Cir.2002).” Ragland v. Commonwealth, 191 S.W.3d 569, 574 -575 (Ky.
2006). The testimony of the Commonwealth’s experts in this case, even accepting
the trial court’s assessment of its flaws, could not be described as
“pseudoscientific” or “junk science.”
The gatekeeping function of the trial court is restricted to keeping out
unreliable expert testimony, not to assessing the weight of the testimony. This
latter role is assigned to the jury. Kentucky courts stressed this distinction in roles,
noting with approval that a trial court “was aware of the difference between its role
as gatekeeper and the jury’s role in determining the weight evidence should have.”
Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 489-90 (Ky. 2002),
vacated on other grounds by Ford Motor Co. v. Smith, 538 U.S. 1028, 123 S.Ct.
2072, 155 L.Ed.2d 1056. See also Toyota Motor Corp. v. Gregory, 136 S.W.3d
35, 40-41 (Ky. 2004) (“Criticism of Gratzinger’s selection of the inflators he tested
goes to the weight of the evidence, not its admissibility.”)
Federal case law abounds with opinions emphasizing this distinction.
“The gatekeeper role should not . . . invade the province of the jury, whose job it is
to decide issues of credibility and to determine the weight that should be accorded
evidence[.]” United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003). “Disputes
as to the strength of [an expert's] credentials, faults in his use of [a particular]
methodology, or lack of textual authority for his opinion, go to the weight, not the
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admissibility, of his testimony.” McCullock v. H.B. Fuller Co., 61 F.3d 1038,
1044 (2d Cir.1995). The “gate-keeping function of the court was never meant to
supplant the adversarial trial process. The fact that experts disagree as to
methodologies and conclusions is not grounds for excluding relevant testimony.”
LP Matthews LLC v. Bath & Body Works, Inc., 458 F.Supp.2d 198, 210 (D.Del.
2006).
[T]he court is only a gatekeeper, and a gatekeeper alone
does not protect the castle; as we have explained, ‘[a]
party confronted with an adverse expert witness who has
sufficient, though perhaps not overwhelming, facts and
assumptions as the basis for his opinion can highlight
those weaknesses through effective cross-examination.’
Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414
(3d Cir. 2002).
United States v. Mitchell, 365 F.3d 215, 245 (3d Cir. 2004). “Vigorous crossexamination of a study’s inadequacies allows the jury to appropriately weigh the
alleged defects and reduces the possibility of prejudice.” Quiet Technology DC-8,
Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003), citing
Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1188 (9th Cir. 2002). “By attempting
to evaluate the credibility of opposing experts and persuasiveness of competing
scientific studies, the district court conflated the questions of the admissibility of
expert testimony and the weight appropriately to be accorded such testimony by a
fact finder.” Ambrosini v. Labarraque, 101 F.3d 129, 141 (D.C. Cir. 1996). As
the United States Supreme Court emphasized in Daubert, 509 U.S. at 596,
“[v]igorous cross-examination, presentation of contrary evidence, and careful
16
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”
In the cases before us, the trial court was presented with two highly
qualified physicians who disagreed as to the meaning and weight that should be
accorded to various studies, both “scientific” and “clinical.” Other courts have
grappled with this problem of “dueling, but well-qualified” experts, and have
concluded that
[m]erely because two qualified experts reach directly
opposite conclusions using similar, if not identical, data
bases, or disagree over which data to use or the manner
in which the data should be evaluated, does not
necessarily mean that, under Daubert, one opinion is per
se unreliable. Daubert does not empower the district
judge to simply “pick” one expert over the other, because
that expert is more credible or convincing, under the
guise of exercising the gate-keeping function. To do so
would improperly usurp the jury’s function.
Allapattah Services, Inc. v. Exxon Corp., 61 F.Supp.2d 1335, 1341 (S.D.Fla. 1999).
“That some scientists in a field disagree with an expert's theories or conclusions
does not render those theories or conclusions unreliable under Daubert[.]” United
States v. Sullivan, 246 F.Supp.2d 696, 698 (E.D.Ky. 2003).
The trial court found unconvincing clinical studies which found a
strong correlation between abuse and the two symptoms of subdural hematoma and
retinal hemorrhaging, and illustrated its mistrust of such clinical studies with a
hypothetical comparison of a correlation between an increase in teachers’ salaries
and beer-drinking. It concluded that:
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When Dr. Spivack observed that there was a stronger
correlation between retinal hemorrhages with abusive
head trauma than with unintentional head trauma, even
when the unintentional injury is severe, this does not
mean that every time a doctor observes retinal
hemorrhages that abuse has occur[red]. It may be that
the retinal hemorrhage is cause[d] by something else. In
fact, that is exactly what Dr. Uscinski pointed out.
Apart from the fact that a jury would be fully capable of understanding and
evaluating Dr. Uscinski’s testimony that retinal hemorrhages could have other
medical causes, and that Dr. Spivack’s testimony could be subjected to vigorous
cross-examination, clinical studies and trials which observe such correlations are
an integral part of medical research. Experiments utilizing the “scientific” method
cannot be performed on living infants. It is unreasonable to conclude that clinical
studies and trials are inherently unreliable (and hence inadmissible) because they
cannot and do not follow a particular methodology.
We find further support for our holding in the case law of other
jurisdictions which shows that Dr. Uscinski has testified as an expert in numerous
shaken baby cases, in which the trial courts clearly entrusted to the jury the role of
deciding whether his testimony was convincing. See e.g. People v. Swart, 860
N.E.2d 1142, 1156 (Ill.App. 2006) (Dr. Uscinski testifying against the state’s
expert that “a person could not generate the force required to cause her [the
victim’s] intracranial injury” and disagreeing with the view that “shaken baby
syndrome [is] a serious and clearly definable form of child abuse.”) We are
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confident that Kentucky juries can hear similar conflicting expert testimony and
weigh it accordingly.
The orders of the Greenup Circuit Court are reversed, and these cases
are remanded for further proceedings consistent with this opinion..
BUCKINGHAM, SENIOR JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN THE RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE MARTIN:
Gregory D. Stumbo
Attorney General of Kentucky
Susan Jackson Balliet
Frankfort, Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLEE DAVIS:
ORAL ARGUMENT FOR
APPELLANT:
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
Erin Hoffman Yang
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
Erin Hoffman Yang
Frankfort, Kentucky
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