Sissoko v. State
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Opinion
HEADNOTE: MOUSSA SISSOKO v. STATE, NO. 613, SEPT. TERM, 2016
ADMISSION OF EXPERT MEDICAL TESTIMONY—FRYE-REED GENERAL ACCEPTANCE TEST—RULE 5-702(3) RELIABILITY OF METHODOLOGY— OVERLAP OF FRYE-REED AND RULE 5-702(3)—SHAKEN BABY SYNDROME/ABUSIVE HEAD TRAUMA—REVIEW UNDER FRYE-REED STANDARD.
In 2002, the appellant was convicted of first degree premeditated murder, child abuse, and child abuse resulting in death in the death of his 11-week old son Shane. The State theorized that the appellant killed Shane by shaking him, slamming him against a soft surface, or both. The appellant later was granted a new trial as post-conviction relief, upon a finding that his trial counsel had been ineffective for failing to introduce expert testimony to rebut the State’s shaken baby syndrome expert testimony. Before his new trial, he moved to preclude the State from introducing expert medical evidence about shaken baby syndrome, by now called abusive head trauma, on the ground that it no longer was a generally accepted diagnosis in the absence of evidence of external injuries. The court held a Frye-Reed hearing and denied the motion, ruling that abusive head trauma is a generally accepted medical diagnosis and the State’s experts could testify about it and that it was the cause of Shane’s death. The court also ruled that the State’s experts’ testimony was admissible under Rule 5-702.
The appellant chose a bench trial. Both sides called experts about abusive head trauma. The evidence showed that, according to the appellant, Shane was fine on the morning of September 15, 2001, and was just sleeping on the appellant’s bed when he suddenly started bleeding from his nose, stopped breathing, and became comatose. The appellant did not claim that any accident had occurred. 911 was called and Shane was rushed to the hospital. CT scans and MRIs showed subdural hematomas, retinal hemorrhages, and brain swelling that increased to the point that the cerebellum was herniating into the brain stem. Shane never regained consciousness and on day ten in the hospital was removed from life support and died. The State’s experts opined that Shane suffered catastrophic brain injuries due to trauma that was inflicted on him, i.e., abusive head trauma, even though there were no external injuries, because the medical evidence supported inflicted injuries, possible medical causes for his brain injuries were ruled out, and there was no evidence of an accidental cause for the injuries. The defense experts opined that Shane’s brain injuries could have had medical causes, such as bleeding into a chronic subdural hematoma or a coagulation disorder.
The evidence also showed that the appellant was the only person with Shane when he suffered his catastrophic injuries; that the appellant had had to drop out of college due to his girlfriend’s pregnancy with Shane; that he had purchased a $750,000 life insurance policy on Shane’s life in the weeks before Shane’s death; that he had not told Shane’s mother about that and had lied to her and her mother about facts surrounding the acquisition of that policy; that he had paid the premium on the policy the day before Shane’s catastrophic injuries; and that based on what the insurance agent had told him, he would have thought the policy went into effect when that first payment was made.
The court found the appellant guilty of first degree premeditated murder, child abuse, and child abuse resulting in death. The appellant noted an appeal in which he challenged the court’s Frye-Reed ruling but not its Rule 5-702 ruling, and also argued that the evidence was legally insufficient to support his convictions.
Held: Judgments affirmed. The Court rejected the State’s argument that whether the State’s experts on abusive head trauma could testify at trial was solely a Rule 5-702 issue, not a Frye-Reed issue, and because the appellant only challenged the trial court’s Rule 5-702 ruling on appeal, his appeal must fail. The Frye-Reed general acceptance test for scientific evidence has evolved so that, like the federal Daubert standard, it requires scientific methodologies and the scientific conclusions based on them to be generally accepted. In other words, there must not be an “analytical gap” between the basis for the scientific opinion and the opinion itself. As the Court of Appeals has recognized, this evolution has resulted in an overlap between the Frye-Reed general acceptance test and the reliable methodology prong of Rule 5-702(3). The admissibility of the State’s expert witness opinions about abusive head trauma concerns reliable methodology and therefore falls within this overlap. Because the thrust of the appellant’s argument is general, that is, not merely whether expert testimony about abusive head trauma is appropriate in this case but whether it ever is appropriate, the Court approached the issue as one under Frye- Reed, using a de novo standard of review.
The Court distinguished this case from Clemons v. State, in which the Court of Appeals held that a once generally accepted scientific methodology no longer was generally accepted, and from Blackwell v. Wyeth and the two Chesson v. Montgomery Mutual cases, in which the Court of Appeals held inadmissible expert opinions that were based on scientifically accepted methods, or methods usually accepted, but that did not bridge the analytical gap between those methods and the conclusions reached. Based on a review of the reliable scientific literature and the differential diagnosis method used by the State’s experts to make the diagnosis of abusive head trauma, the Court held that abusive head trauma can be diagnosed in the absence of external injuries and the trial court did not err by admitting the State’s expert medical opinion testimony. The Court further held that the evidence was legally sufficient to support all the convictions. In the Circuit Court for Montgomery County Case No. 93709 REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 613
September Term, 2016
______________________________________
MOUSSA SISSOKO
v.
STATE OF MARYLAND
Eyler, Deborah S., Kehoe, Arthur,
JJ. ______________________________________
Opinion by Eyler, Deborah S., J. ______________________________________
Filed: January 31, 2018 In this appeal, we consider the interplay of the Frye-Reed general acceptance test
and Rule 5-702 as they apply to expert testimony that an infant’s death was caused by
abusive head trauma, the current medical nomenclature for what used to be known as
shaken baby syndrome.
In 2002, a jury in the Circuit Court for Montgomery County convicted Moussa
Sissoko, the appellant, of first-degree murder, child abuse, and child abuse resulting in
death, in the death of his 11-week-old son, Shane. The State’s theory of prosecution was
that the appellant killed his son by violently shaking him, slamming him against a soft
surface, or both. The court sentenced the appellant to life in prison, plus 20 years. In a
post-conviction proceeding more than ten years later, he was granted a new trial on the
ground that his trial counsel had been ineffective by failing to adduce expert medical
testimony to rebut the State’s expert medical testimony on abusive head trauma.
Before his retrial, the appellant filed a motion to preclude the State from
introducing expert medical testimony that Shane’s injuries and death resulted from
abusive head trauma. After a five-day evidentiary hearing, the court denied the motion.
Thereafter, the appellant elected a bench trial. The court convicted him on all three
counts and sentenced him to life, all but fifty years suspended.
On appeal, the appellant presents two questions, which we have rephrased slightly:
I.
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HEADNOTE: MOUSSA SISSOKO v. STATE, NO. 613, SEPT. TERM, 2016
ADMISSION OF EXPERT MEDICAL TESTIMONY—FRYE-REED GENERAL ACCEPTANCE TEST—RULE 5-702(3) RELIABILITY OF METHODOLOGY— OVERLAP OF FRYE-REED AND RULE 5-702(3)—SHAKEN BABY SYNDROME/ABUSIVE HEAD TRAUMA—REVIEW UNDER FRYE-REED STANDARD.
In 2002, the appellant was convicted of first degree premeditated murder, child abuse, and child abuse resulting in death in the death of his 11-week old son Shane. The State theorized that the appellant killed Shane by shaking him, slamming him against a soft surface, or both. The appellant later was granted a new trial as post-conviction relief, upon a finding that his trial counsel had been ineffective for failing to introduce expert testimony to rebut the State’s shaken baby syndrome expert testimony. Before his new trial, he moved to preclude the State from introducing expert medical evidence about shaken baby syndrome, by now called abusive head trauma, on the ground that it no longer was a generally accepted diagnosis in the absence of evidence of external injuries. The court held a Frye-Reed hearing and denied the motion, ruling that abusive head trauma is a generally accepted medical diagnosis and the State’s experts could testify about it and that it was the cause of Shane’s death. The court also ruled that the State’s experts’ testimony was admissible under Rule 5-702.
The appellant chose a bench trial. Both sides called experts about abusive head trauma. The evidence showed that, according to the appellant, Shane was fine on the morning of September 15, 2001, and was just sleeping on the appellant’s bed when he suddenly started bleeding from his nose, stopped breathing, and became comatose. The appellant did not claim that any accident had occurred. 911 was called and Shane was rushed to the hospital. CT scans and MRIs showed subdural hematomas, retinal hemorrhages, and brain swelling that increased to the point that the cerebellum was herniating into the brain stem. Shane never regained consciousness and on day ten in the hospital was removed from life support and died. The State’s experts opined that Shane suffered catastrophic brain injuries due to trauma that was inflicted on him, i.e., abusive head trauma, even though there were no external injuries, because the medical evidence supported inflicted injuries, possible medical causes for his brain injuries were ruled out, and there was no evidence of an accidental cause for the injuries. The defense experts opined that Shane’s brain injuries could have had medical causes, such as bleeding into a chronic subdural hematoma or a coagulation disorder.
The evidence also showed that the appellant was the only person with Shane when he suffered his catastrophic injuries; that the appellant had had to drop out of college due to his girlfriend’s pregnancy with Shane; that he had purchased a $750,000 life insurance policy on Shane’s life in the weeks before Shane’s death; that he had not told Shane’s mother about that and had lied to her and her mother about facts surrounding the acquisition of that policy; that he had paid the premium on the policy the day before Shane’s catastrophic injuries; and that based on what the insurance agent had told him, he would have thought the policy went into effect when that first payment was made.
The court found the appellant guilty of first degree premeditated murder, child abuse, and child abuse resulting in death. The appellant noted an appeal in which he challenged the court’s Frye-Reed ruling but not its Rule 5-702 ruling, and also argued that the evidence was legally insufficient to support his convictions.
Held: Judgments affirmed. The Court rejected the State’s argument that whether the State’s experts on abusive head trauma could testify at trial was solely a Rule 5-702 issue, not a Frye-Reed issue, and because the appellant only challenged the trial court’s Rule 5-702 ruling on appeal, his appeal must fail. The Frye-Reed general acceptance test for scientific evidence has evolved so that, like the federal Daubert standard, it requires scientific methodologies and the scientific conclusions based on them to be generally accepted. In other words, there must not be an “analytical gap” between the basis for the scientific opinion and the opinion itself. As the Court of Appeals has recognized, this evolution has resulted in an overlap between the Frye-Reed general acceptance test and the reliable methodology prong of Rule 5-702(3). The admissibility of the State’s expert witness opinions about abusive head trauma concerns reliable methodology and therefore falls within this overlap. Because the thrust of the appellant’s argument is general, that is, not merely whether expert testimony about abusive head trauma is appropriate in this case but whether it ever is appropriate, the Court approached the issue as one under Frye- Reed, using a de novo standard of review.
The Court distinguished this case from Clemons v. State, in which the Court of Appeals held that a once generally accepted scientific methodology no longer was generally accepted, and from Blackwell v. Wyeth and the two Chesson v. Montgomery Mutual cases, in which the Court of Appeals held inadmissible expert opinions that were based on scientifically accepted methods, or methods usually accepted, but that did not bridge the analytical gap between those methods and the conclusions reached. Based on a review of the reliable scientific literature and the differential diagnosis method used by the State’s experts to make the diagnosis of abusive head trauma, the Court held that abusive head trauma can be diagnosed in the absence of external injuries and the trial court did not err by admitting the State’s expert medical opinion testimony. The Court further held that the evidence was legally sufficient to support all the convictions. In the Circuit Court for Montgomery County Case No. 93709 REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 613
September Term, 2016
______________________________________
MOUSSA SISSOKO
v.
STATE OF MARYLAND
Eyler, Deborah S., Kehoe, Arthur,
JJ. ______________________________________
Opinion by Eyler, Deborah S., J. ______________________________________
Filed: January 31, 2018 In this appeal, we consider the interplay of the Frye-Reed general acceptance test
and Rule 5-702 as they apply to expert testimony that an infant’s death was caused by
abusive head trauma, the current medical nomenclature for what used to be known as
shaken baby syndrome.
In 2002, a jury in the Circuit Court for Montgomery County convicted Moussa
Sissoko, the appellant, of first-degree murder, child abuse, and child abuse resulting in
death, in the death of his 11-week-old son, Shane. The State’s theory of prosecution was
that the appellant killed his son by violently shaking him, slamming him against a soft
surface, or both. The court sentenced the appellant to life in prison, plus 20 years. In a
post-conviction proceeding more than ten years later, he was granted a new trial on the
ground that his trial counsel had been ineffective by failing to adduce expert medical
testimony to rebut the State’s expert medical testimony on abusive head trauma.
Before his retrial, the appellant filed a motion to preclude the State from
introducing expert medical testimony that Shane’s injuries and death resulted from
abusive head trauma. After a five-day evidentiary hearing, the court denied the motion.
Thereafter, the appellant elected a bench trial. The court convicted him on all three
counts and sentenced him to life, all but fifty years suspended.
On appeal, the appellant presents two questions, which we have rephrased slightly:
I. Did the trial court err or abuse its discretion by denying his motion to exclude expert medical testimony that Shane’s fatal brain injuries resulted from abusive head trauma?
II. Was the evidence legally sufficient to sustain the appellant’s convictions? For the following reasons, we shall affirm the judgments of the circuit court.
FACTS AND PROCEEDINGS
The appellant began dating Tiffany Paris in 1999, when she was a senior in high
school. In October 2000, Paris learned that she was pregnant. At that time, she was
living at home with her mother, Patricia Sherman (known then as Patricia Paris), in
Wheaton. The appellant was living at home with his mother, Danuta Guzowski, in Silver
Spring. The appellant was planning to start community college in Florida in January
2001. He asked Paris not to tell his mother about the pregnancy because he feared she
would refuse to pay his college tuition.
In January 2001, the appellant moved to Florida. For the next six months, he
maintained only sporadic contact with Paris. The appellant’s mother learned that Paris
was pregnant and, as he had feared, informed him that she would no longer pay his
college tuition and that he had to get a job.
In June 2001, the appellant returned to Maryland and moved into Sherman’s
house, with Paris. On June 29, 2001, Paris gave birth to Shane at Holy Cross Hospital.
The vaginal delivery was uncomplicated and Shane was a healthy baby.
The appellant lived with Paris and Shane at Sherman’s house for about two
months. Paris returned to work in August, when Shane was 6 weeks old. The appellant
began working as a locksmith. From Monday through Thursday, Shane was cared for by
a babysitter at the babysitter’s house. Paris was off on Fridays, but worked on Saturdays.
The appellant or Sherman cared for Shane on Saturdays, at Sherman’s house.
-2- Near the end of August, the appellant moved out of Sherman’s house and in with a
friend.1 By September 9, 2001, he was living at his mother’s house.
Meanwhile, when Shane was less than two months old, the appellant contacted
State Farm Insurance (“State Farm”) about purchasing a life insurance policy on Shane.
On August 18, 2001, the appellant met with State Farm agent Ronald Menza and applied
for a $750,000 “universal life” policy on Shane’s life, with himself (the appellant) as the
sole beneficiary. Because State Farm would not permit the appellant to apply for a policy
on Shane’s life unless he also applied for a policy on his own life, the appellant did so.
He applied for a term life policy on his own life with a value of $50,000, the minimum
policy value offered by State Farm. He named his sister as the beneficiary on that policy.
Menza advised the appellant that before the policy on Shane’s life would be “bound,”
Shane would need to undergo a medical examination and the appellant would need to pay
the first monthly premium.
The appellant arranged for Shane’s medical examination to be performed on
Saturday, August 25, 2001, when Paris would be at work and he would be caring for
Shane at Sherman’s house. He did not tell Paris that he had applied for life insurance for
Shane. Paris and Sherman got home before the person who performed the examination
had left. The appellant lied to them about the person’s identity, saying he was an
insurance agent who was there to discuss bundling renter’s, auto, and health insurance.
1 Sherman testified that she asked the appellant to move out because it was too chaotic in her house. Sherman’s adult daughter, Tina, and Tina’s two young children also were living there, as was a boarder, Kenny, who was friends with Sherman.
-3- He also lied to Paris about telephone messages from State Farm that were left for him at
Sherman’s house.
On September 14, 2001, the appellant mailed the first monthly premium payment
on the policy on Shane’s life, in the amount of $134, to State Farm. That night, he stayed
at Sherman’s house with Paris and Shane.2 Paris was scheduled to work the next day, a
Saturday, and the appellant was supposed to watch Shane.
On the morning of September 15, 2001, the appellant fed Shane a bottle of
formula at 6:00 a.m. and Paris fed him a bottle at 9:00 a.m. The appellant asked Paris to
drop him and Shane off at his mother’s (Guzowski’s) house on her way to work, saying
that his mother wanted to spend some time with Shane. Until that day, the appellant had
never cared for Shane at his mother’s house. In fact, Guzowski did not know in advance
that the appellant was bringing Shane to her house that morning.
Just after 10:00 a.m., Paris dropped the appellant and Shane off at Guzowski’s
house. According to Guzowski, Shane was “jolly.” She played with him for a short time.
When Shane became fussy, the appellant prepared a bottle of formula and took him to his
(the appellant’s) bedroom, on the second floor of the house. The appellant kept Shane
there for several hours. Paris called the appellant twice to check on Shane, at 11:00 a.m.
and 12:20 p.m. Both times, the appellant told her that Shane was fine. Guzowski, who
was cleaning the house and making stew, walked by the appellant’s open bedroom door
2 Sherman was not there because she had traveled to Florida for business and could not get a flight home due to cancellations resulting from the terrorist attacks of September 11, 2001.
-4- at one point and observed Shane lying on the appellant’s bed on his back, moving his
hands.
Around 1:00 p.m., the appellant went downstairs, got some stew for lunch, and
took it to his bedroom to eat. Shane was still on the bed. An hour later, the appellant
went back downstairs and told Guzowski that Shane’s nose was bleeding and that he
might need to go to the hospital. Guzowski and the appellant rushed upstairs. Guzowski
wiped mucous and blood off Shane’s nostrils. Shane did not react and did not appear to
be breathing. Guzowski yelled for the appellant to call 911. She straddled Shane and
began performing CPR. In his call to 911 (at 2:04 p.m.), the appellant told the operator:
“My baby stopped breathing, and there’s blood coming out of his nose.” When asked
when Shane had stopped breathing, the appellant replied: “I don’t know. I just started
seeing blood come out of his nose. He was sleeping, and then blood just started rushing
out of his nose.”
Emergency personnel responded to the house in minutes. They found Shane in
full cardiac arrest, bleeding from his nose and mouth. His lips were turning blue, he was
not breathing, and he had no pulse. There were petechial hemorrhages on his forehead.3
He was transported by ambulance to Holy Cross Hospital, arriving at 2:27 p.m.
Just before 5:00 p.m., at Holy Cross Hospital, the appellant was interviewed by
Detective Kenneth Penrod, with the Montgomery County Police Department’s
3 Petechial hemorrhages are “nonraised, perfectly round purplish red spot[s] caused by intradermal or submucous hemorrhage.” Dorland’s Illustrated Medical Dictionary, 1422 (32nd ed. 2012) (“Dorland’s”).
-5- Homicide/Sex Division.4 Detective Penrod reduced the appellant’s oral statement to
writing. The appellant made corrections to the written statement and initialed it. In the
statement, the appellant said that after he took Shane into his bedroom at his mother’s
house, he put him on the bed. He and Shane were alone in his bedroom for over an hour,
during which time he watched television. Shane “became ‘fussy,’” so the appellant gave
him 6 ounces of formula. He then placed Shane back on the bed, on top of the comforter
and a baby blanket. Shane fell asleep. The appellant left Shane “for 1 minute & got
some soup.” When he returned, Shane was “still laying in the same position.” The
appellant noticed “blood [and] ‘snot’” coming out of Shane’s nose. The appellant “ran”
to the kitchen to get his mother and called 911 while his mother began CPR. Shane had
been healthy and had “suffered no falls to [the appellant’s] knowledge.” The appellant
had never struck, shook, or dropped Shane. Shane was colicky, “very, very active,” and
often “scream[ed at] the top of [his] lungs.”
At 6:12 p.m., Shane was transported to Children’s National Medical Center
(“Children’s”) for admission to its pediatric intensive care unit.
The appellant made an additional oral statement to Detective Penrod that evening
while at Children’s. He told the detective that Shane had been “active and alert all day,”
4 At trial, the parties stipulated that this interview was “voluntary and non- custodial.”
-6- that he “did not have any unusual behavior,” and that he “ate the normal amount of food
which was 4-6 ounces of formula.”5
Just after 7:00 p.m., Shane underwent a CT scan of his brain that revealed bilateral
subdural hematomas, subarachnoid hematomas, and possibly mild edema.6 The next day,
Shane’s treating physicians asked Allison Jackson, M.D., a hospital-based pediatrician
who specializes in child abuse pediatrics, to consult on Shane’s case.
A CT scan of Shane’s brain performed two days later showed significant cerebral
edema that was causing herniation of the cerebellum into the brain stem. The next day,
an MRI showed “diffuse, severe cerebral edema.” An ophthalmology examination
revealed bilateral, diffuse retinal hemorrhages. Shane never regained consciousness. On
September 25, 2001, he was taken off life support and died.
The autopsy was performed by Michael Pollanen, M.D., a visiting forensic
pathologist with the Office of the Chief Medical Examiner in Washington, D.C., and was
supervised by Jonathan Arden, M.D., the Chief Medical Examiner. Dr. Pollanen
concluded that Shane’s cause of death was shaken baby syndrome and that his manner of
death was homicide. Dr. Arden signed off on the autopsy.
5 The parties also stipulated that this statement was voluntary and non-custodial. 6 Two membranes surround the brain: the “dura” is the outer membrane and the “arachnoid” is the inner membrane. A subdural hematoma is a collection of blood between the dura and the arachnoid. Dorland’s at 1790. A subarachnoid hematoma is a collection of blood between the arachnoid and the brain. Id. at 1789. Edema is the presence of abnormally large amounts of fluid in the intercellular tissue spaces of the body. Id. at 593.
-7- In the Circuit Court for Montgomery County, the appellant was indicted for first-
degree murder and related charges. As noted, following a jury trial in 2002, he was
convicted of all charges. This Court affirmed the judgments on direct appeal, in an
unreported opinion. See Sissoko v. State, Case No. 2478, Sept. 2002 Term (filed Apr. 5,
2004).
In 2014, the appellant filed his first and second amended petitions for post-
conviction relief in the circuit court, arguing that his trial counsel had been ineffective.7
He asserted that his trial counsel’s representation had been deficient because he did not
call a pediatric neuroradiologist to testify, based on the MRI and CT scans of Shane’s
brain, that Shane’s brain injury and death resulted from a rebleed of a chronic subdural
hematoma, not from abusive head trauma. On March 15, 2015, after a three-day
evidentiary hearing, the circuit court granted the appellant’s second amended petition for
post-conviction relief, vacated his convictions, and granted him a new trial. The State’s
application for leave to appeal was denied.
On August 13, 2015, in preparing for his retrial, the appellant filed a motion to
“Obtain a Hearing to Exclude the State’s Expert Testimony Supporting a Diagnosis of
Abusive Head Trauma” under Reed v. State, 283 Md. 374 (1978). Emphasizing that
abusive head trauma is a “‘rule out’ or “differential diagnosis,” he argued that the
established method physicians use to diagnose abusive head trauma is not “reliable”
because they use only the “triad”—three findings highly correlated with abusive head
7 His original petition was filed on June 20, 2005. At the appellant’s request, that petition was held in abeyance pending the filing of an amended petition.
-8- trauma: subdural hematomas, retinal hemorrhages, and brain swelling—to make the
diagnosis when there are “alternate causes” for the triad that have not been “explain[ed]
away.” Relying upon Clemons v. State, 392 Md. 339 (2006), the appellant argued that
the “underlying assumptions [regarding abusive head trauma are now] sufficiently
disputed within the relevant scientific community” so as to make the theory that it can be
diagnosed based upon the triad, absent other evidence of trauma, no longer generally
accepted. He maintained that although it is generally accepted that violent shaking of an
infant can cause brain injury, it also is generally accepted that the amount of force
required for shaking to bring about brain injury necessarily will result in “serious and
obvious injury to the neck and cervical spine long before producing [subdural hematoma]
or [retinal hemorrhage].” Therefore, when there is no neck or spinal cord injury, abusive
head trauma is not a generally accepted diagnosis.
The State responded that its expert witnesses would testify that Shane died as a
result of injuries from head trauma, with some of them opining that the injuries
necessarily were sustained within a certain time frame, others opining that the injuries
were inflicted and non-accidental, and others merely opining that the injuries were caused
by trauma. The State maintained that the Frye-Reed general acceptance test was not
implicated by its medical expert testimony because medical causation testimony is
admissible so long as the expert holds his or her opinion to a “reasonable medical
-9- probability” and because a diagnosis of abusive head trauma is not novel or controversial
within the pertinent medical/scientific community. 8
Over five days in October, November, and December 2015, the court held an
evidentiary hearing to determine the admissibility of the State’s medical expert testimony
about the cause of Shane’s brain injuries and death.9 At the outset, the court and the
parties sought to clarify what was in dispute. The prosecutor explained that she
understood that the appellant was challenging the State’s medical expert testimony on the
ground that “the triad . . . is [not] supportive enough for . . . shaken baby syndrome or
abusive head trauma in order to make it generally acceptable in the medical community.”
The court noted that, in its view, the factual basis for the State’s medical experts’
opinions also was at issue, implicating the court’s discretion over admitting expert
testimony under Rule 5-702(3). The court opined that admissibility under Frye-Reed
really goes to the . . . methodology employed, the underlying assumptions that are made in terms of the science; and [Rule 5-702(3)] basically goes more to whether or not there are sufficient facts that they have available to them or they’ve sufficiently considered alternatives that they’re capable of expressing opinions that . . . I should permit to be presented to the jury, assuming the methodology is sound.
8 The State also responded that its medical experts would not be identifying the appellant (or any individual) as the person who inflicted Shane’s fatal head injuries. We note that criminal agency was not a contested issue in this case, in that the appellant was the only person with Shane when the brain injuries were sustained and the appellant offered no accident defense, for example that Shane had fallen, likely because there was no evidence of an accident. The case boiled down to whether Shane’s brain injuries were inflicted or were a natural occurrence. 9 At the same hearing, the court also considered the State’s cross-motion in limine to preclude defense medical expert testimony that Shane died as a result of rebleeding of a chronic subdural hematoma.
-10- Defense counsel responded that the Maryland appellate decisions addressing the
admissibility of expert medical testimony discuss the general acceptance of the
underlying methodologies and the reliability of the specific conclusions being drawn
from those methodologies “in tandem.” He posited that in this case it would be difficult
to “parse . . . out” the reliability and/or acceptance of a hypothetical abusive head trauma
diagnosis without also getting into the factual basis for those opinions.
The State moved the court to take judicial notice, under Frye-Reed, that the
“methodologies employed” by its experts were generally accepted in the relevant medical
communities. The court denied the motion and, ultimately, the parties proceeded to
present evidence bearing on the diagnosis of abusive head trauma, generally, and that
diagnosis in Shane’s case, specifically.
The State called five witnesses at the Frye-Reed hearing: Mark Dias, M.D., a
pediatric neurosurgeon; Louis Vezina, M.D., a pediatric neuroradiologist; Mohammed
Jaafar, M.D., the pediatric ophthalmologist who examined Shane at Children’s; Dr.
Jackson, the child abuse pediatrician who treated Shane at Children’s; and Dr. Pollanen,
the forensic pathologist who performed Shane’s autopsy. We summarize their pertinent
testimony below.
Dr. Dias is chief of pediatric neurosurgery at Penn State Children’s Hospital, as
well as a professor of pediatric neurosurgery at Penn State College of Medicine. The
court accepted him as an expert in that general field and also in the specific field of
-11- traumatic brain injury. Before testifying he reviewed Shane’s medical records, all of the
relevant expert reports, and the pertinent testimony from the first trial.10
Dr. Dias testified that shaken baby syndrome was identified as a cause of
traumatic brain injury in the 1970s. At that time, the prevailing view in the medical
community was that violent shaking, and only violent shaking, caused the injuries to
infants associated with shaken baby syndrome. Since then, scientific studies have
revealed that between 30% and 70% of shaken baby syndrome cases involve impact to
the infant’s skull as well. In the late 1980s, some pediatricians and pediatric neurologists
began using the term abusive head trauma, instead of shaken baby syndrome, because it
is broad enough to encompass any traumatic brain injury “inflicted or caused by a person,
typically a caregiver,” whether by shaking, impact, or a combination of the two.
According to Dr. Dias, the change in terminology reflected developments in medical
research, not rejection of shaking as a cause of infant brain injury and death.
Dr. Dias explained the methodology treating physicians employ to diagnose
abusive head trauma. When an infant presents with an unexplained brain injury, the
physicians “generate what’s called a differential diagnosis” and attempt to eliminate
10 Dr. Dias reviewed the emergency medical technicians’ records from September 15, 2001; Shane’s medical records from Holy Cross and Children’s; the autopsy report; Dr. Pollanen’s supplementary report prepared in 2015; Shane’s pediatrician’s records; 2002 trial testimony from Dr. Jaafer, the pediatric ophthalmologist, Guzowski, and the appellant; reports attached to the appellant’s post-conviction petition prepared by Patrick Barnes, M.D., a pediatric neuro-radiologist, and Dr. Arden; and reports prepared relative to the retrial by Dr. Vezina; a report prepared by another State’s expert who ultimately did not testify at the retrial; and reports prepared by all of the defense experts who testified at the retrial.
-12- possible causes of the injury through laboratory tests and diagnostic studies. He
identified certain findings that are “highly correlated” with abusive head trauma,
including the triad. Subdural hematoma is a hallmark of abusive head trauma, as it is
present in 80% to 85% of cases. Likewise, retinal hemorrhages are found in 80% of
abusive head trauma cases. Neck injuries or injuries to the cervical spine also are
prevalent, being found in 70% of abusive head trauma cases. Ligamentous injuries,
particularly injuries to the ligaments between the skull and the second vertebra, are found
in 78% of abusive head trauma cases involving infants. However, there is no single
finding (or combination of findings) pathognomonic, i.e., uniquely present, in abusive
head trauma. The treating physicians consider all the pertinent findings together with the
clinical history. Only after eliminating alternative causes and mechanisms of injury do
they reach a diagnosis of abusive head trauma.
After reviewing all the relevant materials in Shane’s case, Dr. Dias concluded that
Shane sustained his brain injuries sometime between 10:15 a.m. and 2:00 p.m. on
September 15, 2001. Shane was fully functioning and “jolly” when he arrived at
Guzowski’s house around 10:15 a.m.; by 2:00 p.m., he was not breathing and was
comatose. That was highly suggestive that “something significant had happened
neurologically during that time.” The findings of subdural hematomas and retinal
hemorrhages supported the diagnosis of abusive head trauma. The presence of numerous
retinal hemorrhages “in all four quadrants” was the “most highly correlative” abusive
-13- head trauma finding.11 The location of the subdural hematomas in the back part of
Shane’s brain also was consistent with abusive head trauma.
Dr. Dias opined that Shane’s treating physicians ruled out metabolic disorders that
can be “mimics” for abusive head trauma, and there was no evidence that Shane had any
of the various types of coagulation disorders that can cause brain hemorrhages.12 He
further opined that there were no findings to support the defense theory that Shane died
as a result of rebleeding of a chronic subdural hematoma. That theory, as Dr. Pollanen
later summarized it, was that during an otherwise uncomplicated vaginal delivery a baby
could develop a subdural hematoma from compression of the skull; the subdural
hematoma could become chronic; and the chronic subdural hematoma might later
spontaneously rebleed, resulting in brain injury and death. Dr. Diaz agreed that it is not
unusual for the mere trauma of an ordinary vaginal delivery to cause a subdural
hematoma in an infant, and indeed around 26% of otherwise healthy infants develop a
birth-related subdural hematoma. These infants tend to be completely asymptomatic,
however, and, “as a rule,” an asymptomatic subdural hematoma usually resolves within
11 Dr. Dias mistakenly believed that Shane also had retinal thickening, known as retinal folds. Dr. Jaafar later testified that retinal folds were not found during the ophthalmology exam, however. They were found during Shane’s autopsy, but as Dr. Pollanen testified, the manner by which the eye is prepared for dissection creates retinal folds. As such, the presence of retinal folds cannot be considered in determining the cause of death. 12 Shane’s laboratory test results showed that he had disseminated intravascular coagulopathy (“DIC”). DIC is commonly caused by brain trauma. Thus, the presence of DIC was consistent with the coagulopathy being the result of, not the cause of, the brain trauma.
-14- 4-6 weeks.13 A rebleed into a subdural hematoma could occur as a result of trauma,
abusive or accidental, but it could not cause a brain injury significant enough to cause
death. Dr. Dias opined that there was “not a shred of evidence to . . . support” the theory
that rebleeding of an otherwise asymptomatic chronic subdural hematoma could cause
brain collapse, coma, and death.
According to Dr. Dias, Shane’s subdural hematomas and retinal hemorrhages were
caused by trauma, that is, shaking and/or impact on a soft surface, but his subdural
hematomas were too small to have caused his death in and of themselves. Rather, the
inflicted trauma also caused “transient concussion” at the cervical medullar junction,
where the base of the brain stem and the cervical spine connect. That injury, in turn,
caused apnea (disordered breathing); the apnea caused hypoxia; and the hypoxia caused
brain swelling, which ultimately caused Shane’s death.
In forming his opinions, Dr. Dias relied upon numerous studies and literature
reviews, including a 2011 article published in the Houston Journal of Health Law and
Policy, entitled “A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome,”
by Sandeep K. Narang, M.D., J.D. (hereinafter “Narang I”); and a 2004 article published
in the Archives of Pediatric Adolescent Medicine, entitled “Analysis of Perpetrator
Admissions to Inflicted Brain Injury in Children,” by Suzanne P. Starling, M.D., et al.
(hereinafter “Starling”).
13 Dr. Dias did not express an opinion as to whether Shane had an asymptomatic birth-related subdural hematoma.
-15- Dr. Vezina, a pediatric neuroradiologist at Children’s, was accepted by the court
as an expert in that field. He reviewed Shane’s CT scans from September 15, 2001, and
September 17, 2001, as well as an MRI of Shane’s brain and cervical spine from
September 18, 2001. These studies showed that Shane had multiple hemorrhages in the
subdural and subarachnoid spaces surrounding the brain. Dr. Vezina opined that the
hemorrhages were acute (i.e., not chronic) and all of the same age, and that they had
occurred sometime between September 5, 2001, through the afternoon of September 15,
2001. The first CT scan showed slight, if any, cerebral edema, but the second CT scan
revealed “tremendous edema.” The progression of the edema between the first and
second CT scans narrowed the window of time during which a traumatic injury could
have occurred to the 24-hour period before the first CT scan was performed, at 7:00 p.m.
on September 15, 2001.
Dr. Vezina opined that Shane’s brain edema resulted from severe hypoxic
ischemic encephalopathy (“HIE”), i.e., brain injury due to oxygen deprivation. Absent a
medical explanation for the swelling, such as evidence of a disease process, the
combination of subdural hematomas, subarachnoid hemorrhages, and severe brain
swelling evidenced trauma. Dr. Vezina saw “no convincing evidence that there was a
preexisting subdural [hematoma]” that predated the acute injuries he observed. He
opined, however, that even if Shane had a chronic subdural hematoma, that would not
explain all the imaging findings that he saw. According to Dr. Vezina, rebleeding of a
chronic subdural hematoma almost never causes subarachnoid hemorrhages. Moreover, a
rebleed of a chronic subdural hematoma usually happens slowly and does not produce
-16- catastrophic brain injury. Shane’s injuries were simply “not something that we see in
spontaneous rebleeding of subdural hemorrhages.”
Dr. Pollanen is the chief of the Ontario Forensic Pathology Service. In 2001, he
was a visiting medical examiner in Washington, D.C. He testified that a forensic
pathologist will expect to see some combination of the following “major observations” on
autopsy when the cause of death is head trauma: “scalp bruising, skull fracture, subdural
hemorrhage, retinal hemorrhage, retinoschisis,[14] [HIE], and traumatic brain or spinal
cord injury.” He explained that some disease processes can mimic traumatic brain injury.
For example, blood clotting disorders, such as hemophilia, can cause subdural
hematomas. Dr. Pollanen opined that the “weight of the evidence . . . in the [medical]
literature” supports the view that “shaking can cause . . . . [f]atal head injury” “but it’s
rare.” In his testimony, Dr. Pollanen carefully avoided using the terms shaken baby
syndrome or abusive head trauma because, in his view, both “presuppose how the head
injury has occurred.”
With respect to Shane, Dr. Pollanen explained that he had concluded in 2001 that
the cause of death was shaken baby syndrome and he continued to hold the opinion that
Shane died as a result of inflicted brain injury. The “diagnosis of a fatal head injury
rest[ed] upon the presence of subdural hemorrhage, retinal hemorrhage and [HIE].” He
balanced those diagnostic criteria “against no direct evidence of traumatic injury to the
scalp, skull, brain, spinal cord, or eye.” In 2001, Dr. Pollanen had opined that “axonal
14 “Retinoschisis” is the splitting of the retinal layers.
-17- swelling” in Shane’s brain stem and cervical spinal cord evidenced “trauma” caused by
“abnormal motion or movement of the neck.” He had since reconsidered that opinion.
Subsequent research had revealed that axonal swelling can be caused by trauma, lack of
oxygen supply to the brain, or both. Therefore, given the “lack [of] specificity” in the
finding of axonal swelling on autopsy, Dr. Pollanen no longer believed that that finding
supported the conclusion that Shane died as a result of abusive head trauma. It was not
inconsistent with that being the cause of death, however.
Dr. Pollanen explained that autopsy findings of “retinal folds” or “retinoschisis,
which is where the retina peels away from the back of the eye,” did not evidence trauma
either because the way that an eyeball is “process[ed]” for an autopsy actually “produces
folds in the retina.” Dr. Pollanen found no evidence on autopsy of a cerebrocortical
injury, despite there being “some indication” in the “neuroimaging reports . . . [of the
presence of] actual brain damage from trauma.” Finding that type of injury would be
“very unusual . . . in an infant head injury case.”
According to Dr. Pollanen, “fatal head injury” remained the “best unifying
diagnosis” in Shane’s case because of the findings of subdural hematomas, retinal
hemorrhages, and HIE, coupled with the “accumulated negative evidence in the autopsy.”
In other words, the absence of evidence of a disease process or other mechanism for the
injuries to Shane’s brain supported a finding that his injuries and death were caused by
head trauma. Dr. Pollanen noted that although the conclusion that Shane died as a result
of head trauma was not speculative, as it was supported by the medical literature, the
evidence supporting that conclusion was “indirect” and “minimally adequate,” by
-18- comparison to an ordinary cause of death opinion in a homicide case. The conclusion
would be “stronger” with evidence of external trauma to Shane’s scalp or skull. Dr.
Pollanen was unable to opine as to exactly how the head injury occurred. Based upon his
literature review, however, he considered the injury to be consistent with shaking or
“impact on a soft deformable surface.”
Dr. Pollanen added two caveats. First, given the “level of certainty issues” it
would be reasonable to classify the cause of Shane’s death as “undetermined.”
Nevertheless, head trauma remained the “most likely determination” in light of the
medical literature. Second, although he had determined the cause of death to be
homicide, he did not intend that opinion to “be interpreted as medical proof of
criminality.”
Regarding the timing of Shane’s injuries, Dr. Pollanen opined that, on autopsy,
Shane’s subdural hematomas appeared to be in the very early healing phase. This was
consistent with Shane’s having had acute subdural hematomas when he was admitted to
the hospital, on September 15, 2001, that began to heal during the ten-day hospitalization
preceding his death. Thus, Shane’s subdural hematomas were not chronic. Dr. Pollanen
otherwise was unable to offer an opinion about the timing of the head injury that caused
the acute subdural hematomas.
Like Dr. Dias, Dr. Pollanen rejected the defense theory that Shane’s death could
have been caused by a rebleed of a chronic subdural hematoma. Although the theory was
“not entirely unreasonable,” he could not find “a single peer reviewed published case
report of fatal rebleeding of a chronic subdural hemorrhage in an infant.” In light of the
-19- complete absence of evidence to support the theory, he could not conclude that it was a
possible cause of Shane’s injury.
Dr. Jaafar is a pediatric ophthalmologist at Children’s who treated Shane in 2001.
At that time, he observed multiple retinal hemorrhages in both eyes, of different sizes and
across multiple layers of the retina. He opined that it is “universally” accepted among
pediatric ophthalmologists that multiple, multilayered, bilateral retinal hemorrhages like
Shane’s are highly correlated with abusive head trauma.
Dr. Jackson testified that “[a]busive head trauma is injury to the head and its
contents as a result of an inflicted event or events.” The shift from the use of the term
shaken baby syndrome to abusive head trauma was a reflection of the medical (and
scientific) consensus that “there can be a variety of mechanisms that take place for any
given child or different children.”
Dr. Jackson explained that the process she uses as a child abuse pediatrician to
diagnose abusive head trauma is “really no different than anything else in medicine.”
She considers the child’s clinical history, looks at lab reports and other diagnostic studies
performed, recommends further tests or studies, as necessary, and then “pools all of that
information” to “formulate a diagnosis.” That process includes ruling out other medical
diseases and conditions that can mimic the internal findings often associated with abusive
head trauma. Dr. Jackson emphasized that she never has used the term “triad” in her
work, nor does she believe that the presence of subdural hematomas, retinal hemorrhages,
and brain swelling (or the absence of some of those findings) necessitate a diagnosis of
abusive head trauma (or a rejection of that diagnosis).
-20- In Shane’s case, she was asked to evaluate him when he was at Children’s. She
examined Shane, reviewed his radiological scans and his chart, and spoke to Paris and the
appellant about Shane’s clinical history. At her recommendation, testing was performed
to rule out a metabolic disease “which can be a mimicker of abus[ive] head trauma.”
After considering all of that information, she concluded that “Shane had injuries
consistent with shaken baby syndrome and that there were other findings observed by
EMS and at the hospital when he initially presented that were concerning for possible
suffocation,” including the petechiae on his forehead, as well as a report of blood in his
mouth.
Upon reviewing her 2001 diagnosis in 2015, Dr. Jackson did not alter her
conclusion that Shane’s injuries were consistent with abusive head trauma, and that other
signs were indicative of possible suffocation. She opined that the internal findings of
subdural hematomas, subarachnoid hemorrhages, widespread bilateral retinal
hemorrhages, and cerebral swelling were unexplained by Shane’s clinical history. She
concluded that the injuries were “consistent with a mechanism of rotational acceleration
and deceleration,” i.e., shaking, but that she could not “rule[] out . . . impact” against a
soft surface.15
John Plunkett, M.D., the only defense witness called at the pre-trial hearing,
testified by video deposition. Dr. Plunkett is a pathologist. He formerly was the
15 She also continued to hold the view that the presence of petechiae on Shane’s forehead was consistent with suffocation and was inconsistent with “bleeding abnormalities” because the petechiae would not have been “isolated to the head” in the latter scenario. Suffocation did not “account for all of [Shane’s] injuries,” however.
-21- laboratory and medical education director at a community hospital in Minnesota. He also
had been the medical examiner in several counties in that state.
Dr. Plunkett testified that “it was [his] opinion that shaking could not cause brain
injury.” He based this opinion on biomechanical studies that show, in his view, that the
acceleration caused by shaking is much less than that caused by impact, even minor
impact. Dr. Plunkett opined that, alternatively, to the extent that shaking an infant can
cause brain injury, the injury would be to the infant’s neck, which would produce further
injury to the cervical spine and the brain stem.
Dr. Plunkett opined that it is possible for rebleeding from a chronic, asymptomatic
subdural hematoma to cause a seizure and apnea, resulting in HIE and brain collapse.
After reviewing Shane’s autopsy report, he concluded that, on September 25, 2001,
Shane had a small, chronic subdural hematoma that was “at least two or three weeks old.”
He conceded that any rebleeding of a chronic subdural hematoma in Shane’s case had
been “small,” but maintained that even a small amount of subdural bleeding could cause
a “critical increase” in intracranial pressure, resulting in a seizure or apnea or both.
Dr. Plunkett disagreed with the State’s experts that the presence of retinal
hemorrhages are indicative of abusive head trauma. He opined that intracranial pressure,
not shaking, causes retinal hemorrhages. Moreover, the type of retinal hemorrhages that
Shane had—white-centered as opposed to red-centered—is correlated with disease rather
than with trauma. Dr. Plunkett’s ultimate opinion was that Shane’s manner of death was
undetermined. The existence of a chronic subdural hematoma was the most “significant
finding,” but he could not say that it caused Shane’s death.
-22- On January 15, 2016, the court reconvened to announce its decision from the
bench. It ruled that “the opinions tendered by the State’s experts” met the Frye-Reed
standard in that they are “generally accepted within the scientific community.” In
addition, the opinions satisfied the “test under [Rule] 5-702” because the experts were
“offering opinions that are based upon reasonable scientific analysis as well as facts that
are available to those experts.”16
After the court made its ruling, the appellant elected a bench trial. The trial was
held over nine days in February 2016. The State called twenty witnesses, including Paris;
Sherman; Guzowski; Menza; and all of the medical experts who had testified at the
pretrial hearing. Drs. Dias and Jackson opined to a reasonable degree of medical
certainty that Shane’s brain injuries and resulting death were caused by abusive head
trauma. Dr. Jaafar opined that the “most probabl[e]” cause of Shane’s retinal
hemorrhages was “non-accidental trauma.” Dr. Vezina opined that the “constellation of
findings [in Shane’s case], the subarachnoid hemorrhages, the subdural hemorrhages, the
16 The court found that it was a much closer question whether defense medical experts should be permitted to testify that Shane’s death was caused by rebleeding from a chronic subdural hematoma. The court reasoned that although it is generally accepted in the medical community that an asymptomatic, chronic subdural hematoma can rebleed, and that a rebleed can cause “problems,” it is not generally accepted that a rebleed can cause “a severe collapse, coma, or death[.]” The court ruled that the defense medical experts would be permitted to “set forth the negative proposition,” i.e., that a rebleed of a chronic subdural hematoma could not be “ruled out” as a contributing factor in Shane’s brain injury, but they would not be permitted to “express the positive or the affirmative of that proposition” “that a rebleed into an existing subdural hematoma, either spontaneously or as a result of a trivial injury, can cause severe brain injury, collapse, and death.”
-23- acute severe cerebral swelling, absent a medical reason, . . . , more likely than not, this is
a picture of a traumatic insult to the brain accompanied by hypoxic ischemic injury to the
brain.” Dr. Pollanen opined that “the best unifying diagnosis in [Shane’s] case is fatal
head injury.”
The appellant did not testify. He called one lay witness (a friend of the family
who visited Shane in the hospital); played Dr. Plunkett’s video deposition; and called
four additional expert medical witnesses: Dr. Arden, who as mentioned, was the forensic
pathologist who supervised Shane’s autopsy; Patrick Barnes, M.D., a pediatric
neuroradiologist; Michael Laposata, M.D., a pathologist; and Joseph Scheller, M.D., a
pediatric neurologist.
The appellant’s expert medical witnesses disagreed about the cause of Shane’s
death but agreed to a reasonable degree of medical probability that it was not abusive
head trauma. Dr. Arden opined that Shane’s cause of death was “undetermined.” He
pointed to the lack of evidence of impact to Shane’s skull, broken ribs, or a neck injury,
aside from the axonal injuries that could have resulted from hypoxia. In his view, in the
absence of such external injury evidence, subdural hematomas and retinal hemorrhages
were not specific enough findings to support a diagnosis of abusive head trauma. He
further opined that Shane had a chronic subdural hematoma that predated his
hospitalization on September 15, 2011, and that, when he was admitted to the hospital,
there was evidence of a small amount of acute rebleeding into that existing subdural
hematoma. Dr. Arden acknowledged that because the rebleed was “mild and small” and
did not “press on the brain,” it could not have caused Shane’s brain collapse and death.
-24- Rather, the presence of the chronic subdural hematoma was another piece of evidence
that, in his view, cast doubt upon the State’s theory that Shane died as a result of acute,
inflicted trauma.
Dr. Barnes opined that Shane died as a result of HIE, but that it could not be
determined with any certainty whether accidental or non-accidental external trauma or an
internal mechanism caused that condition.
Dr. Laposata testified that Shane suffered from “hereditary hemorrhagic
telangiectasia, or HHT,” a “reasonably rare” coagulation disorder. HHT causes blood
vessels to leak and sometimes to collapse entirely. Dr. Laposata based his opinion on
evidence that Shane had experienced “chronic bleeding,” including the presence of a
chronic subdural hematoma and a finding of a “scleral hemorrhage,” at his two-month
well-visit.17 Dr. Laposata was aware that the appellant’s father had had a brother who
died in infancy from an arteriovenous malformation, which might have indicated a family
history of coagulation disorders.18 In addition, Shane’s presentation on September 15,
2001, was consistent with HHT, according to Dr. Laposata. In particular, bleeding from
the nose and petechiae on the forehead both are diagnostic criteria for HHT, although
these symptoms more often present in adolescence.
17 The sclera is the “white outer coat of the eyeball.” Dorland’s, at 1678. A “scleral hemorrhage” is a broken blood vessel on the sclera. 18 An arteriovenous malformation is an abnormal development of arteries or veins. Stedman’s Medical Dictionary, 1147 (28th ed. 2006).
-25- Dr. Scheller opined that Shane died as a result of a hypoxic injury to his brain
resulting from a seizure that, in turn, resulted from a subarachnoid hemorrhage. In his
view, the subarachnoid hemorrhage was caused by a bleeding disorder, not by trauma.
He based his opinion on the absence of evidence of head impact; the widespread nature
of the hemorrhages; and the fact that Shane had an elevated PTT while at Holy Cross
Hospital.19 Dr. Scheller did not dispute that shaking can cause brain injury and death in a
child of Shane’s age, but disagreed that that is what happened to Shane.
On rebuttal, the State recalled Drs. Jackson and Pollanen. Dr. Jackson opined that
HHT is an autosomal dominant genetic blood clotting disorder, meaning that one of
Shane’s parents would have to have had the condition in order to pass it to Shane. There
had been no evidence presented that the appellant or Paris had been diagnosed with HHT.
In addition, HHT usually presents much later in life and one of the diagnostic criteria is
the presence of an arteriovenous malformation, which Shane did not have. Dr. Pollanen
opined that there was “no basis for [a] diagnosis [of HHT] in [Shane’s] case, and . . . [he
had] exclude[d] it.” Specifically, there were no findings of an arteriovenous
malformation or telangiectasia on autopsy,20 two of the four diagnostic criteria;21
therefore, HHT was ruled out as a diagnosis.
19 PTT stands for “partial thromboplastintime.” Dorland’s, at 1551. It is a blood test that measures the time it takes a patient’s blood to clot. See www.medcine.mcgill.ca/physio/vlab/bloodlab/PT_PTT.httm., available at https://perma.cc/RB9T-M7KL (last visited Jan. 18, 2018). 20 According to Dr. Pollanen, telangiectasia are “small malformed blood vessels,” located most often on the lips, tongue, fingertips, and, occasionally, internal organs.
-26- On March 24, 2016, the court reconvened and ruled from the bench. It found,
beyond a reasonable doubt, that “shaking and/or soft impact trauma inflicted upon an
infant can cause subdural hematomas, subarachnoid hematomas and hypoxic brain injury
resulting in death.” In this case, beyond a reasonable doubt, “the defendant inflicted
abusive head trauma upon [Shane], that was the cause of his death by either shaking
and/or causing soft impact trauma to the child.” The State had “excluded any medical
process except abusive head trauma to the extent that that might be viewed as a medical
process as the cause of Shane’s death based upon the testimony of [its] experts.” The
State also had “excluded any accidental trauma” as the cause of Shane’s death.22
The court stated that it was not persuaded by the testimony of the defense medical
experts. It found that they displayed significant bias in that they were advocates for a
change in the prevailing view in the medical community that abusive head trauma is an
accepted diagnosis. In addition, the opinions of the defense experts were “not . . . well
founded in the medical literature[.]” By contrast, the opinions of the State’s experts were
“well within the mainstream and [were] well supported by the facts and the medicine.”
The court emphasized that the presence of subdural hematomas, subarachnoid
hematomas, and bilateral, diffuse retinal hemorrhages is highly correlated with abusive
head trauma and that Shane had all of these diagnostic findings. The defense experts did
21 The other two diagnostic criteria are “recurrent spontaneous . . . nosebleeds” and a “first-degree relative diagnosed with the disorder.” 22 As noted, the defense never took the position that Shane’s injuries resulted from an accident.
-27- not dispute that those findings in combination were suggestive of abusive head trauma,
but pointed to other possible explanations for each finding. The main defense theory—
that Shane’s brain collapse was caused by rebleeding of a chronic subdural hematoma—
was, in the court’s view, a “tempest in a teapot.” Even if there were evidence that Shane
had a chronic subdural hematoma and that he suffered a rebleed of that subdural
hematoma, there was no evidence of a causal connection between that and his
catastrophic brain injury. The court also rejected the defense theory that Shane’s brain
injury was caused by an arteriovenous malformation that spontaneously ruptured or by a
genetic blood clotting disorder, such as HHT.
The court found Dr. Pollanen’s testimony to be the most persuasive because he
was very careful in framing his opinions to ensure that he explained his level of certainty
appropriately. Nevertheless, Dr. Pollanen opined that it was more likely than not that
Shane died as a result of head trauma.
Turning to the non-medical evidence, the court found that the circumstances
surrounding the appellant’s purchase of a $750,000 life insurance policy on Shane’s life
was strong evidence of motive. The court found the evidence, from Menza, that the
appellant said he was purchasing the policy as a savings plan for Shane on the advice of
his mother (Guzowski), to defy credulity.23 Indeed, Guzowski had testified that she had
advised the appellant against doing so. Moreover, the monthly premium for the policy
23 The trial judge mistakenly stated that the appellant made this remark to the State Farm claims’ adjuster, when he actually made it to Menza. Menza no longer remembered the appellant having made that statement, but agreed that he probably had if Menza reported it to the claims’ adjuster in 2001.
-28- equaled ten percent of the appellant’s monthly income. And, if the appellant had
purchased the policy innocently, he would have had no reason to lie to Paris and to
Sherman about doing so. The timing of the payment of the first premium, the day before
Shane suffered the brain injury that lead to his death, also supported a finding of guilt.
The court found that the appellant “reasonably would have believed” from what Menza
had told him that the policy became effective on that date, even though that belief turned
out to be erroneous.
For all of those reasons, the court found the appellant guilty of first-degree
premeditated murder, child abuse resulting in murder, and child abuse.
DISCUSSION
I.
Expert Medical Testimony
A. Contentions
The appellant maintains that for decades, including at the time of his first trial, it
was generally accepted in the relevant medical communities that abusive head trauma
could be inflicted on young children without any external trauma and that abusive head
trauma was the “only plausible explanation” for the “triad” of internal findings—subdural
hematomas, retinal hemorrhages, and encephalopathy—absent a reported history of a car
accident or other serious traumatic event. Recently, he asserts, “significant controversy”
has developed in the relevant medical communities about using the triad of internal
findings as a basis to diagnose abusive head trauma, because studies have shown that
“natural disease processes” can mimic those findings; accidental trauma can cause the
-29- same findings; and “researchers have been unable to demonstrate that the injuries present
in shaken baby cases can be caused by shaking.” The appellant contends the circuit court
erred by ruling, under Frye-Reed, that abusive head trauma remains a generally accepted
diagnosis in the relevant medical communities and, in particular, that it can be diagnosed
based on internal findings alone. Therefore, he argues, the court erred by denying his
motion to preclude the State’s medical experts from testifying at trial.
The State responds that the appellant’s challenge to its medical experts’ testimony
did not implicate the Frye-Reed general acceptance test because the appellant did not
contest that abusive head trauma is a legitimate and accepted diagnosis, nor did he argue
that any of the diagnostic tests performed on Shane were unreliable or not generally
accepted in the relevant medical communities. According to the State, the appellant’s
principal contention, which “appears to be that the amount and/or type of evidence that
the experts relied upon in this case did not permit a diagnosis of [abusive head trauma],”
is a Rule 5-702 factual basis challenge, not a Frye-Reed challenge. (Emphasis in
original.) The State asserts that the appellant has waived any Rule 5-702 challenge,
however, because he does not argue that the court abused its discretion by admitting the
medical experts’ testimony under the rule. Alternatively, if Frye-Reed is implicated, the
State maintains that abusive head trauma remains generally (and, in fact,
overwhelmingly) accepted as a valid and reliable diagnosis when internal findings
consistent with trauma are unexplained by an infant’s clinical history and other disease
processes have been excluded, notwithstanding the absence of external findings of
trauma.
-30- B.
Frye-Reed
In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the Court of Appeals for
the District of Columbia considered the admissibility, under the federal common law of
evidence, of expert testimony that a systolic blood pressure lie detector test showed that
Frye was innocent of the murder he was charged with committing. Frye had confessed to
the murder but later claimed his confession was false.24 His lawyers sought to call
William Marston, Ph.D., a psychologist and inventor of what he dubbed the “deception
test,” to testify about the test and that, when administered to Frye, it had revealed that
Frye was telling the truth when he said he did not commit the murder. The trial court
refused to allow Dr. Marston to testify. Frye was convicted and thereafter appealed.
The appellate court affirmed, opining:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
24 We glean much of the background facts in Frye from an article discussing its fascinating history. See Kenneth J. Weiss, M.D., Clarence Watson, J.D., M.D., Yan Xuan, M.D., Frye’s Backstory: A Tale of Murder, a Retracted Confession, and Scientific Hubris, J. Am. Acad. Psychiatry L., Vol. 42, at 226–233 (2014).
-31- Id. at 1014. Concluding that the challenged deception test “had not yet gained” such
general acceptance, the court upheld the trial court’s ruling.25
Over the next several decades, the majority of state appellate courts adopted the
Frye general acceptance test as the standard for admissibility of expert testimony about a
novel scientific technique. See Reed, 283 Md. at 382 (collecting cases). The Maryland
Court of Appeals did so in Reed. In that case, soon after she was raped by a stranger, the
victim began receiving telephone calls from her perpetrator. She reported the calls to the
police and, with their assistance, recorded one of them. The defendant was arrested for
the rape and gave voice exemplars. An expert in voice identification spectography,
otherwise known as “voiceprints,” used a spectrograph machine to compare the voice on
the telephone recording to the defendant’s voice exemplar. He concluded from the result
that the voices were the same. The trial court admitted that expert testimony, and the
defendant was convicted.
The case reached the Court of Appeals, which reversed. It explained that the
question whether expert testimony will give “‘appreciable help’” to the jury is within the
discretion of the trial judge to decide, because the answer will depend upon “the
particular circumstances of each case” and cannot be reached by reference to “a rule or
set of rules.” Id. at 380 (quoting 7 Wigmore on Evidence § 1923 (Chadbourn rev. 1978)).
When expert testimony is “based on the application of [a] new scientific technique[],”
however, the court must make a threshold finding that “the particular scientific method is
25 Dr. Marston went on to gain fame, in 1941, for creating the Wonder Woman comic book character. Id.
-32- itself reliable.” Id. Because “the question about the reliability of a scientific technique or
process does not vary according to the circumstances of each case[,]” it is “inappropriate
to view this threshold question of reliability as a matter within each trial judge’s
individual discretion.” Id. at 381.
If the validity and reliability of a novel scientific technique is broadly and
generally accepted in the scientific community, the trial court can take judicial notice of
that fact. See id. at 380 (“On occasion, the validity and reliability of a scientific
technique may be so broadly and generally accepted in the scientific community that a
trial court may take judicial notice of its reliability.”). Likewise, the court can take
judicial notice of the fact that the validity and reliability of a scientific technique is
broadly and generally rejected by the scientific community. Id. If neither situation
applies, the court must take evidence, and may independently consider publications and
other sources of information, and use the Frye general acceptance test to determine
whether the evidence is admissible. “Frye was deliberately intended to interpose
substantial obstacle to the unrestrained admission of evidence based upon new scientific
principles . . . .’” Id. at 386 (quoting People v. Kelly, 549 P.2d 1240, 1245 (Cal. 1976)).
In the first two decades following the Reed decision, most of the “Frye-Reed”
cases decided by this Court and the Court of Appeals fit nicely within the “new scientific
technique” mold of Frye and Reed. See Kelley v. State, 288 Md. 298, 302 (1980)
(applying Frye-Reed general acceptance test to hold that “testimony which directly or
indirectly conveys the results of [a polygraph] test[] should not be admitted”); State v.
Collins, 296 Md. 670 (1983) (applying Frye-Reed test to hold that expert opinion about
-33- hypnotically enhanced witness testimony is inadmissible); U.S. Gypsum Co. v. Mayor
and City Council of Baltimore, 336 Md. 145, 182–83 (1994) (applying Frye-Reed test to
hold that surface dust sampling to determine asbestos contamination levels is a generally
accepted technique); Schultz v. State, 106 Md. App. 145 (1995) (holding that the Frye-
Reed test does apply to horizontal gaze nystagmus field sobriety tests, and taking judicial
notice of the general acceptance of those tests); Keene Corp., Inc. v. Hall, 96 Md. App.
644 (1993) (applying Frye-Reed test to hold that polarized light microscopy, while
generally accepted as a technique to detect asbestos fibers in building materials, is not
generally accepted as a technique to detect those fibers in human tissue).
Meanwhile, in 1993, the United States Supreme Court rejected the Frye general
acceptance test as the sole measure of admissibility for expert scientific testimony in the
federal courts. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the
Court held that Federal Rule of Evidence (“FRE”) 702, adopted in 1975, superseded the
Frye test and governed the admission of such evidence. When Daubert was decided, that
rule provided that “a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify . . . in the form of an opinion or otherwise” about
“scientific, technical, or other specialized knowledge [that] will assist the trier of fact to
understand the evidence or to determine a fact in issue.” The Court read FRE 702 to
mandate a threshold determination as to whether the “scientific testimony” at issue is
“not only relevant, but reliable.” Id. at 589. The Court announced a non-exclusive list of
factors that may be pertinent to that determination: (1) “whether a theory or technique . . .
can be (and has been) tested”; (2) “whether [it] has been subjected to peer review and
-34- publication”; (3) “the known or potential rate of error”; and (4) whether it is “general[ly]
accepted” within the relevant scientific community. Id. at 593–94. The Court intended
the Daubert analysis to be more flexible than the “uncompromising ‘general acceptance’
test” and to give trial courts greater discretion to admit scientific expert testimony that is
relevant and founded on sound principles, even though novel or controversial. Id. at 596.
Since Daubert was decided, most state courts have adopted its multi-factor
analysis in place of the Frye general acceptance test. See Savage v. State, 455 Md. 138,
178–79 & n.3 (2017) (Adkins, J., concurring, joined by Barbera, C.J., and McDonald, J.)
(discussing the nation-wide trend toward adopting Daubert and advocating for Maryland
to do so). Although Maryland has not done so, our jurisprudence nevertheless has
“drift[ed]” toward the Daubert standard, id. at 187, in that the Court of Appeals 1) has
used the Frye-Reed test “not only to evaluate scientific methods, but also to assess
scientific conclusions”; and 2) has applied the Frye-Reed test to established, as well as
novel, scientific methods. Id. at 180–81.
The drift toward applying Frye-Reed to scientific conclusions, not just techniques,
was forecast in Wilson v. State, 370 Md. 191 (2002), in which the Court held that an
expert opinion based on a statistical rule that was not accepted in the scientific
community was not admissible. And in State v. Smullen, 380 Md. 233, 266 (2004),
although in dicta, the Court observed that “[m]ost appellate courts that have considered . .
. syndromes [such as battered spouse/child] have quite properly regarded them as in the
nature of novel scientific theories and thus have subjected them to analysis under” Frye
or Daubert. (Emphasis added.) The Court fully embraced this expansion of Frye-Reed
-35- in Montgomery Mutual Ins. Co. v. Chesson, 399 Md. 314 (2007) (“Chesson I”);
Blackwell v. Wyeth, 408 Md. 575 (2009); and Chesson v. Montgomery Mutual Ins. Co.,
434 Md. 346 (2013) (“Chesson II”).
Chesson I, a workers’ compensation case, concerned the admissibility of expert
general medical causation opinion testimony that exposure to mold causes a cluster of
neurocognitive and musculoskeletal symptoms known as “sick building syndrome.” The
plaintiffs’ expert employed medical tests to reach a conclusion on medical causation that
was not so widely accepted as to be the proper subject of judicial notice. In the Court’s
view, the case involved more than a generally accepted medical opinion and diagnosis. It
held that a Frye-Reed hearing was necessary to determine “whether the medical
community generally accepts the theory that mold exposure causes the illnesses that
respondents claimed to have suffered, and the propriety of the tests [the expert] employed
to reach his medical conclusions.” 399 Md. at 328.
The expert opinion testimony at issue in Blackwell concerned the general medical
causal relationship, if any, between thimerosal, a preservative used in childhood vaccines,
and autism. The trial court had ruled the plaintiff’s expert’s testimony inadmissible under
Frye-Reed (and Rule 5-702). The case reached the Court of Appeals, which framed the
“essence” of the issue before it as whether the Frye-Reed test applies “to the analysis
undertaken by an expert where the underlying data and methods for gathering this data
are generally accepted in the scientific community but applied to support a novel theory”
of medical causation. 408 Md. at 596. Because the Court had “not in the past had
occasion to scrutinize the analytical phase of a scientific process underlying a novel
-36- scientific opinion, where the underlying data may otherwise be generally accepted in the
scientific community,” it looked to the decisions of federal courts that had done so under
the Daubert standard. Id. at 604–05.
In particular, the Blackwell Court adopted the “analytical gap” concept, described
by the Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)
(affirming, under Daubert, the exclusion of expert testimony that PCBs caused a
plaintiff’s lung cancer because there was “too great an analytical gap between the data
and the opinion proffered”). Emphasizing that “[g]enerally accepted methodology . . .
must be coupled with generally accepted analysis in order to avoid the pitfalls of an
‘analytical gap,’” the Blackwell Court affirmed, holding that the plaintiff’s expert’s
medical causation opinion was not generally accepted in the scientific community and
therefore was not admissible, notwithstanding that it was based on generally accepted
methods. 408 Md. at 608.
In Chesson II, an appeal after remand of the Chesson I mold/sick building
syndrome case, the Court reaffirmed its endorsement of the Joiner/Daubert “analytical
gap” concept, stating that “[a] trial judge . . . cannot admit expert testimony based on
scientific methodology without consideration of whether the analysis itself is flawed and
posits an ‘analytical gap.’” 434 Md. at 357. On remand, the trial court had held a Frye-
Reed hearing and ruled the plaintiffs’ proposed expert opinion testimony on medical
causation admissible. This Court reversed, and the Court of Appeals affirmed our
decision. It held that the process the expert had used to reach his opinion on medical
causation, although described as a differential diagnosis, which is a generally accepted
-37- diagnostic method, was a distortion of that methodology. Neither the methodology nor
the expert’s conclusion based on that methodology were generally accepted, and
therefore the expert testimony was not admissible.
Most recently, in Savage v. State, a defendant shot and killed one of a group of
people accompanying his ex-wife to pick up their children from his house. In support of
his defenses of perfect and imperfect self-defense, he sought to admit expert testimony by
a neuropsychologist that prior traumatic injuries to his brain would have caused him to
perceive as threatening conduct that was not in fact threatening and to react accordingly.
The trial court held a Frye-Reed hearing and excluded the proposed evidence. This Court
affirmed, as did the Court of Appeals. It held that the expert’s analysis “did not bridge
the ‘analytical gap’ between the data available to him and his ultimate conclusions.” 455
Md. at 158. Specifically, although the expert had administered tests that were generally
accepted in his field, his “ultimate opinions, that ‘under such conditions of chaos and
stress’ [the defendant] ‘would be more likely to perceive himself to be facing an
imminent threat and have greater difficulty controlling his reactions[,]’ and that ‘[the
defendant] views the world through an untrusting and suspicious perspective, and often is
hyper-vigilant to possible threats[,]’ are conclusory.” Id. at 164.
On the record before us . . . we are unable to conclude that [the expert] adequately ‘connected the dots’ between the empirical foundation from his study of [the defendant] and the [expert’s] ultimate opinions. We emphasize that, in passing on whether there exists an ‘analytical gap’ between the data and the expert’s conclusions, we may take as given the general acceptance of the expert’s methods.
Id. at 170.
-38- The second change in the Court of Appeals’s application of the Frye-Reed test—to
old, as well as new, scientific methods, see id. at 186–87 (Adkins, J., concurring)—was
more abrupt. As we shall discuss in greater detail below, in Clemons, 392 Md. at 371, the
Court held that comparative bullet lead analysis (“CBLA”), a forensic test generally
accepted in the pertinent scientific community for forty years, was no longer generally
accepted and therefore CBLA test results were not admissible.
Whether proposed expert opinion testimony must be subjected to the Frye-Reed
test at all and, if so, whether the proposed testimony satisfies the Frye-Reed test are
purely legal issues. Accordingly, we review trial court decisions on those issues de novo.
See Wilson v. State, 370 Md. at 201 n. 5; Addison v. State, 188 Md. App. 165, 180 (2009)
(“[W]e . . . review the record and independently apply the Frye/Reed test de novo.”). In
doing so, we can perform our own research to determine the scientific consensus. See,
e.g., Clemons, 342 Md. at 359.
C.
Rule 5-702
In 1994, the Court of Appeals adopted the Maryland Rules of Evidence, including
Rule 5-702, which governs the admission of expert testimony. That rule provides:
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
-39- Thus, the trial court must make the determinations set forth in the rule before ruling on
the admissibility of expert testimony, but its decision as to whether to admit the
testimony is discretionary. For that reason, we review that decision for abuse of
discretion, Rollins v. State, 392 Md. 455, 500 (2006), and a court’s “action in admitting
or excluding such testimony will seldom constitute a ground for reversal.” Bryant v.
State, 393 Md. 196, 203 (2006) (citations omitted).
In Rochkind v. Stevenson, 454 Md. 277 (2017), the Court of Appeals closely
examined the third, “sufficient factual basis,” prong of Rule 5-702. It explained that
there are two sub-factors to that prong. First, the expert opinion testimony must be
founded on an adequate supply of data. And second, it must be based on a reliable
methodology. Id. at 286. Absent either, the opinion is “‘mere speculation or
conjecture.’” Id. (quoting Exxon Mobil Corp. v. Ford, 433 Md. 426, 478 (2013)); see
also Roy v. Dackman, 445 Md. 23, 42–43 (2015).
At issue in Rochkind was the trial court’s ruling admitting an expert witness’s
general medical causation opinion that childhood exposure to lead paint can cause
ADHD. The Court held that the trial court erred in admitting that opinion testimony
because it did not satisfy the “sufficient factual basis” prong of Rule 5-702. Specifically,
the opinion was not based on an adequate supply of data because it was founded on an
epidemiological study documenting a correlation between lead paint exposure and
ADHD but not showing a causal connection between the two. The expert did not provide
any information to show that the plaintiff’s symptoms met the diagnostic criteria for
ADHD, as set forth in the Diagnostic and Statistical Manual of Mental Disorders 59 (5th
-40- ed. 2013), nor did she rule out other behavioral disorders with symptoms similar to
ADHD. The Court observed:
In equating attention deficits and hyperactivity with a clinical ADHD diagnosis, [the expert] painted an inaccurate picture of the scientific research regarding lead poisoning—she overstated the known effects of lead exposure. Her testimony suffers from the same “analytical gap” described in [General Electric Co. v.] Joiner.
Id. at 291 (emphasis added). Having found that the expert opinion testimony did not
satisfy the adequate supply of data sub-factor, the Court did not go on to address the
reliable methodology sub-factor. It also declined to address the second question it had
taken on certiorari, whether the trial court should have held a Frye-Reed hearing on the
expert’s general ADHD causation testimony, because, the Court explained, expert
opinion testimony that does not satisfy the criteria for admissibility under Rule 5-702 is
not admissible even if it satisfies the Frye-Reed general acceptance test.
The concurring opinion in Savage, published a month after Rochkind, pointed out
that an overlap now exists between the third prong of Rule 5-702 and the Frye-Reed test
as it has evolved in the past decade. In particular, “a trial court may have to analyze the
reliability of an expert’s methodology twice—once under Frye-Reed and again under
Rule 5-702(3).” 455 Md. at 184 (Adkins, J., concurring). Thus, “[t]he evolution of our
Frye-Reed doctrine to both maintain the general acceptance test and include a check for
an ‘analytical gap’ has muddied our approach to expert testimony.” Id. at 186. That was
-41- one reason cited by the concurring members of the Court in Savage in advocating for
Maryland to adopt the Daubert multi-factor test in place of the Frye-Reed test.26
D.
Analysis
Because it could be outcome determinative, we begin with the State’s counter-
argument that Rule 5-702, not the Frye-Reed general acceptance test, controlled the
admissibility of its expert medical causation testimony. The court ruled on both, but the
appellant only has appealed the Frye-Reed ruling. The State maintains that the Frye-
Reed ruling is immaterial, as Frye-Reed did not control, and the Rule 5-702 ruling also is
immaterial, for our purposes, as it stands unchallenged on appeal.
To advance its position, the State relies upon Myers v. Celotex Corporation, 88
Md. App. 442 (1991), cert. denied, 325 Md. 249 (1992), and CSX Transportation, Inc. v.
Miller, 159 Md. App. 123 (2004), cert. granted, 384 Md. 581, cert. dismissed, 387 Md.
351 (2005). In Myers, we held that a medical expert’s opinion that the plaintiff’s
exposure to asbestos caused his lung cancer was not subject to the Frye-Reed general
acceptance test because the premise underlying the opinion—“[t]hat exposure to asbestos
26 As noted above, in Daubert, the Supreme Court held that the Frye standard had been superseded by FRE 702. The committee note to Rule 5-702 states:
This Rule is not intended to overrule Reed v. State, 283 Md. 374 (1978) and other cases adopting the principles enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law. Compare Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
-42- may cause cancer”—was not “novel or controversial.” 88 Md. App. at 458. Moreover,
the expert’s opinion about “how asbestos causes cancer,” which he had formed from his
“personal observations and professional experience,” was admissible so long as it could
be stated to a “reasonable degree of medical probability.” Id. (emphasis in original).
Similarly, in Miller, we held that a medical expert’s opinion that the plaintiff
railroad worker’s osteoarthritis of the knees was caused by “years of walking on mainline
ballast,” 159 Md. App. at 186, was not subject to the Frye-Reed test.
A doctor’s opinion as to the etiology of his patient’s arthritis is simply not the type of thing contemplated by the phrase ‘new and novel scientific technique.’ What is contemplated are new, and arguably questionable, techniques such as lie detector tests, breathalyzer tests, paraffin tests, DNA identification, voiceprint identification, as in the Reed case itself, and the use of polarized light microscopy to identify asbestos fibers . . . .
Id. at 187. The opinion was admissible as long as it was expressed to a reasonable degree
of medical certainty. See also Giddens v. State, 148 Md. App. 407 (2002), cert. denied,
374 Md. 83 (2003) (pathologist’s expert opinion about victim’s time of death was not
subject to Frye-Reed test for admissibility).
These cases are not helpful to the State’s position because they were decided
before the Court of Appeals extended the reach of Frye-Reed beyond the bounds of novel
scientific tests and techniques. We do not mean to suggest that if they were decided
today their outcomes would differ, only that the analyses employed necessarily would be
more expansive.
As we see it, for the trial court to rule on the admissibility of the State’s expert
opinion testimony in this case, it needed to determine whether those experts had used,
-43- and were using, a “reliable methodology” in diagnosing abusive head trauma, and that
determination fell within the common element overlap that has developed between the
Frye-Reed test and Rule 5-702(3). As all the experts explained it, an abusive head
trauma diagnosis is made in real time by health care providers in the relevant fields
taking a history and making clinical findings, from which they generate a list of
hypothetical causes, i.e., a differential diagnosis. They then conduct diagnostic tests and,
using those results and all the information they have gathered, engage in a process of
elimination by which diagnoses in the differential that do not fit are removed and the
correct diagnosis is reached. Non-treating experts use the same method, although they
also may make use of reference materials not available at the time of actual diagnosis.
The defense in this case did not take the position that the differential diagnosis process,
including the underlying fact gathering process, is not a generally accepted diagnostic
methodology. Indeed, it could not have, as the differential diagnosis method is well-
established. See, e.g., Chesson II, 434 Md. at 346 (assuming the reliability of the practice
of differential diagnosis, but holding that the diagnostic criteria for the illness at issue—
sick building syndrome—were not generally accepted). Rather, the defense took issue
with the analysis in which the experts engaged—their thought processes—as they ruled
diagnoses in and out.
In Rule 5-702(3) terms, the admissibility issue is whether the State’s experts’
opinions “provide[d] a sound reasoning process for inducing [their] conclusion[s] from
the factual data” and had “an adequate theory or rational explanation of how the factual
data led to [their] conclusion[s].” Ford, 433 Md. at 481 (explaining what is necessary for
-44- an expert opinion to satisfy the reasonable methodology prong of Rule 5-702(3))
(citations omitted). In Frye-Reed terms, the admissibility issue is whether “the expert[s]
bridged the ‘analytical gap’ between accepted science and [their] ultimate conclusions in
[this] particular case.” Savage, 455 Md. at 160. Given that the differential diagnosis
methodology and the underlying science (for example the tests performed and the
autopsy) are accepted science/medicine, the questions are the same: did the experts
engage in a well-grounded analysis to reach the conclusion that Shane’s death was the
result of abusive head trauma?
The trial court ruled on Frye-Reed and on Rule 5-702(3) with respect to the State’s
expert witness testimony, so both issues were decided below and either or both were
preserved for challenge on appeal. Although the admissibility issue fell in the overlap
between Frye-Reed and Rule 5-702(3), we cannot say that the Frye-Reed test, in its
evolved form, was not appropriate for the court to apply. We harken back to the
observation by the Court of Appeals in Reed that a trial court’s decision on reliability of
scientific expert testimony under the Maryland common law of evidence, which later
became Rule 5-702(3), focuses on whether the testimony will assist the jurors in deciding
the case before them, while its decision on the reliability of scientific evidence under
Frye-Reed focuses on the reliability of a scientific method across the board, not simply in
that particular case. With the evolution of Frye-Reed to include scientific analysis,
perhaps the two are now melded into one. But in any event, the appellant’s attack on
abusive head trauma as a diagnosis is argued as a general one that would apply to all such
cases, not just the case at bar.
-45- Accordingly, the appellant’s Frye-Reed issue is viable in this appeal. We agree
with the trial court that the present controversy over abusive head trauma, which is the
reason the appellant was granted a new trial on post-conviction, is sufficient to dispose
with judicial notice of it as a reliable diagnosis and to embark on a Frye-Reed hearing.
And we shall review the court’s Frye-Reed ruling using the de novo standard that governs
those rulings. As we shall explain, ultimately we reject the appellant’s argument that the
controversy over the diagnosis of abusive head trauma makes it no longer a generally
accepted diagnosis in the absence of external findings. That controversy exists largely in
the legal community, not in the medical communities relevant to our inquiry.
We begin by summarizing the history of shaken baby syndrome/abusive head
trauma as described in the reliable medical literature. In 1860, Auguste Ambroise
Tardieu, a renowned French forensic physician, published Étude Medico-Légale sur les
Sévices et Mauvais Traitements Exercés sur des Enfants, which translates as Forensic
Study on Abuse and Ill-Treatment of Children. Narang I, at 523. He documented 32
cases of suspected child abuse, including cases where infants with no external signs of
injury died and were found on autopsy to have bleeding on the surface of the brain.27 Id.
Midway into the next century, with the great advancements in medicine, evidence began
to build for a connection between trauma and the presence of subdural hematomas in
young children. In 1946, John Caffey, M.D., published a study examining the correlation
27 Until the advent of radiological scans, subdural hematomas only could be detected upon autopsy.
-46- in infants between long bone fractures, which often are associated with abuse, and
subdural hematomas. Id. at 526. In several of the cases, retinal hemorrhages also were
present. After ruling out medical causes, Dr. Caffey attributed all the radiological
findings to trauma. He did not reach any conclusions about the traumatic mechanism
involved, however. Id. In 1962, C. Henry Kempe, M.D., a pediatrician, and colleagues
published The Battered-Child Syndrome, 181 J. Am. Med. A’ssn 105 (1962), identifying
unexplained bruises, fractures, and subdural hematomas as findings that should lead
physicians to consider child abuse as a possible etiology. Narang I at 527.
A little over a decade later, Dr. Caffey and others began to hypothesize that
shaking was the mechanism of abuse that was producing subdural hematomas in infants
and young children who also had long bone fractures. He and Norman Guthkelch,28 a
neurosurgeon, theorized that the “multiple acceleration and deceleration events, caused
by head shaking, resulted in the intracranial injuries,” including subdural hematomas and
retinal hemorrhages. Id. at 528.29 Originally called “parent-infant traumatic stress
syndrome,” and later “whiplash shaken infant syndrome,” the syndrome soon became
commonly known as shaken baby syndrome. Christopher S. Greeley, Abusive Head
28 Dr. Guthkelch is now an abusive head trauma skeptic and often testifies for the defense in criminal trials where the theory of prosecution is that a defendant shook or slammed an infant. 29 Drs. Caffey and Guthkelch hypothesized that even benign shaking, such as might occur during burping or play, could cause brain injury. It is now widely accepted that to injure a child the shaking must be violent and forceful.
-47- Trauma: A Review of the Evidence Base, 204 Am. J. of Roentgenology 967, 968 (May
2015) (hereinafter Greeley).
In the latter decades of the 20th century, it became widely accepted in the involved
medical communities that shaking was the likely mechanism of brain injury when infants
and young children presented with subdural hematomas, retinal hemorrhages, and brain
swelling, but without external evidence of trauma or a reported history of a significant
traumatic event. Initially, it was theorized that the shaking caused the brain to accelerate
and decelerate within the skull, rupturing bridging veins30 and retinal blood vessels, and
injuring nerve fibers, called axons, throughout the brain (“diffuse axonal injury”.) See
Keith Findley, et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual
Innocence: Getting It Right, 12 Hous. J. Health L. & Policy 209, 224 (2012) (hereinafter
“Findley”) (discussing the history of abusive head trauma).31 Further research revealed
that the diffuse axonal injury seen on autopsy in suspected child abuse deaths was a
sequelae of hypoxic injury. See J.F. Geddes, et al., Neuropathology of Inflicted Head
Injury in Children, I. Patterns of Brain Damage, 124 Brain 1290 (2001). The lack of an
adequate oxygen supply to the brain and resulting cerebral edema, not the tearing of
axons, caused the catastrophic brain collapse. Id. (As explained above, inflicted trauma,
30 Bridging veins are veins within the dura that carry blood to larger sinus veins. 31 Two of the co-authors – Findley and David A. Moran, are attorneys who work with law school-based Innocence Projects. The other two authors are Dr. Barnes, the appellant’s neuroradiology expert medical witness, and Waney Squier, M.D., a neuropathologist.
-48- evidenced by subdural hematomas and retinal hemorrhages, caused the apnea, which in
turn caused the hypoxia, brain swelling, collapse, and death.)
There were some in the biomechanical scientific community who disputed that
shaking could produce forces sufficient to cause the injuries seen in shaken baby
syndrome cases, however. See Ann-Christine Duhaime, et al., The Shaken Baby
Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. Neurosurgery 409,
409 (1987).32 In part as a result of the biomechanical studies and in part because of
perpetrator confessions in cases that involved shaking and slamming of infants, scientists
began to consider whether impact on a soft surface, independent of or in combination
with shaking, also could be a mechanism for some of the intracranial findings in abuse
cases.
In 2009, the American Academy of Pediatrics (“AAP”) issued a policy statement
recommending that pediatricians “use the term ‘abusive head trauma’ rather than a term
that implies a single injury mechanism, such as shaken baby syndrome, in their diagnosis
and medical communications.” C.W. Christian, R. Block, and Committee on Child
Abuse and Neglect, Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409,
1411 (2009). The AAP emphasized that it did not intend “to detract from shaking as a
mechanism of [abusive head trauma] but to broaden the terminology to account for the
multitude of primary and secondary injuries that result from [abusive head trauma], some
32 The Duhaime study and others like it received significant criticism, however. When scientists altered the models used by Duhaime, they found that shaking does exceed injury thresholds, to the extent those thresholds can be calculated with any precision.
-49- of which contribute to the often-permanent and significant brain damage suffered by
abused infants and children.” Id. at 1410. The term shaken baby syndrome, it noted, was
“sometimes used inaccurately to describe infants with impact injury alone or with
multiple mechanisms of head and brain injury and focuses on a specific mechanism of
injury rather than the abusive event that was perpetrated against a helpless victim.” Id.
Abusive head trauma is now the accepted umbrella term for “those constellations of
injuries that are caused by the directed application of force to an infant or young child,
resulting in physical injury to the head and/or its contents.” Narang I at 570 (quoting
Antonia Chiesa & Ann-Christine Duhaime, Abusive Head Trauma, 56 Pediatrics Clinic
N. Am. 317 (2009)).
One Frye-Reed argument the appellant advances is that the shift in terminology
from shaken baby syndrome to abusive head trauma was an attempt to shore up a
diagnosis against erosion by a body of research casting doubt on its underlying
assumptions. Relying primarily on Clemons v. State, 392 Md. at 339, he asserts that the
existence of a growing minority of physicians and scientists who reject abusive head
trauma as a diagnosis makes it no longer generally accepted in the relevant medical
communities.
As mentioned earlier, in Clemons, the Court held that CBLA is no longer
generally accepted in the forensic science community. CBLA is a “three-step process
that involves the comparison of the elemental composition of bullets in an effort to
determine whether different bullets originated from the same vat of lead.” 392 Md. at
347. In Clemons, CBLA testing was used to link bullets in a gun found in the
-50- defendant’s possession to bullets found in the body of a murder victim. The defendant
challenged his second degree murder conviction on appeal on the ground that the CBLA
testing should not have been admitted under Frye-Reed.
The Court of Appeals conducted an independent review of the admissibility of
CBLA testing, examining the bullet manufacturing process and the history and
methodology underlying CBLA, which was developed in the 1960s and became a widely
accepted forensic tool by the 1980s. CBLA testing’s accuracy was “premised upon three
assumptions: the [bullet] fragment being analyzed is representative of the composition of
the source from which it originated; the source from which the sample is derived is
compositionally homogenous; and no two molten sources are ever produced with the
same composition.” Id. at 368 (internal quotation marks omitted).
The latter two assumptions had “come under attack” by those in the “relevant
scientific community of analytical chemists and metallurgists.” Id. Recent studies had
found that a single molten source could vary greatly in its composition depending upon
whether a sample was taken at the beginning, middle, or end of the bullet pouring
process. Id. Another study found “false positives and negatives . . . of twenty-five to
thirty-three percent.” Id. at 370–71. These studies had prompted the FBI laboratory that
conducted all of the CBLA testing in the United States to cease performing the tests.
Given that the scientific premises upon which CBLA was based had been undermined by
many in the relevant scientific community, the Court held that CBLA testing no longer
was “generally accepted within the scientific community as valid and reliable.” Id. at
359.
-51- The controversy over abusive head trauma differs significantly from the
controversy over CBLA. A wide range of relevant medical (and scientific) communities
study abusive head trauma. Disciplines participating in research include: “biomechanics,
pathology, radiology, ophthalmology, neurosurgery, and general pediatrics.” Sandeep K.
Narang, M.D., J.D., et al., A Daubert Analysis of Abusive Head Trauma/Shaken Baby
Syndrome – Part II: An Examination of the Differential Diagnosis, 13 Hous. J. Health L.
& Policy 203, 2286 (2013) (hereinafter “Narang II”). The underlying methodologies
used to study and diagnose abusive head trauma—radiological scans, ophthalmologic
exams, autopsy of the brain and eyes—are not even controversial. Indeed, most abusive
head trauma skeptics, including Dr. Plunkett and others who testified for the defense at
trial, acknowledge that it is possible for brain injury and death to be caused by child
abuse. To the extent a controversy exists, it concerns the mechanism by which brain
injury can happen and the specificity of the findings necessary for a diagnosis of abusive
head trauma. They do not undercut the diagnosis completely, which is what one would
have to see to draw a direct comparison between Clemons and the case at bar.
It remains the prevailing view within the relevant medical communities that there
are some internal findings that are highly correlated with abusive head trauma, even in
the absence of external findings; and when those internal findings are coupled with an
inconsistent clinical history or one that is inadequate to explain them, and cannot be
explained medically, a diagnosis of abusive head trauma is supported. See Narang I at
574–76 (listing organizations that endorse abusive head trauma as a medical diagnosis,
including the American Association for Pediatric Ophthalmology, the American College
-52- of Radiology, the American Association of Neurologic Surgeons, the World Health
Organization, and the Royal College of Paediatrics and Child Heath). External findings
associated with abusive head trauma include bruising or swelling of the scalp or other
parts of the body. Internal findings include skull fractures; long bone fractures; rib
fractures; retinal hemorrhages; subdural hematomas; subarachnoid hemorrhages; brain
swelling; and cervical spine injuries. As noted, the consensus is that no single finding or
combination of findings is pathognomonic for abusive head trauma. Rather, a differential
diagnosis must be made based upon the totality of the circumstances in each individual
case. A congruence of multiple findings, each of which independently correlates with
abusive head trauma, narrows the field of potential diagnoses significantly, however, and
absent a clinical history of accidental trauma or evidence of a disease process consistent
with those findings, a diagnosis of abusive head trauma may be made. See Greeley at
969.
The “cardinal intracranial finding [for] abusive head trauma is [subdural
hematoma].” Greeley at 969; see also J.F. Geddes, et al., Neuropathology of inflicted
head injury in children, I. Patterns of brain damage, 124 Brain 1290 (2001) (31 out of 37
infants in study group of “well-documented” cases of non-accidental head trauma33 had
33 The authors of the study considered a case “well-documented” when one of the following diagnostic criteria were met: 1) confession by the perpetrator; 2) conviction in a criminal court, coupled with unexplained extracranial injuries; 3) cases without a conviction, but with unexplained injuries elsewhere on the body; 4) conviction in a criminal court, but without any extracranial injuries; and 5) cases with a “major discrepancy” between the clinical history given by the caregiver and the injuries and/or a (Continued…)
-53- subdural hematoma). Although there are other causes of subdural hematomas in
infants—including birth trauma and certain coagulation disorders—head trauma is the
most common cause. See Narang I at 542 (discussing epidemiological study that found
that trauma caused over 60% of subdural hematomas seen in children ages 0 to 2 in the
United Kingdom and Ireland over a 12-month period). Subdural hematomas are
“strongly associated with [abusive head trauma],” Greeley at 969, because within the
subset of subdural hematomas that do not have a medical cause, the vast majority result
from trauma that is not attributable to an accident. See also Narang I at 541 (“there is not
one clinical study that demonstrates a greater statistical association of . . . subdural
hemorrhages . . . with accidental trauma over abusive head trauma”) (emphasis in
original); see also Greeley at 969 (explaining that accidental head injury is more likely to
cause epidural hemorrhage and skull fractures). And significantly, numerous studies have
shown that subdural hematomas in cases of abusive head trauma differ in location and
appearance from those present in accidental injury cases. See Narang I at 546–547
(discussing a 2002 retrospective study and several other studies confirming those results).
In cases of abusive head trauma, subdural hematomas typically are “[m]ultifocal,”
“interhemispheric,” and “located at the front or back ‘curves’ of the brain.” Id.
Retinal hemorrhages likewise are highly correlated with abusive head trauma,
particularly when they are diffuse, bilateral, and “extend to the outer margins of the retina
(ora serrata retinae).” Greeley at 969; Starling at 456 (84% of cases involving admitted
clinical history that was inconsistent with the child’s developmental stage (i.e. a non- rolling infant rolling off a bed).
-54- shaking were positive for retinal hemorrhage and 94% of cases involving admitted
shaking and impact were positive for retinal hemorrhage). Retinal hemorrhages rarely
are seen in cases involving “linear falls resulting in cranial impact,” i.e., typical
accidental injury cases. Starling at 457. Research has not revealed any association
between severe retinal hemorrhages and increased intracranial pressure, increased
intrathoracic pressure, birth trauma, or cardio-pulmonary resuscitation (“CPR”). Narang
I at 551–53. In addition, computational model studies have demonstrated that “rhythmic
shaking significantly increases the stress on the retina,” particularly at the “posterior pole
and the periphery,” the locations of retinal hemorrhages found in many cases of suspected
abusive head trauma. Narang II at 261. A 2010 “systematic review of the diagnostic
accuracy of [retinal hemorrhages] in abusive head trauma” found that retinal
hemorrhages have a “‘specificity of 94% for abuse.’” Narang I at 557–58 (quoting
Gaurav Bhardwaj, et al., A Systematic Review of the Diagnosis of Ocular Signs in
Pediatric Abusive Head Trauma, 117 Ophthalmology 983, 984 (2010)).
The main controversy over abusive head trauma involves a minority of physicians
and other scientists who posit that changes in the understanding of the biomechanics of
shaking, coupled with evidence that the confluence of subdural hematomas, retinal
hemorrhages, and brain swelling is not unique to abusive head trauma, make it
impossible to reliably conclude that any particular child’s injuries or death were caused
by inflicted (non-accidental) trauma, as opposed to accidental trauma or medical causes,
such as clotting disorders. Nevertheless, they do not dispute that the presence of subdural
hematomas, retinal hemorrhages, and encephalopathy is consistent with abusive head
-55- trauma. See Findley, at 213 (“there is general agreement that child abuse was historically
under-recognized and that abuse can produce subdural hemorrhage, retinal hemorrhage,
and brain damage—the ‘triad’ of medical findings that has traditionally been used to
confirm shaking or other forms of abuse”). They also do not dispute that “violently
shaking a child is unacceptable and could cause serious injury or even death.” Id.
Rather, they take issue with what they see as the misapprehension that “the presence of
the triad alone—or its individual components” is sufficient to diagnose abuse. Id. In
their view, the triad or its components “is not enough to diagnose abuse.” Id.
It is in this context that we must assess whether a differential diagnosis of abusive
head trauma satisfies Frye-Reed. It is well-established that “unanimity” of opinion is not
required for an expert opinion to be generally accepted for purposes of Frye-Reed.
Chesson II, 434 Md. at 356 (“General acceptance does not equate to unanimity of opinion
within a scientific community, nor universality, and is not subject to a quantum
analysis.”). However, a scientific principle or methodology, or conclusions drawn from
that principle or methodology, that are subject to “widespread disagreement” or a
“genuine controversy” are not “generally accepted” under Frye-Reed. Wilson, 370 Md.
at 210.
In Blackwell and Chesson II, the Court of Appeals excluded as not generally
accepted expert opinions that were outliers with virtually no support in the relevant
medical or scientific communities. The plaintiff’s expert witness in Blackwell was going
to testify at trial that a study he had conducted with his son supported a medical causal
link between thimerosal in vaccines and autism. That was the only study to have found
-56- such a causal connection. Peer reviewed articles had rejected as unsound the study’s
methodology and the expert’s analysis based on it. The Court concluded that there was
an “analytical gap” between the expert’s opinion and its basis, so that the opinion
amounted to “no more than hypothesis and conjecture.” 408 Md. at 618.
Similarly, in Chesson II, the plaintiff’s expert on medical causation linking “toxic
mold exposure” to the “sick building syndrome” constellation of symptoms was the only
purveyor of a particular technique to detect mold exposure in individuals. That technique
had been criticized for failing to take into account the level of mold exposure detected,
had no support in the relevant medical/scientific community, and was not backed up by
any peer reviewed studies. The circuit court had ruled the expert’s opinions to be
generally accepted merely because he described the process by which he made his “sick
building syndrome” diagnosis as being a differential diagnosis. The Court of Appeals
reasoned that this was not sufficient; what mattered was that the study underlying the
expert’s diagnostic protocol was flawed, which led to a flawed analysis.
In the case at bar, the opinions expressed by the State’s medical experts were not
outlier opinions within the relevant medical communities. Quite the contrary, the opinion
that abusive head trauma is a legitimate and reliably-made diagnosis is shared by the
overwhelming majority of physicians within the relevant medical fields. The testimony
of the State’s expert witnesses did not amount to conjecture, but was drawn directly from
the scientific literature discussed supra that supports the conclusion that multi-focal
subdural hematomas in an 11-week old infant are usually traumatic in origin and that
-57- multi-layered bilateral retinal hemorrhages are highly associated with inflicted trauma
and, more specifically, with acceleration-deceleration trauma.
Moreover, we emphasize that the aspect of the abusive head trauma controversy
over the mechanics of brain injuries in infants and children might have significance in
cases, unlike this one, where there is a genuine issue of accidental versus non-accidental
brain injuries and death. In those cases, the dispute usually centers on whether the
injuries/death could have been caused by the claimed accident instead of by abuse. That
aspect of the abusive head trauma controversy is irrelevant here. According to the
appellant’s statement to the police, there was no accident; Shane was perfectly fine and
was lying safely on the appellant’s bed when he suddenly stopped breathing and lost
consciousness. Whether there are legitimate studies showing that infants can suffer
serious brain injury causing death from short falls or similar accidents does not matter
here, where there clearly was not an accidental cause for Shane’s brain injuries and death.
That is why the defense in this case focused solely on alternative medical causes.
We note that in Blackwell and Chesson II, the Court of Appeals considered it
relevant that other courts had rejected the same theories of causation from the same
expert witnesses. See Blackwell, 408 Md. at 616 (quoting the trial court judge’s opinion,
stating: “It is noteworthy that other courts have acknowledged that Dr. Geier’s
methodology of differential diagnosis is fundamentally flawed, because he improperly
“rules in” thimerosal as a potential cause of autism, and he cannot rule out the high
likelihood that autism in any given individual was caused purely by genetic factors that
do not require an environmental trigger.”); Chesson II, 434 Md. at 379 (“We would note
-58- that other jurisdictions have determined that Dr. Shoemaker’s theory, based on his
“Repetitive Exposure Protocol,” is neither generally accepted nor reliable.”). The
opposite is true with regard to the abusive head trauma diagnosis: other courts that have
considered the threshold admissibility of expert medical testimony that a child victim’s
injuries or death resulted from abusive head trauma have held that, despite criticism, it
remains an accepted and reliable diagnosis. See Wolfe v. State, 509 S.W.3d 325, 337
(Tex. Crim. App. 2017) (affirming the trial court’s ruling that expert testimony that a
baby presenting with subdural hematoma and retinal hemorrhages suffered abusive head
trauma satisfied Daubert because that theory was “accepted within the pediatric medical
community”; the experts were qualified; and the literature, in particular Narang I,
supported the validity of the diagnosis); Futrell v. Commonwealth, 471 S.W.3d 258, 282-
86 (Ky. 2015) (child abuse pediatrician’s expert testimony that victim died as a result of
abusive head trauma was admissible under Daubert, and citing Narang I); In re Morris,
355 P.3d 355, 360 (Wash. App. 2015) (holding that “[a]busive head trauma as a
diagnosis, and shaking as a cause of such injuries, are generally accepted theories in the
relevant scientific community” and satisfy Frye); Day v. State, 303 P.3d 291, 296 (Okla.
Crim. App. 2013) (denying a request for a Daubert hearing on the admissibility of expert
testimony relative to shaken baby syndrome/abusive head trauma and opining that the
proposition that that diagnosis had been “discredited by other scientific evidence” was an
“exaggeration” in that the “most the record . . . show[ed was] that experts disagree[d]” as
to the reliability of the diagnosis absent evidence of impact), cert. denied __ U.S. __, 134
S.Ct. 1303 (2014); State v. Leibhart, 662 N.W.2d 618, 628 (Neb. 2003) (affirming the
-59- trial court’s determination to admit expert testimony relative to shaken baby syndrome
after a Daubert hearing and explaining that the theory that violent shaking can cause
brain injury in infants was “clinically tested and peer reviewed . . . and the findings were
generally accepted within the field of pediatrics”); see also People v. Schuit, 67 N.E.3d
890, 918 (Ill. App. 2016) (holding that expert testimony that a baby’s injuries were
caused by shaken baby syndrome/abusive head trauma was “pure opinion testimony
based upon clinical experience” and was not subject to the Frye general acceptance test)
(citation omitted).34
In considering the aspect of the controversy concerning what specific findings
support a valid diagnosis of abusive head trauma, we find helpful the author’s summary
of the differential diagnosis process in Narang II:
In abusive head trauma/shaken baby syndrome cases, the differential diagnosis depends on the findings presented. Soft tissue injuries (such as bruises) have a differential diagnosis. Fractures (either long bone or skull) have a differential diagnosis. And intracranial findings (such as [subdural hematomas] or cerebral edema) and ophthalmologic findings (such as [retinal hemorrhages]) also have a differential diagnosis. It is the physician’s task to parse through the historical information, the physical examination, and the laboratory and radiologic results to arrive at a unifying diagnosis that satisfies the criteria of “adequacy,” “parsimony,” and “coherency . . . [I]n many cases, but obviously not all, the unifying diagnosis will be trauma. From there, the physician will again utilize the historical information, the physical examination, the laboratory/radiology results, the medical literature, and his/her experience to distinguish between accidental and non-accidental trauma.
34 All the cases the appellant cites arose in the post-conviction posture. Those cases concerned whether evidence of the “controversy” over abusive head trauma was newly discovered evidence entitling a defendant to a new trial or whether trial counsel had been constitutionally ineffective by failing to present expert testimony rebutting that theory at trial. None of these cases engaged in a threshold admissibility analysis.
-60- Narang II at 304–05 (footnotes omitted). The three criteria mentioned have the following
meanings:
“Adequacy” is when the remaining working hypothesis reasonably accounts for all the patient’s findings, both normal and abnormal. “Coherency” is when the patient’s findings are consistent with the altered pathophysiology of the hypothesized disease. “Parsimony” is the simplest explanation for all of the patient’s findings.
Id. at 304 n. 634 (citing John B. Wong, et al., Fed. Judicial Ctr Reference Guide on
Medical Testimony).
The process of reaching a diagnosis of abusive head trauma thus is nuanced and
fact-specific. Physicians presented with an infant suffering from suspected head trauma
will rely on positive and negative clinical, historical, and test-generated pieces of
evidence, each of which can support or detract from a diagnosis, including a diagnosis of
abusive head trauma. None of the State’s expert witnesses testified that he or she arrived
at a diagnosis of abusive head trauma (or of head trauma) based merely upon the
presence of the “triad,” as the defense maintained. Four of the State’s experts reached the
diagnosis of abusive head trauma by considering possible causes of Shane’s reported
history of sudden apnea, nose bleeding, and collapse and the intracranial findings—
subdural hematoma, subarachnoid hemorrhage, bilateral retinal hemorrhages, and severe
cerebral edema—and after ruling out potential medical causes for those conditions. Dr.
Pollanen agreed that head trauma was the “best unifying diagnosis.” None of the State’s
experts were able to testify conclusively whether shaking alone, impact on a soft surface
alone, or a combination of both mechanisms caused the injuries.
-61- The analyses used by the State’s expert witnesses (treating and non-treating) who
concluded that Shane’s brain injuries and death resulted from inflicted head trauma
“connected the dots,” to use the phraseology of the Court of Appeals in Savage. Until
September 15, 2001, Shane was a normal, healthy baby. That morning, he fed well and
was acting normally. As the appellant, the only witness to what happened, described it,
Shane was fine and then suddenly he stopped breathing and became comatose. Shane’s
clinical symptoms in the hospital were consistent with a severe brain injury. CT scans
and an MRI showed subdural hematomas in the locations associated with inflicted trauma
and progressive swelling of brain tissue, consistent with an acute injury to the brain.
Laboratory tests ruled out medical conditions, such as clotting disorders, as the cause of
his brain injury. A chronic subdural hematoma either did not exist or was so small that it
was medically incapable of causing the catastrophic brain injury. Testing of Shane’s eyes
showed bilateral retinal hemorrhages, diffusely located in a manner consistent with
inflicted trauma. All of this information and the medical literature supported a diagnosis
of brain trauma and, in the absence of any accident, inflicted brain trauma, i.e. abusive
head trauma. There was no analytical gap in the reasoning of the State’s expert
witnesses in reaching their diagnosis of abusive head trauma.
For all of these reasons, we hold that the diagnosis of abusive head trauma remains
generally accepted in the relevant medical/scientific communities and that the analyses
employed by the State’s expert witnesses to support their opinions that Shane’s brain
injury and death was caused by abusive head trauma satisfied the Frye-Reed test. The
circuit court did not err by admitting that testimony into evidence at trial.
-62- II.
Sufficiency of the Evidence
The appellant also contends the evidence at trial was legally insufficient to support
any of his convictions. This contention overlaps with and is dependent upon his first
contention.
The appellant argues that even though the abusive head trauma diagnosis is no
longer generally accepted, it was used to prove the actus reus of his crimes—that he
violently shook or slammed Shane onto the bed, causing his brain injury and resulting
death; the mens rea of his crimes—that he acted willfully and with the intent to cause
bodily harm; and criminal agency—that he was the only person with the opportunity to
inflict injury on Shane in the period in which the injury must have been inflicted.
Because the abusive head trauma diagnosis is now discredited, he argues a conviction
based on abuse cannot be sustained where abusive head trauma is “the only evidence of
abuse.” (Emphasis in original.) He asserts:
No rational fact finder could conclude, beyond a reasonable doubt, that [he] ever lay a hand on his son, because, on these facts, there is no way to determine with any medical or legal certainty—much less beyond a reasonable doubt—that Shane’s injuries were inflicted, as opposed to accidental, or as a result of a natural disease process (or some combination thereof, as with re-bleeding into a chronic subdural hemorrhage).
The State responds that because abusive head trauma is a generally accepted
medical diagnosis and had a sound factual basis in this case, the expert medical testimony
it presented was sufficient to show, beyond a reasonable doubt, that Shane sustained
brain injuries and ultimately death as a result of intentionally being violently shaken,
-63- slammed against a soft surface, or both; and that its expert testimony and other evidence
established to the requisite standard of proof that the appellant was the person who
committed the violent acts that caused Shane’s death.
Our standard of review of the sufficiency of the evidence in a criminal case is
well-established:
The standard for appellate review of evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder. In addition, we give due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.
Larocca v. State, 164 Md. App. 460, 471–72 (2005) (internal citations omitted). First-
degree premeditated murder is the intentional killing of a person that is deliberate,
premeditated, and willful. Md. Code (2002, 2012 Repl. Vol.), § 2-201(a)(1) of the
Criminal Law Article (“CL”); see also Handy v. State, 201 Md. App. 521, 560 (2011).
“Abuse” as defined in the crime of “Child abuse” in CL section 3-601 is “physical injury
sustained by a minor as a result of cruel or inhumane treatment or as a result of a
malicious act under circumstances that indicate that the minor’s health or welfare is
harmed or threatened by the treatment or act.” CL § 3-601(a)(2). Child abuse resulting
in death includes abuse by a minor’s parent that results in the minor’s death. CL § 3-
601(b)(1)(i). And child abuse includes abuse inflicted against a minor by his or her
parent. CL § 3-601(d)(1)(i).
-64- As we already have discussed, the State’s expert medical testimony, which the
court credited, demonstrated that Shane suffered a catastrophic brain injury and collapse
that was not caused by an accident or a medical disease or condition, and therefore had to
have been inflicted upon him. Other evidence showed that Shane was observed by people
other than the appellant to be a healthy and normal baby up until the late morning on
September 15, 2001; that as of 2:04 p.m. that day when 911 was called he was not
breathing and comatose; that in that interval the appellant was the only person alone with
Shane, and was the person with him when he suffered his catastrophic collapse. The
evidence further showed that the appellant altered his routine on September 15, 2001, by
taking Shane to his mother’s house, ostensibly because she wanted to see him, although
she testified that she did not know her son was bringing Shane to her house that day.
The State’s evidence further showed that in the month before Shane’s death, the
appellant had secretly purchased a $750,000 life insurance policy on Shane’s life, with
himself as the beneficiary; that when State Farm required him to also purchase a policy
on his own life, he chose one for $50,000 that did not name Shane (or Paris) as the
beneficiary; that he had lied to Paris and Sherman about events surrounding his purchase
of the policy on Shane’s life, in order to cover up that he had done so; and that the
appellant reasonably would have believed that that insurance policy on Shane’s life was
in effect as of September 14, 2001, the day before Shane sustained his catastrophic brain
injuries.
From all of this evidence, a reasonable fact-finder could find beyond a reasonable
doubt that on September 15, 2001, the appellant violently shook and/or slammed Shane,
-65- inflicting catastrophic brain injuries that resulted in his death ten days later, and that he
did so deliberately, with the intent to kill, and with premeditation. All of this evidence,
coupled with the medical evidence establishing that Shane suffered abusive head trauma,
was plainly sufficient to sustain his convictions for first-degree murder, child abuse, and
child abuse resulting in death.
JUDGMENTS AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.
-66-
Related
Cite This Page — Counsel Stack
Sissoko v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sissoko-v-state-mdctspecapp-2018.