Expert Testimony Involving Expert Testimony Involving Radiology & Radiology & NeuroradiologyNeuroradiology

in NAT Casesin NAT Cases

Brian Holmgren

Assistant District Attorney General

Davidson County, Nashville, TN

The Road To CourtThe Road To Court

Expert RealitiesExpert Realities� Usually you don’t sign up for the role

� Cases come in to hospital; not recruit� Asked to consult because of expertise – not

expertise because consultant� Called as government witness because of

diagnosis of NAT� No diagnosis no legal action taken� Rule out NAT substantial percentage of cases� Don’t make diagnosis because government

witness or work on CA team� Legal obligations to protect children

Expert RealitiesExpert Realities� Defense expert – being called to challenge? � Can be consulting expert for defense, court

or GAL� Important to fulfill this role� Agree with other expert – not testify� May help resolve case – convince D to plea� D has no obligation to share adverse opinion

� Many defense consultants “hired guns”� Role of defense attorney different than

government attorney

Expert RealitiesExpert Realities� Defense attorney has duty re experts

� Due process right to obtain� Ineffective assistance for failure to obtain?� Minimum - discuss with government experts

� Defense attorney has choice on experts� Pursue expert for “objective” opinion� Pursue expert to support defense� Ex parte requests; court uninformed

� Defense attorney’s dealings with expert may be influenced by end they pursue

Expert RealitiesExpert Realities� Expert dealing with defense – caution� Are you advised on the relevant issues �Are you getting all the relevant data

� All medical records and scans� Access to police and DCS information� Access to reenactment � Access to expert reports of others� All the histories provided by caretakers

� Outcome oriented process or objective assessment

Do ExpertDo Expert’’s Advance the s Advance the ““TruthTruthFurtheringFurthering”” Process of a Trial?Process of a Trial?

Expert Testimony – A Top 10 Primer

1. Recognize abuse cases don’t die, only kids do• Pretrial challenges to admissibility of opinions• Trials (juvenile & family, civil, criminal)• Appeals• Post conviction (ineffective assistance, new evidence)• Public hearings & inquiries• Law review articles & media challenges• Record we make initially lives throughout life of case• More than just presenting facts & offering opinions

The law presumes a man The law presumes a man innocent until he is found innocent until he is found guilty, and then if he has guilty, and then if he has any money left his lawyer any money left his lawyer

continues the presumption.continues the presumption.

Smith v. Mitchell (Habeas 9Smith v. Mitchell (Habeas 9thth Cir. 2006)Cir. 2006)•• 77--weekweek--old baby shaken/impact by old baby shaken/impact by

grandmother in 1996grandmother in 1996•• SDH/SAH (1SDH/SAH (1--2 TBL volume), old SDH, 2 TBL volume), old SDH,

optic nerve hemoptic nerve hem’’s, no s, no RHRH’’ss•• Acute small abrasion with bruise to upper Acute small abrasion with bruise to upper

neck regionneck region•• Less than 2 hour interval to deathLess than 2 hour interval to death•• Grandmother admits to gentle shaking Grandmother admits to gentle shaking ––

jostling, demonstrated to CPS, not jostling, demonstrated to CPS, not recorded; also claimed fell from couchrecorded; also claimed fell from couch

Smith v. Mitchell (Habeas 9Smith v. Mitchell (Habeas 9thth Cir. 2006)Cir. 2006)•• ME & Dr. Chadwick testify COD was SBS ME & Dr. Chadwick testify COD was SBS

that tore or sheared portions of brain stemthat tore or sheared portions of brain stem•• No finding of brain stem damage at No finding of brain stem damage at

autopsy; no stainingautopsy; no staining•• No evidence of severe swelling at autopsyNo evidence of severe swelling at autopsy•• Court notes no mass effect SDH and no Court notes no mass effect SDH and no

RH;RH; ““no dispute that usual SBS occurs no dispute that usual SBS occurs from massive bleeding or swelling of brain from massive bleeding or swelling of brain tissuetissue”” thatthat herniatesherniates brain stem brain stem controlling vital functionscontrolling vital functions

Smith v. Mitchell (Habeas 9Smith v. Mitchell (Habeas 9thth Cir. 2006)Cir. 2006)•• Court rules insufficient evidence of CODCourt rules insufficient evidence of COD•• Absence of evidence of brain damage is Absence of evidence of brain damage is

absence of proof absence of proof –– cancan’’t speculate in t speculate in absence of findingsabsence of findings

•• Experts testified brain stem findings not Experts testified brain stem findings not detectable; supported by lecture data and detectable; supported by lecture data and consultations, no literature sourceconsultations, no literature source

•• Before BAPP techniques developedBefore BAPP techniques developed•• Brennan (2009); Gill (2009) & Geddes Brennan (2009); Gill (2009) & Geddes

(2001) support(2001) support

Cavazos v. Smith (Ginsburg Dissent) Cavazos v. Smith (Ginsburg Dissent) •• In years since doubt re whether infants can In years since doubt re whether infants can

be fatally shaken has grownbe fatally shaken has grown•• Court cites:Court cites:•• WI v. EdmundsWI v. Edmunds•• DonohoeDonohoe 2001 (EBM)2001 (EBM)•• BandakBandak (2005) biomechanics paper(2005) biomechanics paper•• UscinskiUscinski (2006) SBS : An Odyssey(2006) SBS : An Odyssey•• LeestmaLeestma (2005) Case analysis of confessions(2005) Case analysis of confessions•• SquierSquier (2008) SBS Quest for Evidence(2008) SBS Quest for Evidence

New Science, New Evidence, New Clothes?

Expert Testimony – A Top 10 Primer2. Do the best evaluation possible• Adequate evaluations to formulate opinions (complete

skeletals, serial CT scans, MRI’s, sonograms; repeat)• Eliminate fanciful arguments created by failure to

conduct tests• Appropriate tests to refute common defense claims &

alternative explanations • Supplement medical reports (expert opinion report)• Review medical literature• Consider other medical data (e.g. neurosurgery

reports, lab data)• Consideration of more than medical data (police, DCS)

What Expert Opinions are You Giving? What Expert Opinions are You Giving? •• Identifying what is a Identifying what is a fxfx; what is a SDH; what is a SDH•• Dating the injuryDating the injury•• Providing a differential for causesProviding a differential for causes•• Describing mechanisms for causationDescribing mechanisms for causation•• Consistency with HX or hypotheticalConsistency with HX or hypothetical•• Conclusions on NAT Conclusions on NAT –– ultimate opinionultimate opinion•• Critiquing conclusionsCritiquing conclusions--reports of othersreports of others•• Information neededInformation needed--reviewed may depend reviewed may depend

on role and opinions; cross unlimitedon role and opinions; cross unlimited

Expert Testimony – A Top 10 Primer3. Understand your role as expert in case• Radiology/neuroradiology issues contested• Primary expert witness on NAT• Opposing expert in case• Supporting role to other experts• Rebuttal expert • Coordination with other experts to avoid

conflicting testimony• Motions challenging scientific reliability of

testimony require special considerations

Expert Testimony – A Top 10 Primer4. Aggressively confront Daubert challenges to

diagnosis of NAT/AHT • Use of exceptional experts• Use of multiple experts• Heavy reliance on medical literature• Recognize enormous potential for adverse

precedent• Debunk the myths proposed by other side• Refute suggestion of “substantial controversy”• Position papers within field

This is How It Needs to be Said“After ruling out the usual mimickers such as infection, coagulopathy, etc., there is overwhelming consensus among pediatric specialists and forensic pathologists that an infant who presents in extremis or dead with retinal hemorrhages, subdural hemorrhage and cerebral edema has acutely suffered an inflicted injury and that such injuries cannot be explained on the basis of an accidental fall, bouncing on the knee, an injury occurring hours or days earlier, or the re-bleed of an earlier injury.”

Expert Testimony – A Top 10 Primer5. Don’t stretch limits of expert testimony• Bad precedent• Impeachment in future cases• Timing issues (mixed density SDH, hyperacute vs.

acute vs. subacute vs. chronic, etc.) • Multiple events• Adequate disclaimers of limitations• Force issues & in court demonstrations• Need to rely on non-radiological data • Ethical issues• Duty to tell whole truth

6. Utilize good demonstrative aides • X-rays, CT’s, MRI’s• Which is best • Need for multiple modalities & images• Foundation to impeach opposing expert• Comparative exhibits (normal vs. child)• Anatomical drawings, medical illustrations• Computer animations• Expert’s role in preparing – assisting prep

Expert Testimony – A Top 10 Primer

MRI

Cortical necrosis: *

OlderSDH

Acute SDH

OlderSDH

Acute SDH

*

*

*

* *

*

Examples of Mechanisms

Comparative Exhibits

Expert Testimony – A Top 10 Primer7. Frame the debate on your terms not

those established by the defenses• AHT vs. SBS vs. shaken impact• NAT• Battered child• History not compatible with injury• Differential diagnosis of exclusion

Failure to accept a large and Failure to accept a large and consistent body of scientific evidence consistent body of scientific evidence

overover unvalidatedunvalidated personalpersonalobservation may be described as a observation may be described as a

normal human failing or, in the case normal human failing or, in the case of professionals who identify of professionals who identify

themselves as scientific, plainly themselves as scientific, plainly irrationalirrational

Dawes R et al, Clinical Dawes R et al, Clinical vsvs ActuarialActuarial JudgementJudgement..Science 1989;243:1668Science 1989;243:1668--16741674

MICHELIN MAN DENIES PATERNITY MICHELIN MAN DENIES PATERNITY SUIT....CLAIMS CHILD IS NOT HIS ..SUIT....CLAIMS CHILD IS NOT HIS ..

Expert Testimony – A Top 10 Primer8. Provide analogies for technical concepts • Blood as marker vs. underlying cause• We don’t make kids wear helmets around the

house• We don’t scan kids for birth SDH’s and keep

them in the hospital till resolved• We don’t do randomized clinical trials to prove

mechanisms for fx’s, burns, other abuse injuries

Expert Testimony – A Top 10 Primer9. Debunk the garbage defenses• Blood flows all across the brain• Thrombosis as the cause vs. the result • Rebleeding as cause for sudden collapse• Failure of autoregulation• Hypoxia causing SDH• Coagulopathy problems explaining SDH• Bone fragility from Rickets, TBBD, etc.

Expert Testimony – A Top 10 Primer10. Offer testimony that reflects a reasonable

degree of medical certainty• What is a reasonable degree of medical

certainty• Conservative approach in AHT & NAT –

don’t call it unless certainty very high• Remote possibilities are not probabilities• What is the evidence base for the alternative

theory• Can all the findings be explained by a single

cause

A Veritable A Veritable Laundry List Laundry List of Meanings of Meanings

For Reasonable For Reasonable Degree of Degree of MedicalMedical

CertaintyCertainty

ProbablyProbably

PossiblyPossibly

LikelyLikely

May BeMay Be

Could Have, Could BeCould Have, Could Be

It Seems To BeIt Seems To Be

The Most Likely CauseThe Most Likely Cause

With All ReasonableWith All ReasonableLikelihoodLikelihood

StateState’’s Burden of Beyond a Reasonable s Burden of Beyond a Reasonable Doubt vs. Defense Objective to Create DoubtDoubt vs. Defense Objective to Create Doubt

Irresponsible Expert TestimonyIrresponsible Expert Testimony1. Lack of qualifications to support opinions1. Lack of qualifications to support opinions2. Unique theories of causation, contrary to 2. Unique theories of causation, contrary to vast medical literature and consensusvast medical literature and consensus3. Unique interpretation of findings3. Unique interpretation of findings4. Misquoting of the literature (or 4. Misquoting of the literature (or misunderstanding the nature of the science)misunderstanding the nature of the science)5. Blatantly false statements 5. Blatantly false statements –– either about the either about the science or about their qualificationsscience or about their qualifications

Chadwick & Chadwick & KrousKrous,, ““Irresponsible Testimony by Medical Irresponsible Testimony by Medical Experts in Cases Involving the Physical Abuse and Neglect Experts in Cases Involving the Physical Abuse and Neglect of Children.of Children.”” 2(4) Child Maltreatment 3132(4) Child Maltreatment 313--321 (1997)321 (1997)

What is Evidence Base for Alternative• SDH’s• NAME (2001) – isolated SDH/SAH in

accidents less than 2%; 90-98% in NAT• Vinchon (2005) – 28% accident, 81% NAT• Starling (2004) 100% in confession cases• Vast body of fall literature where findings

are virtually never present or isolated SDH associated with linear fx

• Gilliand, J Forensic Sciences 1998

– Prospective, postmortem, 76 abused children– Interval to “severe” symptoms was <24 hours

• “It should be noted that in all of the cases where information was supplied by someone other than the perpetrator, the child was not normal during the interval.”

• Starling, 1995– Admitted perpetrators of AHT– 36/37 relate symptoms were immediate

Lucid Intervals?

Tactics For Experts�� Experience & ExpertiseExperience & Expertise�� Number child autopsies/ abuse Number child autopsies/ abuse

casescases�� See other kids with non abuse See other kids with non abuse

injuriesinjuries�� Consult on other casesConsult on other cases�� Teach & writeTeach & write�� Attend conferencesAttend conferences�� Read literatureRead literature

Tactics For Experts

�� Emphasize broad based Emphasize broad based clinical experience, abused clinical experience, abused and nonand non--abused children.abused children.�� Emphasize ongoing Emphasize ongoing

specialization in child specialization in child maltreatment.maltreatment.

Tactics For Experts

�� Detail medical findings (external, Detail medical findings (external, internal, microscopic, test findings)internal, microscopic, test findings)

�� Discuss absence of certain medical Discuss absence of certain medical findings (no rib findings (no rib fxfx’’ss, unilateral RH), unilateral RH)

�� Explain significance of findingsExplain significance of findings�� Explain difference between critical Explain difference between critical

injuries vs. markers (DAI vs. SDH)injuries vs. markers (DAI vs. SDH)

Tactics For Experts�� DiscussDiscuss symptomologysymptomology

accompanying injuryaccompanying injury�� Discuss timing of injuryDiscuss timing of injury�� HypotheticalHypothetical�� ResearchResearch�� SymptomsSymptoms�� ConfessionConfession�� Medical testingMedical testing

Tactics For Experts

�� Explain the Explain the biomechanicsbiomechanics of the of the injury.injury.

Tactics For Experts

�� Demonstrate expert Demonstrate expert considered alternative considered alternative hypotheses.hypotheses.

Tactics For Experts�� Preempt defense expertPreempt defense expert’’ss

theories.theories.�� Explain why not reliableExplain why not reliable�� Lay groundwork for crossLay groundwork for cross�� Suggests jury can ignore Suggests jury can ignore �� Introduce key articles Introduce key articles needed to cross defense expertneeded to cross defense expert

Tactics For Experts

�� Make use of false history Make use of false history provided by the caretaker provided by the caretaker to support diagnosis of to support diagnosis of abuse.abuse.

Tactics For Experts�� History is important factorHistory is important factor�� High frequency of false High frequency of false hxhx’’ss in CA in CA

casescases�� Classic false Classic false hxhx’’ss include...include...�� HxHx as important if not more as important if not more

important than medical findings important than medical findings �� InadequateInadequate hxhx to account for to account for

findingsfindings�� HxHx part of differential diagnosispart of differential diagnosis

Tactics For Experts

�� Incorporate the opinions Incorporate the opinions of others to support the of others to support the expertexpert’’s own.s own.

�� Incorporate researchIncorporate research�� Utilize consultants, MDTUtilize consultants, MDT’’s,s,

list serviceslist services

Tactics For Experts

�� Summarize opinion Summarize opinion using the totality of the using the totality of the facts.facts.

Tactics For Experts

�� Define StateDefine State’’s experts expert’’ssstandards for reasonable standards for reasonable degree of medical degree of medical certainty. (e.g. very certain certainty. (e.g. very certain or not make call)or not make call)