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IN THE CIRCUIT COURT FOR COOK COUNTY ILLINOIS DEPARTMENT OF JUVENILE JUSTICE AND CHILD PROTECTION CHILD PROTECTION DIVISION IN THE INTEREST OF ) ) [Son] and [Daughter] ) Minors ) Case Nos. 07 JA ___ ) 07 JA ___ ) [Father] and [Mother] ) Respondent Parents ) MEMORANDUM IN SUPPORT OF RESPONDENT PARENT
[FATHER’S] MOTION TO BAR EVIDENCE OF
THE THEORY OF SHAKEN BABY SYNDROME Respondent Parent [Father]
(Respondent), by his attorneys, the Law Offices of Zachary M. Bravos, submits
this memorandum in support of his Motion To Bar Evidence Of The Theory Of
Shaken Baby Syndrome (Motion Introduction This case alleges that 18-week old [Son] was abused by being manually shaken. The only evidence the State will introduce to support this premise is 1) medical evidence showing [Son] suffered from one or more subdural hematomas and bilateral retinal hemorrhaging; and 2) opinion testimony that the subdural hematoma and bilateral retinal hemorrhaging was caused by manual shaking. This opinion testimony will be premised on the scientific principles behind the theory of Shaken Baby Syndrome. The Respondent has filed his Motion to Bar challenging the theory of Shaken Baby Syndrome on the ground that the theory does not meet the standards of admissibility under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and further challenging it as highly prejudicial. The Respondent’s Frye challenge to the scientific theory that manual shaking could and did cause [Son]’s injuries is grounded in the fact that, inter alia, the theory is novel, has been repeatedly challenged in courts around the nation, is speculative and anecdotal only, is highly controversial, is not sufficiently established to have gained general acceptance in the scientific community, requires more force than manual shaking can produce, is biomechanically impossible as applied here, and ignores significant alternative causes. It is this last point, disregarding other probable causes of [Son]’s injuries (here, hydrocephalus), which makes admission of opinion evidence on the theory of Shaken Baby Syndrome not merely impermissible, but highly inflammatory and prejudicial. Based upon the foregoing, as discussed more fully below, this Court must conduct a Frye hearing to determine the admissibility of opinion testimony regarding the scientific principles behind the theory of Shaken Baby Syndrome. The Court must also weigh the highly prejudicial effect of such speculative opinion testimony in the presence of a fully satisfactory and probable explanation for [Son]’s injuries. Outline of the Memorandum Following is an outline of the sections set forth in this memorandum: –
Factual History –
The Frye
Standard; –
Defining the
Theory of Shaken Baby Syndrome; –
The Theory of
Shaken Baby Syndrome Is Grounded in –
Relevant
Scientific Community; –
Biomechanics
And Head Injury; –
Other Competent
Causes of Subdural Hematoma; –
Other Competent
Causes of Retinal Hemorrhages; –
Other Competent
Causes of Subdural Hematoma –
Biomechanics
And The Neck; and –
Conclusion Factual History Attached hereto in two volumes are articles and case opinions (exhibits
listed numerically), [Son]’s medical records (exhibits listed alphabetically). [Father] and [Mother] L______ are the married parents of two children: [Daughter], born September 5, 2004, and [Son], born April 2, 2007. [Son] was not well prior to August 15, 2007. On August 7, 2007 he was taken to the pediatrician for constipation. He also received the Hibtiter #1 vaccine at that time. (Exhibit E, ZMB 7) On August 13, 2007 [Son] was taken to [an urgent care clinic] at about 4:00 a.m. with a report of crying, sleeping for only about 20 minutes at a time, and vomiting. The treaters at {the clinic] were unable to make a diagnosis and [Son] was released home. (Exhibit F, ZMB 740-743) [Son] continued to be unwell and continued to vomit. As a result, he as taken to his pediatrician later that same day. Dr. L_____ diagnosed [Son] with herpangina (mouth blisters) and put him on Motrin. (Exhibit G, ZMB 6). [Son] continued to appear sick with increased irritability, decreased feeding, and occasional vomiting. [Mother] L______ reported four to five occasions of vomiting within the 24 hours previous to August 15, 2007. (Exhibit H, ZMB 757-758) On August 15, 2007 at about 1:50 p.m., while in [Father] L______’s care, [Son] woke up crying, was inconsolable, and went limp. [Father] called 911, gave him rescue breaths, and called [Mother]. When the EMS team arrived, [Son] was transported to [the local community hospital]. (Exhibit I, ZMB 1038) Upon arrival at the emergency room, he was described as crying, but alert, consolable, with good color and good activity. (Exhibit J, ZMB 770) (Note: [Son] has continued to be well since that time). Imagery at [the hospital] resulted in findings that “suggest subacute bilateral subdural hematomas. A small focus of parenchymal blood anteriorly high convexity on the left is noted.” (Exhibit K, ZMB 781) A head to toe physical examination of [Son] noted no outward sign of injury of any kind; no wounds, bruises, redness, cervical, thoracic, or lumbar spine tenderness, no marks or petechiae. [Son] was moving all extremities equally. His eyes demonstrated no acute changes. There was no scleral hemorrhage. There was positive red reflex in the back of his eyes and they appeared normal. (Exhibit L, ZMB 757-758) Later that same day, [Son] was transported to [a regional medical center] for follow-up. Repeated bone surveys and additional testing at [the center] revealed no evidence of bone fracture, or old or healed injuries. (Exhibit A, ZMB 1000) The diagnosis of subdural hematoma was confirmed by new imagery. (Exhibit M, ZMB 1104) While at [the center], [Son] was first diagnosed with bilateral retinal hemorrhages. (Exhibit N, ZMB 1053-1055) This juvenile proceeding followed. There is a division of opinion among the medical personnel involved. A pediatrician with professed training in child abuse and an ophthalmologist are of the opinion that [Son]’s condition is due to “Shaken Baby Syndrome.” The
Frye Standard Scientific evidence is admissible at trial only if it meets the standard expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which holds that “scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’” People v. McKown, 226 Ill.2d 245, 254, 875 N.E.2d 1029, 314 Ill.Dec. 742 (2007) (quoting In re Commitment of Simons, 213 Ill.2d 523, 529-30, 821 N.E.2d 1184, 290 Ill.Dec. 610 (2004) and Frye, 293 F. at 1014). “A court may determine the general acceptance of a scientific principle or methodology in either of two ways: (1) based on the results of a Frye hearing; or (2) by taking judicial notice of unequivocal and undisputed prior judicial decisions or technical writings on the subject.” Id., 226 Ill.2d at 254 (citing K. Broun, McCormick on Evidence § 203, at 828-39 (6th ed. 2006)). The McKown court found its scientific issue to be “novel” for purposes of Frye because of “the history of legal challenges to the admissibility of HGN test evidence, and the fact that a Frye hearing has never been held in Illinois on this matter.” McKown, 226 Ill.2d at 258. A Frye hearing has never been held in Illinois on the scientific principles of Shaken Baby Syndrome, and as with McKown, the theory “has been repeatedly challenged in courts around the nation [see discussion below], and the issue remains unsettled.“ Id., 226 Ill.2d at 257 Although not precedental for this court, a discussion and citation to several of these out-of-state cases demonstrates that Shaken Baby Syndrome remains “novel.” Several months ago, in Missouri v. Hyatt, 06 M7-CR00016-02 (Cir.Ct. Shelby Cty., Miss. 2007), the court issued its Frye hearing Order (Exhibit 31) following a Frye hearing on the issue of whether a pediatric physician could testify whether a young child was manually shaken based only upon a finding that the child had a subdural hematoma and retinal hemorrhaging in the absence of cranial trauma. The court found that although the “constellation of symptoms” i.e., the theory of Shaken Baby Syndrome, had gained acceptance among pediatricians, “there is substantial, persistent, and continuing criticism [concerning the theory] among many in the medical and scientific research communities.” The court ruled that, in the absence of other (besides subdural hematoma and retinal hemorrhaging) evidence of abuse, expert testimony that the child was a victim of violent abuse was excluded, and further, the court barred opinion testimony that subdural hematoma and retinal hemorrhaging could only be caused by manual shaking. It is noteworthy that the child in the Hyatt case and [Son] suffered from identical injuries. Similarly, the court in Commonwealth of Kentucky v. Davis, 04-CR-205 (Greenup County Cir.Ct. KY 2006) (Exhibit 20) ruled that the Commonwealth was precluded from offering an opinion that the child was injured (i.e., “subdural hematoma, bilateral ocular bleeding with no other manifest injuries “) as a result of being shaken or more commonly known as "shaken baby syndrome." The court found in the absence of other evidence of abuse, and in light of the controversy in the relevant scientific community concerning the mechanism of injury caused by shaken baby syndrome, the evidence was inadmissible.[1] As with the child in Hyatt, the Davis child has injuries matching those of [Son] here. Other Frye or Daubert challenges to the theory of Shaken Baby Syndrome have arisen in Florida (Johnson v. Florida, 933 So.2d 568 (Fla. 2006) and Florida v. Sanidad, 00-524-CFFA (Cir.Ct., Flager Cty. 2006)), Oklahoma (Oklahoma v. Watts, CF-2001-43 (Dist.Ct., Woods Cty., Okla.2002)), Tennessee (People v. Maze, M2000-02249-CCA-R3-CD (Tenn.Ct.App., Davidson Cty. Tenn.2002), and Ohio (Ohio v. Mills, 2006 CR 100315 (Ct.Com.Pleas, Tuscarawas Cty. Ohio 2006)) In the Australian case of The Queen v. Stuart Lee, SCC 69 of 2000 (Sup.Ct. Australia Capital Territory, Canberra) (Exhibit 40) the defendant was accused of violently shaking a three-week-old baby (par.17), resulting in subdural hemorrhages and bilateral retinal bleeding (par.26). No other injuries were observed. [These are the same as [Son]’s injuries.] The day before the alleged incident, the baby was “unsettled . . . with a lot of crying.” (par.20) “She awoke about three times during the night but did not sleep from about 1:30 until 6:30 which was unusual. At the 6:30 feed she vomited a small amount.” Shortly before the incident, the baby looked limp (“floppy”) and pale (par.20) [These are the same symptoms which precedeced [Son]’s incident.] The Crown’s theory was that the “constellation” (par.27) of injuries was caused by shaking. Seven Crown experts testified, over objection, in support of the theory (pars.30-38). The court found “The evidence revealed a paucity of empirical research on potentially critical issues.” (par.46) The Crown court ruled (Exhibit 40): “I find the evidence was not admissible that to the effect that the injuries were caused in that manner [shaking], whether by the accused or otherwise, or that they could only have been caused in that manner. The evidence suggests that such opinions would not be based wholly or even substantially on the expert’s specialized knowledge as a paediatrician but [ ] on a combination of speculation, inference, and reasoning beyond the relevant field of expertise.” (par.52) For each of the foregoing reasons, the theory of the Shaken Baby Syndrome should be exposed to the light of a Frye hearing. The following sections, defining the theory and describing its origins, discussing the principles and scientific evidence (or lack thereof) underpinning the theory, and revealing the research into, commentary upon, and biomechanical impossibility of the theory of Shaken Baby Syndrome, will be more fully explored and understood as a result of a Frye hearing. Such a proceeding will powerfully demonstrate the paucity of evidence supporting the theory and the deep rejection of the theory in the relevant scientific community. Such scrutiny promotes truth. Defining
the Theory of Shaken Baby Syndrome The Shaken Baby Syndrome theory posits that manual shaking of an infant can cause subdural hematoma[s] and retinal hemorrhaging. Therefore, these two conditions occurring together can be used to conclude that a child was manually shaken in the absence of any other evidence of abuse. The Theory of
Shaken Baby Syndrome Is Grounded in
Anecdote and Speculation Shaken Baby Syndrome -- assuming manual shaking when a child has two specific injuries but no other signs of trauma – has never been shown to exist. The origins of the theory are grounded in anecdote mixed with supposition. Following the theory’s shaky start, proponents have added more case anecdotes to the literature and have added further surmise, suspicion, suggestion, and speculation.[2] Inference and anecdote do not constitute science. In 1971, A. N. Guthkelch suggested that repeated shaking could be the cause of subdural hematoma even in the absence of evidence of external injury to the head. (Exhibit 19, Guthkelch) To support his suggestion, Guthkelch referenced a series of twenty-three children of “proved or strongly suspected parental assault.” He did not disclose how these assault determinations were made. (Exhibit 19, Guthkelch p.430) Of this group, five children had subdural hematoma with no evidence of direct trauma to the head. (Exhibit 19, Guthkelch pp.430-431) Guthkelch theorized that repeated shaking rather than direct impact was the cause of these hematomas. (Exhibit 19, Guthkelch p.430) He compares such shaking to two cases of adults suffering subdural hematoma as a result of automobile whiplash injury in rear-end collisions, without regard to the respective forces involved. (Exhibit 19, Guthkelch p.430) Guthkelch’s conclusion was based on anecdote only, inappropriate comparison (shaking of a child versus auto accident injury to an adult), and supposition. No scientific study was involved. The value of the Guthkelch article was not in its proof, but in its observations as a basis for further study. The Shaken Baby Syndrome theory was brought to further widespread attention by John Caffey in his 1972 article “On the Theory and Practice of Shaking Infants” (Exhibit 5) and his 1974 paper “The Whiplash Shaken Infant Syndrome” (Exhibit 6). Caffey drew upon the Guthkelch article, a Newsweek magazine article, and the work of Ayub Ommaya published in 1968. He conducted no research or scientific investigation of his theory. He suggested that findings of subdural hematoma and intraocular hemorrhages could be diagnostic criteria sufficient to determine abuse. In offering his suggestion, Caffey clearly acknowledged that the evidence supporting his theory was not only incomplete and circumstantial, but also that his proposed diagnostic criteria were contradictory to medical expectations.[3] Ironically, Caffey’s evidence was not only incomplete, his reliance on whiplash injury in rear-end automobile collisions (the Ayub Ommaya study) (Exhibit 34, Ommaya 1968), the only scientific study referenced in support of his theory, was misplaced, misapprehended, and misapplied. In comment on the Caffey conclusions, Dr. Ommaya pointed out how Caffey misapplied his research: . . . our experimental results were referenced as providing the experimental basis of the 'shaken baby syndrome' (SBS) by Caffey, Gulthkelch and others by analogy not realizing that the energy level of acceleration in our work related to speeds at motor vehicle crashes at 30 mph. (Exhibit 35, Ommaya 2002 p.221) Notwithstanding the non-scientific conjectural nature of the Caffey article and paper, the “Caffey markers” (bleeding in the brain and retinal hemorrhaging), standing alone, are now almost universally pointed to as proof of manual shaking by those believing (e.g., pediatricians[4]) in the theory of Shaken Baby Syndrome.[5] Even so, the scientific underpinnings of the theory are surprisingly weak. The articles and papers advanced in support of the theory are commonly based on anecdote, and the quality of such papers and articles have been sharply criticized in peer reviews and subsequent articles.[6] Further research into biomechanics has cast serious doubt on the scientific basis of the theory. Indeed, some research, discussed below, refutes basic principles behind the theory. As a result, the theory of Shaken Baby Syndrome is the subject of substantial, persistent, and continuing criticism. In sum, the theory is not generally accepted in the relevant scientific community.[7] Relevant Scientific Community Central to a Frye inquiry into “general acceptance” is a determination of the field to which the relevant scientific principles belong. Frye, supra. The theory of Shaken Baby Syndrome is not a “diagnosis.” It is a claim of causation – manual shaking. While it would be reasonable to accept physician’s or pediatrician’s diagnosis of subdural hematoma and retinal bleeding, it would be erroneously facile to accept that a medical doctor’s knowledge of anatomy and injury extends into the realm of causation. “[S]ubdural hematoma and retinal bleeding can have many other causes and the diagnosis of Shaken Baby Syndrome is merely a ‘default’ diagnosis, one which pediatricians use when they have no explanation for the cause of the child’s injuries.” (Exhibit 31, Missouri v. Hyatt, supra, pages 1-2). To a medical practitioner, the theory may be useful, but it is not science. As the Crown court in The Queen v. Stuart Lee, supra, (Exhibit 40) pointed out: “Medical practitioners are called upon to treat patients in potentially life threatening situations, and if the information available to them is not wholly reliable [referring to the expert’s reliance on an unreliable Shaken Baby Syndrome paper] they must do the best they can in the circumstances. . . . [However, the] fact that it may be difficult to ascertain the truth does not . . . permit the Court to act upon some lesser standard determined by reference to the quality of the evidence available.” (par. 48) * * * “[On medical practitioners’ testimony as to causation, the] evidence suggests that such opinions would not be based wholly or even substantially on the expert’s specialized knowledge as a paediatrician but [ ] on a combination of speculation, inference, and reasoning beyond the relevant field of expertise.” (par.52) The Davis court reached a similar conclusion: “Physicians routinely diagnose SBS . . . However, this diagnosis is based on inconclusive research conducted in the scientific research community.” Kentucky v. Davis, supra (Exhibit 20, p.22) Claims that human manual shaking is the mechanism of intracranial and/or ocular injuries, opinions about the acceleration/deceleration velocities required to cause these injuries, estimations about the ability of a person to create the force required to cause these injuries, and testimony about the coincident injury to a child that must accompany such severe force and velocities may involve medicine, however, such opinions are not medical diagnoses. Accordingly, although some physicians and pediatricians may harbor opinions on these issues -- as may any number of other persons in other fields – physician, pediatrician, and other professional testimony on such subjects must be examined through the lens of a Frye hearing, particularly focused on the reliability of such opinion. Where such testimony exceeds expertise, it must be barred. Where the basis for such testimony is unreliable, the testimony must be excluded. Following a winnowing process to limit opinions to a medical expert’s particular field of expertise, and eliminate unreliable principles upon which unsound opinion is based, a Frye hearing will show that the theory of Shaken Baby Syndrome is not generally accepted in the medical community. A major relevant scientific field in which issues and principles of the theory of Shaken Baby Syndrome may be productively examined is the field of biomechanics. Biomechanics is the application of mechanical principals to living organisms. The field of biomechanics has an additional benefit. Although clinical medicine is both a science and an art, the science aspect of the field must be based upon established principles (i.e., “in conformity to known biologic and physical laws.”[8]) By comparison, biomechanics is a science where experiments can be conducted, principles can be tested, and analyses can be performed.[9] The necessity of examining the theory of Shaken Baby Syndrome in the field of biomechanics is well documented.[10] A Fyre hearing will demonstrably show that, in this relevant scientific community --- biomechanics professionals -- the theory of Shaken Baby Syndrome is not generally accepted. Biomechanics And Head Injury According to its proponents, one indicator of the Shaken Baby Syndrome used to support the suspicion that a baby has been violently shaken, is the absence of evidence of any outward sign of abuse. The proponents’ "constellation of symptoms" of the theory of the Shaken Baby Syndrome adds a new symptom -- absence of other trauma -- to the “Caffey markers” (subdural hematoma and retinal bleeding). Researchers have demonstrated that having a subdural hematoma without exterior physical signs is neither unusual nor surprising.[11] Knowing that other competent causes exist for infant subdural hematoma and retinal bleeding does not answer the question of whether manual shaking can also cause this harm. This very question has been researched and documented. In 1987 the first research was conducted seeking to answer the fundamental question: can shaking an infant produce sufficient force to cause brain injury? (Exhibit 11, Duhaime 1987). Duhaime et al. constructed model dolls fitted with accelerometers that were then shaken. The results demonstrated that shaking alone could only generate about 25% of the angular acceleration needed to cause brain concussion and only about 7% of the angular acceleration required to cause subdural hematoma. (Exhibit 11, Duhaime 1987 p.413) The authors concluded: . . . it can be seen that the angular acceleration and velocity associated with shaking occurs well below the injury range . . . (Exhibit 11, Duhaime 1987 p.414) This result has been scientifically replicated. Indeed, a more recent study published in 2003 (exhibit 39) and utilizing more realistic baby models obtained similar results. Shaking, even with impact on foam, could not produce enough force to cause brain injury, including subdural hematoma. [12] There are no scientific studies demonstrating that shaking creates sufficient force to cause subdural hematoma, an essential criterion for the Shaken Baby Syndrome theory. Even Dr. Ommaya, whose primate studies were utilized by Caffey and Guthkelch, confirms that shaking alone produces maximum angular acceleration “. . . well below thresholds for cerebral concussion, SDH (subdural hematoma), subarachnoid haemorrhage, deep brain haemorrhages and cortical contusions.” (Exhibit 35, Ommaya 2002, p.226) A necessary principle of Shaken Baby Syndrome theory – that manual shaking causes subdural hematoma – has never been established. To the contrary, all available research provides evidence which falsifies this assumption. This research should end the discussion. A theory may be disproved by a single competent, reliable, journal article or research paper, no matter how many other articles have been published that agree with the theory.[13] One view of Earth from space is enough to disprove the flat-earth theory, no matter how many people warn that you will fall off the edge if you travel too far. Other Competent Causes of Subdural Hematoma A variety of conditions, known and unknown, can cause subdural hematomas. For example, subdural hematoma is a known complication of childbirth.[14] They can occur with no history of birth trauma and have even been described prenataly.[15] Hemorrhages have been found in 70% of infants who died from non-traumatic causes some with bleeding identical to cases presented as classic “Shaken Baby Syndrome.”[16] In a recent survey of asymptomatic newborns 16% had subdural hematomas. Fully 26% had some form of intracranial bleed.[17] There is no suggestion that these children were abused. Significantly for the case sub judice older infants with external hydrocephalus commonly suffer subdural hemorrhages.[18] Children such as [Son] with external hydrocephalus are subject to spontaneous subdural hematoma at a rate of up to 11%.[19] Moreover, as already noted, a family history of macrocephaly (such as [Daughter]’s) is reported in 88% of external hydrocephalus cases and there is evidence of a genetic cause.[20] Subdural hemorrhage in children such as [Son] is no longer generally considered diagnostic of child abuse.[21] Other Competent Causes of Retinal Hemorrhages Contrary to the proponents’ position on Shaken Baby Syndrome theory, there is no evidence that retinal hemorrhages are caused by mechanical traction on the optic nerve and retina during shaking.[22] The exact cause of retinal hemorrhages remains unknown.[23] There appears to be a relationship to increased intracranial pressure. This relationship has been known for decades.[24] Extensive, bilateral retinal hemorrhages, that in other contexts could lead proponents to diagnose Shaken Baby Syndrome, has been described in cases of external hydrocephalus.[25] Indeed, where an infant suffers from hydrocephalus and subdural hematoma, retinal hemorrhaging becomes a marker that inflicted injury did not occur.[26] Retinal hemorrhages are common. Approximately 30% of children are born with them.[27] Since children are not routinely screened for retinal hemorrhage there is no good data regarding their rate of occurrence for older infants. However, the fact that they are common and related to many other conditions, known and unknown is well documented. [28] Other Competent Causes of Subdural Hematoma and Retinal
Hemorrhage Retinal hemorrhage and subdural hematoma are found together, at reported rates of 65–95%.[29] However, the relation, if any, between these two conditions remains unproven. Proponents of Shaken Baby Syndrome theory assert that presumed manual shaking causes these conditions. However, the cause(s) of retinal hemorrhages, as already noted, is unknown with several theories postulated but none proven. Both subdural hematoma and retinal hemorrhage can appear at birth or from multiple non-traumatic causes. To argue that they are causally related to manual shaking goes beyond the evidence. They may be related as a result of a third or even multiple different causes as yet undetermined. For example, there is a large body of research that asserts that retinal hemorrhages are caused by increased intracranial pressure. There is considerable support for that position.[30] Further, subdural hematoma is a competent medical cause for increased intracranial pressure.[31] Therefore it follows that subdural hematoma, from whatever cause, may also be associated with retinal hemorrhage. In other words, subdural hematoma and retinal hemorrhages may be correlated by a third factor – increased intracranial pressure – not presumed shaking. Indeed, where external hydrocephalus and subdural hematoma exist, the presence of retinal hemorrhaging points to causes other than manual shaking.[32] To conclude that manual shaking causes both subdural hematoma and retinal hemorrhage because they occur together in instances where it is theorized that manual shaking has occurred is to construct a circular argument – a false argument that fails in its proof because the truth of what it seeks to prove is assumed. This is not science. This is not sound logic. Biomechanics And The Neck The idea that infants and very small children are susceptible to Shaken Baby Syndrome relates to the infant’s disproportionably large head compared to his or her relatively weak neck muscles. If an act of manual shaking is sufficiently violent to cause subdural hematoma and retinal hemorrhaging, how then does the violently shaken infant escape serious neck injuries? Proponents of the theory of Shaken Baby Syndrome offer no satisfactory answers. This is because, biomechanically speaking, violent manual shaking should result in corresponding neck injuries. The mechanical limitations of the infant neck can determined. In 2005, Dr. Faris Bandak performed biomechanical research on infant shaking and its consequences on the head-neck to determine if it is possible for the fragile infant neck to withstand SBS-defined levels of head accelerations without injury.[33] The study concluded that cervical spine or brain stem injuries, perhaps even lethal injuries, would occur “at levels well below those reported for the Shaking Baby Syndrome.”[34] Peer review of this work finds it persuasive.[35] Conclusion A family faces the prospect of long-term separation. A father’s reputation is jeopardized. The enduring well-being and best interests of two children are at risk. These potential outcomes are predicated on the validity or invalidity, reliability or unreliability, truth or falsity of the theory of Shaken Baby Syndrome. This is a theory grounded in anecdote, inference, surmise, suspicion, suggestion, speculation, and supposition. This is not a substitute for science. No harm can come from a Frye hearing to determine whether the theory of Shaken Baby Syndrome deserves a place in a courtroom. Much can be gained from such a search for validity, reliability, and truth. For each and all of the above reasons, and for reasons set forth in the Motion to Bar, Respondent prays that this court conduct a hearing under the principles of Frye (or Daubert if permissible) on the admissibility of evidence regarding the theory of Shaken Baby Syndrome. RESPONDENT [FATHER] By his attorneys, THE LAW OFFICES OF ZACHARY M. BRAVOS BY _________________________________ Zachary M. Bravos
Zachary M. Bravos Law Offices Of Zachary M. Bravos Cook County I.D. 31581 600 W. Roosevelt Rd., Ste. B1 Wheaton, IL 60187 (630) 510-1300 Fax: (630) 510-1336
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