WEBVTT 2 00:00:12.289 --> 00:00:17.203 RECEIVE /TPAL I A/PHRAOERBS HE IS COUNSEL. MR. LISTON DAVID 3 00:00:17.203 --> 00:00:22.197 MR. LITS TO KNOW APPEARING ON BEHALF OF THE STATE. MR. WALLACE: 4 00:00:22.197 --> 00:00:31.361 MISS /WAL AS ATTORNEY AGAIN. MR. MASON: GOOD MORNING YOUR HONOR 5 00:00:31.361 --> 00:00:39.390 MR. MASON I. MR. NETTL: PHILLIP NETTLE. 6 00:00:39.390 --> 00:00:44.875 MR. MITCHELL: T GARY MITCHELL. CHIEF JUSTICE RABNER: GOOD MORNING 7 00:00:44.875 --> 00:00:49.180 COUNSEL WELCOME I WOULD ASK YOU ALL NOT SIMPLY TO ORGANIZE YOUR ARGUMENTS 8 00:00:49.180 --> 00:00:54.997 BUT REORGANIZE THEM FOR THOSE PROCEED YOU BECAUSE FAIR AMOUNT OF OVERLAP AN INC. 9 00:00:54.997 --> 00:01:01.470 OTHER ARGUMENTS PRESENTED. MR. LIST TO KNOW PLEASE PROCEED. MR. 10 00:01:01.470 --> 00:01:06.221 LISTON WOULD LIKE TO RESERVE TWO MINUTES OF REBUTTAL TIME. MR. 11 00:01:06.221 --> 00:01:10.285 LISTON THE QUESTION BEFORE THE COURT TODAY IS WHETHER A DIAGNOSIS OF /PWAOUS OF 12 00:01:10.285 --> 00:01:15.944 HEAD TRAUMA IS /SAOEUFBG /TEUFBGLY RELIABLE. /TKPWORPB BY FRY STANDARD 13 00:01:15.944 --> 00:01:21.185 SHOW DIAGNOSIS RELEVANTLY ACCEPTED THE RELEVANT SCIENTIFIC COMMUNITY. SASS THIS 14 00:01:21.185 --> 00:01:27.327 COURT EXPLAIN STATE VERSUS OLENOWSKI UNDER DAUBERT STANDARD COURTS DIRECTLY 15 00:01:27.327 --> 00:01:33.731 EXAMINE THE RELIABILITY OF EXPERT TESTIMONY WHERES /TPRAO*EU POP TO ONLY CONSIDER 16 00:01:33.731 --> 00:01:37.487 WHETHER THE SUBJECT TESTIMONY HAS BEEN GENERALLY ACCEPTED IN THE RELEVANT 17 00:01:37.487 --> 00:01:40.851 SCIENTIFIC COMMUNITY. DEFENDANTS HAVE ARGUED IN THIS CASE THAT GENERAL ACCEPTANCE 18 00:01:40.851 --> 00:01:49.172 IS NOT AN END IN SELF QUOTES APPELATE DIVISION IN DATE /TKO*ER. WITH THAT 19 00:01:49.172 --> 00:01:53.063 SENSE WITH ONE THAT FOLLOWS IT GET THIS. GENERAL ACCEPT IS NOT ENDS IN ITSELF 20 00:01:53.063 --> 00:01:57.705 IT IS THE TEST USED TO ASCERTAIN WHETHER A SUFFICIENT LEVEL OF RELIABLE HAS BEEN 21 00:01:57.705 --> 00:02:02.806 ACHIEVED TO ALLOW CONSIDERATION OF A SCIENTIFIC TEST BY FACT FINDER. SO UNDER 22 00:02:02.806 --> 00:02:09.641 THE /TPRAO*EU TEST THE COURTS RELY ON SPECIFIC WHAT IS SCIENTIFIC RELIABLE. 23 00:02:09.641 --> 00:02:13.781 EVIDENCE DOES NOT BECOME GENERALLY ACCEPTED STEIN ASTERISK COMMUNITY UNLESS IT ACTUALLY 24 00:02:13.781 --> 00:02:20.282 IS SCIENTIFICLY RELIABLE. THE COURT EXPLAIN THE RATIONAL OF /TPRAO*EU TEST 25 00:02:20.282 --> 00:02:24.998 THE STATE VERSUS CONTACT VAL OWE WHEN SAID THIS. JUDGES NOT WELL SUITED TO DETERMINE 26 00:02:24.998 --> 00:02:31.782 RELIANT /RAOEUBLT OF EXPERT EVIDENCE BUT CAN DECIDE WHETHER IT GAIN AGAIN 27 00:02:31.782 --> 00:02:36.474 ACCEPTS IN THE COMMUNITY. THE EXPERT EVIDENCE CAN THEREFORE MEET HIS. TESTIMONY 28 00:02:36.474 --> 00:02:41.966 ACHIEVED ENOUGH ACCEPTANCE SCIENTISTS COMMUNITIED TO CONVINCE THE COURT THAT 29 00:02:41.966 --> 00:02:47.329 IS REASONABLY RELIABLE. SO WITH THAT IN MIND AT FRY HEARING IN CASE THE STATE SOUTH 30 00:02:47.329 --> 00:02:54.109 TO ESTABLISH THE AGAIN ACCEPTANCE ABUSIVE HEAD TRAUMA OR EHT IN ALL THREE OF 31 00:02:54.109 --> 00:02:57.963 DAYS IT ALLOWS. AUTHORITATIVE SCIENTIFIC A LEGAL WRITING AN JUDICIAL OPINIONS. 32 00:02:57.963 --> 00:03:03.155 IN ADDITION CITING NUMEROUS JUDICIAL OPINIONS FROM JURISDICTION AND OTHERS 33 00:03:03.155 --> 00:03:07.874 IN WHICH AHD RECOGNIZED RELIABLE DIAGNOSIS THE STATE PRESENTED THE TESTIMONY OF 34 00:03:07.874 --> 00:03:14.283 IT'S MEDICAL EXPERT DR. MEDINA DEAN AWHO TESTIFIED ABOUT AHT GENERAL ACCEPTANCE 35 00:03:14.283 --> 00:03:18.863 BY PROVISION MEDICINE ORGANIZATIONS AROUND THE WORLD AN CROSS MULTIPLE 36 00:03:18.863 --> 00:03:23.327 SPECIALTIES. THAT TESTIMONY WAS SUPPORTED BY SCIENTIFIC JOURNAL ARTICLES INCLUDING 37 00:03:23.327 --> 00:03:28.424 A 2018 CONSENSUS STATEMENT ON ABUSIVE HEAD TRAUMA ENDORSED BY MEDICAL SOCIETIES 38 00:03:28.424 --> 00:03:34.233 RANGING FROM AMERICAN ACADEMY OF PEDIATRICS TO EUROPEAN SOCIETY OF NEURO 39 00:03:34.233 --> 00:03:38.892 RAILING TO JAPANESE PEDIATRIC SOCIETY. THAT SUPPORT AMONG MEDICAL SOCIETIES 40 00:03:38.892 --> 00:03:44.575 CONTINUES TO THIS DAY. MEDICAL SOCIETIES INCLUDING THE AMERICAN ACADEMY OF PEDIATRICS 41 00:03:44.575 --> 00:03:51.475 AND THE AMERICAN ASSOCIATION FOR PEDIATRIC OPTHALMOPATHY TOO BUSY TO OWE 42 00:03:51.475 --> 00:03:55.243 /AOE EXCUSE ME THOSE MEDICAL ORGANIZATIONS HAVE FILED A BRIEF IN THIS CASE SUPPORTING 43 00:03:55.243 --> 00:04:03.265 RELIABLE OF AHT DIAGNOSIS. ON THE OTHER SIDE THERE ABOUT EIGHT AMICUS BRIEF 44 00:04:03.265 --> 00:04:08.144 FILED IN SUPPORT OF THE DEFENDANTS POSITION. NOT A SINGLE ONE OF THOSE WAS 45 00:04:08.144 --> 00:04:13.138 FILED A SCIENTIFIC ORGANIZATION. CON SES AMONG PROFESSIONALS AN NUMEROUS 46 00:04:13.138 --> 00:04:19.428 SPECIALTIES IT HELD THAT LACK CONSENSUS IN ONE GROUP OF SCIENTIFIC BIOMECHANIC 47 00:04:19.428 --> 00:04:24.267 ENGINEERS WAS ENOUGH TO OVERCOME BROUGHT CONSENT SES AMONG PROFESSIONAL RENDER 48 00:04:24.267 --> 00:04:29.333 TESTIMONY ON AHT UNRELIABLE. THAT REASON CONTRAVENES THIS COURTS JURIS PRUDENCE 49 00:04:29.333 --> 00:04:35.726 ON FRY TEST TO QUOTE AGAIN FROM STATE HAVE THE OLD THIS CASE SAID CASE LAW INSTRUCT 50 00:04:35.726 --> 00:04:40.484 NEED NOT BE COMPLETE AGREEMENT WITHIN THE SCIENTIFIC COMMUNITY TO SEA THE 51 00:04:40.484 --> 00:04:46.418 GENERAL ACCEPTANCE TEST. COURT RECOGNIZES EVERY THEORY HAS DETRACTORS. NOW MEDICAL 52 00:04:46.418 --> 00:04:53.281 DOCTORS ACKNOWLEDGE BIOMECHANIC RESEARCH PERFORM A/SKWRUPBL TO GROWING BODY 53 00:04:53.281 --> 00:04:58.674 OF KNOWLEDGE. BUT ABUSIVE HEAD TRAUMA REMAINS MEDICAL FINDING MADE BY MEDICAL 54 00:04:58.674 --> 00:05:02.956 DOCTORS ONLY AFTER THOROUGH EXAMINATION OF A ILL CHILDCARE FULL CONSIDERATION 55 00:05:02.956 --> 00:05:07.581 THE CHILD'S HISTORY AND DIFFERENTIAL DIAGNOSIS THAT INVOLVES MULTI DISCIPLINARY 56 00:05:07.581 --> 00:05:16.161 TEAM OF SPECIALIST. /KROERSY AMONG ENGINEERING AMONG ONE MECHANISM OF 57 00:05:16.161 --> 00:05:21.907 ABUSIVE HEAD TRAUMA SHAKING DOES NOT BROUGHT ACCEPT /EF EM. FEEL PEDIATRIC 58 00:05:21.907 --> 00:05:26.552 MEDICINE. THE STATE MET ITS BURDEN OF PROOF /EPB OF SHOWING ACCEPTANCE THE 59 00:05:26.552 --> 00:05:29.688 ABUSIVE HEAD TRAUMA THAT DIAGNOSIS IN THE RELEVANT SCIENTIFIC COMMUNITY 60 00:05:29.688 --> 00:05:34.421 AAPPELATE DIVISION DIVISION WAS WRONG TO CONCLUDE OTHERWISE. THANK THE COURT AN 61 00:05:34.421 --> 00:05:37.178 I HAVE THE ESCORTS EVIDENCE REQUIREMENTED REQUIREMENT COUNSEL PHYSICALLY 62 00:05:37.178 --> 00:05:42.984 PERSON FOR A PERSON TO SHAKE A BABE WITH WITH ENOUGH FORCE TO CAUSE SYMPTOMS WITHOUT 63 00:05:42.984 --> 00:05:48.496 OTHER TRAUMA LIKE SAY NECK INJURY. MR. LISTON YES, IT IS. 64 00:05:48.496 --> 00:05:51.046 CHIEF JUSTICE RABNER: WHAT THE SCIENTIFIC EVIDENCE AND SCIENTIFIC 65 00:05:51.046 --> 00:05:56.439 SUPPORT FOR YOUR RESPONSE. MR. LISTON THE STRONGEST ONE IS VIN /KHOEPB 66 00:05:56.439 --> 00:06:04.534 SHOULDY FELL MAN STUDY INDEPENDENTLY WITNESSED SHAKING. ADAMS TOWN. 67 00:06:04.534 --> 00:06:10.319 STARLING. EDWARDS. THESE ARE ALL STUDIES CITED BY THE STATE INVOLVING EITHER CONFESSED 68 00:06:10.319 --> 00:06:16.759 OR INDEPENDENTLY WITNESSED ACTS OF SHAKING THAT DID NOT INVOLVE IMPACT WHERE 69 00:06:16.759 --> 00:06:22.922 THERE WAS NO SIGNS OF EXTERNAL INJURY AND YET YOU SAW THE SUBDURAL HEMORRHAGES. 70 00:06:22.922 --> 00:06:28.639 SEVERE RETINAL HEMORRHAGES AND DO WANT TO EMPHASIZE IS HE /SRERLT THE /H*FPLS 71 00:06:28.639 --> 00:06:33.407 IS SOMETHING VERY IMPORTANT TO THIS DIAGNOSIS BECAUSE THOSE ARE SPECIFIC TO 72 00:06:33.407 --> 00:06:37.942 EITHER I KNOW /STREUBLGTED JUROR CERTAIN TYPES OF ACCIDENTAL INJURY WHICH 73 00:06:37.942 --> 00:06:40.387 WERE NOT PRESENT IN THIS CASE. CHIEF JUSTICE RABNER: YOU MENTIONED 74 00:06:40.387 --> 00:06:45.245 INDEPENDENTLY WITNESSED /ERPBTS AND REFERENCED FELDMAN STUDY. THAT COME 75 00:06:45.245 --> 00:06:51.045 THAN CRITICISM BY NUMBER OF RECENT ARTICLES NO. MR. LISTON 76 00:06:51.045 --> 00:06:55.138 STATE IS NOT AWARE /W-F THOSE. CHIEF JUSTICE RABNER: /ARBL BY ESQUIRE 77 00:06:55.138 --> 00:06:59.671 AN OWE LEAVE SON THAT SPEAKS ABOUT THE FIVE INDEPENDENTLY WITNESSED SHAKING 78 00:06:59.671 --> 00:07:05.774 /EPBS THAT ARE FOLLOWED BY SIGNS ATTRIBUTED TO AHT. ONE CASE INVOLVED MOTHER 79 00:07:05.774 --> 00:07:13.320 WHO TESTED POSITIVE A.M. FET MEANS AT BIRTH WHERE BABY HAD SIGNED THE DRUG 80 00:07:13.320 --> 00:07:19.852 WITH DRAW. SHAKING WITNESSED BY A PARENT WHO ACCUSED THE ALLEGE PERPETRATOR THE 81 00:07:19.852 --> 00:07:24.875 OTHER PARENT OR BOYFRIEND. DO THOSE CASES MEET THE STANDARD FOR AN INDEPENDENT 82 00:07:24.875 --> 00:07:30.529 LY WITNESSED EVENT? MR. LISTON I BELIEVE SO YOUR HONOR. I MEAN 83 00:07:30.529 --> 00:07:34.460 IT IS ACTUALLY TIES IN WITH THE STATES MAIN POINT WHICH IS THAT THE QUESTION HERE 84 00:07:34.460 --> 00:07:40.123 IS GENERAL ACCEPTANCE. WHERE AGAIN WE LOOK TO SCIENTISTS TO DETERMINE WHAT IS 85 00:07:40.123 --> 00:07:44.534 SIGNIFICANT RATHER THAN WE AS LAWYERS AN JUDGES LOOKING AT A SCIENTIFIC 86 00:07:44.534 --> 00:07:49.093 STUDY AN MAKE OUR OWN JUDGMENT ABOUT IT IT WAS OBVIOUSLY SIGNIFICANT TO THE RESEARCHER 87 00:07:49.093 --> 00:07:54.185 YOU KNOW WHAT WAS WITNESSED IN THIS CASE. IN FACT, ONE OF THOSE CASES I 88 00:07:54.185 --> 00:07:57.763 WOULD LIKE TO POINT OUT. CHIEF JUSTICE RABNER: IF I COULD ARE ARE 89 00:07:57.763 --> 00:08:01.190 FAMILY MEMBERS CONSIDERED INDEPENDENT WITNESSES OR BRING POTENTIAL BIAS 90 00:08:01.190 --> 00:08:07.481 INTO THE SITUATION AS CRITICS OF FELDMAN STUDY WHO PUBLISHED SCIENTIFIC ARTICLES 91 00:08:07.481 --> 00:08:12.439 HAVE SAID. MR. LISTON LIKE ANY WITNESS ANY HUMAN BEING MAY 92 00:08:12.439 --> 00:08:18.861 BRING CERTAIN POTENTIAL BIAS BUT NOT NECESSARILY MORE THAN ANYONE THAN ANYONE ELSE. 93 00:08:18.861 --> 00:08:22.169 CHIEF JUSTICE RABNER: ARE FAMILY MEMBERS CONSIDERED INDEPENDENT 94 00:08:22.169 --> 00:08:25.564 WITNESSES. MR. LISTON YES I MEAN THEY ARE NOT -- IT IS NOT 95 00:08:25.564 --> 00:08:32.811 A CONFESSION BECAUSE I KNOW THAT CONFESSIONS ADMISSIONS, SOME -- SOME HAVE HELD 96 00:08:32.811 --> 00:08:38.980 THOSE INTO QUESTION WONDERING WHETHER THEY WERE YOU KNOW COERCED CONFESSIONS 97 00:08:38.980 --> 00:08:44.114 SOMETHING OF THAT SORT. INDEPENDENTLY WITNESSED IS OF ANOTHER SORT. IT'S A SEPARATE 98 00:08:44.114 --> 00:08:48.520 PERSON OBSERVING THOSE. BUT IF I MAY YOUR HONOR WOULD LIKE TO POINT SOMETHING 99 00:08:48.520 --> 00:08:54.189 OUT THE FELDMAN STUDY THAT ONE CASE VERY SIMILAR SYMPTOMS TO THE VICTIM 100 00:08:54.189 --> 00:09:01.736 IN NIEVES CASE. NOT JUST INTRACRANIAL INJURIES BUT FACT THAT THERE WAS SCAN DONE 101 00:09:01.736 --> 00:09:08.419 OF THE SPINE AND SHOWED YOU KNOW NORMAL FINDINGS. I WOULD ARGUE THAT THAT 102 00:09:08.419 --> 00:09:13.695 YOU KNOW THE STRONG EVIDENCE NEED NOT BE A NECK INJURY IN ORDER FOR SHAKING EVENT 103 00:09:13.695 --> 00:09:20.366 THAT CAUSED INTRACRANIAL INJURIES AN SEVERE HEMS. I. CHIEF 104 00:09:20.366 --> 00:09:24.040 JUSTICE RABNER: YOU APPROPRIATE SPOKE TO THE GENERAL ACCEPTANCE. WHAT ARE WE THEN 105 00:09:24.040 --> 00:09:29.473 TO MAKE OF THESE STUDIES THAT ARE CRITICAL SCIENTIFIC STUDIES HAS FELDMAN 106 00:09:29.473 --> 00:09:34.548 AN FELDMAN STUDY ACHIEVED GENERAL ACCEPT ANSWER. MR. LISTON I DON'T 107 00:09:34.548 --> 00:09:40.830 KNOW ABOUT THE -- BREAK IT DOWN INTO WHETHER EACH INDIVIDUAL STUDY HAS. I KNOW 108 00:09:40.830 --> 00:09:48.832 THE VIN SHOWN STUDY ADAMS BOUND ARE CITED. YOU KNOW I BELIEVE I CONSENSUS 109 00:09:48.832 --> 00:09:54.507 STATEMENT. FELDMAN STUDY WAS PUBLISHED IN 2021 AFTER THE FRY HEARING IN CASE. 110 00:09:54.507 --> 00:09:58.546 IT WAS SUBMITTED BY THE STATE. SPECIFICALLY IN RESPONSE TO COMMENT 111 00:09:58.546 --> 00:10:03.174 MADE BY DOCTOR SHELL ER DURING HIS TESTIMONY THAT THERE HAD BEEN NO STUDY OF INDEPENDENT 112 00:10:03.174 --> 00:10:09.261 LY WITNESSED SHAKING EVENTS CAUSING THE SYMPTOMS ASSOCIATED WITH AHT. SO 113 00:10:09.261 --> 00:10:14.033 THIS STUDY SORT OF ANSWERED THAT QUESTION. JUSTICE WAINER APTER: 114 00:10:14.033 --> 00:10:20.581 HAS ANY COURT THAT FOUND THAT SCIENTIFIC STUDIES HAS TO BE ZED U DIAGNOSIS AS 115 00:10:20.581 --> 00:10:26.826 WHOLE HAS TO BE ACCEPTED BY RELEVANT MEDICAL COMMUNITY. MR. LISTON 116 00:10:26.826 --> 00:10:31.323 THE STAYS ACE AWARE OF HAVING TO DO WITH A DIAGNOSIS AN METHODOLOGY. METHODOLOGY 117 00:10:31.323 --> 00:10:37.009 IN THIS CASES DID HAVED DIFFERENTIAL DIAGNOSIS WHICHLY UNDERSTAND 118 00:10:37.009 --> 00:10:41.981 DEFENDANTS ARGUE IS FLAWED BECAUSE IT RULES IN YOU KNOW INSTRUCTED TRAUMA WHETHER 119 00:10:41.981 --> 00:10:48.459 SHAKING. SHAKING WITH IMPACT RULES THOSE THINGS OUT WITHOUT A PHYSICIAN BASIS. 120 00:10:48.459 --> 00:10:53.724 AGAIN THE STATE WOULD ARGUE THERE IS ENOUGH BIOMECHANIC STUDIES NOT CONCLUSIVE 121 00:10:53.724 --> 00:10:59.393 BUT THOSE CON BIND WITH JUST VAST CLINICAL EXPERIENCE EVERY DAY EXPERIENCE OF 122 00:10:59.393 --> 00:11:04.842 DOCTORS SORT OF CONFIRMED BY VIN SHOWN STUDIES ONES LIKE THAT INVOLVING ADMITTED 123 00:11:04.842 --> 00:11:10.190 CONFESSED OR INDEPENDENTLY WITNESSED SHAKING EVENTS. ALL THAT TOGETHER DO SUPPORT 124 00:11:10.190 --> 00:11:17.440 THE DIAGNOSIS. AND THAT'S WHAT THE GENERAL ACCEPTANCE IS A RESULT OF. 125 00:11:17.440 --> 00:11:18.895 JUSTICE PIERRE LOUIS: WITH REGARD TO THE RELEVANT SCIENTIFIC 126 00:11:18.895 --> 00:11:26.066 COMMUNITY YOU INDICATED IN YOUR OPENING STAY THAT BIOMECHANICAL ENGINEER IS ADJUNCT 127 00:11:26.066 --> 00:11:32.287 TO THE DIAGNOSIS AN EARN AMERICAN ACADEMY OF PEDIATRICIANS CONCEDES THAT 128 00:11:32.287 --> 00:11:38.364 BIOMECHANICAL ENGINEER SHOULD BE CONSIDERED BUT NOT IT IS OWN RELEVANT 129 00:11:38.364 --> 00:11:43.574 SCIENTIFIC COMMUNITY. SO WHAT IS -- WHAT DOES THE ANALYSIS LOOK LIKE. IS 130 00:11:43.574 --> 00:11:49.931 IT IN COMBINATION OF RELEVANT SCIENTIFIC COMMUNITIES? WHAT ROLE DOES THE BIOMECHANICAL 131 00:11:49.931 --> 00:11:54.940 ENGINEER COMMUNITY PLAY FROM YOUR PERSPECTIVE IN REACHING THE 132 00:11:54.940 --> 00:11:59.941 DETERMINATION OF WHETHER THIS AHT IS GENERALLY ACCEPTED IN THE SCIENTIFIC COMMUNITY. 133 00:11:59.941 --> 00:12:04.456 MR. LISTON YES. I GUESS IT'S -- NOT THAT BIOMECHANICAL 134 00:12:04.456 --> 00:12:09.547 ENGINEERS REPRESENT A COMMUNITY. IT IS THAT THE PRODUCE RESEARCH THAT INFORMED 135 00:12:09.547 --> 00:12:16.324 MEDICAL DOCTORS IN MAKING THE DIAGNOSIS OF ABUSIVE HEAD TRAUMA. THAT -- I 136 00:12:16.324 --> 00:12:21.761 MEAN THAT IS HOW AMERICAN ACADEMY OF PEDIATRICS EXPRESSED IT NOT IN TERMS OF BIOMECHANIC 137 00:12:21.761 --> 00:12:26.754 APPROXIMATELY COMMUNITY BUT RATHER BIOMECHANICAL RESEARCH. AND LET'S 138 00:12:26.754 --> 00:12:30.924 REMEMBER THAT WITHIN THE BIOMECHANICAL COMMUNITY THERE -- NOBODY IS SAYING THERE IS 139 00:12:30.924 --> 00:12:36.855 ANY CONSENSUS ON ANYTHING. YOU WILL FIND THOSE WHO SUPPORT ABUSIVE HEAD TRAUMA 140 00:12:36.855 --> 00:12:41.947 THOSE WHO SAY IT HASN'T BEEN SUFFICIENTLY PROVEN. JUSTICE PIERRE 141 00:12:41.947 --> 00:12:48.227 LOUIS: SO AMONG BIOMECHANICAL ENGINEER THERE IS NO CONSENSUS WITH REGARD TO ABUSIVE 142 00:12:48.227 --> 00:12:54.064 HEAD TRAUMA. SO WHAT ROLE SHOULD THAT PLAY IN DETERMINING WHETHER THIS IS 143 00:12:54.064 --> 00:12:59.494 -- THIS DIAGNOSIS IS RELIABLE IN GENERALLY IN THE RELEVANT SCIENTIFIC COMMUNITY 144 00:12:59.494 --> 00:13:05.836 BECAUSE THE STUDIES UNDERLYING ABUSIVE HEAD TRAUMA THOSE ARE BASED ON BIOMECHANICS 145 00:13:05.836 --> 00:13:11.074 CORRECT? MR. LISTON I WOULDN'T SAY BASED ON. THEY ARE 146 00:13:11.074 --> 00:13:17.063 INFORMED BY. THEY DON'T REFUTE. THEY PROVIDE INFORMATION. BUT ESSENTIALLY ABUSIVE HEAD 147 00:13:17.063 --> 00:13:22.155 TRAUMA IS A MEDICAL DIAGNOSIS. IT IS MADE BY A TEAM OF MEDICAL DOCTORS. 148 00:13:22.155 --> 00:13:28.357 AGAIN WITH KNOWLEDGE OF CERTAIN BIOMECHANICAL STUDIES BUT YOU WOULDN'T /SRAOEUD 149 00:13:28.357 --> 00:13:33.334 A BIOMECHANICAL ENGINEER INTO THE EMERGENCY TO HELP DIAGNOSE A CHILD. 150 00:13:33.334 --> 00:13:36.838 JUSTICE PATTERSON: IS CONTINUING YOU ARE MAKING 2010 DIAGNOSTICS WHO 151 00:13:36.838 --> 00:13:46.109 IS PEDIATRICIAN OR ER DOCTOR AND AN AREA OF SCIENCE THAT MAY INFORM THAT DIAGNOSIS. 152 00:13:46.109 --> 00:13:56.343 IS THERE ANY LAW IN DEALING WITH OF COURSE THE DECADES OF FRY CASES WHERE 153 00:13:56.343 --> 00:14:02.927 THERE IS A DISTINCTION MADE AS TO A MEDICAL ISSUE BETWEEN THE CLINICIAN WHO 154 00:14:02.927 --> 00:14:08.828 ULTIMATELY WOULD DIAGNOSE OR NOT DIAGNOSE A PARTICULAR CONDITION AND INDIVIDUALS 155 00:14:08.828 --> 00:14:14.104 WHO REPRESENT DISCIPLINES THAT ARE SUPPORTIVE. WAS THINKING PERHAPS AN ANALOGY 156 00:14:14.104 --> 00:14:21.169 PROBABLY HIGHLY IMPERFECT MIGHT BE RADIOLOGIST DIAGNOSIS, MANY DIFFERENT 157 00:14:21.169 --> 00:14:27.430 TYPES OF CONDITIONS USING X-RAY TECHNOLOGY BUT THERE MAY BE IN THE X-RAY ENGINEERING 158 00:14:27.430 --> 00:14:34.282 COMMUNITY IF THAT IS THE APPROPRIATE WAY OF EXPRESSING IT OPINIONS AS TO THE 159 00:14:34.282 --> 00:14:43.380 BEST TECHNOLOGY THAT COULD INFORM THAT DECISION. SO IS THE RELEVANT COMMUNITY 160 00:14:43.380 --> 00:14:51.179 FOR PURPOSES OF GENERAL ACCEPTANCE ALWAYS THE CLINICIAN WHO WILL DIAGNOSE THE 161 00:14:51.179 --> 00:14:54.447 PATIENT. MR. LISTON I HESITATE TO SAY ALWAYS BUT I THINK 162 00:14:54.447 --> 00:15:02.229 YOUR HONOR ANALOGY MAKES SENSE. I ALSO -- I AM TRYING TO COME UP WITH AN APT ANALOGY. 163 00:15:02.229 --> 00:15:07.973 THOUGHT MAYBE PSYCHIATRIST ALONG WITH NEUROCHEMISTS WHERE A PSYCHIATRIST 164 00:15:07.973 --> 00:15:14.741 HAVE THEIR OWN BODY OF KNOWLEDGE. DOESN'T HAVE TO BE VERIFIED BY CONSENSUS OF 165 00:15:14.741 --> 00:15:20.455 NEURO CHEMISTS THE /PREUPBLTS THAT THEY ARE TESTIFYING ABOUT ARE PROVABLE IN 166 00:15:20.455 --> 00:15:26.402 TERM OF NEUROCHEMISTRY. I AM SURE THAT IS I AM PRESENT. I SIMPLY HAVE BEEN TRYING 167 00:15:26.402 --> 00:15:31.862 TO COME UP WITH A GOOD ANALOGY. BUT SOMETHING WORTH CONSIDERING IS TALKING 168 00:15:31.862 --> 00:15:36.508 ABOUT THE BIOMECHANICAL UNLIKE MEDICAL COMMUNITY I AM NOT AWARE OF BIOMECHANICAL 169 00:15:36.508 --> 00:15:43.113 PEDIATRIC SPECIALISTS WHICH IS IMPORTANT TO NOTE BECAUSE INFANTS ARE NOT JUST 170 00:15:43.113 --> 00:15:49.300 LITTLE ADULTS. THEY ARE A VERY DIFFERENT -- VERY DIFFERENT SORT OF BODY. 171 00:15:49.300 --> 00:15:54.586 ONE HAD THE PROBLEMS WITH BIOMECHANICAL RESEARCH IS FAILURE TO ACCURATELY RECREATE 172 00:15:54.586 --> 00:16:00.941 A REAL LIFE INFANT AND IT IS ANATOMICAL QUALITIES. CHIEF JUSTICE 173 00:16:00.941 --> 00:16:05.950 RABNER: THE PURPOSE OF SOME OF THESE STUDIES WAS TO TEST THE DIAGNOSIS AND THAT IS 174 00:16:05.950 --> 00:16:12.undefined WHY THERE HAVE BEEN CRASH STUDIES USE OF DUMMIES. USE OF ANIMALS, YOUR 176 00:16:17.738 --> 00:16:22.845 WE ARE DONE. ISN'T THE REALM OF TESTING SOMETHING THAT IS CRITICAL TO THE 177 00:16:22.845 --> 00:16:27.864 DIAGNOSIS? MR. LISTON YES. CHIEF JUSTICE RABNER: 178 00:16:27.864 --> 00:16:33.795 WOULD WE THEN LOOK TO THE BIOMECHANICAL ENGINEERS WHO HAVE BEEN THE ONES 179 00:16:33.795 --> 00:16:37.811 TESTING THIS. MR. LISTON FOR THEIR RESEARCH, YES. FOR THE 180 00:16:37.811 --> 00:16:42.118 INFORMATION THEY CAN PROVIDE. BUT WHEN WE THINK ABOUT WHAT THE DOCTORS WHO ACTUALLY 181 00:16:42.118 --> 00:16:50.255 EXAMINE THE INFANTS WHO TALK TO THE CAREGIVERS, LOOK THEM IN THE EYE YOU KNOW 182 00:16:50.255 --> 00:16:56.864 HERE THE MEDICAL HISTORY, GO THROUGH NUMEROUS OTHER MEMBERS OF A TEAM THE 183 00:16:56.864 --> 00:17:04.155 DIAGNOSTIC TEAM WITH THE HEMATOLOGY, GENEALOGIST, RADIOLOGISTS, NEUROSURGEON. 184 00:17:04.155 --> 00:17:09.337 THERE IS -- IT IS A WHOLE TEAM. NOT JUST ONE DOCTOR. CHIEF 185 00:17:09.337 --> 00:17:12.774 JUSTICE RABNER: NO ONE IS SUGGESTS THAT DIAGNOSTICSES WOULD BE CUT OUT OF THIS. 186 00:17:12.774 --> 00:17:17.183 THE QUESTION IS WHY NOT BOTH COMMUNITIES. MR. LISTON AGAIN 187 00:17:17.183 --> 00:17:25.546 BIOMECHANICAL ENGINEERS DEAL WITH THEORY MODELS WITHOUT THE BENEFIT OF REAL LIFE 188 00:17:25.546 --> 00:17:31.658 CLINICAL EXPERIENCE WHICH AGAIN IS NOT SOMETHING JUST BY ITSELF BUT IS 189 00:17:31.658 --> 00:17:37.358 SUPPORTED BY STUDIES INVOLVING CONFESSED OR INDEPENDENTLY WITNESSED SHAKING EVENTS 190 00:17:37.358 --> 00:17:44.264 THAT CAN CONFIRM REALLY WHAT THEY ALREADY KNOW /PEUFPLT. JUSTICE 191 00:17:44.264 --> 00:17:49.648 WAINER APTER: EVEN BY MACHINELE ENGINEERING WERE A SMALL LIVER OF THE 192 00:17:49.648 --> 00:17:53.257 COMMUNITY ARE THERE OTHER COURTS THAT HAVE SAID OKAY MANY DIFFERENT SMALL 193 00:17:53.257 --> 00:17:59.003 TINY SLIVERS OF RELEVANT SCIENTIFIC COMMUNITY AND WE ARE GOING TO SAY IF ONE HAS 194 00:17:59.003 --> 00:18:03.649 NOT GENERALLY ACCEPTED THIS DIAGNOSIS THEN IT IS NOT OVER ALL GENERALLY ACCEPTED 195 00:18:03.649 --> 00:18:08.379 EVEN IF IT HAS BEEN GENERALLY ACCEPTED BY AMERICAN ACADEMY OF PEDIATRICIANS, C 196 00:18:08.379 --> 00:18:14.336 DC, AMERICAN ASSOCIATION FOR PEDIATRIC OPHTHALMOLOGY, AMERICAN SOCIETY OF 197 00:18:14.336 --> 00:18:19.643 PEDIATRIC NEUROSURGEONS, AMERICAN SOCIETY OF PEDIATRIC NEURORADIOLOGIST AND EVERY 198 00:18:19.643 --> 00:18:25.325 OTHER SOCIETY ACROSS THE WORLD SOME OF WHICH YOU ALREADY REFERENCED. ARE 199 00:18:25.325 --> 00:18:29.519 THERE ANY OTHER COURTS THAT HAVE UNDER TAKEN AN ANALYSIS WHERE THEY SAY OKAY ALL 200 00:18:29.519 --> 00:18:33.725 OF THESE MEDICAL SOCIETIES ACCEPT THIS AS GENERALLY ACCEPTED. SO IT IS 201 00:18:33.725 --> 00:18:39.772 OBVIOUSLY GENERALLY ACCEPTED IN THEIR COMMUNITY BUT WE WILL PICK OFF THIS TINY SLICE 202 00:18:39.772 --> 00:18:43.434 OF THIS COMMUNE THAT IS RELEVANT AND NOT GENERALLY ACCEPTED THERE AND THAT IS 203 00:18:43.434 --> 00:18:47.266 WHY IT CAN'T BE ADMITTED AT TRIAL. MR. LISTON RIGHT. STATE 204 00:18:47.266 --> 00:18:51.976 IS NOT AWARE OF ANOTHER COURT DOING THAT GIVING ONE VETO POUR OVER ALL THE 205 00:18:51.976 --> 00:18:58.975 OTHERS. TO THE CONTRARY SICK COCOA VERSUS STATE COURT AFTER PEALS CASE IN 2018 206 00:18:58.975 --> 00:19:04.780 IN DISCUSSING WHICH COMMUNITIES HAVE CONTRIBUTED RESEARCH TO THE FINDING 207 00:19:04.780 --> 00:19:09.380 BIOMECHANICS WAS MENTIONED IN THERE. THERE IS A LITTLE BIT OF DISCUSSION OF 208 00:19:09.380 --> 00:19:14.252 BIOMECHANICS AND THE COURT NEVER THE LISTEN CERTIFICATED SCIENTIFIC COMMUNITY AS 209 00:19:14.252 --> 00:19:18.348 A WHOLE AND DETERMINED THAT THE DIAGNOSIS WAS GENERALLY ACCEPTED WITHIN 210 00:19:18.348 --> 00:19:28.915 THE SCIENTIFIC COMMUNITY. JUST TO MAKE THE POINT THAT RATHER THAN ALLOWING THIS 211 00:19:28.915 --> 00:19:34.297 SORT OF DIFFICULT AND CONQUER TECHNIQUE OF LET'S SEPARATE OUT BIOMECHANICS MAKE 212 00:19:34.297 --> 00:19:38.907 THEM EQUAL TO ALL THE SUBSPECIALTIES OF PEDIATRIC MEDICINE AND MEDICINE IN GENERAL 213 00:19:38.907 --> 00:19:44.480 AND LET THEM OVERRULE THE OTHERS /RAERLT WE MIGHT LOOK AT /EPB TIER SCIENTIFIC 214 00:19:44.480 --> 00:19:49.015 COMMUNITY RECOGNIZE THAT BIOMECHANICS IS BUT A SLIVER OF THAT AND CONCLUDE 215 00:19:49.015 --> 00:19:59.201 THAT SINCE UNI MA'AMTY ISN'T REQUIRED WE SHOULD CONSIDER AHT A GENERALLY ACCEPTED 216 00:19:59.201 --> 00:20:04.960 DIAGNOSIS. SORRY YOUR HONOR. JUSTICE FASCIALE: SO IN RESPONSE 217 00:20:04.960 --> 00:20:09.372 ABOUT TESTING CRITICAL TO THE DIAGNOSIS YOU SAID THAT YOU WOULD LOOK TO THE 218 00:20:09.372 --> 00:20:14.036 RESEARCH OF A BIOMECHANIC ENGINEER, RIGHT. MR. LISTON CERTAINLY 219 00:20:14.036 --> 00:20:18.677 WOULDN'T IGNORE IT. JUSTICE FASCIALE: SO WHY LOOK TO IT. WHAT 220 00:20:18.677 --> 00:20:23.298 WOULD ONE BE LOOKING FOR. MR. LISTON JUST A BETTER UNDERSTANDING. 221 00:20:23.298 --> 00:20:25.353 JUSTICE FASCIALE: OF WHAT. MR. LISTON WHAT 222 00:20:25.353 --> 00:20:29.531 MIGHT CAUSE. JUSTICE FASCIALE: THAT IMPORTANT. 223 00:20:29.531 --> 00:20:34.296 MR. LISTON JUST TO HELP PROVIDERS TREAT VICTIMS. JUSTICE 224 00:20:34.296 --> 00:20:39.621 FASCIALE: HOW WOULD IT HELP. MR. LISTON EVEN IF IT'S JUST EXPLAINING 225 00:20:39.621 --> 00:20:45.254 TO PAINTS DODO THIS WITH YOUR CHILD. THIS MAY PUT YOUR CHILD TO SLEEP BUT 226 00:20:45.254 --> 00:20:50.664 THIS IS /HOBLTD AND THESE SHOULD NOT /H-B DONE. JUSTICE FASCIALE: 227 00:20:50.664 --> 00:20:54.992 ON THE RESEARCH. MR. LISTON RESEARCH IN COMBINATION WITH REAL 228 00:20:54.992 --> 00:20:58.950 WORLD /STRAOEPBS /TPEUPLT FIFTH AMENDMENT SO IT IS IMPORTANT RIGHT. 229 00:20:58.950 --> 00:21:01.742 MR. LISTON YES SHOULD NOT BE IGNORED. JUSTICE FASCIALE: MORE THAN 230 00:21:01.742 --> 00:21:07.489 NOT BEING IGNORED IT IS CRITICAL HIS HIS IT HELPS DOCTOR UNDERSTANDING. 231 00:21:07.489 --> 00:21:09.724 JUSTICE FASCIALE: YOU WOULDN'T LOOK TO IT IF IT WOULDN'T 232 00:21:09.724 --> 00:21:13.143 BE IMPORTANT RIGHT. MR. LISTON RIGHT. YES, IT IS IMPORTANT. AS 233 00:21:13.143 --> 00:21:19.668 THE AMERICAN ACADEMY OF PEDIATRIC SAID IT IS AN AIMPORTANT ADJUNCT OF OUR 234 00:21:19.668 --> 00:21:23.387 UNDERSTANDING OF ABUSIVE HEAD TRAUMA. JUSTICE HOFFMAN: TAKE 235 00:21:23.387 --> 00:21:27.831 YOU BACK TO YOUR POINT. YOU STARTED SAYING BY AGE. IN SOME WAYS IT IS 236 00:21:27.831 --> 00:21:32.381 MORE SPECIFIC IN THIS CASE ISN'T IT. ISSUE SHAKEN BABY SYNDROME IS FUGE OF AHT. 237 00:21:32.381 --> 00:21:41.102 THEN ISSUE IS /S*PBS WITH IMPACT OR SHAKEN BABY SYNDROME WITHOUT IMPACT. OR IS 238 00:21:41.102 --> 00:21:46.098 IT SHAKEN BABY SYNDROME WITH OR WITHOUT IMPACT OR IS IT SHAKEN BABY SYNDROME 239 00:21:46.098 --> 00:21:53.113 WITH OR WITHOUT /SHOFT IMPACT. WHAT EXACTLY IS THEORY IN THIS CASE AN AS 240 00:21:53.113 --> 00:21:57.947 COROLLARY WHAT EXACTLY IS THE STATE ALLEGING USING MR. NIEVES AS AN 241 00:21:57.947 --> 00:22:03.202 EXAMPLE. WHAT EXACTLY IS THE STATE ALLEGING THAT MR. NIEVES DID TO CAUSE THE HARM 242 00:22:03.202 --> 00:22:06.480 IN THIS CASE. MR. LISTON I APPRECIATE THE OPPORTUNITY TO CLARIFY 243 00:22:06.480 --> 00:22:10.515 THIS POINT YOUR HONOR BECAUSE IT'S -- THERE APPEARS TO BE SIGNIFICANT CONFUSION 244 00:22:10.515 --> 00:22:18.009 OVER THERE. WHAT DR. MEDINA OR HER DIAGNOSIS WAS IN HER REPORT WAS 245 00:22:18.009 --> 00:22:24.154 ABUSIVE HEAD TRAUMA AS OCCURS WITH A SHAKING EVENT WITH OR WITHOUT IMPACT. IN HER 246 00:22:24.154 --> 00:22:32.674 TESTIMONY I THINK YOU USED THE TERM FIRST INFLICTED TRAUMA SUCH AS ABUSIVE HEAD 247 00:22:32.674 --> 00:22:40.493 TRAUMA THROUGH SHAKING. WHEN JUDGE HIM /TPHEPB HE IS WAS QUESTIONING HER 248 00:22:40.493 --> 00:22:45.146 SAID SOMETHING LIKE ALL YOU CAN DO IS SAY SOMETHING LIKE SOME SORT OF INFLICTED 249 00:22:45.146 --> 00:22:50.251 TRAUMA WAS SUFFERED AND THE DOCTOR SAID YES. SO THE POINT IS THE STATE 250 00:22:50.251 --> 00:22:56.549 -- DR. MEDINA HAS NEVER SPECIFIED, HAS NEVER CLAIMED TO KNOW EXACTLY MECHANISM 251 00:22:56.549 --> 00:23:04.161 DEFINITELY SHAKING. THAT IS JUST NOT HOW ABUSIVE HEAD TRAUMA WORKS. THAT IS 252 00:23:04.161 --> 00:23:09.570 WHY AMERICAN ACADEMY OF PEDIATRICIANS HAS GOTTEN AWAY FROM THE TERM SHAKEN BABY 253 00:23:09.570 --> 00:23:12.358 SYNDROME. JUSTICE HOFFMAN: SO WE ARE SAYING -- YOU ARE SAYING 254 00:23:12.358 --> 00:23:19.394 THAT SHE'S TESTIFYING THAT I DON'T NOSE IF THERE IS IMPACT OR NOT. BUT IS IT WHETHER 255 00:23:19.394 --> 00:23:23.811 THERE IS IMPACT OR NOT PARTICULARLY RELEVANT BOTH TO THE ANALYSIS AND 256 00:23:23.811 --> 00:23:29.438 RELEVANT TO THE IMPORT OF BIOMECHANICS BECAUSE IF THERE IS NO IMPACT THEN WE ARE 257 00:23:29.438 --> 00:23:34.733 TALKING ABOUT FORCES. THEN TALKING ABOUT RESULT OF FORCES. DOESN'T 258 00:23:34.733 --> 00:23:39.847 BIOMECHANICS PLAY A DIFFERENT ROLE DEPENDING UPON WHETHER TAKING ABOUT SHAKEN BABY 259 00:23:39.847 --> 00:23:44.174 SYNDROME WITH IMPACT OR SHAKEN BABY SYNDROME WITHOUT IMPACT OR SHAKEN BABY 260 00:23:44.174 --> 00:23:53.519 SYNDROME WITH SOFT IMPACT AS SHE IMPLIES. ? ISN'T THE ROLE OF BIOMECHANICS DIFFERENT 261 00:23:53.519 --> 00:24:03.319 DEPENDING UPON WHAT THAT SORT OF EXPERT REPORT SAYS BE THERE IMPACT OR NO IMPACT? 262 00:24:03.319 --> 00:24:06.868 MR. LISTON IF I UNDERSTAND YOUR HONOR'S QUESTION CORRECTLY. 263 00:24:06.868 --> 00:24:13.846 IT MAY BE THAT THERE IS MORE BIOMECHANICAL SUPPORT FROM SOMEONE LIKE 264 00:24:13.846 --> 00:24:18.175 DOCTOR VAN E IF THERE WAS ALLEGATION OF DEFINITE IMPACT. JUSTICE 265 00:24:18.175 --> 00:24:23.522 HOFFMAN: BUT BIOMECHANICS MAY PLAY A MORE SIGNIFICANT ROLE IF THERE IS NO IMPACT. 266 00:24:23.522 --> 00:24:28.047 MR. LISTON ONE SAY MOTOR VEHICLES ITSELF AS A SCIENCE PLACE 267 00:24:28.047 --> 00:24:33.509 A MORE SIGNIFICANT ROLE BUT AS FAR AS TESTIMONY OF BIOMECHANICS LIKE DOCTOR VAN 268 00:24:33.509 --> 00:24:40.672 HE E I BELIEVE HE WOULD BE MORE LIKELY TO /TKPWRAOE IF ALLEGATION OF YES, I AM 269 00:24:40.672 --> 00:24:43.683 PACKET. JUSTICE HOFFMAN: WHAT IS THE STATE SAYING THAT MR. 270 00:24:43.683 --> 00:24:50.843 NIEVES DID TO CAUSE THE INJURY. MR. LISTON SOME SORT OF INFLICTED 271 00:24:50.843 --> 00:24:58.372 TRAUMA. THAT IS BASICALLY WHAT DR. MEDINA CAN TESTIFY TO BASICALLY THAT 272 00:24:58.372 --> 00:25:06.293 EVERY -- POSSIBLE DISEASE METABOLIC DISORDER BLEEDING DISORDER, ACCIDENTAL TRAUMA 273 00:25:06.293 --> 00:25:11.577 WHICH DIDN'T -- NO REPORT OF ACCIDENTAL TRAUMA BASICALLY EVERYTHING CONSIDERED 274 00:25:11.577 --> 00:25:17.927 ALL OTHER POSSIBILITIES AND KNOWING BASED ON STUDIES MEDICAL LITERATURE GENERAL 275 00:25:17.927 --> 00:25:26.792 ACCEPTANCE THAT -- AND ACTIVE TRAUMA INFLICTED TRAUMA SUCH AS SHAKING -- 276 00:25:26.792 --> 00:25:33.739 SHAKING JUST ONE EXAMPLE THAT SORT SORT OF INFLICTED TRAUMA WAS PUT-ON THIS INFANT. 277 00:25:33.739 --> 00:25:38.139 JUSTICE HOFFMAN: SO DR. MEDINA DIAGNOSED THIS FIVE DAYS AFTER 278 00:25:38.139 --> 00:25:42.073 CHILD CAME INTO THE HOSPITAL. HOW THEN -- WHAT IS YOU THE STATE USING TO ISOLATE 279 00:25:42.073 --> 00:25:48.454 MR. NIEVES AS THE CAUSE OF THIS INFLICTED TRAUMA. MR. LISTON 280 00:25:48.454 --> 00:25:54.200 IN FACT -- IF I COULD COME BACK. YOUR HONOR SAID FIVE DAYS AFTER. KNOW DR. MEDINA 281 00:25:54.200 --> 00:26:00.190 WAITED UNTIL APRIL UNTIL ALL TEST RESULTS WERE BACK. HER REPORT WASN'T 282 00:26:00.190 --> 00:26:06.809 WRITTEN UNTIL APRIL WHEREAS THESE EVENTS OCCURRED IN FIB AND DO REMEMBER THE DOCTOR 283 00:26:06.809 --> 00:26:11.537 TESTIFYING SHE DID WANT TO WAIT UNTIL TESTS RESULTS WERE BACK ABSENT MAKING 284 00:26:11.537 --> 00:26:15.138 SURE EVERYTHING ELSE WAS RULED OUT. JUSTICE HOFFMAN: I THOUGHT THE 285 00:26:15.138 --> 00:26:20.926 FIRST TIME SHE SAW THE CHILD WAS FIVE DAYS LATER ON 15 OF FEBRUARY. 286 00:26:20.926 --> 00:26:25.058 MR. LISTON YES. JUSTICE HOFFMAN: WHAT IS BEING DONE THEN TO 287 00:26:25.058 --> 00:26:31.151 ISOLATE MR. NIEVES AS CAUSE. WHAT'S STATES POSITION THAT IT WAS HIM. 288 00:26:31.151 --> 00:26:36.587 MR. LISTON WELL, THERE WERE THREE EVENTS WHERE THE CHILD EXHIBITED 289 00:26:36.587 --> 00:26:43.373 ENCEPHALOPATHY. ALTERED MENTAL STATUS. GOING STIFF THEN LIMP. VOMITING. 290 00:26:43.373 --> 00:26:47.921 SEIZURE-LIKE SYMPTOMS. THERE WERE THREE OF THOSE EVENTS AND ALL WHEN MR. NIEVES 291 00:26:47.921 --> 00:26:54.689 WAS SAID TO HAVE BEEN CHANGING THE VICTIM'S /TKAOEUP ER LIMIT /HEUFPLT BUT IF 292 00:26:54.689 --> 00:26:57.931 THERE WAS SHAKE AND THIS WAS A RESULT IT DIDN'T HAVE TO BE IMMEDIATE RIGHT. 293 00:26:57.931 --> 00:27:01.448 COULD HAVE BEEN SOME POINT BEFORE THAT. MR. LISTON ACCORDING 294 00:27:01.448 --> 00:27:09.149 TO DOCTOR TESTIMONY NORMALLY SYMPTOMS -- ONSET OF THOSE SYMPTOMS IS IMMEDIATE 295 00:27:09.149 --> 00:27:14.987 LIKE VERY CLOSE-IN TIMES TO WHEN THE ABUSE OCCURS. CHIEF JUSTICE 296 00:27:14.987 --> 00:27:21.325 RABNER: AN ACCIDENT LIKE A SORT FALL COULD CAUSE SYMPTOMS LIKE EHT, NO. 297 00:27:21.325 --> 00:27:25.004 MR. LISTON THE BIG FINDING THAT IS DIFFERENT THERE IS RETINAL HEMORRHAGES. 298 00:27:25.004 --> 00:27:32.513 SHORTFALL MIGHT CAUSE SOME RETINAL HEMORRHAGE BUT NOT SEVERE DIFFUSE MULTI 299 00:27:32.513 --> 00:27:37.765 LAYERED TOO NUMEROUS TO COUNT RETINAL HEMORRHAGES ASSOCIATED INFLICTED TRAUMA AND AGAIN 300 00:27:37.765 --> 00:27:42.671 EXTREME ACCIDENTAL TRAUMA LIKE A MOTOR VEHICLE ROLLOVER. CHIEF 301 00:27:42.671 --> 00:27:48.288 JUSTICE RABNER: IS IT NECESSARY TO RULE OUT OTHER CAUSES TO REACH DIAGNOSIS OF AHT. 302 00:27:48.288 --> 00:27:50.411 MR. LISTON ABSOLUTELY. CHIEF JUSTICE RABNER: 303 00:27:50.411 --> 00:27:56.643 HOW DOES ONE DO THAT IN INFANT WHO ANT COMMUNICATE AND CAN'T BE EXPECTED TO 304 00:27:56.643 --> 00:28:03.521 BE WATCHED 247. MR. LISTON I GUESS AS FAR AS THE WATCHING 247 THAT 305 00:28:03.521 --> 00:28:08.443 IS SOMETHING THAT DR. MEDINA NOTED THAT BASED ON VICTIMS DEVELOPMENTAL AGE WHICH 306 00:28:08.443 --> 00:28:15.652 WAS DIFFERENT FROM CHRONOLOGICAL AGE. DEVELOPLY OWN ABOUT 3 OR 4 MONTHS OLD 307 00:28:15.652 --> 00:28:21.333 GIVEN HIS PREMATURE BIRTH BUT FACT NOT /TKHRAEUTTORY, COULDN'T EVEN ROLLOVER IF I 308 00:28:21.333 --> 00:28:25.293 REMEMBER CORRECTLY. COULD BE SIT-UP. SO THAT IS A IMPORTANT FACT TO CONSIDER 309 00:28:25.293 --> 00:28:30.296 IN TERMS OF WHETHER IT'S POSSIBLE HE ROLLED OFF A TABLE OR SOMETHING LIKE THAT. 310 00:28:30.296 --> 00:28:36.920 ANY ACCIDENTAL TRAUMA WOULD HAVE BEEN WITNESSED. CHIEF 311 00:28:36.920 --> 00:28:40.780 JUSTICE RABNER: I AM NOT CERTAIN HOW YOU CAN SAY THAT BUT WE WILL LEAVE IT AT THAT 312 00:28:40.780 --> 00:28:45.302 FOR JUST A MOMENT. ASSUME THAT THERE IS DIFFICULTY IN IDENTIFYING ACCIDENTAL 313 00:28:45.302 --> 00:28:54.624 TRAUMA FOR OBVIOUS REASONS, DOES THE DIAGNOSIS OF AHT OVERLOOK THEM /HREUSZ LIST 314 00:28:54.624 --> 00:29:00.369 NO. IF SOME WEREN'T ACCOUNTED FOR. CHIEF JUSTICE RABNER: 315 00:29:00.369 --> 00:29:04.320 CAN'T BE ACCOUNTED FOR. MR. LISTON CAN BE. 316 00:29:04.320 --> 00:29:08.097 CHIEF JUSTICE RABNER: IN MANY SINCE HE IS. I THOUGHT YOU ACKNOWLEDGED ONE CANNOT 317 00:29:08.097 --> 00:29:13.155 KNOW THE ACCIDENTAL CAUSES IN ALL OF THESE CASES. I UNDERSTAND WHAT YOU 318 00:29:13.155 --> 00:29:17.288 SAY WITH RESPECT TO THE PARTICULAR INFANT IN THIS CASE BUT THAT IS NOT TRUE ACROSS 319 00:29:17.288 --> 00:29:22.354 THE BOARD IS IT. MR. LISTON I CAN ONLY -- WELL, YOUR HONOR EHT 320 00:29:22.354 --> 00:29:26.925 DIAGNOSIS IT IS CASE BY CASE. THERE IS A METHODOLOGY BUT PART OF THAT METHODOLOGY 321 00:29:26.925 --> 00:29:30.928 IS RULING OUT ACCIDENTAL CAUSES. CHIEF JUSTICE RABNER: MY 322 00:29:30.928 --> 00:29:36.430 QUESTION IS GIVEN THE DIFFICULTY IN RULING OUT ACCIDENTAL CAUSES DOES AHT OVER 323 00:29:36.430 --> 00:29:40.616 LOOK THEM IN MANY INSTANCES. MR. LISTON LIKE ANY DIAGNOSIS THERE IS 324 00:29:40.616 --> 00:29:45.083 THE POTENTIAL FOR THAT. FORTUNATELY AS YOUR HONOR -- ONE OF YOUR YOUR HONOR'S 325 00:29:45.083 --> 00:29:52.417 INDICATED VICTIMS ARE HELPLESS AN CAN'T SPEAK FOR THEM SEXES. SO WE DO RELY ON 326 00:29:52.417 --> 00:29:58.943 THE REPORTS OF CAREGIVERS TO EXPLAIN WHAT HAPPENED. BUT ABSOLUTELY, RULING 327 00:29:58.943 --> 00:30:06.613 OUT ACCIDENTAL TRAUMA IS ONE OF THE KEY PARTS OF THE AHT DIAGNOSIS. 328 00:30:06.613 --> 00:30:10.629 JUSTICE PIERRE LOUIS: WITH REGARD TO THE RETINAL HEMORRHAGES WHAT IS YOUR RESPONSE 329 00:30:10.629 --> 00:30:17.597 TO DOCTOR SHELL ERRS TESTIMONY THAT 15 TO 1 THIRD OF PERFECTLY HEALTHY NEWBORNS 330 00:30:17.597 --> 00:30:23.580 HAVE HAD MULTI TIE LAYERED HEMORRHAGES THAT THAT TYPE OF HEMORRHAGE APPEARS IN 331 00:30:23.580 --> 00:30:27.821 THOSE NEWBORNS AS WELL EITHER AS A RESULT THE TRAUMA OF CHILDBIRTH GENERALLY 332 00:30:27.821 --> 00:30:32.277 OR SOME OTHER FACTORS. WHAT IS YOUR RESPONSE TO THAT BECAUSE I KNOW SOME ARGUMENT 333 00:30:32.277 --> 00:30:39.372 HAS BEEN IN CASES WHERE AHT HAS BEEN DIAGNOSED THERE IS THIS MULTI LAYERED 334 00:30:39.372 --> 00:30:44.633 RETINAL HEMORRHAGE THAT DOESN'T APPEAR ELSEWHERE BUT HERE WE HAVE DOCTOR SHELL ER 335 00:30:44.633 --> 00:30:50.223 TESTIFIED THAT ONE FIFTH TO ONE THIRD OF NEWBORNS PRESENT WITH SOME TYPE OF RETINAL 336 00:30:50.223 --> 00:30:55.413 /R*EPL. MR. LISTON RIGHT DR. MEDINA TESTIFIED THAT THOSE 337 00:30:55.413 --> 00:31:00.519 SORTS THE HEMORRHAGES CLEAR /HRUP QUICKLY. RESOLVE QUICKLY. THEY WOULD NOT STILL 338 00:31:00.519 --> 00:31:06.743 BE AROUND BY THE TIME WHEN THEY WERE OBSERVED IN THE VICTIM IN THIS CASE. 339 00:31:06.743 --> 00:31:10.288 JUSTICE PIERRE LOUIS: ANY OTHER TRAUMAS OR INJURIES THAT RESULT IN 340 00:31:10.288 --> 00:31:15.703 MULTI LAYERED INJURIES THAT HAVE RESULTED IN THE DIAGNOSIS OF AHT. 341 00:31:15.703 --> 00:31:18.429 MR. LISTON YES. JUSTICE PIERRE LOUIS: MOTOR VEHICLE ROLLOVER. 342 00:31:18.429 --> 00:31:22.955 SOME SORT OF EXTREME ACCIDENTAL TRAUMA A I REMEMBER MOTOR VEHICLE ROLLOVER WAS 343 00:31:22.955 --> 00:31:28.298 ONE THAT WAS CITED. SO THAT IS THE SORT OF THING WHERE A DOCTOR WOULD ASK OWE 344 00:31:28.298 --> 00:31:32.557 /OEZ TRY TO GET THE HISTORY FROM THE PARENTS WAS THERE ANY SORT OF TRAUMATIC EVENING 345 00:31:32.557 --> 00:31:39.325 LIKE THAT. IN THIS CASE FROM WAS NOTHING. THERE WERE OTHER CASES WHERE THERE 346 00:31:39.325 --> 00:31:45.481 IS SOME ACCIDENTAL TRAUMA REPORTED AND PERHAPS SOME DOCTORS INCORRECTLY OVERLOOK 347 00:31:45.481 --> 00:31:50.396 IT OR CONSIDER THAT YES, I ACKNOWLEDGE THAT ACCIDENT OCCURRED BUT THAT WOULD 348 00:31:50.396 --> 00:31:55.346 NOT PRODUCE THE SORTS OF SYMPTOMS WE ARE SEEING IN THIS CHILD SPECIFICALLY REGARDING 349 00:31:55.346 --> 00:32:02.036 THE EYES. JUSTICE HOFFMAN: COUNSEL YOU DON'T DISPUTE THE 350 00:32:02.036 --> 00:32:09.794 FACT THAT PROOF BEYOND A REASONABLE DOUBT IS A HIRE STANDARD THAN /WR-RPLS DO YOU. 351 00:32:09.794 --> 00:32:12.012 MR. LISTON NO. JUSTICE HOFFMAN: IF THAT IS THE 352 00:32:12.012 --> 00:32:16.542 CASE AND THIS CASE ALL THERE IS DOCTOR MEDICINES'S REPORT. HOW IS IT THAT 353 00:32:16.542 --> 00:32:22.707 THOSE TWO STANDARDS ARE BEING CONFLATED. MR. LISTON CAN I TELL YOU 354 00:32:22.707 --> 00:32:27.202 YOUR HONOR IT IS EVIDENCE. IT IS ADMISSIBLE. THAT IS WHAT THE STATE'S 355 00:32:27.202 --> 00:32:35.512 POSITION IS. YOU KNOW WHETHER WE CAN JUMP AHEAD TO THE ULTIMATE FINDING BY FACT 356 00:32:35.512 --> 00:32:44.179 FINDER IS JUST -- NOT THE QUESTION BEFORE THE COURT. IT'S. 357 00:32:44.179 --> 00:32:48.600 JUSTICE PATTERSON: THERE WAS A CONFLATION I THINK BY THE TRIAL COURT BETWEEN THE 358 00:32:48.600 --> 00:32:55.478 DOCTORS TRADITIONAL STATEMENT IN RESPONSE TO A QUESTION BY THE -- IN DIRECT 359 00:32:55.478 --> 00:33:00.417 EXAMINATION DO YOU HOLD YOUR OPINIONS TO A REASONABLE DEGREE OF MEDICAL 360 00:33:00.417 --> 00:33:07.015 CERTAINTY. AND THE ISSUE OF THE RELIABILITY OF THE TECHNOLOGY. I MEAN ISN'T 361 00:33:07.015 --> 00:33:12.116 -- WASN'T THERE SOME CONFUSION ON TRIAL COURT'S OPINION ON THAT. 362 00:33:12.116 --> 00:33:15.237 MR. LISTON YES VERY MUCH SO. JUSTICE PATTERSON: IT SEEMED TRIAL COURT 363 00:33:15.237 --> 00:33:20.657 WAS SAYING THAT THERE IS A PROBLEM WITH ASKING THE QUESTION THAT IS ASKED 364 00:33:20.657 --> 00:33:27.832 -- HAS BEEN ASKED UNDER /TPRAO*EU UNDER DAUBERT IN THE FEDERAL COURTS UNDER EVERY 365 00:33:27.832 --> 00:33:32.037 STANDARD DOCTOR DO YOU HOLE YOUR OPINIONS TO A REASONABLE DEGREE OF MEDICAL 366 00:33:32.037 --> 00:33:38.196 CERTAINTY. THAT IS NOT ABOUT BURDEN OF PROOF. THAT IS NOT ABOUT THE 702 INQUIRY 367 00:33:38.196 --> 00:33:45.340 I. IT IS SIMPLY AN INQUIRY INTENDED TO MAKE SURE THAT WHATEVER THE DOCTOR 368 00:33:45.340 --> 00:33:49.362 HAS BEEN SAYING HOLDS THOSE OPINIONS TO A SUFFICIENT DEGREE OF MEDICAL CERTAINTY 369 00:33:49.362 --> 00:33:53.709 AND IT SEEMED THAT THE TRIAL COURT THEN SAID THAT IS NOT ENOUGH FOR REASONABLE 370 00:33:53.709 --> 00:34:01.337 -- /KWRA*LDZ AS IF THE QUESTION REALLY SHOULD BE DOCTOR DO YOU HOLD YOUR OPINIONS 371 00:34:01.337 --> 00:34:04.698 BEYOND A REASONABLE DOUBT. MR. LISTON RIGHT. 372 00:34:04.698 --> 00:34:07.999 JUSTICE PATTERSON: WHAT IS THE STATE POSITION ON THAT. I DO NOTE THE APPELATE 373 00:34:07.999 --> 00:34:11.211 DIVISION DOESN'T SEEM TO HAVE PICKED UP ON THAT. MR. LISTON 374 00:34:11.211 --> 00:34:17.940 THIS ISSUE WAS ADDRESSED STATE'S BRIEF BEFORE THE AND. KNOW STATE CITED STATE 375 00:34:17.940 --> 00:34:24.360 V DENOVA THAT ACTUALLY REQUIRES MEDICAL OPINIONS BE EXPRESSED IN THAT MANNER. 376 00:34:24.360 --> 00:34:29.823 SO YES, THERE WAS CERTAINLY CONFUSION IN THE TRIAL COURT. JUSTICE 377 00:34:29.823 --> 00:34:34.214 PATTERSON: DO YOU AGREE THAT THE APPELATE DIVISION DOES NOT SEEM TO HAVE ADOPTED 378 00:34:34.214 --> 00:34:38.732 SAME STANDARDS THAT TRIAL COURT DID. DIDN'T SEE IT IN THE APPELATE DIVISION 379 00:34:38.732 --> 00:34:42.495 OPINION. MR. LISTON RIGHT IT SEEMED THAT THE DECISION REACHED 380 00:34:42.495 --> 00:34:47.197 -- HE CANS /KPHRAOUDED DR. MEDINA TESTIMONY FOR DIFFERENT REASONS THAN THE TRIAL 381 00:34:47.197 --> 00:34:52.008 COURT DID. TRIAL COURT DIDN'T ADDRESS ISSUE OF GENERAL ACCEPTANCE OR IDENTIFY 382 00:34:52.008 --> 00:34:58.713 SPECIFIC IMMUNITY. JUST SAID FIND THIS TESTIMONY UNRELIABLE BECAUSE NO 383 00:34:58.713 --> 00:35:05.302 ONE /SHAEPB I CAN LIVE BABIES AND SEE WHAT HAPPENS NOR SHOULD THEY. 384 00:35:05.302 --> 00:35:09.996 CHIEF JUSTICE RABNER: AT THIS POINT COURTS DON'T GENERALLY LOOK TO PIECES OF TESTIMONY 385 00:35:09.996 --> 00:35:14.599 OR LOOK AT INDIVIDUAL WITNESS AND SAY DOES THAT LIVE UP INDIVIDUAL STANDARD. 386 00:35:14.599 --> 00:35:18.636 THAT IS ANALYSIS THAT TAKES PLACE AT THE END. MR. LISTON THAT THE 387 00:35:18.636 --> 00:35:22.369 ROLE OF FACT FINDER. JUSTICE HOFFMAN: WOULD YOU AGREE /OEPL 388 00:35:22.369 --> 00:35:27.212 EVIDENCE PUT FORWARD IN THIS CASES DOCTOR MEDICINES REPORT THEN THAT COMPANY NOT 389 00:35:27.212 --> 00:35:31.780 SEA PROOF BEYOND A REASONABLE DOUBT. MR. LISTON NO. I MEAN 390 00:35:31.780 --> 00:35:38.105 -- THE STATE BELIEVES IT'S BEYOND A REASONABLE DOUBT LIMIT. 391 00:35:38.105 --> 00:35:41.247 JUSTICE HOFFMAN: SO YOU ARE SAYING DOCTOR MEDICINES REPORT IS TO A REASONABLE DEGREE 392 00:35:41.247 --> 00:35:47.332 OF MEDICAL CERTAINTY DOCTOR MEDICINES'S REPORT CAN SEA PROOF BEYOND A 393 00:35:47.332 --> 00:35:50.010 REASONABLE DOUBT. MR. LISTON WELL, IT'S THE -- DOCTOR MEDICINES'S 394 00:35:50.010 --> 00:35:56.074 REPORT WOULD ESTABLISH THE CAUSATION ELEMENT AND STILL BE -- DR. MEDINA DIDN'T 395 00:35:56.074 --> 00:36:04.884 SAY WHO SHE THOUGHT -- WAS THE CAUSE OF THE -- OR THE INFLICTING TRAUMA WHO DID 396 00:36:04.884 --> 00:36:09.861 THE I KNOW STRICTING. THERE WOULD STILL BE THE ISSUE OF IDENTITY FOR THE 397 00:36:09.861 --> 00:36:15.483 STATE TO PROVE /PEUFPLT. JUSTICE WAINER APTER: AS JUST DISCUSSED 398 00:36:15.483 --> 00:36:20.005 THOUGHT YOUR POINT WAS NOT ONE PIECE OF EVIDENCE THAT EACH WITNESS HAS TO 399 00:36:20.005 --> 00:36:25.313 TESTIFY I BELIEVE THIS CON /TAOUGTS PROOF WITHOUT A REASONABLE DOUBT BECAUSE THAT 400 00:36:25.313 --> 00:36:29.927 WOULD TAKEOVER REAL OF FACT FINDERMENT INSTEAD WITNESSES PRESENT THEIR 401 00:36:29.927 --> 00:36:33.785 TESTIMONY TO THE BEST OF THEIR KNOWLEDGE AN ABILITY AND DOCTOR TESTIFY TO REASONABLE 402 00:36:33.785 --> 00:36:38.053 DEGREE OF MEDICAL CERTAINTY AND NOT PROOF BEYOND A REASONABLE DOUBT AND THEN 403 00:36:38.053 --> 00:36:42.588 THE JURY MAKES OF IT WHAT THEY WILL. MR. LISTON RIGHT. THAT IS CORRECT 404 00:36:42.588 --> 00:36:47.044 YOUR HONOR. THE ISSUE BEFORE THE COURT RIGHT NOW IS JUST ADMISSIBILITY 405 00:36:47.044 --> 00:36:53.146 OF THE TESTIMONY. JUSTICE WAINER APTER: IN TERMS THAT HAVE 406 00:36:53.146 --> 00:36:57.083 SPECIFIC ISSUE I KNOW THERE HAS BEEN SOME DISCUSSION ABOUT PRIOR OR MORE /RAOES 407 00:36:57.083 --> 00:37:05.160 /EPB CASES THAT HAVE QUESTIONED AHT OR SBSAHT AND ESPECIALLY THERE WAS 408 00:37:05.160 --> 00:37:11.116 BRIEFING ABOUT THE TEXAS COURT OF CRIMINAL APPEALS RECENT OPINION. BUT I THOUGHT 409 00:37:11.116 --> 00:37:16.523 I SAW IN THAT OPINION THAT EVEN THAT COURT WAS REMAND VACATING CONVICTION AN 410 00:37:16.523 --> 00:37:21.263 REMANDING FOR A NEW TRIAL AT WHICH BOTH SIDES COULD TESTIFY AN THERE WOULD BE THIS 411 00:37:21.263 --> 00:37:26.494 BATTLE OF THE EXPERT. HAS THERE EVER BEEN A COURT THAT HAS HELD THAT AN EXPERT 412 00:37:26.494 --> 00:37:36.171 CANNOT TESTIFY ABOUT AHT OR AHTSBS BECAUSE IT IS NOT -- DOESN'T MEAD FRY 413 00:37:36.171 --> 00:37:41.024 OR DAUBERT OR WHATEVER THAT STATE IS USING. HAS ANY COURT EVER SAID THAT AN 414 00:37:41.024 --> 00:37:45.462 EXPERT CANNOT TESTIFY FOR THE STATE ABOUT THIS MEDICAL DIAGNOSIS. 415 00:37:45.462 --> 00:37:50.899 MR. LISTON RIGHT STATE IS NOT AWARE OF ANY. AND THIS IS VERY MUCH STATE'S POSITION 416 00:37:50.899 --> 00:37:55.102 WITH REGARD TO EX PARTE WORK AND ALSO PEOPLE HAVE LADIES AND GENTLEMAN ONES 417 00:37:55.102 --> 00:38:03.618 CASE OUT OF MICHIGAN WHICH IS -- THE COURT CAN ACKNOWLEDGE THAT A CONTROVERSY EXISTS 418 00:38:03.618 --> 00:38:09.413 BUT THE SOLUTION IS NOT TO EXCLUDE AN PERIOD IN PEOPLE V LADIES AND 419 00:38:09.413 --> 00:38:16.400 GENTLEMAN ONES THE STATE TRIED TO EXCLUDE A BIOMECHANIC EXPERT AND MICHIGAN 420 00:38:16.400 --> 00:38:20.749 SUPREME COURT HELD THAT WAS NOT APPROPRIATE. THEY SHOULD BE ABLE TO TESTIFY. 421 00:38:20.749 --> 00:38:25.654 CERTAINLY DIDN'T SAY THAT STATE'S EXPERT MAY NOT TESTIFY. FRANKLY IT /SAOEPLSZ 422 00:38:25.654 --> 00:38:32.549 ABSURD THAT THE PEDIATRICS WHO EXAMINED THE CHILD WHO SUFFERED THE INJURIES IS 423 00:38:32.549 --> 00:38:36.996 NOT ALLOWED TO TESTIFY ABOUT WHAT THE DOCTOR THINKS CAUSED THOSE INJURIES 424 00:38:36.996 --> 00:38:43.365 THAT THAT TESTIMONY WOULD BE EXCLUDED FROM A TRIAL. SO YES, THE STATE WOULD AGREE 425 00:38:43.365 --> 00:38:48.436 WITH THOSE /KAOERTSZ WHICH APPEAR TO BE SUPPORTIVE OF DEFENDANTS POSITION 426 00:38:48.436 --> 00:38:53.026 BUT REALLY ARE CONSISTENT WITH THE STATES POSITION WHICH IS IF THERE IS A DISPUTE 427 00:38:53.026 --> 00:39:01.228 /HRELT THE JURY HEAR BOTH. THE AHT DIAGNOSIS HAS BEEN SHOWN TO BE 428 00:39:01.228 --> 00:39:05.327 GENERALLY ACCEPTED IN THE MEDICAL COMMUNITY. IF IT'S NOT IN THE MOTOR VEHICLE 429 00:39:05.327 --> 00:39:09.556 COMMUNITY A BIOMECHANIC EXPERT CAN TELL THE JURY ABOUT THAT. THAT WOULD BE THE 430 00:39:09.556 --> 00:39:12.734 STATES -- THAT IS ALL THE STATE ASKS HERE. CHIEF JUSTICE RABNER: 431 00:39:12.734 --> 00:39:16.926 BEFORE YOU SIT DOWN YOU RAISED ALTERNATIVE ARGUMENT TO HAVE THIS SENT BACK TO 432 00:39:16.926 --> 00:39:22.739 A SPECIAL A/SKWR-RBT OR. JUST ONE QUESTION WAS THE STATE PRECLUDED FROM PRODUCING 433 00:39:22.739 --> 00:39:26.835 ANY EFFORTS THAT IT WANTED TO AT THE PRIOR HEARING. MR. LISTON 434 00:39:26.835 --> 00:39:30.106 AT THE PRIOR HEARING IS THAT YOUR QUESTION. CHIEF JUSTICE 435 00:39:30.106 --> 00:39:33.550 RABNER: YES. MR. LISTON NO STATE WAS NOT. THE STATE I BELIEVE 436 00:39:33.550 --> 00:39:41.560 APPROACHED THE HEARING. WE HAVE A CONSENSUS STATEMENT ABOUT THE GENERAL ACCEPTANCE 437 00:39:41.560 --> 00:39:46.600 OF ABUSIVE HEAD TRAUMA. THIS SHOULDN'T BE DIFFICULT. JUSTICE 438 00:39:46.600 --> 00:39:51.017 PIERRE LOUIS: IS THAT WHY THE STATE PRESENTED ONLY ONE WITNESS. 439 00:39:51.017 --> 00:39:54.582 MR. LISTON I DIDN'T MAKE THE DECISION BUT I'M SURE THAT THAT WAS PART OF IT. 440 00:39:54.582 --> 00:40:02.521 IT SEEMED LIKE NOT THAT COMPLICATED. GENERAL ACCEPTANCE SEEMS PRETTY 441 00:40:02.521 --> 00:40:08.247 PALPABLE AT THAT STAGE. AND IT WAS UNDERSTOOD THAT THERE WOULD BE A BIOMECHANICAL 442 00:40:08.247 --> 00:40:13.418 EXPERT TESTIFYING THROUGH THE DEFENSE. I BELIEVE THE UNDERSTANDING WAS 443 00:40:13.418 --> 00:40:18.643 BIOMECHANICAL EXPERT WILL TRY TO UNDERMINE THE MEDICAL EXPERT TESTIMONY BUT NOT 444 00:40:18.643 --> 00:40:24.124 THAT THEY WERE SETTING UP THE BIOMECHANICAL EXPERT AS AN ENTIRELY -- 445 00:40:24.124 --> 00:40:28.219 REPRESENTATIVE OF ENTIRELY SEPARATE COMMUNITY THAT ALSO HAD TO GENERALLY 446 00:40:28.219 --> 00:40:34.904 ACCEPT THE DIAGNOSIS. SO GETTING BACK TO YOUR HONOR'S QUESTION THE STATE WASN'T 447 00:40:34.904 --> 00:40:42.720 PRECLUDED FROM OFFERING MORE BUT THE STATE FELT THAT IT HAD ENOUGH TO MEET IT IS 448 00:40:42.720 --> 00:40:48.591 BURDEN PRODUCING CIVIC LEGAL WRITINGS ABSENT EXPERT TESTIMONY WHICH IT DID 449 00:40:48.591 --> 00:40:54.203 ALL ESTABLISHING GENERAL ACCEPTANCE IN THE MEDICAL COMMUNITY. 450 00:40:54.203 --> 00:40:57.605 JUSTICE PIERRE LOUIS: JUST ONE MORE QUESTION. WE TALKED ABOUT THE CLINICAL 451 00:40:57.605 --> 00:41:06.953 DIAGNOSIS HERE IN THIS CASE. IN JLG WE STATE THAT HAD CLINICAL WISDOM IS 452 00:41:06.953 --> 00:41:12.056 VALUABLE WITH YOU STILL BE EXAMINE WITH CARE AN OBJECTIVELY TESTED. HOW DO WE 453 00:41:12.056 --> 00:41:19.052 OBJECTIVE TEST AHT IF WE DON'T INCLUDE BIOMECHANICAL ENGINEER AS AN IMPORTANT 454 00:41:19.052 --> 00:41:24.358 COMPONENT OF THAT OBJECTIVE TESTING. MR. LISTON RIGHT I GUESS 455 00:41:24.358 --> 00:41:31.398 I WOULD JUST REITERATE THAT MEDICAL DOCTORS DON'T IGNORE BIOMECHANICAL 456 00:41:31.398 --> 00:41:38.821 RESEARCH. BIOMECHANICAL RESEARCH HASN'T DISPROVEN IT. THE THEORY AND I THANK YOUR 457 00:41:38.821 --> 00:41:43.690 HONOR FOR BRINGING UP JLG BECAUSE GOOD EXAMPLE OF THE GENERAL ACCEPTANCE 458 00:41:43.690 --> 00:41:51.974 TEST IN ACTION WHERE THE COURT NOTED THAT IT TURNS OUT CHILD SEX ABUSE SYNDROME 459 00:41:51.974 --> 00:41:58.848 ISN'T RECOGNIZED BY PROFESSIONAL PSYCHOLOGICAL ORGANIZATION. IN CONTRAST 460 00:41:58.848 --> 00:42:02.904 HERE CITED SEVERAL TIMES VARIOUS MEDICAL ORGANIZATIONS THAT SUPPORT THE 461 00:42:02.904 --> 00:42:09.970 DIAGNOSIS. AND THEN WITH THE ONE COMPONENT OF CHILD SEX ABUSE SYNDROME BECAUSE 462 00:42:09.970 --> 00:42:16.640 IT WASN'T ALL THROWN OUT, THE DELAYED DISCLOSURE ASPECT OF IT WAS PRESERVED 463 00:42:16.640 --> 00:42:21.453 AND FOUND TO BE RELIABLE. SIMPLY BECAUSE A SIGNIFICANT NUMBER OF DOCTORS -- GENERAL 464 00:42:21.453 --> 00:42:28.343 AGREEMENT THAT THIS PHENOMENA HAPPENS. NEVER -- DESPITE THE FACT THAT THEY 465 00:42:28.343 --> 00:42:34.237 MAY DEPENDS ON SOME, YOU KNOW SLIGHT INACCURACIES AND WITNESS MEMORIES AND THAT 466 00:42:34.237 --> 00:42:39.197 SORT OF THING. IT IS JUST GENERALLY UNDERSTOOD THAT IT HAPPENS IN THE REAL WORLD 467 00:42:39.197 --> 00:42:44.312 LIKE ABUSIVE HEAD TRAUMA WHERE WE HAVE DOCTORS WITH CLINICAL EXPERIENCE 468 00:42:44.312 --> 00:42:53.897 AGAIN CONFIRMED BY STUDIES LIKE VIN /KHOPB STUDY THAT IT DOES HAPPEN. PEOPLE SHAKE 469 00:42:53.897 --> 00:43:00.776 INFANTS AND THEY DO EXHIBIT THESE SYMPTOMS ASSOCIATED WITH ABUSIVE HEAD TRAUMA. 470 00:43:00.776 --> 00:43:05.349 CHIEF JUSTICE RABNER: COUNSEL I AM SORRY. DOCTOR DOCTOR. 471 00:43:05.349 --> 00:43:08.755 JUSTICE NORIEGA: THE TRIAD ITSELF IS NOT DIAGNOSTIC BUT THE 472 00:43:08.755 --> 00:43:13.641 COMBINATION OF FINDINGS IN THE ABSENT OF PATHOLOGY IS WHAT GIVES US FINAL DIAGNOSIS. 473 00:43:13.641 --> 00:43:20.116 WOULDN'T IT BE HELPFUL TO HAVE THE BIOMECHANICAL PORTION INCORPORATED IN 474 00:43:20.116 --> 00:43:24.856 ORDER TO TERM IF THERE IS ENOUGH FORCE USED IN PARTICULAR CIRCUMSTANCE AS PART OF THE 475 00:43:24.856 --> 00:43:32.668 ENTIRE ANALYSIS. MR. LISTON FIRST YOUR HONOR I DO WANT TO 476 00:43:32.668 --> 00:43:39.719 POINT OUT DR. MEDINA SAID NO ONE SYMPTOMS IS DIAGNOSTIC. IT IS REALLY DOCTOR 477 00:43:39.719 --> 00:43:46.683 REALLY HAS TO LOOK AT WHOLE PICTURE AND RULE THINGS OUT. HELPFUL -- I DON'T KNOW. 478 00:43:46.683 --> 00:43:53.856 I GUESS DOCTOR HAVE SEEN ENOUGH TO KNOW THAT CERTAIN ACTIONS CAN CAUSE THESE 479 00:43:53.856 --> 00:44:02.420 INJURIES AND THAT -- WELCOME MORE INFORMATION FROM THE BIOMECHANIC COMMUNITY 480 00:44:02.420 --> 00:44:09.344 BUT IT'S NOT NECESSARY IN ORDER FOR DOCTORS TO BE ABLE TO REACH A CONCLUSION 481 00:44:09.344 --> 00:44:14.983 WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY. YOU MENTION. 482 00:44:14.983 --> 00:44:18.672 JUSTICE WAINER APTER: YOU MENTIONED ALSO THERE IS ETHICAL IMPLICATIONS TO A TEST. 483 00:44:18.672 --> 00:44:24.364 YOU MENTIONED OF COURSE THERE COULD NEVER BE A TEST ON ACTUAL INFANT BUT 484 00:44:24.364 --> 00:44:29.918 MENTIONED LIMITATION TOSS TESTING IN OTHER WAYS. CAN YOU DISCUSS THAT A BIT MORE. 485 00:44:29.918 --> 00:44:35.448 MR. LISTON RIGHT. LIKE THE CORRESPONDENCY STUDIES OR YOU 486 00:44:35.448 --> 00:44:44.365 KNOW WHETHER THE SHAKEN LAMPS OR THE -- DOLLS FOR LACK OF A BETTER WORD. THEY 487 00:44:44.365 --> 00:44:51.178 ATTEMPTED TO RECREATE THE INFANT NECK BUT THEY JUST -- KIND OF FAILED TO 488 00:44:51.178 --> 00:45:02.109 ACCOUNT FOR YOU KNOW, THE WEAK MUSCLES, THE HEAD, THE WEIGHT. ALL THE UNIQUE ASPECTS 489 00:45:02.109 --> 00:45:07.432 OF THE INFANT HEAD NOT TO MENTION THE FACT THAT EVERY INFANT IS DIFFERENT. YOU 490 00:45:07.432 --> 00:45:14.751 MIGHT GET ONE INFANT WHO IS SHAKEN AND DOESN'T SHOW ANY SYMPTOMS AND OTHER 491 00:45:14.751 --> 00:45:19.642 ONES THEY DO SHOW THE SYMPTOMS. HUMAN BEINGS ARE UNIQUE AND CERTAINLY INSTANCE 492 00:45:19.642 --> 00:45:26.432 ARE UNIQUE. SO THOSE ARE SORTS OF LIMITATIONS IN TERMS OF MODELING THAT 493 00:45:26.432 --> 00:45:33.081 ARE PRESENTED. BUT BIOMECHANICS IS MOVING ALONG AND ATTACHED TO THE STATE'S MOTION 494 00:45:33.081 --> 00:45:39.421 FOR A SPECIAL MASTER AS AN ALTERNATIVE THERE WAS SCHICKS ARTICLE JUST SHOWING 495 00:45:39.421 --> 00:45:46.008 HOW COMPUTATION ALL MODELING HAS BEGUN TO ACCOUNT FOR I FORGET WHAT TERM WAS BUT 496 00:45:46.008 --> 00:45:52.246 SOMETHING -- SOME SORT OF TECHNICAL PHENOMENA CHANGE IN THE CENTER OF 497 00:45:52.246 --> 00:45:57.842 GRAFT. FORGET WHAT IT IS EXACTLY. BUT BASICALLY SHOWING THAT PASSED BIOMECHANIC 498 00:45:57.842 --> 00:46:02.238 STUDIED MAY GREATLY UNDERESTIMATED THE AMOUNT OF THE FORCE THAT COULD BE 499 00:46:02.238 --> 00:46:08.561 GENERATED BY SHAKING. SO THAT IS WHY BIOMECHANIC SHOULD /-PBTD BE IGNORED IS 500 00:46:08.561 --> 00:46:15.313 PROGRESSING. CAN HELP US UNDERSTAND THE ABUSIVE HEAD TRAUMA DIAGNOSIS BETTER. 501 00:46:15.313 --> 00:46:21.076 BUT YES, THERE IS CERTAINLY NOT A GOOD REASON FOR EXCLUDING THE TESTIMONY 502 00:46:21.076 --> 00:46:24.275 OF DR. MEDINA. CHIEF JUSTICE RABNER: IT IS ENTIRELY FAIR FOR 503 00:46:24.275 --> 00:46:30.645 YOU TO BE CRITICAL OF THE BIOMECHANICAL STUDIES. DOESN'T THATTING SUGGEST THAT IT IS 504 00:46:30.645 --> 00:46:36.695 WORKING FOR BOTH FOR STUDIES THAT SUPPORTIVE FOR AHT AN FOR THOSE FROM THE 505 00:46:36.695 --> 00:46:41.696 BIOMECHANICAL COMMUNITY THAT ALL OF THAT SHOULD BALANCE INTO THE ANALYSIS OF AD 506 00:46:41.696 --> 00:46:45.189 MISSIBILITY. MR. LISTON WELL, YOUR HONOR I BELIEVE THERE IS 507 00:46:45.189 --> 00:46:53.212 A WEIGHING THAT SHOULD HAPPEN AND THIS IS WHERE THIS STATE COULD SUBMIT THAT MEDICAL 508 00:46:53.212 --> 00:46:58.825 DOCTOR TESTIMONY BECAUSE YOU KNOW DEAL WITH LIVE HUMAN BEINGS THE ACTUAL INFANTS 509 00:46:58.825 --> 00:47:06.768 SHOULD BE WEIGHED HEAVIER THAN BIOMECHANICAL RESEARCH WHICH DOES NOT. 510 00:47:06.768 --> 00:47:12.511 SO, AGAIN, SHOULDN'TN'T BE IGNORED BUT THE STATE JUST CONSIDERS THE MEDICAL OPINION 511 00:47:12.511 --> 00:47:15.461 MUCH MORE VALUABLE. CHIEF JUSTICE RABNER: CAN YOU SAY THAT 512 00:47:15.461 --> 00:47:21.633 IN REVERSE COULDN'T BE IGNORED MEANS WHAT. MR. LISTON ACKNOWLEDGE. 513 00:47:21.633 --> 00:47:24.785 CHIEF JUSTICE RABNER: JUST BEING /-PBLD. IT EXISTS BUT THAT IS 514 00:47:24.785 --> 00:47:29.799 ENOUGH. PUT IT ON A SHELF. MR. LISTON TAKE IT INTO ACCOUNT. LEARN 515 00:47:29.799 --> 00:47:38.598 FROM. WELL IN THE ANALYSIS IF THE COURT BEGINS TO DIRECTLY EXECUTE NICE 516 00:47:38.598 --> 00:47:45.842 THE UNDERLYING SIGNS BUT IF WE WERE CONCERNED WITH GENERAL APP ANSWER AGAIN 517 00:47:45.842 --> 00:47:49.242 BIOMECHANICAL RESEARCH IS SOMETHING THAT DOCTORS ARE AWARE OF AND HAVE BEEN AWARE 518 00:47:49.242 --> 00:47:56.721 OF FOR DECADES AND YELL WILL FIND AHT TO BE A RELIABLE DIAGNOSIS. 519 00:47:56.721 --> 00:48:03.399 JUSTICE HOFFMAN: THEN WHY DIDN'T DR. MEDINA CONSULT WITH A BIOMECHANIST. 520 00:48:03.399 --> 00:48:06.169 MR. LISTON BECAUSE IT IS NOT RELEVANT TO WHAT SHE WAS DOING AT THAT TIME. 521 00:48:06.169 --> 00:48:14.486 I GUESS SHE WAS AWARE OF THE RESEARCH THAT EXISTED AND IT WASN'T GOING TO -- 522 00:48:14.486 --> 00:48:18.882 WASN'T GOING TO INFORM WHAT SHE WAS DOING AT THAT TIME LIMIT /HEUFPLT USING YOUR 523 00:48:18.882 --> 00:48:23.435 WORDS HOW CAN IT BE SIGNIFICANT AN INFORMATIVE BUT NOT RELEVANT. 524 00:48:23.435 --> 00:48:29.930 MR. LISTON MAYBE RELEVANT IS THE WRONG WORD. MAYBE -- I GUESS BIOMECHANICS 525 00:48:29.930 --> 00:48:37.554 MIGHT -- I DON'T KNOW. HELP DETERMINE IF IT WERE ADVANCED ENOUGH DETERMINE WHAT 526 00:48:37.554 --> 00:48:43.801 THE ACTUAL MECHANISM WAS. BUT WHERE THE DIAGNOSIS IS NOW IT IS SORT OF 527 00:48:43.801 --> 00:48:52.044 RULING OUT OF ACCIDENT NATURAL CAUSES LEAVING, YOU KNOW INFLICTED TRAUMA AS THE 528 00:48:52.044 --> 00:48:57.447 REMAINED ER. AGAIN NOT SAYING DEFINITELY SHAKING WITH IMPACT AND WITHOUT 529 00:48:57.447 --> 00:49:03.950 IMPACT AND ONE TRAUMA BUT RATHER I AM INFLICTED TRAUMA OF SOME KIND. SO WHEREAS 530 00:49:03.950 --> 00:49:09.679 BIOMECHANICS MIGHT BE ABLE TO NAIL DO YOU KNOW IF IT WERE ADVANCED ENOUGH WHICH 531 00:49:09.679 --> 00:49:16.987 IT IS NOT MIGHT BE ABLE TO NAIL DOWN THIS MECHANISM THAT WAS ENOUGH FOR DR. MEDINA 532 00:49:16.987 --> 00:49:22.270 TO NOTE THAT IT WAS ININFLICTED TRAUMA OF SOME KIND. JUSTICE 533 00:49:22.270 --> 00:49:26.613 WAINER APTER: IN TERMS OF GENERAL ACCEPTANCE I KNOW WE ALREADY DISCONSISTED HOW 534 00:49:26.613 --> 00:49:32.004 MANY SOCIETIES AMERICAN ACADEMY OF PEDIATRICIANS, CDC MANY OTHERS THAT 535 00:49:32.004 --> 00:49:37.115 SAY WE GENERALLY ACCEPT THE DIAGNOSIS OF AHT. IS THERE AN ASSOCIATION OF BIOMECHANICS 536 00:49:37.115 --> 00:49:47.219 -- YES /PWEUFBGT WHO SAID WE DO NOT ACCEPT THE DIAGNOSIS OF EHT LEX LIST 537 00:49:47.219 --> 00:49:52.625 NOT TO THE STATE'S KNOWLEDGE. JUSTICE WAINER APTER: THIS IS INDIVIDUAL 538 00:49:52.625 --> 00:49:59.480 BIOMECHANISTS WHO PUT OUT A STATEMENT BUT NO STATEMENT OF ALL SEW SIZE THAT 539 00:49:59.480 --> 00:50:06.191 SAID WE ACCEPT THIS. THEY SAID WE DO NOT ACCEPT THIS DIAGNOSIS. 540 00:50:06.191 --> 00:50:09.258 MR. LISTON RIGHT THAT IS CORRECT TO THE STATE'S KNOWLEDGE YOUR HONOR AN DOESN'T 541 00:50:09.258 --> 00:50:16.890 SEEM JUST THAT ONE SMALL COMMUNITY WITHOUT A CONSENSUS CAN OVERRULE OTHERS 542 00:50:16.890 --> 00:50:20.838 WHERE THERE IS A CONSENSUS. CHIEF JUSTICE RABNER: ANYTHING YOU'D 543 00:50:20.838 --> 00:50:25.575 LIKE TO ADD AT THIS POINT COUNSEL. MR. LISTON THINK I WILL 544 00:50:25.575 --> 00:50:30.721 LEAVE IT THERE. CHIEF JUSTICE RABNER: THANK YOU. MISS /WAL 545 00:50:30.721 --> 00:50:33.243 AS. MR. WALLACE: GOOD MORNING. MAY IT PLEASE THE COURT. 546 00:50:33.243 --> 00:50:36.884 THE QUESTION FOR THE COURT TODAY IS WHETHER THE DIAGNOSIS OF ABUSIVE HEAD TRAUMA 547 00:50:36.884 --> 00:50:42.543 IS SCIENTIFIC RELIABLE AN ANSWER TO THAT QUESTION IS YES. ANY CLAIM 548 00:50:42.543 --> 00:50:47.140 CONTROVERSY ABOUT THE DIAGNOSIS A FALSE ONE. MANUFACTURED BY A SMALL BUT VOCAL 549 00:50:47.140 --> 00:50:52.581 GROUP OF EXPERT WITNESSES ADVANCING THEORIES HAVE HAVE BEEN REJECTED BY 550 00:50:52.581 --> 00:50:58.054 95 PERCENT THE MEDICAL COMMUNITY. THERE IS NO GENUINE CONTROVERSY WIN THE LARGER 551 00:50:58.054 --> 00:51:03.595 MEDICAL COMMUNITY AS DIAGNOSIS OF /PWAOULT. THE RELEVANT SCIENTIFIC MEDICAL 552 00:51:03.595 --> 00:51:07.539 COMMUNITIES THAT ACTUALLY WORK WITH THIS DIAGNOSIS EVERY DAY ACROSS THE COUNTRY 553 00:51:07.539 --> 00:51:12.965 TO TREAT AN PLAN FOR THEIR YOUNG PATIENTS AND TO SPOT WHEN A CHILD MAY HAVE BEEN 554 00:51:12.965 --> 00:51:19.245 INJURED THROUGH NON-ACCIDENTAL MEANS OVERWHELMINGLY ACCEPT THIS DIAGNOSIS. 555 00:51:19.245 --> 00:51:24.274 ONLY QUESTION FOR TRIAL COURTS SHOULD BE WEIGHT GIVEN TO THIS DIAGNOSIS NOT IT 556 00:51:24.274 --> 00:51:30.471 S ADMISSIBILITY. AS REINFORCED BY AMERICAN ACADEMY OF PEDIATRICS IN THEIR BRIEF 557 00:51:30.471 --> 00:51:36.122 ABUSIVE HEAD TRAUMA IS A MEDICAL DIAGNOSIS AN EVEN APPELLATE DIVISION ADD /-PBLGDZ 558 00:51:36.122 --> 00:51:40.588 THE STATE SEMMED GENERAL ACCEPTANCE OF THIS DIAGNOSIS WITHIN THE PEDIATRIC 559 00:51:40.588 --> 00:51:45.895 COMMUNITY. WHILE TRIAL COURT AND APPELATE DIVISION ERRED ALSO REQUIRING CROSS 560 00:51:45.895 --> 00:51:52.454 DISCIPLINARY BIOMECHANICS AN HOW LONG OF PICKET FOR THIS PROPOSITION. IN DOING 561 00:51:52.454 --> 00:51:57.924 SO THE LOWER COURTS ELEVATED A THEORY THAT CANNOT BE RELIABLY PROOF OR DISPROVEN 562 00:51:57.924 --> 00:52:03.379 THROUGH ETHICAL MEANS AN USE THE RESULTING UNCERTAINTY AS GROUNDS TO VALIDATE THE 563 00:52:03.379 --> 00:52:08.925 DIAGNOSIS AND CATEGORICALLY PRECLUDE ITS ADMISSION IN COURTS. IN FACT, 564 00:52:08.925 --> 00:52:14.402 BIOMECHANICS ACKNOWLEDGE THE LIMITATIONS OF TESTING AN BUILT TO INJURIES TO THE 565 00:52:14.402 --> 00:52:18.973 SHAKE OF INFANTS BECAUSE NO ONE CAN EXPERIMENT ON INFANTS IN THIS CAN A 566 00:52:18.973 --> 00:52:24.499 AND THUS STUDY RESULTS ARE FAR FROM CONCLUSIVE AN CAUSATION IS JUST ONE 567 00:52:24.499 --> 00:52:28.472 CONSIDERATION IN THE COMPLEX ANALYSIS THAT MEDICAL PROFESSIONAL PERFORM IN THE 568 00:52:28.472 --> 00:52:33.733 DIFFERENCE DIAGNOSTIC PROCESS BEFORE MAKING A DIAGNOSIS. ABUSIVE HEAD TRAUMA IS 569 00:52:33.733 --> 00:52:38.397 A MEDICAL DIAGNOSIS ONLY ARRIVED AT AFTER A EXHAUSTIVE ABLE CYST OF A PATIENTS 570 00:52:38.397 --> 00:52:44.483 PHYSICAL PRESENTATION HISTORY AND OTHER TESTING WHICH MIGHT INCLUDE EYE EXAMS RADIOLOGIC 571 00:52:44.483 --> 00:52:49.342 EXAMS BLOODWORK AN GENETIC TESTING. WHEN COMPLETING THEIR ANALYSIS MEDICAL 572 00:52:49.342 --> 00:52:56.140 DOCTORS DO NOT CONSULT WITH BIOMECHANIC SCIENTISTS BUT DO LOOK FOR EXPLANATION 573 00:52:56.140 --> 00:53:00.922 FOR THE PATIENTS PRESENTATION CONSIDERING ALL CAUSES BIOLOGICAL ACCIDENTAL 574 00:53:00.922 --> 00:53:07.564 OR NON-ACCIDENTAL. DOCTORS REMAIN UP-TO-DATE ON ALL MEDICAL DEVELOPMENT IN FORGE 575 00:53:07.564 --> 00:53:11.864 THEIR ASSESS AN AS AMERICAN AMERICAN ACADEMY OF PEDIATRICIANS MEDICAL 576 00:53:11.864 --> 00:53:18.564 DOCTORS DO NOT DIAGNOSE THE TRIAD. THIS SUGGESTION BY DEFENSE OVER SIMPLIFIES 577 00:53:18.564 --> 00:53:21.676 DIFFERENTIAL DIAGNOSIS OVER TAKEN BY MEDICAL COMMUNITY IN THESE TYPES OF CASES. 578 00:53:21.676 --> 00:53:27.499 THESE PEDIATRIC MEDICAL EXPERT TAKE GREAT CARE TO CONSIDER AND RULE OUT 579 00:53:27.499 --> 00:53:31.786 ANY OTHER POSSIBLE CAUSES AND CONSIDER THE PLAUSIBILITY OF ANY ALTERNATIVE 580 00:53:31.786 --> 00:53:36.225 EXPLANATIONS THAT MAY BE OFFERED BEFORE DIAGNOSING ABUSIVE HEAD TRAUMA. THIS DIAGNOSIS 581 00:53:36.225 --> 00:53:41.109 IS RELIABLE AND ADMISSIBLE AND SHOULD BE CONSIDERED AS EVIDENCE. AND OUR 582 00:53:41.109 --> 00:53:46.921 ADVERSARIAL LEGAL SYSTEM WOULD STILL ALLOW FOR SPEAKING EVIDENCE REBUTTALS BY /TKEFLGTS 583 00:53:46.921 --> 00:53:51.907 OWN EXPERT AND RIGOROUS CROSS-EXAMINATION. FOR THE COURTS TO CATEGORICALLY 584 00:53:51.907 --> 00:53:57.730 EXCLUDE ENTIRE DIAGNOSIS FROM CONSIDERATION ONE THAT IS SUPPORTED BY 95 585 00:53:57.730 --> 00:54:01.498 PERCENT OF MEDICAL COMMUNITY IN WHICH HAS BEEN RECEIVED BY THESE COURTS OF 586 00:54:01.498 --> 00:54:05.878 NEW JERSEY AN CROSS THE NATION OVER TIME IS WRONG. JUSTICE HOFFMAN: 587 00:54:05.878 --> 00:54:12.242 DON'T WE NEED TO KNOW WHETHER THE DIAGNOSIS IS WITH OR WITHOUT IMPACT IN ORDER 588 00:54:12.242 --> 00:54:19.651 TO ANALYZE THE ROLE OF BIOMECHANICS IN THE EXPERT REPORT. 589 00:54:19.651 --> 00:54:21.569 MR. WALLACE: JUSTICE HOFFMAN: OR IS IT YOUR POINT THAT IT 590 00:54:21.569 --> 00:54:25.876 DOESN'T MATTER. MR. WALLACE: SO WITH REGARD TO THE QUESTION OF 591 00:54:25.876 --> 00:54:35.960 IMPACT EVEN AS ACKNOWLEDGED BY DOCTOR VAN E WHO IS BIOMECHANIST WHO TESTIFIED IN 592 00:54:35.960 --> 00:54:40.242 THIS CASE AND HE ACKNOWLEDGED THAT IMPACT CAN CAUSE THESE TYPES OF INJURIES. 593 00:54:40.242 --> 00:54:46.733 BUT HE ALSO SPOKE TO AND WE'VE SEEN IT IN SOME THE OTHER BRIEFS AS WELL BY THE 594 00:54:46.733 --> 00:54:52.554 BIOMECHANIC ENGINEER SPOKE TO THE FACT THAT THERE ARE SITUATIONS WHERE THERE 595 00:54:52.554 --> 00:54:58.017 MAY NOT BE AN OBVIOUS IMPACT. SO IT MAY SEEM THAT THERE WAS A SHAKING ONLY /TAOEUF 596 00:54:58.017 --> 00:55:07.403 OF INJURY. HOWEVER, IT WAS ALSO EXPLAINED IF A CHILD HAS PASSED AND THERE IS 597 00:55:07.403 --> 00:55:12.279 AN AUTOPSY AS A RESULT OF THESE TYPES OF INJURIES IT MAY BE AT THAT POINT THAT 598 00:55:12.279 --> 00:55:17.825 THAT IMPACT IS OBSERVED, THE EVIDENCE OF THAT IMPACT IS OBSERVED. 599 00:55:17.825 --> 00:55:21.392 JUSTICE HOFFMAN: WOULD YOU AGREE WITH ME THAT MAIMS A SHAKING OWN CASE NO EVIDENCE 600 00:55:21.392 --> 00:55:25.837 OF IMPACT THAT BIOMECHANICS IS MORE LIKELY TO PLAY A MORE SIGNIFICANT ROLE 601 00:55:25.837 --> 00:55:30.608 IN THAT ANALYSIS. MR. WALLACE: SO FROM THE MEDICAL PERSPECTIVE 602 00:55:30.608 --> 00:55:36.474 AND THE MEDICAL DOCTORS ANALYSIS WHEN THEY ARE INCORPORATED ALL OF THE INFORMATION 603 00:55:36.474 --> 00:55:43.222 INCLUDING THEIR UNDERSTANDING OF BIOMECHANICS, THAT IS WHY AS WE SAW IN 604 00:55:43.222 --> 00:55:48.846 THIS CASE DR. MEDINA WAS CAREFUL IN THE CHOICE OF WORDS THAT SHE UTILIZED DESCRIBING 605 00:55:48.846 --> 00:55:57.585 IT AS SHAKING TYPE OF INJURY WITH OR WITHOUT IMPACT. IT'S IMPOSSIBLE TO SAY 606 00:55:57.585 --> 00:56:03.624 THAT EVEN IF THERE IS NO OUTWARD EVIDENCE OF IMPACT THAT THERE WASN'T NECESSARILY 607 00:56:03.624 --> 00:56:11.218 SOME SORT OF IMPACT. SO I THINK THE ANALYSIS IS REALLY THE SAME BECAUSE THE 608 00:56:11.218 --> 00:56:15.644 REALLY IS IMPOSSIBLE TO SAY WHETHER IN THESE TYPES OF CASES THERE WAS NO 609 00:56:15.644 --> 00:56:20.562 IMPACT. NOW CERTAINLY THERE ARE CASES WHERE THERE IS VERY APPARENT IMPACT. AND 610 00:56:20.562 --> 00:56:27.064 IN THOSE TYPES OF CASES THE BIOMECHANICAL ENGINEERS WOULD AGREE THAT THAT 611 00:56:27.064 --> 00:56:32.177 RESULTS IN THOSE INJURIES. JUSTICE HOFFMAN: ARE YOU SAYING IN CASES 612 00:56:32.177 --> 00:56:37.638 IN WHICH THERE IS NO EVIDENCE OF IMPACT THAT WILL JUST BE TREATED SAME WAY 613 00:56:37.638 --> 00:56:42.918 AS IF THERE WAS EVIDENCE OF IMPACT. MR. WALLACE: IN TERMS OF THE 614 00:56:42.918 --> 00:56:46.649 MEDICAL DOCTOR'S TREATMENT. JUSTICE HOFFMAN: ARE YOU SAYING 615 00:56:46.649 --> 00:56:50.837 IN CASES WHERE THERE IS NO EVIDENCE OF IMPACT ARE THEY TO BE TREATED THE 616 00:56:50.837 --> 00:56:57.874 SAME WAY AS IF THERE WAS EVIDENCE OF IMPACT IN TERMS OF DR. MEDINA ANALYSIS AND 617 00:56:57.874 --> 00:57:03.899 REPORT. MR. WALLACE: THEY WOULD BE TREATED THE SAME WAY FROM 618 00:57:03.899 --> 00:57:09.501 OUR VIEW, YES. BECAUSE IT'S TAKING A LOOK FROM THE MEDICAL DOCTORS PERSPECTIVE 619 00:57:09.501 --> 00:57:15.644 WHEN THEY ARE FORGE AND GOING THROUGH THE DIFFERENTIAL DIAGNOSIS PROCESS THEY 620 00:57:15.644 --> 00:57:19.071 ARE TAKING ALL INFORMATION INTO ACCOUNT. SO YOU KNOW THEY ARE TAKING THE 621 00:57:19.071 --> 00:57:23.715 HISTORY. THEY ARE LOOKING AT ALL THE EXTENSIVE TESTING AND IT REALLY IS EXTENSIVE 622 00:57:23.715 --> 00:57:28.781 TESTING THAT IS COMPLETED IN THESE SITUATION TOSS RULE OUT ANY OTHER 623 00:57:28.781 --> 00:57:35.357 POSSIBLE CAUSES. SO IF THERE IS A REPORT OF AN IMPACT OBVIOUSLY THAT WOULD FACTOR 624 00:57:35.357 --> 00:57:40.836 INTO THAT ASSESSMENT AND IF THERE IS NO REPORT OF AN IMPACT THAT WOULD FACTOR 625 00:57:40.836 --> 00:57:43.361 IN AS WELL. JUSTICE PATTERSON: WANT TO MAKE SURE 626 00:57:43.361 --> 00:57:48.654 UNDERSTOOD A POINT YOU MADE. THAT IS YOU TALK ABOUT CHILDREN WHO PASSED. WERE YOU 627 00:57:48.654 --> 00:57:54.301 SAYING THAT THERE ARE INSTANCES IN WHICH THERE IS NO PHYSICAL EVIDENCE OF 628 00:57:54.301 --> 00:58:01.468 IMPACT WHEN A CHILD IS TREATED FOR AN INJURY BUT HAS NOT YET PASSED AWAY. BUT WHEN 629 00:58:01.468 --> 00:58:07.910 THERE IS AN AUTOPSY AND PRESUMABLY THERE IS A DISSECTION OF THE BRAIN THERE IS 630 00:58:07.910 --> 00:58:12.569 EVIDENCE OF IMPACT THAT DID NOT APPEAR WHILE THE CHILD WAS ALIVE. DID I 631 00:58:12.569 --> 00:58:16.027 UNDERSTAND THAT TO BE YOUR POINT CALENDAR. MR. WALLACE: YES 632 00:58:16.027 --> 00:58:20.917 THAT IS ESSENTIALLY WHAT DOCTOR VAN E TESTIFIED TO IN THIS PARTICULAR CASE. HE 633 00:58:20.917 --> 00:58:26.312 INDICATED THAT THERE IS STUDIES OUT THERE WHERE CHILDREN HAVE DIED AS A RESULT 634 00:58:26.312 --> 00:58:31.724 OF ABUSE AN AUTOPSY THEY ARE ABLE TO SEE SIGNS OF IMPACT THAT WERE NOT ABLE TO BE 635 00:58:31.724 --> 00:58:35.068 APPRECIATED PRIOR TO AUTOPSY. AND THAT IS ECHOED. JUSTICE WAINER 636 00:58:35.068 --> 00:58:38.156 APTER: YOU MEAN SOMETHING THAT WOULDN'T BE A SKULL FRACTURE OR SOMETHING THAT 637 00:58:38.156 --> 00:58:43.506 WOULD SHOW UP ON AN X-RAY. OTHER SIGNS OF IMPACT THAT YOU CANNOT TELL UNTIL 638 00:58:43.506 --> 00:58:49.485 AN AUTOPSY AND OBVIOUSLY THAT WOULD NEVER BE TO BE ON A CHILD WHO THANKFULLY DID 639 00:58:49.485 --> 00:58:53.147 NOT DIE. MR. WALLACE: CORRECT. THAT ECHOED IN THE BRIEF 640 00:58:53.147 --> 00:58:59.982 -- I BELIEVE THE BIOMECHANICAL ENGINEERS BRIEF REFERRING TO THE FINNY STUDY WHERE 641 00:58:59.982 --> 00:59:05.286 THEY CONTACT THE ABSENT OF CONTACT INJURY DOES NOT MEAN THAT THERE WAS NO HEAD 642 00:59:05.286 --> 00:59:10.201 IMPACT. SO DOCTOR VAN /EFPLTS'S TESTIMONY IS CONSISTENT WITH THAT STUDY. 643 00:59:10.201 --> 00:59:14.658 JUSTICE PATTERSON: AM I CORRECT THAT YOUR LEGAL POINT IS IT'S VERY DIFFICULT 644 00:59:14.658 --> 00:59:19.971 TO KNOW WHETHER YOU ARE DEALING WITH A CASE THAT INVOLVES IMPACT AN CASE THAT 645 00:59:19.971 --> 00:59:24.810 DOES NOT OR CASE THAT DOES NOT INVOLVE IMPACT WHEN THE CHILD IS STILL LIVING AN 646 00:59:24.810 --> 00:59:30.796 BEEN NO AUTOPSY. IS THAT THE POINT WERE YOU MAKING? /WAL WOMAN THAT IS RIGHT. 647 00:59:30.796 --> 00:59:36.177 THAT IS WHY DR. MEDINA CHOSE HER WORDS IN THIS CASE TO DESCRIBE IT AS SHAKING 648 00:59:36.177 --> 00:59:41.960 INJURY WITH OR WITHOUT IMPACT. WITHOUT ABLE TO SPEAK AS TO WHETHER IMPACT OR NOT. 649 00:59:41.960 --> 00:59:44.076 CHIEF JUSTICE RABNER: TWO THING THAT I THOUGHT I UNDERSTAND 650 00:59:44.076 --> 00:59:51.504 YOU TO SAY AN CORRECT ME IF I AM WRONG. YOU SAID THAT THE BIOMECHANIST /THAOER 651 00:59:51.504 --> 00:59:55.677 HIS CAN'T BE PROVEN OR DISPROVE AN APUT IT TO THE SIDE. YET WITH RESPECT 652 00:59:55.677 --> 01:00:02.158 TO THE DIAGNOSIS OF AHT WHICH CAN'T IN MANY INSTANCES PROOF OR DISPROVE IMPACT 653 01:00:02.158 --> 01:00:09.249 THAT IS ENTITLED TO GREAT WEIGHT, RELIGHT. ACCEPTANCE. MR. 654 01:00:09.249 --> 01:00:15.935 WALLACE: SO WITH REGARD TO THE DIAGNOSIS OF AHT IT IS OUR POSITION THAT THAT DIAGNOSIS 655 01:00:15.935 --> 01:00:21.097 ITSELF IS ADMISSIBLE FOR ALL THE REASONS EXPLAINED ALREADY BY THE STATE. 656 01:00:21.097 --> 01:00:32.735 WITH REGARD TO THE QUESTION OF BIOMECHANICS BEING ESSENTIALLY INCONCLUSIVE AT THIS 657 01:00:32.735 --> 01:00:40.514 POINT, THE DIVISION CERTAINLY AGREES THAT ALTHOUGH BIOMECHANICS IS AN IMPORTANT 658 01:00:40.514 --> 01:00:46.181 ADJUNCT TO BE CONSIDER BY MEDICAL PROFESSIONS WHEN THEY ARE COMPLETE ARE THEIR 659 01:00:46.181 --> 01:00:50.106 ASSESSMENT AN BEEN RECOGNIZED AMERICAN ACADEMY OF PEDIATRICIANS AS WELL. 660 01:00:50.106 --> 01:00:59.997 THERE HAGS TO BE AN UNDERSTANDING OF THESE LIMITATIONS TO THEIR TESTING. AND SO. 661 01:00:59.997 --> 01:01:03.228 CHIEF JUSTICE RABNER: IS THAT TRUE FOR AHT AS WELL AN BUILT 662 01:01:03.228 --> 01:01:10.757 PROVE OR DISPROVE CERTAIN FEATURES, CERTAIN EVENTS. MR. 663 01:01:10.757 --> 01:01:14.776 WALLACE: WELL LOOKING AT IT FROM A MEDICAL PERSPECTIVE I WOULD SAY IT IS NOT IMPORTANT 664 01:01:14.776 --> 01:01:19.490 TO THE MEDICAL PROFESSIONALS WHEN THEY ARE COMPLETING THEIR ANALYSIS. IT IS 665 01:01:19.490 --> 01:01:23.580 NOT NECESSARILY. JUSTICE PIERRE LOUIS: WHAT IS THE IT. WHAT IS 666 01:01:23.580 --> 01:01:27.719 NOT IMPORTANT TO THE MEDICAL PROFESSIONALS. MR. WALLACE: PROOFING 667 01:01:27.719 --> 01:01:32.680 WHETHER THERE WAS IMPACT OR NOT IMPACT OR SOME SORT OF -- WHAT THAT SPECIFIC 668 01:01:32.680 --> 01:01:38.690 CAUSATION WAS. SO IT'S NOT -- THAT IS NOT NECESSARILY IMPORTANT TO THE TREATMENT 669 01:01:38.690 --> 01:01:45.108 THAT THEY ARE PROVIDING. WHEN IT COMES TO THE LEGAL QUESTION THE DIAGNOSIS 670 01:01:45.108 --> 01:01:52.648 OF ABUSIVE HEAD TRAUMA ITSELF AS HAS BEEN DISCUSSED IS GENERALLY ACCEPTED WITH THE 671 01:01:52.648 --> 01:01:59.706 MEDICAL COMMUNITY EVEN IF BIOMECHANICS ARE AN ADJUNCT TO THAT COMMUNITY 672 01:01:59.706 --> 01:02:07.341 AND IN SOME FORM SOME OF THE BASIS OF WHAT'S CONSIDERED BY THAT MEDICAL COMMUNITY. 673 01:02:07.341 --> 01:02:10.176 CHIEF JUSTICE RABNER: WE ARE NOT TAKING HERE ABOUT TREATMENT. 674 01:02:10.176 --> 01:02:16.161 WE ARE TALKING ABOUT WHETHER A WITNESS LIKE DR. MEDINA CAN GET ON THE STAND WITHOUT 675 01:02:16.161 --> 01:02:24.058 PROOF OF IMPACT. MR. WALLACE: YES. AND SO COURT OR THE JURY 676 01:02:24.058 --> 01:02:28.269 DEPENDINGING ON WHAT SORT OF CASE IT IS SHOULD HAVE THE OPPORTUNITY TO HEAR 677 01:02:28.269 --> 01:02:32.655 THAT TESTIMONY. THAT TESTIMONY SHOULD BE DEEM ADMISSIBLE AND RELIABLE AND SHOULD 678 01:02:32.655 --> 01:02:36.499 BE ABLE TO HEAR THAT TESTIMONY OR ANYTHING THAT COUNT ERRS THAT TESTIMONY. 679 01:02:36.499 --> 01:02:43.409 HOWEVER THAT TESTIMONY WILL NOT NECESSARILY AN DIDN'T IN THIS CASE SAY WELL 680 01:02:43.409 --> 01:02:48.159 THIS IS THE PERSON THAT DID IT. THERE IS OFTENTIMES SOME ADDITIONAL EVIDENCE 681 01:02:48.159 --> 01:02:54.783 THAT'S NECESSARY THROUGH WHATEVER OTHER INVESTIGATION MIGHT HAVE OCCURRED TO BE 682 01:02:54.783 --> 01:03:06.472 ABLE TO IDENTIFY WHO CAUSED THOSE INJURIES, WHAT SORT OF INTENT OR -- YOU 683 01:03:06.472 --> 01:03:12.068 KNOW WHETHER IT WAS NEGLIGENCE OR RECKLESSNESS IN THAT TYPE OF THING IN /TERPLT 684 01:03:12.068 --> 01:03:16.022 OF HOW THE INJURIES OCCURRED. CHIEF JUSTICE RABNER: BUT SCIENTIFIC 685 01:03:16.022 --> 01:03:23.522 THEORY ISN'T ASSIGNED TO SAY THIS PERSON DID IT. SCIENTIFIC THEORY IS TO 686 01:03:23.522 --> 01:03:28.042 SPEAK TO THE JURY WITH CAUSATION. MR. WALLACE: YES AND SO EVEN IF THE 687 01:03:28.042 --> 01:03:32.446 MEDICAL PROFESSIONAL ARE UNABLE TO SPECIFICALLY SAY WELL THIS OCCURRED 688 01:03:32.446 --> 01:03:38.569 WITH IMPACT OR WITHOUT IMPACT, THEY ARE STILL ABLE TO SAY WITHIN A REASONABLE DEGREE OF 689 01:03:38.569 --> 01:03:46.183 MEDICAL CERTAINTY THAT THESE INJURIES OCCURRED AND WE'VE CONDUCTED THIS 690 01:03:46.183 --> 01:03:53.116 DIFFERENTIAL DIAGNOSIS PROCESS. WE GATHERED ALL OF THIS INFORMATION THAT 691 01:03:53.116 --> 01:03:57.275 ACCEPTED. SHOULD SAY THE DIFFERENTIAL DIAGNOSIS HAS BEEN ACCEPTED BY THE 692 01:03:57.275 --> 01:04:01.598 COURTS AS WELL AS REASONABLE METHODOLOGY FOR MEDICAL PROFESSIONALS TO UNDERGO. 693 01:04:01.598 --> 01:04:08.442 I BELIEVE IT WAS IN THE CRE AND GA CASE. AND AS A RESULT OF THIS PROCESS THIS IS 694 01:04:08.442 --> 01:04:17.940 THE DIAGNOSIS THAT WE HAVE ARRIVED AT. THE COURT IN THE FILL ADVANTAGE 695 01:04:17.940 --> 01:04:24.519 CASE WHICH IS A -- WASN'T A NEW JERSEY CASE A SOUTHERN DISTRICT OF NEW YORK IN 696 01:04:24.519 --> 01:04:35.621 2001 THEY AGREED THAT GATE CONCERNING THE PRECISE BY LEGAL PROGRAM -- L 697 01:04:35.621 --> 01:04:43.246 EGIONAIRE'S DISEASE AN ENCEPHALOPATHY. JUST AN EXAMPLE IN TERMS OF WE DON'T 698 01:04:43.246 --> 01:04:48.931 NECESSARILY NEED TO KNOW THAT COMPACT CONNECTION AND THE MEDICAL DOCTORS DON'T 699 01:04:48.931 --> 01:04:53.664 NECESSARILY NEED TO KNOW THAT EXACT CAUSATION HOWEVER THEY HAVE GATHERED 700 01:04:53.664 --> 01:04:59.899 SUFFICIENT INFORMATION TO COME TO THE CONCLUSIONS THAT THEY'VE COME TO. 701 01:04:59.899 --> 01:05:04.811 JUSTICE FASCIALE: AND YOU THINK THE INSIDE WHERE THERE MIGHT BE MORE THAN 702 01:05:04.811 --> 01:05:11.195 ONE SCIENTIFIC COMMUNITY TO CONSIDER. MR. WALLACE: THE CURRENTLY 703 01:05:11.195 --> 01:05:23.864 EXISTS WITHIN OUR CASE LAW? I AM NOT AWARE OF ANY PARTICULAR EXAMPLES AT THIS 704 01:05:23.864 --> 01:05:27.223 POINT. JUSTICE WAINER APTER: WHEN SAY NOT AWARE OF ANY EXAMPLES 705 01:05:27.223 --> 01:05:32.320 DO YOU MEAN NOT AWARE OF ANY CASE THAT SPECIFICALLY SAID HERE ALL THESE DIFFERENT 706 01:05:32.320 --> 01:05:35.947 COMMUNITIES AND EACH ONE HAS TO ACCEPT IT OR DO YOU MEAN YOU CANNOT THINK OF 707 01:05:35.947 --> 01:05:41.474 A SITUATION IN WHICH MANY DIFFERENT SUBSPECIALTIES COULD BE RELEVANT. 708 01:05:41.474 --> 01:05:44.997 MR. WALLACE: WELL, I MEAN I WOULD SAY I CAN'T THINK OF A CASE PARTICULARLY. 709 01:05:44.997 --> 01:05:51.536 I MEAN I THINK ABUSIVE HEAD TRAUMA IS A GOOD EXAMPLE PP MISSED WHAT YOU SAID. 710 01:05:51.536 --> 01:05:54.441 MR. WALLACE: ABUSIVE HEAD TRAUMA IS GOOD EXAMPLE OF THOSE 711 01:05:54.441 --> 01:06:00.242 SUBSPECIALTIES COMING INTO PLAY BECAUSE WHAT WE SEE IS PEDIATRICIANS. MEMBERS OF THE 712 01:06:00.242 --> 01:06:05.478 JURY ROOM DOCTORS. CHILD ABUSE PEDIATRICIANS CONSULTING WITH A VAST 713 01:06:05.478 --> 01:06:10.497 VARIETY OF SUBSPECIALTIES /PEUFPLT. JUSTICE WAINER APTER: PRESUMABLY 714 01:06:10.497 --> 01:06:16.653 THAT IS CASE WHERE YOU HAVE TO ONCOLOGIST SO NOT THE FIRST CASE THAT WAS 715 01:06:16.653 --> 01:06:22.456 EVER ARISEN WHERE MULTIPLE DOCTORS CONSULTED. JUST SAYING YOU HAVEN'T SOON A CASE 716 01:06:22.456 --> 01:06:27.726 WHERE THE COURSE SAYS THIS IS ONE SPECIFIC SLICE OF THE MEDICAL COMMUNITY AND 717 01:06:27.726 --> 01:06:32.636 THEREFORE THE TESTIMONY CAN'T BE ADMITTED AT ALL. MR. WALLACE: CORRECT. 718 01:06:32.636 --> 01:06:36.691 CORRECT. WE HAVE LONG SEEN PROFESSIONALS USING THIS DIFFERENTIAL DIAGNOSIS 719 01:06:36.691 --> 01:06:42.177 IN NOT JUST THESE TYPES OF CASES. THEY USE IT IN A HOST OF OTHER SITUATIONS WHEN 720 01:06:42.177 --> 01:06:48.333 TRYING TO DETERMINE WHAT AILS A PATIENT AND PRESUMABLY IN ALL OF THOSE CASES 721 01:06:48.333 --> 01:06:54.968 THEY WOULD CONSULT WITH WHATEVER OTHER MEDICAL SUBSPECIALTIES WERE RELEVANT TO THAT 722 01:06:54.968 --> 01:06:58.647 PARTICULAR. JUSTICE PATTERSON: YOU ARE REPRESENTING THE 723 01:06:58.647 --> 01:07:07.334 DIVISION. WHAT SPECIAL CHALLENGES EXIST FOR A PEDIATRICIAN WHO IS /KEUBGTING A 724 01:07:07.334 --> 01:07:13.353 DIFFERENTIAL DIAGNOSIS IN A CASE OF SUSPECTED CHILD ABUSE. 725 01:07:13.353 --> 01:07:20.696 MR. WALLACE: SO FROM THE DIVISIONS PERSPECTIVE AND FROM THE MEDICAL SPEAKER 726 01:07:20.696 --> 01:07:24.931 SPECULATIVE THE MEDICAL DOCTORS WHEN THEY ARE CONFRONTED WITH A CHILD THAT 727 01:07:24.931 --> 01:07:31.097 COMES INTO TYPICALLY THE MERGE ROOM WITH CONCERNING INJURIES. 728 01:07:31.097 --> 01:07:39.584 JUSTICE PATTERSON: I MEANT ER PHYSICIAN, PEDIATRICIAN. REALIZE DIFFERENT 729 01:07:39.584 --> 01:07:42.465 SPECIALTIES. MR. WALLACE: SO FOR THOSE PROFESSIONALS WHEN THEY 730 01:07:42.465 --> 01:07:46.747 ARE CONDUCTING THEIR ANALYSIS AND GATHERING INFORMATION, THEY ARE SPEAKING TO THE 731 01:07:46.747 --> 01:07:51.942 PARENTS AN SPEAKING TO WHOMEVER THE CARETAKERS THAT MIGHT BE TO GATHER 732 01:07:51.942 --> 01:08:00.744 THAT HISTORY WHAT'S CRITICAL HERE IS THE DOCTORS BEING ABLE TO IDENTIFY THAT THERE 733 01:08:00.744 --> 01:08:06.612 IS ESSENTIALLY SOMETHING NOT QUITE RIGHT. THERE IS SOME CONCERN FOR THE 734 01:08:06.612 --> 01:08:13.855 INJURIES THAT THIS CHILD PRESENTS WITH AND BECAUSE OF THAT CONCERN THERE NEEDS 735 01:08:13.855 --> 01:08:18.972 TO BE A FURTHER INVESTIGATION. SO IN THOSE SITUATIONS OFTENTIMES THE 736 01:08:18.972 --> 01:08:23.846 DIVISION OF CHILD PROTECTION AN PERMANENCY WILL BE CALLED IN. INVESTOR THROUGH 737 01:08:23.846 --> 01:08:28.739 THE DIVISION WILL BE ABLE TO CONDUCT ADDITIONAL INTERVIEWS. SOMETIMES LAW 738 01:08:28.739 --> 01:08:33.195 ENFORCEMENT IS CONTACTED DEPENDING ON THE SITUATION. SO THEY WILL BE ABLE TO 739 01:08:33.195 --> 01:08:37.196 CONDUCT ADDITIONAL INTERVIEWS, GATHER INFORMATION. PERHAPS SEE THE HOME, PERHAPS 740 01:08:37.196 --> 01:08:41.457 SEE ARE WHERE THE INJURIES MAY HAVE OCCURRED OR WHATEVER THE CIRCUMSTANCES 741 01:08:41.457 --> 01:08:46.584 WERE. BUT ULTIMATELY WHAT IT COMES DOWN TO IS THE MEDICAL PROVISION AS AND DIVISION 742 01:08:46.584 --> 01:08:52.611 BEING ABLE TO APPROPRIATE PLAN FOR THE CARE CARE OF THAT CHILD AN BEING 743 01:08:52.611 --> 01:08:57.763 ABLE TO ENSURE THAT THAT CHILD WILL BE SAFE. SO IF THERE IS A CONCERN THAT THERE 744 01:08:57.763 --> 01:09:03.325 WAS SOME INJURY THAT WAS NON-ACCIDENTAL CANNOT BE EXPLAINED BY SOME DISEASE OR 745 01:09:03.325 --> 01:09:09.487 UNDERLYING HEALTH CONCERN STEPS WILL NEED TO BE TAKEN TO ENSURE THE SAFETY OF THAT 746 01:09:09.487 --> 01:09:15.897 CHILD AND MEDICAL DOCTORS AT THAT POINT SHIFT THE ANALYSIS TO THE DIVISION TO MAKE 747 01:09:15.897 --> 01:09:19.059 THOSE PLANS. CHIEF JUSTICE RABNER: WANT TO GO BACK TO THE 748 01:09:19.059 --> 01:09:21.934 DIFFERENT COMMUNITIES FOR JUST A SECOND AND ASK YOU TO IMAGINE SOMETHING 749 01:09:21.934 --> 01:09:28.819 THAT IS NOT TRUE HERE THAT THE ENTIRE BIOMECHANICAL COMMUNITY ENDORSED AHT. AND 750 01:09:28.819 --> 01:09:35.151 STUDIES HAD TESTIMONY AND SAID THIS IS ROCK SOLID RELIABLE SIGNS THAT SHOULD 751 01:09:35.151 --> 01:09:39.605 BE ACCEPTED. WOULD YOUR POSITION STILL BE THE SAME THAT THAT SHOULD NOT BE CONSIDERED 752 01:09:39.605 --> 01:09:44.590 BECAUSE IT IS A DIFFERENT DISCIPLINE. MR. WALLACE: SO IF THERE 753 01:09:44.590 --> 01:09:50.902 WAS A CONSENSUS. CHIEF JUSTICE RABNER: UNIFORM. WE ALL AGREE 754 01:09:50.902 --> 01:09:55.735 WITH YOU. YOU JUST TOLD US -- IGNORE THAT. I AM ASKING WOULD YOUR POSITION BE 755 01:09:55.735 --> 01:09:59.854 THE SAME IF THEY CONCLUDED THIS WOULD BE RELIABLE CALENDAR. MR. 756 01:09:59.854 --> 01:10:03.823 WALLACE: SO JUST WANT TO CLARIFY. OUR POSITION ISN'T NECESSARILY THAT THEY SHOULD 757 01:10:03.823 --> 01:10:10.696 BE IGNORED. HOWEVER WHAT OUR POSITION IS IS THAT THEIR VIEW WAS ELEVATED 758 01:10:10.696 --> 01:10:18.103 TO THE POINT OF AS THE STATE MENTIONED ESSENTIALLY VETOING THE ENTIRE MEDICAL -- 759 01:10:18.103 --> 01:10:24.715 CONSENSUS WITHIN ENTIRE MEDICAL COMMUNITY OR VAST MAJORITY OF THE MEDICAL 760 01:10:24.715 --> 01:10:31.334 COMMUNITY. IN THE BIOMECHANIC COMMUNITY HAD ITS STUDIES TO THE POINT WHERE -- 761 01:10:31.334 --> 01:10:38.061 HOWEVER THEY CAME TO THE CONCLUSION OF SAYING YES WE ACCEPT ABUSIVE HEAD TRAUMA, 762 01:10:38.061 --> 01:10:45.962 THEY STILL WOULDN'T BE A SEPARATE COMMUNITY TO BE CONSIDERED. AS 763 01:10:45.962 --> 01:10:52.687 POINTED BY AMERICAN ACADEMY OF PEDIATRICIANS IN THEIR BRIEF THEIR RESEARCH 764 01:10:52.687 --> 01:11:00.985 AND THEIR ROLE IN ALL OF THIS IS AS AN ADJUNCT AS SOMETHING TO BE LOOKED 765 01:11:00.985 --> 01:11:08.431 TO BUT NOT NECESSARILY WHAT IS ESSENTIALLY FOR LACK A BETTER TERM DRIVING THE BUS 766 01:11:08.431 --> 01:11:11.716 IN THESE TYPES OF ANALYSIS. CHIEF JUSTICE RABNER: WOULD THEY 767 01:11:11.716 --> 01:11:16.109 BE /EPB TREAT /-LD TO FULL WEIGHT HOWEVER IT CHECKS OUT. MR. 768 01:11:16.109 --> 01:11:21.545 WALLACE: SO AS WE'VE SEEN IN MANY COURTS ACROSS THE COUNTRY JUST RECENTLY IN THE 769 01:11:21.545 --> 01:11:26.211 LADIES AND GENTLEMAN ONES CASE AND WARWICK CASE, THEY CERTAINLY WOULD BE 770 01:11:26.211 --> 01:11:34.551 ENTITLED TO TESTIFY IN COURT AND FROM AS THEY ARE /TPHOUZ TO PRESENT WHATEVER THEY 771 01:11:34.551 --> 01:11:40.346 WANT TO PRESENT. BUT THAT IS REALLY THE POINT HERE. AS MENTIONED BY THIS. 772 01:11:40.346 --> 01:11:43.370 CHIEF JUSTICE RABNER: WOULD THEIR TESTIMONY BE ENTITLED TO 773 01:11:43.370 --> 01:11:51.857 FULL WAIT /WAL /WA /WAL IF THERE WAS A CON SENSE AN STANDARD /PEFPLT /PEFPLT TESTIMONY 774 01:11:51.857 --> 01:11:55.305 WOULD BE ADMISSIBLE. JUSTICE WAINER APTER: YOU DON'T MEAN 775 01:11:55.305 --> 01:12:00.355 IT VETO -- YOUR POINT IS THAT THE WHOLE COMMUNITY HAS TO BE LOOKED AT AS 776 01:12:00.355 --> 01:12:05.937 WHOLE. CAN BE THIS COMMUNITY. YOU DON'T SPLIT THE COMMUNITY INTO 20 DIFFERENT 777 01:12:05.937 --> 01:12:12.613 SUB COMMUNITIES AND COUNT TO SEE IF ALL 20 HAVE GENERALLY ACCEPTED IT. 778 01:12:12.613 --> 01:12:17.398 MR. WALLACE: THAT IS RIGHT BECAUSE BIOMECHANIC IS SMALL PORTION OF IT. 779 01:12:17.398 --> 01:12:19.615 JUSTICE PIERRE LOUIS: BUT DO YOU AGREE THAT ALL THE COMMUNITY SHOULD 780 01:12:19.615 --> 01:12:25.482 N'T BE GIVEN FULL WEIGHT BECAUSE -- AND YOU HAVE'S SAID MULTIPLE TIMES DURING YOUR 781 01:12:25.482 --> 01:12:31.077 PRESENTATION THAT IT IS AN ABE /SKWRUPBTD. IT IS AJECTED WHICH I AM NOT 782 01:12:31.077 --> 01:12:36.959 SURE WHAT IT MEANS IN THE ANALYSIS FROM OUR PERSPECTIVE. IT IS A/SKWREUBLTD TO 783 01:12:36.959 --> 01:12:41.449 REMEMBER LOOKED TO BUT THE MEDICAL DOCTORS ARE THE ONES WE HAVE FOCUS ON. 784 01:12:41.449 --> 01:12:46.716 I HEARING YOU SAYING THAT AND NOT THAT BIOMECHANICS ARE SITTING ON SAME LEVEL AS 785 01:12:46.716 --> 01:12:52.263 MEDICAL DOCTORS THAT MAKE THE CLINICAL DIAGNOSIS. THAT DOES NOT SOUND 786 01:12:52.263 --> 01:12:58.548 MOLLUSK THE ARGUMENT ON YOUR SIDE. MR. WALLACE: SO ESSENTIALLY WHAT 787 01:12:58.548 --> 01:13:05.333 WE LOOK TO IS HOW THE MEDICAL DOCTORS RELY ON OR LOOK TO BIOMECHANICS IN 788 01:13:05.333 --> 01:13:12.058 TERMS OF THEIR ANALYSIS. THE DIVISIONS VIEW, VIEW THE ATTORNEY GENERAL IS THAT THE 789 01:13:12.058 --> 01:13:18.616 TESTIMONY HEAR OF ABUSIVE HEAD TRAUMA BY THE MEDICAL DOCTOR IS ADMISSIBLE, 790 01:13:18.616 --> 01:13:24.964 SHOULD HAVE BEEN ADMITTED BY THE TRIAL COURT AND IF THERE IS ADDITIONAL EXPERT 791 01:13:24.964 --> 01:13:29.377 TESTIMONY TO BE PROVIDED WHETHER IT IS OTHER DEFENSE MEDICAL EXPERT, WHETHER 792 01:13:29.377 --> 01:13:36.062 IT IS COMPETING BIOMECHANICS ENGINEERS THEN SOBEIT AND CERTAINLY WE WOULD WELCOME 793 01:13:36.062 --> 01:13:39.485 THAT. I MEAN THAT IS. JUSTICE PIERRE LOUIS: BUT ARGUMENT 794 01:13:39.485 --> 01:13:44.135 IN CLOSING WOULD BE INJURY YOU NEED TO FOCUS ON MEDICAL DOCTORS THAT ARE 795 01:13:44.135 --> 01:13:49.810 MAKING CLINICAL DIAGNOSIS. THOSE BIOMECHANICAL ENGINEERS IT IS IMPORTANT BUT 796 01:13:49.810 --> 01:13:53.690 NOT AS IMPORTANT AS THE MEDICAL DOCTORS JUST PRACTICALLY. MR. 797 01:13:53.690 --> 01:13:59.895 WALLACE: AS AN ADVOCATE OF COURSE WE WOULD SUPPORT THE POSITION OF WHOEVER OUR EXPERT 798 01:13:59.895 --> 01:14:04.872 MIGHT BE. BUT YOU KNOW AS WE HAVE SEEN THE INJURY INSTRUCTIONS THAT CAN 799 01:14:04.872 --> 01:14:10.625 BE PROVIDED INJURIES CAN EITHER CONSISTENT OR DISREGARD EXPERT TESTIMONY. THEY 800 01:14:10.625 --> 01:14:16.669 CAN GIVE IT WHATEVER WEIGHT OR WEIGHT OF WEIGHT THEY WISH TO. AND OBVIOUSLY 801 01:14:16.669 --> 01:14:21.966 IN DCPP THERE IS NO INJURY. IT IS A JUDGE TO WHOM ALL THE INFORMATION IS PRESENTED 802 01:14:21.966 --> 01:14:27.290 AND THAT JUDGE CERTAINLY -- THOSE JUDGES CERTAINLY ARE CAPABLE OF GOING THROUGH 803 01:14:27.290 --> 01:14:31.112 THAT ANALYSIS TO GIVE PROPER WEIGHT. CHIEF JUSTICE RABNER: ANY OTHER 804 01:14:31.112 --> 01:14:34.157 QUESTIONS ANYONE. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D 805 01:14:34.157 --> 01:14:38.292 LIKE TO PRESENT. MR. WALLACE: WOULD JUST LIKE TO SAY IN 806 01:14:38.292 --> 01:14:43.968 CONCLUSION THAT EXPANDING THE UNIVERSE OF EXPERT OPINIONS TO BE CONSIDERED BY THE 807 01:14:43.968 --> 01:14:49.711 COURT DOES MORE TO PROTECT CHILDREN IN THE PUBLIC INTEREST AS OPPOSED TO SLING 808 01:14:49.711 --> 01:14:54.534 ING IT IN THE COURTS DID HERE. FOR ALL REASONS THAT HAVE BEEN SET FORTH IN THE 809 01:14:54.534 --> 01:14:59.966 STATE'S BRIEF AND IN THE AMERICAN ACADEMY OF PEDIATRICIANS AS WELL AS OUR OWN WE 810 01:14:59.966 --> 01:15:06.080 WOULD URGE THIS COURT TO REVERSE THE APPELATE COURT'S DECISION. 811 01:15:06.080 --> 01:15:08.978 CHIEF JUSTICE RABNER: THANK YOU MR. MASON. MR. MASON: WAYNE 812 01:15:08.978 --> 01:15:15.535 TO START BY TALKING ABOUT TWO KEY POINTS THAT I SHOULD BE KEPT IN MIND FOR 813 01:15:15.535 --> 01:15:19.254 RESOLVING THIS CASE. IT IS ABOUT THE SCIENTIFIC RELIABILITY OF THE SHAKEN BABY SYNDROME 814 01:15:19.254 --> 01:15:24.878 OR ABUSIVE HEAD TRAUMA BY -- WITHOUT SIGNS OF IMPACT. THAT IS THE SPECIFIC 815 01:15:24.878 --> 01:15:30.447 THEORY THAT THE STATE HAS RELIED UPON IN THIS CASE TO ALLEGE THAT MR. NIEVES VIOLENTLY 816 01:15:30.447 --> 01:15:37.622 SHOOK HIS 11-MONTH OLD SON. IT IS THAT THEORY THEY RELIED ON TO APPROXIMATE 817 01:15:37.622 --> 01:15:44.466 HIM GOING ON EIGHT YEARS. THEY RELIED UPON TO SEPARATE HIM FROM HIS CHILD FOR 818 01:15:44.466 --> 01:15:48.661 FIVE YEARS AS A RESULT OF THIS. I THINK THAT'S IMPORTANT BECAUSE THAT IS 819 01:15:48.661 --> 01:15:54.446 DIFFERENT FROM AHT. I KNOW THIS IS IN THE BRIEFING. I FEEL LIKE BROKEN RECORD 820 01:15:54.446 --> 01:15:59.771 BRINGING THIS UP BUT THINK IT IS IMPORTANT BECAUSE AHT IS NOT SIN NONE MOUSE WITH 821 01:15:59.771 --> 01:16:07.796 SBS. SBS AMERICAN ACADEMY OF PEDIATRICS STATES IS A SUBSET OF AHT. SO 822 01:16:07.796 --> 01:16:12.995 THIS IS A SPECIFIC DIAGNOSIS SPECIFIC THEORY AND IT IS THAT SPECIFIC THEORY THAT THE 823 01:16:12.995 --> 01:16:17.419 STATE BORE THE BURDEN OF BRINGING RELIABILITY UP. JUSTICE 824 01:16:17.419 --> 01:16:21.623 PATTERSON: TO BE CLEAR THE DEFENDANT IS NOT MAKING THE CON TENNING THAT AHT SHOULD 825 01:16:21.623 --> 01:16:27.395 BE EXCLUDED UNDER RULE 702. MR. MASON: NOT IN THE GENERAL 826 01:16:27.395 --> 01:16:32.219 SENSE. CAN INCLUDE BLUNT IMPACT. DR. MEDINA TESTIFIED ABOUT THAT. THIS 827 01:16:32.219 --> 01:16:37.819 CASE HAS NOTHING TO DO WITH THAT. NOTHING TO CAN SHAKEN THEORETICALLY HARMFUL 828 01:16:37.819 --> 01:16:44.116 OR CONSTITUTES ABUSE. NOBODY DISPUTES IT COULD BE. NOT ABOUT IN ORDER 829 01:16:44.116 --> 01:16:47.963 NECESSARY OF DIFFERENTIAL DIAGNOSIS /*FPLT JUST ABOUT THE SCIENTIFIC RELIABILITY 830 01:16:47.963 --> 01:16:53.491 OF THE THEORY THAT PERSON CAN SHAKE /AOE CHILD WITH ENOUGH FORCE TO CAUSE TRIAD 831 01:16:53.491 --> 01:16:57.596 OF. JUSTICE WAINER APTER: DIDN'T YOUR REPORT SAY SPECIFICALLY 832 01:16:57.596 --> 01:17:02.088 DIAGNOSIS WAS QUOTE AEWES I HAVE HEAD TRAUMA OCCURS WITH SHAKING EVENT WITH OR 833 01:17:02.088 --> 01:17:07.505 WITHOUT IMPACT HAS BEEN MADE WITH A REASONABLE DEGREE OF MEDICAL 834 01:17:07.505 --> 01:17:10.416 CERTAINTY. MR. MASON: YES URBAN WANTED TO ADDRESS THAT. POINT 835 01:17:10.416 --> 01:17:17.492 YOUR HONORS TO PAGE 52 AND 53 OF THE FIFTH TRANSCRIPT AS PART THE FRY HEARING. 836 01:17:17.492 --> 01:17:20.203 JUSTICE PATTERSON: THE DATE. MR. MASON: DON'T 837 01:17:20.203 --> 01:17:26.713 HAVE THE DATE IN FRONT OF ME. THAT IS WHERE DR. MEDINA CLARIFIES THIS WITH OR 838 01:17:26.713 --> 01:17:33.694 WITHOUT IMPACT. WHOLE MURKY NECESSARY. WHEN SHE TESTIFIED THAT ANY IMPACT 839 01:17:33.694 --> 01:17:41.513 WOULD HAVE BEEN AGAINST A SOFT SURFACE. THAT IS ENCOMPASSED WIN THE /SPWAEUT /THAOEUR 840 01:17:41.513 --> 01:17:46.588 RE. THESE OF DAYS ARE WHERE HE HAVE THE DIAGNOSIS WITHOUT SCIENTIFIC EXTERNAL 841 01:17:46.588 --> 01:17:51.121 INJURY. TALK ABOUT ACASE WHERE THERE IS A SKULL FRACTURE OR CLEAR SWELLING THAT 842 01:17:51.121 --> 01:17:55.361 INDICATES IMPACT THAT IS NOT WHAT THIS CASES ABOUT. JUST ABOUT THE CASES 843 01:17:55.361 --> 01:18:02.038 THAT DON'T HAVE EXTERNAL INJURY SO TALKING SHAKING OR SHAKING WITH SOME TYPE OF 844 01:18:02.038 --> 01:18:06.491 SOFT IMPACT ACETATE ALLEGES. THAT IS WHAT I WANT TO MAKE SURE THAT IS THE 845 01:18:06.491 --> 01:18:11.678 CLEAR THEORY AT ISSUE. SECOND POINT IS THE STATES BURDEN IN THIS CASE AN LOT OF 846 01:18:11.678 --> 01:18:16.401 TALK ABOUT GENERAL ACCEPTANCE AND WHAT THAT MEANS. WOULD I SUBMIT THAT THE 847 01:18:16.401 --> 01:18:24.062 STATE HAS PRETTY VERSION OF JURIS PRUDENCE ABOUT THIS. COURT DOES NOT ADD UP HOW MANY 848 01:18:24.062 --> 01:18:29.479 ARE ON ONE SIDE. WE DO NOT LOOK AT HOW MANY PROFESSIONAL ORGANIZATIONS. WE 849 01:18:29.479 --> 01:18:33.792 LOOK AT WHY THEY BELIEVE WHAT THEY BELIEVE. WE LOOK AT STUDIES. LOOK AT RESEARCH. 850 01:18:33.792 --> 01:18:40.413 THAT IS WHAT THIS COURT DID JLG. THAT IS WHAT THEY DID IN PICK ET. THAT IS WHAT 851 01:18:40.413 --> 01:18:45.355 THE COURT DID AGAIN AGAIN. MORE CONTACTS DID I. TALK ABOUT ERROR RATES 852 01:18:45.355 --> 01:18:50.989 AN ACTUAL STUDIES. NOT JUST DOCTORS SAY THIS SO WE TRUST IT. EARN THE COURT'S 853 01:18:50.989 --> 01:18:55.921 OPINION IN OLENOWSKI THE CHIEF JUSTICE NOTED IN THOSE CASE THEY WENT BEYOND 854 01:18:55.921 --> 01:19:05.491 GENERAL ACCEPTANCE. SO WE ARE TALKING ABOUT SBS IN PARTICULAR. TALKING THE STATE'S 855 01:19:05.491 --> 01:19:09.804 BURDEN TO DEMONSTRATE RELIABILITY AN CLEAR RELIABILITY BECAUSE THIS IS A 856 01:19:09.804 --> 01:19:14.832 CRIMINAL CASE AND THE CLEAR RELIABILITY THROUGH APPLICATION OF THE SCIENTIFIC METHOD. 857 01:19:14.832 --> 01:19:21.291 SO TALKING HYPOTHESIS. TALKING ABOUT REPEATED TESTING AND SEEING IF THAT 858 01:19:21.291 --> 01:19:25.687 HYPOTHESIS CAN HOLD. JUSTICE WAINER APTER: I UNDERSTAND THAT COURT 859 01:19:25.687 --> 01:19:30.575 HAS PREVIOUSLY COUNTED UP HOW MANY DOCTORS AGREE OR DISAGREE. BUT ALSO SAID THAT 860 01:19:30.575 --> 01:19:35.094 TRIAL COURT SHOULD NOT SUB SUIT IT IS JUDGMENT FOR THAT OF RELEVANT SCIENTIFIC 861 01:19:35.094 --> 01:19:40.795 COMMUNITY. SO I AM JUST NOT SURE HOW COULD A JUDGE OR JUSTICE SAY THAT 862 01:19:40.795 --> 01:19:44.439 THIS IS NOT GENERALLY ACCEPTED IN THE MEDICAL COMMUNITY EVEN THOUGH THE AMERICAN 863 01:19:44.439 --> 01:19:49.961 ASSOCIATION OF PEDIATRICS SAYS IT IS GENERALLY ACCEPTED AND CDC SAYS IT IS 864 01:19:49.961 --> 01:19:53.952 GENERALLY ACCEPTED AND ALL OF THE DIFFERENT ORGANIZATIONS THAT I MENTIONED BEFORE 865 01:19:53.952 --> 01:19:58.612 SAY THAT IT'S GENERALLY ACCEPTED. HOW DO WE DECIDE YOU ARE ALL WRONG. THIS 866 01:19:58.612 --> 01:20:03.618 JUNK SCIENCE YOU ARE ALL WRONG FOR BELIEVING IT. YOU ARE ALL THE DOCTORS BUT WE 867 01:20:03.618 --> 01:20:08.265 SAY YOU ARE ALL WRONG. MR. MASON: WE STILL HAVE TO LOOK AT THEY'RE 868 01:20:08.265 --> 01:20:11.585 OWE FIRST INSIDE WHAT THEY ARE SAYING IN REGARD TO SPECIFIC DIAGNOSIS. 869 01:20:11.585 --> 01:20:16.409 THAT IS I THINK PROBLEM WITH CONFLATION AHT. I THINK ATTORNEY GENERAL TALKING 870 01:20:16.409 --> 01:20:21.983 ABOUT 9150 PERCENT ACCEPTANCE RATE. JUSTICE PATTERSON: SLOW 871 01:20:21.983 --> 01:20:28.737 DOWN ABET. I AM TRYING TO KEEP NOTES. MR. MASON: 95 PERCENT 872 01:20:28.737 --> 01:20:34.648 ACCEPTANCE RATE IS COMING FROM 2016 SURVEY CONDUCTED BY DOCTOR NEWER RANG. THAT 873 01:20:34.648 --> 01:20:40.771 IS ACCEPTANCE RATE FOR AHT. NOT SBS. THINK AGAIN AND AGAIN WE HAVE BEEN TRYING 874 01:20:40.771 --> 01:20:45.020 TO GET THE STATE TO NAIL DOWN WHAT HAS BEEN SAID ABOUT THIS SPECIFIC DIAGNOSIS 875 01:20:45.020 --> 01:20:50.301 AND AGAIN AGAIN THEY CONFLATE STUDIES ABOUT AHT. TALK ABOUT STUDIES OF 876 01:20:50.301 --> 01:20:54.875 AHT. IN THE FIRST INSIDE IT IS HARD TO TELL WHAT THE VIEWS ARE. THINK THE STUDY 877 01:20:54.875 --> 01:21:01.369 ITSELF FROM 2016 WHILE LIMITED ALSO UNDER CUTS THIS IDEA OF BROAD GENERAL 878 01:21:01.369 --> 01:21:06.623 ACCEPTANCE. SO ACCEPTANCE RATE OF JUST THE THEORY OF AHT WAS 88 PERCENT AMONG 879 01:21:06.623 --> 01:21:11.494 CLINICIANS. PEOPLE THAT ARE ALREADY EXPECTED TO ACTUALLY DIAGNOSIS THIS. 880 01:21:11.494 --> 01:21:15.453 THAT ARE INVOLVED IN THIS DIAGNOSTIC PROCESS WHICH THE AUTHORS THEMSELVES SAID OPEN 881 01:21:15.453 --> 01:21:21.544 THE STUDY UP TO SELECTION. WHEN YOU GET TO THE ACTUAL TRIAD SYMPTOMS LESS THAN 882 01:21:21.544 --> 01:21:26.506 60 PERCENT OF ALL OF THOSE CLINICIANS THOUGHT THAT SHAKING WAS HIGHLY LIKELY 883 01:21:26.506 --> 01:21:34.364 TO SAUCE SEVERE HEEL TOMB A. 30 PERCENT THOUGHT HIGH LIKE LIKE TO CAUSE RETINAL 884 01:21:34.364 --> 01:21:40.184 HEMORRHAGES. IT WAS REJECTED BY 25 PERCENT OF NEUROSURGEONS AND 50 885 01:21:40.184 --> 01:21:43.244 PERCENT OF PATHOLOGIST. JUSTICE WAINER APTER: WHICH STUDY REFERRING 886 01:21:43.244 --> 01:21:49.010 TO THE 2016 NEWER AND STUDY. MR. MASON: YES SURVEY OF MEDICAL 887 01:21:49.010 --> 01:21:54.475 DOCTORS AND THAT IS /WA MENDED TO MY RESPONSE OF AMERICAN ACADEMY OF 888 01:21:54.475 --> 01:22:01.033 PEDIATRICIANS. THE SITE TORE IT. IT IS PAGE 24 OF MY APPENDIX. I INCLUDE BREAK 889 01:22:01.033 --> 01:22:06.387 DOWN OF THOSE SYMPTOMS. SO WE HAVE I THINK QUESTIONABLE DATA IN THAT DATE. 890 01:22:06.387 --> 01:22:12.607 WHETHER IT IS /SEPDZ. THEN WHEN GET INTO THE ACTUAL TRIAD SYMPTOMS THERE IS A 891 01:22:12.607 --> 01:22:19.283 LOT LESS CERTAIN AN CONSENSUS THAN THE STATE IS SUGGESTING. BUT EVEN BEYOND 892 01:22:19.283 --> 01:22:24.294 THAT EVEN IF THERE WAS BROAD ACCEPT AN UNIFORM ACCEPTANCE THIS COURT HAS MADE CLEAR 893 01:22:24.294 --> 01:22:30.342 WE HAVE TO LOOK AT WHAT THAT'S BASED ON AND SCIENTIFIC EVIDENCE DOESN'T DEMASK 894 01:22:30.342 --> 01:22:35.322 IT UP. HAPPY TO TALK MEDICAL RESEARCH AN BIOMECHANIC RESEARCH. THINK ULTIMATELY 895 01:22:35.322 --> 01:22:42.063 WHAT I THINK JUSTICE QUESTION EARLIER WAS HOW DO YOU TEST THIS. WITH A 896 01:22:42.063 --> 01:22:47.590 THEY TEST THIS THROUGH 3 THINGS THAT IS THROUGH BIOMECHANIC STUDIES AN THROUGH 897 01:22:47.590 --> 01:22:52.579 THESE CONFESSION STUDIES. REASON FOR THAT IS WANT TO BREAK SURE /SEURBG /HRART. 898 01:22:52.579 --> 01:22:56.588 LOT OF EARLIER RESEARCH IS TALKING ABOUT OH, WELL WE HAVE THIS DIAGNOSIS 899 01:22:56.588 --> 01:23:01.049 AND IT MATCHES UP WITH THE SYMPTOMS AND THEY ARE ESSENTIALLY GOING IN FEEDBACK 900 01:23:01.049 --> 01:23:06.551 LOOP CONFIRM THESE BASED ON SYMPTOMS THAT WERE USED TO MAKE THE ABOUTING 901 01:23:06.551 --> 01:23:11.165 IS IN THE FIRST PLACE. JUSTICE PATTERSON: YOU MENTIONED THAT -- 902 01:23:11.165 --> 01:23:16.879 THERE IS A LACK OF /KHRAEURBTY AS TO WHAT THE VIEWS ARE OF THE POSITIONS. 903 01:23:16.879 --> 01:23:24.465 I WON'T REPEAT ALL OF THE AME KEY WHO JOINT WITH AMERICAN ACADEMY OF PEDIATRICIANS 904 01:23:24.465 --> 01:23:28.734 BUT HOW WOULD YOU CHARACTERIZE THE POSITION THAT THEY AND THESE OTHER 905 01:23:28.734 --> 01:23:36.291 PEDIATRIC RELATED AND NEUROSURGEONS ET CETERA MEDICAL SOCIETIES HOW DO YOU CHARACTERIZE 906 01:23:36.291 --> 01:23:41.892 THEIR POSITION IN THEIR AMEANING 'CUZ BRIEF BEFORE THIS REPORT BECAUSE THEY 907 01:23:41.892 --> 01:23:46.516 ARE NOT TODAY OBVIOUSLY ARGUING. MR. MASON: THINK THE GENERAL TAKE 908 01:23:46.516 --> 01:23:51.914 AWAY ARE SUPPORT OF TESTIMONY BEING ADMITTED. WHEN DRILL DOWN INTO IT 909 01:23:51.914 --> 01:23:55.774 THERE IS QUESTIONS. JUSTICE PATTERSON: CLEARLY BUT THINK WHAT YOU 910 01:23:55.774 --> 01:23:59.561 ARE SAYING AS PART EVERY YOUR ARGUMENT THAT THE SUPPORT OF THE SOCIETIES AND THEIR 911 01:23:59.561 --> 01:24:05.265 MEMBERS IS BEING OVERSTATED BY STATE. SO WHAT IS IT THAT YOU ARE TELLING US 912 01:24:05.265 --> 01:24:09.888 IS THE POSITION OF THESE MEDICAL SEW SITES IN THIS CASE. MR. 913 01:24:09.888 --> 01:24:13.452 MASON: MY POSITION IS NOT THAT THEY OVERSTATING SUPPORT BY THESE ORGANIZATIONS. 914 01:24:13.452 --> 01:24:19.604 ORGANIZATIONS HAVE JOINED I THINK WHEN TALKING ABOUT WHO AND CDC I DON'T 915 01:24:19.604 --> 01:24:26.688 KNOW WHAT THEY SAID OR WHAT THAT'S BASED ON OR SBS/AHT AND THIS WAS STATE BURDEN 916 01:24:26.688 --> 01:24:33.410 TO STATE THOSE THINGS. IT IS ONE SURVEY FROM 2016 THERE IS A LOT MORE 917 01:24:33.410 --> 01:24:38.104 QUESTIONING AND DOUBT THERE THAN I THINK THE CONSENSUS OR AGREEMENT AMONG SOME 918 01:24:38.104 --> 01:24:40.509 PROFESSIONAL ORGANIZATIONS MIGHT SUGGEST. JUSTICE WAINER APTER: 919 01:24:40.509 --> 01:24:44.372 YOU DO POINT TO TWO CONSENSUS STATEMENTS. THE WITNESS: RIGHT 920 01:24:44.372 --> 01:24:49.937 2020 POLL CITY STATEMENT ON ABUSIVE HEAD TRAUMA AN 2018 CON SENTENCES STATEMENT 921 01:24:49.937 --> 01:24:54.519 ON ABUSIVE HEAD TRAUMA AN POINT TO THOSE OF THOSE AS CONSENSUS STATEMENTS 922 01:24:54.519 --> 01:24:59.396 AS AMERICAN ACADEMY OF PEDIATRICIANS AND ACTUALLY TO 181 WAS TONS OF OTHER 923 01:24:59.396 --> 01:25:04.005 MEDICAL SOCIETIES ACROSS THE WORLD. MR. MASON: I THINK WITH THOSE 924 01:25:04.005 --> 01:25:10.698 PAPERS THE CONSENSUS STATEMENT IN 2018 IN PARTICULAR FOCUSES ON AHT IN 925 01:25:10.698 --> 01:25:17.062 PARTICULAR AND SOME DISCUSSION ON SBS. EVEN IN THOSE DOCUMENTS THEY DO NOTE THAT 926 01:25:17.062 --> 01:25:24.340 DISCUSSION THAT REMAINS. CONSENSUS ON 141 NOTES THAT DISCUSSION REMAINS ON 927 01:25:24.340 --> 01:25:33.137 WHETHER IMPACT IS NEEDED. AAP2009 STATES THAT CONTROVERSY REMAINS. IT DOES /SPHREUS 928 01:25:33.137 --> 01:25:37.488 LY STATE THE DOCTOR SHOULD NOT BE CONCERN ABOUT REASONABLE DOUBT STANDARD 929 01:25:37.488 --> 01:25:44.307 I THINK ENDS AT JUSTICE WHO HAVE MANS CONCERN EARLIER. WE ARE NOT ARGUMENT THAT 930 01:25:44.307 --> 01:25:48.512 DOCTOR NEEDS TO HAVE THAT DAUGHT -- JUSTICE PATTERSON: YOU 931 01:25:48.512 --> 01:25:53.223 DON'T CONCUR WITH THE TRIAL COURT THAT THERE HAS TO BE A TESTIMONY BY A 932 01:25:53.223 --> 01:25:59.867 DOCTOR THAT THE OPINION IS BEYOND A REASONABLE DOUBT, ARE YOU. 933 01:25:59.867 --> 01:26:03.157 MR. MASON: NOT NOT OUR POSITION. I AM NOT SURE THAT WAS TRIAL COURTS POSITION. 934 01:26:03.157 --> 01:26:08.703 CONCEIVABLY THAT PART THE OPINION IS A LITTLE UNCLEAR BUT THINK OVER ALL JUST 935 01:26:08.703 --> 01:26:13.392 ABOUT THE OVER ALL UNRELIABILITY AN AFFECT THAT THIS TESTIMONY COULD HAVE IF ADMITTED 936 01:26:13.392 --> 01:26:17.079 WHILE BEING UNRELIABLE. JUSTICE PATTERSON: IS IT FAIR TO 937 01:26:17.079 --> 01:26:21.068 SAY THAT APPELATE DIVISION DID NOT ADOPT THAT PORTION. MR. MASON: 938 01:26:21.068 --> 01:26:25.445 YES. BUT THINK IT DOES SPEAK TO OVER ALL ISSUE THAT THIS IS RELIABLE BECAUSE THESE 939 01:26:25.445 --> 01:26:30.555 ARE HIGHLY SENSITIVE CASES. TALKING CHILDREN THAT ARE INJURED AN CHILDREN 940 01:26:30.555 --> 01:26:39.746 THAT MAY HAVE DIED. HAVE A DOCTOR COME IN TO A TO A REASONABLE DEGREE OF CERTAINTY 941 01:26:39.746 --> 01:26:45.997 THESE MAY HAVE IMPACT. THAT WILL CARRY WAIT HE HAVE BEEN IF IT IS NOT 942 01:26:45.997 --> 01:26:48.214 RELIABLE. JUSTICE HOFFMAN: THAT WOULD CARRY WEIGHT DEPENDING 943 01:26:48.214 --> 01:26:53.050 ON HOW MUCH CORROBORATING EVIDENCE THERE IS. MR. MASON: YES. 944 01:26:53.050 --> 01:26:55.956 JUSTICE HOFFMAN: I DON'T THINK ANYONE IS ARGUING BUT IF THE SCIENTIFIC 945 01:26:55.956 --> 01:27:00.808 OR EXPERT IS ONLY TESTIFYING FOR A REASONABLE DEGREE OF MEDICAL CERTAINTY 946 01:27:00.808 --> 01:27:05.905 THERE IS A LIMITED AMOUNT OF CORROBORATING EVIDENCE ISN'T IT IN THE SENSE -- 947 01:27:05.905 --> 01:27:10.426 ISN'T THAT WHERE THAT CONFLATION MAY OCCUR IF WE ONLY HAVE REASONABLE DEGREE OF 948 01:27:10.426 --> 01:27:15.212 MEDICAL CERTAINTY AN PROSECUTION IS ONLY RELYING UPON REASONABLE DEGREE OF OF MEDICAL 949 01:27:15.212 --> 01:27:20.684 CERTAINTY TO PROVE BEYOND A REASONABLE DOUBT THAT THAT'S WHERE CONFLATION 950 01:27:20.684 --> 01:27:23.652 OCCURS. MR. MASON: THINK THERE IS A RISK OF THAT. I WILL 951 01:27:23.652 --> 01:27:29.492 ADMIT I DIDN'T SPENT A LOT OF TIME LOOKING AT CASE LAW LOOKING AT TERMINOLOGY FOR 952 01:27:29.492 --> 01:27:33.433 A REASONABLE DEGREE. JUSTICE PATTERSON: ISN'T THAT A SEPARATE 953 01:27:33.433 --> 01:27:38.076 INQUIRE. TELL ME IF I AM WRONG. WHEN THE DOCTORS ASK IS YOUR TESTIMONY TODAY AN 954 01:27:38.076 --> 01:27:43.265 D GENERALLY AT END IT IS ASKED THE END OF A DIRECT EXAMINATION CONVERSATION ALL 955 01:27:43.265 --> 01:27:50.820 KIND OF POINT THAT PERHAPS THE DOCTOR HAS MADE IS YOUR TESTIMONY GIVEN WITHIN A 956 01:27:50.820 --> 01:27:53.792 REASONABLE DEGREE OF MEDICAL CERTAINTY GENERALLY ANSWER IS YES. THAT IS DISTINCT 957 01:27:53.792 --> 01:27:59.728 FROM THE 702 ANALYSIS IS IT NOT MAY MACE I THINK MAYBE A PROBLEM ON ITS 958 01:27:59.728 --> 01:28:05.151 OWN. SEPARATE FROM 702 BUT DOES POINT TO A LEVEL OF MUSHING CAN I NECESSARY TO 959 01:28:05.151 --> 01:28:08.306 ENTIRE DIAGNOSTIC FRAMEWORK AND DIAGNOSIS. JUSTICE PATTERSON: 960 01:28:08.306 --> 01:28:14.099 YOU ARE NOT TELLING US THERE IS SOMETHING WRONG WITH A COURT REPORTERED RELYING 961 01:28:14.099 --> 01:28:18.047 ON A DOCTORS STATEMENT THAT THEY ARE MAKING THEIR DETERMINATION BASED ON 962 01:28:18.047 --> 01:28:23.479 REASONABLE DEGREE OF MEDICAL CERTAINTY. THAT DOESN'T ANSWER THE QUESTION OF 702 963 01:28:23.479 --> 01:28:28.270 WHICH IS THAN FRY GENERAL ACCEPTANCE BUT THESE ARE REALLY APPLES AN ORANGE 964 01:28:28.270 --> 01:28:32.950 HE IS ARE THEY NOT. MR. MASON: FOCUS ON SCIENTIFIC RESEARCH OR 965 01:28:32.950 --> 01:28:38.189 LACK THEREOF AS WELL AS OTHER STATEMENTS ABOUT THIS. I WAS JUST GOING TO 966 01:28:38.189 --> 01:28:43.286 TRY TO TALK ABOUT THE BIOMECHANICS AT LEAST BUT HAPPY TO ADDRESS YOUR HONORS 967 01:28:43.286 --> 01:28:46.541 QUESTION BEFORE THAT. JUSTICE FASCIALE: THAT IS WHAT MY QUESTION 968 01:28:46.541 --> 01:28:53.367 IS. WHAT AMOUNT OF WEIGHT SHOULD BE GIVEN TO BIOMECHANIC ENGINEERS AT FRY 969 01:28:53.367 --> 01:28:58.018 HEARING WHEN ANSWERING THE QUESTION CAN SHAKING WITH ENOUGH FORCE CAUSE A TRIAD 970 01:28:58.018 --> 01:29:03.541 OF INJURIES. MR. MASON: THINK SHOULD BE GIVEN GREAT 971 01:29:03.541 --> 01:29:06.067 WAIT. JUSTICE FASCIALE: WHY. MR. MASON: STATE 972 01:29:06.067 --> 01:29:13.361 DIDN'T WANT TO SAY THIS BUT BECAUSE THE SBS/AHT THEORY WAS DEVELOP AN GROUNDED 973 01:29:13.361 --> 01:29:17.501 IN BIOMECHANICS. THAT WAS ESTABLISHED THROUGH THE HEARING. DOCTOR VENDTY 974 01:29:17.501 --> 01:29:24.694 TALK TO BIOMECHANICS ENGINEERS IN THE 19 SIXTIES /KOPLSZ UP WITH CONTACT CAUSE 975 01:29:24.694 --> 01:29:31.015 INJURY. YOU HAVE DOCTOR GUT COUCH AN CALFY RELYING ON DOCTOR OH, MYIAS 976 01:29:31.015 --> 01:29:38.882 IN /WEUP LATCH. PEDIATRICIANS ARE /TPWOUT BIOMECHANICAL STUDIES. DR. MEDINA TESTIFIED 977 01:29:38.882 --> 01:29:46.793 AS MUCH. CONTINUES TO BE DEFINE IN BIOMECHANIC TERMS. THINK EVERY PAPER 978 01:29:46.793 --> 01:29:51.738 INCLUDING MEDICAL ONES TALKS ABOUT ACCELERATION. DECELERATIONS AN TALKS ABOUT 979 01:29:51.738 --> 01:29:56.916 WHIPLASH INJURIES. THAT IS WHAT SHE TALKED ABOUT. AFFECT OF FORCE ON THE 980 01:29:56.916 --> 01:30:00.486 BODY. JUSTICE WAINER APTER: HOW DOES ONE ASSESS THE GENERAL 981 01:30:00.486 --> 01:30:06.706 BELIEVES OF THE BIOMECHANICAL COMMUNITY VERSUS ONE PARTICULAR PERSON WITH A PH.D. 982 01:30:06.706 --> 01:30:11.245 IN BIOMECHANICS WHO HAPPENS TO BE COPPING INTO COURT THAT DAY. WE TALKED 983 01:30:11.245 --> 01:30:16.144 ABOUT STATEMENTS FROM LOTS OF DIFFERENT SOCIETIES SO UNDERSTAND WHAT THEY AS BODY 984 01:30:16.144 --> 01:30:21.305 BELIEF EVEN IF MEDICAL DOCTORS WHO DISAGREE WITH IT. HERE IS THERE 985 01:30:21.305 --> 01:30:29.135 ANYTHING LIKE A CONSENSUS STATEMENT OR ANY STATEMENT OF PROFESSIONAL SOCIETIES OF 986 01:30:29.135 --> 01:30:34.804 BIOMECHANISTS. MR. MASON: THERE IS NOT CONSENSUS STATEMENT 987 01:30:34.804 --> 01:30:37.317 EQUIVALENT. JUSTICE WAINER APTER: OR ANY STATEMENT FROM A 988 01:30:37.317 --> 01:30:44.270 GENERAL SOCIETY OF WE ARE BIOMECHANISTS AND THIS IS WHAT WE THINK. 989 01:30:44.270 --> 01:30:48.285 MR. MASON: NOT THAT I'M AWARE OF AND THINK BIG REASON FOR THAT. CHIEF JUSTICE 990 01:30:48.285 --> 01:30:56.989 THE BIOMECHANICAL HYPOTHESIS I WOULD SAY NOT A BIOMECHANICAL HYPOTHESIS THE 991 01:30:56.989 --> 01:31:03.879 POSITION OF BIOMECHANICAL COMMUNITY AN EXPERT IN OUR CASES NOT THAT SHAKING CANNOT 992 01:31:03.879 --> 01:31:10.313 AFFIRMATIVELY CAUSE THESE INJURIES BUT AFFIRMATIVELY TESTED THIS HYPOTHESIS WHICH 993 01:31:10.313 --> 01:31:16.983 IS HOW IT WORKS AN REPEATEDLY FAILED TO PROVE IT. THINK THEORETICAL 994 01:31:16.983 --> 01:31:23.409 BIOMECHANICS STATEMENT WAY. WAY. SAY THAT ONE TIME POSITION IS NOT THAT SHAKING 995 01:31:23.409 --> 01:31:27.126 CAN CAUSE THESE INJURIES. IT IS. MR. MASON: IS IT IS NOT 996 01:31:27.126 --> 01:31:34.557 THAT SCIENTIFIC PROOF TO VALIDATE IT. IT TENDS TO DISPROFIT. 997 01:31:34.557 --> 01:31:38.462 JUSTICE PATTERSON: TO VALIDATE WHAT. POSITION IS NOT THAT SHAKING CANNOT CAUSE 998 01:31:38.462 --> 01:31:44.034 THESE INJURIES IS WHAT YOU SAID BUT THAT THERE IS NOT SUFFICIENT CONSENSUS 999 01:31:44.034 --> 01:31:49.519 TO PROVE IT. TO PROVE WHAT. MR. MASON: CAN CAUSE THE INJURIES. 1000 01:31:49.519 --> 01:31:52.519 JUSTICE PATTERSON: THEIR POSITION IS NOT THAT SHAKING CAN 1001 01:31:52.519 --> 01:31:56.533 CAUSE THE INJURIES BUT NOT CON SENTENCES. MR. MASON: NOT 1002 01:31:56.533 --> 01:32:01.143 THAT THERE IS A CON SENTENCES. THEORY HAS NOT BEEN PROVEN /PWAOU BIOMECHANIC 1003 01:32:01.143 --> 01:32:06.319 RESEARCH. THAT IS WHY CONTINUE TO SEE BIOMECHANIC RESEARCH. THAT IS WHAT THIS 1004 01:32:06.319 --> 01:32:10.120 IS P. JUSTICE PATTERSON: LET ME ASK YOU QUESTION. LET ME 1005 01:32:10.120 --> 01:32:14.289 JUST ASK ONE QUESTION. WHEN WE SEE MEDICAL SOCIETIES IN ALL DIFFERENT CONTEXT 1006 01:32:14.289 --> 01:32:21.465 DEVELOP CONSENSUS DOCUMENT USUALLY A VERY SPECIFIC CAREFUL PROCESS IN WHICH 1007 01:32:21.465 --> 01:32:26.118 DID I SENTING VIEWS ARE CONSIDERED AND WE'VE SEEN THESE DOCUMENTS HAVE MANY YOU 1008 01:32:26.118 --> 01:32:31.766 KNOW SORT OF BULLET POINT AN SUB BULLET POINTS AND THEY ARE DEVELOPED OVER A POP 1009 01:32:31.766 --> 01:32:36.842 AND THERE IS A REALLY AS UNDERSTAND AS A RIDER OF THESE OVER THE YEARS RIGOROUS 1010 01:32:36.842 --> 01:32:44.608 PROCESS TO GET THERE. DO BIOMECHANICAL ENGINEER I APOLOGIZE IF I AM 1011 01:32:44.608 --> 01:32:49.337 MISCHARACTERIZING WHAT THEY CALLED UNDER TAKE SOMETHING SIMILAR TO THAT. 1012 01:32:49.337 --> 01:32:52.590 MR. MASON: I AM NOT AWARE OF WHETHER THEY ISSUE CONSENSUS STATEMENTS IN 1013 01:32:52.590 --> 01:32:57.272 GENERAL ON THESE TYPES OF ISSUES. JUSTICE PIERRE LOUIS: THAT IS 1014 01:32:57.272 --> 01:33:01.960 MY QUESTION. WE ARE ALL FAMILIAR WITH THE GENERAL MEDICAL SOCIETIES AMERICAN 1015 01:33:01.960 --> 01:33:06.763 ACADEMY OF PEDIATRICIANS AND THE OP THAT WILLING SOCIETY, YOU KNOW, ARE THERE 1016 01:33:06.763 --> 01:33:11.017 BIOMECHANICAL ENGINEER SOCIETIES. MEAN DO THEY EXIST. I HAVE NO IDEA. 1017 01:33:11.017 --> 01:33:16.336 I DON'T KNOW IF YOU KNOW. I DON'T KNOW IF THERE IS A BIG TONS OF GROUPS ACROSS 1018 01:33:16.336 --> 01:33:23.579 THE /SUPBTTORY ACROSS THE WORLD WITH BIOMECHANICAL ENGINEERS COMING TOGETHER. 1019 01:33:23.579 --> 01:33:26.908 MR. MASON: DON'T THINK THE SAME AS THE MEDICAL COMMUNITY. 1020 01:33:26.908 --> 01:33:31.446 WHAT IS MORE IMPORTANT AND. JUSTICE WAINER APTER: YOU DON'T KNOW 1021 01:33:31.446 --> 01:33:36.517 OR THERE ARE NOT. MR. MASON: I CAN THINK OF THE NAME OF THE 1022 01:33:36.517 --> 01:33:41.112 TOP OF MY HEAD. THINK ONE ORGANIZATION BUT DON'T KNOW IF THEY ISSUE CONSENSUS 1023 01:33:41.112 --> 01:33:48.240 STATEMENT OR ANYTHING ALONG THE LINES OF AMERICAN ACADEMY OF PEDIATRICIANS. 1024 01:33:48.240 --> 01:33:51.636 JUSTICE WAINER APTER: SO THEN HOW DO WE KNOW IF WE LOOKING AT WHAT THE 1025 01:33:51.636 --> 01:33:58.020 BIOMECHANICAL ENGINEER COMMUNITY THINKS OR JUST WHAT FEW PEOPLE HAVE PUBLISHED 1026 01:33:58.020 --> 01:34:02.924 WHO HAPPEN TO BE ENGINEERS. WHEN TALKING ABOUT GENERAL CONSENSUS DOSAGE 1027 01:34:02.924 --> 01:34:10.755 MY LOTS AND LOTS OF PEOPLE AGREE. HOW DO WE KNOW THAT /HROGTS AN LOTS BIOMECHANIC 1028 01:34:10.755 --> 01:34:17.114 ENGINEER AGREE WITH AND THAT SOME PEOPLE TESTIFIED ABOUT AND OTHER PEOPLE 1029 01:34:17.114 --> 01:34:21.371 HAVE WRITTEN ARTICLES ABOUT. MR. MASON: NO DISPUTE THROUGHOUT THE 1030 01:34:21.371 --> 01:34:29.600 MEETINGS. THAT IS THROUGH DR. MEDINA TESTIMONY THAT THERE IS NO CONSENSUS. 1031 01:34:29.600 --> 01:34:34.037 JUSTICE PATTERSON: SO DOWN JUST A ABOUT. MR. MASON: 1032 01:34:34.037 --> 01:34:39.514 DOCTOR VAN E TESTIFIED NO CONSENSUS ABOUT THIS ABOUT THE SHAKING BEING VALID. 1033 01:34:39.514 --> 01:34:45.686 SO NO DISPUTE THAT NOT BEEN VALIDATE THE BY MECHANICALLY. DOCTOR VAN E 1034 01:34:45.686 --> 01:34:51.724 TESTIFIED. VAN E TESTIFIED ABOUT THAT. THINK THEY CONCEDED AS MUCH TODAY. I 1035 01:34:51.724 --> 01:34:56.719 DON'T THINK THAT WE NEED A CONSENSUS STATEMENT BECAUSE NO DISPUTE THAT 1036 01:34:56.719 --> 01:35:02.208 THERE IS NO PROOF BIO MECHANICALLY THAT THIS ACTUALLY HAPPENS AND THAT IS THROUGH 1037 01:35:02.208 --> 01:35:08.681 REPEATED TESTING THROUGH ALL DIFFERENT FORMS. NOT ONLY BY BIOMECHANICAL ENGINEER 1038 01:35:08.681 --> 01:35:15.149 AN PEOPLE WHO WORKED WITH THE AMERICAN ACADEMY OF PEDIATRICIANS BEFORE. 1039 01:35:15.149 --> 01:35:22.408 THESE ARE PEOPLE TO SETOUT TO PROVE THAT WEEKLE TO PROVE THAT /SEURBG LATER PROBLEM. 1040 01:35:22.408 --> 01:35:28.954 AGAIN AND AGAIN THEY DO NOT FIND IT PRODUCED SUFFICIENT FORCE. THEY USE 1041 01:35:28.954 --> 01:35:36.211 MODELS USING VERY YOUNG CHILDREN. IN SOME STUDIES THEY TRAIN PARTS PAINTS ON WITH A 1042 01:35:36.211 --> 01:35:40.278 TO CREATE FORCE. JUSTICE WAINER APTER: BUT ARE TALKING A 1043 01:35:40.278 --> 01:35:48.302 MODEL BUILT THAT IS SUPPOSED TO SIMULATE A INFANTS BRAIN AN EFFECT CORRECT. 1044 01:35:48.302 --> 01:35:53.238 MR. MASON: SOME STUDIES. ALSO ANIMAL STUDIES LAMPS AN PIGLETS 1045 01:35:53.238 --> 01:36:00.590 AND THOSE ARE DAYS OLD ANIMALS. AT LEAST IN ONE CASE THE FINNY STUDY WITH TWO 1046 01:36:00.590 --> 01:36:06.007 ACTUALLY DYING AS A RESULT AN DON'T DETECT THE TRIAD IN THOSE CASES. ALSO 1047 01:36:06.007 --> 01:36:10.956 COMPARING THE LEVEL OF FORCE. DOCTOR VAN E TESTIFIED ABOUT THIS. LOOKING MODELS 1048 01:36:10.956 --> 01:36:17.411 DON'T PRODUCE ENOUGH FORCE AND ALSO THE NOTE WHEN THEY ALLOWED FOREHEAD 1049 01:36:17.411 --> 01:36:24.589 CHEST AN BACK. SO GENERALLY AND COURTY STUDIES WHICH DOCTOR MEDICINE RELIED UPON 1050 01:36:24.589 --> 01:36:31.029 DIDN'T PRODUCE ENOUGH FORCE. WOLF SON STUDY DIDN'T PRODUCE ENOUGH STORES. 1051 01:36:31.029 --> 01:36:40.161 ENOUGH FOR CONCUSSION BUT NOT THE TRIAD. SO EVEN WITH SMALL MODELS REPLICATING 1052 01:36:40.161 --> 01:36:46.274 SMALL CHILDREN. EVEN WITH HEAD TO BODY IMPACT. EVEN WITH SOFT SURFACE WITH PRAYING 1053 01:36:46.274 --> 01:36:52.070 AND DUE HARM ADDRESSES THEY REPEATED FAILED TO VEIL DATE THAT. AND DOCTOR 1054 01:36:52.070 --> 01:36:58.174 VAN /AOE TEST ABOUT THE LEVEL OF FORCE PRODUCED BY SHAKING WITH THAT BRUISED BY 1055 01:36:58.174 --> 01:37:03.624 OTHER EVIDENCE THAT DO RESULT IN THE TRIAD AN FELL BELOW THOSE LEVELS TOO. 1056 01:37:03.624 --> 01:37:08.905 THAT DRESS HE IS THE PROBLEM WITH SCALING MODELS WHERE DOING COMPARISON THAT DOESN'T 1057 01:37:08.905 --> 01:37:15.463 WORK. ANIMAL STUDIES POINT TO FINNY REVIEW FROM 2022 I BELIEVE CITED IN 1058 01:37:15.463 --> 01:37:21.497 ONE THE LATER BRIEFS I AM NOT SURE APPENDED BUT PAGE 2319 YOU SAY QUOTE NO ANIMAL 1059 01:37:21.497 --> 01:37:28.107 MODEL HAS BEEN ABLE TO REBY PRODUCE THE TRIAD. THESE ARE THE TYPES OF STUDIES 1060 01:37:28.107 --> 01:37:34.819 THAT HAVE BEEN ACCEPTED IN MANY OTHER FACETS OF LIFE. MICHIGAN SUPREME 1061 01:37:34.819 --> 01:37:41.604 COURT TALK ABOUT THIS. WE RELY ON THIS RESEARCH FOR CAR SEATS AND SEATBELTS TO 1062 01:37:41.604 --> 01:37:48.339 MAKE SURE CARS ARE SAFE MILITARY PERSONNEL ARE SAFE. PROFESSIONAL SPORTS 1063 01:37:48.339 --> 01:37:55.611 THESE ARE WHAT WE RELY ON THAT NO ONE /SPUGTS ALL PARTS OF LIFE. SUDDENLY WHEN 1064 01:37:55.611 --> 01:38:00.912 THEY TRY TO PROVE THIS THEORY THE STATE TRIES TO EXCLUDE IT. 1065 01:38:00.912 --> 01:38:05.013 CHIEF JUSTICE RABNER: WE DON'T AGAIN AN ENDS WITH THE CONSENSUS STATEMENT. WE NEED 1066 01:38:05.013 --> 01:38:10.681 TO LOOK UNDERLYING SIGNS TAN TO LOOK AT WHETHER IT HAS EVOLVED AS OF THE 1067 01:38:10.681 --> 01:38:16.054 TIME OF THIS STUDY AS THE COURT DID IN JLG. MR. MASON: MAKE SURE 1068 01:38:16.054 --> 01:38:23.845 SIGNS IS BACK IS IT UP AND HAVE DATA ON IT. BUT WHEN YOU LOOK AT BIOLOGICAL 1069 01:38:23.845 --> 01:38:28.204 RESEARCH I THINK CLEAR NEVER BEEN A DISPUTE IN THIS CASE. THERE IS NO DISPUTE NOW 1070 01:38:28.204 --> 01:38:35.844 THAT HAS NOT BEEN PROVEN BIOMECHANICLY. WHEN YOU LOOK AT THIS RESEARCH OVER 1071 01:38:35.844 --> 01:38:41.753 DECADES PEOPLE CANNOT PRODUCE IT BUT SEE OTHER INJURIES LIKE NECK INJURIES NOT 1072 01:38:41.753 --> 01:38:47.675 SIMILAR CALENDAR OF SBS/AHT DIAGNOSIS AND NOT PRESENT HERE. BIOMECHANICS IS 1073 01:38:47.675 --> 01:38:55.582 IMPORTANT. NEEDS TO BE CONSIDERED WHICH IS BASED ON FACT THAT SBS/AHT IS ON 1074 01:38:55.582 --> 01:39:00.051 BIOMECHANICS AND FACE LAW. WANT TO TOUCH ON THAT QUICKLY. THE APPELATE DIVISION 1075 01:39:00.051 --> 01:39:07.068 IN PICKET MADE CLEAR SCIENTIFIC COMMUNITIES AND APPLIED THAT IN THIS 1076 01:39:07.068 --> 01:39:13.179 CASE. CONSIDER SUIT ER SOFTWARE COMPUTER SCIENCE A DNA OTHERWISE /SHRAEUL DAYS 1077 01:39:13.179 --> 01:39:19.344 WOULD BE TOO NARROW. OLENOWSKI BEFORE BALANCE BETTER CASE NOTED TWO 1078 01:39:19.344 --> 01:39:24.468 SCIENTIFIC COMMUNITIES IN THAT CASE MEDICINE AN TOXICOLOGY. /TPRAO*EU ITSELF GOING 1079 01:39:24.468 --> 01:39:30.397 BACK TO THE 19 /#20S TALKS ABOUT PSYCHOLOGY AN FIST /OLGS IN THIS CASE. THIS 1080 01:39:30.397 --> 01:39:34.467 IS NOT UNUSUAL THAT WE HAVE TO CONSIDER MULTIPLE SCIENTIFIC COMMUNITIES AND 1081 01:39:34.467 --> 01:39:39.373 NOT TO SAY THAT THERE IS ALWAYS GOING TO BE A BUNCH OF COMMUNITY AN RULE IT OUT 1082 01:39:39.373 --> 01:39:44.126 BASED ON WHAT ONE SMALL GROUP MIGHT SAY. JUSTICE PATTERSON: 1083 01:39:44.126 --> 01:39:49.864 I CAN SPEAK TO FRIDAY IT WAS BEFORE MY TIME. NOT MUCH BUT IT IS. BUT OLENOWSKI 1084 01:39:49.864 --> 01:39:54.690 DID INVOLVE ORGANIZATIONS TAKING POSITION DID IT NOT. MR. MASON: 1085 01:39:54.690 --> 01:39:59.472 IT DID BUT ALSO INVOLVED EXAMINING THE ACTUAL RESEARCH. JUSTICE 1086 01:39:59.472 --> 01:40:03.580 PATTERSON: RIGHT. BUT WHEN YOU TALKED ABOUT MEDICAL COMMUNITIES IN OLENOWSKI THERE 1087 01:40:03.580 --> 01:40:10.055 WERE STATEMENTS OR POSITIONS TAKEN BY THE ORGANIZATIONS OF THE TWO DISCIPLINES 1088 01:40:10.055 --> 01:40:15.533 THAT WERE INVOLVED, CORRECT. MR. MASON: THAT IS MY MEMORY AS WELL. 1089 01:40:15.533 --> 01:40:20.614 BUT STILL /AUB BACKING IT UP MAKE SURE SUPPORTED BY THINGS. THAT PROCEDURAL 1090 01:40:20.614 --> 01:40:24.915 HISTORY COMPLICATED BECAUSE CAME A DAL BETTER CASE BECAUSE CONSISTENT WITH ALL 1091 01:40:24.915 --> 01:40:29.592 OF THESE OTHER OPINIONS P HARVEY, CONTACTS DID I. TALKING ABOUT THE SCIENTIFIC 1092 01:40:29.592 --> 01:40:37.759 RESEARCH. ONLY MENTION OLENOWSKI IN THAT INSIDE TO SEW THAT NOT -- CONSIDERING 1093 01:40:37.759 --> 01:40:42.930 HOW MUCH WEIGHT TO GIVE THEM AND WHETHER IT BE DISPOSITIVE REY DEPENDS ON HOW 1094 01:40:42.930 --> 01:40:47.926 SIGNIFICANT THAT COMMUNITY IS AND HOW RELIABLE THEIR RESEARCH IS IN THAT FIELD. 1095 01:40:47.926 --> 01:40:52.682 JUSTICE WAINER APTER: SO IF THE RESEARCH IS SO CLEAR FROM 1096 01:40:52.682 --> 01:40:58.801 BIOMECHANIC ENGINEERS WHY IS THIS DIAGNOSIS ACCEPTED SO BROADLY IN THE MEDICAL 1097 01:40:58.801 --> 01:41:04.218 COMMUNITY. WE DON'T ONLY HAVE AMERICAN ACADEMY OF PEDIATRICIANS AND CD 1098 01:41:04.218 --> 01:41:10.008 C NEUROSURGEONS, RADIOLOGIST, NEURORADIOLOGIST. WHY ARE THEY ACCEPTING SOMETHING 1099 01:41:10.008 --> 01:41:14.239 THAT YOU SAY IS SO CLEARLY NOT SCIENTIFIC. MR. MASON: PART 1100 01:41:14.239 --> 01:41:20.883 OF ITS IS CONCLUSION 2010 SBS/AHT. ULTIMATELY WHEN YOU LOOK AT BRIEFS ABSENT 1101 01:41:20.883 --> 01:41:24.823 ARTICLES OBVIOUSLY KEEP ON EXPECTING TO SEE SOMETHING THAT I DIDN'T EXPECT 1102 01:41:24.823 --> 01:41:30.425 TO BACK IT UP. WHAT COMES DOWN TO IS CONFESSION STUDIES AND IDEA THAT WE ARE NOT 1103 01:41:30.425 --> 01:41:36.355 GOING TO FOCUS ON BY MECHANICS. LAST THING I WANT TO SAY BEFORE TURNING 1104 01:41:36.355 --> 01:41:41.292 TO THE MEDICAL RESEARCH IS JUST THE IMPORTANCE OF CONSIDERING IT PURSUANT TO CRE 1105 01:41:41.292 --> 01:41:47.622 AND AAND MAKING SURE THIS IS RELIABLE DIFFERENTIAL DIAGNOSIS. CASE LAW IS 1106 01:41:47.622 --> 01:41:52.365 CLEAR TO HAVE A RELIABLE DIFFERENTIAL DIAGNOSIS YOU HAVE TO RULE IN ALL POSSIBLE 1107 01:41:52.365 --> 01:41:57.425 CAUSES. APPLYING THE SCIENTIFIC METHOD. MAKE SURE IT CAN CAUSE IT. THE FACT 1108 01:41:57.425 --> 01:42:02.302 THAT DOCTOR MIGHT BE CONDUCT A /TK-FGS IS GREAT. YOU NEED TO DO THAT. 1109 01:42:02.302 --> 01:42:08.553 IT IS MEANINGLESS IF THEY RULE IN SOMETHING TO CAUSE IT. OTHERWISE YOU ARE IN 1110 01:42:08.553 --> 01:42:15.124 A SITUATION WHERE THEY SAY WELL, I RULED EVERYTHING OUT AND MAYBE IT'S ABUSE, 1111 01:42:15.124 --> 01:42:21.215 YOU KNOW OBVIOUSLY EXTREME EXAM. MAYBE TELL KIN EASE CYST. WE DON'T KNOW. 1112 01:42:21.215 --> 01:42:27.371 YOU CAN'T COME UP WITH HYPOTHESIS BECAUSE RULED OTHER THINGS OUT OTHER UNRELIABLE. 1113 01:42:27.371 --> 01:42:33.043 WE ARE CHALLENGING THE RELIABILITY BUT IT IS TRICKY THING BECAUSE PROCESS 1114 01:42:33.043 --> 01:42:38.237 OF ELIMINATION. I THINK FOR THAT TO BE RELIABLE YOU NEED TO BE SURE WHAT YOU ARE 1115 01:42:38.237 --> 01:42:42.419 RULING IN CAN ACTUALLY CAUSE IT WHEN /TWAUBGING ABOUT A CASE WHEN SOMEONE 1116 01:42:42.419 --> 01:42:49.091 IS PROSECUTED OR CHILDREN TAKEN FROM THEM H DON'T HAVE A CONFIRMATORY TEST. CASE 1117 01:42:49.091 --> 01:42:54.176 LAW MAKES THAT CLEAR AND WHY WE NEED TO CONSIDER BIOMECHANICAL ENGINEERS 1118 01:42:54.176 --> 01:43:02.143 AND WHY UNDISPUTED REQUIRES EXCLUSION OF THE TESTIMONY. UNLESS YOUR HONOR'S HAVE 1119 01:43:02.143 --> 01:43:07.253 ADDITIONAL ABOUT THE BIOMECHANIC RESEARCH I WAS GOING TO TURN TO THE MEDICAL 1120 01:43:07.253 --> 01:43:11.988 RESEARCH. CHIEF JUSTICE RABNER: GO-GO ON. MR. 1121 01:43:11.988 --> 01:43:16.268 MASON: YOUR HONOR WAS ASKING WHY IS IS THIS ACCEPT MEDICALLY. THINK IT DOES COME 1122 01:43:16.268 --> 01:43:20.503 DOWN TO THE CONFESSION STUDIES. PRIOR STUDIES WERE AFFECTED BY /SEURBG 1123 01:43:20.503 --> 01:43:25.311 /HRART. AS ATTORNEY GENERAL RECOGNIZED THEIR BRIEF AND THINK TODAY THERE IS NOT 1124 01:43:25.311 --> 01:43:31.371 A CLEAR IDEA OF WHAT CAN ACCIDENTALLY /PW-LLY CAUSE THESE INJURIES ASSUMING 1125 01:43:31.371 --> 01:43:38.662 THAT SHAKING CAN. AND BRIDGING VEIN RUPTURE BUT THOSE. CHIEF JUSTICE 1126 01:43:38.662 --> 01:43:45.099 RABNER: AGREED SLOW DOWN JUST A TAD AN SPEAK LOUDER. MR. MASON: 1127 01:43:45.099 --> 01:43:51.718 SORRY. JUSTICE PATTERSON: NAS NOT A CONSENSUS. MR. 1128 01:43:51.718 --> 01:43:56.049 MASON: WILL SEE IF I COULD PREVENT THAT. MR. MASON: DOCTOR 1129 01:43:56.049 --> 01:44:04.306 PUT FORWARD /THAOER TO CAUSE SEVERE HEMORRHAGES THAT BRIDGING BEING RUPTURED 1130 01:44:04.306 --> 01:44:11.508 THEORY WHERE HE SAYS WE ASSUME THAT CHILD HAVE BEE SIGN OF SUBARACHNOID SPACE 1131 01:44:11.508 --> 01:44:18.925 ARE LIKE TO TO GET SUB ARACK THAT I HAD HEMS THAT ALSO HAS NOT BE VALIDATED. EVEN 1132 01:44:18.925 --> 01:44:26.113 CONSENSUS UNDERLYING HYPOTHESIS OF DECEMBER RESULTING IN SUBDURAL 1133 01:44:26.113 --> 01:44:32.669 HEMATOMA. WE DON'T KNOW HOW SHAKING CAN CAUSE THESE /PW-LLY BUT THE BIGGER PROBLEM IS 1134 01:44:32.669 --> 01:44:38.982 STATE HASN'T BEEN ABLE TO SHOW CONSISTENCY WHAT THEY ARGUE IN PROVEN CASES 1135 01:44:38.982 --> 01:44:44.902 OF SHAKING AN DISPLAY OF SYMPTOMS THAT ARE SUPPOSED TO BE SO PREVALENT THAT YOU 1136 01:44:44.902 --> 01:44:48.345 CAN MAKE THIS DIAGNOSIS. JUSTICE PATTERSON: YOU APPROPRIATE 1137 01:44:48.345 --> 01:44:54.774 LY FOCUSED ON YOUR CLIENTS CASE AS DID YOUR COLLEAGUE. IT STRUCK ME IN READING 1138 01:44:54.774 --> 01:44:59.207 THIS AND NUMBER OF REFERENCES TO FLUID COLLECTION BEING SOMETHING THAT OCCURRED 1139 01:44:59.207 --> 01:45:05.184 IN PREMATURE INFANTS MORE FREQUENTLY THAN IN FULL TERM INFANTS. DENYNEX 1140 01:45:05.184 --> 01:45:14.121 EXTERNAL HYDRO SELF LOUSE DID IT OWE. STRUCK ME IN READING THIS THE FACT THAT 1141 01:45:14.121 --> 01:45:22.438 WE HAVE TWO PREMATURE INFANTS AT ISSUE HERE SOMEWHAT THE NARROW INJURY OF 1142 01:45:22.438 --> 01:45:27.092 TRIAL COURTS IN /SEBS THAT THERE WERE FACTORS THAT WE REALLY DON'T KNOW FROM THIS 1143 01:45:27.092 --> 01:45:32.599 RECORD WHAT OTHER FACTORS MAY OR MAY NOT EXIST WITH FULL TERM I KNOW /TPAPBTSZ. 1144 01:45:32.599 --> 01:45:39.149 SEE WHAT I'M SAYING AND WONDERING IF THE DETERMINATION THE COURT TRIAL COURT MADE 1145 01:45:39.149 --> 01:45:44.212 IN FOCUSING ON ONE CASE BUT ALSO DEALING WITH TWO CASES DEALING WITH PREMATURE 1146 01:45:44.212 --> 01:45:49.812 I KNOW /TPAPBTSZ CAN BE EXTRAPOLATED TO A RULING THAT IS TESTIMONY SHOULD BE EXCLUDED 1147 01:45:49.812 --> 01:45:54.811 PERIOD IN NEW JERSEY CRIMINAL CASES. MR. MASON: SO /PRAOEPL 1148 01:45:54.811 --> 01:46:00.133 /TAOURTD IS RELEVANT AS GOES TO APPLY CHALLENGE. WE ENDED UP RAISING TWO 1149 01:46:00.133 --> 01:46:06.543 CHALLENGES. ONLY ONE DRESSED BY TRIAL COURT. FIRST ONE BEING STATE HAS PROVEN 1150 01:46:06.543 --> 01:46:12.354 THAT THIS IS SCIENTIFICLY VALID BUT SECONDS ONE BEING THAT DR. MEDINA DIDN'T 1151 01:46:12.354 --> 01:46:18.201 CONDUCT APPROPRIATE DID HAVED BECAUSE DIDN'T RULE OUT HIGH. THAT ISSUE 1152 01:46:18.201 --> 01:46:23.309 WASN'T RULED UPON THE TRIAL COURT AGREED WITH US ON FIRST POINT. IT IS RELEVANT 1153 01:46:23.309 --> 01:46:28.528 AS MID CONTEXT BUT AS TO THE LARGER QUESTION IT DOESN'T NARROW THE YOUR VERSE. 1154 01:46:28.528 --> 01:46:33.333 THE STATE HASN'T MADE THAT POSITION. DON'T THINK RESEARCH SUPPORTS THAT. 1155 01:46:33.333 --> 01:46:38.966 THE UNDERLYING QUESTION IS JUST WHETHER SHAKING CAN PRODUCE THESE INJURIES WITHOUT 1156 01:46:38.966 --> 01:46:44.077 SIGNS OF IMPACT AND WITHOUT /KRAEUSING OTHER INJURIES AND THAT IS WHETHER 1157 01:46:44.077 --> 01:46:50.179 THE CHILD I PREMATURE OR NOT. ULTIMATELY WHAT THE STATE RELIED UPON DR. MEDINA 1158 01:46:50.179 --> 01:46:56.765 PUT TESTIFIY EMPHASIS ON THIS. ARE THERE THESE CONFESSION STUDIES. THERE ARE 1159 01:46:56.765 --> 01:47:01.853 NUMEROUS PROBLEMS WITH THOSE. AT THE OUTSET THEY ARE NOT SCIENTIFIC EVIDENCE WHICH 1160 01:47:01.853 --> 01:47:08.088 AUTHORS OF THOSE STUDIES RECOGNIZE. THEY ARE SUBJECT TO MULTIPLE POSSIBLE 1161 01:47:08.088 --> 01:47:13.590 COMPANY HE IS /SEUF EFFECTS. THERE IS A.M. 'CUZ ABRIEF THAT DRESS HE IS THAT BUT 1162 01:47:13.590 --> 01:47:19.108 TALKING CAREGIVERS IN A HOSPITAL TALKING SICK OR DECEASED CHILD TRYING TO 1163 01:47:19.108 --> 01:47:27.452 QUESTION TRYING TO THINK WHAT COULD HAVE CAUSED THIS. AND ALSO HAS THE ISSUE THAT 1164 01:47:27.452 --> 01:47:34.217 THERE IS STILL ISSUE OF BIAS AN CONFIRMATION BIAS AN /SEURBG LATER 1165 01:47:34.217 --> 01:47:39.659 WHICH IS SEEK NICED AN SBU REPORT NOTES. BECAUSE BASICALLY YOU HAVE THESE CASES 1166 01:47:39.659 --> 01:47:45.184 WHERE CONFESSION EXTENT CONFESSION IS GIVEN IS RESULTING FROM THIS DIAGNOSIS 1167 01:47:45.184 --> 01:47:51.273 BEING GIVEN. SO AS A CARE GIVER OR SOMEBODY LIKE THAT SOMEBODY BEING TOLD THIS 1168 01:47:51.273 --> 01:47:56.847 CHILD WAS SHAKEN WHO SHOOK THE CHILD AND WHAT HAPPENED TOOTH CHILD YOU HAVE THE 1169 01:47:56.847 --> 01:48:02.088 RISK OF SIR LATER. ON TOP OF THAT LACK OF DETAIL IN THESE CASES. IN THESE 1170 01:48:02.088 --> 01:48:07.542 CASES NO IDEA WHAT HAPPENED OTHER THAN ALLEGE MECHANISM OF /PWAOUS. MAKES IT IMPACT 1171 01:48:07.542 --> 01:48:12.599 TO ASSESS THE RELIABILITY OF WHAT WAS SAID. WHAT WAS TOLD TO THE PERSON 1172 01:48:12.599 --> 01:48:19.036 BEFOREHAND. WHAT DID THEY ACTUALLY SAY, DID THEY PREVIOUSLY DENY THAT. SO WE 1173 01:48:19.036 --> 01:48:25.750 NEED THAT INFORMATION AND NEED THE INFORMATION TO ACCEPT THE SUBJECTIVE 1174 01:48:25.750 --> 01:48:30.374 ASSESSMENT. THE GENTLEMAN /KOEBY OPINION WHICH IS UNPUBLIC OPINION FROM TRIAL COURT 1175 01:48:30.374 --> 01:48:47.860 JUDGE MA MA'AM HEED OUT THE PASSAIC COUNTY BUT REALLY IMPORTANT -- /-PLTD AND 1176 01:48:47.860 --> 01:48:52.491 THEY CLASSIFIED THAT AS A CONFESSION AND ONLY REASON THAT WAS REJECTED BECAUSE IT 1177 01:48:52.491 --> 01:48:58.704 WENT TO TRIAL AN JUDGE MO HAM MEDICINE IN BENCH TRIAL REJECTED IT. THAT SIGNIFIES 1178 01:48:58.704 --> 01:49:04.560 INHERENT RELIABILITY ON THESE CASES AND REALLY ONLY TALKING SMALL UNIVERSE 1179 01:49:04.560 --> 01:49:10.254 TO BEGIN WITH. TALKING 200 CASES WITH ALL STUDIES COMBINED. THOSE ARE THRESHOLD 1180 01:49:10.254 --> 01:49:16.473 ISSUES. ANY STUDY YOU HAVE ON THIS IS ISSUE RELIABILITY AND UNRELIABILITY 1181 01:49:16.473 --> 01:49:23.324 ON CONDITIONS. CONFESSION ON ITS OWN IS NOT ENOUGH FOR CONVICTION. 1182 01:49:23.324 --> 01:49:27.377 JUSTICE WAINER APTER: HAS THERE EVER BEEN ANY COURT THAT HAS SAID NOT ONLY IS 1183 01:49:27.377 --> 01:49:32.579 THERE DISAGREEMENT AMONG A SMALL LIGHT OF THE MEDICAL COMMUNITY OR NOT ONLY DO 1184 01:49:32.579 --> 01:49:39.226 THESE STUDIES HAVE VARIOUS DEFECTS BUT THE STATE CANNOT INTRODUCE EVIDENCE OF AHT 1185 01:49:39.226 --> 01:49:48.820 OR SBS AS A SUBSECTION. MR. MASON: THE OWN COURTS I AM AWARE OF 1186 01:49:48.820 --> 01:49:55.735 HAVE HE CANS FLUIDED IT THAT HELD /TPRAO*EU HEARING THIS CASE AND THE 1187 01:49:55.735 --> 01:50:03.160 ONE IN PASSAIC. THE OTHERS ARE TALKING EX PARTE WORK. THOSE CASES ARE PROCEDURALLY 1188 01:50:03.160 --> 01:50:10.589 DIFFERENT. I DON'T THINK WOULD HAVE MADE SENSE TO EXCLUDE IT. 1189 01:50:10.589 --> 01:50:14.727 JUSTICE WAINER APTER: IN THE TEXAS COURT THE CRIMINAL APPEARS THEY VACATED CONVICTION 1190 01:50:14.727 --> 01:50:18.831 AND COULD HAVE JUST SAID THAT'S IT. THERE IS NO EVIDENCE OF THIS ABSENT 1191 01:50:18.831 --> 01:50:24.080 THEREFORE CONVICTION IS VACATED MUCH INSTEAD THEY SAID ALL THIS GATE SO VACATING 1192 01:50:24.080 --> 01:50:30.398 CONVICTION AND NOW BE ABLE TO GET A TRIAL WHEREVER ONE DECIDES AND THE INJURY 1193 01:50:30.398 --> 01:50:33.992 JURY DECIDES WHAT IT IS GOING TO BELIEVE. MR. MASON: DON'T 1194 01:50:33.992 --> 01:50:38.813 THINK IT WAS ASKED TO EXCLUDE IT. I CAN SAY FOR SURE. I HAVEN'T TALK TO THE 1195 01:50:38.813 --> 01:50:41.961 ATTORNEY THAT LITIGATED IT. PROCEDURALLY THAT WASN'T BEFORE THE COURT. 1196 01:50:41.961 --> 01:50:48.340 THINK THEY WENT FAIR ENOUGH TO SAY THIS HAS /-PBTD BEEN VALIDATED. THINK CHALLENGE 1197 01:50:48.340 --> 01:50:54.970 IT. JUSTICE WAINER APTER: I STAND THERE WAS RETRIAL. WASN'T 1198 01:50:54.970 --> 01:51:00.708 THAT THIS IS NOT VALID AND THEREFORE YOUR CONVICTION IS VACATED AND THAT IS IT. 1199 01:51:00.708 --> 01:51:05.543 MR. MASON: IN ROSHING YOU MEAN. MR. MASON: 1200 01:51:05.543 --> 01:51:11.093 THAT WAS VACATED A WEEK OR TWO AGO. WOULD SAY A MOTION TO CLUDE WHERE IT WOULD BE 1201 01:51:11.093 --> 01:51:14.378 MORE PROCEDURALLY APPROPRIATE. JUSTICE HOFFMAN: STICKING 1202 01:51:14.378 --> 01:51:21.396 TO THE FRY -- STICKING TO TRY AND WHAT HAPPENS IN DOCTOR MONTH HAM HE HAD 1203 01:51:21.396 --> 01:51:27.977 JUDGES MONTH HAM HE HAD ROLE, ARE YOU SAYING THAT FRY HEARING FOR THESE SPECIFIC 1204 01:51:27.977 --> 01:51:35.086 PURPOSES SHOULD INCLUDE THE QUANTUM OF CORROBORATING EVIDENCE THAT THERE IS IN 1205 01:51:35.086 --> 01:51:42.280 MAKING A DETERMINATION AS TO WHETHER THE SCIENCE IN THIS REGARD SHOULD BE 1206 01:51:42.280 --> 01:51:47.987 REASONABLY CERTAIN FOR PURPOSES OF ADMISSION AT TRIAL. MR. 1207 01:51:47.987 --> 01:51:52.174 MASON: IF I'M UNDERSTANDING -- IS YOUR QUESTION WHETHER YOU CONSIDER WHETHER THERE 1208 01:51:52.174 --> 01:51:54.593 IS CORROBORATING EVIDENCE. JUSTICE HOFFMAN: I WILL REPHRASE. 1209 01:51:54.593 --> 01:52:00.750 I WILL TRY TO REPHRASE. ARE YOU ARGUING THAT IN THIS SPECIFIC INSIDE IN 1210 01:52:00.750 --> 01:52:10.322 A FRY HEARING THAT THE DEGREE OF CERTAINTY WHETHER WE CONSIDER THE DIAGNOSIS TO BE 1211 01:52:10.322 --> 01:52:16.079 REASONABLY CERTAIN OR NOT SHOULD DEPEND UPON THE QUANTUM OF CORROBORATING 1212 01:52:16.079 --> 01:52:21.211 EVIDENCE. SO IF THERE IS A LOT OF CORROBORATING EVIDENCE THEN THE ANALYSIS IN 1213 01:52:21.211 --> 01:52:25.952 FRY MAYBE ONE WAY AND THE HEARING MAYBE ONE WAY. IF THERE IS NO CORROBORATING 1214 01:52:25.952 --> 01:52:32.853 EVIDENCE THEN THE ANALYSIS ON REASONABLE CERTAINTY MAYBE ANOTHER WITH A. 1215 01:52:32.853 --> 01:52:35.606 MR. MASON: THINK UNDERSTAND THE QUESTION AND MY ANSWER WOULD BE GENERALLY 1216 01:52:35.606 --> 01:52:40.872 CORROBORATING EVIDENCE WOULD BE RELATED TO WHETHER THE CASES DISMISSED OR NOT 1217 01:52:40.872 --> 01:52:44.872 RATHER THAN RELIABILITY TEST. SO A CASE WHERE THE CHILD IS SHAKEN AND IT IS 1218 01:52:44.872 --> 01:52:49.250 RECORDED THAT IS SOMETHING THAT YOU WOULD HAVE ADDITIONAL INFORMATION. THEY CAN 1219 01:52:49.250 --> 01:52:52.957 PUT THAT CASE WITHOUT THE TYPE OF DIAGNOSIS. BUT WHETHER THAT ACTUALLY 1220 01:52:52.957 --> 01:52:57.979 -- COST THAN AFFECT THE RELIABILITY OTHER THAN TO THE EXTENT WE WOULD FINALLY HAVE 1221 01:52:57.979 --> 01:53:02.256 RECORDED INSIDE WHERE THESE SYMPTOMS HAVE BEEN OBSERVED WHICH HASN'T HAPPENED 1222 01:53:02.256 --> 01:53:06.939 YET AS FAR AS I KNOW. JUSTICE WAINER APTER: DIDN'T UNDERSTAND 1223 01:53:06.939 --> 01:53:11.135 THAT. DIAGNOSIS SHAKING BEING ABLE TO CAUSE THESE INJURIES IS UNRELIABLE AND 1224 01:53:11.135 --> 01:53:17.642 CANNOT HAVE TESTIMONY ABOUT IT COURT BUT YOU COULD STILL PUT IF THERE WAS A WITNESS 1225 01:53:17.642 --> 01:53:23.790 TO SHAKING. HOW COULD THAT BE THERE WOULD BE NO CAUSATION BECAUSE NO EVIDENCE 1226 01:53:23.790 --> 01:53:29.935 THAT SHAKING COULD CAUSE THESE INJURIES BECAUSE THAT IS SCIENTIFIC INJURIES. 1227 01:53:29.935 --> 01:53:33.971 MR. MASON: SHAKING WOULD BE ABUSE AN SALT DEPENDING ON THE FACTS WITHOUT 1228 01:53:33.971 --> 01:53:36.992 THE TESTIMONY ABOUT THE CAUSATION. JUSTICE WAINER APTER: 1229 01:53:36.992 --> 01:53:41.162 YOU WOULDN'T PROOF THAT IT CAUSED ANY INJURIES. WHOLE CASES SOMEONE SAW 1230 01:53:41.162 --> 01:53:45.496 SOMEONE SHAKE THE CHILD BUT THERE WOULDN'T BE ANY TESTIMONY ABOUT WHAT THE INJURIES 1231 01:53:45.496 --> 01:53:50.773 ARE OR WHAT THE ISSUES ON /STHAEUBGING WOULD BE. MR. MASON: 1232 01:53:50.773 --> 01:53:56.255 DEPENDS ON THE INJURIES BUT CAUSE LIKE THIS STILL NOT COME IN BECAUSE OF SCIENTIFIC 1233 01:53:56.255 --> 01:54:02.096 RELIGHT. BRUISES FROM GRIT MARKS OR RADIO BRUISES ON HEAD THAT COULD ALL 1234 01:54:02.096 --> 01:54:07.386 COME N BUT TRIAD ITSELF AND DIAGNOSIS SAYING THIS CAUSED THIS IS STILL MISSING 1235 01:54:07.386 --> 01:54:12.403 THAT BODY OF RESEARCH SAYING SHAKING CAUSED THIS TRIAD OF INJURIES WITHOUT 1236 01:54:12.403 --> 01:54:18.364 ANY INJURIES THEY STILL CAN'T TESTIFY TO THAT BECAUSE THERE IS THE LACK OF SCIENTIFIC 1237 01:54:18.364 --> 01:54:23.588 BASIS TO GET THERE. JUSTICE PATTERSON: DO YOU AGREE WITH THE 1238 01:54:23.588 --> 01:54:26.922 STATEMENT THAT THERE ARE SIGNIFICANT NUMBERS IN WHICH THE QUESTION OF 1239 01:54:26.922 --> 01:54:32.743 TRAUMA CANNOT BE ANSWERED WHEN FORTUNATELY THE CHILD SURVIVES. MR. 1240 01:54:32.743 --> 01:54:36.446 MASON: I DON'T KNOW -- IN THIS PARTICULAR SITUATION I THINK WITH THIS DIAGNOSIS 1241 01:54:36.446 --> 01:54:41.098 THE STATE HAS SAID THAT THERE ARE 22 CASES THROUGHOUT THE STATE THAT IS 1242 01:54:41.098 --> 01:54:47.093 CURRENTLY PENDING SO DON'T KNOW HOW BIG OF A POOL. JUSTICE 1243 01:54:47.093 --> 01:54:51.629 PATTERSON: I AM NOT SURE THAT THE STATE WAS RELATING TO THOSE IN LITIGATION. BUT 1244 01:54:51.629 --> 01:54:56.234 CASES IN WHICH NO SIGNS OF TRAUMA ARE FOUND AND THE TESTING THAT CAN BE 1245 01:54:56.234 --> 01:55:01.436 DONE WITHOUT COMPRISING THE LIFE THE LIFE CHILD BUT WHEN CHILD -- SOMETHING ELSE 1246 01:55:01.436 --> 01:55:06.264 OCCURS OR SOMETHING -- /TKHAOEUL IS DECEASED AUTOPSIES CAN ANSWER THE QUESTION 1247 01:55:06.264 --> 01:55:13.736 OF TRAUMA IN A WAY THAT TESTING OBJECT A LIFE CHILD CANNOT. 1248 01:55:13.736 --> 01:55:22.536 MR. MASON: DEIMPACT THAT WAS NOT DEFECTED IS THAT THE QUESTION. 1249 01:55:22.536 --> 01:55:26.340 JUSTICE PATTERSON: TESTING DONE THROUGH A CHILD THAT IS LIVING. 1250 01:55:26.340 --> 01:55:29.981 MR. MASON: CAN'T UNDERSTAND WHETHER TALKING ABOUT HARD IMPACT OR SOFT IMPACT. 1251 01:55:29.981 --> 01:55:35.465 ONLY TYPE OF IMPACT THAT DR. MEDINA TALKED ABOUT I GUESS SOFT IMPACT WHICH 1252 01:55:35.465 --> 01:55:40.431 BIOMECHANIC AND MEDICAL RESEARCH DOESN'T SUPPORT. BUT IDEA BE /PWHRUBT IMPACT AN 1253 01:55:40.431 --> 01:55:48.472 DON'T DETECT IT. DOCTOR SOMETHING DID TALK ABOUT THAT IN THE SEVEN TRANSCRIPT. 1254 01:55:48.472 --> 01:55:52.445 DON'T HAVE THE DATE FOR IT. BUT NEXT LINES IN HIS TESTIMONY WHICH WERE 1255 01:55:52.445 --> 01:55:57.361 NOT INCLUDED IN THE BRIEF IS BASICALLY THIS HAPPENS LESS AN LESS AN LESS BECAUSE 1256 01:55:57.361 --> 01:56:02.386 OF ADVANCED IMAGING. ASSUMING THAT THIS DOES HAPPEN NO RESEARCH OR BODY 1257 01:56:02.386 --> 01:56:07.406 OF SCIENTIFIC RESEARCH TO SAY THAT THAT HAPPENS RESULTING IN THE TRIAD. THINK 1258 01:56:07.406 --> 01:56:15.402 THE STATES PRIMARY SOURCE THEY RELY ON IS FINNY STUDY NEITHER OF WHICH SUPPORT 1259 01:56:15.402 --> 01:56:24.820 -- DON'T HAVE ANY SUPPORTING AUTHORITY FOR IT. DIDN'T TEST THAT. 1260 01:56:24.820 --> 01:56:28.616 CHIEF JUSTICE RABNER: AT VERY OUT SAID COUNSEL FOR STATE STATED THAT THERE WERE 1261 01:56:28.616 --> 01:56:34.044 MULTIPLE STUDIES SAYING SHAKING ALOANING CAN CAUSE THESE INJURIES AND WENT 1262 01:56:34.044 --> 01:56:38.418 THROUGH THE STUDIES. CAN YOU BRIEFLY RESPOND TO THAT. MR. MASON: 1263 01:56:38.418 --> 01:56:42.072 I BELIEVE THOSE WERE CONFESSION STUDIES YOUR HONOR. THERE ARE THOSE RELIABILITY 1264 01:56:42.072 --> 01:56:48.143 ISSUES AT THE OUT SET BUT EVEN IF THEORETICALLY WE COULD HAVE A GOOD 1265 01:56:48.143 --> 01:56:54.246 RELIABLE CONFESSION STUDY. THAT IS NOT WHAT SHE IS ARE. THAT DOES NOT BUILD THE 1266 01:56:54.246 --> 01:57:01.965 CONSENSUS IN DISCLOSURE IN JLG. IN ADDITION TO THOSE DETAILS THEY FAIL TO 1267 01:57:01.965 --> 01:57:07.074 EXCLUDE CASES INVOLVING IMPACT OR OTHER INJURIES. IF FOR EXAMPLE THE 1268 01:57:07.074 --> 01:57:18.217 HYPOTHETICAL MEDICAL STUDY 571, 62 HAD SKULL FRACTURES BUT STILL LUMMED /-PD THEM 1269 01:57:18.217 --> 01:57:22.779 TOGETHER FOR THIS. FOCUSING ON SHAKING WITHOUT CERTAIN SIGNS OF JURY THAT IS 1270 01:57:22.779 --> 01:57:28.469 NOT NECESSARILY WHAT THESE STUDIES AR DRESSING. ON TOP OF THAT EMPLOYED DIFFERENT 1271 01:57:28.469 --> 01:57:39.689 METHODOLOGIES. ADAMS BOUND FOCUS ON THOSE WITH SUBDURAL HEMATOMA. AND OTHER 1272 01:57:39.689 --> 01:57:45.613 STUDIES LINE VIN /SHAPB ANAHEIM EL DON'T LOOK AT TRADITIONAL TRIAD. TALKING 1273 01:57:45.613 --> 01:57:53.497 ABOUT ONTARIO TRIAD WHICH DOESN'T LOOK ENCEPHALOPATHY BECAUSE VIN SHOP STUDY HE 1274 01:57:53.497 --> 01:58:00.904 FOUND VERY LITTLE EVIDENCE OF ENCEPHALOPATHY. THERE IS ALSO REALLY 1275 01:58:00.904 --> 01:58:04.919 HIGHLY VARIABLE RESULTS WHEN YOU LOOK AT THESE. TO THE EXTENT THAT COMPARISONS 1276 01:58:04.919 --> 01:58:11.836 DID BE DRAWN AT ALL WITH MORE SIGNIFICANT POINT TO IF I HAD LAND STUDY FROM 1277 01:58:11.836 --> 01:58:21.814 2020. JUSTICE PATTERSON: SAY IT AGAIN. THIBLIN FROM 2020 1278 01:58:21.814 --> 01:58:31.231 AN KEY PAGES I WOULD POINT TO DA65 SAND THEN 67 TO 75 AND THAT IS A HIGH QUALITY 1279 01:58:31.231 --> 01:58:36.062 STUDY IN COMPARISON TO THE OTHER ONES BECAUSE THAT IS A CASE WITH 30 1280 01:58:36.062 --> 01:58:40.597 DIFFERENCE INSTANCES OF WITNESSED OR RECORDED SHAKING ABSENT THEY ONLY LOOKED AT 1281 01:58:40.597 --> 01:58:47.856 CASES WHERE THIS WAS A SPONTANEOUS STATEMENT OF INCRIMINATING A PERSON SO DID 1282 01:58:47.856 --> 01:58:52.450 KNOW THERE WAS DIAGNOSIS AT THAT TIME TO TRY TO BREAK OUT THE /SEURBG LATER. 1283 01:58:52.450 --> 01:59:01.740 IN THAT CASE THERE WERE QUOTE NO FINDINGS SBS/AHT SBS/AHT IN THE 30 CASES INVOLVE. 1284 01:59:01.740 --> 01:59:06.847 BREAK OUT /SEURBG LATER PARENT THAT AFFECTS THESE CASES AN DIDN'T FINE 1285 01:59:06.847 --> 01:59:16.514 THOSE SYMPTOMS. JUSTICE WAINER APTER: NO /STPAOEUPBDZING OF. 1286 01:59:16.514 --> 01:59:24.106 MR. MASON: SOME OF THESE STUDIES DON'T FOCUS ON SEVERE STUDIES. 1287 01:59:24.106 --> 01:59:30.745 THIS IS BIG BODY OF CASES WHERE WE DON'T THINK THE PERSON WAS FED INFORMATION 1288 01:59:30.745 --> 01:59:34.801 BY POLICE OR MEDICAL PERSONNEL AN EVEN THOUGH THEY WITNESSED IT AN EVEN 1289 01:59:34.801 --> 01:59:38.496 THOUGH INCORPORATION HE IS OF IT BEING RECORDED. WE DON'T HAVE THESE INJURIES 1290 01:59:38.496 --> 01:59:42.706 THAT YOU WOULD EXPECT. AND ALSO CONSISTENT WITH THE FACT THAT AS 1291 01:59:42.706 --> 01:59:48.630 DOCTOR SHELL ER FINNY AND DOCTOR MEDICINE TESTIFIED AS FAR AS THEY ARE AWARE 1292 01:59:48.630 --> 01:59:52.991 THERE IS NO REPORTED INSIDE OF SHAKING THAT HAS RESULTED IN THE TRIAD. THAT IS 1293 01:59:52.991 --> 01:59:59.751 DISMIGHT THE /THABGT MULTIPLE VIDEOS OF THAT HAPPENING. SO EVEN IF WE LOOK 1294 01:59:59.751 --> 02:00:05.426 AT THESE CONFESSION STUDIES SAY MAYBE THERE IS SOMETHING THERE. OUR POSITION IS 1295 02:00:05.426 --> 02:00:09.504 NOT THIS IS TOTALLY IRRELEVANT. THIS IS PART THE SCIENTIFIC METHOD AN 1296 02:00:09.504 --> 02:00:14.741 SOMETHING TO TEST IT. HE HAVE BEEN IF WE CREDIT IT THERE IS NO CONSENSUS WHAT WE 1297 02:00:14.741 --> 02:00:22.176 ARE LOOKING FOR. JUSTICE PATTERSON: SO HOW DO YOU EXPLAIN ALL 1298 02:00:22.176 --> 02:00:27.256 OF THESE MEDICAL ORGANIZATIONS NOT OWN REPRESENTING GENERALLY BUT 1299 02:00:27.256 --> 02:00:34.023 SPECIFICALLY TELLING THIS COURT IN THEIR BRIEF THAT THERE IS CONSENSUS. ARE THEY 1300 02:00:34.023 --> 02:00:38.706 NOT UNDERSTANDING THE MEDICAL ISSUE. MR. MASON: CAN EXPLAIN 1301 02:00:38.706 --> 02:00:46.720 IT YOUR HONOR OTHER THAN I THINK THE CON SPECULATION OF SBS/AHT AND OTHER THAN 1302 02:00:46.720 --> 02:00:59.630 TRYING DISCOUNT THE BIOMECHANIC RESEARCH EVEN THOUGH REPEATED TURN TO. THAT IS 1303 02:00:59.630 --> 02:01:06.744 WHAT DR. MEDINA DID SHE CITED QUARRY AN GENERAL ANY CITED WHEN SHE WRONGLY 1304 02:01:06.744 --> 02:01:11.469 BELIEVED THEY SUPPORTED HER POSITION. I DO NOT KNOW. AN PART OF IT IS WHAT YOUR 1305 02:01:11.469 --> 02:01:16.003 HONOR INDICATED EARLIER ARE THESE CASES WHERE WE DON'T KNOW WHAT HAPPENED. THERE 1306 02:01:16.003 --> 02:01:20.860 IS UNDERSTAND ABLE URGE TO FIND OUT WHAT HAPPENED. TO GIVE THESE PARENTS 1307 02:01:20.860 --> 02:01:26.477 INFORMATION AND PROTECT CHILDREN IS. UNDERSTAND THAT IMPULSE. IN SOME CASES WE 1308 02:01:26.477 --> 02:01:32.741 JUST DON'T KNOW. THAT IS WHAT DOCTOR GULL COUCH TALK ABOUT IN 2020 ARTICLE. 1309 02:01:32.741 --> 02:01:38.264 HE DEVELOPED THIS THEORY AND AFTER 40 YEARS HE WENT BACK AND SAID THIS REMAINS 1310 02:01:38.264 --> 02:01:46.538 UNPROVING IN ORDER ROADWAY. THIS IS NOT A SCIENTIFIC FACT. AN UNCOMFORTABLE. 1311 02:01:46.538 --> 02:01:52.368 AS PART OF SCIENTIFIC METHOD YOU WANT A HYPOTHESIS. YOU SHOULD COME UP WITH A 1312 02:01:52.368 --> 02:01:58.388 HYPOTHESIS BUT THEN YOU HAVE TO TEST IT. YOU CAN'T JUST DIG IN. YOU HAVE 1313 02:01:58.388 --> 02:02:04.479 TO TAKE A STEP BACK AND SAY THIS IS NOT WHERE WE ARE YET. THIS IS NOT UNIQUE TO 1314 02:02:04.479 --> 02:02:10.966 THIS SITUATION. I INCLUDED IN A FOOTNOTE IN MY RESPONSE TO AEP BRIEF BUT PEANUT 1315 02:02:10.966 --> 02:02:18.476 ALLERGY INSIDE WHERE AMERICAN ACADEMY OF PEDIATRICIANS ADVISED PARENTS NOT TO EAT 1316 02:02:18.476 --> 02:02:24.100 PEA NETS AND NOT GIVE UNTIL THREE YEARS OLD BASED ON IDEA THAT WOULD HELP 1317 02:02:24.100 --> 02:02:29.643 THEM NOT BECOME ALLERGIC. IT WAS NOT CONSISTENT WITH BASIC I KNOW STANDING OF 1318 02:02:29.643 --> 02:02:35.176 IMMUNOLOGY AN ULTIMATELY 17 YEARS LATER THEY CHANGED COURSE AND SAID ACTUALLY WE 1319 02:02:35.176 --> 02:02:41.618 WERE WRONG. BY THAT POINT NUMBER OF PEANUT ALLERGIES INCREASED THREE 1320 02:02:41.618 --> 02:02:47.249 /#230E8D. THINK BOOK IS WORD READING IN GENERAL FROM THE DEMASK /KREU BOOK. THERE 1321 02:02:47.249 --> 02:02:50.973 ARE BEHIND /SPOTSZ WHEN IT COMES TO THIS AND THERE ARE INSTANCES WHERE THE 1322 02:02:50.973 --> 02:02:56.694 URGE TO HAVE AN ANSWER UNFORTUNATELY GETS AHEAD OF THE SCIENTIFIC EVIDENCE TO SUPPORT 1323 02:02:56.694 --> 02:03:00.473 IT. JUSTICE FASCIALE: WHAT IS YOUR RESPONSE ALTERNATIVE ARGUMENT 1324 02:03:00.473 --> 02:03:05.280 ABOUT REMANDING. MR. MASON: REMANDS IS NOT NECESSARY IN THIS CASE 1325 02:03:05.280 --> 02:03:11.771 FOR A FEW REASONS. FIRST THERE WAS ALREADY A HEARING IN THIS CASE. FIVE DAYS OF 1326 02:03:11.771 --> 02:03:17.939 TESTIMONY WITH MULTIPLE EXPERT. THOROUGH OPINIONS FROM TRIAL COURT AND APPELATE 1327 02:03:17.939 --> 02:03:20.115 DIVISION. JUSTICE PATTERSON: I THINK YOU AGREE ASPECT THE 1328 02:03:20.115 --> 02:03:25.157 TRIAL COURT'S OPINION -- TRIAL COURT IS OBVIOUSLY CRUCIAL IN WEARING THE CREDIBILITY 1329 02:03:25.157 --> 02:03:30.876 OF EXPERT THAT IS NOT -- YOU ARE NOT ADOPTING AND NOT AGREEING WITH AND THAT 1330 02:03:30.876 --> 02:03:36.291 IS THIS USE OF REASONABLE DEGREE OF MEDICAL CERTAINTY THIS OBJECTION TO THE TRIAL 1331 02:03:36.291 --> 02:03:44.961 COURT TO THAT TERMINOLOGY WHICH IS NOT ABOUT 702. MR. MASON: 1332 02:03:44.961 --> 02:03:50.215 MY ANSWER IS TWO FOLD. I DON'T THINK TRIAL COURT RELIED ON THAT. THINK THE TRIAL 1333 02:03:50.215 --> 02:03:56.424 CORD WAS RISK OF ADMITTING TESTIMONY. IF WE LET THIS IN AND HERE THIS IS 1334 02:03:56.424 --> 02:04:02.570 BASED ON MEDICAL CERTAINTY -- JUSTICE PATTERSON: THE TRIAL COURT 1335 02:04:02.570 --> 02:04:08.320 SAID, OH, OH, I AM SOR. KNOW YOU WANTED REST OF YOUR ANSWER AND DO. THE 1336 02:04:08.320 --> 02:04:12.447 PROVEN TO REASONABLE DEGREE OF MEDICAL CERTAINTY FALLS SHORT OF THE EVIDENTIARY 1337 02:04:12.447 --> 02:04:20.206 STANDARD TO DETERMINE GUILT IN A CRIMINAL TRIAL AND THE TRIAL -- I DON'T 1338 02:04:20.206 --> 02:04:25.405 WANT TO READ EIGHT WHOLE THING B RISK THAT JURORS RECEIVE -- WERE CERTAINTY WITHIN 1339 02:04:25.405 --> 02:04:29.899 THE PHRASE TO REASONABLE DEGREE OF MEDICAL CERTAINTY AN SUGGESTING HIGH 1340 02:04:29.899 --> 02:04:36.809 DEGREE OF VALUABLE AN RELIABILITY AHT AS PROVEN DIAGNOSIS. THE TRIAL COURT WAS 1341 02:04:36.809 --> 02:04:43.575 VERY FIRED UP ABOUT AN ISSUE THAT DOES NOT APPEAR TO BE RELEVANT TO THE INQUIRE. 1342 02:04:43.575 --> 02:04:46.644 MR. MASON: THAT IS A SECOND CONSIDERATION. I POINT TO PAGE 1343 02:04:46.644 --> 02:04:54.504 71 OF THE STATES APPELATE DIVISION APEN DIS. HIS REAL REASONING IS NEVER BEEN 1344 02:04:54.504 --> 02:05:00.727 -- THEORY HAS QUOTE NEVER BEEN MEDICALLY OR SCIENTIFICLY VALIDATED AS 1345 02:05:00.727 --> 02:05:05.334 DIAGNOSIS. WENT THROUGH FRY STANDARD AND TALKED ABOUT ALL THE TESTIMONY THAT WAS 1346 02:05:05.334 --> 02:05:10.334 PRESENTED. HE FOUND THAT IT WAS NOT SCIENTIFICALLY PROVEN AND THEN ALSO ADDRESSED 1347 02:05:10.334 --> 02:05:15.622 AT THE END OF RISK OF PREJUDICE WHICH I DON'T THINK IS -- WASN'T NECESSARY 1348 02:05:15.622 --> 02:05:20.380 BUT WASN'T WRONG AND NOT SOMETHING WE ARE RELYING ON. NOTHING SOMETHING THAT APPELATE 1349 02:05:20.380 --> 02:05:23.150 DIVISION RELIED ON. JUSTICE PATTERSON: YOU SAYING IT IS NOT 1350 02:05:23.150 --> 02:05:32.274 WRONG TO SAY THAT IN ENTIRE SITUATION IS INAPPROPRIATE FOR THE DOCTOR TO 1351 02:05:32.274 --> 02:05:37.381 HAVE SAID I AM TESTIFYING WITH A REASONABLE DEGREE OF MEDICAL CERTAINTY. NOT 1352 02:05:37.381 --> 02:05:40.772 A FRY ISSUE. MR. MASON: I JUST READ IT DIFFERENTLY YOUR 1353 02:05:40.772 --> 02:05:46.533 HONOR I GUESS. WOULD NOT AGREE WITH THE POSITION THAT IS I KNOW /HERPBLTLY WRONG 1354 02:05:46.533 --> 02:05:52.428 AND THAT IS A REASON TO EXCLUDE THIS. THAT IS NOT HIS OPINION THAT HE WAS 1355 02:05:52.428 --> 02:05:57.526 FOCUSING ON. DO THINK ABOUT THE OVER ALL RISK OF PREJUDICE BUT ULTIMATELY HE HEARD 1356 02:05:57.526 --> 02:06:01.838 FIVE DAYS OF TESTIMONY. HE MADE FINDINGS. HE RELIED ON DR. MEDINA. SO 1357 02:06:01.838 --> 02:06:06.184 TO THE EXTENT WE ARE WORRIED ABOUT CREDIBILITY DETERMINATIONS. HE RELIED ON WHAT 1358 02:06:06.184 --> 02:06:11.851 SHE TESTIFIED WHICH ESTABLISHED THE IMPORTANT OF BIOMECHANICS THAT EXPLAINED 1359 02:06:11.851 --> 02:06:16.586 THE PROBLEMS WITH THESE STUDIES AND WHY IT IS NOT VALIDATED. I DON'T THINK REASON 1360 02:06:16.586 --> 02:06:25.132 WITH THAT PARTICULARLY WITH A DE NOVO REVIEW IS NOT A REASON TO REVISIT. NO 1361 02:06:25.132 --> 02:06:31.454 REASON TO REMAND BASED ON OLENOWSKI AS THE COURT MADE CLEAR. THAT CASES GOING FORWARD 1362 02:06:31.454 --> 02:06:37.298 AND NOT A DIFFERENCE IN THE RELIABILITY TEST AS I DISCUSSED EARLIER. WHETHER 1363 02:06:37.298 --> 02:06:41.897 THIS IS SCIENTIFICLY RELIABLE BASED ON RESEARCH UNDER EITHER STANDARD. AN 1364 02:06:41.897 --> 02:06:46.952 WHILE THERE IS NEW RESEARCH COMING OUT ALL THE TIME THAT COST BE MEAN YOU SEND 1365 02:06:46.952 --> 02:06:52.203 THE CASE BACK OR HAVE -- THIS CASE I MENTIONED HAS BEEN GOING ON FOR EIGHT 1366 02:06:52.203 --> 02:06:56.247 YEARS AN REAL PERSON IN THE CASE. SO THERE MAYBE INSTANCES WHERE IT WOULD BE UN 1367 02:06:56.247 --> 02:07:03.523 AVAILABLE TO REMAND BUT FACT ADDITIONAL BIOMECHANICAL STUDY SAYING WE STILL 1368 02:07:03.523 --> 02:07:09.082 HAVEN'T VEIL DATED THIS BUT DO MORE RESEARCH. THAT IS NOT REASON TO REMAND IT. 1369 02:07:09.082 --> 02:07:14.053 IF THIS COURT AGREES WITH OUR POSITION THEN THE STATE IS FREE TO MOVE FOR FUTURE 1370 02:07:14.053 --> 02:07:20.109 BECAUSE BETTER HEARING IF THEY FEEL SCIENTIFIC HAS CHANGE. THAT IS WHAT 1371 02:07:20.109 --> 02:07:27.703 THE JUSTICE SAID. THERE AREN'T ANY GROUNDS CAWING BIOMECHANIC AVAILABLE YEARS 1372 02:07:27.703 --> 02:07:32.780 AGO AN TESTIMONY DOESN'T SUPPORT STATE'S POSITION IS NOT A REASON. RATHER 1373 02:07:32.780 --> 02:07:37.210 THE RECORD IN THIS CASES FULLY DEVELOPED. THE COURT HAS FIVE DAYS OF TESTIMONY. 1374 02:07:37.210 --> 02:07:42.339 CHIEF JUSTICE RABNER: WE ARE TRANSITIONS ON QUESTION THAT 1375 02:07:42.339 --> 02:07:48.164 WAS POSED. ADDITIONAL QUESTIONS. ANYTHING ELSE. MR. 1376 02:07:48.164 --> 02:07:55.393 MASON: NO, YOUR HONOR WOULD I LIKE TO NOTE RECORD IS DEVELOPED. WE HAVE MORE BRIEFS 1377 02:07:55.393 --> 02:08:00.394 THAN YOU WANT TO SEE BUT ALL OF THAT SHOWS DESPITE THE FACT THAT THIS WAS 1378 02:08:00.394 --> 02:08:05.931 DEVELOP OVER 50 YEARS AGO IT HAS NOT BEEN PROVEN. HASN'T BEEN PROVEN MEDICALLY 1379 02:08:05.931 --> 02:08:12.262 AND NOT MOTOR VEHICLE. OTHER STUDIED AGAIN AND AGAIN PROOF OF HYPOTHESIS. 1380 02:08:12.262 --> 02:08:19.641 THAT IS RECOGNIZED BY DID GUT COUCH IN 2012 AND DOCTOR MAY /KWRA WHO WAS RELIED 1381 02:08:19.641 --> 02:08:27.115 UPON FOR THIS STUDY. BOTH DOCTORED SAID WE ARE NOT THERE. ALG SHOWS THAT. 1382 02:08:27.115 --> 02:08:31.644 THERE IS NOT CONSENSUS. NO BODY OF LIT /TRAOUR TO SUPPORT THIS. NO MATTER WHAT. 1383 02:08:31.644 --> 02:08:37.453 SOME ORGANIZATIONS SAY WHEN YOU DIG DOWN WHAT THIS COURT DOES AN HAS TO DO IT 1384 02:08:37.453 --> 02:08:42.738 IS CLEAR DID NOT MEAD IT IS BURDEN TO PUT MR. NIEVES AN TAKE HIS CHILDREN 1385 02:08:42.738 --> 02:08:52.593 FROM YOU. I ASK THE YOUR HONORS TO FIRM THE RULES. CHIEF JUSTICE 1386 02:08:52.593 --> 02:08:57.957 RABNER: KNOW YOU ASKED FOR TEN MINUTES. NOT LOOKING TO HOLE YOU PRECISELY TO TEN 1387 02:08:57.957 --> 02:09:04.563 MINUTES OR CLOSE TO THAT. ANYONE NEED A BREAK. WE WILL FINISH AT 1220. 1388 02:09:04.563 --> 02:09:08.390 MR. NETTL: MAY IT PLEASE THE COURT. YES DID ASK FOR TEN 1389 02:09:08.390 --> 02:09:12.799 MINUTES. I EXPECTED ALOT OF THE GROUND THAT I COULD COVER WOULD BE COVERED BY 1390 02:09:12.799 --> 02:09:17.802 MR. MASON AND WAS PROVEN CORRECT. SO I WILL TAKE YOUR HONORS ADVISE AT THE 1391 02:09:17.802 --> 02:09:22.286 OUTSET AND TRY NOT TO OVERLAP WITH ANYTHING THAT HAS BEEN SAID ALREADY. I WILL 1392 02:09:22.286 --> 02:09:30.700 UNUSUAL POSITION HERE BECAUSE MY CLIENT MICHAEL SELFLY WAS NOT PART THE 104 PEERING 1393 02:09:30.700 --> 02:09:36.629 /*R HEARING NOT PART OF THE. WE DIDN'T CALL WITNESSES OR CROSS-EXAMINE ANY 1394 02:09:36.629 --> 02:09:43.670 WITNESSES AND THAT IS BECAUSE OF THE ODD PROCEDURAL DEVELOP. IN THE TRIAL COURT 1395 02:09:43.670 --> 02:09:48.234 WHERE THESE TWO PARALLEL CASES GOING ON AT THE SAME TIME IN THE SAME COUNTY 1396 02:09:48.234 --> 02:09:54.139 JUST DOWN THE HAUL FROM EACH OTHER. SO WE TOOK BOTH -- US AN STATE TOOK THE POSITION 1397 02:09:54.139 --> 02:09:59.394 LET'S SEE WHAT DOCTOR JIM NECESSARY DOES THIS MATTER AND GIVE US GUIDANCE 1398 02:09:59.394 --> 02:10:05.320 ON WHERE WE GOING IN THE CIFELLI MATTER. WHAT WANT TO TALK ABOUT TODAY IS TO REMIND 1399 02:10:05.320 --> 02:10:09.953 EVERYBODY AND KNOW YOU ARE AWARE ALREADY. BUT THIS IS A CRIMINAL CASE. THESE 1400 02:10:09.953 --> 02:10:18.332 ARE ALL CRIMINAL CASES TALKING ABOUT. NOT DCPP CASE. ALTHOUGH MR. CIVILLY HAD 1401 02:10:18.332 --> 02:10:24.779 A TRIAL SAYING THERE WAS NO ABUSE SO PUT THAT TO THE SIDE FOR A SECONDS. IN THAT 1402 02:10:24.779 --> 02:10:30.559 CENTS BECAUSE SUED OWE OBSERVERS IN THAT CASE MR. CIVILLY IS IN THE POSITION 1403 02:10:30.559 --> 02:10:36.844 AS OTHER PEOPLE. MR. ROW ARC IS ONE MENTIONED ALREADY. ROBERT ROVER SON IS 1404 02:10:36.844 --> 02:10:42.179 ANOTHER ONE WHO IS MENTIONED IN ONE OF MR. MASONS BRIEF. HE AS MY UNDERSTANDING 1405 02:10:42.179 --> 02:10:48.797 HE'S ON DEATH ROW IN TEXAS AN TESTIFYING BEFORE THE LEGISLATURE AS WE SPEAK 1406 02:10:48.797 --> 02:10:51.100 REQUIREMENT LIMIT. CHIEF JUSTICE RABNER: LET'S STAY TO THE 1407 02:10:51.100 --> 02:10:55.351 FACTS OF OUR CASE HERE. MR. NETTL: OF COURT YOUR HONOR. TALK ABOUT 1408 02:10:55.351 --> 02:11:00.652 MICHAEL CIFELLI FOR A SECOND. IT IS ANOTHER EXAMPLE OF SOMEONE BEING 1409 02:11:00.652 --> 02:11:07.725 ACCUSED WITH SHAKING HIS BABY WITH NO SIGNS OF EXTERNAL IMPACT. HE WAS -- TWO INSTANCES 1410 02:11:07.725 --> 02:11:15.567 ONCE DECEMBER 22, 2016, WHERE THERE WAS SOME SIGNS OF VOMITING AND A FEVER 1411 02:11:15.567 --> 02:11:24.270 WHEN HIS SON WAS SIX-WEEK OLD AN THREE WEEKS LATER ON 112018 WHERE MY CLIENT NOTICED 1412 02:11:24.270 --> 02:11:30.018 SOMETHING WRONG, TOOK A VIDEO OF IT. CALLED THE BABIES MOTHER. CALLED 1413 02:11:30.018 --> 02:11:34.675 THE PLEAD TRIGS. TOOK HIM TO THE HOSPITAL. DID EVERYTHING A CONCERN PAINT 1414 02:11:34.675 --> 02:11:40.297 WOULD DO. WHEN THEY GET THERE NO SIGN, NO FRACTURES, NO ORTHOPEDIC INJURIES. 1415 02:11:40.297 --> 02:11:48.479 NO NEXT INJURIES. NOTHING. TO SHOW ANY EXTERNAL SIGNS OF TRAUMA A HE KINDS. 1416 02:11:48.479 --> 02:11:52.819 TRY TO HELP THE DOCTORS FIGURE OUT WHAT HAPPENED. POLICE GET INVOLVED. GIVES 1417 02:11:52.819 --> 02:11:58.271 STATEMENTS ABOUT WHAT HAPPENED. NOBODY CAN FIGURE OUT WHAT HAPPENED ACCEPT A 1418 02:11:58.271 --> 02:12:05.176 SITUATION WHERE THEY DO THE DIFFERENTIAL DIAGNOSIS. DR. MEDINA RULED OUT EVERYTHING 1419 02:12:05.176 --> 02:12:11.927 ELSE THAT THEY COULD THINK OF AND LEFT WITH WAS THIS DIAGNOSIS -- I DON'T 1420 02:12:11.927 --> 02:12:18.018 NECESSARILY AGREE WITH SOME OF THE STATES /AEZ POSSESSION IN THEIR APEAK CAN A 1421 02:12:18.018 --> 02:12:22.521 THAT SAY IT IS A MEDICAL DIAGNOSIS. THAT IS A CAUTION OF CAUSATION. AND 1422 02:12:22.521 --> 02:12:28.461 SO ON THAT /-P POINT I AGREE WITH MR. MASON. THIS IS A QUESTION OF THE FOUNDATIONS 1423 02:12:28.461 --> 02:12:35.460 OF THAT OPINION. THIS IS -- YES, IT IS A MEDICAL OPINION. YES WE HAVE DOCTORS 1424 02:12:35.460 --> 02:12:41.259 WHO HAVE IT BE THEIR RESPONSIBILITY TO TREAT THESE INFANTS ON A DAILY BASIS 1425 02:12:41.259 --> 02:12:47.307 SO THEY HAVE AN INTEREST IN MAKING SURE THAT NOTHING GETS RULED OUT UNLESS IT NEEDS 1426 02:12:47.307 --> 02:12:53.648 TO BE. BUT WE ARE HEREIN CRIMINAL CASE AN TALKING ABOUT THE PRACTICAL RELIFE 1427 02:12:53.648 --> 02:12:58.418 SEQUENCE HE IS TORE THESE PARENT. PARENTS WHO HAVE DONE EVERYTHING THEY COULD 1428 02:12:58.418 --> 02:13:03.048 TO FIND OUT WHAT IS WRONG WITH BABY ONLY TO COME TO THE HOSPITAL AN TOLD 1429 02:13:03.048 --> 02:13:08.926 IT'S YOUR FAULT. SO MICHAEL CIFELLI LIKE MR. NIEVES HAS BEEN IN THIS SITUATION 1430 02:13:08.926 --> 02:13:14.611 FOR THE LAST SEVEN PLUS YEARS, ALMOST EIGHT YEARS NOW TRYING TO UNDERSTAND 1431 02:13:14.611 --> 02:13:21.291 HOW HE GOT PULLED INTO THIS COULD HAVE CONTACT HE IS BEING SCENARIO WHERES BEING 1432 02:13:21.291 --> 02:13:26.604 ASKED TO PROVE HIS INNOCENCE. THAT IS REALLY WHAT WE HAVE HERE. I'VE HEARD 1433 02:13:26.604 --> 02:13:34.114 ARGUMENT TODAY THE DEFENSE THEY CAN CALL THEIR OWN EXPERT. THEY CAN CALL THEIR 1434 02:13:34.114 --> 02:13:40.248 OWN BIOMECHANICS IN EVERY DAYS TO ARGUE TO A JURY THAT THIS IS NOT RELIABLE 1435 02:13:40.248 --> 02:13:45.524 SCIENCE. OR THE CLINICIANS AN DIAGNOSTICSES WHO ARE SAYING THAT WELL WE RELY ON 1436 02:13:45.524 --> 02:13:55.255 WHAT IS TOLD TO US TO FIGHT ANY OTHER CAUSES. THAT PUTS THE OWN US ON THE /KEFS. 1437 02:13:55.255 --> 02:14:02.538 WE ARE NOT HERE FOR THAT. THE STATE HAS BURDEN. THEIR THEORY IS NOT OWN 1438 02:14:02.538 --> 02:14:08.161 RELIABLE BUT RELIABLE ENOUGH TO PRESENT TO INJURY IN A CRIMINAL CASE TO FIND THIS 1439 02:14:08.161 --> 02:14:12.126 DEFENDANT GUILTY BEYOND A REASONABLE DOUBT /*FPLT UNDERSTAND SOME OF THE COURTS 1440 02:14:12.126 --> 02:14:17.143 QUESTION ABOUT CONFLATING STANDARDS. ABOUT REASONABLE MEDICAL CERTAINTY AN BEYOND 1441 02:14:17.143 --> 02:14:21.708 A REASONABLE DOUBT AND THE THINK THAT IS QUESTION JUDGE JIM NECESSARY WAS 1442 02:14:21.708 --> 02:14:27.627 BRINGING THAT UP JUSTICE HOFFMAN BROUGHT IT UP ZOOM OF HIS QUESTIONING WHICH IS 1443 02:14:27.627 --> 02:14:32.700 THAT IF ALL YOU HAVE WHEN YOU GO IN FRONT THE INJURY IS THAT SAME OPINION 1444 02:14:32.700 --> 02:14:38.120 THAT THIS IS WHAT WAS THE CAUSE OF THE INJURIES THAT THERE WAS SOMETHING THAT NIEVES 1445 02:14:38.120 --> 02:14:44.128 FAIR JUST DOWN BY THIS PAIR BUT NOTHING TO CORROBORATE. NO WITNESSES. 1446 02:14:44.128 --> 02:14:50.447 NO NANNY CAM VIDEO INVOLVED. WE HAVE NOTHING. THEN ALL YOU ARE LEFT WITH IS THAT 1447 02:14:50.447 --> 02:14:56.597 OPINION. SO THEN THE QUESTION -- IT'S YES WE HAVE A FRY STANDARD AN RULE 1448 02:14:56.597 --> 02:15:02.063 702 WHICH SAYS YOU HAVE TO BE REASONABLE DEGREE OF MEDICAL CERTAINTY BUT ALSO LOOK 1449 02:15:02.063 --> 02:15:07.575 AT IT IN THE CONTEXT THAT INJURIES ARE GOING TO DO WITH THAT INFORMATION. 1450 02:15:07.575 --> 02:15:10.443 JUSTICE PATTERSON: THAT IS NOT FRY RESPECTFULLY COUNSEL. THAT IS NOT 1451 02:15:10.443 --> 02:15:15.129 WHAT IT SAYS THE REASONABLE DEGREE OF MEDICAL CERTAINTY IS A SEPARATE LEVEL 1452 02:15:15.129 --> 02:15:22.761 OF CERTAINTY THAT IS ASKED OF THE DOCTOR THAT IS NOT ABOUT FRY, NOT ABOUT 702 AN IS NOT 1453 02:15:22.761 --> 02:15:29.415 PART OF THIS CASE. IT WAS NEVER CHALLENGED. MR. NETTL: 1454 02:15:29.415 --> 02:15:34.886 I AM SORRY. GOT A LIT LOGICAL CARRIED AWAY. IT IS NOT THE FRY STANDARD EVIDENTIARY 1455 02:15:34.886 --> 02:15:37.669 STANDARD. JUSTICE PATTERSON: IT IS NOT EVIDENTIARY 1456 02:15:37.669 --> 02:15:44.441 STANDARD. THE ADMISSIBILITY QUESTION IS UNDER 702 ON FRY AND YOU AND YOUR COLLEAGUE 1457 02:15:44.441 --> 02:15:49.100 ARE ABSOLUTELY RIGHT ABOUT THAT. BUT ALL I AM SAYING THIS CAME INTO PLAY IN THE 1458 02:15:49.100 --> 02:15:55.678 TRIAL COURT'S OPINION IN REALLY QUITE PROMINENT WITH A THAT I RESPECTFULLY SUGGEST 1459 02:15:55.678 --> 02:16:00.684 WAS NOT A CORRECT APPLICATION OF LAW. THAT IS ALL I AM SAYING. 1460 02:16:00.684 --> 02:16:06.552 MR. NETTL: UNDERSTOOD. UNDERSTOOD. BUT I THINK WHERE WE ARE NOW IN UNDERSTANDING 1461 02:16:06.552 --> 02:16:12.093 THE QUESTIONS THAT ARE PRESENTED TO THIS COURT WHICH IS IRRELEVANT SCIENTIFIC 1462 02:16:12.093 --> 02:16:19.144 COMMUNITY AND AGAIN I AM GOING TO RELY ON WHAT MR. MASON SAID BUT WHAT I WANT TO 1463 02:16:19.144 --> 02:16:26.030 ADDRESS BRIEFLY IS THE IDEA THAT THE BIOMECHANICS ENGINEERS ARE JUST A 1464 02:16:26.030 --> 02:16:30.092 SLIVER OF THE -- ALL THE POSSIBLE RELEVANT SCIENTIFIC COMMUNITIES THAT ARE OUT 1465 02:16:30.092 --> 02:16:36.444 THERE BECAUSE I DISAGREE WITH THAT CRACKS. YES, THERE ARE MANY COMMUNITIES THAT ARE 1466 02:16:36.444 --> 02:16:42.901 HAVE A PROFESSED THEIR SOCIETIES STATEMENTS AN POSITIONS THROUGH THE 1467 02:16:42.901 --> 02:16:48.641 AME KEY BUT I THINK THAT -- I DON'T WANT TO SPECULATE TOO MUCH ABOUT WHY THEY ARE 1468 02:16:48.641 --> 02:16:53.710 ALL TAKING THOSE POSITIONS BUT THE FACT THAT DOG MA IS DIFFICULT TO OVERCOME 1469 02:16:53.710 --> 02:16:58.801 AND DIFFICULT TO PENETRATE WHEN IT'S BEEN RELIED UPON FOR SO MANY YEARS AND WE 1470 02:16:58.801 --> 02:17:04.001 HAVE CLINICIANS WHETHER OR UNDOUBTEDLY CONCERNED ABOUT THEIR PATIENTS 1471 02:17:04.001 --> 02:17:08.227 CONCERNED ABOUT THE INFANT THAT THEY TREAT AND WANT TO MAKE SURE THAT THEY ARE 1472 02:17:08.227 --> 02:17:13.754 TREATING THEM APPROPRIATELY. BUT WHEN WE SEE THE BRIEF THAT WAS ON BEHALF OF ALL 1473 02:17:13.754 --> 02:17:18.410 THESE MELLOW SITES THAT ATTACKED THE DOCTORS WHO QUESTIONED THIS DOG MA 1474 02:17:18.410 --> 02:17:25.709 AS DENIAL /EUFTS AS BEING WITHIN THE -- RELYING UPON THE DEFENSE ATTORNEYS AND 1475 02:17:25.709 --> 02:17:30.928 BEING THERE JUST TO RAISE QUESTIONS AN MANUFACTURE DOUBT WHERE NONE EXISTS 1476 02:17:30.928 --> 02:17:36.334 THIS IS ALL RHETORIC THAT WAS USED TO KNOW BRIEF ON BEHALF OF AMEANING 'CUZ AND I 1477 02:17:36.334 --> 02:17:41.007 THINK THAT TELLS YOU WHY IT IS VERY DIFFICULT FOR DOCTORS WITHIN THOSE 1478 02:17:41.007 --> 02:17:45.529 SOCIETIES TO SPEAK UP AND RACE THESE QUESTIONS THAT WE ARE RAISING HERE TODAY. 1479 02:17:45.529 --> 02:17:52.398 THEY GET OSTRACIZED GET ACCUSED ON BEING ON THE SIDE OF ABUSE ERRS. WE HAVE TO 1480 02:17:52.398 --> 02:17:56.702 LOOK BEYOND THAT. THAT IS WHY LINING UP SOCIETIES IS NOT ENOUGH. WE HAVE 1481 02:17:56.702 --> 02:18:01.642 TO LOOK AT THE UNDERLYING DATA AN INFORMATION AND WHETHER OR NOT THESE OPINIONS 1482 02:18:01.642 --> 02:18:07.144 ARE BASED ON RELIABLE SCIENCE OTHERWISE ALL I HOUSE OF CARDS AN THESE 1483 02:18:07.144 --> 02:18:13.353 DIAGNOSES THAT THEY RELY UPON THEY FALL BY THE WAY, SIDE IF ALL BASED OFTEN A PREMISE 1484 02:18:13.353 --> 02:18:19.457 AS IT TURNED OUT AFTER 50 YEARS OF TRYING NOBODY HAS BEEN ABLE TO REPLICATE. 1485 02:18:19.457 --> 02:18:25.954 AND THE STATE EVEN ACKNOWLEDGES THAT THERE IS NO GENERAL ACCEPTANCE WITHIN THE 1486 02:18:25.954 --> 02:18:31.538 BIOMECHANIC COMMUNITY. THEY NEVER RELIED ON THAT BECAUSE THEY CAN'T. TO 1487 02:18:31.538 --> 02:18:36.886 GET TO EDGE QUESTION THAT IS WHY WE DON'T NEED SPECIAL MASTER HEARING HERE. SPECIAL 1488 02:18:36.886 --> 02:18:41.382 MASTER HEARING HERE WOULD ONLY BE RELEVANT IF THE STATE CAN ESTABLISH THAT 1489 02:18:41.382 --> 02:18:47.570 THERE IS A GENERAL ACCEPTANCE WITHIN THE BIOMECHANICAL COMMUNITY IF THE STATE DEEMS 1490 02:18:47.570 --> 02:18:51.956 IT IS APPROPRIATE FOR CONSIDERATION. WE WOULD BE LEFT IN THE SAME SPOT. 1491 02:18:51.956 --> 02:18:56.468 JUSTICE WAINER APTER: I THINK THE QUESTION IS JUST WHO GETS 1492 02:18:56.468 --> 02:19:00.952 TO DECIDE WHETHER THERE IS GENERAL ACCEPTANCE IN THE RELEVANT MEDICAL 1493 02:19:00.952 --> 02:19:05.157 COMMUNITIES AND WHETHER IT IS ALL BASED ON AS YOU CHARACTERIZED IT A HOUSE 1494 02:19:05.157 --> 02:19:10.845 OF CARDS. IS THE DOCTORS THEMSELVES WITHIN THEIR SOCIETIES WHO CAN SAY WE ACCEPT 1495 02:19:10.845 --> 02:19:15.661 THIS AS MEDICAL DIAGNOSIS OR A JUDGE WHO SAYS EVEN THOUGH YOU ARE ALL ACCEPTING 1496 02:19:15.661 --> 02:19:22.202 THIS WE ARE SAYING THAT IT IS A HOUSE OF CARDS. MR. NETTL: 1497 02:19:22.202 --> 02:19:28.545 THINK THE GENERAL ACCEPTANCE IN THE BIOMECHANICAL COMMUNITY WOULD HAVE TO COME 1498 02:19:28.545 --> 02:19:33.573 -- I DON'T KNOW IF THE COMES IN THE FORM CONSENSUS STATEMENT OR COME IN THE 1499 02:19:33.573 --> 02:19:37.873 FORM OF PRACTICE OF NUMEROUS MEMBERS OF THE COMMUNITY. I DON'T KNOW IF I HAVE THE 1500 02:19:37.873 --> 02:19:42.741 SPECIFIC ANSWER TO THAT BECAUSE QUITE FRANKLY AS SAID IT IS THE STATES 1501 02:19:42.741 --> 02:19:46.098 BURDEN TO ESTABLISH THAT THAT EXISTS. JUSTICE WAINER APTER: THOUGHT 1502 02:19:46.098 --> 02:19:52.668 THE STATE'S . WAS WIN THE SCIENTIFIC COMMUNITY GENERALLY HO WE HAVE 1503 02:19:52.668 --> 02:20:03.491 CONSENSUS STATEMENTS (ASSOCIATIONS J ALL AROUND THE WORLD SAYING THESE AREVILLE 1504 02:20:03.491 --> 02:20:08.971 I HAD MEDICAL DIAGNOSIS AND STATES POINT IS CAN'T JUST TAKE A TINY SLIGHT AND SAYS 1505 02:20:08.971 --> 02:20:14.417 THIS IS THE RELEVANT MEDICAL COMMUNITY IN THIS SLICE AND THEREFORE THEY 1506 02:20:14.417 --> 02:20:19.600 HAVE /SRAOET TOE OVER THE WHOLE WORLD OF DOCTORS. MR. NETTL: 1507 02:20:19.600 --> 02:20:27.296 WOULD NEVER SUGGEST THEY HAVE VETO POWERS. THEY /KRAEUSING QUESTIONS DATA DRIVEN 1508 02:20:27.296 --> 02:20:31.857 QUESTIONS THAT ARE NEVER RISEN BY MEDICAL COMMUNITY. IT IS NOT SO MUCH 1509 02:20:31.857 --> 02:20:37.795 A SLIVER BUT A FOUNDATION. BUT ONE MAJOR DIFFERENCE BETWEEN THE BIOMECHANICAL 1510 02:20:37.795 --> 02:20:44.068 ENGINEERS AND MEDICAL COMMUNITIES IS THE DISTANCE BETWEEN THEMSELVES AND 1511 02:20:44.068 --> 02:20:49.406 THE PATIENTS THAT ARE BEING TREATED. THEY ARE ABLE TO LOOK ATE FROM A MORE OBJECTIVE 1512 02:20:49.406 --> 02:20:54.590 PERSPECTIVE. AND GETTING BACK TO THE MEANING 'CUZ BRIEF ON BEHALF OF 1513 02:20:54.590 --> 02:21:00.200 MEDICAL SOCIETIES THEY LIKE TO SAY WELL, THAT IS EVIDENCE THAT THEY ARE NOT APPLIED 1514 02:21:00.200 --> 02:21:06.232 SCIENTISTS ONLY BASIC SCIENTISTS AND USE SOME OF THAT TERMINOLOGY. BUT THINK 1515 02:21:06.232 --> 02:21:10.843 VIRTUE NOT A FLAW THAT THEY HAVE THAT DISTANCE AN OBJECT /EUFT. 1516 02:21:10.843 --> 02:21:14.077 JUSTICE PATTERSON: IS STANCE YOU ARE REFERRING TO IS THEY NEVER SAW THE 1517 02:21:14.077 --> 02:21:17.817 CHILD. NEVER TALKED TO THE PARENTS. DON'T HAVE ANY RESPONSIBILITY FOR 1518 02:21:17.817 --> 02:21:22.496 TREATING THE CHILD DON'T HAVE TO MAKE A DECISION AS TO WHAT THE CHILD PROGNOSIS 1519 02:21:22.496 --> 02:21:29.434 IS THAT IS GOOD DISTANCE. MR. NETTL: YES, BECAUSE THAT OBJECT /EUFT. 1520 02:21:29.434 --> 02:21:31.370 JUSTICE PATTERSON: BECAUSE RELATIONSHIP BETWEEN PHYSICIAN 1521 02:21:31.370 --> 02:21:39.268 AN PATIENT /SPAOPBLT OF TRYING TO TREAT AN INFANT WHO IS GRAVELY INJURED CREATES 1522 02:21:39.268 --> 02:21:45.007 SUBJECTIVITY THAT ACTUALLY DISCOUNTS THE OPINION OF THE PEDIATRICS -- PEDIATRIC 1523 02:21:45.007 --> 02:21:50.480 WORLD. MR. NETTL: NO ONE IS SUGGESTING THAT THE DOCTORS INVOLVED 1524 02:21:50.480 --> 02:21:57.631 SHOULD NOT TREAT THESE PATIENTS AS THEY SEE FIT. THAT'S NEVER BEEN SUGGESTED. 1525 02:21:57.631 --> 02:22:02.501 WHAT WE ARE TALKING -- THE REASON WHY I QUESTION WHETHER IT IS A DIAGNOSIS 1526 02:22:02.501 --> 02:22:07.572 IS BECAUSE THE SYMPTOMS THAT THESE DOCTORS ARE TREATING ARE THE TRIAD OR POTENTIALLY 1527 02:22:07.572 --> 02:22:14.125 OTHERS. THEIR PHYSIOLOGICAL SYMPTOMS AN TRYING TO GET THESE PATIENTS BETTER. 1528 02:22:14.125 --> 02:22:20.086 BUT THE QUESTION OF THE COURSE OF THOSE SYMPTOMS CAUSATION OF THOSE SYMPTOMS. 1529 02:22:20.086 --> 02:22:24.206 THAT IS WHY WE ARE HERE. THE DOCTOR CAN'T DO ANYTHING ABOUT CAUSATION BUT 1530 02:22:24.206 --> 02:22:33.997 THE /PWOEBGTSZ CAN DETERMINE WHETHER OR NOT THE -- WHAT DOCTOR IS RELYING ON IS 1531 02:22:33.997 --> 02:22:36.963 POSSIBLE. JUSTICE PATTERSON: WHAT DO YOU MEAN DOCTOR CAN'T 1532 02:22:36.963 --> 02:22:42.105 DO ANYTHING ABOUT CAUSATION. DOCTOR EVERY DAY IN ER CRITICAL CARE UNITS PEDIATRICS 1533 02:22:42.105 --> 02:22:48.141 PRACTICES MAKE DETERMINATIONS OF CAUSATION MEDICAL DETERMINATIONS. 1534 02:22:48.141 --> 02:22:52.284 MR. NETTL: THEY CAN ADVISE PATIENTS. THEY CAN REFER PATIENTS TO APPROPRIATE RESOURCE. 1535 02:22:52.284 --> 02:22:57.306 IF THEY BELIEVE SHAKING INVOLVED ADVISE PATIENT ABOUTS THE CHANGE ERRS 1536 02:22:57.306 --> 02:23:01.841 OF THAT AN THERE IS NOTHING WRONG WITH ANY OF THAT BECAUSE THAT IS PART OF THE 1537 02:23:01.841 --> 02:23:06.597 CLINICIAN AN TREATING PROVIDERS DUTY. BUT WHEN YOU ARE TALKING ABOUT BRINGING 1538 02:23:06.597 --> 02:23:13.333 IT FROM THE ER INTO A COURTROOM AND TRYING TO HAVE A JURY ANSWER QUESTIONS ABOUT 1539 02:23:13.333 --> 02:23:20.295 WELL IS THIS PERSON CRIMINALLY LIABLE IT'S NOT TO BE MORE ANECDOTAL EVIDENCE THAT 1540 02:23:20.295 --> 02:23:25.054 THE DOCTOR IS RELYING UPON THAT I HAVE SEEN SOMETHING LIKE THAT BEFORE. 1541 02:23:25.054 --> 02:23:30.030 JUSTICE HOFFMAN: LET'S GO BACK TO PAT ER SONS POINT BEFORE. AT THAT POINT MAY 1542 02:23:30.030 --> 02:23:36.456 NOT BE A FRY ISSUE OR COURT'S RESPONSIBILITY TO DISMISS A INDICTMENT. ARE 1543 02:23:36.456 --> 02:23:41.114 YOU CONFLATING WHAT IS APPROPRIATE THAN FRY ANALYSIS OR THAT ANALYSIS OF WHETHER 1544 02:23:41.114 --> 02:23:47.323 AN EXPERT REPORT IS ADMISSIBLE WITH WHETHER AFTERNOON INDICTMENT SHOULD 1545 02:23:47.323 --> 02:23:52.171 APPROPRIATE GO FORWARD OR BE DISMISSED BECAUSE OF GROUNDBREAKING EVIDENCE 1546 02:23:52.171 --> 02:24:00.865 FELTED FELT AS I UNDERSTAND THE QUESTION YOU ARE ASKING IF -- IT IS ALMOST LIKE 1547 02:24:00.865 --> 02:24:06.691 COULD THIS EVIDENCE IF IT'S ADMISSIBLE MEET A REYES STANDARD IN ORDER TO 1548 02:24:06.691 --> 02:24:11.661 PURSUE A CRIMINAL CASE LIMIT. JUSTICE HOFFMAN: ISN'T IT POSSIBLE 1549 02:24:11.661 --> 02:24:16.583 THAT THERE IS A CASE THIS MEET THE STANDARD AN LOON AROUND AN WHALES DO 1550 02:24:16.583 --> 02:24:22.143 YOU. PROSECUTOR SAYS NOTHING AN JUDGE SAYS OKAY I WILL DISMISS THEM BECAUSE THAT 1551 02:24:22.143 --> 02:24:26.745 /PHAOETSDZ A REASONABLE CERTAINTY STANDARD AND NOT ENOUGH TO SEA -- NO CHANCE 1552 02:24:26.745 --> 02:24:35.186 OF IT SATISFYING THE REASONABLE DOUBT. ARE YOU SAYING THAT SHOULD OCCUR AT THE 1553 02:24:35.186 --> 02:24:41.294 EXPERT ADMISSIBILITY STAGE OR THAT IT'S OR OR OR THE OTHER WAY THE JUDGES 1554 02:24:41.294 --> 02:24:46.018 RESPONSIBILITY AFTER THE EXPERT IN THIS STAGE TO LOOK AROUND AND SAY CAN THE INDICTMENT 1555 02:24:46.018 --> 02:24:50.055 CONTINUE TO STAND. MR. NETTL: THINK IT IS GOT TO BE TWO 1556 02:24:50.055 --> 02:24:53.209 SEPARATE QUESTIONS. JUSTICE HOFFMAN: THAT IS MY POINT. 1557 02:24:53.209 --> 02:24:56.772 MR. NETTL: YES AGREED. FIRST GET THROUGH THE FRY STAGE TO DETERMINE WHETHER OR NOT 1558 02:24:56.772 --> 02:25:01.883 THAT COMES IN AND THEN IF IT DOES COME IN THEN AT THE QUESTION OF WHETHER OR NOT 1559 02:25:01.883 --> 02:25:06.975 THE STATE CAN PROVE THE ALLEGATION IN THE INDICTMENT BEYOND A REASONABLE DOUBTMENT 1560 02:25:06.975 --> 02:25:10.615 I DON'T KNOW IF THAT WOULD BE A QUESTION FOR. THAT WOULD HAVE TO BE AFTER 1561 02:25:10.615 --> 02:25:16.914 JURY I AM PANELED FOR THE JURY TO PUT-ON THEIR PROOFS AND JUDGE CAN DETERMINE WHETHER 1562 02:25:16.914 --> 02:25:22.442 RAY /KWRAEUS HAS BEEN ME FOR A JURY TO FIND BEYOND A REASONABLE DOUBT BUT 1563 02:25:22.442 --> 02:25:25.135 THAT IS GOT TO HAPPEN DOWN THE ROAD. CHIEF JUSTICE RABNER: ADDITIONAL 1564 02:25:25.135 --> 02:25:28.135 QUESTIONS ANYONE. ANYTHING YOU'D LIKE TO ADD.