WEBVTT 2 00:00:02.867 --> 00:00:07.879 MR. MITCHELL: PLEASE. MAY IT PLEASE AN AME KIE. CHIEF 3 00:00:07.879 --> 00:00:13.041 JUSTICE RABNER: KEEP YOUR VOICE UP. MR. MITCHELL: AMEANING KIE /PR-R 4 00:00:13.041 --> 00:00:17.970 OFFICE OF PARENTAL REPRESENTATION WE ARE NOT SEEKING TO ADD ANOTHER VOICE 5 00:00:17.970 --> 00:00:25.398 TO DUBIOUS QUESTIONS OF SHAKEN BABY SYNDROME AS ESTABLISHED BY THE FRY HEARING 6 00:00:25.398 --> 00:00:30.249 AN ADOPTED BY TWO THOUGHT FULL OPINIONS IN THE COURTS BELOW. INSTEAD WHAT 7 00:00:30.249 --> 00:00:36.199 WE HOPE TO DO ASSIST THIS COURT BY STRESSING THAT THOSE DECISIONS ARE WHOLLY CONSISTENT 8 00:00:36.199 --> 00:00:42.851 WITH THE OFTEN PATHMARKING FOUNDATION OF THIS COURT'S CHILD WELFARE JURIS 9 00:00:42.851 --> 00:00:49.023 PRUDENCE IN THE LAST 25 YEARS. I SAY THAT IMPORTANTLY TO STRESS THAT THIS COURT 10 00:00:49.023 --> 00:00:57.078 HAS STAKED OUT IN THE EIGHT OR SEW CASES THAT ARE REALLY PATHMARKING AN SET 11 00:00:57.078 --> 00:01:02.451 A COURT MUCH LIKE THE DECISION OF TRIAL COURT IN THE APPELATE DIVISION AND THOSE 12 00:01:02.451 --> 00:01:11.464 CASES THAT WE SITE TO THIS COURT SHOW THAT BARRING -- THIS IS I THINK IMPORTANT 13 00:01:11.464 --> 00:01:17.791 AFTER THE ATTORNEY GENERAL'S OFFICE SUGGESTING TO THE CONTRARY THAT 14 00:01:17.791 --> 00:01:24.551 BARRING SBS EVIDENCE SHAKEN BABY SYNDROME WILL NOT DISARM CHILD PROTECTION AGENCIES 15 00:01:24.551 --> 00:01:31.591 THAT PROTECT CHILDREN NOR CAUSE CHILDREN TO GO UNPROTECTED. THIS COURT 16 00:01:31.591 --> 00:01:39.581 HAS MADE THAT IN NUMEROUS CASES, THAT THERE ARE TOOLS AVAILABLE AMPLE TOOLS AVAILABLE 17 00:01:39.581 --> 00:01:46.520 TO CHILD PROTECTION AGENCIES SUCH THAT /SKWREUFPLT IRR THIS COURT REJECTED 18 00:01:46.520 --> 00:01:58.566 30 YEARS OF /PEPT JURIS PRUDENCE IN THIS STATE IN HOLDING THAT EVIDENCE HAD BEEN 19 00:01:58.566 --> 00:02:04.574 ESTABLISHED WHO DID WHAT TO A CHILD NOT THAT THE DEFENDANT HAD THE SHIFTED 20 00:02:04.574 --> 00:02:07.949 BURDEN OF PROOF. THAT JURIS PRUDENCE WAS OUT THE WINDOW AND THIS COURT DECISION 21 00:02:07.949 --> 00:02:14.771 IN JIRR WAS REALLY PATHMARKING IN THAT REGARD. INSTEAD THIS COURT HAS CONSISTED 22 00:02:14.771 --> 00:02:20.533 ON RELIABLE EVIDENCE IN CHILD WELFARE CASES. IN HERE THAT MEANS A FAMILY 23 00:02:20.533 --> 00:02:27.765 WHO LEARNS A ACHILD IS INJURED SHOULD NOT BE SUBJECTED TO THE KIND OF SPECULATION 24 00:02:27.765 --> 00:02:33.298 AS IN SHAKEN BABY SYNDROME CASES. AS DIAGNOSIS IS IT IS NOT A DIAGNOSIS 25 00:02:33.298 --> 00:02:39.716 FOR MEDICAL PURPOSES. IT IS A DIAGNOSIS THAT DOESN'T PROVIDE ANY HELP IN TREATING. 26 00:02:39.716 --> 00:02:46.523 IT IS REALLY LEGALLY FORMULATED DID HE GO IS. THINK THAT'S PERHAPS THE 27 00:02:46.523 --> 00:02:51.902 DIFFERENCE FROM WHAT THE ATTORNEY GENERAL OFFICE SUGGESTED IN THIS CASE. IT DOESN'T 28 00:02:51.902 --> 00:03:00.285 ASSIST MEDICAL DOCTORS IN TREATING A CHILD. IT SIMPLY PROVIDES A 29 00:03:00.285 --> 00:03:08.507 SPECULATIVE CAUSE FOR THAT CHILD'S INJURIES BUT CAN'T PROVIDE THE ACTUAL EVIDENCE 30 00:03:08.507 --> 00:03:12.001 OF CAUSATION. JUSTICE HOFFMAN: I DON'T UNDERSTAND THAT. 31 00:03:12.001 --> 00:03:16.722 ARE YOU SAYING THE DOCTOR IS NOT TREATING SUBDURAL HEM ROADWAYS OR DOCTOR NOT TREATING 32 00:03:16.722 --> 00:03:22.212 RETINAL HEMORRHAGE. MR. MITCHELL: HE IS TREATING THOSE BUT 33 00:03:22.212 --> 00:03:26.517 THOSE ARE SIMPLY MEDICAL CONDITIONS IDENTIFIED. THEY ARE NOT CAUSATION OF VIOLATE 34 00:03:26.517 --> 00:03:32.461 -- SUPPOSEDLY VIOLATE SHAKING THAT LED TO THOSE CONDITIONS. THE DOCTORS ARE 35 00:03:32.461 --> 00:03:40.105 TREATING THE UNDERLYING CONDITION BUT THE UNDERLYING CONDITION DOESN'T 36 00:03:40.105 --> 00:03:47.929 NECESSARILY EXPLAIN THE CAUSE. IT IS A LEAP. AND THINK THAT IS AN IMPORTANT POINT 37 00:03:47.929 --> 00:03:54.723 ESSENTIALLY IT WAS I THINK IMPORTANT FOR THE COURTS BOTH THE TRIAL COURT 38 00:03:54.723 --> 00:04:04.446 AND AND. THINK WHAT WE WOULD URGE THE COURT TO RENT -- I AM SURE THE COURT IS 39 00:04:04.446 --> 00:04:09.414 CONSCIOUS OF THIS. THAT SBS THEORIES SHAKEN BABY SYNDROME INVOLVE A THREAT 40 00:04:09.414 --> 00:04:14.798 TO LIBERTY EVEN OUT SIDES THE CONTEXT OF A CRIMINAL CASE. THREAT TO /HREUPT FROM 41 00:04:14.798 --> 00:04:24.489 A LEGAL THAT CHILD ABUSE OCCURRED IF THAT COULD BE PREDICATE FOR TITLE /#-9D. 42 00:04:24.489 --> 00:04:32.822 AND DETERMINE MAY LEAD TO TERMINATION OF PARENTAL RIGHTS. GOING BACK TO GL CASE 43 00:04:32.822 --> 00:04:38.151 THERE WAS BACK /TKPWROP IN THAT CASE BECAUSE SHAKEN BABY SYNDROME BECAUSE 44 00:04:38.151 --> 00:04:45.546 THE MORE ER REFUSED TO BELIEVE THE DIAGNOSIS THAT WAS MADE WITH REGARD TO THE DEATH 45 00:04:45.546 --> 00:04:53.545 OF HER CHILD 15 YEARS EARLIER ATTRIBUTED TO HER HUSBAND'S -- THE CHILD'S 46 00:04:53.545 --> 00:05:00.257 FATHER SHAKING THE BABY. AND SHE DID NOT BELIEVE THAT. AND YET A CHILD PROTECTION 47 00:05:00.257 --> 00:05:06.472 ACTION TO TERMINATE PARENTAL RIGHTS WAS BROUGHT AGAINST HER. KIND OF COIN 48 00:05:06.472 --> 00:05:13.754 TAGE ON OF THE SYNDROME. AN TERMINATION OF PARENTAL RIGHTS WAS BROUGHT AGAINST 49 00:05:13.754 --> 00:05:21.097 HER FOR DISBELIEVING THE DIAGNOSIS. ABSENT THIS COURT SAID WHAT SHE THOUGHT 50 00:05:21.097 --> 00:05:25.312 WAS NOT A PROPER BASIS FOR TERMINATION OF PARENTAL RIGHTS BUT IN THE BACKGROUND 51 00:05:25.312 --> 00:05:35.498 OF GL WAS THIS SHAKEN BABY SYNDROME. MUCH AS IN JRR THERE WAS A -- A SHAKEN BABY 52 00:05:35.498 --> 00:05:42.890 DIAGNOSIS GIVEN THAT THE PARENTS HAD TO DISPROVE UNTIL THIS COURT REVERSE 53 00:05:42.890 --> 00:05:47.702 THAT HAD DECISION AND SAID NO PARENT DON'T CARRY THE BURDEN OF PROOF. THAT DOESN'T 54 00:05:47.702 --> 00:05:57.994 SHIFT. SO THE ARGUMENT IS THAT SHAKEN BABY SYNDROME SHOULDN'T THAT 55 00:05:57.994 --> 00:06:03.205 DESTRUCTIVE FORCE FOR FAMILIES. DOESN'T PROTECT FAMILIES. CAN LEAD TO DESTRUCTIVE 56 00:06:03.205 --> 00:06:10.726 FORCES IN THE CHILD WELFARE SYSTEM. THIS COURTS BODY OF CHILD WELFARE HAUL HAS 57 00:06:10.726 --> 00:06:16.148 REJECTED THE NOTION THAT EVIDENCE'S BASED ON -- WE CAN USE ANY WORDS HERE SPECULATION, 58 00:06:16.148 --> 00:06:23.165 SURMISE, CONJECTURE HAS NO PROPER FUNCTION IN PROTECTING CHILDREN. AND THAT IS 59 00:06:23.165 --> 00:06:32.736 VERY SIMILAR IN ALL OF THESE CASES THAT WE DISCUSSED. VERY SIMILAR TO -- ALL 60 00:06:32.736 --> 00:06:38.353 WHAT THE APPELATE DIVISION HERE HELD. THE EVIDENCE AS TO CAUSATION. NOT EVIDENCE 61 00:06:38.353 --> 00:06:45.317 THAT THE CHILD WAS INJURED. THOSE ARE FACTS, RIGHT. THE LEAP HERE -- THE 62 00:06:45.317 --> 00:06:52.385 SPECULATIVE LEAP IS ONE TO CAUSATION AND THAT'S WHERE BOTH IN THE CRIMINAL CASE 63 00:06:52.385 --> 00:06:59.378 RECOMMEND AND CHILD WELFARE LAW THAT THIS COURTED OWE /OEFTSZ OF ACTUALLY 64 00:06:59.378 --> 00:07:06.072 UNTOWARD CONDUCT IS WHAT -- IS THE BASIS OF A CHILD PROTECTION CASE. IT SHOULD 65 00:07:06.072 --> 00:07:20.142 NOT BE SPECULATION CONJECTURE OR SURMISE. THE OTHER FOCUS OF -- I PROBLEM WITH 66 00:07:20.142 --> 00:07:26.566 SBS EVIDENCE IS WHEN IT BECOMES A PROXY FOR CAUSATION IT PROVIDES A DISINCENTIVE 67 00:07:26.566 --> 00:07:37.558 FORGETTING HELP FOR A CHILD. IT IS TOO EASILY SHIELDS LIMITED INVESTIGATION, 68 00:07:37.558 --> 00:07:44.379 OTHER CAUSES OF HARM. EARN MEDICAL MALFEASANCE ALL THE EXPENSE OF FAMILIES AND 69 00:07:44.379 --> 00:07:49.701 THIS IS BECAUSE SBS USES /PAERPBT OF PATHOLOGY TO /STPREUBT CAUSATION TO 70 00:07:49.701 --> 00:07:56.017 THE SUPPOSED SHAKING IS SPECULATED AS TO -- TO HAVE OCCURRED. WE DON'T KNOW IF 71 00:07:56.017 --> 00:08:05.639 THAT ACTUALLY OCCURRED. WE DON'T KNOW WHAT THE CAUSE IS. AND THE ATTORNEY 72 00:08:05.639 --> 00:08:11.118 GENERAL IN HER ARGUMENT MENTIONED TWO THINGS THAT THIS KIND OF EVIDENCE LOON TO 73 00:08:11.118 --> 00:08:18.472 WHAT CANNOT BE EXPLAINED AND WHAT /K-B EXPLAINED. IF THE SBS EVIDENCE 74 00:08:18.472 --> 00:08:28.529 ACTUALLY EXPLAINED SOMETHING INSTEAD OF LEAPING TO A SPECULATIVE CONCLUSION, WE 75 00:08:28.529 --> 00:08:33.918 WOULDN'T BE HERE. NONE OF US WOULD BE HERE. WHAT THE EVIDENCE DOES IS IT BASICALLY 76 00:08:33.918 --> 00:08:42.889 SAYS WE DON'T KNOW. IS IT AN ANSWER THAT SOUNDS GIVEN IT IS PEDIGREE IT 77 00:08:42.889 --> 00:08:48.871 SOUNDS AUTHORITATIVE WHAT WE HAVE IS SIMPLE THROWING UP THE HAND. IT IS AN ANSWER 78 00:08:48.871 --> 00:09:01.015 TO AN UNEXPLAINED CONCLUSION. IN DOING SO ABS THEORIES CONCEAL REALLY CONCEAL 79 00:09:01.015 --> 00:09:11.630 RATHER THAN REVEAL THE CON SEAL THE CAUSES INTRACRANIAL PATHOLOGY. THOSE KIND 80 00:09:11.630 --> 00:09:17.645 OF SKETCHY THEORIES SHOULD NOT BE CONSIDERED AS EVIDENCE AND IT WAS WHY 81 00:09:17.645 --> 00:09:23.223 THE APPELATE DIVISION DIVISION WAS CORRECT IN SUGGESTING THAT THE EVIDENCE WOULD BE 82 00:09:23.223 --> 00:09:28.293 INADMISSIBLE. WHAT WE HAVE TO CONCLUDE HERE BECAUSE REALIZE I AM LIMITED 83 00:09:28.293 --> 00:09:34.845 TO MY FIVE MINUTES YOUR HONOR. WHAT WE HAVE IN SBS THEORIES IS A SEEK -- DESIRE 84 00:09:34.845 --> 00:09:42.425 TO EXPLAIN A CHILD'S CONDITION. AGAIN THAT IS ROUTED IN CONJECTURE. THAT 85 00:09:42.425 --> 00:09:50.245 KIND OF CONJECTURE THIS COURT HAS HELD HAS NO PLACE TO PROTECT CHILDREN. THAT IS 86 00:09:50.245 --> 00:09:54.988 ALL THE APPELATE DIVISION DECISION MENS. EVIDENCE OF TO PROTECT CHILDREN 87 00:09:54.988 --> 00:10:02.529 MUST BE FACTS NOT SPECULATION. THE PROOF MUST BE BASED ON FACTS NOT SPECULATION 88 00:10:02.529 --> 00:10:10.291 ABOUT A VIOLATE SHAKING. IF THE COURT HAS ANY QUESTIONS, I WILL BE GLAD TO 89 00:10:10.291 --> 00:10:14.193 TRY TO. CHIEF JUSTICE RABNER: THANK YOU. MR. 90 00:10:14.193 --> 00:10:19.011 MITCHELL: THANK YOU. CHIEF JUSTICE RABNER: FROM LIST TO KNOW 91 00:10:19.011 --> 00:10:21.812 REBUTTAL. MR. LISTON THANK YOU I WOULD LIKES TO WORK BACKWARDS 92 00:10:21.812 --> 00:10:29.650 ADDRESSING THE OFFICE OF PARENTAL CONCERN. PARENTS ARE NOT THE OWN ONES WHO MAY 93 00:10:29.650 --> 00:10:36.987 DUCE ABUSIVE HEAD TRAUMA. IF EVIDENCE LIKE DR. MEDINA TESTIMONY IS EXCLUDED 94 00:10:36.987 --> 00:10:43.902 PARENTS WOULD HAVE NO RECOURSE AGAINST AN ABUSIVE BAY CARE WORKER. FOR EXAMPLE 95 00:10:43.902 --> 00:10:50.934 IN AN SENT NARROW WHEN MR. MASON WAS UP HERE EVEN IF THERE WAS CORROBORATING 96 00:10:50.934 --> 00:10:56.673 EVIDENCE OF ABUSE THAT TESTIMONY WOULD STILL BE INADMISSIBLE. AGAIN THINKING OF THE 97 00:10:56.673 --> 00:11:02.685 SITUATION WITH DAY CARE WORKING THAT SHOULD BE OF GRAVE CONCERN TO PARENTS 98 00:11:02.685 --> 00:11:09.455 AN FAMILIES IN GENERAL. GOING BACK TO MR. MASONS ARGUMENT YOU JUST HAVE TO REDIRECT 99 00:11:09.455 --> 00:11:13.208 THE COURT'S ATTENTION. JUSTICE WAINER APTER: CAN I ASK ONE 100 00:11:13.208 --> 00:11:18.012 FOLLOW-UP QUESTION ABOUT SOMETHING THAT MR. MITCHELL HAD SAID. HE SAID 101 00:11:18.012 --> 00:11:23.965 THAT SBS IS NOT A MEDICAL DIAGNOSIS BECAUSE DOESN'T ASSIST DOCTORS IN TREATING 102 00:11:23.965 --> 00:11:28.989 THE CHILD. IT IS SIMPLY SPECULATION AS TO CAUSATION. HOW DO YOU RESPOND 103 00:11:28.989 --> 00:11:33.269 TO THAT. MR. LISTON WOULD DISAGREE AGAIN WITH THE TREATMENT 104 00:11:33.269 --> 00:11:39.508 MAYBE CONSULTATION WITH THE PARENT AS FAR AS HOW THEY ARE TREATING THEIR CHILDREN. 105 00:11:39.508 --> 00:11:46.207 PERHAPS A PARENT NOT RECOGNIZING THE DANGER OF THEIR BEHAVIOR TO THE CHILD 106 00:11:46.207 --> 00:11:54.931 NOT TO MENTION AS I BELIEVE JUSTIVE HOFFMAN POINTED OUT THERE WILL BE TREATMENT 107 00:11:54.931 --> 00:12:03.218 OF SEVERE RETINAL HEMORRHAGES WHATEVER SYMPTOMS THERE MAYBE. IF THERE ARE 108 00:12:03.218 --> 00:12:08.356 FRACTURES, BRUISES. OBVIOUSLY THERE WOULD BE TREATMENT THAT GOES ALONG WITH THAT. 109 00:12:08.356 --> 00:12:11.549 JUSTICE WAINER APTER: ARE THERE OTHER MEDICAL DIAGNOSES THAT ARE 110 00:12:11.549 --> 00:12:17.198 LIKE THIS THAT DIAGNOSIS IS NOW ABOUT HOW THE TREAT THE PATIENT. IT IS ABOUT LEGAL 111 00:12:17.198 --> 00:12:23.880 CAUSATION. MR. LISTON MEDICAL DIAGNOSIS. 112 00:12:23.880 --> 00:12:27.377 JUSTICE WAINER APTER: CORRECT. JUSTICE WAINER APTER: A LOT OF A 113 00:12:27.377 --> 00:12:33.279 MICUS BRIEF THIS IS NOT A MEDICAL DIAGNOSIS. THIS IS AN OPINION ON 114 00:12:33.279 --> 00:12:41.392 CAUSATION THAT MASS CONTACT RATING AS MEDICAL DIAGNOSIS. IS THIS UNIQUE. IS THIS 115 00:12:41.392 --> 00:12:47.767 THE ONLY ONE ABOUT. HOW DO YOU RESPOND. MR. LISTON IN TERMS 116 00:12:47.767 --> 00:12:59.435 OF THE CAUSATION FRANKLY NOTHING COMES TO MIND AS AN ANALOGY REGRET FLU BUT IT IS 117 00:12:59.435 --> 00:13:07.803 EVIDENCE, YOU KNOW /#. CERTAIN EVIDENCE IN TERMS OF CULPABILITY OF A 118 00:13:07.803 --> 00:13:18.070 PARTICULAR PERSON. BUT BUT YES I CAN THINK OF GOOD ANALOGY TO BE HONEST. 119 00:13:18.070 --> 00:13:21.551 JUSTICE NORIEGA: WHY THOUGH. WHY IS IT EVIDENCE OF CULPABILITY OF A PARTICULAR 120 00:13:21.551 --> 00:13:27.018 PERSON OTHER THAN BY SPECULATION THAT THEY MAY HAVE BEEN -- ONE OF FEW PEOPLE 121 00:13:27.018 --> 00:13:31.213 THAT WERE WITH THE CHILD ALONE. MR. LISTON YOUR HONOR, THE STATE 122 00:13:31.213 --> 00:13:36.701 WOULD ARGUE THAT IS NOT SPECULATION. RATHER THAN CIRCUMSTANTIAL EVIDENCE 123 00:13:36.701 --> 00:13:44.723 A PROCESS OF ELIMINATION WHEREBY, YOU KNOW, SUBJECT TO CROSS-EXAMINATION OF COURSE. 124 00:13:44.723 --> 00:13:50.643 BUT WHERE THE STATE /PR-SZ EVIDENCE THAT CERTAIN INJURIES OCCURRED AN DON'T 125 00:13:50.643 --> 00:13:56.950 OCCUR ACCEPT YOU KNOW IN CASES EXTREME ACCIDENT WHERE THERE IS NOTHING IN THE RECORD 126 00:13:56.950 --> 00:14:01.795 ABOUT THAT. WHATEVER OTHER CIRCUMSTANCES DOCTOR PROVIDES AN OPINION THAT 127 00:14:01.795 --> 00:14:07.955 CERTAIN INJURIES WERE CAUSED BY INSTRUCTED TRAUMA, PROVIDES EVIDENCE THAT 128 00:14:07.955 --> 00:14:13.917 INJURIES OF THIS KIND SPECIFICALLY THE ENCEPHALOPATHY. THE TIMING INDICATES 129 00:14:13.917 --> 00:14:20.203 THAT YOU KNOW THE CAUSE OF THE ENCEPHALOPATHY OCCURRED AT A PARTICULAR TIME. THERE 130 00:14:20.203 --> 00:14:27.076 WAS ONLY ONE PERSON WHO WAS WITH THE VICTIM AT THAT TIME AND THAT'S THE -- THAT IS 131 00:14:27.076 --> 00:14:30.889 THE /EFLT THAT THAT PARTICULAR PERSON WAS RESPONSIBLE. JUSTICE 132 00:14:30.889 --> 00:14:36.707 NORIEGA: AN ABSENCE SOME INDICATION BY THAT INDIVIDUAL THAT THERE WAS SOME 133 00:14:36.707 --> 00:14:41.792 NEGLIGENCE OR ACCIDENT ISN'T THERE A PRESUMPTION OF INTENT BECAUSE THEY ARE 134 00:14:41.792 --> 00:14:47.748 ESSENTIALLY NOT EXPLAINING HOW THEY MAY HAVE DROPPED THE CHILD. SO ONLY OTHER 135 00:14:47.748 --> 00:14:53.408 ALTERNATIVE IF FINDING IS THERE MUST HAVE BEEN SOME SECRET INTENT TO HARM THE 136 00:14:53.408 --> 00:14:59.101 CHILD. ISN'T THAT WHAT ENDS UP HAPPENING WHEN DIAGNOSIS IS ISSUED. 137 00:14:59.101 --> 00:15:04.820 MR. LISTON WELL, I GUESS WE ARE GETTING INTO A MENS RAY /KWRA ELEMENT WHICH 138 00:15:04.820 --> 00:15:11.097 THAT IS -- SOMETHING SEPARATE. I MEAN REALLY ALL THE STATE'S ATTEMPTING TO 139 00:15:11.097 --> 00:15:19.685 DO IS EXPLAIN CAUSATION AND THEN -- REASONABLE INFERENCES THAT COULD BE DRAWN FROM 140 00:15:19.685 --> 00:15:26.835 THE EVIDENCE OF THAT CAUSATION. I IT MAY NOT SEA YOUR HONOR AS FAR AS THE 141 00:15:26.835 --> 00:15:33.967 ANSWER TO THAT QUESTION BUT I GUESS NO IN TERMS OF WHETHER THERE IS ANY MENS RA 142 00:15:33.967 --> 00:15:42.366 /KWRA ATTACHED TO THE. I GETS IT IS JUST THE CAUSATION OF WHAT FORCE CAUSED 143 00:15:42.366 --> 00:15:44.031 INJURIES. JUSTICE WAINER APTER: AS TO CAUSATION I CONCEDED 144 00:15:44.031 --> 00:15:50.773 THIS IS UNIQUE IT IS NOT LIKE OTHER MEDICAL DIAGNOSES IT EXISTS JUST TO PROVE CAUSATION 145 00:15:50.773 --> 00:15:55.610 IN A LEGAL PROCEEDING. MR. LISTON RIGHT IN TERMS OF -- WHAT 146 00:15:55.610 --> 00:16:00.211 IT WOULD LOOK LIKE AT A TRIAL WOULD BE THE INDIVIDUAL DOCTORS WHO MADE THE 147 00:16:00.211 --> 00:16:11.431 DIAGNOSIS, OPHTHALMOLOGIST TO SAW THE SEVERE HEMORRHAGES AND THE /-Z THEN THE 148 00:16:11.431 --> 00:16:15.550 VARIOUS DOCTORS WHO GAVE THEIR OWN OPINION AN RULES OUT CERTAIN OTHER CAUSES 149 00:16:15.550 --> 00:16:20.359 AND DOCTOR MEDICINE WHO TIES IT ALL TOGETHER HAVING WITH ALL OF THESE FINDINGS 150 00:16:20.359 --> 00:16:26.392 HAVING EXCLUDED EVERYTHING ELSE MY OPINION IS -- THESE INJURIES RESULTED 151 00:16:26.392 --> 00:16:32.195 FROM CONFLICTED TRAUMA. JUSTICE WAINER APTER: MY QUESTION IS SOUNDS 152 00:16:32.195 --> 00:16:37.908 LIKE YOU WERE CONCEDING THAT OPINION IS UNIQUE AND NOT LIKE OTHER MEDICAL 153 00:16:37.908 --> 00:16:45.023 DIAGNOSIS FOR THE PURPOSES OF TREATMENT AND NOT FOR THE PURPOSE OF LEGAL CULPABILITY. 154 00:16:45.023 --> 00:16:48.260 MR. LISTON NO, I AM CONCEDING I CAN'T THINK OF ANOTHER 155 00:16:48.260 --> 00:16:53.946 ONE. IT IS POSSIBLE THERE IS ONE JUST BEING CANDID WITH THE COURT THAT I HAVEN'T 156 00:16:53.946 --> 00:16:58.971 BEEN ABLE TO THINK OF ONE. JUSTICE HOFFMAN: COUNSEL YOU JUST 157 00:16:58.971 --> 00:17:04.216 USED AS IN THIS CASE TO TIE THE FATHER WITH THE DIAGNOSIS OF ENCEPHALOPATHY. 158 00:17:04.216 --> 00:17:11.765 BUT IF I RECALL THE ARTICLES THAT I WAS READING THAT TYPE OF -- THAT PRESENTATION 159 00:17:11.765 --> 00:17:17.381 OF THOSE SYMPTOMS CAN OCCUR BASED UPON EVENTS THAT OCCUR OVER A COURSE OF 160 00:17:17.381 --> 00:17:26.438 DAYS IF NOT A WEEK. SO HOW CAN IT BE THAT AS IN THIS CASE WE TIE THE FATHER TO 161 00:17:26.438 --> 00:17:35.045 CAUSE ENCEPHALOPATHY IF, IN FACT, THAT COULD HAVE BEEN CAUSED OVER THE COURSE 162 00:17:35.045 --> 00:17:40.515 OF DAYS IF NOT A WEEK AND IT WASN'T JUST THE FATHER THAT WAS WITH THE BABY 163 00:17:40.515 --> 00:17:47.666 FOR THAT -- THOSE COURSE OF DAYS AND WEEK IT HAPPENED TO BE THE FATHER WHO WAS 164 00:17:47.666 --> 00:17:52.431 WITH THE BABY WHEN THE BABY EXITED THOSE ACUTE SYMPTOMS. MR. 165 00:17:52.431 --> 00:17:58.399 LISTON WELL, I GUESS THE WAY THE NARRATIVE PRESENTED ITSELF TO DR. MEDINA WAS AGAIN 166 00:17:58.399 --> 00:18:04.282 THERE WERE THREE SEPARATE /TKAOEUP ER CHANGES WHERE WAS REPORTED BY PARENTS 167 00:18:04.282 --> 00:18:09.618 BOTH OF THEM WAS THAT THE FATHER WAS WITH THE CHILD AND HE STARTED EXHIBITING THESE 168 00:18:09.618 --> 00:18:17.080 SYMPTOMS. EACH OF THESE THREE OCCASIONS. SO DR. MEDINA OPINION WAS THAT 169 00:18:17.080 --> 00:18:23.885 THAT -- /EFL SENT OP THINK OR ALD /EUFRD MENTAL STATUS SEIZURE-LIKE ACTIVITY THOSE 170 00:18:23.885 --> 00:18:29.736 WERE ASSOCIATED WITH THOSE THREE TIMES WHEN IF THEY WERE CAUSED BY SOMETHING 171 00:18:29.736 --> 00:18:36.742 ELSE THEY COULD HAVE -- WOULD HAVE OCCURRED AT RANDOM TIMES. MAYBE THIS EXTREME 172 00:18:36.742 --> 00:18:44.058 EXTREME COINCIDENCE BUT DR. MEDINA OPINION WAS THAT THEY DID VIDEO /EPB SELF GRAM 173 00:18:44.058 --> 00:18:49.307 NO SEIZURE-LIKE ACTIVITY AT ALL IN THE TWO WEEKS THAT CHILD WAS AT HOSPITAL 174 00:18:49.307 --> 00:18:55.245 UNDER OBSERVATION AND YET OCCURRED RIGHT WHEN FATHER WAS DOING THESE /TKAOEUP ER 175 00:18:55.245 --> 00:19:01.385 CHANGES ON THREE SEPARATE INSTANCES. THAT IS DR. MEDINA OPINION AS FAR AS 176 00:19:01.385 --> 00:19:08.053 THE CONNECTION BETWEEN ALTERED MENTAL STATUS ENCEPHALOPATHY AN FATHERS PRESENCE. 177 00:19:08.053 --> 00:19:14.575 BUT AGAIN YOUR HONOR, I WOULD LIKE TO POINT OUT THAT THAT GETS TO THE 178 00:19:14.575 --> 00:19:20.277 PARTICULAR DEFENDANTS CULPABILITY RATHER THAN WHAT IS AT ISSUE RIGHT NOW WHICH IS 179 00:19:20.277 --> 00:19:27.141 JUST THE GENERAL ACCEPTANCE OF ABUSIVE HEAD TRAUMAS A BIG IS AN DIAGNOSTIC PROCESS. 180 00:19:27.141 --> 00:19:30.137 JUSTICE HOFFMAN: BUT DIDN'T THOUGH FACTS CONTRIBUTE TO HER 181 00:19:30.137 --> 00:19:38.616 CONCLUSION THAT THIS WAS SHAKEN BABY SYNDROME. MR. LISTON 182 00:19:38.616 --> 00:19:45.636 ABUSIVE HEAD TRAUMA ABUSIVE HEAD TRAUMA YES THAT WAS PART THE DECISION. 183 00:19:45.636 --> 00:19:48.649 JUSTICE HOFFMAN: THIS WERE THE INTENTION OF THIS REPORT WAS TO IDENTIFY 184 00:19:48.649 --> 00:19:53.484 MENS RAY /KWRA. MR. LISTON THOUGHT YOU WERE INQUIRING -- 185 00:19:53.484 --> 00:19:57.791 IDENTIFYING A PARTICULAR PERSON AS THE. JUSTICE HOFFMAN: I WAS. 186 00:19:57.791 --> 00:20:01.053 MR. LISTON AS THE PERSON CAUSING THE HEAD TRAUMA. AGAIN THAT'S 187 00:20:01.053 --> 00:20:07.776 THE CONNECTION THERE IN DR. MEDINA OPINION AS THE STATE UNDER /STAPBSZ IT WW HOW 188 00:20:07.776 --> 00:20:13.448 DO YOU RESPOND TO MR. MASONS ARGUMENT THAT SBS/AHT SBS/AHT ARE DIFFERENT 189 00:20:13.448 --> 00:20:21.918 AN STATE KEEP CONFLATING THEM AN WHILE THERE MIGHT BE SOME SCIENTIFIC FORTH /SPOR 190 00:20:21.918 --> 00:20:29.583 AHT AND NOT SBS AND STATE KEEPS TRYING TO BOOTSTRAP. MR. LISTON 191 00:20:29.583 --> 00:20:37.902 MR. MASON HAS THAT BACKWARDS. AS THE STATE ARGUMENT REPEATEDLY TO THIS COURT AND 192 00:20:37.902 --> 00:20:43.699 THIS IS WHAT THE DIAGNOSIS WAS ABUSIVE HEAD TRAUMA AS OCCURS IN SHAKING 193 00:20:43.699 --> 00:20:48.388 EVENT WITH OR WITHOUT IMPACT. IN OTHER WORDS ABUSIVE HEAD TRAUMA HERE IS A POSSIBLE 194 00:20:48.388 --> 00:20:57.312 MECHANISM. SO THE STATE HAS NEVER SAID DR. MEDINA SAYS SHAKING ONLY. BUT 195 00:20:57.312 --> 00:21:03.500 IT IS FRUSTRATING TO READ FROM THE APPELATE DIVISION FROM THE BEGINNING. 196 00:21:03.500 --> 00:21:06.768 JUSTICE WAINER APTER: I THOUGHT HIS POINT SORRY WAS THAT SHAKING ONLY 197 00:21:06.768 --> 00:21:13.078 OR SHAKING WITH IMPACT ON A SOFT SURFACE FOR WHICH THERE IS NO EXTERNAL SIGN IS 198 00:21:13.078 --> 00:21:19.342 THE SAME AND THAT IS SBS AND THAT THE STATE KEEPS TRYING TO CONFLATE THAT 199 00:21:19.342 --> 00:21:26.125 WITH AHT WHICH CAN INVOLVE LOTS OF EXTERNAL SIGNS OF INJURY. 200 00:21:26.125 --> 00:21:33.296 MR. LISTON MAY OR MAY NOT. I MEAN THERE IS EVIDENCE -- DOCTOR VAN E, OUR STUDIES 201 00:21:33.296 --> 00:21:38.833 AND THINK BEEN DISCUSSED TODAY INDICATING THERE COULD BE IMPACT EVEN ON A 202 00:21:38.833 --> 00:21:47.780 HARD SURFACE WITHOUT SIGNS OF IMPACT INITIALLY THAT HAVEN'T VISIBLE UNTIL AUTOPSY. 203 00:21:47.780 --> 00:21:50.018 JUSTICE PATTERSON: DID I UNDERSTAND YOU TO BE SAYING THAT 204 00:21:50.018 --> 00:21:58.837 MR. MEDICINE OPINION WAS NOT AN OPINION THAT THERE WAS SBS IN THIS CASE SOMETHING 205 00:21:58.837 --> 00:22:05.146 DIFFERENT FROM THAT. MR. LISTON SHS. JUSTICE 206 00:22:05.146 --> 00:22:16.257 PATTERSON: SORRY SBS S- S. MR. LISTON WHAT HE INTRODUCED IS BATE. 207 00:22:16.257 --> 00:22:24.391 BUT SHAKE ALEN OR OR IMPACT IS POSSIBLE CAUSES OF ABUSIVE HEAD TRAUMA. 208 00:22:24.391 --> 00:22:28.890 JUSTICE WAINER APTER: YOU ARE SAYING SBS AN AHT ARE THE SAME. 209 00:22:28.890 --> 00:22:34.982 AHT USED TO BE CALLED SBS IS WHAT YOU JUST SAID. MR. LISTON 210 00:22:34.982 --> 00:22:43.082 RIGHT BUT REALLY JUST A NAME. /EURBUAL SHAWN BABY HAS STUCK. IT IS A SHAME BECAUSE 211 00:22:43.082 --> 00:22:46.374 ABUSIVE HEAD TRAUMA IS MORE ACCURATE. JUSTICE PIERRE LOUIS: 212 00:22:46.374 --> 00:22:53.473 THINK HE WAS ARGUMENT THAT SHAKEN BABY SYNDROME GENERALLY INCLUDES AGAIN HEAD 213 00:22:53.473 --> 00:22:57.432 TRAUMA THAT THAT COULD BE IN A LOT OF WAYS AND I BELIEVE A LOT OF STUDIES 214 00:22:57.432 --> 00:23:02.554 AN ALOT OF THE LITERATURE THAT THE STATE IS RELYING ON DISCUSS HE IS ABUSIVE HEAD 215 00:23:02.554 --> 00:23:06.938 TRAUMA GENERALLY AND THE ACCEPTANCE OF ABUSIVE HEAD TRAUMA /SKWR-RPBLY AND 216 00:23:06.938 --> 00:23:15.173 NOT SPECIFICALLY /SPW*S WHICH IS WHAT WE FOCUSED ON HERE. THAT WAS HIS ARGUMENT. 217 00:23:15.173 --> 00:23:22.898 HOW DO YOU RESPOND TO THAT THAT A LOT OF STATE IS ARGUING S- S THAT HAPPENS 218 00:23:22.898 --> 00:23:33.373 IN CHILDREN TO EVERYONE. MR. LISTON I WOULD SAY THE MEDICAL COMMUNITY 219 00:23:33.373 --> 00:23:37.109 DOESN'T MAKE THAT DISTINCTION. THERE MAY. JUSTICE PIERRE LOUIS: 220 00:23:37.109 --> 00:23:43.214 SHOULDN'T THERE BE THAT DISTINCTION WE TALKED AT LENGTH THE DIFFERENCES 2010 221 00:23:43.214 --> 00:23:48.826 -- YOU MENTIONED IN YOUR ARGUMENT ONLY. BABIES AN INFANTS ARE NOT SMALL ANTERIOR 222 00:23:48.826 --> 00:23:55.591 /TKULTS. THERE IS A BIG DIFFERENCE IN HOW THEIR BODY REACTION AN BRAIN RESPONDS 223 00:23:55.591 --> 00:24:01.001 TO DIFFERENT TRAUMA. SHOULD THERE BE A DISTINCTION. THAT IS WHAT DEFENSE 224 00:24:01.001 --> 00:24:11.986 IS ARGUING. THAT DISTINCTION IS NOT MADE AND THAT IN LIES WHY THESE MEDICAL 225 00:24:11.986 --> 00:24:19.736 ORGANIZATIONS ARE ACCEPTING OF ABUSIVE HEAD TRAUMA WHICH NOT SPECIFIC FOCUS ON SHAKEN 226 00:24:19.736 --> 00:24:22.835 BABY SYNDROME. AGAIN THE MEDICAL COMMUNITY DOES. MR. LISTON 227 00:24:22.835 --> 00:24:28.038 DOES GENERALLY ACCEPT THAT SHAKE AGO LOAN CAN CAUSE SYMPTOMS TRADITIONALLY ACCEPTED 228 00:24:28.038 --> 00:24:31.715 WITH. JUSTICE WAINER APTER: THINK ONE OF THE THINGS WE ARE 229 00:24:31.715 --> 00:24:39.849 UNDER DIFFICULTY UNDERSTANDING IS AHT -- IF AN ADULT IS HID IN THE HEAD WITH A 230 00:24:39.849 --> 00:24:52.313 BREAK COULD IT BE BATE OR IT IS ONLY /HROEUG /STKPWHRAOEUFRPBLGTS 231 00:24:52.313 --> 00:25:35.731 /STKPWHRAOEUFRPBLTS LET ME SAY THIS. THE CDC DEFINES ABUSIVE HEAD TRAUMA REALLY 232 00:25:35.731 --> 00:25:43.105 ONLY TALKING ABOUT CHILDREN LIKE INFANTS SO ABUSIVE HEAD TRAUMA THEY DON'T USE 233 00:25:43.105 --> 00:25:49.486 IN REFERENCE TO ADULTS AND I BEST YOU COULD CALL IT A FLAW IN WHAT IT IS 234 00:25:49.486 --> 00:25:56.128 A NAMED. BUT PERHAPS THAT IS -- I HOPE THAT CLARIFIES SOMEWHAT ON THAT POINT. 235 00:25:56.128 --> 00:26:05.805 BUT AS FAR AS SHAKEN BABY SYNDROME MR. MASON DID ACCURATELY DESCRIBE IT 236 00:26:05.805 --> 00:26:14.919 AS A SUBSET OF ABUSIVE HEAD TRAUMA BUT BRINGING IT BACK TO THIS CASE AND WHAT DR. 237 00:26:14.919 --> 00:26:19.812 MEDINA ACTUALLY DIAGNOSED IT WAS ABUSIVE HEAD TRAUMA PROVIDING THAT SHAKING IS 238 00:26:19.812 --> 00:26:26.969 A POSSIBLE MECHANISM. BUT NOT -- NOT DEFINITELY THAT. AND AS FAR AS THE 239 00:26:26.969 --> 00:26:35.558 SHAKEN AGAINST A SOFT SURFACE THAT CAME ABOUT IN CROSS-EXAMINATION IN RESPONSE 240 00:26:35.558 --> 00:26:42.282 TO -- LIKE A QUESTION LIKE COULD SHAKING WITH IMPACT I BELIEVE NO VISIBLE 241 00:26:42.282 --> 00:26:51.406 SIGNS OF INJURY AND DR. MEDINA SAY SAID YES SHAKING IMPACT AGAINST A SOFT SURFACE. 242 00:26:51.406 --> 00:26:55.302 JUSTICE PATTERSON: IS DR. MEDINA OPINION THAT THIS WAS A 243 00:26:55.302 --> 00:27:03.224 CASE OF SHAKEN BABY SYNDROME OR WAS SHE SAYING IT IS AHT AND ONE POSSIBLE CAUSE 244 00:27:03.224 --> 00:27:14.735 OF IT WAS S- S LEX LIST THE LATER. JUSTICE PATTERSON: THAT 245 00:27:14.735 --> 00:27:17.794 WAS THE OPINION THAT STRICKEN IN THIS CASE. CHIEF JUSTICE 246 00:27:17.794 --> 00:27:23.461 RABNER: GO BACK ONE STEP AND GIVE US A SUSPICION STATEMENT AS TO YOUR POSITION OF 247 00:27:23.461 --> 00:27:30.729 THE DIFFERENCE 2010 S- S AND AHT. MR. LISTON WELL, A NAME 248 00:27:30.729 --> 00:27:40.736 AND WHEN THAT CHANGE OCCURRED IT IS A LITTLE BIT CONFUSING BECAUSE WHAT'S 249 00:27:40.736 --> 00:27:44.154 USED. JUSTICE PIERRE LOUIS: BUT YOU JUST SAID SBS IS SUBSET 250 00:27:44.154 --> 00:27:49.892 OF AHT SO WHAT IS THE DIFFERENCE. BECAUSE IF SOMETHING IS SUBSET OF SOMETHING 251 00:27:49.892 --> 00:27:54.777 ELSE THAT MEANS THAT. CHIEF JUSTICE RABNER: NOT THE SAME. 252 00:27:54.777 --> 00:28:01.086 MR. LISTON RIGHT AS FAR AS THE SUBSET PART RIGHT I UNDERSTAND YOUR HONOR'S 253 00:28:01.086 --> 00:28:08.810 QUESTION. I GUESS WHERE A MECHANISM OF SHAKING IS KNOWN TO SOME DEGREE. 254 00:28:08.810 --> 00:28:11.483 CHIEF JUSTICE RABNER: WHICH ARE YOU REFERRING TO. MR. LISTON 255 00:28:11.483 --> 00:28:14.795 SHAKEN BABY SYNDROME. CHIEF JUSTICE RABNER: GIVE US /SUS /PEUPBT 256 00:28:14.795 --> 00:28:21.959 WHAT THAT IS AND HOW DISTINCT FROM AHT LISTLY WOULD GIVE YOU THE STATE'S 257 00:28:21.959 --> 00:28:26.803 POSSESSION ON THAT BUT ASK THAT YOU REFER TO MEDICAL LITERATURE ON THAT QUESTION. 258 00:28:26.803 --> 00:28:32.024 BUT SHAKEN BABY SYNDROME IS A FORM OF ABUSIVE HEAD TRAUMA WHERE SHAKING 259 00:28:32.024 --> 00:28:38.619 IS THE MECHANISM OF INJURY. JUSTICE WAINER APTER: AS OPPOSED TO 260 00:28:38.619 --> 00:28:43.125 AHT WHICH IS WHAT. MR. LISTON WHICH TRAUMATIC BRAIN INJURY 261 00:28:43.125 --> 00:28:53.190 TO INFANTS SKULL CAUSED BY INFLICTED TRAUMA FROM BLUNT IMPACT OR MAKE 262 00:28:53.190 --> 00:28:58.601 SHAKING OR SHAKING WITH IMPACT OR A CRUST EVENT. JUSTICE WAINER 263 00:28:58.601 --> 00:29:04.943 APTER: SO IF IT IS AN ACCIDENT ALL CAR ACCIDENT IS DIAGNOSIS AHT. 264 00:29:04.943 --> 00:29:09.497 MR. LISTON NO BECAUSE THERE IS NO ABUSE. AN ASSUMING IT IS KNOWN TO THE DOCTOR 265 00:29:09.497 --> 00:29:11.963 THAT WOULD BE SOMETHING THAT WOULD. JUSTICE WAINER APTER: 266 00:29:11.963 --> 00:29:17.193 JUST ABOUT WHETHER IMPACT AGAINST A HARD SERVICE WHEN SOMEONE IS SHAKING. 267 00:29:17.193 --> 00:29:22.896 MR. LISTON NOT. I AM SORRY YOUR HONOR REPEAT THE QUESTION W. 268 00:29:22.896 --> 00:29:26.230 JUSTICE WAINER APTER: JUST AGAIN TRYING TO FIGURE OUT THE DIFFERENCE /SAFPLT HS 269 00:29:26.230 --> 00:29:35.397 AN SBS. IS THE OWN DIFFERENCE THERE IS IMPACT AGAINST A HARD SURFACE WHILE 270 00:29:35.397 --> 00:29:39.689 SHAKING. MR. LISTON NO SHAKING IS A POSSIBLE MECHANISM OF 271 00:29:39.689 --> 00:29:42.650 ABUSIVE HEAD TRAUMA ABUSIVE HEAD TRAUMA. CHIEF JUSTICE RABNER: SHAKING 272 00:29:42.650 --> 00:29:49.790 ALONE. JUSTICE WAINER APTER: HOW IS AHT BROAD ER THAN SBS 273 00:29:49.790 --> 00:30:02.204 MAIMS A SUBSET OF AHT WHAT CONSTITUTES AHT THAT DOESN'T CONSTITUTE SBS. 274 00:30:02.204 --> 00:30:08.189 MR. LISTON OTHER INJURY. BLUNT IMPACT AN CRUST IN ADDITION TO SHAKING AS ANOTHER 275 00:30:08.189 --> 00:30:13.550 ALTERNATIVE. JUSTICE PATTERSON: IS AHT LIMITED TO INFANTS. 276 00:30:13.550 --> 00:30:18.407 MR. LISTON WHAT. IN FACT, IF YOU ALLOW ME -- NO, I DON'T. 277 00:30:18.407 --> 00:30:31.415 I DID GET THE LACE EVIDENT CDC DEFINITION OF ABUSIVE HEAD TRAUMA. FROM CDC WEAPON 278 00:30:31.415 --> 00:30:39.592 SITE LAST UPDATED MAY 262024 WHAT IS ABUSIVE HEAD TRAUMA ABUSIVE HEAD 279 00:30:39.592 --> 00:30:44.262 TRAUMA INCLUDING SHAKEN BABY SYNDROME SEVERE FORM OF CHILD ABUSE RESULTS IN BRAIN 280 00:30:44.262 --> 00:30:49.408 INJURY. OFTEN HAPPENS WHICH PARENT OR CARE GIVER BECOMES FRUSTRATED FROM 281 00:30:49.408 --> 00:30:55.713 CRYING. CAUSED VIOLATE SHAKING AND/OR BLUNT IMPACT. CAN CAUSE BLEEDING AROUND 282 00:30:55.713 --> 00:30:59.145 THE BRAIN OR BREEDING BEHIND THE EYES. JUSTICE HOFFMAN: WHAT IS 283 00:30:59.145 --> 00:31:08.183 THE DIFFERENT BETWEEN AHT AN /SHAEPB SHAKEN BABY SYNDROME WITHOUT IMPACT. 284 00:31:08.183 --> 00:31:11.271 MR. LISTON IT IS SUBSUMED WIN ABROUGHT ER ABUSIVE HEAD TRAUMA 285 00:31:11.271 --> 00:31:13.729 ABUSIVE HEAD TRAUMA DIAGNOSIS. JUSTICE HOFFMAN: WANT TO MAKE SURE 286 00:31:13.729 --> 00:31:18.306 YOU ARE ANSWERING BY QUESTION. JUSTICE HOFFMAN: DIFFERENT 287 00:31:18.306 --> 00:31:22.868 BETWEEN AHT AN SHAKEN BABY SYNDROME WITH OR WITHOUT IMPACT. WHAT IS THE 288 00:31:22.868 --> 00:31:28.495 DIFFERENCE. MR. LISTON WELL, ONE IS PART OF -- IT IS A FORM. 289 00:31:28.495 --> 00:31:34.675 OTHER. SHAKEN BABY SYNDROME IS A FORM OF ABUSIVE HEAD TRAUMA. 290 00:31:34.675 --> 00:31:42.305 CHIEF JUSTICE RABNER: IS /SHAEPB BABY SYNDROME CONDUCT THAT INVOLVES WITH OR 291 00:31:42.305 --> 00:31:47.758 WITHOUT IMPACT. MR. LISTON THOSE ARE BOTH POSSIBLE /TPOERPBLG. 292 00:31:47.758 --> 00:31:51.196 ABUSIVE HEAD TRAUMA ABUSIVE HEAD TRAUMA. CHIEF JUSTICE RABNER: I AM 293 00:31:51.196 --> 00:31:55.643 TALK THE SHAKEN BABY SYNDROME YOU TOLD US AHT AN TRYING TO DISTINGUISH BETWEEN 294 00:31:55.643 --> 00:32:02.546 THE TWO. SBS IN IT IS COURT INVOLVES WHAT ACCORDING THE STATE, SHAKING, ANYTHING 295 00:32:02.546 --> 00:32:11.300 ELSE. ANY QUALIFICATION TO SHAKING. IS IT BOTH WITH AND WITHOUT IMPACT. 296 00:32:11.300 --> 00:32:15.717 MR. LISTON I BELIEVE SO. YES. BUT AGAIN THE. 297 00:32:15.717 --> 00:32:20.371 JUSTICE WAINER APTER: THE DEFINITION FOR AHT SAID VIOLATE SHAKING AND/OR BLUNT 298 00:32:20.371 --> 00:32:25.691 IMPACT. SO THINK THAT IS NOT WHERE WE ARE UNDERSTANDING. SOUND LIKE DEFINITIONS 299 00:32:25.691 --> 00:32:31.962 ARE THE SAME. SHAKING WITH OR WITHOUT IMPACT. CHIEF JUSTICE 300 00:32:31.962 --> 00:32:37.224 RABNER: YOU CAN ALSO TELL US WHERE TO LOOK FOR IT INSTEAD OF CONTINUING WITH THAT 301 00:32:37.224 --> 00:32:42.863 THIS IF IT IS MORE PRODUCTIVE. MR. LISTON WOULD ASK YOUR HONOR 302 00:32:42.863 --> 00:32:47.346 TO LISTEN TO SCIENTISTS NOT LAWYERS. JUSTICE PATTERSON: WE 303 00:32:47.346 --> 00:32:51.791 WANT PEOPLE TO LISTEN TO LAWYERS TO. MR. LISTON AT LEAST IN 304 00:32:51.791 --> 00:32:55.241 TERMING SCIENTIFIC. CHIEF JUSTICE RABNER: WHERE SHOULD WE LOOK 305 00:32:55.241 --> 00:33:01.814 SPECIFICALLY FOR THE DIFFERENCE BETWEEN THESE TWO IMPORTANT TERMS. 306 00:33:01.814 --> 00:33:08.193 MR. LISTON THE /KREUFPLT DC WEBSITE. DON'T HAVE SPECIFIC ADDRESS. DR. MEDINA TESTIMONY 307 00:33:08.193 --> 00:33:16.494 WHICH ALSO IN DEFINING ABUSIVE HEAD TRAUMA CITED CDC. HER WORDING DIFFERED 308 00:33:16.494 --> 00:33:24.036 SLIGHTLY FROM WHAT IS THERE NOW BUT THE SAME BASIC IDEA. I KNOW THAT THIS IS CITED 309 00:33:24.036 --> 00:33:33.592 IN THE STATE'S BRIEF OF COURSE IN THE TRANSCRIPT 4T AS FAR AS THE COMPACT 310 00:33:33.592 --> 00:33:44.408 PAGE I WOULD FEED A MINUTE WITH THAT. H TWO IS 4T SEPTEMBER 29TH TRANSCRIPT. 311 00:33:44.408 --> 00:33:48.517 IT STARTS OUT THE WITNESS OF ABUSIVE HEAD TRAUMA ABUSIVE HEAD TRAUMA. PREPROVIDES 312 00:33:48.517 --> 00:33:55.498 AN ANSWER CITING THE CDC. JUSTICE HOFFMAN: WHEN SHE IS STUDIES 313 00:33:55.498 --> 00:34:00.352 ARE JUST REFERRING TO EHT THEY COULD BE REFERRING TO SHAKEN BABY SYNDROME 314 00:34:00.352 --> 00:34:06.815 WITH IMPACT AND THEY COULD BE REFERRING TO SHAKEN BABY SYNDROME WITHOUT IMPACT, 315 00:34:06.815 --> 00:34:12.559 RIGHT. MR. LISTON YES BUT DEPENDS ON STUDY. INSIDE THE VIN 316 00:34:12.559 --> 00:34:19.619 SHOP STUDIES WE HAVE BEEN TALKING ABOUT. THE POINT OF A LOT OF THOSE IS TO DETERMINE 317 00:34:19.619 --> 00:34:26.742 WHETHER SHAKING ALONE COULD CAUSE THE SYMPTOMS ASSOCIATED INTRACRANIAL 318 00:34:26.742 --> 00:34:31.170 SYMPTOMS ASSOCIATED WITH ABUSIVE HEAD TRAUMA. IN THOSE CASES THAT WOULD BE CALLED 319 00:34:31.170 --> 00:34:35.672 SHAKEN BABY SYNDROME. THE NAME WOULD BE MORE APPROPRIATE THERE BECAUSE LOOKING 320 00:34:35.672 --> 00:34:42.714 FOR CONFECTIONS OR INDEPENDENTLY WITNESSES SHAKING. SO. JUSTICE 321 00:34:42.714 --> 00:34:49.229 HOFFMAN: UNLESS IT IS QUALIFIED. IF WE SEE AHT WE SHOULD ASSUME THEY ARE TALK 322 00:34:49.229 --> 00:34:54.281 ABOUT A SITUATION WHERE THERE MAY OR MAY NOT HAVE BEEN IMPACT. 323 00:34:54.281 --> 00:34:56.901 MR. LISTON THAT IS CORRECT. JUSTICE PATTERSON: WHAT FORMS OF AHT 324 00:34:56.901 --> 00:35:01.410 EXIST THAT ARE NOT SHAKEN BABY SYNDROME. MR. LISTON AGAIN 325 00:35:01.410 --> 00:35:05.655 THE CDC. JUSTICE PATTERSON: IF YOU HAD A CONVENIENT DIAGRAM 326 00:35:05.655 --> 00:35:10.670 YOU WOULD HAVE ONE WITHIN THE OTHER. MR. LISTON THE ONES THAT DR. 327 00:35:10.670 --> 00:35:19.089 MEDINA CITED ARE BLUNT IMPACT, CRUST OR SHAKING WITHOUT BLUNT IMPACT. COURSE 328 00:35:19.089 --> 00:35:23.247 BLUNT IMPACT COULD MEAN OTHER THINGS. CHIEF JUSTICE RABNER: AS WELL 329 00:35:23.247 --> 00:35:26.877 SHAKING ALONE. MR. LISTON RIGHT ANOTHER POSSIBLE MECHANISM OF 330 00:35:26.877 --> 00:35:32.669 A TRAUMATIC JURY. JUSTICE PATTERSON: SO FOUR CATEGORY I SHAKING 331 00:35:32.669 --> 00:35:40.608 WITH IMPACT SHAKING WITHOUT IMPACT ALL IN THE UP /PWREL AOF AHT. 332 00:35:40.608 --> 00:35:43.797 MR. LISTON CORRECT. JUSTICE NORIEGA: ONE THE KEY DIFFERENCES IS 333 00:35:43.797 --> 00:35:49.004 THAT SHAKING LOAN IS THE ONLY ONE THAT IS JUST BEEN DESCRIBED THAT SHOWS 334 00:35:49.004 --> 00:35:54.882 NO EXTERNAL EVIDENCE. MR. LISTON RIGHT. THERE MAYBE CASES WHERE 335 00:35:54.882 --> 00:36:01.938 IT DOES IN TERMS OF YOU GET BROKEN RIBS FROM IF YOU HAVE A CONFESSION WHERE 336 00:36:01.938 --> 00:36:08.586 THE DEFENDANT DESCRIBES I GRABBED HIM BY THE RIB CAGE AN SHOOK LIKE THIS THEN YOU 337 00:36:08.586 --> 00:36:16.380 MIGHT HAVE -- YOU KNOW BRUISE MARKS, BROKEN RIBS. BUT I GUESS. 338 00:36:16.380 --> 00:36:20.057 JUSTICE NORIEGA: BUT SPECIFICALLY GOING TO THE TRIAD AND WHAT WE'VE BEEN DISCUSSING 339 00:36:20.057 --> 00:36:28.119 TODAY WE'VE GOT SHAKING ALONE AND WITHOUT IMPACT RIGHT AS DISTINCT THE FROM 340 00:36:28.119 --> 00:36:34.091 SHAKING ALONE WITH IMPACT AND OTHERS YOU DEFINED IN TERMS OF CRUST OR COMPRESSING 341 00:36:34.091 --> 00:36:40.045 IN SOME WITH A. OTHERS WOULD ALL HAVE EXTERNAL INDICATORS. MR. 342 00:36:40.045 --> 00:36:45.388 LISTON NOT NECESSARILY. THERE MAYBE IMPACT THAT LEAVES NO VISIBLE MARK AS THE DOCTOR 343 00:36:45.388 --> 00:36:51.048 AGREED. NOTHING VISIBLE UNTIL AUTOPSY UNFORTUNATELY /PW-BGSZ NECESSARY. 344 00:36:51.048 --> 00:36:53.865 CHIEF JUSTICE RABNER: CAN YOU GIVE US AN EXAMPLE WHERE THERE IS 345 00:36:53.865 --> 00:36:59.716 NO OVERLAP BETWEEN THE TWO DETERMINES. MR. LISTON I GUESS 346 00:36:59.716 --> 00:37:10.047 EYE CASE WHERE FROM IS CORROBORATION SOME SEA WITNESS ACCOUNT AN ENOUGH EVIDENCE 347 00:37:10.047 --> 00:37:17.954 TO SAY SHAKE AGO LOAN WAS DEFINITELY THE ONLY -- ONLY MECHANISM OF INJURY. 348 00:37:17.954 --> 00:37:21.631 CHIEF JUSTICE RABNER: WE WOULD NEED TO TURN TO AN INDEPENDENT SEPARATE WITNESS 349 00:37:21.631 --> 00:37:26.381 TO MAKE A DETERMINATION ABOUT THIS MEDICAL TERM. MR. LISTON 350 00:37:26.381 --> 00:37:29.020 YOU ARE ASKING IF WE HAVE TO DO THAT. CHIEF JUSTICE RABNER: 351 00:37:29.020 --> 00:37:36.686 YES LIST /HREUSZ OR SOME VIDEO EVIDENCE IF IT EXISTED. THINK THE POINT IS THAT 352 00:37:36.686 --> 00:37:43.668 IF -- WE WOULD NEED A BASIS FOR DECIDING THAT SHAKING WAS DEFINITELY THE MECHANISM. 353 00:37:43.668 --> 00:37:50.020 BUT WHAT AHT DIAGNOSIS DEALS WITH. JUSTICE PATTERSON: IF 354 00:37:50.020 --> 00:37:58.062 IT'S SUBSET THAN ALL CASES OF SHAKEN BABY SYNDROME ARE AHT CASES BUT NOT ALL 355 00:37:58.062 --> 00:38:07.486 CASES OF AHT ARE SHAKEN BABY SYNDROME RIGHT. MR. LISTON RIGHT. 356 00:38:07.486 --> 00:38:12.076 JUSTICE HOFFMAN: RELY ON COME TO KNOW CASE IN YOUR BRIEFING. THAT IS SHAKEN 357 00:38:12.076 --> 00:38:18.292 BABY SYNDROME WITH IMPACT. MR. LISTON I BELIEVE SO. I MEAN 358 00:38:18.292 --> 00:38:26.558 IT'S -- THE STATE ONLY CITED AS AN EXAMPLE OF WHERE THE DIAGNOSIS WAS ACCEPTED 359 00:38:26.558 --> 00:38:31.519 AS RELIABLE. I MEAN. JUSTICE HOFFMAN: IN FACT, THE BABY IS 360 00:38:31.519 --> 00:38:36.379 DROPPED FROM SEVEN FEET. MEDICAL EXAMINER SAID SHAKING ALONE COULD NOT HAVE CAUSED 361 00:38:36.379 --> 00:38:42.483 THIS INJURY. SO QUITE A /KWEURB ABLE FACT PATTERN WOULDN'T YOU AGREE THAN THE 362 00:38:42.483 --> 00:38:47.998 FACT PATTERNS WE HAVE BEFORE US. MR. LISTON AS YOUR HONOR 363 00:38:47.998 --> 00:38:54.866 DESCRIBED BEFORE YES. YES. BUT I GUESS JUST IN TERMS OF COMING BACK TO THE 364 00:38:54.866 --> 00:38:59.690 QUESTION OF GENERAL ACCEPTANCE HOW ABUSIVE HEAD TRAUMA IS DEFINED WITHIN THE MEDICAL 365 00:38:59.690 --> 00:39:06.255 COMMUNITY WHETHER GENERALLY ACCEPTED AS RELIABLE. AGAIN THE PROCESS OF 366 00:39:06.255 --> 00:39:13.897 IDENTIFYING INSTRUCTED TRAUMA AS CAUSE OF INJURIES, THAT IS -- WHAT IS UNDER 367 00:39:13.897 --> 00:39:18.541 REVIEW HERE THAT METHODOLOGY IS GENERALLY ACCEPTED. CHIEF JUSTICE 368 00:39:18.541 --> 00:39:23.261 RABNER: COUNSEL ON THE QUESTION THAT WAS POSED EARLIER TO YOUR COLLEAGUES 369 00:39:23.261 --> 00:39:31.462 ACROSS THE AISLE. BESIDES GENERAL ACCEPTANCE WITHIN THE PICK A SIDE MEDICAL 370 00:39:31.462 --> 00:39:37.529 COMMUNITY OR THE COURTS. MR. LISTON MEDICAL COMMUNITY. 371 00:39:37.529 --> 00:39:43.050 CHIEF JUSTICE RABNER: GENERAL ACCEPTS THAN FRY IS DECIDED BY DOCTORS. 372 00:39:43.050 --> 00:39:51.403 MR. LISTON WELL, NOT -- SCIENTISTS. THAT IS FOR SURE. I MEAN STATE'S UNDERSTANDING. 373 00:39:51.403 --> 00:39:53.891 CHIEF JUSTICE RABNER: RESPECTFULLY THEN WHAT ARE WE DOING 374 00:39:53.891 --> 00:39:58.884 HERE. IF THAT WERE TRUE THE QUESTION OF ADMISSIBILITY AN GENERAL ACCEPTANCE THAT 375 00:39:58.884 --> 00:40:04.389 LIES AT THE COURT OF THAT UNDER FRY IS A QUESTION OF LEGAL ADMISSIBILITY. 376 00:40:04.389 --> 00:40:10.584 WHO DECIDES THAT THE MEDICAL COMMUNITY OR THE COURTS ON THAT CRITICAL QUESTION 377 00:40:10.584 --> 00:40:14.366 OF GENERAL ACCEPTANCE. MR. LISTON MISUNDERSTOOD YOUR HONOR'S 378 00:40:14.366 --> 00:40:19.001 QUESTION. WELL, THE COURTS DECIDE WHAT HAS BEEN GENERALLY ACCEPTED WITHIN 379 00:40:19.001 --> 00:40:25.741 THE RELEVANT SCIENTIFIC COMMUNITY. AND THAT WAS -- I QUOTED HARVEY. KNOW IN 380 00:40:25.741 --> 00:40:31.914 MY EARLIER STATEMENT -- JUSTICE PATTERSON: FRY THE IT APPEARS 381 00:40:31.914 --> 00:40:35.532 EVIDENCE WHAT IS GENERALLY ACCEPTED IN THE MEDICAL COMMUNITY IS ULTIMATELY 382 00:40:35.532 --> 00:40:40.635 THE COURTS'S DECISION. MR. LISTON RIGHT. BUT I AM SORRY THINK 383 00:40:40.635 --> 00:40:48.217 STATE VERSUS CONTACT VAL OWE SAYING JUDGES ARE NOT PARAGRAPHING NOW JUDGES ARE NOT 384 00:40:48.217 --> 00:40:54.474 GOOD AT DETERMINING -- NOT QUALIFIED TO DETERMINE WHAT IS SCIENTIFICALLY LEE 385 00:40:54.474 --> 00:40:58.922 LIABLE BUT CAN DETERMINE WHAT HAS BEEN GENERALLY ACCEPTED WITHIN THE SCIENTIFIC 386 00:40:58.922 --> 00:41:02.971 COMMUNITY AS SCIENTIFICALLY RELIABLE. JUSTICE PATTERSON: 387 00:41:02.971 --> 00:41:07.791 THAT CUTS AGAIN DAUBERT ABET DOESN'T IT. MR. LISTON YES. 388 00:41:07.791 --> 00:41:17.439 THE COURT IS UNDERSTAND BY MOVED FOR BECAUSE BETTER IN CROSS-EXAMINATION. 389 00:41:17.439 --> 00:41:20.682 JUSTICE PATTERSON: UNDER FRY. MR. LISTON THAT WOULD BE 390 00:41:20.682 --> 00:41:26.186 AN ARGUMENT IN THE ALTERNATIVE THE SPECIAL MASTER PROPOSAL. IF THAT IS 391 00:41:26.186 --> 00:41:32.256 CONSIDERED BY THE COURT TO BE A SUPERIOR APPROACH TO DETERMINE THE RELIGHT OF SCIENTIFIC 392 00:41:32.256 --> 00:41:37.747 EVIDENCE THIS VERY IMPORTANT SUBJECT IS WORTHY OF. CHIEF JUSTICE 393 00:41:37.747 --> 00:41:46.177 RABNER: HAVE TO TURN AWAY FROM THE LANGUAGE IT IS PERSPECTIVE ONLY IN ORDER TO GET 394 00:41:46.177 --> 00:41:54.420 THERE THAT FAIR. MR. LISTON IN ORDER TO GET THERE. 395 00:41:54.420 --> 00:41:59.076 CHIEF JUSTICE RABNER: IN ORDER TO CONDUCT DAUBERT HEARING ON REMAND YOUR ALTERNATIVE 396 00:41:59.076 --> 00:42:04.546 PROPOSAL. MR. LISTON WELL, JUST SEEMS LIKE THE RIGHT THING. 397 00:42:04.546 --> 00:42:10.812 AGAIN THE STATE'S PRIMARY POSITION IS IT ESTABLISHED GENERAL ACCEPTANCE UNDER THE 398 00:42:10.812 --> 00:42:16.379 FRY TEST AND APPELLATE DIVISION SHOULD BE REVERSED. BUT IF THE COURT SEES 399 00:42:16.379 --> 00:42:23.471 A PROBLEM OF WELL IT WAS NOT SUCH A BIG DEAL IN OLD NOW SKI BECAUSE WE HAD MEDICINE 400 00:42:23.471 --> 00:42:30.916 AN TOXICOLOGY AS TWO FIELDS OF INJURY RELEVANT TO THE GENERAL ACCEPTANCE 401 00:42:30.916 --> 00:42:36.078 QUESTION IT DIDN'T SEEM TO CAUSE A PROBLEM HERE BUT OBVIOUSLY THERE IS. THERE SEEMS 402 00:42:36.078 --> 00:42:40.828 TO BE A DISPUTE. YOU KNOW HOW MUCH -- WHICH IS RELEVANT COMMUNITY IF IT'S 403 00:42:40.828 --> 00:42:47.296 BOTH HOW MUCH WEIGHT GIVEN TO EACH. I DAUBERT ANALYSIS COULD AVOID THAT. 404 00:42:47.296 --> 00:42:50.800 CHIEF JUSTICE RABNER: IS YOUR POSITION CONSISTENT WITH THE LANGUAGE IN 405 00:42:50.800 --> 00:42:54.334 OLENOWSKI ONE. MR. LISTON REGARDING. CHIEF JUSTICE 406 00:42:54.334 --> 00:42:59.474 RABNER: PROS PECKITIVITY ONLY. MR. LISTON YES. I MEAN YES. THE STATE 407 00:42:59.474 --> 00:43:04.988 SUBMITTED SOME BIOMECHANIC STUDY. THERE IS THE FACT THAT THE STATE HAS 408 00:43:04.988 --> 00:43:13.097 A BIOMECHANICAL EXPERT WHO COULD TESTIFY THAT STUDIES COULD SUPPORT THE ABUSE. 409 00:43:13.097 --> 00:43:15.865 JUSTICE PATTERSON: THOUGHT /WUFPLT /WEUFPLT THAT YOU HAD 410 00:43:15.865 --> 00:43:21.815 THERE IT IS ACTUALLY THERE SHOULD BE SPECIAL /SKWR-RBGT OR TO DECIDE ADMISSIBLE 411 00:43:21.815 --> 00:43:27.102 UNDER DAUBERT. MR. LISTON YES THAT IS WHAT THE STATE 412 00:43:27.102 --> 00:43:30.811 REQUESTED. JUSTICE HOFFMAN: COUNSEL CAN I SAY WHAT I'M STRUGGLING 413 00:43:30.811 --> 00:43:35.766 WITH. YOU SEEM TO BE SAYING FOR THESE PURPOSES THERE REALLY IS NO DIFFERENCE 414 00:43:35.766 --> 00:43:40.257 BETWEEN THE WITH OR WITHOUT IMPACT PART. BUT IT WOULD SAME TO KNEE GOING BACK 415 00:43:40.257 --> 00:43:45.446 TO WHAT WE TALKED ABOUT EARLIER THAT BIOMECHANICS WOULD PLAY A VERY DIFFERENT ROLE 416 00:43:45.446 --> 00:43:51.284 IF IT WAS A CASE WITH IMPACT OR A CASE WITHOUT IMPACT. BECAUSE IF IT'S JUST 417 00:43:51.284 --> 00:43:57.651 PURE SHAKING BIOMECHANICS SEEM TO BE MUCH MORE RELEVANT THAN IT WOULD BE IF IT WAS 418 00:43:57.651 --> 00:44:06.720 A CASE OF SHAKING WITH IMPACT. I GUESS I AM JUST ASKING HOW DO YOU RESPOND TO 419 00:44:06.720 --> 00:44:10.046 THAT. MR. LISTON I HATE TO GIVE THE SAME ANSWER I BELIEVE 420 00:44:10.046 --> 00:44:21.092 I GAVE BEFORE BUT I GUESS THE SHAKING WITH IMPACT IS SOMETHING THAT BIOMECHANICS 421 00:44:21.092 --> 00:44:28.949 WOULD BE MORE SUPPORTIVE OF. THE QUESTION SEEMS TO BE -- JUSTICE 422 00:44:28.949 --> 00:44:32.391 PATTERSON: SUPPORTIVE OF WHAT. MR. LISTON IF THERE WERE A DIAGNOSIS 423 00:44:32.391 --> 00:44:39.870 MADE YOU KNOW OF SHAKING WITH IMPACT BIOMECHANICS SEEM TO AGREE THAT AT 424 00:44:39.870 --> 00:44:47.567 LEAST THE IMPACT CAN CAUSE THE INJURIES ASSOCIATED WITH ABUSIVE HEAD TRAUMA, CEREBRAL 425 00:44:47.567 --> 00:44:53.555 HEMORRHAGES SEVERE RETINAL HEMORRHAGES WHERE THERE IS LESS AGREEMENT ON 426 00:44:53.555 --> 00:45:00.686 SHAKING ALONE AS A MECHANISM OF INJURY. SO IN TERMS OF RELEVANCE OF BIOMECHANICS 427 00:45:00.686 --> 00:45:06.839 I GUESS THAT'S WHERE -- I THINK THAT IS WHERE MOTOR VEHICLES WOULD STAND 428 00:45:06.839 --> 00:45:11.078 ON THERE. JUSTICE HOFFMAN: IF THERE IS LET'S AGREEMENT FROM 429 00:45:11.078 --> 00:45:17.514 MATHEMATICAL /SERBT IF THERE IS LESS AGREEMENT THERE IS LESS CERTAINTY RIGHT. 430 00:45:17.514 --> 00:45:22.569 MR. LISTON IF WE ARE -- IF WE ARE CONSIDERING BIOMECHANICS 431 00:45:22.569 --> 00:45:30.481 OPINION ON THAT, THEN THEN YES. JUSTICE HOFFMAN: WE ALL AGREE 432 00:45:30.481 --> 00:45:34.387 BIOMECHANICS DOES PLAY A ROLE IN THIS. SOMEONE OF FACTORS THAT DOES PLAY 433 00:45:34.387 --> 00:45:41.163 A ROLE IN THERE -- FOR ONE THE FACTORS THAT DOES PLAY A ROLE IN THERE THERE WOULD BE 434 00:45:41.163 --> 00:45:47.375 LESS CERTAINTY AS OPPOSED TO SHAKING AND SHAKING WITH IMPACT. MR. 435 00:45:47.375 --> 00:45:54.878 LISTON THINK THERE WOULD BE MORE -- BIOMECHANICS WILL TO ACCEPT THE IMPACT AS THE 436 00:45:54.878 --> 00:46:01.572 CAUSE OF INJURIES IF THAT IS WHAT YOUR HONOR IS GETTING AT MORE BIOMECHANIC 437 00:46:01.572 --> 00:46:05.401 SUPPORT FOR SHAKING ALONE VERSUS SHAKING WITH IMPACT. JUSTICE 438 00:46:05.401 --> 00:46:09.953 PATTERSON: BUT YOUR EXPERT PHRASED IT WITH OR WITHOUT. IN OTHER WORDS YOUR EXPERT 439 00:46:09.953 --> 00:46:15.092 DIDN'T TESTIFY IN MY MEDICAL OPINION REASONABLE DEGREE OF MEDICAL CERTAINTY 440 00:46:15.092 --> 00:46:21.430 I CONSIDER THIS TO BE A CASE OF SHAKING WITH IMPACT. MR. LISTON 441 00:46:21.430 --> 00:46:24.561 RIGHT. JUSTICE PATTERSON: IT WAS SHAKING WITH OR WITHOUT 442 00:46:24.561 --> 00:46:30.429 IMPACT. SO WHAT I THINK YOU ARE SAYING IS THAT SHAKING WITH IMPACT HAS A VERY 443 00:46:30.429 --> 00:46:37.775 SOLID CONSENSUS EVEN IN BIOMECHANICS. MR. LISTON CERTAINLY 444 00:46:37.775 --> 00:46:47.151 IT HAS MORE SUPPORT. AGAIN DOCTOR VAN E DIDN'T SEEM TO QUESTION -- HAD LESS 445 00:46:47.151 --> 00:46:55.431 QUESTION ABOUT IMPACT AS -- WHERE THERE IS I AM BACK INVOLVED. 446 00:46:55.431 --> 00:46:59.274 JUSTICE PATTERSON: WE DISCUSSED OR MAYBE WE DIDN'T ASK YOU THIS. IS THERE A SOCIETY 447 00:46:59.274 --> 00:47:04.978 OF BIOMECHANIC ENGINEERS. MR. LISTON NOT THAT THE STATE IS 448 00:47:04.978 --> 00:47:08.646 AWARE OF. JUSTICE PATTERSON: ARE YOU AGREEING THAT DOCTOR 449 00:47:08.646 --> 00:47:13.947 VAN E IS REPRESENTATIVE BIOMECHANICS AS A WHOLE OR JUST ONE INDIVIDUAL TESTIFYING. 450 00:47:13.947 --> 00:47:16.891 MR. LISTON HE'S ONE INDIVIDUAL TESTIFYING. THERE ARE 451 00:47:16.891 --> 00:47:23.306 OTHER BIOMECHANICAL ENGINEERS WHO CONSIDER ABUSIVE HEAD TRAUMA SHAKING ALONE AS 452 00:47:23.306 --> 00:47:31.669 ABUSIVE HEAD TRAUMA CONSIDER THAT TO BE RELIABLE, A REAL DIAGNOSIS. THOSE 453 00:47:31.669 --> 00:47:37.445 SAME /PWO*EBG WOULD AGREE WITH DOCTOR VAN E ABOUT THERE NOT BEING A CONSENSUS SO 454 00:47:37.445 --> 00:47:44.149 SORT OF DEPENDS ON THE BIOMECHANICAL ENGINEER YOU ASK ABOUT THAT QUESTION AS 455 00:47:44.149 --> 00:47:52.721 FAR AS WHETHER IT'S BEEN SUFFICIENTLY PROVEN. BUT NO, NO -- NO SOCIETIES THAT 456 00:47:52.721 --> 00:47:57.415 THE STATE IS AWARE OF. JUSTICE HOFFMAN: IN ORDER TO ASSESS 457 00:47:57.415 --> 00:48:02.057 RELIABILITY DON'T WE NEED TO KNOW WHETHER DR. MEDINA THINKS THERE WAS OR WAS NOT 458 00:48:02.057 --> 00:48:08.258 IMPACT. MR. LISTON NOT -- THE STATE DOES NOT AGREE WITH THAT. 459 00:48:08.258 --> 00:48:12.701 NO. JUSTICE PATTERSON: PRESUMABLY IF SHE WAS CERTAIN OF THAT 460 00:48:12.701 --> 00:48:17.055 THE ANSWER TO JUSTICE WHO HAVE MANS QUESTION SHE WOULD HAVE TESTIFIED ONE WAY OR 461 00:48:17.055 --> 00:48:20.230 THE OTHER. MR. LISTON RIGHT. JUSTICE PATTERSON: 462 00:48:20.230 --> 00:48:24.324 I THINK TESTIMONY REFLECT DIDN'T KNOW THE ANSWER TO THAT SO DID THIS SORT OF 463 00:48:24.324 --> 00:48:30.104 EITHER OR TESTIMONY. MR. LISTON CORRECT DID NOT WANT TO 464 00:48:30.104 --> 00:48:33.323 SPECULATE. JUSTICE PATTERSON: YES, IT SEEMS A PRETTY 465 00:48:33.323 --> 00:48:39.666 BROAD MOTION WAS BROUGHT TO WAR A WHOLE CATEGORY OF TESTIMONY THAT IN ALL CASES 466 00:48:39.666 --> 00:48:44.326 THAT MAY OR MAY NOT BE IMPLICATED IN THIS CASE. MR. LISTON 467 00:48:44.326 --> 00:48:48.075 STATE WOULD AGREE WITH THAT. JUSTICE PATTERSON: GOES BEYOND THIS 468 00:48:48.075 --> 00:48:52.409 CASE WHAT IS SORT /*R SOUGHT TO BE BARRED MERE. MR. LISTON 469 00:48:52.409 --> 00:49:00.539 YES DEPENDING ON READING -- READING OF THE OPINION HOWEVER IT'S. 470 00:49:00.539 --> 00:49:03.995 JUSTICE PATTERSON: DOES THIS RECORD SUPPORT AN INJURY /*R /TKPWEUR BY THIS COURT 471 00:49:03.995 --> 00:49:10.996 AS TO THE RELIABILITY THAN FRY OF A SUB CATEGORY WHICH WE COULD /TPOURPS 472 00:49:10.996 --> 00:49:21.292 OF A DISCUSSION CALL AHT WITH SHAKE -- WITH SHAKING BUT NO EVIDENCE OF TRAUMA. 473 00:49:21.292 --> 00:49:24.976 DO YOU SEE WHAT I AM SAYING. MR. LISTON YOU SAID NO EVIDENCE 474 00:49:24.976 --> 00:49:28.251 OF TRAUMA -- MEANING NO EVIDENCE OF IMPACT. JUSTICE 475 00:49:28.251 --> 00:49:32.591 PATTERSON: NO EVIDENCE OF IMPACT. I POLL /SKWRAOEUFPLTS SHE HAD SORT OF FORK IN THE 476 00:49:32.591 --> 00:49:37.844 ROAD EITHER OR OPINION BUT I THINK WHAT YOU ARE SAYING IS THAT ONE OF HER 477 00:49:37.844 --> 00:49:46.413 TWO ALTERNATIVE SCENARIOS IS VERY -- QUITE SOLIDLY SUPPORTED BIOMECHANICS AND BOTH 478 00:49:46.413 --> 00:49:53.652 OF SUPPORTED BY AMERICAN ACADEMY OF PEDIATRICIANS SO FORTH. IS THE -- DID 479 00:49:53.652 --> 00:50:00.061 THE ISSUE COME UP ABOUT HER OPINION BECAUSE SHE INCLUDED SHAKING WITHOUT IMPACT 480 00:50:00.061 --> 00:50:07.086 AS WELL AS SHAKING WITH IMPACT. MR. LISTON WELL, I CAN SAY 481 00:50:07.086 --> 00:50:16.265 THAT THE ZEST HAS ARGUED THAT THE STATE WAS REQUIRED TO PROVE SHAKING ALONE 482 00:50:16.265 --> 00:50:23.607 IS THE RELIABLE DIAGNOSIS WHEREAS THE STATE HAS POINTED TO DR. MEDINA ACTUAL WORDS 483 00:50:23.607 --> 00:50:28.022 WHICH INCLUDED THE POSSIBILITY OF IMPACT. CHIEF JUSTICE RABNER: 484 00:50:28.022 --> 00:50:31.598 THERE IS NO EVIDENCE OF IMPACT IN THIS CASE IS THERE. MR. 485 00:50:31.598 --> 00:50:34.892 LISTON NOTHING VISIBLE CORRECT. CHIEF JUSTICE RABNER: SO DOESN'T THAT 486 00:50:34.892 --> 00:50:42.701 HELP US AS TO THE RELEVANCE OF DR. MEDINA TESTIMONY. IT WAS ABOUT NO IMPACT. 487 00:50:42.701 --> 00:50:45.784 MR. LISTON BUT AGAIN THERE IS THE TESTIMONY OF EVEN DOCTOR 488 00:50:45.784 --> 00:50:52.717 VAN E THAT THERE MAY HAVE BEEN IMPACT THAT DIDN'T LEAVE A VISIBLE MARK WHICH OFTEN 489 00:50:52.717 --> 00:50:59.823 HAPPENS CONSENSUS STATEMENT TALKS ABOUT IT. THEY ARE ONLY VISIBLE ON AUTOPSY. 490 00:50:59.823 --> 00:51:07.557 SAME THING WITH NECK INJURY IT'S BEEN ARGUED IF A CHILD WAS SHAKING WITH ENOUGH 491 00:51:07.557 --> 00:51:11.900 FORCE TO SHOW THESE THERE WOULD BE NECK INJURY. IN THIS CASE DOCTOR SHELL 492 00:51:11.900 --> 00:51:17.488 ER TESTIFIED THAT DEDICATED MRI IMAGE OF THE NECK MIGHT HAVE SHOWN NECK INJURY 493 00:51:17.488 --> 00:51:22.517 BUT WASN'T ONE DONE IN THIS CASE. CHIEF JUSTICE RABNER: DOES 494 00:51:22.517 --> 00:51:27.027 THAN THAT TAKE US TO ONE THE CRITICAL REASON WHY HER TESTIMONY WAS IMPORTANT 495 00:51:27.027 --> 00:51:33.527 IN THIS CASE FOR THE STATE TO PROVIDE TESTIMONY ABOUT AN INCIDENT WITHOUT IMPACT, 496 00:51:33.527 --> 00:51:39.829 WITHOUT VISIBLE EVIDENCE OF IMPACT. MR. LISTON YES, THE -- 497 00:51:39.829 --> 00:51:46.538 RIGHT. THE TESTIMONY WOULD BE THAT THE CHILD SUFFERED INJURIES THAT WEREN'T 498 00:51:46.538 --> 00:51:53.334 ON OUTSIDE. INTRACRANIAL HEMORRHAGES AND ENCEPHALOPATHY WHICH DOCTOR MEDICINE 499 00:51:53.334 --> 00:51:59.333 ATTRIBUTED TO THE ABUSE. SO. CHIEF JUSTICE RABNER: AND SHE DID EXPLORE 500 00:51:59.333 --> 00:52:02.535 THAT IN HER AT THE PRESENT TIME. MR. LISTON ENCEPHALOPATHY 501 00:52:02.535 --> 00:52:08.649 -- CHIEF JUSTICE RABNER: ABSENT OF VISIBLE IMPACT. 502 00:52:08.649 --> 00:52:12.082 MR. LISTON YES, IT WAS NOTED ON DIRECT AN ESSENTIALLY CROSS-EXAMINATION. 503 00:52:12.082 --> 00:52:15.399 CHIEF JUSTICE RABNER: KNOW WE KEPT YOU UP HERE FOR QUITE 504 00:52:15.399 --> 00:52:19.203 SOMETIME. WAS THERE SOMETHING ELSE YOU HOPED TO TOUCH UPON. MR. 505 00:52:19.203 --> 00:52:26.687 LISTON I DID MENTION THE ISSUE OF THE NECK AND THIS ASSUMPTION THAT THERE WAS NO 506 00:52:26.687 --> 00:52:32.513 NECK INJURY. NO ACTUALLY. JUSTICE PATTERSON: CAN I ASK ONE 507 00:52:32.513 --> 00:52:36.662 MORE QUESTION. I AM LOOKING AT TRIAL COURT'S OPINION AN TRIAL COURT 508 00:52:36.662 --> 00:52:41.395 EXCLUDED AHT. AM I RIGHT ABOUT THAT. MR. LISTON YES. 509 00:52:41.395 --> 00:52:46.409 JUSTICE PATTERSON: AND YOU ARE SAYING AND SEEMS TO BE AGREEMENT THAT SBS IS SUBSET 510 00:52:46.409 --> 00:52:52.295 OF AHT AND SEEMS TO BE AGREEMENT THAT THERE ARE ASPECTS TO AHT THAT ARE 511 00:52:52.295 --> 00:52:59.232 NOT REALLY EVEN DISPUTED IN TERMS OF THEIR ABILITY -- THEIR AGAIN ACCEPTANCE. 512 00:52:59.232 --> 00:53:03.559 AM I RIGHT ABOUT THAT AS WELL. MR. LISTON I THINK I SPEAK 513 00:53:03.559 --> 00:53:07.411 FOR DEFENDANT WHEN I SAY YES. JUSTICE PATTERSON: SO DID THE 514 00:53:07.411 --> 00:53:16.710 TRIAL COURT PAINT WITH TOO PAINT WITH TOO BROAD A BRUSH. MR. 515 00:53:16.710 --> 00:53:19.833 LISTON YES CERTAINLY BRIEF THE COURT DID. JUSTICE NORIEGA: 516 00:53:19.833 --> 00:53:27.653 CAN I CLARIFY MR. MASON SAID THE CRITICAL QUESTION WAS SCIENTIFIC RELIABILITY OF 517 00:53:27.653 --> 00:53:35.192 SBSSHT WITHOUT IMPACT. IT WAS ISOLATED THAT WAY. ARE YOU ALL ON THE SAME 518 00:53:35.192 --> 00:53:39.987 PAGE THAT IS WHAT WE ARE TALKING ABOUT. MR. LISTON WELL, NO. 519 00:53:39.987 --> 00:53:45.821 AGAIN THE STATE'S POSITION IS READING DR. MEDINA ACTUAL TESTIMONY, HER DIAGNOSIS 520 00:53:45.821 --> 00:53:52.565 WAS ABUSIVE HEAD TRAUMA. INTENDED TO BE BROAD RECOGNIZING THAT IT COULD HAVE BEEN 521 00:53:52.565 --> 00:53:58.456 A COUPLE OF DIFFERENT MECHANISMS OF INJURY BUT WHAT SHE DID NOTE WAS THAT 522 00:53:58.456 --> 00:54:04.710 THESE TYPES OF INJURY DON'T OCCUR OR DIDN'T OCCUR IN THIS CASE BY ANY NATURAL CAUSE 523 00:54:04.710 --> 00:54:16.917 AND INFLICTED INJURY WAS WHAT THE DOCTOR CONCLUDED. COMING BACK TO JUSTICE WE 524 00:54:16.917 --> 00:54:23.417 KNOW ER APP TERES -- THERE IS QUESTIONING REGARDING WHY DO DOCTORS STILL ACCEPT 525 00:54:23.417 --> 00:54:30.805 THIS AND THE STATES ANSWER WOULD BE BECAUSE IT IS STILL RELIABLE. EXAMPLE IS 526 00:54:30.805 --> 00:54:35.740 BEGINNING REGARDING PEA PUTS AND WHAT PARENT SHOULD DOIN' TRO DUESING 527 00:54:35.740 --> 00:54:41.239 PEANUTS. WE WERE WRONG TO SAY THEY SHOULDN'T HAVE INTRODUCED THEM EARLIER ON. 528 00:54:41.239 --> 00:54:46.039 THAT LONG WITH A POP WHERE PARENTS WERE TOLD HAVE YOUR CHILDREN SLEEP ON 529 00:54:46.039 --> 00:54:52.664 THE STOMACH AND CHANGE THAT TO NO ON YOUR BACK. THE POINT IS DOCTORS DO FOLLOW 530 00:54:52.664 --> 00:54:57.942 THE SIGNS. THEY WILL CHANGE AND ABUSIVE HEAD TRAUMA HAS STOOD THE TEST OF 531 00:54:57.942 --> 00:55:03.055 TIME. ALL OF THESE STUDIES HAVE BEEN CONSIDERED BY DOCTORS AND STILL GENERALLY 532 00:55:03.055 --> 00:55:09.582 ACCEPTED. SO I THINK THIS COURT CAN TRUST THAT DOCTORS WOULD NOT GENERALLY ACCEPT 533 00:55:09.582 --> 00:55:15.931 AN UNRELIABLE DIAGNOSIS AN HAVEN'T DONE SO IN THIS CASE. CHIEF 534 00:55:15.931 --> 00:55:21.712 JUSTICE RABNER: THANK YOU COUNSEL. THANK YOU ALL COUNSEL FOR VERY HELPFUL ARGUMENTS 535 00:55:21.712 --> 00:55:24.712 AROUND OBVIOUS PREPARATION THAT WENT INTO THIS. EYE