Please note this December 5, 2019 decision from the Chief District Judge for the Federal District Court in New Mexico with a summary provided by Professor Joelle Moreno, Florida International University College of Law.

In this case, which involved a diagnosis of non-impact abusive head trauma to an eight-month old, the court ruled defense-proffered testimony from Dr. Joseph Scheller inadmissible.

According to the court, Dr. Scheller’s testimony did not meet Rule 702’s reliability requirement (a rule of evidence that exists in a similar form most states) for a variety of reasons.

First, Dr. Scheller’s opinion was not based on the same reliable data and methods used by the government expert, Dr. Carole Jenny. This conclusion is supported by two factual findings: (1) Dr. Scheller refused to consider the defendant’s statement that “he lost his temper and picked up the child ‘too rough’” when coming to his opinion that there “is no evidence that [the child] was a victim of abusive head trauma;” and (2)  Dr. Scheller referenced no scientific research in his expert report, whereas the prosecution experts referenced 26 scientific research articles. 

Second, Dr. Scheller’s testimony is not generally accepted by the scientific community and is not supported by the established scientific research on abusive head trauma. More specifically, Dr. Scheller’s opinion that rapid acceleration-deceleration could not cause such injuries is a view that is shared (by his own admission) by just five percent of the relevant medical professionals, which also puts him at odds with the expressed views of many medical associations representing related medical fields. Interestingly, the judge clearly stated that expressing an outlier opinion, contrary to the views of the relevant professional medical associations, would have alone been sufficient for exclusion.

Third, the court clearly rejected Dr. Scheller’s explanation that that the child’s injuries could have resulted from trauma at birth. According to the court, Dr. Scheller’s explanation cannot withstand scrutiny and is refuted by the established scientific research on abusive head trauma as reflected in the Consensus Statement on Abusive Head Trauma in Infants and Young Children, 48 PEDIATRIC RADIOLOGY 1048, 1056-57 (2018), which explains that “asymptomatic birth-related subdural hematomas . . . resolve in the overwhelming majority of infants within the first 4–6 postnatal weeks” and that “there is no merit to the unsubstantiated proposal that acute collapse, coma or death, occurring months after delivery, is caused by a parturitional [subdural hematoma] with secondary rebleeding.”

Finally, the court explained more generally that the  “courtroom is not the place for scientific guesswork” and that “[l]aw lags science; it does not lead it.”

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