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PaperclipPerfector  2d ago (text post)   970 thread views

Wellness Wednesday for November 19, 2025

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In a 100-page court opinion, six of the New Jersey Supreme Court's seven justices go on a deep dive regarding SBS/AHT (shaken-baby syndrome/abusive head trauma), and conclude that there is insufficient scientific evidence to support the pronouncement of the prosecutor's expert witness that "the only explanation for the children's symptoms, to a reasonable degree of medical certainty, was that the children were shaken by the caregivers" (in these two consolidated cases, the children's fathers).

The State has not met its burden of establishing general acceptance in the relevant scientific communities because the research, studies, and testimony presented at the hearing reflect a lack of general acceptance in the biomechanical community regarding SBS/AHT without impact [as opposed to shaking with impact]. There is evidence of general acceptance by many in the medical community, but the State must also establish general acceptance in the biomechanical community, and it has failed to do so.

Surely, if there is physical evidence of trauma to a child or other evidence of abuse, the State can present such evidence to a jury. And, if new, reliable, scientific evidence is developed, the State can, of course, in a future case, make a showing under the Daubert standard this Court adopted in Olenowski I, that expert testimony regarding SBS/AHT without impact is reliable. In such a case, scientific evidence and research, both old and new, could be presented and considered. Science is constantly evolving, so the door is not forever closed on making such a showing of reliability

There is no dispute that child abuse is a serious and unacceptably cruel act against the most vulnerable and innocent in our society. There is no dispute that, when a young child presents at a hospital or other medical facility with symptoms including subdural hematomas, retinal hemorrhages, and encephalopathy, such symptoms present a worrisome and urgent situation. No one disputes that medical professionals, including pediatricians, radiologists, neurologists, neurosurgeons, ophthalmologists, and more perform admirable work every single day to care for severely ill children who present with the symptoms associated with SBS/AHT.

The question before this Court, however, is whether the State has met its burden of proving that an expert should be allowed to take the witness stand and testify, not only about the injuries observed on a child through medical examinations and tests, but also that the only explanation for those injuries is child abuse. We hold that the State has not met that burden, and that Dr. Medina's testimony is therefore unreliable and inadmissible at trial.

The lone dissenting justice spends another fifty pages arguing (inter alia) that (1) SBS/AHT is far more scientific than the other medical diagnoses that have been rejected by the court under the same standard (identifiable character traits common to rapists, voiceprint analysis, estimating a person's height from the size of his shoes, hypnotically refreshed testimony, child sexual abuse accommodation syndrome, and Alcotest machines calibrated without an NIST-traceable digital thermometer) and (2) completely banning expert testimony on SBS/AHT, rather than permitting the jury to decide between competing experts at trial, is an excessively harsh sanction.

The [Consensus Statement on Abusive Head Trauma in Infants and Young Children] was endorsed by the national and international professional societies of every major discipline involved in the diagnosis and treatment of SBS/AHT. That includes the American Academy of Pediatrics (AAP), the American Society of Pediatric Neuroradiology, the American Association for Pediatric Ophthalmology and Strabismus, the Executive Committee of the American College of Radiology, the American Professional Society on the Abuse of Children, the European Society of Neuroradiology, the Swedish Paediatric Society, the Norwegian Pediatric Association, the Japanese Pediatric Society, the Society for Pediatric Radiology, the European Society of Paediatric Radiology, the Sociedad Latino Americana de Radiología Pediátrica, the Société Francophone d'Imagerie Pédiatrique et Prénatale, the Asian and Oceanic Society for Paediatric Radiology, and the Australian and New Zealand Society for Paediatric Radiology.

This more than suffices to show that SBS/AHT is generally accepted in every major discipline involved in its diagnosis and treatment: pediatrics, child abuse pediatrics, neurology, neuroradiology, neurosurgery, radiology, ophthalmology, and emergency medicine.

I note the sweep of the majority's decision. Acknowledging a debate and granting a new trial to allow experts to dispute the merits of a particular medical diagnosis is entirely different from prohibiting a trial from taking place at all. The majority has chosen the latter, holding that "expert testimony regarding SBS/AHT without impact… cannot be admitted at trial".

Under the majority's rule, unless "new, reliable, scientific evidence is developed… that expert testimony regarding SBS/AHT without impact is reliable", no person in New Jersey can be charged with child abuse for shaking or slamming an infant unless external evidence of impact is present. Similarly, the Division of Child Protection and Permanency (DCPP) will no longer be able to bring Title 9 proceedings in such cases. The Attorney General and DCPP warn that this will be "a significant setback to public safety" and will "hamper DCPP's ability to fulfill its responsibilities… to 'immediately take such action as shall be necessary to insure the safety of the child' upon receiving a report of [child] abuse".

In my view, a better approach would be to allow a full exchange between experts on the merits of an SBS/AHT diagnosis in any particular case.

This case should inspire judicial modesty. It should call to mind Chief Justice Rehnquist’s warning that judges resist the temptation to believe themselves "amateur scientists". Yet the majority "step[s] beyond its role as gatekeeper of relevant and reliable information, and instead act[s] as the final arbiter of the correctness of Dr. Van Ee's" and other experts' conclusions. For these reasons, I respectfully dissent.

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