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SECOND JUDICIAL DISTRICT COURT COUNTY OF BERNALILLO STATE OF NEW MEXICO BRIEF IN SUPPORT OF MOTION TO EXCLUDE TESTIMONY OR IN THE Comes now the Defendant, and states the following in support of Defendant’s motion to exclude testimony of State witnesses concerning the diagnosis of so-called “Shaken Baby Syndrome” in this case, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire v. Carmichael, 526 U.S. 137 (1999), as adopted and applied in the State of New Mexico by State v. Alberico, 116 N.M. 156 (1993) and its progeny. I. THE PRESENT STATE OF THE LAW IN NEW MEXICO New Mexico in State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), has adopted the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.2d 469 (1993). The admission of expert testimony must comply with not only the Alberico-Daubert standard, but also Rule 11-702 N.M.R.A. 2002. The three prerequisites for admission of expert opinion testimony are: 1. the expert must be qualified; 2. the expert testimony must assist the trier of fact; 3. and the expert may testify only as to scientific, technical or other specialized knowledge. (S.C.R.A. 1986, Rule 11-702). In determining whether expert testimony will assist the trier of fact as required for its admissibility, relevant inquiry is whether a jury can, from the person, receive appreciable help. Alberico, supra, and Rule 11-702, supra. The particular degree of acceptance of scientific technique within a scientific community is neither necessary nor a sufficient condition for admissibility of expert opinion evidence; it is, however, one factor that the Trial Court normally should consider in deciding to admit evidence based upon a particular technique. When scientific evidence is employed as a means of obtaining or analyzing data, the Trial Court must determine whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture. Thus, the focus should not be solely whether the scientific technique has gained general acceptance within its particular field, but, rather, it should be on the validity and soundness of the scientific method used to generate the evidence in the particular case at which it is being offered. The trial court can consider several factors in assessing the validity of a particular technique to determine if it is “scientific knowledge” under the rule governing expert opinion testimony, including the following factors: 1. the technique’s relationship with established scientific analysis; 2. the availability of specialized literature addressing the validity of the technique; and 3. whether the technique is generally accepted. In any determination as to whether expert opinion testimony will assist a trier of fact as required for its admissibility, the pertinent inquiry must focus on proof of reliability of the scientific technique or method upon which expert testimony is premised, i.e., whether the underlying scientific technique or method is reliable enough to prove what it purports to prove. Even if expert testimony passes muster pursuant to our rules, it must be material to the particular case and may be excluded if its prejudicial effects substantially outweigh its probative value. It is within the sound discretion of the Trial Court to make that determination. Alberico, supra; Daubert, supra, and Rule 11-401, 11-403, 11-702, S.C.R.A. 1986. This case, State v. Donovan Lee, presents several Alberico-Daubert issues, chief among them, the issue regarding the inability of medical experts due to variables, disagreements, controversies and the lack of medical certainty to be able to give an opinion that would do anything more than cause a jury to have to speculate, guess or conjecture. There exists inadequate medical research to state with scientific probability that Shayla Nez suffered from “Shaken Baby Syndrome” or “Battered Baby Syndrome.” Since such medical testimony does not meet the test of being based upon reliable scientific knowledge, it would not assist the jury in understanding the evidence in this case Moreover, the burden of proof should not be shifted to the Defendant by allowing a medical expert to testify that physical findings are merely consistent with Shaken Baby Syndrome. “Consistent with” does not equate to “within a reasonable scientific probability” and such an opinion would likewise not assist the jury in evaluating evidence. On the contrary, this sort of expert testimony would simply invite a jury to engage in speculation, guess and conjecture in order to reach its decision. There are certain undisputed facts in this case that are obtained from the medical records of Shayla Nez. She was born September 19, 2001. She was diagnosed at birth with Ventricular Septal Defect, (VSD) a hole in the heart. Shayla went home to her parents on September 21st, 2001. VSD is a congenital heart disease in which there is a hole in the wall (septum) between the heart’s lower chambers (ventricles). The hole allows blood to seep from the left ventricle into the right ventricle. This results in too much blood flow to the right side of the heart, which causes the lungs and right ventricle to work harder to compensate for the problem. Other consequences of a VSD include chest infections, formation of blood clots that could lead to a stroke and the development of irregular heart rhythms. Approximately 50 percent of small VSD’s close by themselves by the age of three. For those that remain, treatment usually involves surgery. Sometimes babies are given a diuretic to help get rid of extra fluid. Sometimes Digoxin will be added to help increase the squeeze of the heart. Digoxin improves the heart’s pumping ability. In addition, babies with congestive heart failure are at higher risk for infections, particularly lung infections. If they do get a lung infection, they may not tolerate it as well as other babies and can become very sick with even a simple winter cold. This was the case with Shayla Nez. On December 28th, 2002 Shayla was taken to the Emergency room in Gallup, NM and then flown to Presbyterian Hospital where she was hospitalized for fifty-six (56) days and of those fifty-six (56) days she is on a ventilator for twenty-three (23) days. She was diagnosed with RSV/pneumonia. RSV is a virus and stands for Respiratory Synctial Virus. It causes an illness that resembles a moderate to severe cold. It can become a problem when it is severe as it was in Shayla’s case. According to Dr. Michael Shannon, pediatric intensive care unit physician at Presbyterian Hospital, most children do not get admitted to the hospital with RSV. Furthermore, the percentage of children that go to intensive care is 3%. Shayla was there fifty-six (56) days and was a high-risk infant due to the VSD or hole in her heart, according to Shayla’s pediatrician, Dr. Claudia Delgado, who cared for her during her RSV/pneumonia hospitalization. Dr. Holmes was Shayla’s cardiologist during the hospitalization for RSV/pneumonia and placed her on Digoxin (Lanoxin) on February 11, 2003. Digoxin is a heart medicine that helps the heart contract. Dr. Holmes was of the opinion that Shayla would need surgery for her high flow VSD (hole in her heart) once she was released from her hospital stay for RSV/pneumonia. Shayla Nez was sent home with the following medications on February 21, 2003. 1. Ativan (lorazepam)—This drug belongs to the “benzodiazepine tranquilizer” family of drugs. It causes sedation and sleepiness. Ativan is prescribed for: anxiety, tension, agitation, muscle spasm and seizures. 2. Methodone—Methodone was prescribed to prevent withdrawals from her addiction to fentanyl, a narcotic, given to her during her 56 day hospitalization for RSV/pneumonia. 3. Albuterol—This drug belongs to the “sympathomimetic amine” family of drugs. It causes the smooth muscles in the bronchi to relax. Albuterol is prescribed for bronchospasm (wheezing). 4. Digoxin (digitalis or lanoxin)—Digoxin works directly on the heart muscle. It improves the heart’s pumping ability. It helps with swelling due to congestive heart failure. 5. Aldactone—This drug belongs to the “aldosterone antagonist” family of drugs. It causes divresis (increased urination) to get rid of fluid. It is prescribed for congestive heart failure. 6. Pepcid—Pepcid belongs to the “histamine H2 antagonist” family of drugs. It blocks 7. Reglin—This drug helps speeds emptying of the stomach. 8. Simethicone (Mylanta)—This is a mixture of magnesium and aluminum hydroxide plus simethicone. It is used to treat heartburn and to decrease gas production. 9. MCT Oil—MCT stands for medium chain triglyercide. It is easily digested and used in baby feeding when wanting to give more fat in the diet. 10. Fer-in-sol (iron)—Iron is needed in the body to form adequate hemoglobin levels. Iron deficiency can lead to inadequate oxygen transport by the red blood cells and contribute to hypoxia. 11. Lasix—This drug is a diuretic that is prescribed with Digoxin. Patients who suffer heart failure tend to retain fluid, and Lasix makes patient get rid of fluids in the body. Shayla Nez’s parents asked Donovan Lee to come to their home and care for Shayla and their other child Sierra, so that their mother could go back to work. Donovan Lee arrived the first week of March 2003. Shayla’s mother, Sylvia Skeets, normally gave Shayla her medications but sometimes forgot. Sylvia would call Donovan from work and Donovan would administer the medication. Donovan cared for 6 month old Shayla from 6:30 a.m. to 4:00 p.m., Monday through Friday while her parents worked. On Saturday, March 22, 2003 five guests arrive at the Nez household. Clayton Nez, Shayla’s father, invited his cousins and their friends over from Saturday, March 22, 2003 through Thursday, March 27, 2003. During that time Donovan Lee did not care for or baby-sit Shayla, because Clayton Nez’ relatives cared for her. On Wednesday, March 26, 2003 and Thursday, March 27, 2003 Shayla was fussy and was given Tylenol along with her other medications. On Thursday, March 27, 2003 the five guests left the Nez home. The evening of March 27, 2003 Shayla Nez fell asleep at 8 p.m. The next morning, March 28, 2003, Donovan Lee resumed his care-taking duties. That morning Shayla Nez did not wake up early (5:30 a.m.) with Sylvia as she normally did. Her mother described the sleeping in as “unusual” in her written statement to police. Sylvia also failed to give Shayla her heart medication Digoxin (Lanoxin) that morning as she normally did and did not wake Shayla up to give her the heart medication. Sylvia called Donovan at 8:40 a.m. and Shayla was still asleep. Sylvia asked him to give her the heart medication. Clayton, Shayla’s father, called sometime after 12:00 p.m. As Donovan Lee picked up the phone, he saw Shayla having seizures. Donovan then dropped the phone and ran to the baby. When the phone rang again, Donovan picked it up and told Clayton he was calling 911. At 12:45 p.m. Donovan Lee called 911 per the AFD CAD report. At 1:50 p.m. Shayla Nez arrived at Presbyterian Hospital by ambulance. The paramedics diagnosed the child as having suffered a seizure and suggested testing to rule out Digoxin toxicity. At 2:10 p.m. Dr. Wallace is the first doctor in the Emergency room to see Shayla Nez. Blood was taken for a CBC or complete blood count at 2:20 p.m. This is a routine procedure. CBC is not designed to look for bacteria or organisms in the blood as in the case of a blood culture. The CBC indicated Shayla had a high white blood cell count, which Dr. Wallace saw as a sign of infection, and coupled with the seizures Shayla was having, his primary diagnoses were seizures and possible meningitis. Dr. Wallace immediately placed Shayla on antibiotics (Certriaxone/Rocephin). Dr. Wallace ordered a blood culture, a urine culture and performed a lumbar puncture to remove cerebral spinal fluid from Shayla. All three cultures are ordered to be sent to the lab. A second blood sample to determine if there is Digoxin Toxicity was never taken as recommended by the paramedics. Shayla continued to have seizures. On March 28, 2003, Dr. Wallace ordered a CT scan, which was negative. Among the pre-trial interviews conducted by the Defense was that of Dr. Fred Akiya, one of four radiologists who performed CT scans on Shayla Nez. Dr. Akiya did the last CT scan on Shayla Nez, but brought all five of the CT scans conducted on Shayla Nez from March 28, 2003 through April 2, 2003, to his interview. Dr. Akiya stated in the interview that the subdural hemorrhage or pool of blood in the subdural space between the brain and the skull was already there on March 28, 2003, and that the first radiologist, Dr. Phung had missed it. Dr. Akiya also stated the pool of blood or subdural hematoma could have been there for days. On March 29, 2003 a second CT scan was ordered on which the subdural hematoma was seen. This was reported to Dr. Dornbusch who calls 911 at 12:11 p.m. on March 29, 2003. Dr. Dornbusch told police Shayla Nez had Shaken Baby Syndrome. Dr. Dornbusch did not ask for the results of the urine, cerebrospinal or blood cultures. Dr. Dornbusch did not check the hospital computer to see if the final result on the blood test had been received. Dr. Dornbusch took Shayla Nez off of the antibiotics (Ceftriaxone/Rocephin). Had Dr. Dornbusch checked the hospital computer, he would have realized the hospital lost Shayla’s blood and never sent it to the lab to determine if there was an infection. Dr. Dornbusch’s March 29, 2003, diagnosis was based exclusively on the subdural hematoma found on the second CT scan and the retinal hemorrhages or bleeding behind the eyes that he says he saw. For purposes of this motion it is important to note that there were no fractures of the skull. There was no evidence of fractures to the rib cage. There were no external bruises, marks, or lacerations to any area of Shayla Nez’s head and body. External examination of the neck also revealed no abnormality. The only internal markers Shayla had were a subdural hematoma or bleeding in the subdural space of the brain and retinal hemorrhages or bleeding in the back of the eyes. Simply because Shayla Nez had a subdural hematoma and retinal hemorrhages doctors opined this was consistent with Shaken Baby Syndrome. The State can not, pursuant to Alberico-Daubert, establish the necessary requirements for admission of their expert opinion that the severity and distribution of injuries are consistent with non-accidental trauma or that the injuries seen were the result of or consistent with an acceleration-deceleration injury resulting from a forceful angular movement of the head, i.e., Shaken Baby Syndrome. It is the position of the defense that under the Alberico-Daubert analysis the State should not be permitted to present expert opinion that Shayla Nez’ subdural hematoma and retinal hemorrhage were acceleration-deceleration (Shaken Baby Syndrome) injuries stemming from abuse of Shayla Nez by Donovan Lee. Relevant Statutes Rule 11-702 of the New Mexico Rules of Evidence provides that: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Rule 11-403 of the New Mexico Rules of Evidence provides that: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Rule 702 of the Federal Rules of Evidence is identical to Rule 11-702 of the New Mexico Rules of Evidence. A. ALL REFERENCE TO “SHAKEN BABY SYNDROME” SHOULD BE EXCLUDED UNDER THE ALBERICO-DAUBERT STANDARD FOR ADMISSION OF EXPERT TESTIMONY Legal Background to Alberico-Daubert Standard Both New Mexico and the Federal Courts have abandoned the Frye test, first announced in 1923 in Frye v. United States, in favor of a more liberal test. See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Alberico, 116 N.M. 156 (1993). In State v. Alberico, the New Mexico Supreme Court decided to use a test other then the Frye test to determine the admissibility of scientific testimony based on Rule 11-702 of the New Mexico Rules of Evidence, which is identical to the Federal Rule. It cites to Daubert as a case supporting its decision to change the law in New Mexico. Cases in the New Mexico State Supreme Court subsequent to Alberico have assumed the New Mexico Alberico standard to be co-extensive with the Federal Daubert standard, and have termed the New Mexico Standard “The Alberico-Daubert Standard.” See, e.g., Banks v. IMC Kalim Carlsbad Potash Co., 2003 NMSC (2003), State v. Torres, 127 N.M. 20 (1999). There is extensive discussion of the criteria a court should use in determining the admissibility of evidence in State v. Alberico. There are three requirements for scientific evidence to be admitted under Alberico. First, the expert must be qualified. In this case, the defense concedes this prong, as the experts are qualified to understand Shaken Baby Syndrome and the controversy surrounding it. Second, the evidence must be able to assist the trier of fact. In this case, the evidence would not be helpful, as it would merely lead the jury to speculate on issues for which experts have not been able to agree. And third, the expert may testify only as to “scientific, technical or other specialized knowledge.” Under this requirement, mere speculation, conjecture or theories not surmounting to actual knowledge are inadmissible, as is the testimony on Shaken Baby Syndrome in this case. It is stated that When scientific evidence is employed as a means of obtaining or analyzing data, the trial court must determine whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture. State v. Alberico, 116 N.M. at 167. This case presents several Alberico-Daubert issues, chief among them the issue regarding the inability of medical experts, due to variable, disagreements, controversies, and the lack of medical certainty, to be able to give an opinion that would do anything more than cause a jury to have to engage in speculation, guess, or conjecture. It would not be helpful to the jury to provide expert medical testimony that is known to be inaccurate within at least a reasonable scientific probability, and this carries the danger of shifting the burden of proof to the defendant in this criminal case. We now examine the controversy regarding Shaken Baby Syndrome, showing why the theory is unscientific, unreliable, and would be unhelpful to a jury. The Alberico-Daubert Standard for Scientific Knowledge The U.S Supreme Court elaborated the third requirement for admissibility, that of reliable scientific “knowledge”, into a five factor analysis in Daubert, comprising the questions of (1) whether the theory can be tested, (2) whether the theory has been tested, (3) whether the theory has been subjected to peer review and publication, (4) the known or potential rate of error, and finally (5) the degree of general acceptance in the scientific community. Daubert Factor 1 – Whether the theory can be tested The Daubert factors is whether the theory can be tested. According to Daubert, “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry,” (Citing Green 645) and “The criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.” Citing K. Popper, Conjecture and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989). Shaken Baby Syndrome has not been defined by the medical community to the point where a diagnosis is reliable. “There is no case definition of Shaken Baby Syndrome.” Dr. Mark Donohoe, Shaken Baby Syndrome (SBS) and Non-Accidental Injuries (NAI), Review, 8/20/2001. Indeed, the States witnesses have admittedly misdiagnosed Shaken Baby Syndrome when in fact it was a lack of vitamin K in the baby’s system which caused a subdural hematoma. See Exhibit A, Dr. Martinez’s testimony. Furthermore upon reading Exhibit A the court can see that there is not a consensus as to the definition of Shaken Baby Syndrome even among doctors working at the same hospital. One of the main diagnostic findings supporting a diagnosis of Shaken Baby Syndrome is the absence of any other signs of abuse. The article by Dr. Hadley, widely cited by the State for the proposition that no direct trauma is necessary for a finding of Shaken Baby Syndrome, claims that no trauma or sign of abuse is prima facie proof that such abuse occurred: Our data do not conclusively demonstrate that severe neurological trauma can occur with rapid, forceful, repetitive acceleration-deceleration of the head and neck with respect to the torso. Because most of these assaults are not witnessed, doubt remains as to the true mechanism of these injuries. However . . . we were able to document each of the 13 patients had a history of whiplash-shake injury without direct impact trauma. Supporting the history in each case is the fact that none of the patients had clinical signs or radiographic evidence of craniofacial trauma. The fact that a key element of the diagnosis, and the element which distinguishes Shaken Baby Syndrome from other diagnoses, is the absence of any other trauma, means that the theory of Shaken Baby Syndrome cannot be proven inaccurate by any scientific means. In other words, the only evidence for the explanation of Shaken Baby Syndrome is the explanation itself. Therefore, Shaken Baby Syndrome is unfalsifiable, and fails the first factor of the Daubert analysis. Daubert Factor 2 – Whether the theory has been tested The second factor of the Daubert analysis is whether the theory has been tested, and if so, whether the results corroborate or rebut the theory. A scientific theory may be disproved by a single correctly run experiment, no matter how many prior experiments tend to corroborate the theory. J.F. Geddes has shown that retinal hemorrhaging is not a marker of shaking a baby. J.F. Geddes et al., Neuropathy of Inflicted Head Injury in Children I: Patterns of brain damage, 124 Brain 1290, 1297 (2001). See also John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 Am.J. Forensic Med. & Pathology 1, 9 (2001). The State’s own expert, Dr. Karen Campbell, admits subdural hematomas and retinal hemorrhages can be caused by many other things. See Exhibit A, Dr. Campbell’s testimony. Babies with warning markers of Shaken Baby Syndrome rarely show signs of trauma predicted by the theory. Ann-Christine Duhaime et al., The Shaken Baby Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. Neurosurgery 409 (1987). Shaking does not produce enough force to cause the hemorrhaging and hematoma. Babies diagnosed with Shaken Baby Syndrome do not show signs of having physical trauma to their brains. J.F. Geddes et al., Neuropathy of Inflicted Head Injury in Children II: Microscopic Brain Injury in Infants, 124 Brain 1299, 1299 (2001). There are many other explanations for the symptoms associated with Shaken Baby Syndrome including apnea (Id. At 1304-1305), bleeding disorders, meningitis, septicemia, leukemia, galactosaemia, hypertension, and Henoch-Schonlein Purpura. Donohoe, M., Shaken Baby Syndrome (SBS) and non-accidental injuries, Review 8/20/2001 at 6. As these studies show, the assertion that the existence of subdural hematoma and retinal hemorrhaging conclusively demonstrate that a child has been subjected to shaking or other physical trauma is not only scientifically unverified, it is simply false. This symptomology can be caused by a number of contributing factors, and therefore Shaken Baby Syndrome does not have scientific merit, failing the second factor of the Daubert Analysis. Daubert Factor 3 – Peer Review and Publication of Theory The third factor in the Daubert Analysis is whether the theory has been published in peer-reviewed journals. According to the Daubert court, “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in the methodology will be detected.” While studies relating to Shaken Baby Syndrome have been published in many journals, including many highly reputable journals, they tend to report different things, with later studies contradicting and/or narrowing earlier findings. In addition, the studies cited supra cast doubt upon the entire theory of Shaken Baby Syndrome, making this a perfect example of the Supreme Court’s suggestion that later studies may expose flaws in earlier ones. Daubert Factor 4 – Known or Potential Error Rate The fourth factor laid out by the Supreme Court in Daubert analysis is the “known or potential rate of error” of the scientific theory. Scientific authors of studies related to Shaken Baby Syndrome acknowledge that rarely is child abuse admitted in such cases, instead it is merely assumed if certain markers are present. The assumption that if certain markers are present then Shaken Baby Syndrome has occurred, regardless of any external evidence, means that the precise error rate cannot be known or tested, but the potential error rate, especially taking the studies discussed supra into account, is very high. Daubert Factor 5 – Acceptance by Scientific Community The fifth and final factor identified by the Daubert Court is the amount of general acceptance the theory has received in the scientific community (which was the only relevant factor in the superceded Frye Test). Both Daubert and Alberico stress that general acceptance in the scientific community is no longer a necessary, sufficient condition for admissibility, but merely a factor that a court should consider in deciding whether to admit evidence. Where general acceptance is used as a factor, Alberico stresses that it must be demonstrated by evidence of acceptance by the scientific community, as opposed to the legal community. “It is improper to look for scientific acceptance only from reported case law because that amounts to finding a consensus in the legal community based on scientific evidence that is sometimes many years old.” Therefore, while Shaken Baby Syndrome has been used in numerous cases in New Mexico, this is not the proper measure of general acceptance to use under Alberico-Daubert. The scientific studies discussed, supra, exemplify that the acceptance for the theory of Shaken Baby Syndrome within the medical and scientific communities is on the wane, and is not nearly as strong as it was a decade ago. Shaken Baby Syndrome is no longer a generally accepted theory in the scientific community, and therefore fails that test as well. See Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept by Genie Lyons. 2003 Utah L. Rev. 1109. Furthermore, the Doctors who treated Shayla at Presbyterian cannot even agree on a definition of Shaken Baby Syndrome. See attached Exhibit A. Summation of Alberico-Daubert Analysis The theory of “Shaken Baby Syndrome” performs poorly on each of the five factors identified in Daubert, and should be excluded from this courtroom as unreliable scientific speculation instead of “scientific knowledge” as required to pass through the court’s gate-keeping obligation for scientific testimony. The presentation of such evidence to the jury would lead the jury to little but speculation and conjecture about matters in which experts have not been able to agree. See attached State Experts different definitions of Shaken Baby Syndrome. This would be entirely unhelpful to the jury in their deliberations. Therefore, all reference to Shaken Baby Syndrome, acceleration-deceleration syndrome, or any testimony referencing the unscientific theories generally proposed under those names should be excluded and the case should be dismissed since the State’s theory lacks reliable scientific basis. B. IN THE ALTERNATIVE, EXPERTS SHOULD NOT BE ALLOWED TO TESTIFY AS TO CAUSALITY. Alberico makes explicit that, even if the testimony is allowed, an expert testifying to a scientific theory in New Mexico may not go so far as to express an opinion as to causality: It almost goes without saying that the expert will not be allowed to state an opinion in terms of causality; in other words, the expert may not testify that the victim’s . symptoms were in fact caused by . . . abuse. This again . . . encroaches too far upon the province of the jury to determine the truthfulness of the witnesses. Allowing an expert to couch his or her testimony in terms of causality may also breach a cardinal rule of science. As the Supreme Court stated in Daubert, ‘arguabley, there are no certainties in science.’ . . . In other words, allowing an expert to testify that a complainant was in fact [abused] would allow the expert to give testimony that is not grounded in scientific principle and which does not tend to show what the testimony is offered to prove. Therefore, even if this Court decides to admit testimony relating to Shaken Baby Syndrome to enter the courtroom, Alberico dictates that the court should not allow any witness to testify as to causality, i.e. that Shaken Baby Syndrome in fact caused the victim’s symptoms. The witnesses should be limited to describing the syndrome and let the jury make the determination as to what the cause of the victim’s injuries was in fact. C. IN THE ALTERNATIVE, THE USE OF THE PHRASE “SHAKEN BABY SYNDROME” SHOULD BE BARRED AS BEING UNFAIRLY PREJUDICIAL. In addition, if this Court decides to allow testimony relating to Shaken Baby Syndrome, regardless of whether they allow testimony as to causality, the use of the phrase “Shaken Baby Syndrome” is likely to cause unfair prejudice against Donovan Lee. The amount of media attention that Shaken Baby Syndrome has received, combined with the lack of attention that has been paid in the media to the criticisms of it, means that if the phrase “Shaken Baby Syndrome” was presented to the Jury, it would likely carry preconceived notions of validity in the minds of the jurors, which would be prejudicial to Mr. Lee. The prosecution could just as easily proceed without use of the phrase “Shaken Baby Syndrome” by simply describing it, without a label. This would have little, if any, detrimental effect on the probative value of the evidence, but would cure the prejudicial effect that the use of the label “Shaken Baby Syndrome” would have. Therefore, even if testimony relating to Shaken Baby Syndrome is admitted in this case, the Court should direct that the phrase “Shaken Baby Syndrome” itself should not Attorney's incoming basket and mailed to

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