One of my most rewarding facets of my practice is when I am brought into cases by another lawyer to consult, co-counsel, or just brainstorm on infant traumatic brain injury/SBS cases in Michigan and other states. The most common first question is – what expert(s) do I need to hire on my case? While this is an understandable question, there is no “one size fights all” answer. Ultimately, which experts you hire will depend on the answers to several questions, and the unique facts of your case.
The first place I tell every lawyer to start is to get a basic understanding and working knowledge of infant traumatic brain injury/SBS cases. A good place to start is a visit to http://www.sbsdefense.com/. It is an extremely helpful site. It has a wealth of helpful information, including ideas and suggestions on where to start with experts.
The kind of expert you need largely depends upon what side of the infant traumatic brain injury/SBS cases debate your case falls on. If the case is one where only those who do not believe in SBS as a theory can offer an alternative cause of the injuries, finding an expert becomes much more difficult, and you may have to look nationally for an expert. If, however, the case is one where even SBS proponents may not attribute the initial injuries to shaking, it becomes much easier to identify an expert – you can frequently use a pediatrician, trauma/ER doc, or even neurosurgeon and make them your expert!
Answering the following questions may help determine where your case lies:
- (This is the important one.) At the time of the initial visit to the ER, was there evidence of blunt force trauma to the head? Or damage to the tendons in the neck? Spinal column? External injuries to the body?
- How old was the child.
- Were there birth complications/problems.
- Was the baby recently vaccinated?
- How had the baby been behaving just before the injury? Did he/she have a cold? Trouble breathing/eating/sleeping? Did they attempt resuscitation?
Again, the most important inquiry is whether there is evidence of blunt force trauma or evidence of “impact” injury. Most of the “good science” regarding the “junk science/SBS” debate is lost when there is evidence of an “impact” injury. Most (if not all) potential experts (even adherent opponents of SBS) will be bothered by physical evidence of impact injuries, as well as extensive trauma to the body.
With proper funding a SBS case really needs a team. The next question you need to answer is whether the child is alive or dead. If the child is alive, most cases will need an expert in head injuries, specializing in pediatrics if you can find one (like a pediatric neurosurgeon). A brilliant guy that lots of people love is a pediatric neurosurgeon from D.C. named Ronald Uscinski. He is an adamant opponent of SBS, and has been on the leading edge of the SBS debate. For a general shaken baby case, another good place to start is a Pediatric ER doctor, as they are experts in major trauma, and typically the first doctors that see a baby brought to the hospital with suspected SBS injuries.
It is likely that a radiologist will be needed (again, specializing in pediatric head injuries if you can find one), someone who can read the films, and also clarify some things about the injuries. They can also date the injury, if timing is an issue (i.e., was the child actually injured when in your client’s care), or determine if the injury is a “re-bleed” of an old injury. This is why neurosurgeons can be so helpful, because although not radiologists, they have to be skilled in reading images in performing brain surgery.
If the child is dead, you will need a forensic pathologist – ideally a forensic, neuropathologist. There are several very good ones across the country, including Jan Leetsma in Illinois, and Dr. John Plunkett from Minnesota.
Finally, whether the child is living or dead, most of the time you will need a Biomedical Engineer to opine on an alternative cause of injuries. How much force was really necessary to cause the injuries? Could the injuries be caused by a short distance fall? Could shaking have generated enough force to cause the injuries – either with or without impact? If there is evidence of an old injury, how much (or little) force could cause a re-bleed? These are all critical questions best answered by a biomedical engineer.
In the end, the most important lesson is that every case is different and unique. You most thoroughly review the medical records, catalog the injuries, understand the medicine and diagnosis behind them, and be prepared to offer a viable alternative mechanism of injury. Only then will you be ready to establish your client’s innocence, and win the battle of experts in court.
Mark A. Satawa practices in the area of criminal defense, specializing in forensic evidence and shaken baby cases. He is a member of the board of directors of the National Association of Criminal Defense Lawyers, the Criminal Defense Attorneys of Michigan (www.cdamonline.org), and is a frequent continuing legal education speaker on shaken baby cases, most recently on April 3, 2009, at the NACDL annual forensic science seminar in Las Vegas.