NEW EVIDENCE 2011-2012: New Diagnoses

In 2011 an episode of Frontline, in conjunction with ProPublica and National Public Radio (NPR), aired on PBS. “The Child Cases” detailed advances in pediatric forensic pathology regarding children and short falls. The program featured cases involving parents and caregivers accused of child abuse and murder as a result of faulty diagnoses and antiquated forensic science. It was explained that as a result of advances in pediatric forensics, many old opinions regarding short falls and head trauma in small children were changing in the medical community.  Many new studies were being conducted by experts in pediatric head injuries from around the world. Dr. Jon Thogmartin Interview   Further, the program pointed out many criminal cases in Canada and the U.S. that were being reopened and examined because of these changes. PBS Frontline and Propublica: The Child Cases  Featured on the episode were several forensic experts, including Dr. Michael Laposata, Pathologist-in-Chief at Vanderbilt University Medical Center. Dr. Michael Laposata: Frontline Interview

 

DR. MICHAEL LAPOSATA, PATHOLOGIST-IN-CHIEF, VANDERBILT UNIVERSITY MEDICAL CENTER

The similarities between the cases featured on this program and Brian’s case were too great to ignore. We contacted several of the doctors featured on the program and immediately heard back from Dr. Laposata. At his request we sent Dr. Laposata all of the medical evidence used in Brian’s case. Dr. Laposata reviewed the following reports: autopsy, surgical pathology, toxicology, neuropathology and state police crime lab report. He also reviewed notes and excerpts from testimony of the state’s medical examiner, Dr. Weiner; the state’s pediatric and child abuse expert, Dr. Eli Newberger; and the child’s mother, Ami Sneed.

In a telephone conversation Dr. Laposata expressed great concern as to the validity of the opinions of the state’s medical experts. He began by stating that he believed that the opinions of Drs. Weiner and Newberger as to how the fatal injuries occurred, the age of the injuries, and whether the child would have died immediately after sustaining the injuries were in error. According to Dr. Laposata, the injuries were “survivable and treatable.”  Further, Dr. Laposata pointed out that Dr. Weiner had no expertise in pediatric pathology. Moreover, he did not understand why Dr. Weiner performed the autopsy without being board certified in forensic pathology. He also questioned objectivity with seven police detectives and an ADA investigator present at the autopsy.

Dr. Laposata also expressed concern over Dr. Newberger’s testimony, explaining that Dr. Newberger had no credentials in forensics or pathology.  He explained that Dr. Newberger is a professional witness for the prosecution and often offers unsubstantiated and untested theories; he was bothered that Dr. Newberger equated Christopher’s injuries with being “dropped from a second story window onto concrete.” Dr. Laposata explained that Dr. Newberger often uses that analogy as he did in the Woodward case.

In his professional opinion, Dr. Laposata explained that it is clear, based on all medical reports, testimony, documented medical history and the series of events that everyone agrees upon, as well as the numerous studies regarding child falls and fatal cranial injuries, that the child’s fall down the stairs, ten days before his death, resulted in not only the documented broken clavicle, but also may have caused chronic bleeding under the scalp, multiple bruises, a 6” skull fracture, and a neurological event. Moreover, based on the child’s mother’s statement, the child had been exhibiting what he explained as “clear and obvious neurological symptoms,” i.e., “acting drunk, stumbling, wetting his pants, and just not being himself.” Dr. Laposata explained that the child was exhibiting these neurological symptoms from the injuries he sustained in the fall ten days earlier.

Dr. Laposata offered his opinions in an affidavit and offered to fly to Massachusetts to testify on Brian’s behalf, pro bono. See   Affidavit of Dr. Michael Laposata 

 

DR. WANEY SQUIER, PEDIATRIC/CONSULTANT NEUROPATHOLOGIST AND HONORARY LECTURER TO THE OXFORD RADCLIFFE HOSPITALS 

We also reached out to Dr. Waney Squier, a pediatric neuropathologist at Oxford Radcliff Hospitals. Dr. Squier is world renowned for her research into pediatric head injuries and brain pathology. Dr. Squier graciously offered to review Brian’s case and she was provided with the same medical reports and trial testimony as Dr. Laposata. Subsequently, she offered her professional medical and scientific opinion.

Of particular importance, it must be noted, Dr. Weiner, the state’s M.E., admitted that at the autopsy he did not examine the brain himself and that he did not view the neuropathology report.

Of concern to Dr. Squier was the omission of certain tests such as Perl’s Stain on the optic nerves, a full examination of the spinal cord, or any relevant histology study done at the autopsy. She stated, “In order to ascertain the time of injuries and the onset of subdural bleeding, it is absolutely critical that the dural samples are examined by histology, paying particular attention to evidence of older injury and tissue reactive changes.”

She noted that it is also important that the brain be examined to accurately date the contusions. According to Dr. Squier, “It is clear that the timing of the (previous) head injury was not fully considered at the autopsy or at brain examination.” In response to the opinions of Drs. Weiner and Newberger, Dr. Squier stated that because a microscopical examination of the brain and dura was not undertaken, the injuries cannot be reliably timed.

Referencing recent studies, Dr. Squier confirmed that it is possible for a child to suffer serious head injuries as a result of a short fall. She also affirmed that there can in fact be an extended period of lucidity with the child exhibiting neurological symptoms resulting in a seizure.

Finally, Dr. Squier averred that after her review of the medical records and related documentation in this case, and her review of the available medical and scientific literature, it was her opinion based on her professional background and experience, that Christopher was not well prior to his death. She stated that based on the evidence presented, it appeared that Christopher died as a result of injuries he sustained in the fall down the stairs ten days earlier.

Dr. Squier presented her opinions in a medico-legal report and affidavit and offered to testify on Brian’s behalf, pro bono. See  Affidavit of Dr. Squier

 

DR. ZHONGXUE HUA, FORENSIC PATHOLOGIST AND NEUROPATHOLOGICAL CONSULTANT, AND ASSISTANT CLINICAL PROFESSOR OF PATHOLOGY AT ALBERT EINSTEIN COLLEGE OF MEDICINE; ALSO ATTENDING NEUROPATHOLOGIST AND ASSISTANT LABORATORY DIRECTOR AT JACOBI MEDICAL CENTER AND NORTH CENTRAL BRONX HOSPTIAL

With years of experience as a medical examiner, Dr. Hua has contradicted Dr. Weiner’s findings by stating that the six-inch skull fracture would not necessarily result in the immediate death of the child and that it could have been caused by a fall down the stairs. In his affidavit, Dr. Hua stated that he has personally observed in his career a very similar skull fracture wound of a child which was not immediately fatal. “Further, in that case – and generally – a child may appear asymptomatic and lucid following such an injury, including upon presentation to an emergency room.”

Dr. Hua concurred with Drs. Laposata and Squier that the neurological symptoms Christopher displayed for 10 days could also be consistent with bleeding and progressive subdural hematomas occurring after the fall.

Dr. Hua has offered pro bono services on Brian’s behalf and has signed an affidavit in support of the defense. See Affidavit of Dr. Hua.

 

DR. CHRIS VAN EE, BIOMECHANICAL AND BIOMEDICAL ENGINEER; PRINCIPAL ENGINEER AT DESIGN RESEARCH ENGINEERING, MI; AND ASSISTANT ADJUNCT PROFESSOR OF BIOMECHANICAL ENGINEERING AT WAYNE STATE UNIVERSITY

With specific expertise in the analysis and risk assessment of head injury in the pediatric population, Dr. Van Ee was asked to evaluate the biomechanics of the initial fall.  After reviewing the records he determined that evidence and testimony in this case indicates that Christopher suffered significant injury as a result of the stair-fall incident but the full extent of his injury and the dynamics of the stair-fall incident were largely unexplored in the investigation of Christopher’s death and subsequent trial of Mr. Peixoto.

Dr. Van Ee stated that pre-existing head injuries may have made Christopher more susceptible to trauma such that an accident that would normally be relatively benign may have had devastating consequences. He further noted that it was clear that Christopher, prior to the evening of January 22nd:

  • had a history of impact trauma;
  • had an identified significant pre-existing injury;
  • was showing symptoms consistent with intracranial trauma.

Dr. Van Ee also concluded that testimony given by the state’s experts with regard to fall heights necessary to result in Christopher’s head trauma was misleading in that both clinical case studies and biomechanical testing show that falls of 3-5 feet are sufficient to result in skull and intracranial trauma. See Affidavit of Dr. Van Ee.

 

Although affidavits had not been secured prior to the lower court judge’s decision to the 2012 Motion for New Trial, Brian’s family and attorney had initiated communication with these additional medical experts:

DR. JOHN J. PLUNKETT, FORENSIC PATHOLOGIST WITH ADDITIONAL BOARD CERTIFICATION IN CLINICAL PATHOLOGY AND ANATOMICAL PATHOLOGY

Although an affidavit was not secured prior to the Judge’s decision, in his letter to Brian dated September 10, 2012, Dr. Plunkett stated, “It is certainly possible for a child to suffer serious or even fatal head injuries as the result of a short fall. It is also possible for a child to have a significant lucid interval prior to the onset of seizures or cessation of breathing. Finally, it is possible for an existing or chronic, subdural hematoma to re-bleed spontaneously or from another minor impact.” Dr. Plunkett was kind enough to provide supporting research and recent court decisions and also offered to contact the Innocence Network to see if anyone in Massachusetts was able to help. See  Dr. Plunkett 9/10/12

 

DR. PATRICK D. BARNES, CHIEF, PEDIATRIC NEURORADIOLOGY AND DIRECTOR, PEDIATRIC MRI AND CT AT LUCILE PACKARD CHILDREN’S HOSPITAL AND PROFESSOR OF RADIOLOGY. STANFORD UNIVERSITY SCHOOL OF MEDICINE

Along with Dr. Squier and two highly respected law professors with administrative positions in The Innocence Program network, Dr. Barnes co-authored a legal studies research paper entitled, “Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it Right.” See  Drs. Squier and Barnes and Wisconsin Law . Dr. Barnes was also featured on the PBS Frontline episode “The Child Cases.” He was provided with the medical records. Although communication has not reached the point of securing an affidavit, Dr. Barnes did state that he agrees with the findings in Dr. Squier’s medico-legal report dated September 14, 2012.

 

IF YOU HAVE ANY INFORMATION WHICH MAY BE OF ASSISTANCE TO THIS CASE, PLEASE SEND A CONFIDENTIAL EMAIL TO INFO@BRIANPEIXOTO.COM

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