A. Client Interview 1. How long has the child been in his/her care? 2. Was anyone else caring for the child in the previous 3 months? 3. What symptoms did the child have? [if the child is not lethargic, you should be very suspicious as to claim that child is suffering from SBS, which usually entails moderate/severe neurological trauma] 4. Names of all facilities which treated child in last 3 months, as well as names of all doctors & other medical professionals who examined/treated child
B. Familiarize Yourself 1. read, read, read 2. review all pertinent caselaw in the area of shaken baby syndrome, as well as general res ipsa cases 3. read books written about Shaken Baby Syndrome (e.g., “Silenced Angels: The Medical, Legal & Social Aspects of Shaken Baby Syndrome," AND “Shaken Baby Syndrome: A Multidisciplinary Approach") 4. Review the actual medical literature on the subject. You may obtain some on the web by accessing the “PubMed" website. You may obtain a collection of others from the National Child Abuse Defense & Resource Center, which publishes a several-hundred page binder entitled, “Shaken Baby - Related Articles ." 5. Obtain the Dorland’s Illustrated Medical Dictionary (or any other leading Medical Dictionary) – you should familiarize yourself with the definitions of basic medical terms, as well as any you see in the medical records which you don’t know [also, Dorland’s has a CD which has a pronunciation feature, which is cool, because then you won’t look bad when you pronounce long medical terms, and the ACS doctor – the one you’re trying to discredit – corrects you on how to pronounce the term]. 6. GET A MEDICAL EXPERT FOR THE DEFENSE TEAM. The importance of this cannot possibly be emphasized enough. At the least, the expert will be able to give you his/her take on SBS, as well as review the medical records to inform you of things you would otherwise miss; s/he can also provide you with his/her opinion as to the strength of the diagnosis, and be brought in as a witness for the defense.
C. Disclosure 1. General rule – don’t accept a “No" or a “We ain’t got it" for an answer 2. Demand the entire DSS/CPS caserecord (see 22 N.Y.C.R.R. Part 428 for what documents are supposed to make up the complete caserecord). Scour the caserecord for inconsistent statements by any testifying witness. It’s amazing how many statements are contained in the complete caserecord that never come into play at trial. Why? If DSS/CPS interviews a witness (especially a doctor) that is not called at trial, your antenna should go up. Ask why s/he isn’t on their witness list. Interview them yourself. If they refuse to speak, subpoena them for a deposition (requires judicial approval). 3. Review the medical records with a fine-tooth comb. Highlight portions which catch your eye. I, for instance, use one color highlighter for statements which may help my client (e.g., inconsistencies within the record, or inconsistencies with established research) & another color highlighter for statements which may hurt my client (but things I should keep in mind, nonetheless). 4. Consider sending out your own subpoenas for medical records; don’t necessarily rely on what records DSS/CPS is able to get; nor should you necessarily rely on what the reporting hospital says is the “Complete" medical record; while generally reports generated by the different departments within a hospital should find their way into the main medical file for a patient, sometimes they do not; also, sometimes handwritten notes do not make it into the medical file; you should, at the least, subpoena the handwritten notes, if any, of each medical witness DSS/CPS plans to call. 5. Consider deposing (at the least) the main medical expert which DSS/CPS will put on the stand. Why settle for questioning them the first time at trial? Of course, there are always instances and reasons why you may choose not to depose him/her, but as a general rule, it’s a good idea.
D. Motions 1. Motion to Compel Discovery. No real need to file a motion to compel discovery. Let’s face it, CPLR §3126 sanctions are highly unlikely to be granted in a child protective case. So why waste your time, your client’s money, and risk angering the Judge? Solution: if DSS/CPS doesn’t produce the full caserecord, just send them a letter letting them know, “This is what I have. This is what I think I’m missing. If you don’t supplement the production, I’ll assume I have everything." Then, if you are in the middle of trial, and discovery DSS/CPS didn’t produce the full record, the Judge (presumably) will get angry at them – and having a Judge angry at DSS/CPS certainly doesn’t hurt. 2. Motion in limine. One motion which is important to file is the motion in limine – i.e., seeking a pre-trial ruling on the admissibility of certain evidence. Many medical records cite to “tests" which were performed on the child (e.g., MRI, CAT scan, etc.). Yet, opps, the actual test results are not contained in the medical records. Furthermore, in most cases, one cannot determine from the medical records who performed the particular test, or the lab tech’s qualifications to perform the test, or indeed, whether the equipment was functioning properly at the time the test was performed. If this information cannot be gleaned from the medical record, then the argument is that the Judge will have to assume that the lab tech was not some college intern, but was actually qualified to perform the test, and that, for instance, the MRI machine wasn’t malfunctioning or in need of repair at the time the test was performed. Some Judges have granted this motion, others have not. But the point is – you plant the seed in their mind as to certain weaknesses found in the medical records. Having the Judge thinking the way you want him/her to think is nice. Furthermore, it also sets up a good argument on summation that the Judge should put little or no weight on test results in which the Judge has to assume critical elements of information supporting their validity. 3. Motion for Summary Judgment. If you have some basis for it, file a motion for summary judgment. Access the strength of your defense, as well as the strength of your adversary on this one. If the DSS/CPS prosecutor is fresh out of law school & can’t write to save their life, try beating DSS/CPS on papers. Again, at the least, you plant a seed in the Judge’s mind & go a long way towards creating the “theme" of your defense case. On a motion for summary judgment, as well, feel free to cite to medical literature and books (even attach copies of some pages – don’t make it too voluminous, though). As long as you’re putting a motion before the Judge, might as well educate him/her as to the alternative conditions which may explain the symptoms of the child. Then, as DSS/CPS is going through their case, the Judge may think, “hmmmm, that doesn’t square with the medical literature . . .." But bottom line, don’t file this motion just to get info in front of the Judge - unless you have a legal basis to file the motion, it is potentially unethical to file it. 4. Motion to Enforce Subpoenas. If you subpoena records, again, don’t take no for an answer; if a hospital, etc. tells you they don’t have a certain record you’re looking for, insist on a written letter to that effect; only then should you release them from the subpoena; upon noncompliance, file a motion for contempt; this is always better if the subpoena sought to be enforced is one “so-ordered" by the Judge; also, make & document efforts you make to informally obtain compliance with your subpoena (i.e., call the Medical Records Dept. within the hospital); if you make no efforts, expect the Judge to be (at least a little) angry at your motion for contempt.
II. TRIAL STRATEGY A. “set ‘em up & knock ‘em down" B. Basic rule of cross-examining any witness should be applied to the medical expert; lead the witness through your knowledge of SBS in general, based upon your research & consultation with your expert (i.e., “You would agree with me that . . ."); also, set them up with questions such as “You would agree with me that a doctor should never render a definitive diagnosis without reviewing the full & complete medical records, right?" or “You would agree with me that, before rendering a definitive diagnosis, a doctor should take a thorough history of the patient?" or “& the reason you perform a full & complete history, and review the full & complete medical records, is because your diagnosis would be less valid if you did not, correct?" C. Bottom line, control the witness – don’t let him/her control you; always ask closed questions; don’t let the witness for DSS/CPS ramble on – interrupt them, if necessary (e.g., “thank you, doctor, but that wasn’t my question" or “thank you, doctor, I’ll accept the no"). D. Move to strike any testimony which doesn’t answer your question (i.e., when & if the doctor rambles). E. In sum, if you are afraid to “take on" the doctor, do another area of law; it may take a full day or two to bring yourself up to speed regarding the medical literature, but it’s worth it for your cross, and it’s worth it for your client’s case. CASELAW
• Matter of Marquis W., NYLJ 2/7/00 (2d Dept) (while medical proof may be adequate to establish prima facie case, R can, and here did, rebut with credible evidence the presumption that they were responsible) • Matter of Sem J.B., NYLJ, 11/13/97 (Queens Fam. Ct., J. Friedman) (child diagnosed with shaken baby syndrome returned to Rs where child suffered from congenital defects and had regressed while in foster care) • People v. Yates, 290 A.D.2d 888, 736 N.Y.S.2d 798 (3rd Dept. 2002) (Fyre test no longer required for testimony regarding SBS) • People v. Kendall, 254 A.D.2d 809, 678 N.Y.S.2d 182 (4th Dept. 1998) (expert witness allowed to demonstrate the mechanics of how SBS is caused) • In re C Children, 247 A.D.2d 211, 668 N.Y.S.2d 387 (1st Dept. 1998) (returning non-target child at dispo, where target child was found victim of shaken baby syndrome, was in best interests of that non-target child)