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Hawk Clark v. State

Court of Appeals of Mississippi

October 29, 2019


          DATE OF JUDGMENT: 03/03/2017





         EN BANC.

          TINDELL, J.

         ¶1. An Itawamba County jury convicted Joshua Clark (Josh) of the second-degree murder of his four-month-old daughter, Kyllie Clark. At trial, the State's case against Josh relied upon the diagnosis that Kyllie died from shaken-baby syndrome (SBS) and the expert-opinion testimony provided by pediatrician Dr. Karen Lakin as to the timing of Kyllie's fatal injuries. In this opinion, we address whether Dr. Lakin's expert testimony on SBS met the reliability prong of Mississippi's modified Daubert standard as required by Mississippi Rule of Evidence 702; Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); and Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss. 2003).

         ¶2. Josh's appeal arises from a prosecutorial model for a category of cases involving similar facts: Kyllie died in 2008 when SBS charges were common; Josh claimed his innocence; no witness purported to have seen Josh shake or ever abuse Kyllie in any way; no apparent indications of recent trauma existed; yet, solely on the basis of Dr. Lakin's expert testimony, the jury found Josh, who had no prior criminal record and was a father of three young children, guilty of second-degree murder. Kyllie was under Josh's exclusive care for approximately three hours before she began gasping for air and went limp. Josh, along with Kyllie's mother, Bethany Clark, rushed Kyllie to the hospital. Despite multiple resuscitation attempts and medical intervention, Kyllie died.

         ¶3. In reversing Josh's conviction and sentence and remanding for a new trial, we find that Dr. Lakin's expert-opinion testimony failed to meet the Daubert standard and was so unreliable as to render portions of her testimony inadmissible under the rules of evidence. Dr. Lakin may have been competent in her expertise as a pediatrician and child-abuse-treatment provider. Her competence, however, was not the focus of the Daubert hearing. Rather than focusing mainly on Dr. Lakin's expert qualifications, the circuit court was required to also examine the substance and methodology of her proffered testimony regarding SBS as a reliable theory and, in particular, the reliability of her opinion on the timing of Kyllie's fatal injuries. As further discussed below, we therefore find reversible error in the circuit court's admission of Dr. Lakin's testimony. Because we reverse Josh's conviction and sentence and remand his case on this issue, we decline to address his remaining assignments of error on appeal.[1]


         ¶4. Josh and Bethany, along with their three children, Cadence, and twins Kyllie and Quinton, moved to a rented home in Itawamba County, Mississippi, in late 2007. On January 5, 2008, Cadence was two years old, and Kyllie and Quinton were four months old. Two teenaged friends of Bethany's, Haley Parker and Morgan Wright, also lived in the Clarks' home. Bethany's oldest child, five-year-old Savannah, also sometimes stayed with the Clarks.

         ¶5. Josh typically came home from his out-of-state construction job on Friday afternoons and spent the weekends with his family. From Friday nights until early on Monday mornings, Josh took care of the children. Josh let Bethany sleep through the night on his weekends home while he got up every two or three hours to feed the twins. At trial, no one testified to seeing Josh harm any of the four children, and Bethany considered Josh to be a good father.

         ¶6. On Saturday, January 5, 2008, Josh arose at 9 a.m. and let Bethany and the teenagers, Haley and Morgan, sleep until they awoke around 2 p.m. Josh fixed breakfast and lunch for the two older children, Savannah and Cadence. Josh testified that he fed and burped Quinton and tried to feed Kyllie. Josh noticed that Kyllie was fussy that day, and he assumed that she felt badly. Around 3 p.m., Bethany and the teenagers left to run errands. Bethany testified that when she and the teenagers left, Kyllie was fine. The four children were then left in Josh's exclusive care until Bethany and the teenagers returned home at 5:30 p.m.

         ¶7. Josh testified that maybe five or ten minutes before Bethany and the teenagers returned, Kyllie made a gasping sound. Upon returning and seeing Kyllie's condition, Morgan called 911. Josh testified that he needed to get dressed, and he took Kyllie into the bedroom with him. At this point, Kyllie went limp. Bethany brought Kyllie back out to the living room and attempted CPR. Josh and Bethany decided to take Kyllie to the hospital.[2]As Bethany ran into the hospital with Kyllie, Bethany "popped" Kyllie against the door. Medical records reflect that the examining doctor at the local hospital noted Kyllie may have suffered from sudden-infant-death syndrome.

         ¶8. Local hospital staff sent Kyllie to Memphis, Tennessee, for specialized care at Le Bonheur Children's Hospital. Prior to and after her arrival at Le Bonheur, multiple vigorous CPR attempts were made. The Le Bonheur staff who examined Kyllie diagnosed her with rib fractures, retinal and subdural hemorrhages, and brain swelling. Dr. Lakin consulted on Kyllie's case at Le Bonheur. Kyllie's brain showed the presence of subacute or acute-on-chronic hematoma. This finding was described at trial as an older stage of blood in Kyllie's brain as well as a new bleed, indicating there had been past bleeding in Kyllie's brain. Tragically, at Le Bonheur the staff declared Kyllie brain dead and took her off life support.

         ¶9. The police investigated Kyllie's death based, at least in part, on the initial information from Le Bonheur and Dr. Lakin. Although the medical records reflected no indication of recent accidental trauma to Kyllie in the days or weeks before her death, Haley admitted seeing Cadence fall on Kyllie. Additionally, Jacqueline Fifield, who sometimes babysat the twins, testified that she once found Kyllie on the floor and that Cadence told her that Bethany had dropped Kyllie. A social worker noted in Kyllie's Le Bonheur medical records that Kyllie's injuries were suggestive or consistent with SBS or child abuse. Dr. Lakin opined that, with no history of any type of significant trauma, the hospital's findings of brain trauma, retinal hemorrhages, and rib fractures combined to support her opinion that Kyllie died due to SBS. Officer Hillhouse, one of the investigating officers, testified that the Le Bonheur medical records referred to Kyllie's injuries as consistent with SBS or "an adult . . . [grabbing] the torso of the child and [shaking] the child." Officer Hillhouse interpreted the note to mean that either Josh or Bethany had injured Kyllie. While the police could not pinpoint the exact time Kyllie's injuries had been inflicted, they ruled out Bethany as the perpetrator because Kyllie's breathing trouble started when Kyllie was in Josh's exclusive care.

         ¶10. On March 26, 2008, an Itawamba County grand jury indicted Josh on Count I, the commission of felonious child abuse and capital murder "by violently shaking [Kyllie], causing rib fractures and internal injuries . . .," and Count II, the felonious child abuse of Kyllie's twin, Quinton.

         ¶11. Pursuant to a plea bargain, Josh agreed to plead guilty in 2010 to the reduced charge of Kyllie's depraved-heart murder. Josh's counsel then allowed Josh to enter into the plea agreement without retaining an expert to examine and rebut the State's SBS theory on the cause and timing of Kyllie's fatal injuries.[3] The circuit court sentenced Josh to life imprisonment. Later, the circuit court granted Josh's motion for post-conviction relief (PCR) after finding that Josh's trial counsel had rendered ineffective assistance by failing to introduce expert testimony to rebut the State's SBS expert testimony. The order granting Josh relief noted that "there is considerable conflict within the medical community concerning [SBS]." The circuit court's ruling on the PCR motion both assured Josh of his right to expert assistance and actually required Josh to retain an expert to rebut the State's SBS theory.

         ¶12. With both new counsel and an expert to dispute the State's SBS testimony, Josh faced a new trial on the charge of Kyllie's capital murder. Before trial, Josh moved to preclude the State's introduction of Dr. Lakin's testimony about SBS/abusive head trauma (SBS and/or AHT).[4] Josh argued that SBS is no longer a generally accepted diagnosis in the absence of evidence of external injuries and that SBS could not be used to accurately determine the time of Kyllie's injuries. Josh supported his motion with numerous articles, studies, and criticisms of SBS. The circuit court held what it referred to as a Daubert hearing, after which the circuit judge stated, "[T]his thing is identified in my mind, at least, as [an SBS] case." The circuit court summarily denied Josh's motion.[5]

         ¶13. In opening statements, the State articulated its theory of the case that Josh must have been responsible for Kyllie's death because she was in his sole care for almost three hours before she began to experience breathing trouble and other symptoms. The State treated the case as a shaken-baby case and theorized that Josh abused Kyllie during that time period, which resulted in her fatal injuries. The State primarily relied upon Dr. Lakin's trial testimony. Dr. Lakin opined at trial that someone killed Kyllie by shaking her, with the possibility that Kyllie's head impacted something. Dr. Lakin further testified that the injuries that killed Kyllie could only have occurred during the three-hour window Kyllie was in Josh's exclusive care. Dr. Lakin testified that, after sustaining her injuries, Kyllie would not have functioned normally, would have lost consciousness very quickly, and would not have been able to eat or to be fed.

         ¶14. In support of her trial opinions and conclusions, Dr. Lakin cited only the American Academy of Pediatrics (AAP) and stated that the AAP recognizes AHT as an entity with SBS as a component. According to Dr. Lakin, under the AAP statement, AHT is supported by findings of intracranial hemorrhages, which may or may not be associated with fractures and retinal hemorrhages. Dr. Lakin claimed that Canada's version of the AAP also recognizes SBS/AHT and that the Center for Disease Control funds research for SBS/AHT. She testified that challenges to the theories of SBS/AHT come less from the pediatric sciences and more from other sciences and the legal arena. While Dr. Lakin stated that numerous peer-reviewed articles support that the disciplines of pediatrics, ophthalmology, neurosurgery, and neurology recognize AHT, she could not name or cite to any of those articles.

         ¶15. On cross-examination at trial, Dr. Lakin agreed that, according to the AAP, "[t]he mechanisms and result of injuries of accidental and abusive head injury overlap[, ] and there is no single or simple test to determine the accuracy of the diagnosis." This AAP statement was the updated version upon which her opinions were based, yet she was unaware of the exact statement. Further, Dr. Lakin admitted she was unaware that in 2009, the AAP removed language that presumed child abuse when subdural hematoma, retinal hemorrhages, and brain swelling exist.

         ¶16. Dr. Lakin further admitted at trial that, upon evaluation at Le Bonheur, Kyllie's rib fractures appeared to be healing rather than recently sustained, the fractures would have taken several days to develop, and it was unlikely they occurred on January 5, 2008, during the time Kyllie was with Josh. Dr. Lakin confirmed that she did not mean to suggest that Josh had anything to do with the rib fractures, and she stated, "There is not a time/date stamp on the [rib] fracture that tells you that it happened one week before or two weeks before. But we know that the healing starts to appear around 5-7 days in an infant."

         ¶17. Although Dr. Lakin opined that many different accidental and nonaccidental causes potentially existed for each of Kyllie's individual injuries (subdural hemorrhages, retinal hemorrhages, and rib fractures), she stated the combination of the injuries was inconsistent with a natural cause of death. She agreed that to eliminate the other possible causes of Kyllie's death, the medical providers would have to go through a process called differential diagnosis. Dr. Lakin also agreed that no differential-diagnosis process was completed on Kyllie, no test was done to look for neck injuries, and Kyllie had no external head injury.

         ¶18. After Dr. Lakin's full trial testimony, the circuit court held a bench hearing on new information received and on Josh's request to recross Dr. Lakin, particularly with regard to her understanding of histology slides and their use in determining the time of Kyllie's brain injury. In reference to Dr. Lakin's testimony, the circuit judge stated, "I don't know that she's ever testified to anything other than that she could not quantify the time . . . ." However, Dr. Lakin had specifically testified that the injuries occurred after Kyllie last appeared "fine" before 5 p.m., or after Josh last fed Kyllie. Dr. Lakin testified that Kyllie's being healthy, eating, and playing between 3 p.m. and 5 p.m. was inconsistent with Kyllie's collapsing, stopping breathing, and dying within 24 to 36 hours. Then, in contradiction to her earlier testimony, Dr. Lakin admitted on cross-examination that she had not and could not determine the exact time of Kyllie's injuries. Dr. Lakin agreed that she would defer to a pathologist on the subject of pathology.

         ¶19. Another State's witness, Dr. Mark LeVaughn, a forensic pathologist and the chief medical examiner for the State of Mississippi, testified that the time Kyllie's subdural hemorrhage occurred could not be determined. Dr. LeVaughn explained that a cellular view of a hematoma could give a more precise time of when the injury occurred but not an exact time. He reviewed the histology slides of Kyllie's subdural hematoma and found that they were of no diagnostic value in determining the time of the hemorrhage. The State rested with its case dependent upon Dr. Lakin's trial testimony.

         ¶20. Dr. Mark Shuman, also a forensic pathologist, testified on Josh's behalf that the cause of Kyllie's death was probably blunt head injury or impact head injury. While he could not testify as to how or when Kyllie's injuries occurred, Dr. Shuman testified that shaking did not cause the injuries. Dr. Shuman discussed the evolution of SBS and AHT as medical theories and explained that studies had been done with test dummies to determine the shaking forces needed to cause fatal brain injuries in infants without also injuring an infant's neck. Dr. Shuman discussed biomechanical engineer studies regarding the forces generated by shaking an infant. He testified that the force of dropping a baby a few feet or stepping on an infant could cause the injuries seen in Kyllie.

         ¶21. As Dr. Shuman explained, even with minor head injuries, it is standard hospital practice to provide a discharge instruction to monitor a child for 24 hours and to perhaps even wake the child every hour to make sure he or she is okay. Dr. Shuman stated this is because, unlike Dr. Lakin's immediate-symptom-onset theory, the symptoms and severe consequences of head injury can be delayed. Someone can appear completely normal at first but later lose consciousness.

         ¶22. Dr. Shuman and Dr. LeVaughn both testified that, had a proper sample histology slide of Kyllie's dura been prepared, they could have given an opinion as to the approximate date and time of Kyllie's brain injury. A histology slide of the dura matter would have allowed the pathologists to determine how long the blood under Kyllie's dura had been there-whether a few days, a week, or a month. But the histology slides were poorly prepared under the supervision of a State-contracted doctor, and of the thirteen tissue slides provided to Josh's defense expert, none of the slides were of the dura. The pathologists therefore testified that the best way to determine the time of Kyllie's injuries had been rendered impossible.

         ¶23. In contradiction to Dr. Lakin, Dr. Shuman testified that retinal hemorrhages do not demonstrate that some type of child abuse has occurred. Although a number of studies have been performed to show that retinal hemorrhages occur from shaking, it has never been proven. He instead testified that since 1957, experimentation has shown that pressure inside the head can cause retinal hemorrhages. Resuscitation efforts, he testified, increase intracranial pressure, causing retinal hemorrhages. As the trial testimony reflected, multiple resuscitation efforts were attempted on Kyllie.

         ¶24. Also unlike Dr. Lakin, Dr. Shuman opined that short falls can cause significant head injury. He supported his testimony with an expert report listing numerous and various academic and peer-reviewed studies. Dr. Shuman further named the doctors who wrote the articles supporting his testimony and those who performed the studies upon which his opinions were based. Although he agreed that the majority of pediatricians believe in SBS, he stated that pediatricians treat children and childhood diseases while, in comparison, forensic pathologists focus on autopsy, pathology, trauma, and the legal issues associated with these areas. He explained that forensic pathologists, like himself, use autopsies, examinations, and pathology to determine the cause and manner of death. Dr. Shuman personally disagreed with the existence of the SBS theory and testified that no scientific evidence shows a human can shake a child hard enough to cause a primary brain injury.

         ¶25. Dr. Shuman testified that when children suffer a fatal head injury, they sometimes are asymptomatic. He explained that, especially with a baby of Kyllie's age, the symptoms can be very subtle and may include vomiting, sleepiness, and irritability. These are all things that can either be a symptom of a head injury or just a normal fussy baby. Thus, Josh's observation that Kyllie had been acting fussy all day on January 5, 2008, could have been an earlier manifestation of Kyllie's injuries. This fact, along with Dr. Lakin's admission that she could not provide the date and time of Kyllie's injuries, reflected a missing piece of the State's case-the causal connection between Kyllie's injuries and the few hours she was solely in Josh's care.

         ¶26. Dr. Shuman testified that blunt head injury can be accidental or intentional and that examination of the body and medical history cannot, in a case like Kyllie's, disclose whether the injury was inflicted intentionally as opposed to accidentally. In sum, Dr. Shuman testified that although SBS was once a generally accepted scientific theory, now, based on current and expanding scientific research and literature, the theory has been questioned. He stated the theory alone cannot be used to link an infant's diagnosable injuries and the assumptions made under the SBS theory to the conclusion that a certain fatal injury occurred at a certain time.

         ¶27. Josh also testified on his own behalf and denied ever abusing Kyllie. Further, no witnesses testified that Josh shook Kyllie, and the State presented no physical evidence of any witnessed trauma to Kyllie. After both the State and the defense rested, the jury convicted Josh of Kyllie's second-degree murder. The circuit court sentenced Josh to serve forty years in the custody of the Mississippi Department of Corrections. Josh unsuccessfully moved for a directed verdict and a new trial. Aggrieved, Josh appeals.


         ¶28. We review the admission or exclusion of evidence, including expert testimony, for abuse of discretion. Inv'r Res. Servs. Inc. v. Cato, 15 So.3d 412, 416 (¶2) (Miss. 2009). Thus, a trial judge's ruling will stand "[u]nless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion . . . ." Puckett v. State, 737 So.2d 322, 342 (¶57) (Miss. 1999).


         ¶29. Our analysis regarding the admissibility of Dr. Lakin's expert testimony focuses on the principles and methodology she applied to form her opinions. See McLemore, 863 So.2d at 36-37 (¶13) ("The focus of this analysis [on the admissibility of expert witness testimony] must be solely on principles and methodology, not on the conclusions they generate." (internal quotation mark omitted)). The question before this Court is whether the circuit court abused its discretion by ruling that Dr. Lakin's qualifications as a pediatrician and child-abuse treatment provider adequately supported her opinion that a causal connection existed between Kyllie's medically identifiable injuries and her conclusion as to the specific timing of Kyllie's purported SBS injuries.

         ¶30. Rule 702, which governs the admissibility of expert testimony, states:

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, if (1) their testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

         ¶31. Thus, when determining the admissibility of expert testimony, courts must first determine whether the expert is qualified to give his or her opinion and then whether the expert's opinion is based on scientific knowledge (reliability) and will assist the trier of fact in understanding or determining a fact in issue (relevance). McLemore, 863 So.2d at 38 (¶16). As Rule 702 states, the testimony must be "based on sufficient facts or data" and "the product of reliable principles and methods." M.R.E. 702.

         ¶32. Experts are supposed to educate and assist the trier of fact on those fields outside the realm of common-sense understanding. Peters v. Fire Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990); McMichael v. Howell, 919 So.2d 18, 24 (¶15) (Miss. 2005). Expert evidence can be both powerful and quite misleading because of the difficulty jurors may have evaluating it. Daubert, 509 U.S. at 595. Under such circumstances, when an expert is allowed to testify about specific scientific knowledge or scientific methodology, the risk of prejudice is very high because such testimony may tend to mislead or tempt the jury to decide the case on an improper basis. M.R.E. 403 advisory committee note; accord Fed. R. Evid. 403 advisory committee notes. Thus, the circuit court is vested with the "gatekeeping responsibility" for expert-testimony admissibility. McLemore, 863 So.2d at 36 (¶11) (quoting Daubert, 509 U.S. at 589).

         ¶33. Previously, in Middleton v. State, 980 So.2d 351, 353 (¶4) (Miss. Ct. App. 2008), Dr. Lakin was accepted as an expert in pediatrics with a subspecialty in child abuse, and she testified that a child's injuries most likely resulted from SBS.[6] Regardless of any similarities between her testimony in that case and this case, however, we note that Dr. Lakin's prior acceptance as an expert does not automatically award her continued certification as an expert in her field or subspecialty in any future litigation. See Gause v. State, 65 So.3d 295, 306-07 (¶¶35-36) (Miss. 2011) (Kitchens, J., specially concurring), limited on other grounds by Hall v. State, 127 So.3d 202, 207 (¶15) (Miss. 2013). Further, in light of Josh's presented evidence that showed the reliability of SBS as a diagnosis is being increasingly challenged and questioned, Dr. Lakin was required to establish anew in this case that, under the exact circumstances presented, SBS reliably explained Kyllie's death. Thus, any reliance on similarities with Dr. Lakin's prior testimony in Middleton ...

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