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Clayton Phillip Allison v. State of Alaska (7/26/2019) ap-2651

Clayton Phillip Allison v. State of Alaska (7/26/2019) ap-2651

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                  303 K Street, Anchorage, Alaska  99501
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



CLAYTON PHILLIP ALLISON,  

                                                                    Court of Appeals No. A-12382  

                                    Appellant,                   Trial Court No. 3PA-09-02996 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                         No. 2651 - July 26, 2019  



                  Appeal f          

                             rom the Superior Court, Third Judicial District, Palmer,  

                  vanessa H. White, Judge.  



                  Appearances: Josie Garton (opening and replybriefs) and Emily  

                                                                              

                  Jura (oral argument), Assistant Public Defenders, and Quinlan  

                                                            

                  Steiner, Public Defender, Anchorage, for the Appellant. Patricia  

                                                                                          

                  L.  Haines,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                       

                  Appeals, Anchorage, and Jahna Lindemuth and Kevin Clarkson,  

                  Attorneys General, Juneau, for the Appellee.  



                  Before: Allard, Chief Judge, and Harbison, Judge, and Suddock,  

                                               

                  Senior Superior Court Judge.*  

                                                          



                  Judge ALLARD.  



    *    Sitting  by   assignment  made  pursuant  to  Article  Iv,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                    Clayton Phillip Allison was convicted of second-degree murder after his  

                                                                                                                                



fifteen-month-old daughter, J.A., suffered a fatal injury while she was in his care.  Over  

                                                                                                                             



the course of Allison's month-long trial, the jury heard testimony from thirty witnesses  

                                                                                                                      



-  including  sixteen  medical  professionals.                            In  addition  to  J.A.'s  numerous  care  

                                                                                                                              



providers,  who  testified  to  the  medical  complications  she  experienced  during  her  

                                                                                                                               



lifetime, both Allison and the State presented multiple expert medical professionals who  

                                                                                                                              



analyzed the circumstances surrounding J.A.'s death.   Although the State's experts  

                                                                                                                         



concluded that J.A.'s death was the result of physical abuse, Allison's experts presented  

                                                                                                                      



the  opposite  opinion  -  that  there  were  plausible,  and  far  more  likely,  alternative  

                                                                                                                    



explanations for J.A.'s death.  

                                     



                    One of these possible explanations was that J.A. suffered from Ehlers- 

                                                                                                                         



Danlos  Syndrome  -  a  neurogenetic  disorder  that  is  associated  with  collagen  

                                                                                                                       



abnormalities and excessive bleeding.  But the trial court precluded Allison's experts  

                                                                                                                          



from discussing, or even mentioning, the possibility that J.A. suffered from Ehlers- 

                                                                                                                         



Danlos Syndrome.  On appeal, Allison argues that this was error.  

                                                                                            



                    For the reasons explained here, we agree with Allison that it was error for  

                                                                                                                                



the trial court to exclude this evidence and error for the trial court to restrict Allison's  

                                                                                                           



questioning of the experts on this matter.   We also conclude that the error affected  

                                                                                                                        



Allison's ability to present his defense and was not harmless.  Accordingly, we reverse  

                                                                                                                          



Allison's conviction and remand this case to the superior court so that the State can  

                                                                                                                               



determine whether to retry Allison.  

                                           



          Factual background and prior proceedings  

                                                           



                    J.A. was born on June 22, 2007 to Christiane and Clayton Allison.  J.A.  

                                                                                                                              



appeared to be a relatively healthy child for the first few months of her life, but her  

                                                                                                                  



                                                              - 2 -                                                         2651
  


----------------------- Page 3-----------------------

development   suddenly   changed   when   she   was   four   to   six   months   old.     She   began  



experiencing decreased muscular strength and tone, weight loss, limited mobility, and  



an enlarged head and brain.                                                                             Her primary care physician referred her to a physical                                                                                                                



therapist, dietician, neurologist, and radiologist.                                                                                                                      J.A. was under treatment by most of                                                                                       



these medical professionals at the time of her death.                                                                                                         



                                              On September 24, 2008, when J.A. was fifteen months old, she suffered a                                                                                                                                                                                  



fatal injury while she was home with her father.                                                                                                                      According to Allison, J.A. fell down a                                                                                            



flight of stairs while he was in the bathroom.                                                                                                              Allison called 911, and J.A. was taken in                                                                                               



a helicopter to the emergency roomat                                                                                            Providence Hospital. Doctors                                                                           discovered that J.A.  



had suffered a severe traumatic brain injury, resulting in a subdural hematoma (bleeding                                                                                                                                                                                  



between the skull and the surface of the brain) and overall brain swelling.                                                                                                                                                                                             J.A. died   



while undergoing surgery to remove the blood and reduce the pressure on her brain. Dr.                                                                                                                                                                                                         



Robert Whitmore, a forensic pathologist, conducted an autopsy the following day, and                                                                                                                                                                                                           



categorized J.A.'s death as a homicide, with the cause of death being blunt force head                                                                                                                  



and neck trauma.                 



                                              Allison was chargedwithmanslaughter,criminallynegligent homicide,                                                                                                                                                                               and  



                                                                                 1  

second-degree murder.                                                                                                                                                                                                                                       

                                                                                        It was established during the trial that J.A., in fact, had two  



                                                                            

subdural hematomas:  an older chronic one and a newer acute one.  various witnesses  



                                                                                                                                                                                                                                                                         

testified to prior falls where J.A. failed to extend her arms when she fell down, forcefully  



                                                                                                                                                                                                                                                                                    

hitting her head on the ground or on a piece of furniture as a result.  The defense argued  



                                                                                                                                                                                                                                                                                         

that the older hematoma was likely caused by one of these prior falls, and that the older  



                                                                                                                                                                                                                                                                                           

hematoma made J.A. especially vulnerable to the newer one.   The State argued that,  



                                                                                                                                                                                                                                                                                            

despite this preexisting injury, J.A. could not have sustained a fatal injury from a fall  



            1           AS 11.41.120(a)(1), AS 11.41.130(a), and AS 11.41.110(a)(2), respectively.  



                                                                                                                                              -  3 -                                                                                                                                     2651
  


----------------------- Page 4-----------------------

down the stairs and therefore the only possible explanation for her death was physical   



abuse.  



                             The State presented testimony from                                         Dr. Cathy Baldwin-Johnson, an expert                                



in the medical evaluation of suspected abuse. Dr. Baldwin-Johnson concluded that J.A.                                                                                            



                                                                         2  

                                                                                                                                                                                 

suffered from abusive head trauma                                           - a conclusion she reached in part because she was  



                                                                                                                                                                                     

able to rule out the existence of other medical conditions that could have contributed to  



                                                                                                                                                             

J.A.'s injuries. The State also presented testimony from two other medical professionals  



                                                                                                                                                                                  

who observed J.A. just prior to and just after her death:  Dr. Elizabeth Galloway, the  



                                                                                                                                                                              

pediatric intensive care unit physician at Providence Hospital who examined J.A. upon  



                                                                                                                                                                                 

her  arrival,  and  Dr.  Robert  Whitmore,  the  forensic  pathologist  who  conducted  her  



                                                                                                                                                                               

autopsy.  Dr. Galloway did not diagnose J.A. with having suffered from abusive head  



                                                                                                                                                                                 

trauma. She stated only her opinion that J.A.'s injuries were consistent with shaking and  



                                                                                                                                                                         

not with a fall down the stairs.  Dr. Whitmore concluded that, based only on the injuries  



                                                                                                                                                                         

he observed during the autopsy, the most likely explanation for J.A.'s death was shaking  



                                                                                                                                            

or a combination of shaking and non-accidental blunt force head trauma.  



                                                                                                                                                                              

                             The State's case against Allison rested on the testimony of these three  



                                                                                                                                                                                 

experts.  There were no eyewitnesses to the alleged abuse, nor any eyewitnesses to any  



                                                                                                                                                                                     

prior abuse.  The jury heard no admissions or confessions by Allison.  Notably, none of  



                                                                                                                                                                                

the doctors who treated J.A. prior to the incident that led to her death testified that they  



                                                                                                                                                                           

believed that J.A. had suffered abuse while in Allison's care.  Nor did any of the family  



                                                                              

members or friends who testified at trial.  



                                                                                                                                                                               

                             In   his   defense,   Allison   called   three   expert   physicians   who   had  



                                                                                                                                                                                    

independently reviewed J.A.'s medical records:   Dr. Janice Ophoven, a specialist in  



       2      "Abusive head trauma" is the current clinical term for what was previously diagnosed                                                                   



as "shaken baby syndrome."  



                                                                                       - 4 -                                                                                  2651
  


----------------------- Page 5-----------------------

pediatricforensicpathology,                                                    Dr.Khaled                     Tawansy,apediatricretinalopthalmologist, and                                                                            



Dr. Joseph Scheller, a child neurologist.                                                                            These doctors testified that J.A.'s chronic                                                        



subdural hematoma, coupled with her preexisting health issues, was a "time bomb for                                                                                                                                                   



subsequent decompensation and potentially sudden death," and that her injuries were                                                                                                                                             



consistent with a fall down the stairs and not indicative of abuse.                                                                                                             Allison also presented              



Dr. Kenneth Monson, a mechanical engineering professor, who testified that, based on                                                                                                                                                   



his analysis of the mechanics and injury thresholds in children, J.A. could have                                                                                                                                   died from   



falling down the stairs, but not from shaking.                                                       



                                                                                                                                                                                              3  

                                     The jury                  convicted   Allison of second-degree murder.                                                                                                   

                                                                                                                                                                                                     At sentencing,  



                                                                                                                                                                                                                             

Allison was sentenced to 40 years' imprisonment with 10 suspended (30 years to serve)  



                                                                

and 15 years of felony probation.  



                                                                                                                                                                          

                   The  trial  court's  rulings  excluding  evidence  related  to  Ehlers-Danlos  

                  Syndrome  



                                                                                                                                                                                                                                

                                     On appeal, Allison argues that the trial court erred by barring him from  



                                                                                                                                                                       

raising the possibility that J.A. suffered from Ehlers-Danlos Syndrome.  



                                                                                                                                                                                                                                          

                                     Ehlers-Danlos Syndrome is a group of inherited disorders that affect a  



                                                                                                                                                                                                                            

person's connective tissues -primarily their skin,joints, and blood vessel walls. People  



                                                                                                                                                                                                                      

who have Ehlers-Danlos Syndrome usually have overly flexible joints and stretchy,  



                                                                                                                                                                                                                                   4  

                                                                                                                                                                                                                                        

fragile skin.  They can also be more susceptible to bruising and excessive bleeding.                                                                                                                                                     A  



         3        Because of the way this case was charged, the jury actually convicted Allison of                                                                                     



second-degree murder, manslaughter, and criminallynegligent homicide. These                                                                                                                                   charges then  

merged into a single conviction for second-degree murder.  



         4        Although the State argued that excessive bleeding was only related to the vascular  

                                                                                                                                                                                   

                                                                                                                                                             

type of the syndrome, Dr. Ophoven testified that excessive bleeding is a concern with any  

                                                                      

                                                                                                                                                                                                           (continued...)  



                                                                                                                 -  5 -                                                                                                         2651
  


----------------------- Page 6-----------------------

more severe formof the disorder, called vascular Ehlers-Danlos Syndrome can cause the                                                                                                                                                                                                                                                                                     



walls of a person's blood vessels, intestines or uterus to rupture.                                                                                                                                                                                                                                  According to Dr.                                                  



 Tawansy, one of Allison's experts, there have been cases where complications related                                                                                              



to Ehlers-Danlos Syndrome have been misdiagnosed as child abuse.                                                                                                                                                                                                            



                                                          At the time of her death, J.A. was under the care of pediatric neurologist Dr.                                                                                                                                                                                                                                 



Roderic Smith. Dr. Smith's office was assisting the family in trying to secure additional                                                                                                                                                                                                                                                  



medical insurance to pay for genetic testing because the causes of J.A.'s multiple health                                                                                                                                                                                                                                                                    



problems were unknown.   One avenue of genetic testing that Dr. Smith was interested                                                                                                                                                                                                                                     



 in pursuing was whether there was something wrong with the connective tissue within                                                                                                                                                                                                                                                                       



J.A.'s  family.     Dr.   Smith   was   aware   that   J.A.'s   mother   and   her   relatives   had   an  



undiagnosed amplified pain syndrome that might be Ehlers-Danlos Syndrome.                                                                                                                                                                                                                            



                                                          After J.A.'s death, J.A.'s mother traveled to the Mayo Clinic, where she                                                                                                                                                                                                                                      



was   subsequently   diagnosed   as   having   "Ehlers-Danlos   type   3   appearance   with  



hypermobile joints."                                                                       (This is a nonvascular version of the disorder.)                                                                                                                                                               According to Dr.                                              



 Smith, there is a fifty percent chance of a person with Ehlers-Danlos Syndrome passing                                                                                                                                                                                                                                                               



 on that condition to their children.                                                                                                                 According to Dr. Ophoven, a family history of                                                                                                                                                                   any  



type   of   Ehlers-Danos   Syndrome   is   a   factor   that   should   be   considered   in   any   case  



 involving significant bleeding, such as J.A.'s.                                                                                                                          



                                                          The expert reports given to the State during pretrial discovery referred to                                                                                                                                                       



the   mother's   diagnosis  of   Ehlers-Danlos   Syndrome   and   to   the   significance   of   this  



               4              (...continued)  



type of Ehlers-Danlos Syndrome.  On appeal, Allison cites to medical literature in support  

                                                                                                                                                

 of  this  testimony.   See  Anne  De  Paepe  &  Fransiska  Malfait,  Bleeding  and  Bruising  in  

                                                                                                                                                                                                                                                                                                                  

Patients with Ehlers-Danlos Syndrome and Other Collagen vascular Disorders, 127 Brit.  

J. of Haematology 491, 491 (2004) ("Prominent bruising and bleeding is seen in all subtypes  

                                                                             

 of EDS.").  



                                                                                                                                                                                  -  6 -                                                                                                                                                                         2651
  


----------------------- Page 7-----------------------

diagnosis  to  any  differential  diagnosis  of  J.A.'s  death.                                  Dr.  Tawansy's  report  

                                                                                                                           



characterized the maternal diagnosis as "significant," concluding that the family history  

                                                                                                                           



of Ehlers-Danlos Syndrome "merit[ed] further investigation" and noting the possibility  

                                                                                                                      



that J.A. "may have suffered from a variant of this condition herself," which could have  

                                                                                                                               



played a role in her death.  

                                



                     Shortly before trial, the State filed a motion for a protective order, seeking  

                                                                                                                          



to exclude any mention of Ehlers-Danlos Syndrome at trial.  The State argued that the  

                                          



mother's diagnosiswas inherently suspect becausethemotherhad obtainedthediagnosis  

                                                                                                                        



after J.A.'s death.  The State also viewed the diagnosis as too speculative.  

                                                                                                



                     The  court  held  an  evidentiary  hearing  and  heard  testimony  from  Dr.  

                                                                                                                                



Ophoven regarding why themother's diagnosis was relevantto anydifferentialdiagnosis  

                                                                                                                        



of the cause of J.A.'s death.   Dr. Ophoven testified  that "when you're considering  

                                                                                                                   



whether or not there is a special vulnerability in a particular case, a positive history of  

                                                                                              



Ehlers-Danlos in the family has to be a consideration."  Dr. Ophoven further testified  

                                                                                                                         



that, given the inheritance patterns of the disorder, one could not "exclude the possibility  

                                                                                                                      



that . . . an underlying collagen disorder could have made the child bleed more easily."  

                                                                                                                                       



Dr. Ophoven made clear that she was not diagnosing J.A. as having this condition  

                                                                                                                       



(indeed, shequestioned whether such adiagnosis could be made given J.A.'syoung age).  

                                                                                                                                       



But her expert opinion as a forensic pathologist was that this maternal history was  

                                                                                                                               



significant  to  any  differential  diagnosis  of  the  causes  of  J.A.'s  death  and  it  was  

                                                                                                                               



"something that can't be excluded from the . . . facts of the case."  

                                                                                            



                     The court expressed concern about the speculative nature of the evidence:  

                                                                                                                                       



                     [T]he inquiry has to be, number one, . . . is there someone  

                                                                                                   

                     qualified  to  make  the  diagnosis,  and  despite  her  other  

                                                                                                        

                     qualifications, I do not find that Dr. Ophoven's qualified to  

                                                                                                              

                    make that diagnosis in this case. Number two, can that expert  

                                                                                                        



                                                               -  7 -                                                        2651
  


----------------------- Page 8-----------------------

                    offer an opinion to a reasonable degree of medical certainty  

                                                                                      

                    that the diagnosis existed in [J.A.]?  And Dr. Ophoven just  

                                                                                                           

                    testified this morning that she could not make that diagnosis  

                                                                                                  

                    to any degree of medical certainty.  She merely posed it as a  

                                                                                                               

                    possibility that [J.A.] had the condition and pointed out that  

                                                                                  

                    at her young age, it would likely not be diagnosed anyway.  

                                                                                                   



Based on this analysis, the court concluded that it would not allow Dr. Ophoven to offer  

                                                                                                                             



any opinion on the mother's medical history of Ehlers-Danlos Syndrome or its possible  

                                                                                                                        



relevance to J.A.'s fatal injuries.  Because Allison's second expert, Dr. Tawansy, had  

                                                                                                               



similar  qualifications  to  Dr.  Ophoven  regarding  his  knowledge  of  Ehlers-Danlos  

                                                                                                              



Syndrome, the court also excluded his testimony about the diagnosis.  Accordingly, the  

                                                                                                                                



superior court granted the State's motion to preclude all evidence related to Ehlers- 

                                                                                                                         



Danlos Syndrome.  

             



                    Allison filed a motion for reconsideration.  After hearing arguments from  

                                                                                                                             



both parties, the court rejected the motion - again ruling to preclude all evidence of  

                                                                                                                                 



Ehlers-Danlos Syndrome from the trial.  The court again stated that the diagnosis the  

                                                                                                                                



mother received was too speculative to form a legitimate factual basis for another expert  

                                                                                                                           



to rely on in forming an opinion.  

                                      



                    After the court's rulings, the admissibility of evidence related to Ehlers- 

                                                                                                                     



Danlos Syndrome was discussed one more time during Allison's trial. When Dr. Smith,  

                                                                                                                           



J.A.'s treating neurologist, was testifying for the State, he mentioned that there were  

                                                                                                                             



many unresolved questions in J.A.'s case, including whether there was something wrong  

                                                                                                                           



with the connective tissue within J.A.'s family.  Outside the presence of the jury, he  

                                                                                                                                 



testified that J.A. was clearly a more vulnerable child, and that prior to her death he was  

                                                                                                                               



in the process of helping the family apply for additional medical insurance so that they  

                                                                                                                              



could seek genetic testing.  

                              



                                                              -  8 -                                                        2651
  


----------------------- Page 9-----------------------

                    Allison's defense counsel again asked the court to reconsider its ruling to  

                                                                                                                                  



preclude all testimony related to Ehlers-Danlos Syndrome so that she could ask Dr.  

                                                                                                                               



Smith questions about his concern that J.A. may have suffered from an underlying  

                                                                                                                    



neurogenetic disorder. The court denied this request, stating that, "given the speculative  

                                                                                                                    



nature of Ms. Allison's diagnosis, and given the fact that no one had diagnosed  [J.A.]  

                                                                                                                            



. . . with this condition, and given the fact that no one has offered an expert in this  

                                                                                                                               



syndrome, my prior ruling remains in effect."  

                                                           



           Why we conclude that the court erred when it precluded any mention of  

                                                                                                                       

          Ehlers-Danlos Syndrome at Allison's trial  

                                                                     



                    On appeal, Allison argues that the superior court erred when it refused to  

                                                                                                                                  



allow his experts to mention Ehlers-Danlos Syndrome or his lawyers to question the  

                                                                                                                                



State's experts about the mother's diagnosis. He contends that evidence of the maternal  

                                                                                                                        



diagnosisofEhlers-Danlos Syndromewas relevant and admissiblethrough thetestimony  

                                                                                                                      



of Doctors Ophoven, Tawansy, and Smith because it was the type of information that  

                                                                                                                               



experts in the field reasonably rely on in making their differential diagnoses.  Allison  

                                                                                                                         



further claims that the court's error in excluding this evidence was not harmless because  

                                                                                                                         



the State's case against him was based entirely on circumstantial evidence and the  

                                                                                                                               



proposed testimony about Ehlers-Danlos Syndrome tended to rebut the State's theory  

                                                                                                                           



that abuse was the only possible cause of J.A.'s fatal injuries.  

                                                                                  



                    For the reasons explained here, we agree with Allison that evidence of the  

                                                                                                                                



mother's  diagnosis  should  have  been  admitted  and  that  Allison  should  have  been  

                                                                                                                             



permitted to question his experts and the State's experts about the possible significance  

                                                                                                                  



of that diagnosis. We also agree with Allison that the trial court's reasons for excluding  

                                                                                                                      



this  evidence  were  erroneous  and  predicated  on  an  incorrect  understanding  of  the  

                                                                                                                               



                                                              -  9 -                                                        2651
  


----------------------- Page 10-----------------------

relevant law.  Lastly, we agree with Allison that the court's error was not harmless and  

                                                                                                                                



that reversal of Allison's conviction is required.  

                                                             



                     As Allison correctly points out, the State's case against him rested on the  

                                                                                                                                 



reliability of three witnesses - the State's expert who testified that the only possible  

                                                                                                                         



cause  of  J.A.'s  death  was  physical  abuse,  and  the  two  medical  professionals  who  

                                                                                                                              



identified J.A.'s injuries as most consistent with abuse.  There were no eyewitnesses to  

                                                                                                                                   



any physical abuse by Allison.  Nor was there any evidence that Allison had previously  

                                                                                                                      



abused J.A. or been suspected of abusing J.A.  To the contrary, the evidence presented  

                                                                                                                       



at trial was almost exclusively that Allison was a loving father who was very involved  

                                                                                                                        



in his special needs child's care.  

                                           



                     The State's expert came to her conclusion that physical abuse was the only  

                                                                                                                               



possible cause of J.A.'s death through the process of differential diagnosis.   As one  

                                                                                                                                



expert in the field has explained this process:  

                                                          



                     In  the  differential  diagnosis  methodology,  the  physician  

                                                                                                  

                     gathers historical information on a patient's symptoms and  

                                                                                                            

                     signs  and  generates  hypotheses  (a.k.a.,  the  differential  

                                                                                               

                     diagnosis).         Through  the  attainment  of  additional  clinical  

                                                                                                      

                     information (via various diagnostic tests), the physician goes  

                                                                                                           

                     through an inferential and deductive process of hypothesis  

                                                                                                 

                    refinement until aconsistent 'working diagnosis' is achieved.  

                                                                                                   

                     Hypothesis   refinement   utilizes   a   variety   of   reasoning  

                                                                                                 

                     strategies - probabilistic, causal, and deterministic - to  

                                                                                                              

                     discriminate among the existing diagnoses of the differential  

                                                                                                 

                     diagnosis.  . . .  In the simplest sense, the methodology relies  

                                                                                                         

                     on   process-of-elimination   reasoning.   As   one   eminent  

                                                                                                   

                     evidentiary scholar stated, '[i]n differential diagnosis, if there  

                                                                                                          



                                                              -  10 -                                                        2651
  


----------------------- Page 11-----------------------

                         are four possible diagnoses and you eliminate three, logic                                             

                         points to the last illness as the correct diagnosis.'                                      5  



                                                                                                                                                              

In other words, the process of differential diagnosis is a process of elimination.   A  



                                                                                                                                                         

diagnosis of shaken baby syndrome or abusive head trauma can only be made if all other  



                                                       6  

                                                

possible causes are ruled out. 



                                                                                                                                                            

                         Here, the State's primary expert, Dr. Baldwin-Johnson, was confident that  



                                                                                                                                                             

the only reasonable explanation of J.A.'s death was abusive head trauma caused by  



                                                                                                                                                      

Allison shaking or beating her. The defense experts thought otherwise and were critical  



                                                                                                                                                          

of Baldwin-Johnson's conclusions and methodology.  The defense experts were also  



                                                                                                                                                               

critical of Dr. Whitmore's autopsy procedures and conclusions.  The jury's task was to  



      5      Sandeep K. Narang et al.,                    A Daubert Analysis of Abusive Head Trauma/Shaken Baby   



Syndrome-Part II: An Examination of the Differential Diagnosis, 13 Hous. J. Health L. &  

Pol'y 203, 303-04 (2013) (internal citations omitted);                                              see also Ponte v. State, 2017 WL  

3867807, at *7 (Alaska App. Aug. 30, 2017) (unpublished) (discussing differential diagnosis  

in the context of a Daubert challenge to abusive head trauma testimony).  



      6  

                                                                                                                                                    

            See  Com.  v.  Epps,  53  N.E.3d  1247,  1265  (Mass.  2016)  (noting  that  "a  medical  

                                                                                                                             

diagnosis of [abusive head trauma] is made only after consideration of all clinical data," and  

that pediatricians "have a responsibility to consider alternative hypotheses when presented  

                                                                                                                                                 

with a patient with findings suggestive of [abusive head trauma]") (quoting C.W. Christian,  

R. Block, and the Committee on Child Abuse and Neglect, Abusive Head Trauma in Infants  

                                                                                                                          

and Children, 123 Pediatrics 1409, 1410 (2009)); Sissoko v. State, 182 A.3d 874, 905-06  

                                                                                                                                                               

(Md. App. 2018) ("The process of reaching a diagnosis of abusive head trauma thus is  

                                                                                                                                        

nuanced and fact-specific. Physicians presented with an infant suffering from suspected head  

                                                                                                                

trauma will rely on positive and negative clinical, historical, and test-generated pieces of  

                                                                                                 

evidence, each of which can support or detract from a diagnosis, including a diagnosis of  

abusive head trauma."); cf. Commonwealth v. Doe, 68 N.E.3d 654, 656-57 (Mass. 2016)  

                                                                                                                                                  

(sealing record request in case where petitioner had been charged with murder of his infant  

son based on abusive head trauma diagnosis, but prosecution was subsequently terminated  

                                                                                                                                              

following  discovery  of  wife's  family  history  of  collagen  vascular  disease,  "a  genetic  

                                                                                                     

condition that was relevant to determination of cause of infant's death" and that resulted in  

                                                                                       

medical examiner changing cause of death from "homicide" to "could not be determined").  



                                                                           -  11 -                                                                      2651
  


----------------------- Page 12-----------------------

 sort through all of the conflicting medical and expert testimony and to determine whether                                                              



the State had proved beyond a reasonable doubt that J.A. had died from physical abuse                                                                       



                      7  

by Allison.                                                                                                                                       

                         In order for the jury to properly complete this task, it needed to understand  



                                                                                          

the respective bases for the conflicting expert opinions.  



                                                                                                                                                     

                          But  the  jury  never  heard  any  evidence  about  the  possibility  that  J.A.  



                                                                                                                                                               

 suffered from Ehlers-Danlos Syndrome.  The trial court ruled that such evidence was  



                                                                                                                                                            

inadmissible unless (1) the defense produced an expert in the syndrome who could  



                                                                                                                                                            

 explain the mother's diagnosis; and (2) the defense produced an expert who could  



                                                                                                                                                                   

 diagnose J.A. with the syndrome "to a reasonable degree of medical certainty."  Both of  



                                     

these rulings were incorrect.  



                                                                                                                                            

                          First, it was not necessary for Allison to present an expert on Ehlers-Danlos  



                                                                                                                                                                  

 Syndrome.                Alaska  Evidence  Rule  702  allows  a  witness  qualified  as  an  expert  by  



                                                                                                                                                                     

 "knowledge, skill, experience, training, or education" to testify as to their opinion on a  



                                                                                                                                                                 

 scientific, technical, or other specialized issue.  This rule does not, however, require the  



                                                                                                                                                                   

witness to have an expertise in precisely every area upon which the expert proposes to  

 comment.8  

                                                                                                                                                               

                       Rather, they only need to demonstrate that the facts or data underlying their  



                                                                                                                                                            9  

                                                                                                                                                  

 opinion are the type of information reasonably relied on by experts in their field. 



                                                                                                                                            

                          As explained in the Commentary to Alaska Evidence Rule 703:  



                                                                        

                          [T]he rule is [premised on] the belief that when an expert is  

                                                                                                                                 

                          deemed skilled enough to assist the trier of fact, the expert  



       7     See Commonwealth v. Millien                            , 50 N.E. 3d 808, 821-22 (Mass. 2016) (describing the   



jury's  task  in  a  shaken  baby   case  as  requiring   the   jury   to  evaluate  "whether  the  

 Commonwealth had eliminated the possibility that [the child's] injuries were caused by the                                                                       

 accidental fall described by the defendant beyond a reasonable doubt").  



       8     Marron v. Stromstad , 123 P.3d 992, 1003 (Alaska 2005).  



       9     Alaska Evid. R. 703; Alaska Evid. R. 705(a)-(b).  



                                                                              -  12 -                                                                        2651
  


----------------------- Page 13-----------------------

                         should   be   allowed   to   utilize   the   tools  that  he   [or   she]  

                         normally uses to practice his [or her] skills outside of the                                               

                         court.   Thus, a physician [may base a] diagnosis on general                                       

                         information obtained from medical journals and treatises and                                               

                         on  .  .  .   statements   by   patients   and   relatives,   reports   and  

                         opinions from nurses, technicians and other doctors, hospital                                      

                         records, and x-rays.                  10  



                                                                                                                                                              

                         In the present case, Doctors Ophoven and Tawansy were qualified by the  



                                                                                                                                                         

court  to  offer  expert  opinions  on  the  State's  differential  diagnosis  of  shaken  baby  



                                                                                                                                                              

syndrome/abusive head trauma. In formulating those opinions, the doctors reviewed the  



                                                                                                                                                      

family's medical history, including medical records that established the mother's Ehlers- 



                                                       11  

                                                                                                                                                             

Danlos Syndrome diagnosis.                                  Contrary to the trial court's belief, the doctors did not  



                                                                                                                                                    

need  to  be experts on  Ehlers-Danlos Syndrome to  reasonably  rely  on  this medical  



                                                                                                                                                       

information.   Nor did they need to be experts on the syndrome to offer their expert  



                                                                                                                                                             

opinion that this maternal history was something that "merited further investigation" and  



                                                                                                                                                             

should be considered in any differential diagnosis of J.A.'s death.  Allison likewise did  



                                                                                                                                                              

not need to present an expert on Ehlers-Danlos Syndrome in order to cross-examine the  



State's experts about their awareness of this maternal diagnosis and its significance, if  



                                                        

any, to their own differential diagnoses.  



       10    Alaska Evid. R. 703 cmt.   para. 5;   see also vann v. State, 229 P.3d 197, 202-03  



(Alaska App. 2010).  



       11    We note that the medical records were themselves admissible under the business  

                     

records exception to the hearsay rule under Alaska Evidence Rule 803(6), assuming that a  

                                                            

proper foundation could be laid.   In cases where the underlying  facts or data would be  

                                                                                                                         

inadmissible for any purpose other than to explain or support the expert's opinion, the court  

                                      

is required to conduct a balancing test and to determine whether "the danger that they will  

                                                                                                                                                            

be used for an improper purpose outweighs their value or support for the expert's opinion."  

Alaska R. Evid. 705(c).  



                                                                            -  13 -                                                                      2651
  


----------------------- Page 14-----------------------

                        Second, Allison was not required to present an expert who could diagnose                                             



J.A.  with Ehlers-Danlos Syndrome "to a reasonable degree of medical certainty."                                                                     We  



recognize that the trial court had concerns about what it considered to be "the speculative                                             



                                              12  

                                                                                                                                                    

nature" of the diagnosis.                          But the State bore the burden of proving Allison's guilt  



                                                                                                                                                       

beyond a reasonable doubt; it was not Allison's burden to prove his innocence.  In the  



                                                                                                                                                    

closely analogous context of a defendant seeking to present evidence of third-party guilt  



                                                                                                                                                  

- i.e., evidence that a person other than the defendant might have committed the crime  



                                                                                                                                                       

- the Alaska Supreme Court has held that the analysis should focus on "whether the  



                                                                                                                                                      

evidence offered tends to create a reasonable doubt as to the defendant's  guilt, not  



                                                                                                                                               13  

                                                                                                                                                     

whether it establishes the guilt of the third party beyond a reasonable doubt."                                                                      The  



                                                                                                                                        

evidence offered by Allison satisfied this test; that is, it tended to create a reasonable  



                                                                                                                                             

doubt  as  to  Allison's  guilt.                        The  State's  proof  in  this  case  rested  on  its  experts'  



                                                                                                                                              

conclusions that there was no reasonable explanation for J.A.'s death other than physical  



                                                                                                                                           

abuse.  Evidence that there were other possible medical explanations for her excessive  



                                                                                                                                                      

bleeding was something that the jury should have heard.   The fact that J.A. had not  



      12    The trial court appears to have been concerned that J.A.'s mother had been diagnosed  



with the nonvascular type of Ehlers-Danlos Syndrome, and it is only the vascular type that  

                                                                                                                               

is associated with rupture of blood vessels.  But there was testimony from Dr. Ophoven that  

                                                                                

the distinctions between the different types of Ehlers-Danlos Syndrome were not that clear.  

                                                                                                                                                

                                                        

Dr. Ophoven also testified that excessive bleeding is a concern with any type of Ehlers- 

                                                                            

Danlos Syndrome.   Ultimately, it was  the jury, not the court, who needed to assess the  

                                                                                                                                                      

significance of this maternal history and the degree to which it affected the credibility and  

reliability of the State's experts' opinions.   



      13    Smithart v. State, 988 P.2d 583, 588 (Alaska 1999) (emphasis in original); see also  

                                                                                                                                               

Sanders v. State, 364 P.3d 412, 424-25 (Alaska 2015) (recognizing difference in evidentiary  

                                                                                            

burden between evidence offered by the State against the defendant as opposed to evidence  

                                                                

offered by the defendant).  



                                                                         -  14 -                                                                   2651
  


----------------------- Page 15-----------------------

herself   been   diagnosed   with   Ehlers-Danlos   Syndrome   went   to   the   weight,   not   the  



admissibility, of this defense evidence.                           



                The court's error in excluding all mention of Ehlers-Danlos Syndrome was                                                                                     

               not harmless   



                              This Courthasemphasized"theimportanceofadefendant'sright                                                                                         to present  



favorable evidence" and has applied the constitutional standard of review to inquire                                                                                                



whether an error was harmless beyond a reasonable doubt "[g]iven the significance and                                                                                                        

constitutional dimension of the accused's right to present favorable evidence."                                                                                                   14  



                                                                                                                                                                                                

                              As already explained, in the present case, there was no direct evidence of  



                                                                                                                                                                               

physical abuse. Instead, theState's caserested on expert medical testimony -testimony  



                                                                                                                                                                                                       

that was directly contradicted by the expert medical testimony of Allison's own experts.  



                                                                                                                                                                           

The  trial  court's  ruling  precluding  any  and  all  evidence  related  to  an  alternative  



                                                                                                                                                                                                       

explanation of J.A.'s death impermissibly restricted Allison's ability to defend himself.  



                                                                                                                                                                                             

                              First, the court's ruling meant that Allison's defense experts could not  



                                                                                                                                                                                        

explain their reliance on the maternal diagnosis as foundation for their opinion that J.A.'s  



                                                                                                                                                                                              

death was more likely caused by compounding injuries than physical abuse. Second, the  



                                                                                                                                                                                               

court's ruling meant that other witnesses - including J.A.'s treating neurologist -  



                                                                                                                                                                                               

could not mention their concerns prior to J.A.'s death of the possible existence of an  



                                            

underlying genetic problem.  



                                                                                                                                                          

                              Lastly, thecourt's ruling infringed on Allison's right of cross-examination.  



                                                                                                                                                                                     

As a result of the ruling, Allison was not allowed to cross-examine any of the State's  



        14     Kitchens v. State, 898 P.2d 443, 448, 451 (Alaska App. 1995); see also Smithart, 988  



                                                                                                                                                                                   

P.2d at 586 (holding that "[w]hen a trial court's evidentiary rulings substantially infringe  

                                                                                                                         

upon the right to present a defense, the court necessarily violates the defendant's due process  

rights").  



                                                                                            -  15 -                                                                                      2651
  


----------------------- Page 16-----------------------

experts about their knowledgeofEhlers-DanlosSyndromeor their knowledgethat J.A.'s                                                                                                     



mother had been diagnosed with this syndrome.                                                        Allison was likewise unable to cross-                             



examine the experts about the significance of that diagnosis and whether (or why) the                                                                                         



State's experts believed that it could be definitively ruled out as a possible contributing                                                               

factor to J.A.'s death.                      15  



                                                                                                                                                                       

                            In Dague v. State, our supreme court found that the exclusion of an expert  



                                                                                                                                                                                

witness's testimony on a subject that did not fall directly within the individual's area of  



                                                                                                                                                             

expertise  was  not  harmless  because  it  bolstered  the  defense  witness's  testimony,  



                                                                                                                                                                      

independently supported the defense theory, and undermined the strength of the State's  



           16  

case.                                                                                                                                                             

                We reach a similar conclusion here.  The testimony related to J.A.'s maternal  



                                                                                                                                                                    

health history of Ehlers-Danlos Syndrome simultaneously supported Allison's defense  



                                                                                                                                                           

theory - that J.A.'s death was the result of compounding injuries - and undermined  



                                                                                                                                                                             

the State's case that J.A.'s death must have been caused by physical abuse.   In the  



                                                                                                                                                              

context of such a lengthy trial filled with complex and conflicting medical testimony,  



                                                                                                                                                                 

evidence that tended to cast doubt on Allison's guilt was critical to Allison's ability to  



                                                                                                                                                                                      

present his defense. The court's exclusion of this evidence cannot be said to be harmless.  



                                                                                              

Reversal of Allison's conviction is therefore required.  



       15     See Brown v. State, 152 So. 3d 1146, 1169 (Miss. 2014) (concluding that trial court  



                                                                                   

deprived defendant of the right to "fully cross-examine" State's expert when it precluded  

                                

defendant from questioning expert about possible relationship between immunizations and  

shaken baby symptoms).   



       16     Dague v. State , 81 P.3d 274, 282-84 (Alaska 2003).  



                                                                                    -  16 -                                                                              2651
  


----------------------- Page 17-----------------------

          Allison's other claims on appeal  

                                                 



                    Because we are reversing Allison's conviction based on his first claim of  

                                                                                                                             



error on appeal, we do not need to reach the merits of his other claims.  We express no  

                                                                                                                            



opinion on the propriety of the trial court's other rulings.  

                                                                          



          Conclusion  



                    For the reasons stated above, we REvERSE Allison's conviction.   On  

                                                                                                                           



remand, the State may elect to retry Allison.  

                                                      



                                                           -  17 -                                                      2651
  

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