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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


         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

                                             Fax:  (907) 264-0878

                                     E-mail:  corrections @



                                                                    Court of Appeals No. A-12382  

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


                                                                               O P I N I O N  


                                    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  


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   


                             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.                                                                                            



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.                                                       


                                     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  



                                     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,  



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  



                                                                                                                 -  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  



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).  



            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                                                                       


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  



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



 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- 



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                                             



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  



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  


                                                                                            -  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  



                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.  



                    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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