State v. Kuehn

• Decision Date: 16 March 2007
• Docket Number: No. S-05-888.,S-05-888.
• Citation: 728 N.W.2d 589,273 Neb. 219
• Parties: STATE of Nebraska, appellee, v. Denise KUEHN, appellant.
• Court: Nebraska Supreme Court

728 N.W.2d 589

273 Neb. 219

STATE of Nebraska, appellee, v. Denise KUEHN, appellant.

No. S-05-888.

Supreme Court of Nebraska.

March 16, 2007.

George H. Moyer, of Moyer, Moyer, Egley, Fullner & Montag, Madison, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Denise Kuehn provided childcare in her home in Norfolk, Nebraska. After a child she cared for became seriously injured, Kuehn was charged with child abuse. A jury found her guilty of negligent child abuse. Kuehn argues that certain medical testimony should have been excluded and that evidence of prior injuries to the child in question was improperly admitted. For the reasons stated herein, the judgment of the district court is affirmed.

SCOPE OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

The standard for reviewing the admissibility of expert testimony is abuse of discretion. State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005).

FACTS

On August 4, 2004, 10-month-old Cameron Lampert was seriously injured at Kuehn's home. Kuehn testified that as she began to lift Cameron out of a playpen, he arched his back, fell, and hit his head on the corner of the playpen. She said he landed on his back on the floor of the playpen, striking his head a second time. The playpen had a padded base and fabric sides with netting that covered the collapsible frame. In an interview with police, Kuehn stated that she may have shaken Cameron once as she picked him up but that he then fell out of her arms and hit his head on the playpen.

After the fall, Cameron began fussing and trying to get out of the playpen. He stood up and fell backward. Kuehn said Cameron "didn't seem right," his eyes were almost completely closed, and he was limp. When Cameron's father, Brian Lampert (Lampert), arrived, Kuehn suggested he take Cameron to the hospital or a doctor.

Lampert testified that Cameron was lethargic and limp, and his eyes had rolled back in his head. He knew immediately that something was wrong, and he took Cameron to the hospital in Norfolk, Nebraska. Cameron was then taken by helicopter to Children's Hospital in Omaha, Nebraska. There it was determined that he had a subdural hematoma. Cameron also sustained retinal hemorrhages in all four quadrants of each eye.

Medical experts testified that Cameron's injury was caused when the two hemispheres of his brain were moved violently back and forth inside the skull. Dr. Jeffrey DeMare, medical director of the children's advocacy team at Children's Hospital, testified that Cameron's injury was entirely consistent with a child's being violently shaken and was not caused by a fall and blow to the skull, as described by Kuehn.

Cameron was hospitalized for approximately 1 month. Upon discharge, he was unable to hold up his head or move his left arm and he had to be fed through a tube to his stomach. A shunt had been placed in his head to remove pressure on his brain. At the time of trial, Cameron was 18 months old and was unable to sit up for more than 30 seconds. He was developmentally delayed and blind, suffered from epilepsy, and had spasticity, or rigid muscles, on his left side.

A jury acquitted Kuehn of intentional child abuse but convicted her of negligent child abuse. She was sentenced to 24 months' probation, fined $1,000, and ordered to pay court costs of $1,519.56. The terms of her probation required her to serve 90 days in jail, including 30 days immediately and the balance at the end of her probation. Kuehn was ordered to perform 200 hours of community service, and she was ordered not to provide any type of childcare program without first obtaining a state childcare license. She appeals.

ASSIGNMENTS OF ERROR

Kuehn assigns the following errors, which, summarized and restated, claim that the district court erred in (1) overruling her objections to medical testimony; (2) allowing evidence of prior bad acts; (3) ordering Kuehn to pay certain deposition expenses; (4) instructing the jury; (5) overruling her motion to dismiss or, in the alternative, for a directed verdict; (6) allowing impeachment of a defense witness; and (7) imposing an excessive sentence.

ANALYSIS

ADMISSION OF MEDICAL TESTIMONY

Kuehn objects to the admission of certain evidence, including testimony of the physicians who treated Cameron. The standard for reviewing the admissibility of expert testimony is abuse of discretion. State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005). Four factors govern the admissibility of expert testimony: (1) whether the witness is qualified as an expert, (2) whether the testimony is relevant, (3) whether the testimony will assist the trier of fact, and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice or other considerations. Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). See, also, State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990), disapproved on other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991). We therefore consider whether the district court abused its discretion in admitting the medical testimony.

Dr. Ivan Pavkovic, a pediatric neurologist who treated Cameron after his injury, testified that Cameron was developmentally delayed and blind, displayed spasticity, and had epilepsy as the result of a brain injury. Pavkovic stated that Cameron's injury was caused by rotational force, which occurs when the brain is rotated inside the skull. CT scans of Cameron's brain showed atrophy, which indicated a brain injury. Cameron's brain was shrunken, and corresponding fluid-filled spaces outside the brain were larger than normal because his brain was smaller than normal. His brain damage was diffuse. Pavkovic stated that a subdural hematoma which pressed on the surface of the brain caused dysfunction and problems such as motor function, paralysis, or seizures. Pavkovic testified that blunt trauma to an infant rarely results in subdural hemorrhage and even more rarely results in retinal hemorrhage, both of which were evident in Cameron. Pavkovic stated that Cameron's condition was due to inflicted or nonaccidental traumatic injury to the brain. CT scans and MRI results indicated that Cameron had also sustained subdural hematomas in the weeks or months prior to August 2004.

In response to Kuehn's objection of no proper and sufficient foundation, speculation, and conjecture, Pavkovic stated:

[Cameron's] initial presentation to the hospital . . . involved the presence of subdural hematomas . . . one of which was chronic. [O]ne was new. He had bleeding into both his retinal, what we call retinal hemorrhages and he had mental status changes and initially seizure activity too. And when you take all of those positive findings in combination with the fact that there was no history to support any kind of major trauma to his head, the only conclusion that can be reached is that this was some type of inflicted traumatic injury to his brain.

Additional medical testimony was provided by DeMare, who stated that Cameron's physical findings were consistent with an inflicted traumatic brain injury. He explained that any time a child has a brain injury as significant as Cameron's, it is the result of a significant amount of force. DeMare stated:

This is the kind of injury we'd expect from a fall from a couple stories high, from a high speed car accident, that's the kind of force we're talking about. In the absence of any explanation that would mirror that, we have to assume that inflicted injury is the only other reasonable explanation.

. . . .

[This is] a child who's got a brain injury that would require enough force that there's no way that it could happen without somebody knowing what happened. We're talking about a lot of force here. This isn't just a[n], oops, someone — the kid fell over and hit his head and this injury happened. There's a lot of force that's involved and someone must know what happened to the child.

In addition to Pavkovic and DeMare, testimony was received from several other medical experts. Dr. Phillip Eckstrom, a radiologist who performed a CT scan on Cameron on August 4, 2004, stated that Cameron had subdural hematomas on both sides of the brain which were of different ages. This indicated that Cameron had experienced trauma at more than one time prior to August 4. Eckstrom was asked if he had an opinion as to the force normally associated with the injury Cameron had suffered, and over Kuehn's objection, Eckstrom said the injury was caused by rotational force. Dr. Robert Troia, an ophthalmologist, stated that Cameron's blindness was due to retinal hemorrhages Cameron had suffered. Dr. Daniel Davis, a forensic pathologist, stated that on August 4, Cameron suffered a primary sublethal brain injury that involved deep structures of his brain and possibly his upper cervical spinal cord.

Throughout the medical testimony, Kuehn interposed objections based on lack of foundation, speculation, conjecture, and a violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). These objections were overruled.

On appeal, Kuehn claims the district court improperly overruled her objections based on speculation and conjecture. We interpret her argument as a complaint that the medical testimony should not have been admitted because the physicians did not couch their opinions in terms of "reasonable medical certainty."

The preferred form of establishing the certainty of a medical expert's opinion is to ask for the opinion in terms of a reasonable degree of certainty or probability. In ...