Commonwealth v. Louise Woodward, direct examination of Dr. Eli Newberger

Commonwealth v. Louise Woodward, direct examination of Dr. Eli Newberger

October 15, 1997

THE COURT: All right, next witness.
MR. LEONE: The Commonwealth calls Dr. Eli Newberger.
MR. LEONE: Your Honor, while we’re waiting, may I have Dr. Newberger’s CV marked as an exhibit?
THE COURT: Yes.
MR. LEONE: Thank you.
(Document, as above, received and marked Exhibit No. 67.)
THE COURT: And in what field is Dr. Newberger being offered as an expert?
MR. LEONE: Pediatrics and child abuse.
THE COURT: Any cross-examination as to qualifications?
MR. SCHECK: No.
THE COURT: All right. Again, ladies and gentlemen, you will bear in mind that Dr. Newberger is permitted to give an opinion in the field of pediatrics and child abuse. But it is for you to evaluate his testimony, including his opinions, just as you evaluate the testimony of every witness. All right.

ELI NEWBERGER, Sworn
THE COURT: If you would state, please, your full name.
THE WITNESS: Yes, sir. My name is Eli Herbert Newberger.
THE COURT: And your date of birth, please.
THE WITNESS: I was born on December 26, 1940.

DIRECT EXAMINATION BY MR. LEONE

Q Sir, you are board certified in the area of medicine?
A Yes.

Q In what area, sir?
A In pediatrics.

Q And, sir, have you had occasion to publish articles or reports in the areas of child abuse and trauma?
A Yes, I have.

Q Could you just approximate how many?
A I’ve published approximately seventy-five articles, and edited or written approximately seven books.

Q Now, sir, are you a Senior Associate Medical Doctor at the Children’s Hospital?
A Yes.

Q And what do you have to do with the Child Protection Team at the hospital?
A Well, I started the Child Protection Team in 1970 in the course of my residency in pediatrics at Children’s Hospital, and have since then worked as the Medical Director of the Child Protection Team, the position I now hold. And this job involves consulting on all of the specialty services and all the in-patient and out-patient clinics at the hospital on cases where there is concern that a case may be one of abuse. And so I consult on cases in which children have traumas of various kinds to different organ systems, to different parts of their bodies, and work with my colleagues to try to come to a conclusion about whether this case may be one of child abuse. And whether, as Massachusetts’ law requires, the clinical findings bring the hospital over the threshold for the mandated reporting of child abuse to the State Department of Social Services.

Q And in the course of your responsibilities, Doctor, do you continue to see infants and children patients every day?
A Yes, I do.

Q In the course of your development of the Child Protection Team since 1970, could you estimate how many children and infants you have personally examined in your role as the director of that team?
A Well, I’ve examined many thousands of infants and children. With regard to the numbers of those children who were victims of child abuse, I would estimate that it’s between two and three hundred cases a year. And inasmuch as I’ve been doing this work for twenty-seven years, that brings the number in excess of five thousand cases.

Q And it’s fair to say, as the director of the Child Protection Team, you have seen both accidental and inflicted trauma during the course of this time?
A Yes, I have.
THE COURT: Could I see counsel for a moment at the sidebar.

BENCH CONFERENCE
THE COURT: Now, I realize that things are being appropriately relaxed with respect to leading questions and all, but I think with Dr. Newberger, it would best to be very cautious in asking leading questions. Now, with the kind of material you’re asking now, it doesn’t make any difference. But one could conceive of situations getting a little tighter later on.
MR. LEONE: Okay. That’s the last question I have on the preamble, Your Honor.
MR. SCHECK: Your Honor, if the leeway will be both ways in terms of leading to get through the qualifications.
THE COURT: Well, on cross-examination you can lead all you want.
MR. SCHECK: No, I mean we’re going to start direct soon, and we’ll try our best —
THE COURT: Okay.

END OF BENCH CONFERENCE

Q Now, Doctor, to your right – I’m going to ask you about a few dates – to your right is a calendar of 1997. If you need to use that, please feel free to reference that with the Court’s permission.
Doctor, on February 4th of 1997, did you receive a call with regard to Matthew Eappen?
A Yes, I did.

Q And you were at home at that time?
A That’s correct.

Q And subsequent to that call, did you have occasion to, yourself, examine Matthew Eappen?
A Yes, I did.

Q And would that have been the next morning?
A That’s correct.

Q Now, on February 5th of 1997, did you have occasion to be at Children’s Hospital?
A Yes.

Q And how did you come to know Matthew Eappen at that time?
A I went to the Pavilion 5 Intensive Care Unit, went to the bedside, and examined this child.
MR. LEONE: Your Honor, may I approach the witness, please?
THE COURT: Yes.

Q Sir, I show you a page from the Children’s Hospital records which has been marked as an exhibit. And ask you specifically, the first half of the page, if you recognize that.
A Yes, I do.

Q And what do you recognize that to be, Doctor?
A This is the note that I wrote in the record after my examination.
MR. LEONE: Your Honor, may I have this marked for identification as an exhibit, please?
THE COURT: Yes. I guess we’re now at AA.
(Document, as above, received
and marked AA for Identification.)
MR. LEONE: And may I publish that document on the monitor, Your Honor?
THE COURT: Well, if it’s marked for identification, it’s not an exhibit. What is it, part of a hospital record?
MR. LEONE: Yes.
THE COURT: Is there an objection to the hospital record?
MR. SCHECK: No, but —
THE COURT: Very well, if there’s no objection to the hospital record —
MR. SCHECK: I mean there’s no objection to the, that it was compiled during the regular course of business, but — may I just see it for a second?
THE COURT: I thought you had.
(Counsel examines document.)
THE COURT: I take it there’s no objection?
MR. SCHECK: No objection.
THE COURT: Very well. Instead of marking it AA, we’ll mark it Exhibit 68. And we’ll save AA for another day.
(Document, as above, received and marked Exhibit No. 68.)

Q Now, Doctor, showing you what’s been marked Exhibit 68. Did you make this notation in the Children’s Hospital records after seeing Matthew?
A Yes, I did.

Q And what observations did you make of Matthew, sir?
A I examined the child’s neurological status, examined his skin. I attempted to look in his eyes, but one of his eyes was shut because of extensive edema or swelling. I did not locate any other artifacts of injury on my examination and wrote a note in the record summarizing my findings and recommendations.

Q Now, sir, based on your findings, you wrote in your notation that “the findings are virtually pathognomonic of shaken baby syndrome.” Now, what did you mean by that, sir?
A What by “pathognomonic,” I meant conclusively diagnostic. The word “pathognomonic” is used in medical literature to indicate virtual congruency between the findings and the illness. And what I meant here was that there was next to no doubt in my mind that this infant was a victim of shaken baby syndrome.

Q And, Doctor, you go on to write, “the extent and impact of the trauma also raise a question of whether there was concomitant blunt trauma to the head.” And what, in your observations, made you believe that at that time?
A From the clinical record and from my examination, it was clear that this was a child whose neurological system had suffered devastating injuries. So vast were these injuries, in my opinion at that time as I looked at the record and examined the child, that I was concerned that there might have been concomitant – meaning occurring at the same time – blunt trauma to the head. As well, I was concerned that because this conformed to a pattern of inflicted injury, or child abuse, I was concerned that there might also be trauma to other parts of the child’s body.

Q And what, if —
A But I was especially concerned to discern, to the extent that we could with the tools available to us, any blunt trauma to the skull which independently, and acting together with the other forces that I believed caused this child’s injury, could have increased the amount of injury to the brain.

Q And was it at that point that you ordered a skeletal survey?
A Yes. Well, I recommended it, I didn’t order it.

Q And what was the purpose in ordering a skeletal survey at that time, your recommending a skeletal survey?
A Well, a skeletal survey is a set of X-rays in which all of the bones of the body are examined. And I was concerned both to have films of the skull in order to see whether or not there was a fracture that might have contributed to the child’s injuries, and as well, films of the long bones and of the ribs, in order to see whether there were other fractures, new or old, which we frequently see in infants who are victims of abuse. That was my reason for recommending to my colleagues a skeletal survey.

Q Now, throughout that week, did you continue to monitor and be updated with regard to Matthew’s condition?
A Yes.

Q Now, Doctor, given Matthew’s injuries that you observed to be present upon his admission to Children’s Hospital, the subsequent progression of those injuries that you observed, I have some questions for you with regard to your opinion as to potential causes of those injuries, the degree of force and manner of infliction necessary to cause those injuries, Doctor.
And, Doctor, based on your observations of Matthew, your review of the records, your review of the relevant literature in this field, and your training and experience in the area of pediatrics and child abuse, Doctor, do you have an opinion to a reasonable degree of medical certainty whether a gentle shaking at approximately 2:45 PM on February 4th to arouse or revive Matthew because he appeared sick and unresponsive, would have caused Matthew’s eye, brain, and skull injuries that were observed to be present in Matthew?
A Yes.

Q What is your opinion, Doctor?
A My opinion is that a “gentle shaking,” as you described, could not have brought forward, produced the injuries which I saw in my examination.

Q Doctor, do you have an opinion to a reasonable degree of medical certainty whether Matthew being tossed onto a bed on February 4th prior to his admission to Children’s Hospital, would have caused his eye, brain, and skull injuries that you observed to be present upon his admission to Children’s Hospital?
A Yes.

Q What is your opinion, Doctor?
A This could not have produced this kind of an injury.

Q And, Doctor, whether Matthew being dropped onto towels covering a tile bathroom floor on February 4th would have caused Matthew’s eye, brain, and skull injuries that, again, were observed to be present upon admission to Children’s Hospital?
A My opinion is the same, that this could not have produced these injuries.

Q And lastly, Doctor, I ask you to assume that on February 3rd, the day before Matthew’s admission to Children’s Hospital, Matthew was seated on or near the steps leading to the indoor playroom of his Newton home; fell over, impacting his head with the stairs; do you have an opinion to a reasonable degree of medical certainty whether that would have caused Matthew’s eye, brain, and skull injuries observed to be present upon his admission to Children’s Hospital?
A Yes, I do.

Q What is your opinion, Doctor?
A My opinion is that it could not have caused these injuries.

Q Now, Doctor, again based on all of the preconditions I’ve asked you to consider, and your observations of the records, your training and experience, and the literature, do you have an opinion to a reasonable degree of medical certainty whether the cause of Matthew’s injuries were accidental or inflicted?
A I do.

Q And what is your opinion, sir?
A They were inflicted.

Q And do you have an opinion concerning the manner of infliction of injuries to Matthew’s eyes, skull, and brain?
A Yes.

Q What is your opinion, Dr. Newberger?
A My opinion is that this child was violently shaken for a prolonged period. In the course of this shaking, there was at least one substantial impact on his occipital bone, the bone in the back of the head, that was of sufficient force to produce the fracture which was identified on X-ray and at the post-mortem examination. That this shaking was of such a violent degree that it would have required as much energy as an adult could muster, sustained over a period of time approaching or exceeding a minute, possibly delivered in intervals, but certainly requiring a vast amount of traction force in which the brain within the cranial vault would go from one skull surface to the other and in which the eyes would also suffer trauma.

Q And with the amount and degree of force required to cause the head injury as it relates to the trauma aspect of the shaking and trauma that you’ve just described?
A Yes.

Q And your opinion with regard to that amount of degree of force?
A It’s the same.

Q And, Doctor, given the observations that you made of Matthew Eappen, could you indicate the factors that formed the basis of your opinion as it relates to Matthew’s injuries that you observed?
A Yes. The factors that go into my opinion are the following: first of all, this child’s clinical condition indicated that his brain and his eyes had been subjected to quite enormous direct force and traction forces deriving from to and fro excursions of the brain within the skull, including tugging on the optic nerve, the end of which enters through the back of the orbit and nourishes the eye and becomes the retina.
The force that was required to produce the injuries in this child’s brain, from my experience, indicates that this was a case of shaken baby syndrome on the far end of the spectrum of severity. I see approximately twenty cases of shaken baby syndrome each year and, indeed, in some of these cases, there are smaller amounts of trauma associated with smaller amounts of application of traction force or blunt trauma. This is a case where, such was the depth and extent of the brain injury, so profound the amount of hemorrhage and pressure on the brain, and so extensive the hemorrhages in the child’s eye-grounds that, to me, this was a case that fell on the far end of the severity spectrum, and would have required a quite substantial and sustained amount of shaking, as well as a blunt trauma,to produce the injuries.

Q Now, Dr. Newberger, does it alter your opinions in any way that Matthew was eight-months old and twenty-two pounds?
A No.

Q Does it alter your opinion in any way that there were no signs of physical or external trauma to Matthew?
A No, that’s typical in these cases, counsel.

Q And does it alter your opinion that, at autopsy, there were no signs of bruising to the rear of his neck, under his arms, or his arms?
A Not at all.

Q And why is that, Dr. Newberger?
A Well, first with regard to the absence of bruising. In order to create a bruise, there has got to be a focused application of trauma that squeezes blood from the little vessels within and beneath the skin. It’s possible, in fact, it is typical in cases of shaken baby syndrome, for children to be held while they are shaken, but not to be bruised. Because in order to create a bruise, you generally need to have some kind of an impact, some sudden squeezing of the skin against the muscle and bone within the skin. In cases of shaken baby syndrome, actually one finds this, that is to say artifacts of bruising, quite rarely. And when one finds it, it’s often when, for example, the child is substantially older and heavier and it requires a much more substantial grip. Or when there has been concomitant blunt trauma in which the child has been struck or slapped producing a pattern of bruising.
In a great number of, and in the majority of cases of shaken infant syndrome, one does not find bruising. And this incidentally, is one of the reasons why it took so long for pediatricians and radiologists to discover shaken impact syndrome, which really wasn’t described until the early 1970s in the medical literature.

Q Doctor, if I could just ask you —
A Yes.

Q — given your opinion with regard to the trauma necessary to have caused the skull fracture in Matthew’s head, did you find it unusual that, given the circumstances of Matthew’s injuries, that there was no external trauma to the rear of his head at the time of his admission?
A Well, there certainly was trauma to the rear of his head. But at the time of his initial examination, and the mounting of the emergency response in order to assure that the child’s heart and lungs were functioning, and to the extent possible, interventions were begun which could possibly save his brain; at that time, a detailed physical examination was not performed of the rear of his skull, looking precisely for soft tissue trauma. I can’t say that it wasn’t there, Mr. Leone, but certainly the X-ray that was conducted and the post-mortem examination and the findings on post-mortem examination of fresh hemorrhage around the fracture site, indicate that there was a recent and substantial trauma to the occiput.

Q Thank you, Doctor.
Doctor, based on your observations of Matthew, your review of his medical records, the observations you made of Matthew between February 4th and February 9th, again, your review of the relevant literature and your training and experience in the area of pediatrics and child abuse; Doctor, do you have an opinion to a reasonable degree of medical certainty whether the eye, brain, and skull injuries that Matthew suffered from when he was admitted to Children’s Hospital on February 4th occurred at or about the same time in relation to each other?
A Yes.

Q What is your opinion, Doctor?
A My opinion is that they occurred at or about the same time. And by “same time,” I mean, the interval of many seconds, up to and possibly exceeding a minute of application of trauma.

Q And do you have an opinion to a reasonable degree of medical certainty how Matthew would appear or present after the infliction of the trauma that caused those injuries?
A Yes, he would have been obtunded; he would have been comatose.

Q Do you have an opinion regarding how long after those injuries to Matthew were inflicted, you would expect to see full-blown signs and symptoms of the results of those injuries?
A I believe it would have been immediate.

Q Doctor, do you have an opinion to a reasonable degree of medical certainty whether a baby, after the infliction of those injuries, could feed two ounces of baby food of peas?
A I do. And my opinion is that it would not have been possible.

Q Whether that baby would have been able to cry aloud?
A I also have an opinion in that regard, and that is that the child would not cry aloud.

Q And do you have an opinion whether that baby would be able to breathe normally?
A Well, the respiratory centers of the brain —
THE COURT: Excuse me, the question is do you have an opinion on his ability to breathe normally?
THE WITNESS: I’m sorry, Your Honor.
A The answer is yes, I do.

Q And could you state that opinion?
A Yes. Because the respiratory centers in the brain are deep, it may take time before pressure mounts in order to affect the —
THE COURT: No, I think the question is could he breathe normally during the time immediately after the shaking that you’re asked to postulate.
THE WITNESS: I understand, Your Honor.
A I do not believe so.

Q Doctor, assume that on the night of February 3rd, the night prior to Matthew’s admission to Children’s Hospital, Matthew slept with his mother and brother in the same bed and appeared without symptoms of sickness or injury, healthy and normal —
THE COURT: Excuse me. Let me remind you, ladies and gentlemen, about the principle. You will hear hypothetical, that is, assume facts put to the witness. You are to consider them. If you conclude ultimately that the facts as put to the witness are indeed the facts, you may give the witness’ opinion whatever weight you wish. If you conclude, or are unable to conclude, let me put it that way, unable to conclude that all the facts are true, then you must give the opinion no weight at all because it will then be resting on one or more false assumptions. Everyone understand that? All right, go ahead.
MR. LEONE: Thank you, Your Honor.

Q Doctor, please assume that on the night of February 3rd, prior to Matthew’s admission to Children’s Hospital, Matthew slept with his mother and brother in the same bed and appeared without symptoms of sickness or injury, appeared healthy and normal; was breast-fed by his mother twice the next morning prior to 7:30 and continued to appear healthy and normal.
Further assume that during the day, on February 4th, Matthew appeared without symptoms of sickness or injury, healthy and normal, and may have cried throughout the day.
Further assume that Matthew was fed and ate a half jar of baby food peas, approximately two ounces, at 12:30. And other than his crying, appeared without symptoms of sickness or injury, healthy and normal until approximately 2:45 that day, when at that time, he then appeared unresponsive, with trouble breathing and eyes rolled back in his head.
Doctor, do you have an opinion to a reasonable degree of medical certainty whether the eye, brain, and skull injuries that you observed to be present at Matthew’s admission to Children’s Hospital on February 4th between 4:00 and 5:00 PM were present before 8:00 o’clock that morning?
A Yes, I do.

Q What is your opinion?
A That they were not.

Q Do you have an opinion regarding when, prior to Matthew’s admission to Children’s Hospital on February 4th, his injuries were inflicted?
A Yes, I believe it was but a few hours.

Q Doctor, given the nature and extent of Matthew’s injuries on February 5th, and the progression of those injuries as of February 7th, do you have an opinion to a reasonable degree of medical certainty regarding Matthew’s prognosis at that point?
A Yes.

Q What is your opinion, Doctor?
A My opinion is that the prognosis was grim.

Q And with regard to neurological functions and his physical state?
A Yes.

Q What is your opinion?
A There was effectively no neurological function.

Q As of February 9 of 1997, the day of Matthew’s death, do you have an opinion to a reasonable degree of medical certainty regarding Matthew’s chance at any meaningful recovery or reversal in his condition?
A Yes, I do.

Q What is your opinion, Dr. Newberger?
A I believe that the chance of his —
THE COURT: Excuse me for interrupting, but the word “meaningful” is rather elastic; perhaps we could be more precise.

Q Doctor, as of February 9th of 1997, the day of Matthew’s death, do you have an opinion to a reasonable degree of medical certainty regarding whether or not there was a chance at a reversal in Matthew’s condition at that time?
A Yes.

Q What is your opinion?
A I believe that his condition at that time was irreversible.

Q And given Matthew’s injuries and his condition as it worsened from February 4th through February 9th, the day of his death, do you have an opinion to a reasonable degree of medical certainty what Matthew’s diagnosis was on February 9th?
A Yes.

Q What is your opinion, Doctor?
A I believe that on February 9th, this child was brain dead as a result of neurological trauma.

Q And could you explain what you mean by “his condition” at that time?
A Yes. At the time on February 9, the child was unresponsive, could not initiate breaths on his own, had no evidence on stimulation of a capacity to withdraw his limbs, much less any capacity for higher order brain function. In the absence of an ability to breathe spontaneously, and of other cerebral capacity, in my opinion, this child was clinically dead and was being sustained artificially by life-support machinery.

Q Now, given the fact that Dr. Madsen made an observation which he questioned whether or not there was a withdrawal to painful stimuli, given the fact that the baby was able to take a few breaths on his own on February 9th, given the fact that the baby had been on a respirator between February 4th and February 9th, do you have an opinion with regard to whether or not his condition could be reversed or whether it would progressively worsen at that point?
A I believe that, at that point, this child’s condition was certain progressively to worsen and could not have been reversed.

Q And your opinion to a reasonable degree of medical certainty what the ultimate result of that condition would be?
A Yes.

Q What is your opinion?
A My opinion is that the child would die.

Q And, Doctor, given the nature and location of Matthew’s injuries, applying your knowledge of the records, your observations you made of Matthew Eappen, do you attach any significance to the entire, the distribution and the totality of the injuries that Matthew was suffering from between February 4th and February 9th of 1997 as they relate to child abuse?
A Yes.

Q What is your opinion, Dr. Newberger?
A My opinion is that all of the injuries are attributable to child abuse.

Q Now, you’re certainly familiar with the terms shaken baby and shaken impact syndrome?
A Yes.
THE COURT: Shaken impact or shaken infant?
MR. LEONE: Shaken impact syndrome.

Q And whether or not the difference in a baby’s head cavity from an adult’s have any significance to that syndrome?
A Yes.

Q And could you explain that, Dr. Newberger?
A Yes.
A baby’s head is disproportionately larger in relation to the rest of its body than our heads are in relationship to theirs. And a nine-month-old who is shaken back and forth, has no capacity to control the excursions of his head. The child’s brain, further, is immature; it’s softer than our brains because the myelin covering of the nerves hasn’t yet fully developed; and the brain within the skull, as the brain endures this shaking, bobbles around in the cranial vault. This impacts directly on the brain substance itself, and at the same time, the blood vessels that nourish the vein, that nourish the brain, are susceptible to being sheared as they pass through the dura, the dense lining of the brain.
And the combination of these effects in an infant, whose head is large, whose brain is plastic, whose brain is going back and forth, is to exert a tremendous amount of pressure on brain cells themselves and ultimately to cause the death of these cells.

Q And, Doctor, how concomitant trauma effects shaken baby, as it relates to shaken impact syndrome?
A Concomitant, or simultaneous trauma, increases the amounts of traction force quite massively. And a neurosurgeon – her name is Duhaime – at the University of Pennsylvania, actually fitted out a baby doll with a hinge on the back of the neck and attached to it a transducer in order to measure the amount of traction force on a doll who was shaken and on a doll who was shaken and impelled against a hard object.
And what Dr. Duhaime found was that the traction forces with the impact were vastly greater than the traction forces with shaking alone.
In my experience, in the cases that I see, those cases that include skull fractures, also include substantially increased amounts of hemorrhage around and within the brain and damage to the brain substance.

Q Doctor, considering the range of fatal and non-fatal shaken impact cases that you have experienced, based on the literature in this area, your review of Matthew’s medical records and his injuries, Doctor, are you capable of demonstrating for the jury the manner of infliction and the degree of force necessary to shake and impact a baby to cause the injuries that you observed to be present in Matthew Eappen?
A Yes, I could.
MR. LEONE: Your Honor, may we be seen briefly at sidebar?
THE COURT: Yes. Anybody who wishes may stand and silently stretch.

BENCH CONFERENCE
MR. LEONE: Your Honor, at this point, I indicated before I would pause at the point in Dr. Newberger’s testimony where I would like to use a baby doll for the purposes of his exhibiting the manner of infliction, the modality, and degree of force. And I would like to do that at this time.
MR. SCHECK: Your Honor, I would object to that. I think this —
THE COURT: Sustained. He doesn’t need a doll to demonstrate, he can certainly hold his hands apart and show the motion. In fact, when he was demonstrating the Duhaime hinge doll, he did it perfectly well without props. So I think that’s okay.
MR. LEONE: Thank you, Your Honor.

END OF BENCH CONFERENCE
THE COURT: In fact, we’ll take a five-minute in-court break now.
(Brief pause in the proceedings.)
THE COURT: All right, we can resume.

Q Dr. Newberger, when we left off, I asked you whether or not you were capable of demonstrating for the jury the manner of infliction and degree of force necessary to shake and impact a baby to cause the injuries that you observed to be present to Matthew Eappen. Could you do that for the ladies and gentlemen of the jury with your hands, please.
A Sure.
It would have been necessary for this child to be grasped firmly by an adult and for the child to be shaken for a number of seconds, with all the force that an adult could mount. And if the child weighs eighteen or nineteen pounds, that’s a pretty heavy child, and it’s a fair amount of weight. But it would like something like this (demonstrating). This would be very tiring and would require the maximum amount of force that an adult could muster. It would also require, for this child to receive the concomitant occipital fracture, as part of one of the intervals of this shaking assault, an impact to be exerted in approximately the following fashion (demonstrating).

Q Doctor, whether or not during the course of this complex assault you just described, the baby would have to be held free-fall, in other words, the entire body of the baby in mid-air?
A No, that would not have been necessary. For example, it would be possible to, for a portion of this, or for the entire, the entire assault, for the adult to be over the child, for example, kneeling next to the child, with a portion of the child’s body on the floor, and with the impact which would have required, in my opinion, a substantial amount of force exerted differently. The impact would not necessarily have to have been with the child held in the air, but the child could have been lifted and brought down with massive force.
MR. SCHECK: Let the record reflect that the doctor has put his hands over his head and then forced, rapidly descended them towards the ground, fair enough?
THE COURT: It may show.
THE WITNESS: Fair enough, that’s exactly what I intend, counsel.
MR. LEONE: Thank you, Dr. Newberger. I have no further questions of Dr. Newberger at this time. Returning Exhibit 68 to the exhibit table.