Joshua Eric Hawk Clark a/k/a Joshua Clark v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-00411-COA

JOSHUA ERIC HAWK CLARK A/K/A APPELLANT
JOSHUA CLARK

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/03/2017
TRIAL JUDGE: HON. THOMAS J. GARDNER III
COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JIM WAIDE
DAN W. WEBB
DANIEL M. WAIDE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: JOHN D. WEDDLE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 10/29/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

TINDELL, J., FOR THE COURT:

¶1. An Itawamba County jury convicted Joshua Clark (Josh) of the second-degree murder

of his four-month-old daughter, Kyllie Clark. At trial, the State’s case against Josh relied

upon the diagnosis that Kyllie died from shaken-baby syndrome (SBS) and the expert-

opinion testimony provided by pediatrician Dr. Karen Lakin as to the timing of Kyllie’s fatal

injuries. In this opinion, we address whether Dr. Lakin’s expert testimony on SBS met the

reliability prong of Mississippi’s modified Daubert standard as required by Mississippi Rule

of Evidence 702; Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); Daubert v.
Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); and Mississippi Transportation

Commission v. McLemore, 863 So. 2d 31 (Miss. 2003).

¶2. Josh’s appeal arises from a prosecutorial model for a category of cases involving

similar facts: Kyllie died in 2008 when SBS charges were common; Josh claimed his

innocence; no witness purported to have seen Josh shake or ever abuse Kyllie in any way;

no apparent indications of recent trauma existed; yet, solely on the basis of Dr. Lakin’s expert

testimony, the jury found Josh, who had no prior criminal record and was a father of three

young children, guilty of second-degree murder. Kyllie was under Josh’s exclusive care for

approximately three hours before she began gasping for air and went limp. Josh, along with

Kyllie’s mother, Bethany Clark, rushed Kyllie to the hospital. Despite multiple resuscitation

attempts and medical intervention, Kyllie died.

¶3. In reversing Josh’s conviction and sentence and remanding for a new trial, we find

that Dr. Lakin’s expert-opinion testimony failed to meet the Daubert standard and was so

unreliable as to render portions of her testimony inadmissible under the rules of evidence.

Dr. Lakin may have been competent in her expertise as a pediatrician and child-abuse-

treatment provider. Her competence, however, was not the focus of the Daubert hearing.

Rather than focusing mainly on Dr. Lakin’s expert qualifications, the circuit court was

required to also examine the substance and methodology of her proffered testimony regarding

SBS as a reliable theory and, in particular, the reliability of her opinion on the timing of

Kyllie’s fatal injuries. As further discussed below, we therefore find reversible error in the

circuit court’s admission of Dr. Lakin’s testimony. Because we reverse Josh’s conviction

2
and sentence and remand his case on this issue, we decline to address his remaining

assignments of error on appeal.1

FACTS

¶4. Josh and Bethany, along with their three children, Cadence, and twins Kyllie and

Quinton, moved to a rented home in Itawamba County, Mississippi, in late 2007. On January

5, 2008, Cadence was two years old, and Kyllie and Quinton were four months old. Two

teenaged friends of Bethany’s, Haley Parker and Morgan Wright, also lived in the Clarks’

home. Bethany’s oldest child, five-year-old Savannah, also sometimes stayed with the

Clarks.

¶5. Josh typically came home from his out-of-state construction job on Friday afternoons

and spent the weekends with his family. From Friday nights until early on Monday

mornings, Josh took care of the children. Josh let Bethany sleep through the night on his

weekends home while he got up every two or three hours to feed the twins. At trial, no one

testified to seeing Josh harm any of the four children, and Bethany considered Josh to be a

good father.

¶6. On Saturday, January 5, 2008, Josh arose at 9 a.m. and let Bethany and the teenagers,

Haley and Morgan, sleep until they awoke around 2 p.m. Josh fixed breakfast and lunch for

the two older children, Savannah and Cadence. Josh testified that he fed and burped Quinton

1
Our reversal is not meant to serve as a determination that all scientific testimony
regarding SBS is insufficiently reliable to serve as a basis for civil or criminal liability. Our
reversal is instead intended to encourage the proponents of SBS testimony to solidly provide
courts with true “expert” testimony grounded on sound methodology, principles, or
techniques.

3
and tried to feed Kyllie. Josh noticed that Kyllie was fussy that day, and he assumed that she

felt badly. Around 3 p.m., Bethany and the teenagers left to run errands. Bethany testified

that when she and the teenagers left, Kyllie was fine. The four children were then left in

Josh’s exclusive care until Bethany and the teenagers returned home at 5:30 p.m.

¶7. Josh testified that maybe five or ten minutes before Bethany and the teenagers

returned, Kyllie made a gasping sound. Upon returning and seeing Kyllie’s condition,

Morgan called 911. Josh testified that he needed to get dressed, and he took Kyllie into the

bedroom with him. At this point, Kyllie went limp. Bethany brought Kyllie back out to the

living room and attempted CPR. Josh and Bethany decided to take Kyllie to the hospital.2

As Bethany ran into the hospital with Kyllie, Bethany “popped” Kyllie against the door.

Medical records reflect that the examining doctor at the local hospital noted Kyllie may have

suffered from sudden-infant-death syndrome.

¶8. Local hospital staff sent Kyllie to Memphis, Tennessee, for specialized care at Le

Bonheur Children’s Hospital. Prior to and after her arrival at Le Bonheur, multiple vigorous

CPR attempts were made. The Le Bonheur staff who examined Kyllie diagnosed her with

rib fractures, retinal and subdural hemorrhages, and brain swelling. Dr. Lakin consulted on

Kyllie’s case at Le Bonheur. Kyllie’s brain showed the presence of subacute or acute-on-

chronic hematoma. This finding was described at trial as an older stage of blood in Kyllie’s

brain as well as a new bleed, indicating there had been past bleeding in Kyllie’s brain.

2
One significant factual difference existed between the statements given by Josh and
the teenagers. Josh testified that he wanted to take Kyllie to the hospital when he and the
teenagers realized Kyllie had gone limp, but the teenagers each said that Josh, at least
immediately, did not want to go to the hospital.

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Tragically, at Le Bonheur the staff declared Kyllie brain dead and took her off life support.

¶9. The police investigated Kyllie’s death based, at least in part, on the initial information

from Le Bonheur and Dr. Lakin. Although the medical records reflected no indication of

recent accidental trauma to Kyllie in the days or weeks before her death, Haley admitted

seeing Cadence fall on Kyllie. Additionally, Jacqueline Fifield, who sometimes babysat the

twins, testified that she once found Kyllie on the floor and that Cadence told her that Bethany

had dropped Kyllie. A social worker noted in Kyllie’s Le Bonheur medical records that

Kyllie’s injuries were suggestive or consistent with SBS or child abuse. Dr. Lakin opined

that, with no history of any type of significant trauma, the hospital’s findings of brain trauma,

retinal hemorrhages, and rib fractures combined to support her opinion that Kyllie died due

to SBS. Officer Hillhouse, one of the investigating officers, testified that the Le Bonheur

medical records referred to Kyllie’s injuries as consistent with SBS or “an adult . . .

[grabbing] the torso of the child and [shaking] the child.” Officer Hillhouse interpreted the

note to mean that either Josh or Bethany had injured Kyllie. While the police could not

pinpoint the exact time Kyllie’s injuries had been inflicted, they ruled out Bethany as the

perpetrator because Kyllie’s breathing trouble started when Kyllie was in Josh’s exclusive

care.

¶10. On March 26, 2008, an Itawamba County grand jury indicted Josh on Count I, the

commission of felonious child abuse and capital murder “by violently shaking [Kyllie],

causing rib fractures and internal injuries . . . ,” and Count II, the felonious child abuse of

Kyllie’s twin, Quinton.

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¶11. Pursuant to a plea bargain, Josh agreed to plead guilty in 2010 to the reduced charge

of Kyllie’s depraved-heart murder. Josh’s counsel then allowed Josh to enter into the plea

agreement without retaining an expert to examine and rebut the State’s SBS theory on the

cause and timing of Kyllie’s fatal injuries.3 The circuit court sentenced Josh to life

imprisonment. Later, the circuit court granted Josh’s motion for post-conviction relief (PCR)

after finding that Josh’s trial counsel had rendered ineffective assistance by failing to

introduce expert testimony to rebut the State’s SBS expert testimony. The order granting

Josh relief noted that “there is considerable conflict within the medical community

concerning [SBS].” The circuit court’s ruling on the PCR motion both assured Josh of his

right to expert assistance and actually required Josh to retain an expert to rebut the State’s

SBS theory.

¶12. With both new counsel and an expert to dispute the State’s SBS testimony, Josh faced

a new trial on the charge of Kyllie’s capital murder. Before trial, Josh moved to preclude the

State’s introduction of Dr. Lakin’s testimony about SBS/abusive head trauma (SBS and/or

AHT).4 Josh argued that SBS is no longer a generally accepted diagnosis in the absence of

3
At the plea hearing, the State presented its offer of proof, which consisted solely of
Dr. Lakin’s opinion as to the cause of death, and the defense accepted the State’s offer of
proof.
4
In the past, certain medical providers used the term “SBS” generally to refer to an
infant with certain unexplained intercranial/subdural hemorrhages (bleeding on the brain),
retinal hemorrhages (bleeding in the eye), and no history of traumatic accidental injury.
Now, medical providers use the term “AHT” to refer to that same diagnosis, generally
expanding the cause of an infant’s condition to include not only a violent shaking but also
some type of impact. According to Dr. Lakin, “SBS” and “AHT” are sometimes used
interchangeably.

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evidence of external injuries and that SBS could not be used to accurately determine the time

of Kyllie’s injuries. Josh supported his motion with numerous articles, studies, and criticisms

of SBS. The circuit court held what it referred to as a Daubert hearing, after which the

circuit judge stated, “[T]his thing is identified in my mind, at least, as [an SBS] case.” The

circuit court summarily denied Josh’s motion.5

¶13. In opening statements, the State articulated its theory of the case that Josh must have

been responsible for Kyllie’s death because she was in his sole care for almost three hours

before she began to experience breathing trouble and other symptoms. The State treated the

case as a shaken-baby case and theorized that Josh abused Kyllie during that time period,

which resulted in her fatal injuries. The State primarily relied upon Dr. Lakin’s trial

testimony. Dr. Lakin opined at trial that someone killed Kyllie by shaking her, with the

possibility that Kyllie’s head impacted something. Dr. Lakin further testified that the injuries

that killed Kyllie could only have occurred during the three-hour window Kyllie was in

Josh’s exclusive care. Dr. Lakin testified that, after sustaining her injuries, Kyllie would not

have functioned normally, would have lost consciousness very quickly, and would not have

been able to eat or to be fed.

¶14. In support of her trial opinions and conclusions, Dr. Lakin cited only the American

Academy of Pediatrics (AAP) and stated that the AAP recognizes AHT as an entity with SBS

as a component. According to Dr. Lakin, under the AAP statement, AHT is supported by

findings of intracranial hemorrhages, which may or may not be associated with fractures and

5
In our summary of the facts, we present only Dr. Lakin’s trial testimony. We reserve
a discussion of her Daubert-hearing testimony for the analysis portion of our opinion.

7
retinal hemorrhages. Dr. Lakin claimed that Canada’s version of the AAP also recognizes

SBS/AHT and that the Center for Disease Control funds research for SBS/AHT. She

testified that challenges to the theories of SBS/AHT come less from the pediatric sciences

and more from other sciences and the legal arena. While Dr. Lakin stated that numerous

peer-reviewed articles support that the disciplines of pediatrics, ophthalmology,

neurosurgery, and neurology recognize AHT, she could not name or cite to any of those

articles.

¶15. On cross-examination at trial, Dr. Lakin agreed that, according to the AAP, “[t]he

mechanisms and result of injuries of accidental and abusive head injury overlap[,] and there

is no single or simple test to determine the accuracy of the diagnosis.” This AAP statement

was the updated version upon which her opinions were based, yet she was unaware of the

exact statement. Further, Dr. Lakin admitted she was unaware that in 2009, the AAP

removed language that presumed child abuse when subdural hematoma, retinal hemorrhages,

and brain swelling exist.

¶16. Dr. Lakin further admitted at trial that, upon evaluation at Le Bonheur, Kyllie’s rib

fractures appeared to be healing rather than recently sustained, the fractures would have

taken several days to develop, and it was unlikely they occurred on January 5, 2008, during

the time Kyllie was with Josh. Dr. Lakin confirmed that she did not mean to suggest that

Josh had anything to do with the rib fractures, and she stated, “There is not a time/date stamp

on the [rib] fracture that tells you that it happened one week before or two weeks before. But

we know that the healing starts to appear around 5-7 days in an infant.”

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¶17. Although Dr. Lakin opined that many different accidental and nonaccidental causes

potentially existed for each of Kyllie’s individual injuries (subdural hemorrhages, retinal

hemorrhages, and rib fractures), she stated the combination of the injuries was inconsistent

with a natural cause of death. She agreed that to eliminate the other possible causes of

Kyllie’s death, the medical providers would have to go through a process called differential

diagnosis. Dr. Lakin also agreed that no differential-diagnosis process was completed on

Kyllie, no test was done to look for neck injuries, and Kyllie had no external head injury.

¶18. After Dr. Lakin’s full trial testimony, the circuit court held a bench hearing on new

information received and on Josh’s request to recross Dr. Lakin, particularly with regard to

her understanding of histology slides and their use in determining the time of Kyllie’s brain

injury. In reference to Dr. Lakin’s testimony, the circuit judge stated, “I don’t know that

she’s ever testified to anything other than that she could not quantify the time . . . .”

However, Dr. Lakin had specifically testified that the injuries occurred after Kyllie last

appeared “fine” before 5 p.m., or after Josh last fed Kyllie. Dr. Lakin testified that Kyllie’s

being healthy, eating, and playing between 3 p.m. and 5 p.m. was inconsistent with Kyllie’s

collapsing, stopping breathing, and dying within 24 to 36 hours. Then, in contradiction to

her earlier testimony, Dr. Lakin admitted on cross-examination that she had not and could

not determine the exact time of Kyllie’s injuries. Dr. Lakin agreed that she would defer to

a pathologist on the subject of pathology.

¶19. Another State’s witness, Dr. Mark LeVaughn, a forensic pathologist and the chief

medical examiner for the State of Mississippi, testified that the time Kyllie’s subdural

9
hemorrhage occurred could not be determined. Dr. LeVaughn explained that a cellular view

of a hematoma could give a more precise time of when the injury occurred but not an exact

time. He reviewed the histology slides of Kyllie’s subdural hematoma and found that they

were of no diagnostic value in determining the time of the hemorrhage. The State rested with

its case dependent upon Dr. Lakin’s trial testimony.

¶20. Dr. Mark Shuman, also a forensic pathologist, testified on Josh’s behalf that the cause

of Kyllie’s death was probably blunt head injury or impact head injury. While he could not

testify as to how or when Kyllie’s injuries occurred, Dr. Shuman testified that shaking did

not cause the injuries. Dr. Shuman discussed the evolution of SBS and AHT as medical

theories and explained that studies had been done with test dummies to determine the shaking

forces needed to cause fatal brain injuries in infants without also injuring an infant’s neck.

Dr. Shuman discussed biomechanical engineer studies regarding the forces generated by

shaking an infant. He testified that the force of dropping a baby a few feet or stepping on an

infant could cause the injuries seen in Kyllie.

¶21. As Dr. Shuman explained, even with minor head injuries, it is standard hospital

practice to provide a discharge instruction to monitor a child for 24 hours and to perhaps

even wake the child every hour to make sure he or she is okay. Dr. Shuman stated this is

because, unlike Dr. Lakin’s immediate-symptom-onset theory, the symptoms and severe

consequences of head injury can be delayed. Someone can appear completely normal at first

but later lose consciousness.

¶22. Dr. Shuman and Dr. LeVaughn both testified that, had a proper sample histology slide

10
of Kyllie’s dura been prepared, they could have given an opinion as to the approximate date

and time of Kyllie’s brain injury. A histology slide of the dura matter would have allowed

the pathologists to determine how long the blood under Kyllie’s dura had been

there—whether a few days, a week, or a month. But the histology slides were poorly

prepared under the supervision of a State-contracted doctor, and of the thirteen tissue slides

provided to Josh’s defense expert, none of the slides were of the dura. The pathologists

therefore testified that the best way to determine the time of Kyllie’s injuries had been

rendered impossible.

¶23. In contradiction to Dr. Lakin, Dr. Shuman testified that retinal hemorrhages do not

demonstrate that some type of child abuse has occurred. Although a number of studies have

been performed to show that retinal hemorrhages occur from shaking, it has never been

proven. He instead testified that since 1957, experimentation has shown that pressure inside

the head can cause retinal hemorrhages. Resuscitation efforts, he testified, increase

intracranial pressure, causing retinal hemorrhages. As the trial testimony reflected, multiple

resuscitation efforts were attempted on Kyllie.

¶24. Also unlike Dr. Lakin, Dr. Shuman opined that short falls can cause significant head

injury. He supported his testimony with an expert report listing numerous and various

academic and peer-reviewed studies. Dr. Shuman further named the doctors who wrote the

articles supporting his testimony and those who performed the studies upon which his

opinions were based. Although he agreed that the majority of pediatricians believe in SBS,

he stated that pediatricians treat children and childhood diseases while, in comparison,

11
forensic pathologists focus on autopsy, pathology, trauma, and the legal issues associated

with these areas. He explained that forensic pathologists, like himself, use autopsies,

examinations, and pathology to determine the cause and manner of death. Dr. Shuman

personally disagreed with the existence of the SBS theory and testified that no scientific

evidence shows a human can shake a child hard enough to cause a primary brain injury.

¶25. Dr. Shuman testified that when children suffer a fatal head injury, they sometimes are

asymptomatic. He explained that, especially with a baby of Kyllie’s age, the symptoms can

be very subtle and may include vomiting, sleepiness, and irritability. These are all things that

can either be a symptom of a head injury or just a normal fussy baby. Thus, Josh’s

observation that Kyllie had been acting fussy all day on January 5, 2008, could have been an

earlier manifestation of Kyllie’s injuries. This fact, along with Dr. Lakin’s admission that

she could not provide the date and time of Kyllie’s injuries, reflected a missing piece of the

State’s case—the causal connection between Kyllie’s injuries and the few hours she was

solely in Josh’s care.

¶26. Dr. Shuman testified that blunt head injury can be accidental or intentional and that

examination of the body and medical history cannot, in a case like Kyllie’s, disclose whether

the injury was inflicted intentionally as opposed to accidentally. In sum, Dr. Shuman

testified that although SBS was once a generally accepted scientific theory, now, based on

current and expanding scientific research and literature, the theory has been questioned. He

stated the theory alone cannot be used to link an infant’s diagnosable injuries and the

assumptions made under the SBS theory to the conclusion that a certain fatal injury occurred

12
at a certain time.

¶27. Josh also testified on his own behalf and denied ever abusing Kyllie. Further, no

witnesses testified that Josh shook Kyllie, and the State presented no physical evidence of

any witnessed trauma to Kyllie. After both the State and the defense rested, the jury

convicted Josh of Kyllie’s second-degree murder. The circuit court sentenced Josh to serve

forty years in the custody of the Mississippi Department of Corrections. Josh unsuccessfully

moved for a directed verdict and a new trial. Aggrieved, Josh appeals.

STANDARD OF REVIEW

¶28. We review the admission or exclusion of evidence, including expert testimony, for

abuse of discretion. Inv’r Res. Servs. Inc. v. Cato, 15 So. 3d 412, 416 (¶2) (Miss. 2009).

Thus, a trial judge’s ruling will stand “[u]nless we conclude that the discretion was arbitrary

and clearly erroneous, amounting to an abuse of discretion . . . .” Puckett v. State, 737 So.

2d 322, 342 (¶57) (Miss. 1999).

DISCUSSION

¶29. Our analysis regarding the admissibility of Dr. Lakin’s expert testimony focuses on

the principles and methodology she applied to form her opinions. See McLemore, 863 So.

2d at 36-37 (¶13) (“The focus of this analysis [on the admissibility of expert witness

testimony] must be solely on principles and methodology, not on the conclusions they

generate.” (internal quotation mark omitted)). The question before this Court is whether the

circuit court abused its discretion by ruling that Dr. Lakin’s qualifications as a pediatrician

and child-abuse treatment provider adequately supported her opinion that a causal connection

13
existed between Kyllie’s medically identifiable injuries and her conclusion as to the specific

timing of Kyllie’s purported SBS injuries.

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

If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) their testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.

¶31. Thus, when determining the admissibility of expert testimony, courts must first

determine whether the expert is qualified to give his or her opinion and then whether the

expert’s opinion is based on scientific knowledge (reliability) and will assist the trier of fact

in understanding or determining a fact in issue (relevance). McLemore, 863 So. 2d at 38

(¶16). As Rule 702 states, the testimony must be “based on sufficient facts or data” and “the

product of reliable principles and methods.” M.R.E. 702.

¶32. Experts are supposed to educate and assist the trier of fact on those fields outside the

realm of common-sense understanding. Peters v. Fire Star Marine Serv., 898 F.2d 448, 450

(5th Cir. 1990); McMichael v. Howell, 919 So. 2d 18, 24 (¶15) (Miss. 2005). Expert

evidence can be both powerful and quite misleading because of the difficulty jurors may have

evaluating it. Daubert, 509 U.S. at 595. Under such circumstances, when an expert is

allowed to testify about specific scientific knowledge or scientific methodology, the risk of

prejudice is very high because such testimony may tend to mislead or tempt the jury to decide

the case on an improper basis. M.R.E. 403 advisory committee note; accord Fed. R. Evid.

14
403 advisory committee notes. Thus, the circuit court is vested with the “gatekeeping

responsibility” for expert-testimony admissibility. McLemore, 863 So. 2d at 36 (¶11)

(quoting Daubert, 509 U.S. at 589).

¶33. Previously, in Middleton v. State, 980 So. 2d 351, 353 (¶4) (Miss. Ct. App. 2008), Dr.

Lakin was accepted as an expert in pediatrics with a subspecialty in child abuse, and she

testified that a child’s injuries most likely resulted from SBS.6 Regardless of any similarities

between her testimony in that case and this case, however, we note that Dr. Lakin’s prior

acceptance as an expert does not automatically award her continued certification as an expert

in her field or subspecialty in any future litigation. See Gause v. State, 65 So. 3d 295, 306-07

(¶¶35-36) (Miss. 2011) (Kitchens, J., specially concurring), limited on other grounds by Hall

v. State, 127 So. 3d 202, 207 (¶15) (Miss. 2013). Further, in light of Josh’s presented

evidence that showed the reliability of SBS as a diagnosis is being increasingly challenged

and questioned, Dr. Lakin was required to establish anew in this case that, under the exact

circumstances presented, SBS reliably explained Kyllie’s death. Thus, any reliance on

similarities with Dr. Lakin’s prior testimony in Middleton is misplaced. See King v. Singing

River Health Sys., 158 So. 3d 318, 326 (¶33) (Miss. Ct. App. 2014) (recognizing that the

automatic introduction of expert opinions based on personal experience but contradicted by

scientific evidence would effectively nullify Rule 702 and Daubert).

¶34. Like the dissent, we acknowledge the present record reflects Dr. Lakin’s competency

in her expertise as a pediatrician and child-abuse treatment provider. No dispute exists as to

6
Although Middleton refers to Dr. Lakin as “Dr. Larkin,” we recognize this to be a
scrivener’s error.

15
her qualifications to render an expert opinion in those areas. Dr. Lakin’s nearly twenty years

of experience focused solely in pediatrics and child-abuse treatment supported her

qualification as an expert in those particular fields. The record also clearly shows that Dr.

Lakin’s testimony was relevant. The State had no factual-witness testimony regarding when

and how Kyllie was injured. The State therefore relied upon Dr. Lakin’s expert testimony

to explain not only what happened to Kyllie but also when her injuries occurred.

¶35. Unlike the dissent, our focus is not on whether Dr. Lakin was qualified to testify as

an expert but whether her expert opinions, especially as to the causation and timing of

Kyllie’s injuries, met Daubert’s standards for admission. Thus, our analysis concentrates on

the reliability of Dr. Lakin’s expert testimony. Daubert provides a list of illustrative, but not

exhaustive, factors that may be considered to assess the reliability of proffered expert

testimony and the principles and methodology underlying an expert’s opinion. McLemore,

863 So. 2d at 36-37 (¶13) (citing Daubert, 509 U.S. at 592-94). These factors include:

[(1)] whether the theory or technique can be and has been tested;

[(2)] whether it has been subjected to peer review and publication;

[(3)] whether, in respect to a particular technique, there is a high known or
potential rate of error;

[(4)] whether there are standards controlling the technique’s operation; and

[(5)] whether the theory or technique enjoys general acceptance within a
relevant scientific community.

Id. at 37 (¶13). The applicability of these factors in a particular case “depends on the nature

of the issue, the expert’s particular expertise, and the subject of the testimony.” Id. The trial

16
court should consider the Daubert factors “where they are reasonable measures of the

reliability of expert testimony.” Id.

¶36. The Daubert standard we apply in Mississippi is a narrower and stricter standard than

simply demonstrating the general validity of SBS. The Daubert standard requires experts to

prove that their offered opinion evidence is fundamentally scientifically reliable and not just

generally accepted by peers in their specific discipline. Adcock v. Miss. Transp. Comm’n,

981 So. 2d 942, 947 (¶16) (Miss. 2008). Thus, here the State needed to show at the Daubert

hearing that Dr. Lakin’s precise theory was sufficiently reliable to perform “the task at

hand”—to inform the jury on how and when Kyllie’s fatal injuries occurred. See Daubert,

509 U.S. at 597. Dr. Lakin needed to establish that a qualified pediatrician can reliably

diagnose a child with Kyllie’s injuries (subdural hemorrhages and retinal hemorrhages) as

a child suffering from injuries caused by SBS. Further, the State needed Dr. Lakin to reliably

establish the timing of Kyllie’s SBS-caused injuries to the specific time period when Kyllie

was in Josh’s exclusive care.

¶37. Circumstances exist where “[a] court may conclude that there is simply too great an

analytical gap between the data and the opinion proffered.” Denham v. Holmes ex rel.

Holmes, 60 So. 3d 773, 788 (¶53) (Miss. 2011) (citing Watts v. Radiator Specialty Co., 990

So. 2d 143, 149 (¶17) (Miss. 2008)). As this Court has previously explained:

[W]hen the reliability of an expert’s opinion is attacked with credible evidence
that the opinion is not accepted within the scientific community, the proponent
of the opinion under attack should provide at least a minimal defense
supporting the reliability of the opinion. The proponent of the expert cannot
sit on the side lines and assume the trial court will ignore the unrebutted
evidence and find the expert’s opinion reliable. Were we automatically to

17
allow introduction of expert opinions which are based upon nothing more than
personal experience in cases where those opinions are contradicted in the
scientific literature, we would effectively render Rule 702 and Daubert a
nullity.

King, 158 So. 3d at 326 (¶33).

¶38. At the Daubert hearing, Dr. Lakin initially testified that three diagnosed injuries

formed the basis for her opinion that Kyllie died due to SBS: (1) bleeding beneath the outer

layer of the dura surrounding the brain; (2) retinal bleeding; and (3) the presence of rib

fractures. Notwithstanding the absence of any other signs of abuse, this triad of injuries, as

described by Dr. Lakin, not only purported to explain to the jury the mechanism of Kyllie’s

alleged abuse but also purported to allow identification of the timing of the abuse and the

perpetrator—the last caregiver to be in Kyllie’s presence during her final lucid moments.

¶39. At the Daubert hearing, Dr. Lakin explained how SBS (which is today identified as

AHT) was a condition seen primarily in infants who had unexplained significant

hemorrhages in the space between their skull and their brain with no physiological

explanation as to their cause. Dr. Lakin admitted that a shaken-baby diagnosis assumes a

conclusion about a caregiver based on the lack of explanation for an infant’s injuries.

Notably, Dr. Lakin defined SBS/AHT as the terminology used when medical providers “are

not present when [an infant’s injury] occurs to say that [is] the actual mechanism as to what

occurred.”

¶40. Dr. Lakin testified her answers were based on her training and experience as a

practicing pediatrician and the information she collected from the evidence, data, medical

history, and Kyllie’s evaluation. In support of her opinions and conclusions given during the

18
Daubert hearing, Dr. Lakin cited only the AAP and stated that the AAP recognizes AHT as

an entity with SBS as a component. According to Dr. Lakin, under the AAP statement, AHT

is supported by findings of intracranial hemorrhages, which may or may not be associated

with fractures and retinal hemorrhages.

¶41. Dr. Lakin agreed that many articles in many different disciplines, from

neuropathology to biomechanical engineering, discount SBS as a reliable diagnosis. Dr.

Lakin further admitted that she did not know how much force would cause Kyllie’s injuries

and that she had not published anything regarding SBS/AHT. She was unaware of any

studies regarding the error rate of SBS as a diagnosis, and she admitted she had not

personally done any research to eliminate short falls as a cause of these types of injuries.

Further, Dr. Lakin admitted that no test was done to look for neck injuries to Kyllie and that

Kyllie had no external head injury evidencing an impact.

¶42. Dr. Lakin further admitted that, unlike a pathologist, she had no training or expertise

in determining cause of death. She could name no scientific literature to support the idea that

one could pinpoint to within two hours when these types of injuries occur. In fact, she

testified that one of her professors authored a scientific article concluding that, in these types

of cases, one could not give any indication of time of injury except for the 24-hour period

prior to the symptoms’ appearance. To support her SBS/AHT theory, Dr. Lakin had only her

brief recall of an AAP statement and her own opinion that “there is” literature that states the

more severe the injury the more likely it is for the symptoms to appear immediately. Despite

promises from the State and its witnesses to produce articles or other materials to support the

19
opinions given in the Daubert hearing, the State never produced any article to attach to the

hearing record as an exhibit. Unlike the State, the defense provided numerous articles,

studies, and criticisms of SBS to support its argument that SBS is no longer as widely

accepted in the medical community as it once was.

¶43. The circuit judge stated at the Daubert hearing that he was not “insensitive to the fact

that there may be some difficulty or some difference of opinion about that which is called

SBS.” Although he recognized the disagreement surrounding the validity of SBS, the circuit

court still failed to perform its vital gatekeeping function of determining whether the State

had shown Dr. Lakin’s expert opinion testimony on SBS to be reliable. See M.R.E. 702

advisory committee note. As stated by the circuit judge himself, the Daubert hearing he

conducted was only to determine “the matter of [Dr. Lakin’s] qualification to testify as an

expert.” The circuit court undertook no Daubert analysis of SBS itself or its competing

theories. When Josh’s attorney requested the opportunity to additionally voir dire Dr. Lakin

on the reliability of her expert testimony, the circuit judge stated, “Well, I made a

determination she is qualified to testify . . . you can cross-examine her any way you want . . .

I think [that is] what cross-examination is all about . . . .”

¶44. This statement by the circuit judge highlights the precise issue upon which our

reversal of Josh’s conviction and sentence is based. The whole purpose of Mississippi’s

Daubert standard is to ensure that expert testimony provided to a jury is both relevant and

reliable, not to determine whether the proposed expert is in fact an expert. McLemore, 863

So. 2d at 36 (¶11). After all, it is our Daubert standard that requires the court, not the jury,

20
to be the gatekeeper of evidence. Id. at 37 (¶14). Here, however, the circuit court left the

determination of reliability to the jury and the cross-examination skills of Josh’s trial

attorney.

¶45. We also note that, other than stating that he had determined Dr. Lakin was qualified

to testify, the circuit judge made no actual on-the-record findings regarding her qualifications

or the reliability of her expert testimony. We find this to be an abuse of discretion. In

Carlson v. Bioremedi Therapeutic Systems Inc., 822 F.3d 194, 201 (5th Cir. 2016), the Fifth

Circuit of the United States Court of Appeals found “the district court clearly abused its

discretion by not conducting a Daubert inquiry or making a Daubert determination on the

record.”7 As the Fifth Circuit explained:

[W]e agree with three of our sister circuits that a district court must still
perform its gatekeeping function by performing some type of Daubert inquiry
and by making findings about the witness’s qualifications to give expert
testimony. At a minimum, a district court must create a record of its Daubert
inquiry and articulate its basis for admitting expert testimony.

Id. at 201 (citations omitted). Furthermore, as the Fifth Circuit noted, “[a]n expert’s

testimony must be reliable at each and every step or else it is inadmissible.” Id. (internal

quotation mark omitted).

¶46. SBS as a scientific methodology or diagnosis on its own must also be shown to be

reliable. See McLemore, 863 So. 2d at 37 (¶13). Yet Dr. Lakin failed to, and was wholly

unable to, cite any specific studies supporting SBS as a diagnosis. Dr. Lakin’s SBS theory

7
While not binding on this Court, we still find the Fifth Circuit’s holding insightful
and relevant, especially in light of the fact that the Mississippi Supreme Court restyled the
Mississippi Rules of Evidence in 2016 to be consistent with the Federal Rules of Evidence.
M.R.E. 101 advisory committee note.

21
was, by her own admission, based upon assumptions. Dr. Lakin did not apply any known and

tested theories or consult any citable current literature. She relied on a statement from the

AAP—a position statement that was updated in 2008-2009 to focus not on SBS but to utilize

the term AHT.8 Yet, Dr. Lakin could not directly quote the statement. Nor did she analyze

SBS methodology in light of its criticisms to determine if SBS remains a reasonable

diagnosis. Dr. Lakin explained only that SBS was a reasonable diagnosis because it was

based on the AAP statement.

¶47. For the reasons discussed above, we conclude the circuit court abused its discretion

because Dr. Lakin’s expert testimony as to the cause and timing of Kyllie’s death, though

8
The AAP’s current statement on SBS, reaffirmed in 2017, expressly states that the
authors were compelled “to modify our terminology to keep pace with our understanding
of pathologic mechanisms. Although shaking an infant has the potential to cause neurologic
injury, blunt impact or a combination of shaking and blunt impact cause injury as well.”
Cindy W. Christian, Robert Block, & the Committee on Child Abuse and Neglect, Abusive
Head Trauma in Infants and Children, Pediatrics, Vol. 123, Issue 5, 1409 (American
Academy of Pediatrics May 2009). It further states:

[M]edical and biomedical research, clinical and pathologic experience, and
radiologic advances have improved our understanding of the range of
mechanisms that contribute to brain injury from AHT, yet controversy
remains. . . . Controversy is fueled because the mechanisms and resultant
injuries of accidental and abusive head injury overlap, the abuse is rarely
witnessed, an accurate history of trauma is rarely offered by the perpetrator,
there is no single or simple test to determine the accuracy of the diagnosis, and
the legal consequences of the diagnosis can be so significant. . . . Pediatricians
also have a responsibility to consider alternative hypotheses when presented
with a patient with findings suggestive of AHT. A medical diagnosis of AHT
is made only after consideration of all the clinical data. . . . Consultants in
radiology, ophthalmology, neurosurgery and other subspecialties are important
partners in the medical evaluation and can assist in interpreting date and
reaching a diagnosis.

Id. at 1410.

22
relevant, was unreliable and failed to meet the criteria required by Daubert and Rule 702.

We further find the error of admitting Dr. Lakin’s testimony was magnified since Dr. Lakin’s

testimony as to those issues was the only evidence to support the State’s theory of the case.9

The defense attacked SBS’s reliability with credible evidence, in the form of numerous cites

to studies and peer-reviewed articles, that reflected the scientific community may no longer

wholly accept SBS.10 Thus, at the very least, the State should have provided either a minimal

defense of articles or other expert testimony to support the reliability of the opinion. See

Patterson v. Tibbs, 60 So. 3d 742, 750 (¶28) (Miss. 2011) (“[W]hen an expert renders an

opinion that is attacked as not accepted within the scientific community, the party offering

that expert’s opinion must, at a minimum, present the trial judge with some evidence

indicating that the offered opinion has some degree of acceptance and support within the

scientific community.”). This the State failed to do.

¶48. Our review reflects that Dr. Lakin’s proffered testimony fell well short of Daubert’s

expectations and should therefore have been excluded. There was no proof that the medical

9
The dissent maintains that the State presented additional evidence to support Josh’s
conviction. The additional evidence to which the dissent refers, however, is speculative at
best and focuses on Josh’s reaction once Bethany and the other girls expressed concern
about Kyllie’s condition rather than providing support for the State’s theory as to the cause
and timing of Kyllie’s injuries.
10
In cases ranging from the United States Supreme Court to the courts of our sister
states, challenges to the science of SBS/AHT reflect that SBS/AHT as a diagnosis falls well
short of being judicially noticed. See Cavazos v. Smith, 565 U.S. 1, 13-14 (2011) (Ginsburg,
J., dissenting); Del Prete v. Thompson, 10 F. Supp. 3d 907, 954-57 (N.D. Ill. 2014);
Commonwealth v. Epps, 53 N.E.3d 1247, 1260-66 (Mass. 2016); People v. Bailey, 999
N.Y.S.2d 713, 724-27 (N.Y. Cty. Ct. 2014); State v. Edmunds, 746 N.W.2d 590, 596-99
(Wis. Ct. App. 2008).

23
science, as opined by Dr. Lakin, reliably explained the biomechanical processes by which

SBS or AHT develop. There was also no proof that the medical science, as discussed by Dr.

Lakin, reliably aided the jury in understanding the cause and timing of Kyllie’s injuries. Dr.

Lakin was unable to provide the court or jury with any scholarly literature to support the

validity of her diagnosis. No differential diagnosis was considered. In short, neither the

State nor Dr. Lakin provided any scientific studies or medical literature—current or

otherwise—to support the indictment’s charge of injury inflicted by shaking or to support Dr.

Lakin’s opinion that Kyllie’s breathing troubles started at approximately the same time as the

infliction of the injuries. For these reasons, we find that Dr. Lakin’s testimony on SBS was

unreliable and that the circuit court erred in admitting it.

CONCLUSION

¶49. Because we find the circuit court abused its discretion by admitting into evidence Dr.

Lakin’s expert testimony at the Daubert hearing, we reverse Josh’s conviction and sentence

for second-degree murder. Due to our discussion and disposition on these issues, we decline

to address Josh’s remaining issues on appeal, and we remand this case to the circuit court for

a new trial consistent with this opinion.11

11
See Lockhart v. Nelson, 488 U.S. 33, 40 (1988) (holding that “the Double Jeopardy
Clause allows retrial when a reviewing court determines that a defendant’s conviction must
be reversed because evidence was erroneously admitted against him, and also concludes that
without the inadmissible evidence there was insufficient evidence to support a conviction”
when, “clearly with that evidence, there was enough to support the sentence”); Campbell v.
State, 798 So. 2d 524, 530 (¶22) (Miss. 2001) (reversing the defendant’s murder conviction
and remanding for a new trial after finding error in the admission of both the defendant’s
statement to authorities and his blood-stained clothing and holding that the remaining
admissible trial evidence was insufficient to support his conviction); Hillard v. State, 950
So. 2d 224, 230-31 (¶¶28-30) (Miss. Ct. App. 2007) (reversing the defendant’s convictions

24
¶50. REVERSED AND REMANDED.

GREENLEE, WESTBROOKS, McDONALD, McCARTY AND C. WILSON,
JJ., CONCUR. J. WILSON, P.J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. LAWRENCE, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J., AND CARLTON, P.J.

LAWRENCE, J., DISSENTING:

¶51. I respectfully disagree with the majority that the circuit court erred in admitting Dr.

Lakin’s testimony. The majority’s claim that her testimony “failed to meet the Daubert12

standard and was so unreliable as to render portions of her testimony inadmissible” is

misplaced. For over twenty years, the standards set forth in Daubert have governed

admission or denial of expert testimony in trial courts across the United States. These

standards, however, are not an exhaustive list that trial courts must check off to determine

if a witness is qualified as an expert. Miss. Trans. Comm’n v. McLemore, 863 So. 2d 31, 36

(¶13) (Miss. 2003). In fact, when the supreme court adopted the standards of this State, set

forth in McLemore, it made crystal clear:

We are confident that our learned trial judges can and will properly assume the
role as gatekeeper on questions of admissibility of expert testimony . . . . The
trial court can identify the specific indicia of reliability of evidence in a
particular technical or scientific field . . . .

McLemore, 863 So. 2d at 39-40 (¶25). Further, the supreme court said, “We are certain that

after finding error in the admission of accomplice testimony and holding that, even though
“there was quite meager evidence to sustain” one of the convictions, the proper result was
still to remand for a new trial); Gavin v. State, 785 So. 2d 1088, 1095 (¶28) (Miss. Ct. App.
2001) (“Even when the only evidence on an issue has been declared inadmissible, the proper
procedure is to remand.”).
12
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

25
the trial judges possess the capacity to undertake this review.” Id.

¶52. Respectfully, I fear that the majority’s opinion will now either be precedent to create

an expert-admission standard so high that it will be impossible to reach, or it will be

considered a new declaration that this Court will now take it upon itself to be the gatekeeper

of expert testimony and no longer trust the trial courts to do their jobs. Here, the circuit

judge heard hours of testimony from Dr. Lakin at the Daubert hearing and applied his

discretion in determining that Dr. Lakin was qualified to be accepted as an expert and that

her opinions were sufficiently reliable. The majority asserts that determination was an abuse

of discretion. I disagree.

¶53. The reason for my dissent is threefold. First, I do not believe the circuit court abused

its discretion by allowing Dr. Lakin to testify as an expert witness about the injuries she

found on Kyllie and the effect those injuries would have had on that child. Second, I

disagree with the statements made by the majority concerning the facts of this case and that

Dr. Lakin’s opinions were the sole basis for guilt. Finally, this trial was a battle of the

experts. Both parties proffered experts witnesses offering different opinions. Those experts

were vigorously cross examined by each side. The jury heard both experts’ testimonies and

arguments of the parties as to their opinions and found contrary to Josh’s. This Court should

not now second guess that battle of the experts only because Josh argues on appeal that one

expert was unreliable while his expert was reliable. For these distinct reasons, I respectfully

dissent.

I. Dr. Lakin’s Qualifications

26
¶54. The majority reverses Josh’s conviction because it finds that Dr. Lakin was

unqualified to testify based on the unreliability of the science used to form her conclusions.

I disagree. Before this Court summarily announces Dr. Lakin’s opinions as unreliable, a

review of her qualifications is essential. Dr. Lakin is a medical doctor practicing in the

specialty of pediatrics. She is licensed as a pediatrician in both Tennessee and Mississippi.

She has an undergraduate degree from Duke University, a graduate degree in public health

from the University of North Carolina at Chapel Hill, and a medical degree from East

Carolina University Medical School. She completed her residency in pediatrics at Le

Bonheur Children’s Hospital and at the University of Tennessee. She is Board Certified in

the specialty field of child-abuse pediatrics by the American Academy of Pediatrics, which

requires an examination and a prolonged period of practice in the field. She has practiced

pediatric medicine for many years and presently serves as the director of Le Bonheur

Children’s Hospital. Dr. Lakin is currently an assistant professor of pediatrics at the

University of Tennessee and a general practicing physician in Tennessee and Mississippi.

Dr. Lakin was recognized in the field of pediatrics through her invitation only induction to

the Helfer Society, which is a nonprofit honorary society for child abuse pediatricians. Dr.

Lakin’s professional background included working for the Raleigh Group in Memphis,

Tennessee, and practicing as a general pediatrician at the University of Tennessee. Dr. Lakin

began assisting the primary child-abuse physician at Le Bonheur Hospital in 1999, and she

later became the medical director for the Le Bonheur Cares Team in 2006.

¶55. Dr. Lakin testified that she has lectured “extensively” on abusive head trauma (AHT).

27
As discussed above, she is an assistant professor of pediatrics at the University of Tennessee,

which requires her to maintain up-to-the-minute knowledge of her field in order to speak to

groups and lecture her students. She is a member of the American Academy of Pediatrics

and the Tennessee Academy of Pediatrics. She serves on the Shelby County Child Fatality

Review, which was an advisory committee for the State of Tennessee’s Department of

Children Services. She also worked with a state-wide advisory committee that handled child

abuse exclusively in Shelby County, Tennessee. Finally Dr. Lakin has been named as one

of the “Best Doctors” between the years 2002 to 2013, and was a 21st Century Scholar in the

Department of Preventative Medicine. She has also received awards for cancer work and a

medical humanities award.

¶56. Dr. Lakin has been recognized as an expert and testified as an expert in child-abuse

pediatrics for both the prosecution and the defense in “over a hundred” cases in Arkansas,

Tennessee, Missouri, and Mississippi. Notably, she was never refused as an expert in those

cases. Dr. Lakin has been recognized by courts all over this state, time and time again, as an

expert physician with a specialty in the area of child abuse. There are numerous cases where

she has testified similarly to the issues in this case, and those cases were affirmed by this

Court and the Mississippi Supreme Court.13 To say the trial court abused its discretion in its

13
In Middleton v. State, 980 So. 2d 351 (Miss. Ct. App. 2008), this Court recognized
that Dr. Lakin’s “testimony regarding child trauma and abuse was appropriate, and the trial
court did not err in allowing her testimony.” Id. at 359 (¶31). The majority claims that “any
reliance on similarities with Dr. Lakin’s prior testimony in Middleton is misplaced.” I
wholeheartedly disagree for two distinct reasons. First, this Court has held that Dr. Lakin
is qualified as an expert in her field. Second, in that case, the defendant argued that SBS was
not a “generally accepted theory in the medical community,” and we were charged with
considering that argument. Id. at 356 (¶17). In Middleton, we found that the experts

28
gatekeeper function now when she has been recognized as such an expert in four states and

affirmed as such expert by the appellate courts of this state, is a stretch of legal significance

and has far reaching ramifications in child-abuse cases. To find her testimony unreliable

after a career of studying, treating, and teaching child abuse cases raises reliability hurdles

so high as to essentially make it impossible to know with certainty what is the rule and what

is the exception. I would find the circuit court did exactly what the supreme court has ask

that the courts do. Specifically, I would find that the circuit court did not abuse its discretion

in finding Dr. Lakin imminently qualified to render an expert opinion about Kyllie’s injuries.

Further, I would find that the opinions rendered by Dr. Lakin were not unreliable, untested,

or unscientific. In sum, her opinions were based on what type of injuries Kyllie had, what

symptoms would come from those injuries, and what someone with Kyllie’s injuries could

or could not do.

II. Admissibility of Dr. Lakin’s Opinions

¶57. The majority takes issue with Dr. Lakin’s analysis and conclusions concerning the

window of time that Kyllie’s injuries could have occurred. The majority reasons that the

presented at trial, including Dr. Lakin, were able to testify to “the types of injuries present
and clearly indentif[y] their basis for concluding the injury was most likely cause by adult
intervention.” Id. at 356 (¶20).
Also, in Isham v. State, 161 So. 3d 1076 (Miss. 2015), Dr. Lakin testified that a
abused child showed signs of similar hemorrhages to Kyllie and that these “were consistent
with abusive head trauma.” Id. at 1080 ( ¶17). While the supreme court overturned Isham’s
conviction because he was not afforded an opportunity to hire an expert witness to rebut Dr.
Lakin’s testimony, the supreme court noted that it was only because “the trial court deprived
Isham of his right to a fair trial when it denied him funds to procure opposing experts.” Id.
at 1084 (¶38). The supreme court did not make any mention of Dr. Lakin’s inability to issue
such an expert opinion.

29
science behind Dr. Lakin’s conclusions is flawed. As a result, the majority finds that Dr.

Lakin inappropriately testified to the range of time in which Kyllie was injured. I disagree.

¶58. The State presented an abundance of evidence about Kyllie’s injuries to the jury.

Those injuries were extensive. Dr. Lakin walked the jury through each and every injury that

the child presented at Le Bonheur Children’s Hospital. The four month old suffered a

cerebral edema, otherwise known as swelling of the brain. Her CT scan also indicated she

had a subdural hemorrhage, along with a intraventricular and intraparenchymal hemorrhage.

Both of these injuries, in layman’s terms, result from bleeding in different parts of the brain.

Dr. Lakin testified that not only was Kyllie’s brain bleeding, but the brain tissue was also

bruised. Kyllie’s eye exam revealed bilateral retinal hemorrhages that Dr. Lakin testified

were particularly significant “because the more extensive the hemorrhages are, then the more

they correlate with the acceleration/deceleration type injuries.” The child also presented with

what physicians thought to be a right healing clavicle fracture and healing fractures on her

right and left ribs. Dr. Lakin testified that there were no external injuries to Kyllie’s head,

which could have indicated a fall and was the defense’s alternative theory. Dr. Lakin found

that the swelling of Kyllie’s brain is what ultimately caused her death.

¶59. On direct examination, Dr. Lakin described for the jury what injuries of this nature

would have symptomatically produced:

Q. After receiving these fatal injuries, would Kyllie have been able to
function?

A. No. Well, when you say function, her – her typical activities, which are
not a whole lot of activities in a four-month-old, but would not be
considered normal, no.

30
Q. In other words, her – well, I won’t put it in other words. But would she
have been able to cry –

A. No.

Q. – after suffering these injuries?

A. Not – no.

Q. Okay.

A. Probably during the event, but no – she would lose consciousness very
quickly.

Q. Would she have been able to eat or be fed?

A. No.

It is important to note that Dr. Lakin never pinpointed an exact time that the child was

harmed. She did not provide an arbitrary time-stamp of guilt, which I think is what concerns

the majority. Dr. Lakin instead explained that based on the statements Josh made to the

medical team treating his daughter, Kyllie was acting normally when she ate around 5:00

p.m. but was gasping for air around 5:30 p.m. when Bethany arrived at the house. On direct

examination, her testimony was further explained as follows:

Q. Based on the history given to you – and you remember I asked you
early on to the parameters of what I would ask you to base your answers
on early on in this examination. Based on those factors and the history
given to you, do you have an opinion to a medical certainty as to a
range of time when these injuries would have been received by Kyllie
Clark?

A. Based on the history that was given to me, it would have to be
sometime between her most recent normal activity, it would be
sometime after her most recent normal activity to the time when she
was found unconscious. And so, in my experience, the symptoms are
immediate.

31
Q. And the last time of normal activity, as given to you in the history, was?

A. 5:00 when she ate.

Dr. Lakin was merely testifying to what Josh reported to her, not giving an expert medical

opinion that the injury happened at a certain time. Her medical opinion was that this child

could not act normally with the injuries she found. That opinion is certainly within her

medical expertise and was fully cross examined by the defense. To further show that she did

not do what Josh claims, consider the following which occurred on direct examination:

Q. And so you’re not saying who committed the abuse?

A. That’s correct.

Q. And you’re just diagnosing it as that?

A. That’s correct.

It is clear from this exchange that Dr. Lakin was not pointing a finger of guilt at anyone in

particular. In fact, when the above two exchanges on direct examination are read together,

along with her other testimony about the types of injuries Kyllie had, it is clear that she was

merely repeating the time frame Josh gave her and not saying that Josh committed this crime

because of that time frame. On cross examination, Dr. Lakin explicitly testified five different

times that she could not say “who” caused the injuries found on Kyllie. That is a major

distinction that should be taken into consideration when evaluating the reliability of Dr.

Lakin’s opinions at trial. Josh’s argument that she eliminated everyone except him is simply

not true. She stated she could not say who committed the abuse.

¶60. Dr. Lakin concluded that Kyllie was a victim of abusive head trauma based on the

32
history Josh gave her, along with the injuries discussed above. At the Daubert hearing, Dr.

Lakin told the court that the severity of the injury was crucial in determining the timing of

the injuries themselves. At trial, Dr. Lakin consistently testified that “the more severe the

injury, the closer in time it is as to when it has occurred.”

¶61. Further, when someone has a severe brain injury, as was seen in this case, that person

cannot function normally (i.e., eating, breathing, etc.). On direct examination, Dr. Lakin told

the jury that she would not have expected Kyllie to eat “at all” with a head injury of this

magnitude. The majority claims that Dr. Lakin contradicted herself on cross examination

when she told the jury that she “could not determine the exact time of Kyllie’s injuries.”

That is exactly what Dr. Lakin testified to on direct examination. Her expert medical opinion

was expressed during cross examination as follows:

I’m not saying that you can put it down to a couple of hours based on the
radiological data or the path – the autopsy findings. What I’m saying is that
the – there is literature talking about the fact that a severe head injury would
not – the child would not have an absence of symptoms and develop [the
symptoms] later. And the more severe the injury, the more likely it is the
shorter period of time because they can’t survive.

Dr. Lakin simply explained that a child would display symptoms more quickly, depending

on the severity of the injury.

¶62. Based on Dr. Lakin’s training, education, and experience, she was certainly qualified

to render that opinion. Dr. Lakin did not make up the times. She did not formulate her

conclusions based on some unreliable expert opinion. Her opinions, as presented to the jury,

were supported by Josh’s statements to her concerning Kyllie’s history and the axiomatic

medical doctrine that the more severe the injury the quicker one would see symptoms.

33
III. Additional Evidence of Guilt Presented to the Jury

¶63. The majority complains, in an effort to heighten the seriousness of the alleged error

by the circuit court, that the State relied “solely on the basis of Dr. Lakin’s expert testimony”

and that Josh was found guilty of second-degree murder as a result of that testimony. I

disagree that Dr. Lakin’s opinions were the sole basis for a jury conviction. While it may be

true that Dr. Lakin’s testimony explained the science behind Kyllie’s cause of death and her

functionality in the moments leading up to it, the jury was still presented with a myriad of

evidence from both the State and the defense to support a conviction.

¶64. One of the most crucial pieces of evidence given to the jury was Josh’s sworn

statement. The statement, which Officer John Hillhouse took the day after Kyllie died, was

entered into evidence and read into the record at the trial. Josh testified that the statement

and the facts contained within were “as accurate as [he could] recall.” The statement

indicated that Bethany was asleep until around 2:00 p.m. on January 5, 2008. Bethany,

Morgan, and Haley went to run errands while Josh stayed home with the twin babies. The

babies were fed and burped and, according to Josh, were “being good.” Josh then sat Kyllie

in an arm chair while he played video games. After a little time had passed, Josh went to the

restroom for “thirty seconds.” When he returned, he stated that he noticed “[Kyllie] made

a gasping sound before [Bethany] got home.” This occurred five to ten minutes before

Bethany returned. Kyllie gasped more than once during that time period. During his

testimony at trial, Josh told the jury that “[he] never assumed that anything was wrong with

Kyllie” while she was struggling to breathe. Once Bethany and the children got home,

34
instead of immediately calling 911, Josh took Kyllie to the bedroom.

¶65. The jury also heard the testimonies of Bethany Clark and Haley Parker. Bethany

specifically outlined her observation of Josh’s reaction to their daughter’s condition.

Bethany testified that when she returned home from running errands, Haley immediately

dropped her bags at the door and said, “[O]h, my god, what happened?” Bethany walked

through the door of the home and saw Kyllie lying in the corner of the recliner next to Josh.

Josh was playing a video game while the four month old “was gasping for breath,” and

Bethany immediately knew something was wrong. Bethany told the jury that her daughter’s

eyes were “clouded over” and that she could see “nothing in [Kyllie’s] face.” The scenario

that Bethany described next is chilling:

A. And I said, What happened? He said, Nothing. I said, She’s got to go
to the doctor. He said, She’s fine. I said, No, she’s not. And he picks
her up and he’s holding her, and her body is just limp. And he walks
to the back.

Q. All right. Tell me what happened once he – once he picked up the baby,
I believe you said he headed to the back of the home?

A. Yeah, he went to the bedroom. He was headed to our room at the end
of the trailer, and I followed him back there. And he went to lay her
down, and I went to get her. As soon as I went to get her, he come back
and he was, like, No. He didn’t want me to get her. And I was, like, I
got to take her. And he’s, like, No, she’s fine. And I had to push him
off so I could take her. And I got to the living room, and I hit the floor
and I started CPR.

The evidence presented to the jury was that Kyllie’s condition was so dire that Bethany had

to immediately begin CPR once she finally was able to pry Kyllie away from Josh.

¶66. Haley Parker, who lived with Josh and Bethany at the time, described a similar

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scenario for the jury. When she arrived home with Bethany, Haley saw that Kyllie “had one

eye that looked like it was, like closed, and one eye open.” She told the jury that Kyllie

“would take one little breath, and then it would stop,” and that the child was “gasping for

air.” She saw Josh pick the child up and take Kyllie to the bedroom. During this whole time,

Haley testified that Josh kept saying “she’s fine” and that “[s]he’s been doing that all day.”

¶67. Before the jury ever heard from Dr. Lakin, they were given Josh’s sworn statement,

the testimony of Officer Hillhouse about how that statement was acquired, and Bethany’s

testimony that detailed Josh’s strange actions once Kyllie began to exhibit symptoms of

distress. After hearing all of this evidence, the jury then heard Dr. Lakin’s testimony.

During her cross examination, Dr. Lakin told the court that the history obtained from the

parents was the first step in any diagnosis. Dr. Lakin testified that based on the “history

obtained from the parents, [Kyllie] had been at home and had been in the care of [Josh].”

That history also included the following facts:

And there were three other children, I believe, that were in the home at the
time. [Kyllie] was playing – by history, [Kyllie] was playing around 3:00 p.m.
in a playpen, and she was four months old and also had a twin. All the
children were fed. The twins were fed formula and cereal around 5:00 p.m.
And [Josh] reported to us that [Kyllie] gasped. And around 5:30, the mother
came home with two other friends, and they noticed that [Kyllie] was having
difficulty breathing.

¶68. The defense put forth the theory that Kyllie’s death was caused by being dropped,

which could have occurred before Kyllie was in Josh’s sole care. The defense’s expert, Dr.

Shuman, testified that the injuries seen in Kyllie did not automatically indicate shaking had

occurred. Furthermore, Dr. Shuman testified that resuscitation efforts, like performing CPR,

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can make some of the injuries, like Kyllie’s retinal hemorrhages, more pronounced. The jury

heard Dr. Shuman’s testimony and was able to consider a clear alternative to Dr. Lakin’s

conclusion of AHT.

¶69. Daubert made clear that “[v]igorous cross examination, presentations of contrary

evidence, and careful instruction on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.” McLemore, 863 So. 2d at 36 (¶12)

(citing Daubert, 509 U.S. at 595-96). This statement, I suspect, was designed to calm the

nerves of trial lawyers and judges in knowing that the familiar tools of cross examination and

presentation of contrary evidence were still available despite the new rule of admission of

expert testimony. After McLemore, it is clear that the parties are still allowed to attack the

opposing expert’s opinions and call their own experts in that effort. Galloway, 122 So. 3d

at 632 (¶¶27-28) (Miss. 2013). The only limitation on that effort is that the expert must be

properly qualified, their opinions sufficiently reliable, and the testimony relevant to the issues

in the litigation. Id. That is exactly what happened in this trial.

¶70. The defense extensively cross examined Dr. Lakin about her opinions and how she

came to her conclusions. The defense went through articles and other expert opinions

questioning the type of injuries that Dr. Lakin found in this case. The defense presented

every possible explanation for Kyllie’s death besides SBS. They exhaustively cross

examined Dr. Lakin about Kyllie’s symptoms, other possible causes of those symptoms, other

medical explanations of those symptoms, and their own expert’s theories. As if that was not

enough, on cross examination the defense went further. They even asked Dr. Lakin about

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her own divorce, psychological projection, past lawsuits, times she had previously testified

in a case where a former Tennessee Assistant District Attorney had been fired, and papers

that she had published concerning the topics of SBS. To say this was a lengthy cross

examination does not do justice to the vigor to which it was carried out. I do not fault the

defense for this. In fact, I commend the defense for performing an essential and necessary

trial function that, more often than not, allows the truth to surface. In addition to that lengthy

and thorough cross examination of the State’s expert witness, the defense offered its own

expert witness who gave contrary opinions to Dr. Lakin and presented alternative theories

of injuries.

¶71. The majority notes in footnote nine that this abundance of evidence is “speculative,

at best.” Respectfully, I disagree. The testimony and evidence presented to the jury was

theirs to consider. The circuit court instructed the jury to make their decision “based on the

evidence and the law and not upon speculation, guesswork or conjecture.” Here the jury did

just that and found Josh guilty of killing Kyllie. This Court should not second guess a jury

verdict and imply prejudice by the State’s expert when the whole trial was a battle of the

experts and the defense not only fully cross examined Dr. Lakin but also was allowed to

introduce its own contrary expert testimony to the jury.

¶72. At that point, the decision was in the hands of the jury. It is not the job of this Court

to overlook the entirety of the evidence presented before the jury and overturn a conviction

because there is “some disagreement” in the medical community about an issue that was fully

vetted in front of the jury. The jury determines the factual issues in dispute in a trial and

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prescribes the credibility or not of the witnesses who testified before the jury. Because I

believe that the circuit court appropriately performed its function as a gate keeper in

determining Dr. Lakin’s expertise and the reliability of her opinions, and because there is no

evidence to suggest the circuit court abused its discretion in that process, I would affirm

Josh’s conviction.

BARNES, C.J., AND CARLTON, P.J., JOIN THIS OPINION.

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