By MELINDA J. OVERSTREET
for Glasgow News 1
The attorney for a man charged with murder in connection with the death of a child in 2021 is seeking more information about how an expert witness the prosecution plans to have a trial reached the conclusions she did.
David Broderick, attorney for Devin Pierce, appeared in Barren Circuit Court on Monday via the streaming service Zoom to argue that he should have more specific information on any sources the potential witness, Melissa Currie, consulted in reaching a conclusion that the subdural hematoma the child had was due to an injury as opposed to other potential causes. Subdural hematoma occurs when blood pools between the brain and the skull.
The child had been left in the care of Pierce, now 25, and his co-defendant Serenity Brown, now 22, on the March evening when emergency personnel responded to a call about an unresponsive 19-month-old. The child was transported to T.J. Samson Community Hospital and later pronounced deceased. An autopsy was performed after detectives observed “suspicious bruising” on the child’s head.
“The results of the autopsy determined the child died from blunt impact injuries of the head, and the manner of death was ruled homicide,” according to a press release from the Barren County Sheriff’s Office at the time.
A trial for the pair is scheduled for March.
Broderick told Circuit Judge John T. Alexander that Currie had cited “a reliable consensus of medical literature” in her report, but he said he had a right to review the literature upon which she was relying as the basis for her opinions, so he wanted more details about it that he said were lacking in the summary of the anticipated testimony provided to him. He also said that her use of the word consensus implied there may be some disagreement.
“I do not think it is a complete expert report,” the defense attorney told the judge.
He said the fact that Currie is a physician isn’t enough, and she would need to have some scientific basis.
Broderick said he was requesting a hearing on whether this witness should be used at trial.
He also pointed out that Commonwealth’s Attorney John Gardner noted a previous case in which Currie had testified as an expert witness that eventually landed with the Kentucky Supreme Court, and Alexander said he has read that case.
The judge said that such hearing, called a Daubert hearing, was part of that case as well.
“Essentially, what the evidence before the trial court was in that was – I’m obviously summarizing – but the medical evidence is so voluminous that a general practitioner cannot keep up with it,” Alexander said.
He said that if Currie had some specific medical literature that she could produce, then it would be an easy question. He said the approach using Rule 702 in the Kentucky Rules of Evidence, the Daubert approach, is that once a scientific method is accepted by the highest court of the commonwealth, it’s accepted by the lower courts.
“In this particular case, we have a witness whose testimony went to [the state’s supreme court], that they have said that she is allowed to testify as to her medical opinion regarding the source of injury,” he said, and they based it on the hearing in the lower court, where she testified about how she had reached her opinion using the normal medical method of differential diagnosis, meaning that as other possibilities are ruled out, the one remaining is what happened. So, in this case, for example, if a blood disorder, genetic disorder or congenital disorder could be ruled out, then that leaves trauma as the option for the cause.
The judge said that if the question is whether she’s allowed to testify about her opinion, he believed that she would be allowed to do so because Kentucky’s highest court had already ruled on that.
“The question to me would be did she follow that same approach that she does in these other cases that the Kentucky Supreme Court has said they will recognize,” Alexander said. “I think that’s the question and it’s less of a Rule 702 question and more of a, ‘What are they entitled to in discovery?’ to make sure you don’t get to the trial and start asking her questions and she’s like, ‘Well, I really didn’t do any of this other stuff.’ Does that make sense?”
Gardner said it did.
Alexander said they weren’t reinventing the wheel; they just needed to know whether they followed the protocol the higher court has already approved that permits her to testify.
“I can’t overrule the Kentucky Supreme Court,” the judge said.
Gardner said the child had died before being taken to Norton’s to be treated.
“Dr. Currie is part of the child abuse team there at Norton’s Children’s, so she did not have any direct involvement with this child because the child was deceased,” the prosecutor said. “She was part of a state panel that reviews all infant mortalities, so she, through that, obtained the medical records, reviewed those medical records and then has obviously, has an opinion on the manner of death in this situation. That’s outlined in the commonwealth’s notice that’s filed in this case.”
According to the Norton Children’s Hospital website, Currie became a certified pediatrician in 2002, and also was certified in 2009 by the American Board of Pediatrics in child abuse pediatrics.
In the case precedent Broderick and the judge had discussed, she testified in a case where the child died, and her opinion was that it was due to abusive head trauma, Gardner said. A Daubert hearing took place and the trial court said she was qualified to testify as an expert, and that was upheld by the higher court.
“The case law in Kentucky is clear that says when it’s been, that testimony has been approved by a higher court, then it’s also admissible in other matters, so the commonwealth does not believe a Daubert hearing is required in this situation,” Gardner said.
The judge said there may be information to which the defense is entitled with regard to whether Currie followed the same protocol with the current case as she had with that specific previous one, and he added that she would be expected, as part of her testimony during the trial, to discuss whatever protocol she followed, so it’s not going to be a secret.
Alexander said that, out of an abundance of caution, it might be a good idea for them to flesh out a little more what she did to reach her opinion, her methodology – e.g. did she rely on literature, her experience, etc. and he would produce a written order to ensure that gets done.
Whether she can actually testify as an expert about her opinion has essentially already been decided, though, so it wasn’t necessary to have a hearing at this point, he said.
Broderick said he would like to have information on any specific literature she consulted.
Alexander said that to a point, that was fair, but he didn’t think she needed to provide a full bibliography of every source she consulted on every case.
Gardner also pointed out that Currie’s resume included a list of her own articles that had been published.
The judge said the prosecutor would need to comply by the next pretrial conference in the case, which is scheduled for Feb. 3, with the order he’ll be writing.
Comments