1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 December 12th, 2007 25

2
  1                        Appearances
  2  Linda Rothstein      (np) )     Commission Counsel
  3  Mark Sandler              )
  4  Robert Centa         (np) )
  5  Jennifer McAleer     (np) )
  6  Johnathan Shime            )
  7  Ava Arbuck           (np) )
  8  
  9  Brian Gover          (np) )     Office of the Chief Coroner
 10  Luisa Ritacca              )     for Ontario
 11  Teja Rachamalla           )
 12  
 13  Jane Langford        (np) )     Dr. Charles Smith
 14  Niels Ortved              )
 15  Erica Baron               )
 16  Grant Hoole          (np) )
 17   
 18  William Carter            )     Hospital for Sick Children
 19  Barbara Walker-Renshaw(np) )
 20  Kate Crawford             )
 21  
 22  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
 23                                   Association
 24  
 25

3
  1                   APPEARANCES (CONT'D)
  2  Mara Greene          (np) )     Criminal Lawyers'
  3  Breese Davies        (np) )     Association
  4  Joseph Di Luca       (np) )
  5  Jeffery Manishen      (np) )
  6  
  7  James Lockyer             )     William Mullins-Johnson, 
  8  Alison Craig              )     Sherry Sherret-Robinson and
  9  Phil Campbell        (np) )     seven unnamed persons
 10  Peter Wardle         (np) )     Affected Families Group
 11  Julie Kirkpatrick          )
 12  Daniel Bernstein     (np) )
 13  
 14  Louis Sokolov              )     Association in Defence of
 15  Vanora Simpson       (np) )     the Wrongly Convicted
 16  Elizabeth Widner      (np) )
 17  Paul Copeland         (np) )
 18  
 19  Jackie Esmonde        (np) )     Aboriginal Legal Services 
 20  Kimberly Murray           )     of Toronto and Nishnawbe
 21  Sheila Cuthbertson    (np) )      Aski-Nation
 22  Julian Falconer      (np) )
 23  
 24  
 25

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser              )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel     (np)   )     Ministry of the Attorney
  6  Heather Mackay     (np)   )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig                 )
  9  
 10  Natasha Egan       (np)   )     College of Physicians and 
 11  Carolyn Silver     (np)   )     Surgeons
 12  
 13  Michael Lomer      (np)    )    For Marco Trotta
 14  Jaki Freeman        (np)   )
 15  
 16  
 17  
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25

1 TABLE OF CONTENTS Page No. 2 3 HELEN LAURA WHITWELL, Sworn 4 PEKKA SAUKKO, Sworn 5 6 Examination-In-Chief by Mr. Mark Sandler 6 7 8 9 Certificate of transcript 260 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Mr. Sandler...? 8 MR. MARK SANDLER: Yes, good morning, 9 Commissioner. Commissioner, as you'll recall in the 10 second week of the Inquiry we heard from Professors 11 Milroy, Crane, and Butt, three (3) of the five (5) 12 reviewers that were retained by the Chief Coroner to 13 review selected cases of Dr. Smith's. 14 The -- the last two (2) members of that 15 review panel, Professor Whitwell and Professor Saukko, 16 are here today and they will be testifying for the 17 balance of the week. 18 I will ask our registrar to swear in the 19 witnesses, please. 20 21 HELEN LAURA WHITWELL, Sworn 22 PEKKA SAUKKO, Sworn 23 24 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 25 MR. MARK SANDLER: Good morning,

1 Professor Whitwell, good morning, Professor Saukko. 2 Commissioner if -- if I can take you to 3 the additional documents volume and particularly the 4 curriculum vitae of Professor Whitwell, which is to be 5 found at 301270. 6 Professor Whitwell, as I understand it, 7 you obtained your Bachelor of Medicine and Bachelor of 8 Surgery in 1977, is that right? 9 DR. HELEN WHITWELL: That's correct. 10 MR. MARK SANDLER: That you became a 11 member of the Royal College of Pathologists in general 12 histopathology in 1985? 13 DR. HELEN WHITWELL: I did, yes. 14 MR. MARK SANDLER: That in 1990 you 15 obtained your diploma in medical jurisprudence in 16 pathology, and that was from the Worshipful Society of 17 Apothecaries that we've heard about previously. 18 Is that right? 19 DR. HELEN WHITWELL: It is, yes. 20 MR. MARK SANDLER: You became a fellow of 21 the Royal College of Pathologists in 1996? 22 DR. HELEN WHITWELL: Yes, that's correct. 23 MR. MARK SANDLER: You became a fellow of 24 the Australasian College of BioMedical Scientists in 25 2003?

1 DR. HELEN WHITWELL: Yes. 2 MR. MARK SANDLER: As reflected in the 3 second page of your curriculum vitae, and you became a 4 fellow of the faculty of Forensic and Legal Medicine as a 5 founding fellow, Royal College of Physicians in 2005. 6 Is that right? 7 DR. HELEN WHITWELL: Yes, that is 8 correct. 9 MR. MARK SANDLER: Now we see on page 2 10 of your curriculum vitae, that you currently are 11 accredited as a home office forensic pathologist. And 12 could you describe for the Commissioner the -- the area 13 that -- that your work encompasses. 14 DR. HELEN WHITWELL: In terms of 15 geography, I'm based in the West Midlands, covering the 16 West Midlands area, Warwickshire, Staffordshire and West 17 Mercy police force areas, with a population of around 5 18 million. 19 MR. MARK SANDLER: All right. We heard 20 from Professor Milroy when he testified, that forensic 21 pathologists in England and Wales are organized either 22 within the forensic science service in his instance, or 23 in a university setting or in a private practice in 24 clusters of forensic pathology. 25 Which category do you fall into?

1 DR. HELEN WHITWELL: I'm currently in 2 private practice and part of what's known as the West 3 Midlands Group Practice. 4 MR. MARK SANDLER: All right. And how 5 many forensic pathologists does that encompass? 6 DR. HELEN WHITWELL: In the West 7 Midlands, three (3) of us. 8 MR. MARK SANDLER: And we heard from 9 Professor Milroy, that forensic pathologists in clusters 10 enter into a contractual arrangements with local police 11 forces to -- to conduct the medicolegal autopsies in that 12 jurisdiction. 13 And is that case for your group as well? 14 DR. HELEN WHITWELL: It is, yes. 15 MR. MARK SANDLER: All right. With -- 16 DR. HELEN WHITWELL: But, I should point 17 out that those autopsies that we do, contract to the -- 18 to the police, only form a very small part of the total 19 autopsy rate in the UK. 20 MR. MARK SANDLER: All right. And we've 21 heard that -- that many more -- many more coronial 22 autopsies are performed than those which are -- which 23 come from the -- 24 COMMISSIONER STEPHEN GOUDGE: I apologize 25 to everybody. I didn't realize it would be that loud. I

1 saw a whole bunch of heads go up. I beg your pardon, I 2 won't do that again. 3 MR. NIELS ORTVED: You should be at the 4 hospital. 5 COMMISSIONER STEPHEN GOUDGE: I just blew 6 my nose and I've got a microphone here and all of a 7 sudden every body woke up. 8 Sorry, Mr. Sandler. 9 MR. MARK SANDLER: That's all right. 10 Thank you. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: So you were saying 14 that the -- that the criminally suspicious or homicide 15 cases form a small subset of the total number of 16 autopsies that are performed by your group. 17 Is that right? 18 DR. HELEN WHITWELL: Yes, I mean, in the 19 total of England and Wales, it's probably around three 20 thousand (3,000) such cases. 21 MR. MARK SANDLER: Per year? 22 DR. HELEN WHITWELL: Per year. 23 MR. MARK SANDLER: All right. And we 24 also see from your curriculum vitae, that not only do you 25 perform the autopsies which you've just described, but

1 you also carry out opinion work both on behalf of the 2 prosecution and the defence. 3 Is that right? 4 DR. HELEN WHITWELL: That is correct. Do 5 you do that opinion work on behalf of the defence in the 6 same jurisdiction in which you will perform work 7 contracted by the police, or -- or do you go outside of 8 the jurisdiction for that opinion work? 9 DR. HELEN WHITWELL: Both. 10 MR. MARK SANDLER: All right. And your 11 curriculum vitae reflects that you are consulted on a 12 national and international basis for forensic 13 neuropathological cases, including Canada, Australasia, 14 Hong Kong, The United States of America, Ireland and 15 Europe. 16 Is that right? 17 DR. HELEN WHITWELL: That's correct. 18 MR. MARK SANDLER: And your sub-specialty 19 expertise is in what? 20 DR. HELEN WHITWELL: Forensic 21 neuropathology. 22 MR. MARK SANDLER: And we see that by way 23 of previous appointments, that from 2000 to 2004 you were 24 the Professor and head of the Department of Forensic 25 Pathology at the University of Sheffield.

1 Is that right? 2 DR. HELEN WHITWELL: Yes. Yes, that's 3 correct. 4 MR. MARK SANDLER: And that's the 5 position that Professor Milroy succeeded you in. 6 Is that right? 7 DR. HELEN WHITWELL: Yes, he was 8 appointed to a personal chair shortly after I took up the 9 position in 2000. 10 MR. MARK SANDLER: And as I understand 11 it, even after you left that position in 2004, you 12 continue to retain an appointment as an honorary 13 professor at that University? 14 DR. HELEN WHITWELL: That's correct. 15 MR. MARK SANDLER: Just stopping there 16 for a moment. The -- the Commissioner directed some 17 questions to Professor Milroy about the -- the tension 18 between the University setting and the aspirations of the 19 University and a Department of Forensic Pathology 20 operating within that setting. 21 Did you find that tension to exist while 22 at the University? Or could you tell the Commissioner 23 something about that. 24 DR. HELEN WHITWELL: Yes, I was. I think 25 it particularly affects England and Wales. And the --

1 the aims of most universities are to obviously perform 2 research, but particularly attract large grants and do 3 multidisciplinary research. And that seems to be their 4 main thrust. 5 And one of the problems with forensic 6 pathology is that there's a higher level of workload for 7 the police and other people, which tends to detract from 8 that. 9 MR. MARK SANDLER: All right. And -- and 10 apart from the workload that's imposed upon the forensic 11 pathologists working within the university setting, how 12 bountiful, if I might use that term, are grant monies 13 flowing into forensic pathology research projects in 14 England and Wales? 15 DR. HELEN WHITWELL: They're minuscule. 16 MR. MARK SANDLER: All right. 17 DR. HELEN WHITWELL: Very small. 18 MR. MARK SANDLER: We're actually going 19 to see that -- that a project which was described by 20 Professor Milroy that you were apart of. The Dr. Geddes 21 and Professor Milroy project was done pursuant to a grant 22 of some ten thousand (10,000) pounds. 23 Is that right? 24 DR. HELEN WHITWELL: That's correct. 25 MR. MARK SANDLER: Not a very large sum?

1 DR. HELEN WHITWELL: No. 2 COMMISSIONER STEPHEN GOUDGE: Dr. 3 Whitwell, is it possible in a perfect world where there 4 was funding and time to devise research programs in 5 forensic pathology of the kind that would attract the 6 interest of universities? Or is there something about 7 forensic pathology because it is hard to run, you know, 8 control groups and things like that to devise research 9 programs? 10 DR. HELEN WHITWELL: It's hard to devise 11 research projects within forensic pathology and that's 12 also particularly so in the light of the various organ 13 attention issues that we've had. 14 Generally, the big grants come from 15 multidisciplinary teams within universities. And most 16 universities are concentrating on various areas, you 17 know, particular molecular biology, for example. 18 And it's probably true that clinical 19 medicine, as a whole, including forensic pathology, has 20 tended to suffer from the problems with the university; 21 in England and Wales, that is. 22 COMMISSIONER STEPHEN GOUDGE: All right. 23 Thank you. 24 25 CONTINUED BY MR. MARK SANDLER:

1 MR. MARK SANDLER: All right. Now, we 2 see again at page 2 of your curriculum vitae that -- that 3 after a -- after some earlier involvement as a lecturer 4 in neuropathology at the University of Manchester, from 5 1986 to 1998 you became the senior consultant 6 neuropathologist at the Queen Elizabeth Hospital -- 7 University Hospital NHS Trust in Birmingham. 8 Is that right? 9 DR. HELEN WHITWELL: Yes, that's correct. 10 MR. MARK SANDLER: And what is reflected 11 in that curriculum vitae is that from April of 1995, 12 which is part of that period, there was part funding from 13 the home office for development of forensic services 14 regionally and nationally, in particular for forensic 15 neuropathology. 16 DR. HELEN WHITWELL: That's correct. 17 MR. MARK SANDLER: And what were the 18 nature of your duties and responsibilities as the senior 19 consultant neuropathologist in the hospital setting, from 20 '86 to '98? 21 DR. HELEN WHITWELL: Essentially two- 22 fold. I was part of a group of three (3) other -- two 23 (2) other neuropathologists, I'm sorry -- who were 24 involved in the day-to-day diagnosis of neurosurgical 25 cases; for example, brain tumours, muscle biopsies, and -

1 - and that. 2 And in addition, I performed post-mortems 3 on cases of a neuropathological nature and examined 4 brains from those cases. 5 MR. MARK SANDLER: All right. If we can 6 go to the next page of your curriculum vitae, we see as a 7 second item that you become a home office accredited 8 forensic pathologist in 1988. 9 Is that right? 10 DR. HELEN WHITWELL: That's correct. 11 MR. MARK SANDLER: And -- and thereafter 12 you performed autopsies on -- on approximately how many 13 suspicious death or homicide cases per year? 14 DR. HELEN WHITWELL: Around fifty (50) to 15 sixty (60). 16 MR. MARK SANDLER: Okay. And you've 17 reflected in the middle of that page, that in addition 18 you performed defence autopsies as well as routine 19 coroner's cases, in particular for the named coroners as 20 well as special coroner's throughout West Midlands. 21 Is that right? 22 DR. HELEN WHITWELL: It is, yes. 23 MR. MARK SANDLER: And your particular 24 interest and expertise was in forensic and 25 neuropathology?

1 DR. HELEN WHITWELL: It was, yes, and is. 2 MR. MARK SANDLER: Now, if I can go to 3 page 4 of your curriculum vitae, you've reflected in the 4 middle of the page that -- that your major research 5 interest is in adult and child head injury. 6 And there's a reflection there of the 7 grant that we referred to a little bit earlier, that was 8 given by Accident Research in the United Kingdom in 9 conjunction with Dr. Geddes at the Royal London Hospital 10 for a project entitled, "Patterns of Brain Damage in 11 Infant Head Injury". 12 And this was as neuropathological study 13 with immunocytochemistry, clinical pathological 14 assessment and genotype analysis. Is that right? 15 DR. HELEN WHITWELL: Yes. 16 MR. MARK SANDLER: And did that generate 17 several papers on the topic? 18 DR. HELEN WHITWELL: Yes, it generated 19 two (2) in particular. 20 MR. MARK SANDLER: All right. And Dr. 21 Pollanen made reference to these papers in his testimony 22 last week and I'm going to ask you a little bit more 23 about them in -- in a few moments. 24 And has tho -- has the product of that 25 research project been presented throughout the world,

1 after it was completed? 2 DR. HELEN WHITWELL: Yes, it was 3 presented at various scientific meetings. 4 MR. MARK SANDLER: All right. At page 5 5 of your curriculum vitae, it reflects that you are a 6 reviewer of scientific papers for the Journal of Clinical 7 Pathology, for Lancet, for Neuropathology and Applied 8 Neurobiology, for the Journal of Clinical Neurosciences, 9 Forensic Science International and the International 10 Journal of Legal Medicine. 11 Is that right? 12 DR. HELEN WHITWELL: Yes. 13 MR. MARK SANDLER: I read them all 14 religiously, I can tell you. 15 You have edited and also contributed as an 16 author to the textbook, Forensic Neuropathology, which 17 was published in 2005. 18 DR. HELEN WHITWELL: Yes. 19 MR. MARK SANDLER: That's the textbook 20 that I'm holding here, is that right? 21 DR. HELEN WHITWELL: It is. 22 MR. MARK SANDLER: And you've also 23 contributed chapters in various books on head injury, 24 non-accidental injury in children, head injury in routine 25 and forensic neuropathological practice, non-traumatic

1 neurological conditions in medicolegal work, and sudden 2 unexpected death in infancy, and are currently preparing 3 chapters on forensic neuropathology and deaths in infancy 4 and drowning for the Polson text that we heard a little 5 bit about. 6 Is that right? 7 DR. HELEN WHITWELL: That's correct. 8 MR. MARK SANDLER: Now your international 9 and national lectures are too numerous to refer to, but 10 if you look at page 6 of the curriculum vitae, we will 11 see a number of invited lecturers that pertain directly 12 to the kinds of issues that were raised in the cases that 13 you examined as part of the Chief Coroner's Review. 14 Is that right? 15 DR. HELEN WHITWELL: That's correct. 16 MR. MARK SANDLER: So they include topics 17 on head injury and brain death; shaken babies; 18 intercranial hemorrhage; shaking injury in infants; 19 intercerebral hemorrhage, natural and traumatic; Shaken 20 Baby Syndrome; update to a variety of organizations and 21 associations around the world. 22 Is that right? 23 DR. HELEN WHITWELL: That's correct. 24 MR. MARK SANDLER: And most recently we 25 see at page 7, and the last entry that you presented on

1 the Shaken Baby Syndrome in the English courts, to the 2 National Association of Medical Examiners in San Antonio, 3 Texas. 4 DR. HELEN WHITWELL: Correct. 5 MR. MARK SANDLER: Now if I can go to 6 page 8 of your curriculum vitae, we see that you are -- 7 you served from 1992 to 1994 on the Neuropathology Sub- 8 Committee of The Royal College of Pathologists. 9 DR. HELEN WHITWELL: Yes. 10 MR. MARK SANDLER: Is that right? 11 DR. HELEN WHITWELL: Yes. 12 MR. MARK SANDLER: Item 11. During the 13 period 1994 to 1998 on the Home Office Policy Advisory 14 Board in Forensic Pathology. 15 DR. HELEN WHITWELL: Correct. 16 MR. MARK SANDLER: During the same 17 period, the Association of Clinical Pathologists Sub- 18 Committee on Forensic Pathology. 19 DR. HELEN WHITWELL: Correct. 20 MR. MARK SANDLER: From '96 to '98, 21 Quality Assurance and Scientific Standards Committee of 22 the Home Office Policy Advisory Board in Forensic 23 Pathology. 24 DR. HELEN WHITWELL: That's correct. 25 MR. MARK SANDLER: And when we see,

1 skipping down to Item 17, you were the Chair of the Royal 2 College of Pathologists Standing Advisory Committee in 3 Forensic Pathology for three years. 4 DR. HELEN WHITWELL: Correct. 5 MR. MARK SANDLER: And we'll see in the 6 following page, that from 2000 to 2004, at Item 21, you 7 resumed the position as Home Office Policy Advisory Board 8 for Forensic Pathology. 9 DR. HELEN WHITWELL: Yes. 10 MR. MARK SANDLER: And from 2000 to 11 present, serve on the Home Office Policy Advisory Board 12 Scientific Standards Committee. 13 DR. HELEN WHITWELL: Correct. 14 MR. MARK SANDLER: Now isn't it -- you 15 are an External Examiner as reflected at page 9 of the 16 curriculum vitae, in a number of areas, including you are 17 the Deputy Convener -- and as I recall, Professor Crane 18 is the Convener -- for the Diploma in Medical 19 Jurisprudence and Diploma in Forensic Medical Sciences of 20 the Society of Apothecaries. 21 DR. HELEN WHITWELL: That's correct. 22 MR. MARK SANDLER: And we also see that 23 you're an external examiner for the Royal College of 24 Pathologists in Forensic Pathology. And that would be 25 for the membership in the Royal College, is that right?

1 DR. HELEN WHITWELL: Yes, that -- that's 2 correct. 3 MR. MARK SANDLER: Now, under cases of 4 public interest you've reflected at item 1 that you were 5 an expert advisor to the Shipman Inquiry phases 1 and 2, 6 from 2001 to 2003. 7 Is that right? 8 DR. HELEN WHITWELL: Correct. 9 MR. MARK SANDLER: Now, at page 10 of 10 your curriculum vitae we see the various presentations 11 that you've made at scientific meetings that are too 12 numerous to describe. 13 At page 13 we see items 27 to 31 include 14 presentations on diffuse brain damage in non-accidental 15 head injury, together with Dr. Geddes. 16 DR. HELEN WHITWELL: Yes, that's correct. 17 MR. MARK SANDLER: Neuropathology of non- 18 accidental head injury in infants, again with Dr. Geddes. 19 DR. HELEN WHITWELL: That's correct. 20 MR. MARK SANDLER: Item 30, again 21 neuropathology of non-accidental head injury. And in 22 item 31, birth injury in subdural haematomas, also with 23 Dr. Geddes. 24 Is that right? 25 DR. HELEN WHITWELL: That's correct.

1 MR. MARK SANDLER: Now, the publications 2 I won't take you through, but we'll see from the 3 curriculum vitae that there are some thirty-six (36) 4 additional publications which you have listed, and these 5 are in addition to the various chapters, articles and 6 presentations that are earlier described in your 7 curriculum vitae. 8 Is that right? 9 DR. HELEN WHITWELL: Yes. 10 MR. MARK SANDLER: No, Professor 11 Whitwell, if -- if we can leave your curriculum vitae for 12 -- for a moment, and I'm going to turn to Professor 13 Saukko and go to the same volume of materials, Professor, 14 Tab 10, which is PFP301329. 15 16 (BRIEF PAUSE) 17 18 MR. MARK SANDLER: That's the number I 19 have. 301329. 20 COMMISSIONER STEPHEN GOUDGE: 301329. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: Let's do it this way, 24 if we can. Professor Saukko, I'm going to take you 25 instead where this -- much of the same information is

1 summarised, to your Volume I. 2 DR. PEKKA SAUKKO: Yes. 3 MR. MARK SANDLER: If you have that 4 volume, at Tab 4. And this is PFP135429. All right. 5 And this is one of the medicolegal reports 6 that you prepared in connection with the Chief Coroner's 7 review, is that right? 8 DR. PEKKA SAUKKO: Yes. 9 MR. MARK SANDLER: And at page 1 of this 10 report you've set out in brief some of the aspects of 11 your curriculum vitae and if I can just ask you about 12 some of them. 13 You qualified in Medicine, as I understand 14 it, from the University of Vienna in Austria in 1975, is 15 that so? 16 DR. PEKKA SAUKKO: That's correct. 17 MR. MARK SANDLER: That you became a 18 registered physician in Finland in 1976 and commenced 19 training in forensic medicine that same year at the 20 Department of Forensic Medicine, University of Oulu in 21 Finland. 22 DR. PEKKA SAUKKO: That's correct. 23 MR. MARK SANDLER: Could you stop there 24 for a moment and -- and describe for the Commissioner how 25 it is that one comes to be certified as a specialist in

1 forensic pathology in Finland? 2 DR. PEKKA SAUKKO: Well, you -- 3 MR. MARK SANDLER: What does one have to 4 do? 5 DR. PEKKA SAUKKO: Yes. We have forensic 6 medicine, as it's called, specialty since -- as a main 7 specialty since 1955. And it's presently a five (5) year 8 training with a three and half (3 1/2) specific training 9 at the Department of Forensic Medicine, the minimum of 10 six (6) months at the Department of Histopathology, nine 11 (9) months general practice, and the rest in different 12 other specialties; internal medicine, surgery. 13 MR. MARK SANDLER: All right. And can 14 you advise the Commissioner how many forensic 15 pathologists there are in Finland, as compared to the 16 overall population? 17 DR. PEKKA SAUKKO: Well, the population 18 is 5. -- 5.3 million and we have approximately thirty 19 (30) forensic pathologists. 20 MR. MARK SANDLER: And we've heard about 21 concerns about insufficient numbers of forensic 22 pathologists in Canada, England and Wales. 23 Is -- is that a concern in Finland, as 24 well? 25 DR. PEKKA SAUKKO: Yeah, we have the same

1 problem. 2 MR. MARK SANDLER: All right. And I'm 3 going to ask you a little bit about how forensic 4 pathology is structured in Finland in a few moments, but 5 if we can simply go on with your curriculum vitae, we see 6 that in 1981 you were certified as a specialist in 7 forensic medicine by the National Board of Health in 8 Finland? 9 DR. PEKKA SAUKKO: That's correct. 10 MR. MARK SANDLER: In 1983, you were 11 awarded a doctorate in Medical Science and -- and you 12 delivered a thesis in Forensic Pathology at the 13 University of Oulu. 14 Is that right? 15 DR. PEKKA SAUKKO: Yes. 16 MR. MARK SANDLER: And in 1986, you were 17 appointed Adjunct Professor of Forensic Medicine of the 18 same university? 19 DR. PEKKA SAUKKO: That's correct. 20 MR. MARK SANDLER: From 1978 to 1989, 21 you've reflected that you were appointed Provincial 22 Medical Officer, Medicolegal Expert, Provincial 23 Government of Oulu, Department of Social Affairs and 24 Health. And just stopping there for a moment. 25 What is a provincial medical officer and

1 what role does he or she play in -- in the medicolegal 2 system? 3 DR. PEKKA SAUKKO: Provincial government, 4 firstly, is an office which represents the state and the 5 province. We have, at the moment, five (5) provinces, 6 and the provincial government has the responsibility to 7 organize the medical -- medicolegal work within its area. 8 And it employs one (1) or several specialists in forensic 9 medicine as medicolegal officers. And their main -- main 10 work is performing the medicolegal post-mortems, as well 11 as some other bureaucratic work. 12 MR. MARK SANDLER: Can you give the 13 Commissioner some sense of, on average, how many 14 medicolegal autopsies would be performed in Finland in 15 the course of a year? 16 DR. PEKKA SAUKKO: Well, there are around 17 fifty thousand (50,000) deaths in Finland per year, and 18 roughly about 24 percent of them are autopsied 19 medicolegally. 20 MR. MARK SANDLER: And can you give the 21 Commissioner some sense of the extent to which there are 22 autopsies being performed in criminally suspicious or 23 homicide cases, as a subset of those? 24 DR. PEKKA SAUKKO: Well, we have about a 25 hundred and sixty (160) homicides per year.

1 MR. MARK SANDLER: All right. And those 2 autopsies are distributed amongst the provincial medical 3 officers. 4 Does anyone else perform those criminally 5 suspicious or homicide autopsies? 6 DR. PEKKA SAUKKO: Yes, we have five (5) 7 medical schools and -- and four (4) chairs of forensic 8 medicine. And each department is -- has a contract with 9 the local provincial government to perform those 10 autopsies we need for training the specialist and 11 undergraduate teaching and research. 12 MR. MARK SANDLER: All right. 13 DR. PEKKA SAUKKO: So -- but it's, of 14 course, much less. The -- the main workload lies with 15 the forensic pathologist of the provincial government. 16 MR. MARK SANDLER: And can you describe 17 what the expected workload is in the performance of 18 autopsies in a year, in these cases, by a provincial 19 medical officer, and whether those expectations are 20 realistic on the ground. 21 DR. PEKKA SAUKKO: Well, they -- they 22 perform around -- between five (5) and seven hundred 23 (700) each, per year. 24 MR. MARK SANDLER: All right. And have 25 there been concerns expressed by you and others about the

1 extent to which those autopsies can adequately be 2 performed, having regard to those numbers? 3 DR. PEKKA SAUKKO: I've been talking 4 about that for fifteen/twenty (15/20) years, so far. 5 MR. MARK SANDLER: With any success? 6 DR. PEKKA SAUKKO: No, I'm afraid not. 7 MR. MARK SANDLER: All right. And then 8 we see in your curriculum vitae that you were appointed 9 Professor of Forensic Medicine at the University of 10 Tampere in Finland, and in 1992, appointed to your 11 current position as Professor of Forensic Medicine and 12 head of the Department of Forensic Medicine at the 13 University of Turku in Finland. 14 Is that right? 15 DR. PEKKA SAUKKO: That's correct. 16 MR. MARK SANDLER: And as you've 17 reflected here and in your curriculum vitae, you were 18 appointed a short-term visiting professor at various 19 departments around the world including in Tokyo, Japan; 20 including at various locations in China; including 21 Budapest in Hungary and has served as an external 22 examiner in Dublin and at the Royal College of Surgeons 23 in Ireland. 24 Is that right? 25 DR. PEKKA SAUKKO: That's correct.

1 MR. MARK SANDLER: Your curriculum vitae 2 also reflects that you're a founding member and currently 3 president of the European Council of Legal Medicine. 4 What is the European Council of Legal 5 Medicine? 6 DR. PEKKA SAUKKO: It's a professional 7 organization representing forensic pathology within the 8 European Union and European economic space. 9 MR. MARK SANDLER: All right. And then 10 we see that you've published widely in topics of forensic 11 medicine and pathology as an author and co-author in peer 12 reviewed scientific journals and international textbooks. 13 And -- and those include, probably most 14 prominently your role as coauthor in -- in Professor 15 Knight's Forensic Pathology 3rd Edition in 2004, is that 16 right? 17 DR. PEKKA SAUKKO: Well, I did the 3rd 18 Edition, but of course, the main credit goes to Professor 19 Knight. 20 MR. MARK SANDLER: All right. And -- and 21 we see that you're also a coauthor of the Atlas of 22 Forensic Medicine in 2003 and contributed as coeditor and 23 author to encyclopedias, such as the Encyclopedia of 24 Forensic Sciences, is that right? 25 DR. PEKKA SAUKKO: That's correct.

1 MR. MARK SANDLER: Since 1993, you've 2 been Editor in Chief of one (1) of the leading 3 international peered reviewed forensic journalist -- 4 journals, the Forensic Science International, and 5 editorial board member of a further six (6) national or 6 international scientific journals of forensic medicine or 7 science, is that right? 8 DR. PEKKA SAUKKO: That's correct. 9 MR. MARK SANDLER: Now, your curriculum 10 vitae is -- is now on the screen, which is at Tab 10 of 11 your materials. And I'm going to take you, just very 12 briefly, to the fact that at page 7 of your curriculum 13 vitae, we see listed some eighty-two (82) original 14 articles in the list of publications. 15 Is that right? 16 DR. PEKKA SAUKKO: Yeah, a few of the 17 last ones are -- are just -- I had to submit it on 18 manuscripts. 19 MR. MARK SANDLER: All right. And then 20 we see, as well, that at page 12 of your curriculum vitae 21 you've listed articles in textbooks, and there's some 22 thirty-three (33) of those? 23 DR. PEKKA SAUKKO: That's correct. 24 MR. MARK SANDLER: And then at page 15, a 25 list of publications -- review articles; there's another

1 long list of some eighty-three (83) of -- of those review 2 articles. 3 DR. PEKKA SAUKKO: That's correct. 4 MR. MARK SANDLER: And we also see that 5 under "Congress Abstracts and Lectures" you authored some 6 eighty-nine (89), or delivered some eighty-nine (89) of 7 those. 8 Is that right? 9 DR. PEKKA SAUKKO: Yes, some are 10 delivered by my collaborators. 11 MR. MARK SANDLER: All right. And 12 finally we see in the list of publications -- other 13 articles, and there's some fifteen (15) additional 14 articles that are listed there. 15 DR. PEKKA SAUKKO: That's correct. 16 MR. MARK SANDLER: And -- and you write 17 both in English and in Finnish, as I understand it. 18 DR. PEKKA SAUKKO: And German and 19 Swedish. 20 MR. MARK SANDLER: And German and 21 Swedish. I'll be asking you questions in each of those 22 languages in the course of the next day. I understand 23 this is actually the first time that you've testified in 24 English, is that right? 25 DR. PEKKA SAUKKO: That's correct.

1 MR. MARK SANDLER: Okay. Now, if we can 2 turn from the curriculum vitae, Professor Saukko, and I 3 just want to ask you organizationally, in -- in Finland, 4 would the forensic pathologists be more comparable to 5 operating within a Coronial System or within a Medical 6 Examiner System? 7 DR. PEKKA SAUKKO: It's more like -- like 8 Medical Examiner System. 9 MR. MARK SANDLER: So, for example, does 10 the forensic pathologist in Finland opine as to both 11 cause and manner of death? 12 DR. PEKKA SAUKKO: Yes, they do. 13 MR. MARK SANDLER: All right. And are 14 forensic pathologists, when they perform autopsies and 15 report on those results, the subject of peer review in 16 Finland? 17 DR. PEKKA SAUKKO: Unfortunately not. 18 MR. MARK SANDLER: And again, have you 19 spoken about that issue in Finland? 20 DR. PEKKA SAUKKO: I have. 21 MR. MARK SANDLER: With any success? 22 DR. PEKKA SAUKKO: Not so far. 23 MR. MARK SANDLER: Okay. One (1) of the 24 things that you've done is that you authored, at the -- 25 at the instance of the government, a work evaluating the

1 medicolegal system in -- in Finland, is that right? 2 DR. PEKKA SAUKKO: Yes, I did, ten (10) - 3 - ten (10) years ago. 4 MR. MARK SANDLER: Okay. And it may be 5 that we'll have some questions directed to that topic 6 when we deal with some of the systemic issues a little 7 bit later on. If I can turn then back to Professor 8 Whitwell. 9 And, Commissioner, what we intend to now 10 do is review the cases that were the subject of -- of 11 their review and I intend today to deal, time permitting, 12 with three (3) of Professor Whitwell's cases and then two 13 (2), or as much of the two (2) cases, of Professor Saukko 14 as we get to and then complete Professor Whitwell's 15 remaining two (2) cases tomorrow morning, if we may. 16 So we're going to turn to the -- the Amber 17 case, if -- if we may. And, Dr. Whitwell, I'll take you 18 to Volume I of your materials. 19 20 (BRIEF PAUSE) 21 22 MR. MARK SANDLER: Now, Professor 23 Whitwell, if you would go with me to Tab 7 of your Volume 24 I binder; this is PFP143724. And this is the Amber 25 overview report, and if we can go to page 3 of the

1 overview report, we see that Amber was born in Timmins, 2 Ontario on March 13th, 1987. 3 She died on July 30th, 1988 at the age of 4 sixteen (16) months at the Hospital for Sick Children in 5 Toronto. Criminal proceedings were initiated against her 6 twelve (12) year old babysitter, SM, who was charged with 7 manslaughter. 8 The trial commenced on October 15th, 1989. 9 It extended over some thirty (30) hearing dates over the 10 next thirteen (13) months and ultimately concluded in 11 November of 1990. And in 1991, Mr. Justice Dunn 12 acquitted SM of the charge which he faced. 13 And as I understand it, as part of the 14 Chief Coroner's Review, you were assigned to be the 15 primary reviewer for this case, is that right? 16 DR. HELEN WHITWELL: Yes, that's correct. 17 MR. MARK SANDLER: And if I can take you 18 to your medicolegal report, which is contained at Tab 5 19 of the materials, PFP300000. You set out, and this will 20 be a familiar pattern to -- to the parties here and to 21 the Commissioner in -- in how we proceed, and in the 22 format of these medicolegal reports. 23 At pages 2 and 3 of the medicolegal 24 report, you've outlined the materials which you reviewed 25 to enable you to -- to express your opinions in this

1 case? 2 DR. HELEN WHITWELL: That's correct. 3 MR. MARK SANDLER: And the history and 4 background, including the history that was provided by 5 SM, the caregiver, is reproduced, as I understand it, at 6 pages 3 and following of your medicolegal report. 7 Could you simply outline for the 8 Commissioner what the history and background of this case 9 was as you understand it? 10 DR. HELEN WHITWELL: The history was that 11 on July 28th, 1988, the deceased Amber was sixteen (16) 12 months of age, and she was being babysat by a caregiver 13 during the day. At around 3:15 p.m. Amber woke up; the 14 babysitter picked her up, taking her out of her cot and 15 changing her. 16 Subsequently, she started to walk towards 17 the steps which led to the main floor of the building -- 18 the house was a split level revid -- residence -- with 19 Amber held by the hand. 20 Amber tripped, losing her grip of the 21 babysitter and tumbled down five (5) sets of stairs onto 22 the floor. The babysitter was uncertain as to whether or 23 not Amber hit her head on the stairs, but describes the 24 child's head hitting the floor a couple of times. 25 Following this, the babysitter went to get

1 Amber. She was gasping for breath, moaning and looking 2 sleepy. She attempted to wake her by putting water over 3 her and then called the mother of Amber. 4 By this time, the baby had stopped moaning 5 and both her mother and the babysitter took her to 6 hospital, initially by a cab. However, they were 7 concerned that she was hardly breathing, so an ambulance 8 was subsequently called. 9 A plan diagram of the scene was 10 incorporated into the police investigation file. This 11 diagram illustrates the length of the approximate fall 12 being one hundred and fifty-five (155) centimetres. 13 Measurements were also given as to the 14 height and width of the stairs. At the base of the 15 stairs, towards the kitchen, was a cushioned floor. 16 Amber was taken to St. Mary's General Hospital. 17 At the hospital, due to concerns of raised 18 intercranial pressure, Dr. Sullivan, a general surgeon 19 and a top burr hole exploration -- 20 MR. MARK SANDLER: Now just stopping 21 there for a moment, what is burr hole exploration? 22 DR. HELEN WHITWELL: It's a -- in simple 23 terms, drilling a hole in the skull to relieve pressure; 24 in particular, for any blood clot that might be there. 25 MR. MARK SANDLER: All right.

1 DR. HELEN WHITWELL: Left sided subdural 2 hematoma and cerebral contusion were identified. Amber 3 was taken to the Hospital for Sick Children in Toronto 4 later on that evening. She underwent a CT scan which 5 indicated a left parietal occipital subdural hematoma. 6 At approximately 11:00 p.m on the 28th of July, she 7 underwent neurosurgery with a craneotomy and evacuation 8 of the hematoma. 9 Following this, the medical staff raised 10 questions about whether or not the injuries could have 11 been caused by a fall. The suspicion of child abuse was 12 raised by the SCAN Team. Dr. Driver, a member of that 13 team and pediatrician, became involved. 14 Amber's condition deteriorated with no 15 brain stem reflexes and no spontaneous respiration. She 16 was subsequently taken off the ventilator at 11:10 a.m. 17 on July 30th, 1988. Following this, the doctors at the 18 Hospital for Sick Children understood an autopsy would be 19 performed. 20 Dr. Driver was of the opinion that the 21 injuries were due to non-accidental injury likely to be 22 whiplash. However, as result of police interviewing the 23 babysitter and according to Dr. Driver, they were 24 satisfied that the injuries were accidental. 25 The death was reported to the coroner, Dr.

1 Ouchterlony. He did not wish an autopsy to be performed. 2 The doctors at the Hospital for Six Chil -- Sick Children 3 met around the 9th of August 1988 having been informed of 4 no autopsy examination. 5 Following this, Dr. Smith approached the 6 Chief Coroner in order to discuss an exhumation, and the 7 post-mortem examination took place following exhumation 8 on the 19th of August, 1988. The babysitter was 9 subsequently charged with manslaughter and stood trial in 10 the early part of 1990, and she was acquitted at trial. 11 MR. MARK SANDLER: Now, the history and 12 background, as you understand it, includes the fact that 13 there appeared to be an issue that arose between the 14 coroner, Dr. Ouchterlony, and Hospital for Sick Children 15 clinicians, as well as Dr. Smith, concerning whether an 16 autopsy was to be performed in this case, and you recall 17 that, I take it? 18 DR. HELEN WHITWELL: Yes. 19 MR. MARK SANDLER: And the coroner 20 apparently did not see a need, initially, for the 21 autopsy. The Hospital for Sick Children medical 22 personnel disagreed. Should an autopsy have been 23 performed prior to burial in this case? 24 DR. HELEN WHITWELL: Yes. 25 MR. MARK SANDLER: And why?

1 DR. HELEN WHITWELL: There was a history 2 of trauma. It would be important to examine the infant 3 to see what injuries there were and to look at the 4 history to see how that fitted in with the history. It 5 would also be important to look for natural disease, for 6 example, and other signs of injury apart from the head 7 injury. 8 MR. MARK SANDLER: Okay. So if we can 9 then turn to the fact that we know that Dr. Smith 10 performed the autopsy on Amber after exhumation, and the 11 report of post-mortem examination in summarized in the 12 overview report back at Tab 7, 143724 at page 22. 13 And paragraph 60 of the overview report 14 reflects the summary of abnormal findings that Dr. Smith 15 listed in his report of post-mortem examination. 16 And they include head injury with subdural 17 hemorrhage, retinol hemorrhages bilateral, optic nerve 18 hemorrhage, cerebral edema, and transtentorial 19 herniation; transcalvarial herniation with cortical 20 petechial hemorrhages, multiple tonsillar herniation, and 21 hypoxic ischemic encephalopathy, severe/acute, and status 22 post evacuation of subdural hemorrhages. 23 There's some reference -- the Commissioner 24 is well aware of the meaning of the various terms that 25 are described -- largely described there.

1 There is reference to herniation at 1.5, 2 1.6, and 1.7. Could you simply explain what -- what's 3 going on there as reflected in the abnormal findings? 4 DR. HELEN WHITWELL: Basically, the brain 5 was severely swollen and what happens is when a brain 6 swells, various parts of the brain move within the skull 7 cavity and become compressed. So the brain is pushed 8 down, and parts of the brain go across -- go below 9 various membranes and that includes the tentorium. 10 And also what happens is the tonsils of 11 the cerebellum, which is the back part of the brain, 12 become pushed down into the opening to the spinal column. 13 MR. MARK SANDLER: Okay. 14 DR. HELEN WHITWELL: In addition -- and 15 it happens if there's surgery, the brain also expands 16 through the surgical opening, as is trans -- 17 transcalvarial. 18 MR. MARK SANDLER: All right. And at 19 paragraph 61, there's a reference to a number of areas of 20 contusion of the skin. And -- and do any of these become 21 significant later on in the formation of your opinion and 22 the opinion of others? 23 DR. HELEN WHITWELL: Yes, they do. 24 MR. MARK SANDLER: All right. We see a 25 reference in Item A, to a reddish-brown bruise on the

1 forehead to the right of centre. 2 DR. HELEN WHITWELL: Yes. 3 MR. MARK SANDLER: And we see in Item E, 4 he describes a reddish-brown bruise on the frontal scalp, 5 which corresponded to the forehead bruise. 6 DR. HELEN WHITWELL: Yes. 7 MR. MARK SANDLER: And we also see 8 references, Item B, to what appeared to be an older 9 bruise on the right cheek, a brown coloured bruise on the 10 left rear hip, and various small contusions of various 11 colours on both legs. 12 Is that right? 13 DR. HELEN WHITWELL: Yes, that's correct. 14 MR. MARK SANDLER: Now, the references 15 made to the subdural hemorrhage in -- in 1.1, did you 16 have occasion to determine whether the subdural 17 hemorrhage was unilateral or bilateral? 18 DR. HELEN WHITWELL: My understanding 19 from, in particular, the medical information was that it 20 was a unilateral subdural hemorrhage on the left side. 21 MR. MARK SANDLER: Now if we might just 22 look -- we've looked at the abd -- abnormal findings as 23 described by Dr. Smith, and if I can go back -- and I'll 24 be flipping back and forth to your medicolegal report -- 25 your medicolegal report at Tab 5.

1 At page 6 of the medicolegal report at 2 300000, under Autopsy Report you've reflected that this 3 is detailed with a summary; no separate opinion is 4 included. There are discrepancies between the autopsy 5 report and the photographs. 6 Could you simply describe what the 7 discrepancies were as you saw them from your examination. 8 DR. HELEN WHITWELL: Yes, there appeared 9 to be a bruise in the central upper back. That wasn't 10 described. And then, also, there was an area of 11 reddering -- reddening, possibly bruising, over the right 12 frontal region which wasn't described. It was in a 13 separate area to the bruise described by Dr. Smith. 14 MR. MARK SANDLER: Okay. Now if we can 15 take you back to the overview report, page 28, paragraph 16 78 -- do you have that? 17 DR. HELEN WHITWELL: I do, yes. 18 MR. MARK SANDLER: It reflects that: 19 "Following the autopsy, the officer 20 spoke to Dr. Smith. According to 21 Sergeant Kalcic, Dr. Smith stated that 22 he felt strongly at this point, that 23 the baby died from the Shaking 24 Syndrome, but he had further tests to 25 do on the brain and that would take

1 approximately one (1) month to do. 2 Until such time as all the rest of the 3 tests are in, we will not know for sure 4 what the cause of death is. 5 He told the police officers that in his 6 opinion, there was no way a fall like 7 that described, could cause Amber's 8 death. According to Sergeant Kalcic, 9 Dr. Smith said that he would not 10 hesitate to go to court at that time to 11 state that the baby died from the 12 Shaking Syndrome. However, Dr. Smith 13 said that until all test results were 14 available, he would not know for sure 15 what the cause of death was." 16 Now, we'll get into the reasons in some 17 detail shortly, but if this accurately reflects what Dr. 18 Smith communicated to the officers, do you agree with the 19 opinion that is expressed therein? 20 DR. HELEN WHITWELL: No. 21 MR. MARK SANDLER: All right. Do you 22 agree with the opinion that the cause of death in this 23 case can be attributed to a shaking? 24 DR. HELEN WHITWELL: No, that would not 25 be my opinion, no.

1 MR. MARK SANDLER: And do you agree that 2 the history as described, and which you outlined earlier 3 in your medicolegal report could not account for Amber's 4 death? 5 DR. HELEN WHITWELL: No, I don't. 6 MR. MARK SANDLER: All right. Now just 7 stopping there for a moment. 8 The Commissioner's already heard som -- 9 something about the Amber case in -- in the course of 10 previous testimony. We know that there's a controversy 11 surrounding the Shaken Baby Syndrome and I'm going to be 12 asking you a little bit about where the controversy 13 stands at -- at present. 14 But going back here, there are proponents 15 within the forensic pathology community, and certainly 16 were back -- back then that held stronger views as to the 17 existence of the Shaken Baby Syndrome and the triad as 18 diagnostic of Shaken Baby Syndrome. 19 Am I right? 20 DR. HELEN WHITWELL: Oh, that's correct, 21 yes. 22 MR. MARK SANDLER: And that remains an 23 ongoing controversy in the forensic pathology community 24 even today, does it not? 25 DR. HELEN WHITWELL: Well, probably not

1 in a forensic pathology community; it -- it remains 2 probably more of an issue in the pediatric community. 3 MR. MARK SANDLER: All right. And -- and 4 you'll have an opportunity to expand upon that in -- in a 5 few moments, but just from the perspective, as you see 6 it, of -- of those who -- who believed in the triad as 7 diagnostic of Shaken Baby Syndrome, was this a Shaken 8 Baby case? 9 DR. HELEN WHITWELL: No, this was an 10 impact case. 11 MR. MARK SANDLER: And -- and why do you 12 say that? 13 DR. HELEN WHITWELL: There was evidence 14 of bruising, the subdural haematoma was predominantly 15 unilateral and impact is the commonest cause of those 16 findings -- it is a cause of those findings, I should 17 say. 18 MR. MARK SANDLER: And what about the age 19 of the child, where does that figure into your analysis 20 of this case? 21 DR. HELEN WHITWELL: Well, the age of the 22 child is sixteen (16) months and in virtually all 23 children or infants at that age there is evidence of 24 impact with those findings. It's only in the -- it's to 25 -- it's in the young infants, up to two (2) or three (3)

1 months old where there may be no evidence of impact, but 2 the vast majority of these cases have evidence of impact. 3 MR. MARK SANDLER: All right. So here 4 you've got evidence -- evidence of impact, a unilateral 5 subdural hematoma and the age of the child, which is 6 significantly older than -- than some of the classic 7 cases of Shaken Baby Syndrome. 8 DR. HELEN WHITWELL: Yes, it -- it's an 9 older infant. 10 MR. MARK SANDLER: All right. So -- so 11 the real issue as far as -- as you're concerned in 12 connection with this case would have been what; whether 13 the baby was shaken or whether the -- 14 DR. HELEN WHITWELL: No, he real issue 15 would have been is what the history available -- the 16 history available and the -- the findings in keeping with 17 the story of a fall down stairs. 18 MR. MARK SANDLER: All right. And I take 19 it that would go to the issue of whether or not the 20 trauma was accidental or non-accidental. 21 DR. HELEN WHITWELL: Correct. 22 MR. MARK SANDLER: If you look at 23 paragraph 79 of the overview report, Dr. Smith, when he 24 testified at trial, said that he undertook the autopsy in 25 order to find evidence supporting some natural disease or

1 malformation as to the cause of Amber's death. 2 He said he undertook it not to find 3 evidence to support a diagnosis of child abuse, but 4 rather: 5 "My thrust was to see if there was 6 anything by which we could walk away 7 from that diagnosis. And the result of 8 the examination was such that I have no 9 evidence whatsoever to suggest any 10 other process. 11 I was on a fishing expedition and I 12 must say, I think everyone concerned 13 felt very pessimistic about that 14 fishing expedition, including myself. 15 The Court: 16 "Before it was undertaken? 17 A: Before it was undertaken. I was 18 looking for anything that could explain 19 either some inter-cranial disaster, be 20 it a blood vessel which had burst, 21 aneurism, disease of blood vessels, be 22 it a disease of the brain of some sort, 23 an inflammation of the brain substance 24 itself, and so on; examples of a 25 natural disease process that could

1 explain Amber's course. And there were 2 no disease processes that were 3 present." 4 And then skipping down: 5 "Anything to explain why a young girl 6 would collapse suddenly and 7 unexpectedly, I must tell you that it 8 was my understanding that the kind of 9 disease processes that I was looking 10 for had largely, if not completely, 11 been ruled out by the previous medical 12 intervention, which underscores why I 13 think we were all rather pessimistic." 14 What I want to ask you is: Could you 15 comment upon the approach that preceded the autopsy 16 itself as described by Dr. Smith in his testimony? 17 Namely, could we find anything to discount abuse, though 18 we were approaching that task with pessimism? 19 DR. HELEN WHITWELL: Well, in my opinion 20 one has to look at all the evidence objectively and then 21 report on whatever those findings are in an objective 22 manner. 23 MR. MARK SANDLER: I'll ask you another 24 way, as well. 25 Did the clinical picture, as you

1 understand it here, prior to autopsy, justify presumptive 2 child abuse? 3 DR. HELEN WHITWELL: It didn't justify 4 calling it a Shaken Baby. It could potentially have, on 5 investigation. I think that the crucial thing with these 6 cases is to look at the history and then see if that is 7 adequate good explanation for the findings you've got. 8 MR. MARK SANDLER: All right. If we can 9 go to Dr. Smith's testimony at the trial -- and first 10 we'll go to page 33 of the overview report, paragraph 94. 11 And Dr. Smith is asked in the passage that's referred to 12 here about the history of the fall that had been provided 13 by SM. 14 And he testified that: 15 "Amber did not die from that fall. 16 There is no possibility whatsoever that 17 these stairs can be used to account for 18 Amber's death. So having told you 19 that, let me now tell you once again -- 20 and I can base that observation on 21 several things. 22 First, my own experience. If children 23 were to die from falling down those 24 kinds of stairs, then I would expect to 25 see them at post-mortem examination.

1 I've never autopsied an infant who has 2 fallen down such a shallow group of 3 stairs." 4 Then he goes on to note that -- on the 5 next page, page 34 at line 4: 6 "It's outside of the realm of my 7 experience or the experience of anyone 8 I have met." 9 And then at the end of that quote it says: 10 "If you were to see a significant head 11 injury, it would be associated with a 12 linear fracture of the skull. You 13 would expect a small non-displaced 14 linear fracture of the skull, which of 15 course we don't have here. And if the 16 force was sufficient to call skull 17 fracture -- to cause skull fracture, 18 you'd expect to have soft tissue 19 changes. 20 Meaning bruises? 21 And he's saying: 22 "Bruises. Bleeding into the area 23 around the fracture, as well. And we 24 don't have that here. So we have 25 nothing that matches Amber with a major

1 injury from these stairs. 2 Now you must understand I'm not saying 3 it was impossible that Amber fell down 4 those stairs or she was pushed down the 5 stairs, but if she fell down the stairs 6 or if she was pushed down the stairs, 7 that didn't kill her." 8 Your comments? 9 DR. HELEN WHITWELL: Well firstly, I -- I 10 don't agree with the premise that the findings are 11 completely inconsistent with the fall down stairs. There 12 is quite a lot of literature on falls, including falls 13 down stairs and low level falls, and deaths or severe 14 injuries can rarely -- can happen with such -- with such 15 falls and that is recognized. 16 MR. MARK SANDLER: All right. Now he 17 makes reference to his own experience and the experience 18 of others and as you recall, later in the piece Justice 19 Dunn is somewhat critical -- and I won't take you to the 20 passage right now -- but Justice Dunn is somewhat 21 critical of the fact that -- that you seem to have these 22 two (2) solitudes where the Hospital for Sick Children 23 clinicians and Dr. Smith who testified, said that in 24 their experience short falls don't kill. 25 And then you had a number of defence

1 experts who were testifying that were describing, based 2 upon their experience, and -- and available anecdotal 3 information, there were instances where household short 4 falls did kill. 5 Does that debate or controversy still 6 exist in forensic pathology, or -- or where is it at 7 right now? 8 DR. HELEN WHITWELL: In terms of the -- 9 whether or not a low level fall can kill, increasingly 10 there is literature to suggest that occasionally a low 11 level fall can kill, and this is based on both surveys 12 and also individual case reports. 13 MR. MARK SANDLER: All right. And -- 14 DR. HELEN WHITWELL: It's probably moved 15 on from -- of the '90's. 16 MR. MARK SANDLER: Okay. And moved on in 17 the sense that -- that there's -- there's more literature 18 or anecdotal information that -- that supports the 19 existence of these cases in which short falls do kill? 20 DR. HELEN WHITWELL: That's correct. 21 MR. MARK SANDLER: Now, does that take 22 away from -- well, let me ask you another way. One (1) 23 of the things that Dr. Pollanen said to us is that the 24 importance of anecdotal information -- credible anecdotal 25 information -- being presented isn't necessarily to

1 displace the notion that household falls do not normally 2 kill, but simply to displace the dogma that says that 3 household falls never kill. 4 And -- and do you agree with that 5 approach? 6 DR. HELEN WHITWELL: Yes, I do. I do 7 agree with that, yes. 8 MR. MARK SANDLER: And -- 9 COMMISSIONER STEPHEN GOUDGE: You maybe 10 are going to get into this, Mr. Sandler -- I am sure you 11 are -- but how would you have described where the debate 12 was in the mid '90s? You say the debate has moved on 13 since then. 14 MR. MARK SANDLER: You're prescient; that 15 was my next question. 16 COMMISSIONER STEPHEN GOUDGE: Sorry. 17 MR. MARK SANDLER: No, that's all right. 18 You asked it better than I would. 19 DR. HELEN WHITWELL: Well, in the late 20 '80s, early '90s, going back to the literature, it was 21 thought that in these cases, there was severe brain 22 damage. And that damage could not be caused by a low- 23 level fall. 24 Our knowledge of the type of brain damage 25 and the severity has -- has moved on from there. And

1 it's been identified in quite a number of these cases; 2 there isn't severe primary traumatic injury, but more 3 damage due to lack of oxygen and pressure on the brain. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Well, that's a -- 7 that's a good entre to -- to explaining what it is that 8 you and Dr. Geddes did because that relates directly to 9 your answer, doesn't it -- 10 DR. HELEN WHITWELL: It does, yes. 11 MR. MARK SANDLER: -- to the 12 Commissioner. So perhaps, we'll just pause in the Amber 13 narrative for a moment, and I'm going to take you back to 14 the Additional Documents Binder, Tab 2. And this is a -- 15 an item that you prepared for the English Court of 16 Appeal, which was hearing four (4) cases that had to do 17 with head injuries, is that right? 18 DR. HELEN WHITWELL: That's correct. 19 MR. MARK SANDLER: And -- and I don't 20 intend to take you through this paper which summarizes 21 some of the changing perspectives on infant head injury 22 that had evolved, but can you simply provide, at this 23 point, for the Commissioner, a -- a brief overview of 24 what it was that you and Dr. Geddes were looking at, what 25 had engaged your interest in it, what the state of

1 knowledge has been prior to your study, and where things 2 stood after your study? 3 DR. HELEN WHITWELL: The background was 4 that both Dr. Geddes and I had been doing a number of 5 cases of alleged child abuse or head injury in infants. 6 What we thought we would do at the time, which was the 7 mid '90s, was to re-look on a morphological -- that is 8 simply looking at the findings -- of the -- a number of 9 cases and reviewing them using a new stain called APP, 10 which had become in use in the early '90s in the 11 diagnosis of brain damage. 12 So it was within that background and it 13 was to do a -- a -- really a looksee study -- analysing 14 as much data as we could from the cases, which were 15 basically pulled from both of our cases; looking at the 16 histories, the background, the presence of other 17 injuries, the presence of skull fractures, the presence 18 of bruises, and then looking at the brains to see if we 19 could look at the pattern of brain injury in the cases. 20 MR. MARK SANDLER: All right. And what 21 was the conventional wisdom about axonal injury before 22 your study and how, if at all, did your study change the 23 conventional wisdom? 24 DR. HELEN WHITWELL: Well, the 25 conventional wisdom, based on, essentially, two (2)

1 papers, which got into the textbooks in the late '80s and 2 '90s, was the type of brain injury you saw in the so- 3 called 'shaken baby cases', and I've put that term in 4 inverted commas. 5 It was the sort of damage that you saw 6 that had been described in severe road traffic collisions 7 and falls from a significant height. And this is known 8 as diffuse axonal injury, and essentially, in simple 9 terms, it means that the axons throughout the brain are 10 damaged. 11 So in the hemispheres of the brain, in the 12 cerebellum, which starts at the bottom of the brain and 13 the brain stem, and this was thought to be the 14 pathological findings in the so-called shaken baby cases. 15 MR. MARK SANDLER: All right. And -- 16 COMMISSIONER STEPHEN GOUDGE: And what 17 prevents as the histological finding on trauma cases, car 18 accident cases, that's what one sees when one looks at 19 slides of the brain tissue? 20 DR. HELEN WHITWELL: It is, yes. Yes. 21 And much of that work was done in the '70's and 80's -- 22 COMMISSIONER STEPHEN GOUDGE: I see. 23 DR. HELEN WHITWELL: -- looking at 24 collections of brains, and particularly from Glasgow -- 25 COMMISSIONER STEPHEN GOUDGE: Yes.

1 DR. HELEN WHITWELL: -- and identifying 2 this diffuse axonal injury. 3 COMMISSIONER STEPHEN GOUDGE: What do the 4 axons do in the brain, describe -- 5 DR. HELEN WHITWELL: They -- they're 6 essentially the telegraph wires that go from a nerve cell 7 in the brain through the brain substance and then out to 8 provide the various bodily functions, so they're -- 9 they're a bit like telegraph wires or telephone lines. 10 COMMISSIONER STEPHEN GOUDGE: And when 11 one sees diffuse injury to the axons, what does one 12 actually see; that these are disrupted in some fashion? 13 DR. HELEN WHITWELL: Yes, you see that 14 with the older stains which were based on silver, you -- 15 you could see swellings or axonal swellings and disrupted 16 axons, and it's similar with the -- the newer stain, as 17 well. 18 COMMISSIONER STEPHEN GOUDGE: And you 19 would see them throughout the brain if you had, for 20 example, brain damage from a serious car accident. 21 DR. HELEN WHITWELL: There is a 22 correlation between the degree of force and the severity 23 of the injury. So, for example, also in the mid '90's 24 what happened -- there -- there is a very good paper from 25 Australia which illustrated cases where somebody had been

1 knocked out for a relatively short time and then they 2 died of something else, and in fact, those cases showed 3 damaged axons in just a very small part of the brain. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 DR. HELEN WHITWELL: So, for example, if 6 you were knocked out for twenty (20) minutes or a period 7 of time and then -- then you -- you died later of 8 something else, you -- you could pick up minor axonal 9 injuries, so it's probable that there's a spectrum from 10 minor injury to the very severe in -- injuries seen in 11 road traffic collisions or significant falls. 12 COMMISSIONER STEPHEN GOUDGE: And the 13 spectrum would describe the extent of the axon injuries 14 throughout the brain. 15 DR. HELEN WHITWELL: Yes, throughout -- 16 COMMISSIONER STEPHEN GOUDGE: The greater 17 the force, the more damage you receive throughout the -- 18 DR. HELEN WHITWELL: That's a general 19 proposition, yes, it is, yes, that's correct. 20 COMMISSIONER STEPHEN GOUDGE: Thanks. 21 Sorry, Mr. Sandler. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: So -- so as a result 25 of the more sophisticated staining and as a result of

1 your examination of the cases that you've described for 2 the Commissioner, how, if at all, was the conventional 3 wisdom changed? 4 DR. HELEN WHITWELL: Well, essentially, 5 what we identified in -- in the cases was that the main 6 type of brain injury was not actually due to trauma, but 7 due to lack of oxygen and -- and blood getting to the 8 brain. 9 In fairness, the walls are -- the walls 10 are spectrum, so some showed minor evidence of trauma, 11 but those which showed trauma at the severe end of the 12 spectrum had significant impact usually with multiple 13 bruises and multiple fractures. 14 But in the majority, the -- the pathology 15 was that of lack of blood stroke oxygen getting to the 16 brain, rather than significant trauma. 17 COMMISSIONER STEPHEN GOUDGE: When you 18 talk about significant trauma, that's equated to axon 19 damage. 20 DR. HELEN WHITWELL: It is, as a result 21 of trauma directly on the axons, yeah. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 MR. MARK SANDLER: Okay. 24 COMMISSIONER STEPHEN GOUDGE: Lack of 25 oxygen getting to the brain; what does it do to the

1 axons? 2 DR. HELEN WHITWELL: That produces a 3 slightly different pattern of staining. What that does, 4 a -- the nerve cells die because they don't get the 5 oxygen, and then as a result of brain swelling, you get a 6 different pattern of damage to -- to the axons. 7 COMMISSIONER STEPHEN GOUDGE: So as 8 opposed to the telegraph lines between the cells being 9 damaged, the cells themselves die. 10 DR. HELEN WHITWELL: That's correct, 11 yeah. Yes. 12 COMMISSIONER STEPHEN GOUDGE: 13 Interesting. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: So applying that to -- 17 to the very difficult cases that -- that we're dealing 18 with here, we see, for example, that Dr. Smith in the 19 Amber case was describing what he regarded as the 20 tremendous amount, whether a motor vehicle accident, or a 21 fall from a high story, that would have to have been 22 engaged before -- before a child would die. 23 And -- and how, if at all, in your view, 24 did the study on the presence or absence of diffuse 25 axonal injury, impact upon those kinds of opinions?

1 DR. HELEN WHITWELL: Well to get that 2 very severe, primary traumatic damage, diffuse axonal 3 injury, it -- it was understood to be a significant fall 4 from a height. And in fairness, that was the thesis 5 generally, and that had got into the literature. 6 In fact, it's interesting, after the brain 7 papers we subsequently reviewed, some of the original 8 cases from the '80s, which had been diagnosed as diffuse 9 axonal injury, and they -- they actually now wouldn't 10 fulfill the criteria of diffuse axonal injury. Partly, 11 in some of the cases, there wasn't sufficient blocks of 12 the brain to actually say that the whole brain was 13 involved. 14 MR. MARK SANDLER: All right. So, now 15 you correct me if I'm wrong, but just trying to convert 16 this in -- in lay terms. What I hear you saying is that 17 once it's recognized that there's -- there isn't the same 18 association between diffuse axonal injury and the cases 19 under consideration that imp -- that affects the opinions 20 being expressed as to the amount of force that would be 21 needed in order to produce the kind of pathology that 22 we're seeing in these contentious cases. 23 DR. HELEN WHITWELL: That's correct. 24 MR. MARK SANDLER: So for example, the 25 opinions that were being expressed conventionally, that

1 said, that in order to produce the pathology in the so- 2 called Shaken Baby cases, you'd have to apply force 3 equivalent to dropping someone from a -- from a couple of 4 stories of a building or equivalent to the kind of trauma 5 in a traffic accident, would no longer be supported by 6 the science. 7 DR. HELEN WHITWELL: That's correct. In 8 -- in fact, particularly so in the younger age group, the 9 infant age group, where not infrequently, there may not 10 be much in the way of objective evidence of trauma. 11 MR. MARK SANDLER: Okay. Now the related 12 issue that comes up is, that we see in some of the 13 histories described in these cases, a history of -- of a 14 fall as explanatory for what transpired. But in some of 15 the cases, we also see a history that alleges that -- 16 that the child became unresponsive all of a sudden and 17 the caregiver or the parent, shook the child, sometimes 18 gently, in order to try to revive the child. 19 How, if at all, did your study impact upon 20 how those histories would have to be regarded? 21 DR. HELEN WHITWELL: Well, it -- in those 22 histories, which generally affect the younger infant 23 group, not -- not the older child as in this case, what 24 the findings of the brains showed was as I've said, not 25 primary severe traumatic injury, but damage due to lack

1 of blood stroke oxygen getting to the brain. 2 In some of those cases in the young 3 infants, there was a -- a specific focal injury. That's 4 means just a small area of injury in the -- in the brain 5 stem. In the craniocervical region, raising the 6 possibility that somehow that may have been damaged in a 7 stretch mechanism causing lack of blood stroke oxygen 8 getting to the brain. Sometimes only a few nerve fibres 9 were damaged. 10 So based on the pathology it -- it raised 11 the issue of how much actual force is required to damage 12 that area of the brain. 13 MR. MARK SANDLER: All right. So against 14 that background, we're gonna go back to the Amber case, 15 if we -- if we may, which is Volume I of your materials 16 at Tab 7. 17 And I was just asking you about Dr. 18 Smith's testimony at a -- at page 34. 19 DR. HELEN WHITWELL: Yes. 20 MR. MARK SANDLER: And you recall that 21 one of the features of the testimony that -- that I had 22 read out to you at page 34 was that after Dr. Smith 23 indicated that -- that fatal fall down stairs did not 24 accord with either his experience or the experience of 25 others who he had met.

1 He also said that number 2 -- and this is 2 the middle of the first paragraph: 3 "Let's think about what we would see in 4 a fall down stairs at post-mortem 5 examination." 6 And he said: 7 "If you were to see a significant head 8 injury, it would be associated with a 9 linear fracture of the skull. You'd 10 expect a small, non-displaced linear 11 fracture of the skull, which, of 12 course, we don't have here. If the 13 force was sufficient to cause skull 14 fracture, you'd expect to have soft 15 tissue changes." 16 I'm just interested in -- in taking that 17 portion for a moment and comparing it to another feature 18 of Dr. Smith's testimony and what the judge said about 19 it. So if you'd -- if you'd go with me to paragraph 99 20 of the overview report, which is at page 38. We see that 21 Dr. Smith said in this portion of the transcript: 22 "That a significant blunt trauma to 23 Amber's head should have left more 24 evidence than he saw at autopsy." 25 "Q: [And this is Mr. Renault cross-

1 examining] So is it fair for me to 2 characterize your evidence if, in fact, 3 there was a linear fracture that you 4 missed..." 5 And you'll recall there was an issue as 6 between the defence experts and Dr. Smith as to whether 7 there indeed was a linear fracture. 8 DR. HELEN WHITWELL: Mm-hm, yes. 9 MR. MARK SANDLER: So he says: 10 "If, in fact, there was a linear 11 fracture that you missed then the fall 12 might well have caused the fatal 13 injuries. 14 A: If there was a linear fracture that 15 would point to the possibility that the 16 fall was a much greater force than I 17 would have expected based on the 18 stairways, I still can't say that the 19 fall would be sufficient to kill her, 20 though. 21 Q: All right, what you're telling the 22 court is if the court makes a finding 23 of fact that, indeed, you missed a 24 linear fracture, you maintain the 25 opinion that that still would not be

1 sufficient to bring about fatal 2 injuries? 3 A: Based upon the stairway I've seen, 4 that's correct. 5 Q: But the fact of the linear fracture, 6 would that not indicate that, indeed, 7 you misapprehended the extent of the 8 forces generated in the fall? 9 A: If I missed a linear fracture, sir, 10 I would be extremely embarrassed by 11 that." 12 Q: I'm not concerned about your 13 embarrassment, Doctor. I'm concerned 14 about my client. Are you telling us 15 that if, indeed, you missed the linear 16 fracture, the injuries are still 17 insufficient to bring about death? 18 A: Yes, sir." 19 And we see at page 84 of the overview 20 report that the judge commented upon this aspect of Dr. 21 Smith's testimony at paragraph 223. And, Commissioner, 22 you'll recall this is -- this is one (1) of the sixteen 23 (16) points that the -- that Justice Dunn cited in his 24 judgment. 25 And this is the second item, and it says:

1 "Dr. Smith's definition of the aspects 2 of Shaken Baby Syndrome continually 3 changed." 4 And the Judge says: 5 "Dr. Smith went so far as to say even 6 if he found a linear fracture, he still 7 would have said that Amber died from 8 shaking. That is an inconsistent 9 statement in the opinion of Dr. Rorke. 10 What she meant is once there's clinical 11 evidence of impact, that removes the 12 case from the pure Shaking Infant 13 Syndrome. Perhaps the problem is as 14 Dr. Gilles said, Dr. Smith's definition 15 of the aspects of the shaking keeps 16 changing." 17 Is that a fair criticism of Dr. Smith's 18 opinions as expressed in the passages that I read? 19 DR. HELEN WHITWELL: Yes, it is, 20 absolutely. I mean, if there was a skull fracture there, 21 skull fracture is definite evidence of impact. You 22 cannot get a skull fracture from shaking alone. 23 MR. MARK SANDLER: Okay. And then if -- 24 if I can go back in -- in the overview report to page 35. 25 And I apologize that I'm -- I'm moving you about. And

1 this is in the middle of paragraph 96. And you'll see 2 it's starts with the words "Dr. Smith": 3 "...you are telling that based on your 4 experience and knowledge of literature 5 including the reference of Dr. 6 Leetsma's publication that you were so 7 pleased to quote to us..." 8 It sounds like the proceedings go a little 9 chippy. 10 "...the suggestion that the fall could 11 bring about veinous bleeding which 12 could bring about, eventually, subdural 13 hemorrhaging, subdural hematoma on the 14 left side, raised inter-cranial 15 pressure, and ultimately, death is 16 unfounded. 17 A: I cannot accept that. 18 Can you tell us why it's impossible why 19 there would be veinous bleeding as a 20 result of a fall? Why can't a vein be 21 torn during a fall? 22 A vein can be torn during a fall. 23 And is it not correct that a vein that 24 is torn during a fall may continue to 25 bleed until the bleeding is abated?"

1 A: An open vessel will continue to 2 bleed until there's no more reason for 3 it to do so. 4 Does that mean that it will until it's 5 abated or it runs out of blood? 6 Well, those are two (2) different 7 possibilities. 8 Are there any other possibilities, 9 Doctor?" 10 No, I can't think of any." 11 Going back to Dr. Drake at page 284 when 12 he says: 13 "No, it was just a very large hematoma 14 and very extensive. 15 Are you telling me that a large and 16 extensive -- very large and very 17 extensive hematoma may not be brought 18 about by a torn vein? 19 I didn't say that, sir. It can be 20 brought about by torn blood vessels. 21 And a torn blood vessel may be the 22 result of a fall, am I correct? 23 That's right, even a fall as I've 24 described. I can't accept that. 25 Q: Based on what?

1 A: Based on my experience; based on the 2 literature. 3 What comment would you make about this 4 testimony? 5 DR. HELEN WHITWELL: Well, it's -- it's 6 very confusing to me because it seems to go in a circular 7 argument and then it ends up with, "again, based on my 8 experience and based on the literature", which is not my 9 -- my view. 10 A fall can produce tearing of the bridging 11 -- a bridging vein to produce an acute subdural hematoma. 12 MR. MARK SANDLER: Okay. If you go to 13 page 39 of the overview report, paragraph 101, Dr. Smith 14 testified that his own personal experience as a father 15 also suggested to him that short domestic falls -- I'm 16 sorry, do you have that page -- 17 DR. HELEN WHITWELL: Yes. 18 MR. MARK SANDLER: -- 39 -- 19 DR. HELEN WHITWELL: Yes, I do. Yes. 20 MR. MARK SANDLER: -- 101 -- that short 21 domestic falls do not kill children. And here's the 22 quote: 23 "I happen to be a father of a young 24 girl and a young boy. I know what it's 25 like to watch my kids fall down stairs.

1 I know what it's like to see them jump 2 from a high landing point onto the 3 stairs and tumble down. And my wife, 4 who is also a physician and coroner, 5 has done the same, and what it requires 6 after one (1) of these unfortunate 7 events occurs, is a little cuddling, a 8 little loving, kissing, whatever part 9 of my son or daughter's body may have 10 been injured; looking for a bruise 11 which may show up with time or swelling 12 which may occur, but usually doesn't. 13 And then after some moments of parental 14 comfort and encouragement, watching my 15 son or daughter walk off and continue 16 their normal activities. My children 17 have fallen down and bounced -- 18 unfortunately bounced down more steps 19 than those -- and they're still happy 20 and healthy children, and that's 21 personal. You can discard it if you 22 want." 23 What do you say as to whether or not that 24 testimony supports the diagnosis? 25 DR. HELEN WHITWELL: Well, it's

1 unscientific. I'm not actually quite certain because I 2 don't know the legal system here, but I suspect in 3 England that testimony wouldn't have been allowed. 4 MR. MARK SANDLER: All right. I mean, is 5 -- is there a fallacy in that in saying that be -- 6 because his children didn't die in a -- in a fall that 7 that means that children can't die in a fall? 8 DR. HELEN WHITWELL: Well, it's just 9 completely incorrect and it's unscientific. 10 MR. MARK SANDLER: Now, you -- you've 11 raised an interesting point and -- and you've said that 12 in your legal system, you would expect that these words 13 wouldn't have gotten out of your -- your mouth without 14 objection, and -- and I take it you're making the point 15 that there's a certain obligation on the part of the -- 16 of the parties to -- to address evidence that doesn't 17 fall within the expertise of -- of the testifying 18 witness. 19 DR. HELEN WHITWELL: Yes, sir -- yes, 20 sir, there -- there is. That, in fairness, has probably 21 changed over the last fifteen (15) to twenty (20) years, 22 but certainly now, if not defence counsel, I -- I'm not 23 certain a judge would have allowed that evidence to be 24 given. 25 MR. MARK SANDLER: All right. If you go

1 to page 41 of the testimony -- 2 DR. HELEN WHITWELL: In fact, I'm sure, 3 actually, now a defence lawyer would leap up and -- and 4 say, You know, that is not scientific evidence; it's 5 personal tales. 6 MR. MARK SANDLER: All right. And then 7 if you go to page 41 of the overview report at paragraph 8 105, Dr. Smith testified as a forensic pathologist: 9 "He could go beyond simply responding 10 to the pure pathology evidence. 11 Instead, he offered to assist the Trial 12 Judge by trying to put together a 13 series of events that allows the court 14 to come to a reasonable conclusion. In 15 so doing, Dr. Smith set out what the 16 literature says is a typical 17 Shaken/Whiplash Syndrom situation." 18 And then he goes on to say -- and I'll 19 look at the last answer near the bottom of the page: 20 "Some people say a child starts at one 21 (1) year of age and some at two (2) 22 years of age. Certainly the imprint is 23 the age range we're talking about. 24 It's often that the literature would 25 tell us usually under six (6) months of

1 age, but it's certainly not a 2 restricted definition. 3 Both in the literature and from my own 4 experience, when an infant up to two 5 (2) years of age who may have been 6 abused in the past, if the person who 7 inflicts the shaken/whiplash injury has 8 -- is a chronic abuser -- I think I've 9 used this term in court -- a kid who 10 had no other evidence of injury, and 11 this child may be normal -- they may be 12 a little irritable, they may be crying 13 uncontrollably -- you have the 14 caregiver -- and the caregiver in my 15 experience has never been the mother, 16 has never been the father -- but when I 17 say father I mean the biological father 18 in the scenario of the marriage." 19 And the court says: 20 "Of a common law union? 21 Well it could be a biological father in 22 a common law situation, but it's more 23 likely to be a boyfriend, a common law 24 husband who's not the biological father 25 or a babysitter. And I use babysitter

1 in the generic sense." 2 And then skipping down: 3 "They will often have a criminal record 4 wherein you have a variety of offenses. 5 And the environment in which occurs, or 6 you see -- if I can use that expression 7 -- it's usually in the latter part of 8 the afternoon -- in the latter half of 9 the afternoon, in what we -- are called 10 the poison hours. And you have a 11 situation in which you have a tired or 12 crying infant who's tired because they 13 haven't gone down for their afternoon 14 nap, or they may be irritable for 15 whatever reason, fussy and then you 16 have the caregiver who's usually 17 isolated. 18 So there's no one else around, they're 19 tired. The caregiver's tired, as well 20 as perhaps the infant. There's sort of 21 the short emotional fuse that can be 22 associated with late afternoon pre- 23 supper hunger, and something happens, 24 such that for a period of time the 25 caregiver simply loses control. Not

1 necessarily, and I think probably 2 seldom ever with the intention of 3 actually inflicting physical harm, but 4 simply loses control and begins to 5 violently shake the infant to get them 6 to stop crying, to get them to listen 7 and be obedient for whatever reason. 8 At the end of the time period of the 9 shaking, which is not just one (1) or 10 two (2) shakes -- this is not a gentle 11 shake that can come with playing with 12 the child and tossing them in the air, 13 and doing all the things we do with our 14 kids, but a violent shake which is 15 prolonged -- the child or the infant at 16 the end of that may in fact have 17 stopped breathing and lost 18 consciousness by the time the caregiver 19 stops the shaking." 20 And then -- then it continues on, 21 literally for -- onto the next page. And then at the 22 following page, at the bottom of 43, on the last line, it 23 says: 24 "That's what we have. Now as I've 25 reconstructed that, obviously parts of

1 the story fit, parts of it don't, in 2 terms of the evidence that you've 3 heard. That's for you to decide and I 4 apologize for this detour, but I simply 5 wanted you to appreciate not just small 6 fragments of what the shaken/whiplash 7 syndrome is, but perhaps to get an 8 overview of what a typical instance of 9 this would be." 10 Is this evidence within the expertise of a 11 forensic pathologist? 12 DR. HELEN WHITWELL: No. 13 MR. MARK SANDLER: All right. Why not? 14 DR. HELEN WHITWELL: Forensic pathology - 15 - a forensic pathologist should be looking at the 16 physical findings, post-mortem findings, interpreting 17 them in terms of the history and the potential mechanics 18 of injury. But this is completely out with the expertise 19 of a forensic pathologist. 20 It's giving a background which again, I 21 don't think would have been allowed -- or would be 22 allowed in and English court from a forensic pathologist 23 or a neuropathologist or a pediatric pathologist. 24 MR. MARK SANDLER: All right. If you go 25 to page 44 of the overview report at paragraph 109 and

1 110, another point is -- is dealt with. We see Dr. Smith 2 testified that: 3 "In Shaken Baby Syndrome the brain 4 responds to the injury by bleeding and 5 swelling. Both bleeding and swelling 6 expand the brain inside the cranial 7 cavity; are in competition for the 8 available space." 9 Dr. Smith explained that: 10 "For this reason, the subdural 11 hemorrhage in shaking cases is not 12 large, rather the volume of blood in 13 death by shaking is a thin smear of 14 blood over the hemispheres, and that 15 differs from my experience with things 16 like motor vehicle accidents, which can 17 be a different mechanism of head injury 18 wherein there can be much more 19 bleeding. And in that situation the 20 brain then becomes compromised or 21 compressed because of the pressure on 22 it from the blood." 23 And then defence counsel asked Dr. Smith 24 about the evidence of Dr. Drake, the surgeon who 25 evacuated Amber's subdural hematoma. And Dr. Drake's

1 evidence was that the hematoma was very large and very 2 extensive. 3 Dr. Smith explained that there was no 4 measurement taken of the hematoma that was removed from 5 the brain. Dr. Drake did not send the hematoma to 6 pathology for analysis. 7 Dr. Smith explained that pathological 8 examination may not have been possible because of the 9 operative method Dr. Drake used to remove the hematoma. 10 He explained the difference between Dr. Drake's evidence 11 that Amber's hematoma was very large and his own evidence 12 that in Shaken Baby Syndrome, there is not typically much 13 bleeding by saying that what happens from time to time is 14 what seems like a big blood clot to one (1) person when 15 examined in the relaxed light of day is not so large. 16 What do you say about the reasoning 17 process that's been engaged here? 18 DR. HELEN WHITWELL: Well, Dr. Smith 19 doesn't seem to have taken into account the surgeon's 20 findings of a large clot, not a speck, not a -- as well 21 as the radiological findings. Where you get typically 22 very small subdural hematomas is in the younger infant, 23 in the ones a few months old. 24 Once you get an older infant and child, 25 they tend to be bigger and more often unilateral. So I -

1 - I can't really follow his reasoning, I'm afraid. 2 MR. MARK SANDLER: All right. All right. 3 Part of the reasoning appears to be that -- that the 4 subdural hemorrhage in shaking cases is generally not 5 large so that Dr. Drake's evidence that the hematoma was 6 very large may be discounted. 7 And -- and is that a reasoning process 8 that -- that works for you as a forensic pathologist? 9 DR. HELEN WHITWELL: No, it's not. 10 MR. MARK SANDLER: Okay. Now, if we can 11 go from -- from that paragraph to paragraph 113. And in 12 paragraph 113, Dr. Smith acknowledged that -- that he did 13 not consult -- and this is the second last line on the -- 14 on page 45: 15 "He did not consult with the 16 radiologist, Dr. Chuang or Dr. Moss 17 before he performed the autopsy. He 18 was unaware that no skeletal survey or 19 babygram full body x-rays had been done 20 in this case. He was under the 21 mistaken impression that one had been 22 completed before the autopsy." 23 And -- and this has been well covered in 24 previous evidence, but I take it as part of the protocol 25 for dealing with these kinds of cases, first of all, the

1 skeletal survey should be done. And second of all, there 2 should be communication between those involved in the 3 process to ensure that it doesn't fall between the 4 cracks? 5 DR. HELEN WHITWELL: Yes, the -- the 6 major thing to do before a post-mortem examination is to 7 absolutely confirm that the -- a full skeletal survey's 8 been done. The babygrams are actually not necessarily 9 very good for picking up skeletal injury. So that's the 10 first rule of confirmation. 11 Now, sometimes, certainly in England and 12 probably elsewhere, if a child is transferred between one 13 (1) hospital and another, the films may be done at the 14 initial hospital without the aid of a specialist or 15 pediatric radiologist. 16 So what my current practice is is to 17 confirm definitely that the films have been done. Get a 18 provision report if it's been done at a -- preferable 19 hospital, and then ensure that those films are then 20 reported fully by a pediatric radiology -- radiologist 21 with expertise in childhood injury. 22 So that one can then, if necessary, 23 explore an individual rib or bone at the post-mortem. 24 MR. MARK SANDLER: All right. On the 25 very next paragraph, paragraph 114, page 46, Dr. Smith

1 testified that in his opinion, a twelve (12) year old of 2 approximately 5 foot, 5 inches and a hundred and 126 3 pounds could produce the kind of violent shaking required 4 to cause serious brain injury. 5 He compared a twelve (12) year old of that 6 size to his wife at their wedding: 7 "Some fifteen (15) years ago, I married 8 a lovely bride who is 5 foot 3 1/2 and 9 about 112 pounds, and she was an adult. 10 You've described to me what could be a 11 very normal adult. 12 Q: And what about whether or not that 13 individual, that approximately height 14 and weight, could be capable of 15 producing the amount of force that 16 we're talking about? 17 A: Oh, certainly." 18 Comment? 19 DR. HELEN WHITWELL: Well, again, it's 20 inappropriate and unscientific evidence. 21 One of the things, in fairness, that has 22 been become increasingly relevant is what we call 23 biomechanical studies, looking at degrees of forces. 24 Now, most medical practitioners are not biomechanic 25 experts because that involves physics and mechanics

1 essentially, so it -- it's an unscientific proposal, and 2 again, probably now it would be much more in the field of 3 biomechanics. 4 MR. MARK SANDLER: All right. So, the 5 discussion about the extent of -- the extent to which the 6 caregiver would be capable of producing the kind of force 7 that would be required would be a biomechanical question, 8 if -- if anyone. 9 DR. HELEN WHITWELL: If -- if anyone, 10 actually. And in fairness, the biomechanics, they will 11 not be who go -- go down that route. Certainly I've seen 12 biomechanical evidence given in the issue of low level 13 falls. There is some literature in terms of shaking, but 14 -- but not very much. 15 MR. MARK SANDLER: Okay. And then 16 skipping over to -- 17 COMMISSIONER STEPHEN GOUDGE: Can I just 18 ask Dr. Whitwell this question, Mr. Sandler? 19 Was it implicit in the thought process of 20 pathologists -- was the conventional wisdom back in the 21 '80's and early '90's that it was possible to create the 22 amount of force necessary to produce the brain injury by 23 shaking and a fall to do the same would have to be a fall 24 from a great height? That is, it couldn't have been a 25 low level, although shaking could produce the injury; was

1 that sort of the thinking? 2 DR. HELEN WHITWELL: Yes -- yes, it was. 3 COMMISSIONER STEPHEN GOUDGE: And that's 4 implicit, I think, in the understanding that I've begun 5 to form of this. If that's so -- that is, if the amount 6 of force that shaking produces is implicitly equated in 7 the conventional wisdom by a fall from a significant 8 height -- I take it the shaking would have to produce the 9 kind of serious diffuse axon damage that you described as 10 coming with the trauma from a significant height. 11 DR. HELEN WHITWELL: That's correct, yes. 12 Perhaps I should point out that -- that even in the late 13 '80's and '90's forensic pathologists and neuropathology 14 were -- were realising that in the vast majority of cases 15 there is in fact evidence of impact, which certainly in 16 my experience, looking at -- back at the pediatricians at 17 that time, who would perhaps examine a child and not find 18 evidence of external impact and then will say there's no 19 evidence of impact, therefore it's shaking. 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 DR. HELEN WHITWELL: I think pathologists 22 were more attuned to the issue of impact causing a 23 significant number of these injuries, whatever that of 24 that type of impact may have been. 25 COMMISSIONER STEPHEN GOUDGE: Right. I

1 guess what I -- the subsequent question I would have in 2 my head, Dr. Whitwell, is: With that implicit logic in 3 the conventional thinking, it, I assume, is based on the 4 premise that in a 'shaken baby case', in adverted commas, 5 one would see, if one knew the right staining, the 6 serious diffuse axon damage that you say is consistent 7 with a high fall -- 8 DR. HELEN WHITWELL: But not -- 9 COMMISSIONER STEPHEN GOUDGE: -- and 10 there wasn't. 11 DR. HELEN WHITWELL: That's correct. But 12 at that time that was the understanding of the basis of 13 the head injury, because of a couple of papers which I 14 refer to in -- in that document which were very small 15 studies using the older stains and not looking at 16 extensive areas of the brain. 17 So what happened, those studies crept into 18 textbooks and literature and became accepted. Therefore, 19 the forces required were very severe and significant. 20 COMMISSIONER STEPHEN GOUDGE: Right. And 21 then the flaw was the underlying pathology. They didn't 22 have the staining that was necessary to demonstrate 23 diffuse axonal damage. 24 DR. HELEN WHITWELL: Yes. Whether or not 25 it's -- was a flaw or misinterpretation at the time --

1 COMMISSIONER STEPHEN GOUDGE: Or 2 incomplete -- 3 DR. HELEN WHITWELL: -- an incomplete 4 studies, rather -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. HELEN WHITWELL: -- than, you know, 7 being categorically wrong. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. HELEN WHITWELL: Because -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. HELEN WHITWELL: -- our understanding 12 of the whole spectrum of axonal injury has developed over 13 the years. So it's only in the '90's that one realizes 14 that there actually a spectrum from the very minor to the 15 very severe. 16 COMMISSIONER STEPHEN GOUDGE: Okay. And 17 as I take the corollary further, if the current view, if 18 I can put it that way, is that low level falls can 19 produce the kind of brain damage that one now sees with 20 more sophisticated staining. 21 Is the corollary true that the shaking 22 needn't be as severe as one would have thought in order 23 to produce the same injury? 24 DR. HELEN WHITWELL: That's correct, if - 25 - if one goes along with the shaking issue.

1 COMMISSIONER STEPHEN GOUDGE: If one sees 2 that as a potential explanation? 3 DR. HELEN WHITWELL: If one sees that as 4 a potential explanation. But to go back to the 5 experience -- and I think this is now being much more 6 supported in the literature -- the vast majority of these 7 cases have evidence of impact. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. HELEN WHITWELL: Whatever the reason 10 for that impact is. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. HELEN WHITWELL: And they -- the 13 one's certainly in our series and also in my own 14 experience where there's no objective evidence of impact 15 tend to be the young infant; two (2), three (3), four (4) 16 month old. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. HELEN WHITWELL: But when you get 19 into the older infants and children, they invariably got 20 evidence that -- 21 COMMISSIONER STEPHEN GOUDGE: There will 22 be pathological evidence of impact? 23 DR. HELEN WHITWELL: Of impact. And that 24 the problem is the -- the impact, you may not see it 25 externally when you look at the child.

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. HELEN WHITWELL: Not because 3 pediatricians are not examining properly, but fairly 4 often blunt trauma may only be seen when you reflect the 5 scalp and look underneath the skin. 6 COMMISSIONER STEPHEN GOUDGE: Yes. Okay. 7 And so in a case where there's no history or pathology of 8 trauma, the explanation could be low level fall, which is 9 simply not included in the history, or it could be 10 shaking? 11 DR. HELEN WHITWELL: Mm -- 12 COMMISSIONER STEPHEN GOUDGE: We just 13 don't know? 14 DR. HELEN WHITWELL: I think -- yes, I 15 think there's quiet a lot we just don't know. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 Thanks. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: All right. If we can 21 move to page 47 of the overview report. And we see at 22 paragraph of 118 that reflects the absence of a history 23 of violence between the caregiver and the child in this 24 case did not cause Dr. Smith to rethink his diagnosis of 25 shaking in this case. He testified that this was just a

1 one (1) shot bolt out of the blue event. He said that 2 his shaking incident could be described as a momentary 3 lapse of losing -- losing one's cool. 4 And again, any comment about that? 5 DR. HELEN WHITWELL: Well to go back, the 6 -- the initial premise that this is shaking was 7 incorrect. And who knows if shaking is involved -- the 8 background to that. 9 MR. MARK SANDLER: Okay. Then at 10 paragraph 119, Dr. Smith said that: 11 "The age of sixteen (16) months of 12 Amber did not cause him to rethink his 13 diagnosis of shaking. The findings of 14 the findings -- that's the clinical 15 analysis. It's the only conclusion 16 that one can come to with the autopsy 17 results." 18 Though he does go on to reflect that it 19 would be more difficult to injure a girl that's sixteen 20 (16) months old than is six (6) months old. 21 And again, your views on this are already 22 clear, that sixteen (16) months, as I understand it in 23 your view, should have caused some consideration as to 24 whether this was truly a shaking case? 25 DR. HELEN WHITWELL: Oh correct, yes.

1 MR. MARK SANDLER: If you can go to page 2 48, paragraph 122. And during the course of Dr. Smith's 3 evidence, he was asked about a letter that he had written 4 to one (1) of the defence experts, Dr. Lucy Rorke before 5 trial. And on October the 3rd of 1989, he had written 6 Mr. Renaud who is the defence counsel: 7 "May have explained to you the reason 8 for the exhumation. It was not 9 undertaken to substantiate the 10 diagnosis of child abuse, for there was 11 ample clinical evidence to support such 12 a diagnosis, but rather to look for 13 evidence which might prove the 14 babysitter to be innocent." 15 And -- and I'm going to ask you about the 16 phrase, "there was ample clinical evidence to support 17 such a diagnosis" in a moment. 18 And then he goes on to describe the fact 19 that he usually conducts the exhumations in Ontario. The 20 issue was whether the injuries could have been sustained 21 from a household accident as the babysitter suggested, or 22 whether Amber's injuries must have an alternative cause. 23 "At exhumation we found only the two 24 (2) bruises on the head, front and 25 right cheek, which were known to be

1 present, prior to the morning of the 2 injury. And there was no other 3 evidence of direct trauma." 4 And then, at paragraph 123, it reflects 5 that: 6 "Dr. Smith was asked about the ample 7 clinical evidence to support a 8 diagnosis of shaking, to which he had 9 referred in his letter. He said that 10 this evidence comprised the opinions of 11 Dr. Barker and Dr. Driver. 12 He had written the letter more than a 13 year after Amber died, and after he'd 14 been in meetings where Amber's case had 15 been discussed. He testified that a 16 statement that there was ample clinical 17 evidence reflected what he believed to 18 be Dr. Barker and Dr. Driver's 19 understanding of the case." 20 And then he was asked about the identity 21 of the two (2) neuropathologists, who he also refers to 22 in the quoted portion in paragraph 122, who had reviewed 23 the file, and -- and the issue is raised as to extent to 24 which those consultations were documented. And -- and 25 that issue's been fully developed at this inquiry.

1 So I'm not going to ask you about that. 2 And then at paragraph 125, goes on: 3 "At trial, Dr. Smith was asked about 4 the conclusion noted in the letter, 5 that the two (2) bruises were known to 6 be present at the time of the injury. 7 Dr. Smith testified he couldn't 8 remember what he was thinking when he 9 made that statement in his letter to 10 Dr. Rorke. He said, it was my 11 understanding that the bruises that I'd 12 seen had been observed and were felt to 13 be older." 14 And the trial judge dealt with this issue 15 that had been raised in cross-examination at page 84, of 16 the Overview Report. And if I can take you there, at 17 paragraph 124, the -- 18 DR. HELEN WHITWELL: I'm sorry. Where -- 19 whereabouts are -- 20 MR. MARK SANDLER: Page 84, paragraph 21 225. 22 DR. HELEN WHITWELL: Okay, 225, yeah. 23 MR. MARK SANDLER: And this is the fourth 24 reason that the -- that the trial judge is giving for 25 casting doubt upon the Crown evidence. And he says:

1 "Fourth, Dr. Smith wrote to Dr. Rorke 2 that there was ample, clinical evidence 3 to support a diagnosis of shaking. He 4 did not know what that evidence was. 5 His belief that there was such ample 6 evidence, could have altered his 7 approach to the autopsy. Dr. Smith was 8 apparently of the view that there was 9 ample clinical evidence; That's what he 10 wrote to Dr. Rorke. He believed it to 11 be the case, even before he began his 12 autopsy. 13 When asked by Mr. Renault, what was 14 that evidence, he said he didn't know. 15 Drs. Driver and Barker would have to be 16 asked. I don't understand how he can 17 state to Dr. Rorke, another 18 professional, that there's ample 19 clinical evidence when he doesn't know 20 what it is. 21 Certainly none of the defence witnesses 22 was aware of it. What is troubling, if 23 Dr. Smith actually believed that there 24 was ample clinical evidence of shaking 25 and a autopsy was redundant to confirm

1 it, was that his belief might colour 2 his approach to the facts, as well as 3 his medical opinion, and perhaps even 4 affect the way he would undertake the 5 autopsy." 6 Several questions arising out of that. 7 The first is: Was there ample clinical evidence or 8 clinical evidence, in your view, that existed on the 9 record as you had examined it, that would support the 10 diagnosis even before an autopsy took place? 11 DR. HELEN WHITWELL: No. 12 MR. MARK SANDLER: And -- and second of 13 all: Is the trial judge -- in your view, is the trial 14 judge's criticism warranted on the facts as you 15 understand them? 16 DR. HELEN WHITWELL: Well it -- it 17 appears that Dr. Smith started on the presumption that 18 this was a -- a shaken case. And then went -- look -- 19 went to look for evidence to support that it may not have 20 been, say natural disease or whatever, instead of 21 starting from the basis that let's look at the 22 pathological facts, and then decide in -- in the light of 23 all the evidence. 24 MR. MARK SANDLER: All right. 25 Commissioner, that would be a convenient point. It's

1 11:15. 2 COMMISSIONER STEPHEN GOUDGE: We'll rise 3 now until shortly after 11:30. Thank you. 4 5 --- Upon recessing at 11:17 a.m. 6 --- Upon resuming at 11:35 a.m. 7 8 THE REGISTRAR: All rise. Please be 9 seated. 10 COMMISSIONER STEPHEN GOUDGE: Mr. 11 Sandler...? 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Thank you. Professor 15 Whitwell, if you'd go to page 66 of the overview report 16 we have here a summary of Dr. Duhaime's testimony. 17 And you're aware of the fact that back 18 during that time period, Dr. Duhaime was writing on -- on 19 the issue of Shaken Baby Syndrome? 20 DR. HELEN WHITWELL: That's correct. 21 MR. MARK SANDLER: And one of the issues 22 that -- that she was wrestling with, and in the midst of 23 the controversy, was whether pure shaking had been 24 demonstrated to produce the kind of pathology that we see 25 here, including death, right?

1 DR. HELEN WHITWELL: That's correct. 2 MR. MARK SANDLER: And I'm just going to 3 take you to one (1) paragraph of what would, otherwise, 4 be a very interesting pathological discussion. It's at 5 paragraph 180. And Dr. Duhaime testified that: 6 "She had never seen death from pure 7 shaking in the absence of some other 8 trauma. She explained that her 9 clinical experience, biomechanical 10 studies, and review of the literature 11 did not prove that causing [and it 12 should be death in there] death purely 13 by shaking is impossible, but only that 14 they had failed to prove that pure 15 shaking is possible." 16 I'm wondering where it is that you fall on 17 the spectrum here on that -- on that issue? Where do you 18 think the state of the science is now on whether pure 19 shaking has been demonstrated to cause fatality in the 20 absence of trauma? You thought I only ask easy 21 questions? 22 DR. HELEN WHITWELL: I think, as I've 23 said before, that -- that the vast majority of these 24 cases are related to impact. Where the problem lies is, 25 in particular, in the -- the young infant where there is

1 no objective evidence of injury such as skull fracture or 2 scalp bruising. 3 And in my view, what's tended to happen is 4 that all these infant and childhood head injuries have 5 all been put together, if you like, and lumped together. 6 Whereas, in fact, we know that the infant brain matures 7 from birth and the patterns are different in the young 8 infant than the older age group where -- where, in fact, 9 the pathology tends to replicate more of an adult 10 pattern. 11 If you look at the literature -- the 12 current literature, as I've said, virtually all cases 13 have had evidence of impact, but where -- where you 14 don't, my understanding is that the biomechanical 15 evidence is actually out in terms of that young infant as 16 to whether or not it's possible to shake a young infant 17 to give it severe -- to give it serious injury. 18 As far as the older infant and child goes, 19 as I've said, that the impact -- and as she correctly 20 says in the 1987 paper -- it's impact that produces much 21 greater forces with inside the head to give injury. 22 MR. MARK SANDLER: Okay. If you go to 23 page 69 and -- 24 COMMISSIONER STEPHEN GOUDGE: It is just 25 I -- sorry, because I find the science interesting, Dr.

1 Whitwell. When you say the biomechanical evidence is out 2 about the very young brain and whether biomechanical 3 forces could cause sufficient force to produce the kind 4 of brain damage that we see in these cases. What do you 5 mean, -- 6 DR. HELEN WHITWELL: Well, -- 7 COMMISSIONER STEPHEN GOUDGE: -- "the 8 biomechanical evidence is out"? Does that mean it 9 demonstrates that that can or that that cannot happen? 10 DR. HELEN WHITWELL: Well, my 11 understanding -- and this is speaking as a -- a non- 12 biomechanic -- is that I think, in fact, that the -- the 13 statement probably still remains the same as Dr. Duhaime 14 has said it here -- is that, generally, impact is 15 required to generate the forces with inside the -- the 16 head. 17 Some people would say that there's no 18 evidence to support shaking can produce the injuries we 19 see. Other people, perhaps, suggest -- that actually 20 comments here -- it's only failed to prove that pure 21 shaking is possible -- see what I mean -- not prove it's 22 impossible, but to prove it's possible. 23 COMMISSIONER STEPHEN GOUDGE: All right. 24 All right. And where are you as between those two (2)? 25 DR. HELEN WHITWELL: I think there's more

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1 work to be done. My -- my view is is that -- as I've 2 said before -- these are virtually all impact cases. 3 Whether or not in the young infant, which has a slightly 4 different skull or head, we're not seeing physical 5 evidence of injury because of the shape of the head; 6 whether they simply react differently or whether, in 7 fact, trauma is actually required, I think there's more 8 work to be done. 9 COMMISSIONER STEPHEN GOUDGE: Is there 10 anything about the anatomy of the very young brain that 11 suggests more force would be required to produce the 12 damage we see, than once the child gets to be a little 13 older, or less force, that is there is there anything 14 about the maturing at the age of one (1) to three (3) 15 months, say? 16 DR. HELEN WHITWELL: Well, it's probable 17 that the maturing brain responds to injury -- well, type 18 of that -- that, I'm using that in the broadest sense -- 19 differently to the adult brain. It may well be more 20 responsive in -- in terms of swelling of the brain. 21 COMMISSIONER STEPHEN GOUDGE: Showing 22 swelling, that sort of thing? 23 DR. HELEN WHITWELL: Yes. Yes, that's 24 correct, it may be. 25 COMMISSIONER STEPHEN GOUDGE: Is there

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1 research evidence of that or is -- 2 DR. HELEN WHITWELL: There is research 3 evidence to -- to indicate that the younger brain can 4 react very suddenly and produce severe swelling, yes. 5 COMMISSIONER STEPHEN GOUDGE: So that 6 suggests that for a lower level application of force, you 7 would get more swelling in the very young brain than you 8 might in the somewhat older infant brain. 9 DR. HELEN WHITWELL: Potentially, yes. 10 COMMISSIONER STEPHEN GOUDGE: Okay, thank 11 you. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: So -- so, just 15 following up on -- on the questions that the Commissioner 16 has asked you, if one were to look at where the medical 17 community falls on a spectrum in this controversy, there 18 are some that are of the view that the available 19 evidence, whether anecdotal or literature, supports the 20 view that pure shaking can cause -- can cause fatal 21 injuries or severe injury, that's right? 22 DR. HELEN WHITWELL: That is correct. 23 MR. MARK SANDLER: And even though some 24 of those or all of those may be of the view that the more 25 likely scenario is where trauma is present, as well as

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1 shaking, right? 2 In other words, even people within that 3 belief set may acknowledge that it's a rarer occasion 4 than those cases in which trauma exists. 5 DR. HELEN WHITWELL: I mean, in fairness, 6 you're correct that there is a spectrum of opinion. The 7 ones that I find particularly difficult are, as I have 8 mentioned, these young infants with no evidence of 9 trauma. 10 MR. MARK SANDLER: Right. So -- so just 11 to be clear, in the spectrum of the controversy, and 12 perhaps that last question was -- was poorly phrased, 13 there are some that are of the view that the literature 14 and the anecdotal information permits us to opine that 15 pure shaking causes severe injury or death? 16 DR. HELEN WHITWELL: That's correct. 17 MR. MARK SANDLER: There are some in the 18 spectrum that -- at the other end of the spectrum that 19 would say that the literature and information available 20 would suggest that pure shaking does not -- does not 21 produce severe injury or death? 22 DR. HELEN WHITWELL: Yes. Question 23 whether or not it's possible or not. 24 COMMISSIONER STEPHEN GOUDGE: As opposed 25 to assert, it cannot.

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1 DR. HELEN WHITWELL: That's correct. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: And -- 5 DR. HELEN WHITWELL: Some -- it depends; 6 some people may well assert that, you know, it's 7 impossible. 8 MR. MARK SANDLER: Correct. 9 DR. HELEN WHITWELL: So -- so you've got 10 a lot of spectrum, actually. 11 MR. MARK SANDLER: And that's what I'm 12 putting to you. 13 DR. HELEN WHITWELL: Yes. 14 COMMISSIONER STEPHEN GOUDGE: So you've 15 got a whole spectrum on the one (1) hand -- 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: You've got a spectrum 19 from it; it - it does happen, it may or may not happen, 20 but the verdict's out to it can't happen. 21 DR. HELEN WHITWELL: Correct. 22 MR. MARK SANDLER: And those are all 23 within the spectrum of the controversy. 24 DR. HELEN WHITWELL: Correct. 25 MR. MARK SANDLER: All right.

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1 DR. HELEN WHITWELL: But in this age 2 group, in the older child, certainly speaking as a 3 forensic pathologist and the neuropathologist, these fall 4 into impact and there's no need to postulate shaking. 5 COMMISSIONER STEPHEN GOUDGE: Because 6 there is, in almost every case or frequently, evidence 7 either circumstantial, i.e., history or pathology of 8 impact. 9 DR. HELEN WHITWELL: Well, there's 10 pathology evidence of impact, yes, and then that -- the 11 question is then, is -- is what type of impact. 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Okay. If you go to 16 page 69 -- 17 DR. HELEN WHITWELL: Sorry, perhaps if I 18 could just say -- 19 MR. MARK SANDLER: Yeah? 20 DR. HELEN WHITWELL: -- that in these 21 cases, as a pathologist, and I think most pathologists 22 would follow the same pattern, one wouldn't give a 23 diagnosis in any of these shaken infant or shaken impact 24 injury, you would give a cause of death as head injury -- 25 COMMISSIONER STEPHEN GOUDGE: Right.

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1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: And then talk about 3 some of the controversy. 4 DR. HELEN WHITWELL: -- and then discuss 5 the -- discuss the -- the issues. 6 MR. MARK SANDLER: Okay. If you go to 7 page 69 of the overview report, at paragraph 186, Dr. 8 Leetsma, who is a forensic neuropathologist, gave 9 testimony for the defence at the trial, and he 10 acknowledged the body of medical literature that benign 11 falls do not seriously injure children. 12 On the other hand, he recognized that some 13 studies demonstrated that: 14 "In some cases children can have 15 serious or deadly injuries from 16 apparently benign falls. Dr. Leetsma 17 concluded that there was not sufficient 18 experimental nor observational case 19 data on the issues important to the 20 analysis of child abuse, head injuries, 21 including Shaken Baby Syndrome, to 22 permit a dogmatic approach to the 23 problem." 24 Was that a fair summary of where the 25 science was at during the time of the trial?

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1 DR. HELEN WHITWELL: Yes. 2 MR. MARK SANDLER: All right. And the 3 next question that follows is, you've indicated that 4 there's been some movement since then in the sense that 5 there's been more documentation that benign falls under 6 rare circumstances can produce death or serious injury, 7 but beyond that the -- the query -- the -- the difficulty 8 identified by Dr. Leetsma, as I understand your evidence, 9 still remains. 10 DR. HELEN WHITWELL: It -- it does. 11 Although to go back to the evidence of the type of brain 12 injury, we know more about that than we did at that time. 13 MR. MARK SANDLER: All right. Now if you 14 can move with me to paragraph 205 -- Dr. Rorke testified 15 for the defence at this trial -- and at paragraph 205, it 16 reflects that: 17 "The dissection of the cervical spine 18 was not completed in the autopsy in 19 this case. In Dr. Rorke's opinion, it 20 was an important investigation to 21 determine the presence or absence of 22 injury to the spine. Spinal injury, in 23 turn, was crucial to the diagnosis of 24 cause of death. Dr. Rorke did not 25 agree with Dr. Smith's characterization

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1 of the dissection of the cervical spine 2 as "icing on the cake". She also did 3 not understand or accept Dr. Smith's 4 explanation as to why his approach to 5 examining the brain in this case 6 precluded him from dissecting the 7 cervical spine." 8 What do you say about that issue? 9 DR. HELEN WHITWELL: It -- it would now 10 be considered routine to examine the cervical spine in 11 all of these cases. 12 MR. MARK SANDLER: All right. And -- and 13 back then? 14 DR. HELEN WHITWELL: In fairness, and 15 this is looking back at UK practice, I think some 16 pathologists may have looked at it, and some may not. 17 MR. MARK SANDLER: Okay. 18 DR. HELEN WHITWELL: So I don't think -- 19 I -- I certainly take her -- her points relating to that. 20 But in terms of actual practice in the UK, some may not 21 have looked at the cervical spine, for whatever reason. 22 MR. MARK SANDLER: All right. If you go 23 to Justice Dunn's reasons as summarized here, and I'm 24 gonna briefly take you through them if I may. At page 25 76, Justice Dunn accepts at paragraph 21l:

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1 "The defence experts opinion that there 2 can be serious diffuse injuries under 3 the skin with little focal injury to 4 the skin. He held one cannot conclude 5 that just because little or no skin 6 trauma is seen visually, there cannot, 7 therefore, be serious underlying 8 injury. He accepted that external 9 evidence of trauma is not always going 10 to be present after a fall. 11 Justice Dunn was concerned that with 12 the exception of Drs. Sullivan and 13 Cheung, all of the Crown witnesses 14 expected to see focal injuries. 15 In his reasons, he rhetorically asked, 16 If I'm right in my understanding of the 17 concept that there can be grave 18 underlying damage with no unnecessary 19 external trauma, why did Drs. Driver, 20 Smith, and Barker not discuss this and 21 show that they had considered that?" 22 Is that an accurate or fair comment on the 23 Justice's part? 24 DR. HELEN WHITWELL: It is, yes. 25 MR. MARK SANDLER: All right. At

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1 paragraph 212, Justice Dunn refers to the controversy 2 over whether or not a linear fracture -- skull fracture - 3 - existed in the case. And he ultimately determined that 4 although the defence experts suspected that it -- that 5 the autopsy picture showed a linear skull fracture, it 6 could not be certain based solely on the photographs. 7 And he says that: 8 "Ultimately, it's unnecessary for him 9 to determine the issue, because given 10 his finding that serious brain injuries 11 could occur with little or no focal 12 injury, a fracture was not required to 13 support the possibility of a fall 14 causing injuries." Do you agree? 15 DR. HELEN WHITWELL: That's correct. 16 MR. MARK SANDLER: Now at paragraph 213, 17 and it's a very long portion, and I'm going to try to 18 summarize it as best we can, because it's -- it's an 19 important feature. 20 As you'll recall that -- that in the 21 course of the -- the trial, debate arose as to whether or 22 not there were -- there was additional evidence of 23 trauma. Namely, the defence experts saw a subgaleal 24 bruising and some evidence of a -- some evidence in that 25 regard. Dr. Smith and -- denied the existence of

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1 subgaleal bruising. 2 And you remember that debate that took 3 place in -- in the trial? 4 DR. HELEN WHITWELL: Yes, I do. 5 MR. MARK SANDLER: And in determining 6 what injuries Amber suffered and what those injuries 7 suggested about the cause of trauma, we see at paragraph 8 213 that -- that Justice Dunn sets up three (3) 9 scenarios. 10 One (1) scenario where there's no evidence 11 of either external or internal bruising, and -- and he 12 rejects that scenario on the evidence. 13 A second scenario where there's evidence 14 of internal bruising that would be associated with 15 external impact to the skin, even though there's no 16 external manifestations of it. And he said that would 17 support the position of the defence and tell against the 18 position of the Crown. 19 And then he said a third scenario where 20 there's bruising both on the surface and -- and under the 21 skin. 22 And he ultimately the accepts the third 23 scenario that there's evidence of bruising externally and 24 internally, though as I've said, articulates the fact 25 that even in the absence of evidence of external

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1 bruising, the internal -- the internal bruising -- sorry, 2 even in the absence of external evidence of -- of 3 bruising the -- the second scenario would support the 4 position of the defence. 5 And -- and I've done that somewhat 6 hastily, but at the end of it all, at the bottom of page 7 77, he reflects that: 8 "If I assume that bruise 1..." 9 And -- and you know which bruise, 1 is 10 referring to? 11 DR. HELEN WHITWELL: Yes. 12 MR. MARK SANDLER: That's the bruise on 13 the forehead? 14 DR. HELEN WHITWELL: Forehead, yes. 15 MR. MARK SANDLER: If: 16 "...bruise 1 happened at the collapse 17 then the defence doctors pointed out 18 they weren't surprised it wasn't 19 swollen and red, because as Dr. Duhaime 20 and others said not all bruises swell, 21 and there was so much going on in 22 Amber's body it would not necessarily 23 change colour. 24 There was a bruise on Amber's forehead 25 visible after the collapse because

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1 Dr.'s Bronson and Brunet say it. I 2 conclude that the table -- coffee table 3 bruise Amber had two (2) to three (3) 4 weeks before July 28th, 1988 had 5 disappeared before July 28th. The 6 evidence points to bruise 1 happening 7 at the time of collapse." 8 And again, what's your comment as to 9 whether Justice Dunn has correctly analysed the evidence 10 and come to the right conclusion in that regard? 11 DR. HELEN WHITWELL: Well, they're 12 certainly a detailed and what does appear to me to be a 13 correct analysis. There -- there did seem on reviewing 14 the testimony to be some -- not -- not conflict, but some 15 differences between the witnesses in relation to the 16 location of subgaleal bruising, which I didn't 17 necessarily follow. 18 But I think he summarized it as well as 19 possible. 20 MR. MARK SANDLER: All right. And, I 21 mean, the bottom line is did -- are you able to say 22 whether or not there was subgaleal bruising here? 23 DR. HELEN WHITWELL: There was bruising 24 that I could see on the photographs of bruising beneath 25 this bruise here. And I've already raise the possibility

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1 of bruising here, which was unclear. 2 Whether or not there was bruising at the 3 back of the head, I -- I couldn't say, particularly, 4 because there had been surgery to remove the hemorrhage 5 at the back of the head, the -- the blood clot. 6 MR. MARK SANDLER: All right. And -- 7 DR. HELEN WHITWELL: And when that -- 8 when that happens then examination for bruising deep to 9 the scalp can be difficult because you've got bleeding 10 due to surgery. 11 MR. MARK SANDLER: All right. And -- and 12 I take it from what you've already said -- just to recap 13 a very difficult point -- that even in the absence of a 14 finding on your part of subgaleal bruising you were 15 satisfied that there was evidence of trauma, which 16 supported the position of the defence and took away from 17 the position of the Crown? 18 DR. HELEN WHITWELL: That's correct. 19 MR. MARK SANDLER: If you go to page 79, 20 in the middle of the page Justice Dunn says: 21 "Both Dr. Smith and Driver said they 22 relied on the literature in making 23 their shaking diagnosis. I agree that 24 the literature is powerfully stated. 25 The general thrust of it is that small

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1 falls do not kills. However, Dr. 2 Thibault and Ommaya said the problem 3 with that literature it doesn't deal 4 with the mechanics of injury. There 5 are no details of the falls. It's not 6 even clear whether the head is struck 7 or where the points of impact are and 8 no impact velocities are given. 9 The diagnostician should be as aware of 10 the new studies in medical literature 11 as he is of the old ones and be alert 12 to problems in the articles in 13 reporting the particulars of the 14 injuries. I've already referred to the 15 experience, which is very important in 16 this case, of Dr.'s Gilles and Duhaime 17 and the other defence witnesses that 18 they have seen cases where short falls 19 have produced serious head injuries. 20 Dr. Cheung theoretically thought they'd 21 be possible from a two (2) storey fall. 22 Dr. Smith allowed for one (1) storey 23 falls. It seems that as Dr. Duhaime 24 reported the degree in direction of 25 force, the way it applied, and all this

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1 in the right combination can produce 2 serious head injuries after seemingly 3 inconsequential falls. 4 Subdural haematomas are biomechanically 5 possible in short falls. Dr. Thibault 6 stated there are unique phenomena in 7 the heads of the very young in the way 8 their brains respond to mechanical 9 forces and why they have such 10 tremendous swelling. 11 Doctors Keeley and Barker appeared not 12 to understand that concept. Dr. 13 Thibault calculated that the impact 14 velocity from a height of 5 to 6 feet, 15 to 18 to 20 feet per second, producing 16 a deceleration of a 120 Gs to the head 17 in Dr. Thibault's opinion, which no one 18 in this trial contradicted. This force 19 exceeded the threshold for acute 20 subdural hematomas." 21 And then skipping to the next page, page 22 80, just in the last paragraph of the quote: 23 "Ms. Fowke, who's the Crown, posed a 24 very important question to defence 25 lawyers: If minor falls kill, why are

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1 the hospitals not seeing more cases of 2 serious head injuries? 3 Dr. Smith even used the point as a 4 rational for his conclusion that minor 5 household falls cannot kill. 6 Dr. Ommaya suggested as an answer that 7 most falls lead to much lesser injuries 8 and often the history obtained by the 9 hospital is not detailed. Dr. Thibault 10 pointed out that children typically do 11 not fall on their heads, and if they do 12 the fall is just not great enough to 13 cause serious head injuries. 14 Dr. Duhaime believes that acceleration 15 and deceleration forces are usually 16 unlikely to be generated from low 17 falls. A rotation of the head is also 18 needed to produce the subdural in a 19 fall. Falls where the head moves in a 20 straight line in her opinion will not 21 produce this serious injuries." 22 And Justice Dunn concludes in the next 23 paragraph, that: 24 "In my analysis of these defence 25 witnesses, I don't agree with all of

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1 their theories. Indeed, they didn't 2 always agree with each other. But they 3 all said one (1) thing: In their 4 experience and their appreciation of 5 the current medical literature, in some 6 cases there are experimentation in 7 contradistinction to the doctors at 8 Hospital for Sick Kids, subdural 9 hematomas and cerebral edema in infants 10 are a very real possibility after a 11 small household fall. There are 12 anecdotal references to cases where 13 this happens, therefore it deserves 14 serious consideration." 15 And he goes on to note that he recognizes 16 that the Hospital for Sick Children doctors are 17 experienced in their fields and they deserve respect. He 18 appreciates that doctors Driver and Barker are honoured 19 and experienced clinicians, and so on: 20 "But that the experience of the defence 21 witnesses are broader and more 22 extensive than the Crown witnesses." 23 And he preferred to accept the opinions of 24 the defence experts. 25 And the analysis, do you take any issue

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1 with Justice Dunn's analysis of the existing literature, 2 including the fact, in fairness to Dr. Smith, that as was 3 stated by Justice Dunn, the literature in favour of their 4 position was being powerfully stated at the time? 5 DR. HELEN WHITWELL: No, that's correct. 6 MR. MARK SANDLER: All right. Now at 7 page 83 Justice Dunn has noted earlier, preferred the 8 evidence of the defence experts over the evidence of 9 Crown witnesses, Doctors Smith, Driver and Barker. And 10 noticed -- noted fol -- sixteen (16) problems in the 11 Hospital for Sick Children Inquiry. And if we can 12 briefly just ask you for your views on a number of them. 13 First, Dr. Smith did not consider the 14 possibility of causes of death other than shaking. 15 You've already spoken to that issue. Do 16 you agree with Justice Dunn, in that regard? 17 DR. HELEN WHITWELL: I do, yes. 18 MR. MARK SANDLER: Second. At page 84, 19 Dr. Smith's definition of the aspects of Shaken Baby 20 Syndrome continually changed. 21 And you've already addressed and agreed 22 with Justice Dunn in that regard? 23 DR. HELEN WHITWELL: Yes, that's correct. 24 MR. MARK SANDLER: Third. Dr. Smith 25 testified that no autopsy was required to confirm the

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1 diagnosis of Shaken Baby Syndrome. 2 Justice Dunn held that the diagnosis could 3 not be confirmed without an autopsy. Do you agree? 4 DR. HELEN WHITWELL: Yes. An autopsy 5 should have been held to confirm the findings, yes. 6 Perhap -- I probably wouldn't have used the term Shaken 7 Baby Syndrome. 8 MR. MARK SANDLER: All right. But -- 9 well that's because you're of the view that even the 10 autopsy didn't confirm the diagnosis? 11 DR. HELEN WHITWELL: That's correct. 12 MR. MARK SANDLER: His view here is that 13 -- that he was questioning the Hospital for Sick Children 14 approaches articulated by Dr. Smith that the autopsy -- 15 that the diagnosis could be confirmed even without an 16 autopsy? 17 DR. HELEN WHITWELL: Yes. Well, I agree 18 with the Judge on that. 19 MR. MARK SANDLER: All right. Fourth. 20 Dr. Smith wrote to Dr. Rorke about the ample clinical 21 evidence. 22 And you've already spoken to that issue? 23 DR. HELEN WHITWELL: Mm-hm. 24 MR. MARK SANDLER: Fifth, at page 85, was 25 an issue of documentation that I won't take you to.

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1 Sixth. Dr. Smith did not give adequate 2 consideration to the possibility that some of Amber's 3 bruises were consistent with a fall. And he discusses 4 that in the paragraph that follows. 5 And again, do you agree with Justice Dunn 6 in that regard? 7 DR. HELEN WHITWELL: Yes, I do. 8 MR. MARK SANDLER: Seventh, that Dr. 9 Smith did not have enough evidence to conclude that the 10 bruises to Amber's face predated her fall, and he says: 11 "Although Dr. Smith knows the problem 12 of dating bruises, he assumed that 13 bruises one (1) and two (2) predated 14 the collapse. He said Mrs. S clearly 15 said that there were two (2) bruises of 16 different ages, and he took that as 17 support for saying the bruises on the 18 forehead and cheek were there before 19 the collapse. The whole issue of 20 bruising and trauma to the skin 21 internally and externally is crucial to 22 a diagnosis in shaking. I do not 23 believe Dr. Smith had enough knowledge 24 of the case history to justify his 25 assumptions about bruise -- bruises one

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1 (1) and two (2)." 2 Do you agree with that? 3 DR. HELEN WHITWELL: Yes, I do. 4 MR. MARK SANDLER: Eighth. None of the 5 Hospital for Sick Children doctors discussed the concept 6 of there being little focal injury with serious brain 7 injury beneath it; none of them showed that they had 8 considered it. 9 And you've addressed that issue already in 10 response to earlier questions from me. 11 Ninth. Dr. Smith testified that he formed 12 his diagnosis of shaking before he knew the size and 13 weight of Amber. It's well known that knowledge of all 14 the physical attributes of both the victim and 15 perpetrator are important in shaking cases. 16 DR. HELEN WHITWELL: Well, it's 17 particularly the victim, potential victim. 18 MR. MARK SANDLER: All right. And you've 19 already indicated, in fairness, that you -- that you 20 don't agree that -- that it needs to form part of the 21 forensic pathologist's work to identify the physical 22 attribute of the -- of the alleged perpetrator in -- in 23 coming to a diagnosis in the case. 24 DR. HELEN WHITWELL: Correct. 25 MR. MARK SANDLER: Tenth. Dr. Smith was

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1 not familiar with the experimental work by Dr. Thibeault 2 regarding the biomechanics of brain injury, and Justice 3 Dunn held that a diagnostician should be as aware of the 4 new studies in medical literature as he is of the old 5 ones and be alert to problems in the articles. 6 What do you say about that, and -- and I 7 want to ask you both in connection with what Justice Dunn 8 had to say and in connection with mutual disclosure as 9 between defence experts? 10 So I'd be interested in your comments on 11 that. 12 DR. HELEN WHITWELL: Yes, all experts 13 have an obligation to try and keep up with the literature 14 in whichever fields they -- they cover at the particular 15 time. The -- the issue of disclosure I found quite 16 difficult to understand because in -- in England and 17 Wales, we've got full disclosure pretrial of defence 18 reports which gives the opportunity for prosecution 19 experts, or vice versa, to review -- potentially review 20 their findings, rethink and look at the -- the evidence. 21 I -- I've not been used to a system where 22 disclosure of defence reports come partway through the 23 trial or perhaps, not at all. 24 MR. MARK SANDLER: All right, so -- so 25 the point to be taken here systemically, in -- in your

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1 view, at -- at the risk of paraphrasing it, is that -- is 2 that although you've disagreed with the opinions 3 expressed by Dr. Smith, a systemic view of the matter is 4 that these issues might have been better addressed had 5 Dr. Smith, for example, had available to him -- assuming 6 that this -- this is the case -- the various opinions 7 that were being expressed by the defence witnesses, so 8 the inopportunity to see the extent to which he could 9 incorporate those views into his thinking. 10 DR. HELEN WHITWELL: Well, that's 11 correct, but -- but in fairness to the defence, I'm not 12 sure if what Dr. Smith and probably other prosecution 13 witnesses were saying have not been explored in the form 14 of a statement pretrial, so it actually works both ways. 15 MR. MARK SANDLER: All right, so that 16 systemically the -- the opinions that are being expressed 17 by the Crown witnesses should be articulated in advance 18 of the trial. 19 And -- and in your view as a forensic 20 pathologist, you'd like to see the defence opinions 21 provided to the Crown witnesses in advance of the trial 22 so that there can be that kind of exchange of ideas. 23 DR. HELEN WHITWELL: Yes. And that -- 24 that is the position in England and Wales. 25 MR. MARK SANDLER: All right. And then

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1 item 10 at paragraph -- I'm sorry, Item 11: 2 "Dr. Smith did not record enough detail 3 about the autopsy in his autopsy 4 report." 5 And -- and Justice Dunn spent some time 6 analysing what was said about the content of the autopsy 7 report. I'll ask you this because we've seen in the 8 various medicolegal reports by you and other reviewers 9 some commentary about what the content of these reports 10 should be. 11 Dr. Smith's report back in nine (9) -- 12 back in the late '80's and early '90's, was that 13 compatible with the kinds of reports that were also being 14 issued in England and Wales? 15 DR. HELEN WHITWELL: The types of reports 16 being issued then really, quite honestly, fell into a 17 spectrum, so you may have some reports which were very 18 detailed with commentary or you may have other reports 19 which were not detailed with little commentary. 20 I think the position, in my opinion, in 21 Dr. Smith's report was that the -- the lack of commentary 22 and discussion. Generally, the morphological detail was 23 quite detailed. 24 MR. MARK SANDLER: All right. And then 25 if you go to page 88, Item 12.

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1 "Dr. Smith described the cause of 2 Amber's death as head injuries in the 3 autopsy report. Justice Dunn concluded 4 there was a difference between Dr. 5 Smith's opinion that shaking caused 6 death and what he wrote in his autopsy 7 report. As one (1) neuropathologist 8 said, there's very little in the 9 autopsy report itself to indicate death 10 by shaking." 11 And you've already addressed the 12 desirability of -- of some commentary in addition to 13 simply articulating the cause of death? 14 DR. HELEN WHITWELL: Yes. 15 MR. MARK SANDLER: 13: 16 "Dr. Smith did not consult with Drs. 17 Drake, Cheung, and Driver before doing 18 the autopsy. And he reflects if he'd 19 consulted with Dr. Drake, he would have 20 learned that the subdural clot had not 21 been sent for analysis after the 22 craneotomy. Dr. Smith then, perhaps, 23 would have been interested in getting 24 histological analysis of subdural blood 25 the defence lawy -- doctors thought

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1 they saw in the pictures. If he'd 2 talked to Dr. Cheung, he would have 3 learned that no skeletal survey had 4 been ordered. 5 If Dr. Driver had obtained a better 6 history of the fall, and if Dr. Smith 7 had talked to her, perhaps he would 8 have been more interested in closely 9 examining bruises one (1) to four (4) 10 that he thought were so trivial in the 11 light." 12 And again, the judge is reflecting on the 13 desirability of -- of enhanced communication between the 14 clinicians and the pathologists? 15 DR. HELEN WHITWELL: Yes, I think that's 16 the point the -- that the communication -- in fairness, 17 sometimes pre-autopsy, it can be quite difficult to get 18 hold of the relevant person, but the autopsy's an ongoing 19 process and you don't necessarily make your mind up at 20 the first -- at the autopsy. 21 You can discuss things later. 22 MR. MARK SANDLER: All right. Those are 23 all of the sixteen (16) that I'm going to take you to 24 now, if I may. If I can take you back to your 25 medicolegal report, just for one (1) final question. And

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1 that's at Tab 5. And if you go to page 8. 2 DR. HELEN WHITWELL: Yes. 3 MR. MARK SANDLER: Under Pathology 4 Knowledge, you've reflected: 5 "Dr. Smith diagnosed this case as one 6 of Shaken Baby Syndrome, where there 7 was clear evidence of impact, and 8 refused to accept the possibility that 9 this could be related to the fall 10 described by the defendant. Even in 11 the light of a considerable number of 12 experts instructed by the defence -- 13 note their precise evidence is unclear 14 from the documentation." 15 And just stopping there for a moment. You 16 didn't have their transcripts at that time, is that 17 right? 18 DR. HELEN WHITWELL: No. 19 MR. MARK SANDLER: 20 "...he remained of the opinion that 21 this was a shaken infant." 22 Now just stopping there for a moment. In 23 -- in fairness to Dr. Smith, and in effect, you've said 24 this in your response to your earlier questions, he may 25 not have had available to him the evidence of those

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1 experts instructed by the defence. 2 So if your report leaves the impression 3 that he remained of the view even in the face of their 4 evidence that may not accord with -- with the reality of 5 what happened here? 6 DR. HELEN WHITWELL: I'm -- I'm afraid 7 I'm not aware in the proceedings when he was made aware, 8 even informally or verbally, of the opinions of the other 9 experts. 10 MR. MARK SANDLER: All right. 11 DR. HELEN WHITWELL: I -- I don't know. 12 MR. MARK SANDLER: And then you've also 13 reflected, in fairness, that Dr. Smith -- that his 14 opinion, however, was similar to that of other clinicians 15 at the Hospital for Sick Children. And we've seen that 16 in the overview report, as well. 17 All right. Those are all the questions I 18 have of -- in connection to the Amber case. 19 COMMISSIONER STEPHEN GOUDGE: Actually, 20 can I just ask one (1) very little question, Dr. 21 Whitwell? On the same page of your report, you use in 22 describing your own opinion of the case, "this child is 23 out with the range, age range, associated with". Does 24 that mean outside? 25 DR. HELEN WHITWELL: It does, yes.

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1 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 DR. HELEN WHITWELL: Out with. 3 MR. MARK SANDLER: I'm so used to hearing 4 Professor Whitwell saying "out with" -- 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 MR. MARK SANDLER: -- I neglected to ask 7 the question. Thank you. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: So we're going to 11 turn, if we may, Commissioner to the Dustin case. And -- 12 and if you would go to Volume IV of your binder, Dr. 13 Whitwell. 14 15 (BRIEF PAUSE) 16 17 MR. MARK SANDLER: And I'm going to 18 direct you to Tab 28, which is PFP142940. And if you'd 19 go to page 4 of the document, please, you'll see by way 20 of introduction in the overview report that Dustin was 21 born in Belleville on September the 9th, of 1992. He 22 died on November the 18th of 1992 at the Hotel Dieu 23 Hospital in Kingston. He was two (2) months old at the 24 time. 25 On April the 22nd, of 1993, his father was

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1 charged with manslaughter and failure to provide the 2 necessities of life to Dustin. He was committed to stand 3 trial on the charge of manslaughter and discharged on the 4 charge of failing to provide necessaries. 5 The criminal proceedings concluded in 6 April of 1995, or when the father pleaded guilty to 7 aggravated assault, and he was sentenced to six (6) 8 months in custody. 9 As I understand it, as part of the Chief 10 Coroner's review, you were assigned to be the primary 11 reviewer for this case. 12 DR. HELEN WHITWELL: I was, yes. 13 MR. MARK SANDLER: And if I can take you 14 to your medicolegal report, which is at Tab 26, of the 15 same volume, PFP136005. If you'd go to page 3 of your 16 medicolegal report and outline for the Commissioner, the 17 background and circumstances, as became apparent to you 18 from a review of the materials. 19 DR. HELEN WHITWELL: Yes. Well, the 20 materials are listed on page 2, and at -- top of page 3. 21 The background and circumstances: 22 "On the 17th of November, 1992, the 23 deceased, Dustin, who was born on the 24 9th of September, 1992, was with his 25 father, Richard. In the morning, the

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1 mother had returned home at 10:00 a.m., 2 having had an argument with her husband 3 in the previous evening and left the 4 residence. 5 Dustin was fed around 10:00 a.m. by the 6 father. He apparently vomited shortly 7 afterwards. 8 The father placed the infant in a baby 9 stroller and took the deceased for a 10 walk. At around 10:50 a.m. on the 17th 11 of November, 1992, the father noticed 12 that he was blue and frothing around 13 the mouth. He shook the baby but only 14 a light --" 15 MR. MARK SANDLER: Sorry, frothing around 16 the nose or the mouth? 17 DR. HELEN WHITWELL: Oh sorry, the nose. 18 Sorry, my apologies. 19 "He shook the baby but only a light 20 shake, when asked to demonstrate. He 21 was resuscitated in the emergency 22 department at Belleville Hospital and 23 transferred to the Hotel Dieu Hospital 24 in Kingston, Ontario. 25 On admission his condition was poor,

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1 with fixed dilated pupils. There was 2 no spontaneous respiration. A number 3 of investigations took place whilst in 4 hospital, including a CT scan, that 5 showed generalized cerebral edema with 6 a right subdural hematoma with 7 extension into the pharynx. There was 8 a suggestion of clotted blood in the 9 sigmoid and distal sagittal sinuses. 10 Dr. Padfield provided a discharge 11 summary dated February 8th, 1993. In 12 this he describes, the defendant 13 shaking Dustin quite severely, when he 14 found him not breathing. Dr. Padfield 15 comments at the end, The presumptive 16 diagnosis, it must be death due to 17 Shaken Baby Syndrome. 18 In the early hours of November 18th, 19 his blood pressure fell, and he was 20 subsequently pronounced dead at 00:36 21 hours. 22 The original post mortem examination 23 was done by Dr. Nag at Kingston, 24 Ontario on the 18th of November, 1992. 25 There was a subsequent review of the

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1 pathology findings by Dr. Smith. The 2 father of child was convicted of 3 aggravated assault." 4 MR. MARK SANDLER: All right. So in this 5 particular case, the original autopsy was performed by 6 Dr. Nag, and Dr. Smith did a consultation report 7 thereafter. 8 DR. HELEN WHITWELL: Yes. 9 MR. MARK SANDLER: If you'd go back to 10 the overview report, at Tab 28, and I'm going to take you 11 to page 29 of the overview report, please -- 12 DR. HELEN WHITWELL: Yes. 13 MR. MARK SANDLER: -- at paragraph 72. 14 And as you'll recall this is a summary of what Dr. Nag 15 described in his report of post-mortem examination as the 16 abnormal findings. 17 DR. HELEN WHITWELL: Yes. 18 MR. MARK SANDLER: And I'm gonna focus 19 just on -- on several at this point. You'll see about 20 halfway down the page it says: 21 "Acute subdural hematoma, right side, 22 18 grams of clot." 23 DR. HELEN WHITWELL: Yes. 24 MR. MARK SANDLER: And if we can just 25 hold that thought for a moment and -- and keep your hand

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1 in that page. And -- and I'd like to take you to the 2 summary of what Dr. Smith said about the same pathology. 3 It's at paragraph -- page 42 of the 4 overview report and it's paragraph 114. 5 DR. HELEN WHITWELL: Yes. 6 MR. MARK SANDLER: And you'll see that in 7 Dr. Smith's consultation report he reflects -- and I'm 8 looking at the last paragraph on the page, this is 9 142940, page 42, bottom of the page -- and he reflects: 10 "The internal photographs reveal the 11 right sided subdural hemorrhage 12 overlying the right cerebral convexity. 13 There was marked gyral flattening and 14 sulcal narrowing, indicative of 15 significant cerebral edema. Although 16 it was not well displayed, there was 17 some hevorage -- hemorrhage over the 18 left cerebral convexities. Whether 19 this represented subdural or 20 subarachnoid hemorrhage could not be 21 discerned." 22 So there's some differences between the 23 abnormal findings in this respect as described by Dr. Nag 24 and as described by Dr. Smith. You had an opportunity to 25 examine the -- the histology and -- and reflected upon it

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1 in -- in your own medicolegal report. 2 What do you have to say about that 3 difference? 4 DR. HELEN WHITWELL: Well, Dr. Smith had 5 to rely on Dr. Nag's findings together with post-mortem 6 photographs. I actually thought that there probably 7 bilateral subdural hemorrhage present, which more concurs 8 with Dr. Smith's view. 9 MR. MARK SANDLER: Okay. And then if we 10 can return to Dr. Nag's report at page 29, we see that -- 11 have you got that again? 12 DR. HELEN WHITWELL: Yes. 13 MR. MARK SANDLER: I'm flipping it back 14 and forth rather quickly. 15 And under "lungs," he's got acute 16 bronchopneumonia and follicular bronchiolitis. 17 What is follicular bronchiolitis? 18 DR. HELEN WHITWELL: It essentially is 19 described as a chronic inflamation of the smaller airways 20 in -- in the lungs. You can see it secondary to where 21 there has been previous aspiration of contents into the 22 lungs. 23 Sometimes you -- you actually see quite 24 prominent lymphoid follicles with -- with no explanation. 25 They're aggregates of cells, but it implies a chronic

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1 condition. 2 MR. MARK SANDLER: All right. And then 3 at paragraph 73, in Dr. Nag's opinion, the cause of death 4 was: 5 "Respiratory failure secondary to 6 bronchopneumonia and b) aspiration and 7 two (2) massive subdural hematoma." 8 Could you explain what -- what that means 9 in lay terms? 10 DR. HELEN WHITWELL: Well, my 11 understanding is, and I'm not quite clear of the 12 numbering system because -- to me it looks as though he 13 or she -- and I'm not sure if it's a he or she, actually. 14 I think it's a she. 15 MR. MARK SANDLER: It's a she. 16 DR. HELEN WHITWELL: It is a she. She's 17 -- she's actually saying that the main cause of death is 18 the bronchopneumonia caused by aspiration of the gastric 19 contents into the airways. 20 Now, I'm not certain if she's referring to 21 the subdural hematoma under part 1 or 2, because in -- in 22 our -- the way we word our death certificates under the 23 English coronial system would be that number 1 would 24 refer to the major cause of death, and number 2 would be 25 contributing, but not directly related to the cause of

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1 death. 2 I -- I suspect she's -- she's used a 3 similar numbering system. 4 MR. MARK SANDLER: All right. Now just 5 to foreshadow where -- where we're going to go here, how 6 does the cause of death, as expressed by Dr. Nag, relate, 7 if at all, to the history as described by the father? 8 DR. HELEN WHITWELL: Well, the -- the 9 history described by the father, if I can just -- can 10 just refer back to my report? 11 MR. MARK SANDLER: Yes, please do; it's 12 at Tab 26. And your opinion on the case is reflected at 13 -- commencing at page -- page 6 and goes to page 7. 14 15 (BRIEF PAUSE) 16 17 DR. HELEN WHITWELL: I'm sorry, could you 18 just repeat the question again? I'm -- I'm getting 19 slightly confused with these documents at times. 20 MR. MARK SANDLER: No, that's fine. What 21 I had asked you is, Dr. Nag has expressed a -- a cause of 22 death, and we've just looked at it in the report of post- 23 mortem examination, and I'm wondering how that relates to 24 the history that had been communicated by the -- the 25 parent and described earlier on by you in the

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1 introduction to this case. 2 DR. HELEN WHITWELL: Okay, well, what the 3 father said was that he noticed that the child was blue 4 and frothing around the nose, implying difficulty 5 breathing, and then he shook the -- the infant. 6 The cause of death, as related to Dr. Nag, 7 is potentially that that stopping breathing relates to a 8 lung infection causing him to stop breathing, and then 9 the -- the infant was shaken, giving rise to the subdural 10 hematoma. 11 MR. MARK SANDLER: Okay. Now, we'll come 12 back to that topic when we -- when we have a look at -- 13 in more detail of Dr. Smith's report, but if -- if we can 14 look at -- at your comments at page 7 of your medicolegal 15 report in connection with the initial pathology report. 16 What opinion, if any, did you form about any issues that 17 were raised by Dr. Nag's initial work on the case, 18 including the pathology report? 19 DR. HELEN WHITWELL: In -- in my opinion, 20 it was inadequate. This wouldn't fulfill the criteria or 21 the protocols laid down for examining infants. The 22 neuropathology was not available because there are issues 23 relating to the fixation of the brain. In fact, it 24 wasn't fixed. 25 Whether or not it was initially fixed and

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1 then put in water and then left in -- in water, what one 2 couldn't say. That potentially raises issues, in terms 3 of in a forensic facility, making sure that all the 4 protocols are correct and perhaps limit -- limiting the 5 places where these autopsies are done, because you tend 6 to find that things go 'wrong', in inverted commas, where 7 people or individuals are not experienced in terms of 8 these cases. 9 MR. MARK SANDLER: Okay. 10 DR. HELEN WHITWELL: That clearly was out 11 with Dr. Smith's control. The additional thing was there 12 were only a limited number of histology blocks taken for 13 review. A pediatric case in the UK now would involve 14 considerably more blocks of multiple organs. A general 15 estimate would be between perhaps twenty (20) and twenty- 16 five (25). Then if there are specific injuries to look 17 at or bruises, for example, there may be many more. 18 The other thing is the eyes were not 19 removed whole, which potentially would lead -- leads to a 20 subnormal assessment of the -- the ocular pathology. 21 MR. MARK SANDLER: Okay. And on page 8, 22 you make reference to the available photographs from the 23 autopsy, and what opinion did you form as to those? 24 DR. HELEN WHITWELL: It wasn't 25 photographed adequately at all. It's always difficult to

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1 give a generalization as to how many photographs one -- 2 one takes -- that -- that varies between pathologists -- 3 but if I can just remind myself how many there were. 4 Well, I was only available -- I only have 5 two (2) to review. Dr. Smith had six (6), and six (6) 6 would be inadequate, in my opinion. 7 MR. MARK SANDLER: Okay. If we can go 8 from the initial autopsy to the abnormal findings as 9 described by Dr. Smith, and that'll take you back -- and 10 this is how I get you over jet lag -- by flipping you 11 back and forth from documents to keep you awake. 12 If you go to page 44 of the overview 13 report. 14 DR. HELEN WHITWELL: Sometimes it's 15 slightly confusing because the numbers don't match 16 either, at the tops of the pages. 17 MR. MARK SANDLER: Page 44 contains -- at 18 paragraph 117, and this is 142940 -- the abnormal 19 findings as described by Dr. Smith. And we see item 1, 20 (Blunt Head Injury) in parenthesis -- and I'm going to 21 come back and ask you about that in a moment -- with 22 subdural hemorrhage, cerebral edema, optic nerve 23 hemorrhage, retinol hemorrhage. 24 And then under 2, post-resuscitation items 25 that are reflected therein. And just stopping there for

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1 a moment -- if one looks at Items 1.1 to 1.4, is it fair 2 to say that what have been identified as the abnormal 3 findings include what the Commissioner has heard referred 4 to as "the triad"? 5 DR. HELEN WHITWELL: Yes, that's correct. 6 MR. MARK SANDLER: "The triad" being the 7 subdural hemorrhage, the cerebral edema, and the retinol 8 or optic nerve hemorrhages? 9 DR. HELEN WHITWELL: Yes, that's correct. 10 MR. MARK SANDLER: Okay. Now, Dr. Smith 11 provided the comment after the abnormal findings that -- 12 that is reflected at paragraph 118. And he says: 13 "The finding of intra-cranial 14 hemorrhage, cerebral edema, and retinol 15 or optic nerve hemorrhages in the 16 absence of a soft tissue injury is 17 pathoneumonic of Shaken Baby Syndrome. 18 The medical literature indicates that 19 such a pattern of injury may be also 20 caused by the direct application of 21 blunt force trauma. Although, such an 22 interpretation would be controversial. 23 Nevertheless, the autopsy findings in 24 this boy indicate that death resulted 25 from blunt trauma. In the absence of a

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1 credible explanation, this injury must 2 be regarded as non-accidental in 3 nature." 4 Now, couple of issues that I'd like to 5 tease out in connection with the commentary. The first 6 is that -- that Dr. Smith was expressing this opinion 7 after the Amber case and in the early 1990's -- this is 8 1993. And he's reflecting that the findings, which 9 you've described as "the triad", and the absence of soft 10 tissue injury is pathoneumonic of Shaken Baby Syndrome. 11 And stopping there for a moment. The 12 conventional wisdom at the time supported that view, did 13 it not? 14 DR. HELEN WHITWELL: It did, yes. 15 MR. MARK SANDLER: And -- and stopping 16 there for a moment -- and the Commissioner has received 17 some hints of this in the testimony that's already been 18 given -- how is the presence of the triad, absent 19 anything else, pathologically speaking, in England and 20 Wales now dealt with? 21 Can you kind of give us a snapshot of what 22 would happen if one (1) of these cases came through the 23 door? 24 DR. HELEN WHITWELL: Firstly, the -- as a 25 pathologist -- speaking as a pathologist -- one would

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1 record those findings and, say, the subdural hemorrhage, 2 cerebral swelling, and retinol hemorrhage, i.e., "the 3 triad", then comment, There's no evidence of injury, no 4 evidence of blunt trauma, for example, bruising or skull 5 fracture. 6 How they will be dealt with in the fatal 7 cases, there is slightly -- but basically, the discussion 8 revolves around how firm or otherwise a diagnosis of 9 shaking in an infant such as this can be made. 10 They -- the cases such as this are 11 relatively small, in terms of the proportion of the -- 12 the overall numbers of infants and children, and probably 13 the best guide would be to say that on the pathology 14 alone, whilst it may be a pointer to an non-accidental 15 injury, other factors need to be taken into account, and 16 I think that was from the Appeal Court judgment. 17 So, now the number of these actually 18 proceeding to a criminal trial is relatively low -- in 19 fact, very low. 20 COMMISSIONER STEPHEN GOUDGE: The Court 21 actually uses the phrase "strong pointer". 22 DR. HELEN WHITWELL: Correct, yes. 23 COMMISSIONER STEPHEN GOUDGE: Do you buy 24 that as -- you know, I'm going to ask you to second guess 25 judicial commentary, but...

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1 DR. HELEN WHITWELL: It -- it certainly 2 is a pointer. I suppose my concern over these cases, 3 they -- there is quite a discrepancy between the -- the 4 care as history and the findings -- or sorry. 5 What I'm saying is that the history in a 6 number of these cases is quite similar. They're -- 7 they're often found as an infant to have stopped 8 breathing and then -- then they present with the triad. 9 I think what the Court of Appeal was doing 10 was saying, Yes, it is a pointer, but everything else 11 needs to be taken into consideration. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: All right, so -- so 15 you say the -- the majority of these cases, or the vast 16 majority of these cases -- I'm not sure which -- no 17 longer proceed, at least in your experience, to the 18 Criminal Courts, in England and Wales, at least. 19 DR. HELEN WHITWELL: There's certainly 20 reduced numbers of these going to the Criminal Courts, 21 unless there's other evidence of trauma or injury. 22 COMMISSIONER STEPHEN GOUDGE: You used 23 the phrase, Doctor -- 24 DR. HELEN WHITWELL: Not other evidence, 25 unless there's evidence of -- of injury.

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1 COMMISSIONER STEPHEN GOUDGE: Right. You 2 used the phrase in answer to Mr. Sandler, Dr. Whitwell, 3 "of conventional wisdom", as you agreed that conventional 4 wisdom in this period of time, late '80's, early '90's, 5 was that the triad was sufficient to diagnose shaken 6 baby. 7 DR. HELEN WHITWELL: It was, yes. 8 COMMISSIONER STEPHEN GOUDGE: How would 9 you describe the conventional wisdom today, and by 10 conventional wisdom, I understand -- I don't know whether 11 you mean -- but I understand sort of the centre of 12 gravity of where forensic pathology is today? 13 DR. HELEN WHITWELL: The centre of 14 gravity has shifted more to a degree of uncertainty from 15 the certainty that was present in the early '90's. 16 COMMISSIONER STEPHEN GOUDGE: Okay, so 17 the centre of gravity would have a degree of uncertainty 18 attached to it. I take it, reflected by the kind of 19 articulation used by the English Court of Appeal -- 20 pointer, strong pointer; not enough on it's own. 21 DR. HELEN WHITWELL: Correct. 22 COMMISSIONER STEPHEN GOUDGE: Okay. And 23 you would still, though, find expert forensic 24 pathologists today who were prepared to say triad is 25 enough, scientifically, to diagnose shaken baby.

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1 And on the other end of the spectrum, 2 passing over the centre of gravity to the other end, I 3 take it you would also find expert forensic pathologists 4 who say the triad cannot ever be used to -- 5 DR. HELEN WHITWELL: That's correct. 6 COMMISSIONER STEPHEN GOUDGE: -- as a 7 pointer. 8 DR. HELEN WHITWELL: Yes. And that would 9 also apply to pediatricians and -- and other experts. 10 COMMISSIONER STEPHEN GOUDGE: Okay, thank 11 you. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Okay. Now, 15 recognizing that given the conventional wisdom that 16 existed at the day, Dr. Smith, in opining that this is a 17 baby shaking case, would have fallen within that 18 mainstream that -- that was described. Can you help us 19 out as to his commentary where he goes on to say: 20 "The medical literature indicates that 21 such a pattern..." 22 Sorry. 23 "It's pathoneumonic of Shaken Baby 24 Syndrome." he says. 25 And then he goes on to say:

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1 "The medical literature indicates that 2 such a pattern of injury may be also 3 caused by the direct application of 4 blunt force trauma, although such an 5 interpretation would be controversial." 6 DR. HELEN WHITWELL: Well, my 7 understanding of that, that I think he may be referring 8 to the work of Duhaime in the late '80s indicating that 9 blunt trauma was -- was necessary and, you know, the -- 10 the issue of, Had there been impact on a soft surface. 11 That -- that's what I understand. 12 I mean, there is no evidence of blunt 13 trauma, as I understand it, because there's no bruising. 14 There's no skull fracture. 15 MR. MARK SANDLER: Well, that's what I'm 16 about to ask you because, I mean, the first point that 17 you'd make is -- as I understand, is that it appears that 18 he is reflecting, post-Amber, some of dialogue that took 19 place during the Amber trial, right? 20 DR. HELEN WHITWELL: Yes. I mean, that 21 certainly could be the case, yes. 22 MR. MARK SANDLER: But then he goes on to 23 say: 24 "Nevertheless, the autopsy findings in 25 this boy indicate that death resulted

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1 from blunt trauma." 2 How does he get there? 3 DR. HELEN WHITWELL: I don't know 'cause 4 there isn't any pathological evidence of blunt trauma. 5 And that brings us back to that debate. In the young 6 infant, can blunt trauma onto a soft service -- surface 7 or -- a surface not leave any evidence of injury, not 8 leave any bruise or any -- 9 COMMISSIONER STEPHEN GOUDGE: Skull 10 fracture or -- 11 DR. HELEN WHITWELL: -- or skull fracture 12 or whatever? Now, I've already eluded to the -- the 13 differences relating to the potential of bruising -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. HELEN WHITWELL: -- in the young 16 infant. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. HELEN WHITWELL: I have to say that 19 I've taken, usually, a very simplistic view is if there 20 is no bruise then the first -- my first conclusion is 21 there hasn't been an impact -- or certainly, there's no 22 positive proof of an -- of an impact. 23 So it's speculation as to whether or not 24 there has been an impact or not from a pathology -- 25 COMMISSIONER STEPHEN GOUDGE: How do you

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1 factor into that, Dr. Whitwell, what you and I discussed 2 a little while ago, and that is the propensity of the 3 very young brain to inflame more easily with lower level 4 force applied? 5 DR. HELEN WHITWELL: As regards to the 6 actual brain findings? 7 COMMISSIONER STEPHEN GOUDGE: Yes. 8 DR. HELEN WHITWELL: I'm not sure that 9 one can correlate the scalp findings of a bruise with -- 10 with the actual brain findings. 11 COMMISSIONER STEPHEN GOUDGE: Right. But 12 absent scalp, absent skull fracture, you would then see, 13 in effect, the swelling of the brain and -- 14 DR. HELEN WHITWELL: Well, that's what 15 these cases show, yeah. 16 COMMISSIONER STEPHEN GOUDGE: Right, 17 right. And with the very young infant -- the one (1) to 18 three (3) month old child -- lower level of force may 19 produce that reaction quicker or -- 20 DR. HELEN WHITWELL: Potentially. 21 COMMISSIONER STEPHEN GOUDGE: -- with 22 less force than -- 23 DR. HELEN WHITWELL: Yes, potentially 24 because in these cases, pathologically in the brain 25 series, we had a total of eight (8) with no evidence of

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1 bruising or impact, and they fell into this young age 2 group. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 DR. HELEN WHITWELL: And all -- none of 5 those show the severe traumatic brain injury. You know, 6 the motor vehicle -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. HELEN WHITWELL: -- collision, -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. HELEN WHITWELL: -- et cetera. 11 Therefore, you know, the -- the implication is if force 12 is required, you know, how much force -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. HELEN WHITWELL: -- is -- is actually 15 required to -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. HELEN WHITWELL: -- to cause the -- 18 the brain findings. 19 COMMISSIONER STEPHEN GOUDGE: But would 20 that allow you to say that the triad -- the swelling of 21 the brain, in particular, is a stronger pointer, although 22 not sufficient to diagnosis with very young children -- 23 the one (1) to three (3) month range -- then it is when 24 the child gets slightly older? 25 DR. HELEN WHITWELL: In my experience,

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1 when the child is -- is older, the patterns of brain 2 injury more reflect the adult or the older child. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. HELEN WHITWELL: This -- this is 5 quite a specific age, pattern related that -- sorry, age 6 related pattern of brain findings. 7 COMMISSIONER STEPHEN GOUDGE: Brain 8 findings entirely without -- 9 DR. HELEN WHITWELL: With the triad, 10 yeah. 11 COMMISSIONER STEPHEN GOUDGE: -- entirely 12 -- 13 DR. HELEN WHITWELL: Or -- or -- 14 COMMISSIONER STEPHEN GOUDGE: -- without 15 bruising or external -- 16 DR. HELEN WHITWELL: That's right, yeah. 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 DR. HELEN WHITWELL: The -- the ones that 19 are serious with no bruising were -- were all in -- in 20 the young age group. 21 COMMISSIONER STEPHEN GOUDGE: All right. 22 Thank you. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: All right. So -- so

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1 when Dr. Smith said that the autopsy findings in this boy 2 indicate that death resulted from blunt trauma, was there 3 any positive pathology to support that -- 4 DR. HELEN WHITWELL: No. 5 MR. MARK SANDLER: -- conclusion? 6 DR. HELEN WHITWELL: No. 7 MR. MARK SANDLER: And then he goes on to 8 say: 9 "In the absence of a credible 10 explanation, this injury must be 11 regarded as non-accidental in nature." 12 Do you agree? 13 DR. HELEN WHITWELL: No. No, then we get 14 to the issue of if there has been injury whether it's 15 accidental or non-accidental. 16 MR. MARK SANDLER: All right. And what, 17 if anything, in your view, does the pathology tell you 18 about it here? 19 DR. HELEN WHITWELL: You -- you can't 20 say. 21 MR. MARK SANDLER: Okay. And -- and I'm 22 going to come back to that in the context of the history, 23 if I may, because I'm hearkening back to what you said 24 about diffuse axonal injury, and -- and here is a -- one 25 of those cases where we have a history that -- that

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1 involves as part of it, some shaking mech -- some shaking 2 involved, though not -- though not a malevolent shaking, 3 as opposed to a resuscitative shaking. 4 And could that explain the pathology here? 5 DR. HELEN WHITWELL: Well then, one gets 6 into the issue of whether shaking per se, can cause these 7 -- these findings. And as I've already mentioned the -- 8 the biomechanical evidence to support that isn't -- isn't 9 there and the number of cases properly, you know, 10 described as pure shaking are -- are limited. 11 If we go back to the fact that there isn't 12 severe brain injury, if -- if this is related to shaking, 13 and the infant brain's reacting in a different way, then 14 I'm not sure that we can say how much force is required-- 15 MR. MARK SANDLER: Okay. So -- 16 DR. HELEN WHITWELL: -- from the 17 pathology. 18 MR. MARK SANDLER: So let's assume that - 19 - that you were the pathologist who is conducting the 20 autopsy in this matter and all of the tests have come in, 21 and the police meet with you. And, this is not an 22 uncommon scenario, I take it, to you? 23 And the police say, All right, Doctor, 24 you've -- you've outlined the abnormal findings in this 25 case, help us out. We've got this history over here,

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1 where do we go from here, based upon the pathology? Can 2 you help us out as to what likely happened, what might 3 have happened, what you can't exclude as having happened 4 here? What do you have to say to us? 5 DR. HELEN WHITWELL: That's a difficult 6 question because in fact, the -- the -- I think as I've 7 said before, the handling of these cases has -- has 8 altered. And again, there is a spectrum of opinion. 9 There are people who would say, you know, absolutely, 10 definitely has to be shaking, and it has to be severe 11 shaking. And then, there is people with a more, perhaps 12 modified view. 13 It -- there are -- there are a number of 14 these cases now which if this is all you've got, the 15 question is raised, are -- are they -- how diagnostic is 16 the Court of Appeal judgment can one be? 17 MR. MARK SANDLER: And if the police were 18 to say in this case, and I -- and I hear what you're 19 saying, but taking it a step further and say, All right, 20 well we've got this history from the father, can you 21 exclude that history as explanatory of what happened 22 here, or can you cast any light upon that issue? 23 What would you say? 24 DR. HELEN WHITWELL: Well this brings a 25 debate as to whether or not shaking can actually produce

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1 the findings. And as I've said, there is a spectrum of 2 opinion as to, you know, how far one can go with the 3 child alone. 4 I'm sorry, I don't -- I'm not sure that 5 answers -- really answers your question. 6 MR. MARK SANDLER: Recognizing that 7 there's a spectrum, it's a difficult area, and that's -- 8 and this case and others highlight it. Of course, you 9 sit somewhere in the spectrum, so if the police officer 10 was asking you that question, and saying, What do we do 11 with the history here? Is it a credible history given -- 12 given the pathology? 13 What would you say? 14 DR. HELEN WHITWELL: In terms of could 15 this relate to shaking? My view would be, based on what 16 I know, is, it -- it could potentially be due to a 17 shaking injury. The degree of force, if that had 18 happened, one wouldn't be able to comment on. 19 MR. MARK SANDLER: All right. And if the 20 police were then to say, Well, Dr. Nag raised the issue 21 of pneumonia, what do you say as to whether or not 22 pneumonia could have played a part in this death, apart 23 from it following -- 24 DR. HELEN WHITWELL: Following, yeah. 25 MR. MARK SANDLER: -- trauma or shaking,

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1 as opposed to it having precipitated the event? 2 DR. HELEN WHITWELL: Well, there is 3 evidence of chronic aspiration, which Dr. Smith saw, as 4 did Dr. Nag, and as -- as did I, so that raises the 5 question, both the fact that the child has had previous 6 episodes of aspiration how's the pneumonia that's seen, 7 could that potentially be a cause for the child's 8 collapse in the first instance, leading the father then 9 to resuscitate. And I considered that possibility. 10 You know, that was something that I 11 wouldn't in this case be able to exclude, and in fact I - 12 - I would think it's a real -- it's a realistic 13 possibility. 14 MR. MARK SANDLER: Okay. Commissioner, 15 that would be a convenient time. 16 COMMISSIONER STEPHEN GOUDGE: Thank you. 17 And we'll rise then until two o'clock. 18 19 --- Upon recessing at 12:46 p.m. 20 --- Upon resuming at 2:03 p.m. 21 22 THE REGISTRAR: All rise. Please be 23 seated. 24 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 25 Sandler.

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1 MR. MARK SANDLER: That's fine. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Thank you, 5 Commissioner. Professor Whitwell, if we could go back to 6 the overview report which is at Tab 28 of your binder, 7 142940, at page 44. And we were looking at the summary 8 of abnormal findings as found by Dr. Smith at paragraph 9 117. 10 And -- and I just wanted to ask you about 11 two (2) other features of -- of what is said here. The 12 first is that we see that the phrase, (Blunt Head 13 Injury), is in parenthesis in item 1. 14 And we know from testimony that Dr. Smith 15 gave in other proceedings that one (1) of the uses of 16 that -- of parenthesis in his reports, as described by 17 him, is -- a convention to -- to include in a report of 18 post-mortem examination, items which are suspected but 19 which cannot be verified. 20 Is that a convention with which you're 21 familiar? 22 DR. HELEN WHITWELL: No. 23 MR. MARK SANDLER: And the second feature 24 is that I was asking you about -- about the expression in 25 paragraph 113, that although the triad may be

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1 pathoneumonic of Shaken Baby Syndrome, he's also 2 indicated that it may also be cause by blunt force 3 trauma -- 4 DR. HELEN WHITWELL: Sorry, do you mean 5 118? 6 MR. MARK SANDLER: 118, yes. 7 DR. HELEN WHITWELL: Yes. 8 MR. MARK SANDLER: And the autopsy 9 findings indicate that death resulted from blunt trauma. 10 And -- and you recall you -- you indicated to the 11 Commissioner that you don't know how Dr. Smith got from 12 saying that the triad is pathoneumonic of Shaken Baby 13 Syndrome which was a conventional view held at the time, 14 to the view that death resulted from blunt trauma. 15 Is it -- is one (1) of the possibilities 16 here that he's using blunt trauma in a way that's 17 synonymous with both impact injury and shaken baby 18 injury? 19 DR. HELEN WHITWELL: I mean, that -- that 20 may be an explanation. I don't really know -- know the 21 explanation why he's used the term "blunt trauma". 22 Because for me to diagnosis blunt trauma, I would need 23 evidence of blunt trauma. 24 MR. MARK SANDLER: I mean, in -- in 25 forensic pathology circles, as you understand it, would

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1 one use -- even if one's a proponent of the Shaken Baby 2 Syndrome, would one use blunt trauma to describe a case 3 in which one diagnosed it as a shaken baby case? 4 DR. HELEN WHITWELL: No. I mean it may, 5 from the work of Dr. Duhaime, be described as a shaken 6 impact case, but -- but pathologically, there's no 7 evidence of impact or blunt trauma. So -- so I'm afraid 8 I can't really go much further with that. 9 MR. MARK SANDLER: And -- and the reason 10 I raised it with you, just in -- in fairness to Dr. 11 Smith, is that if you look at page 79 of the overview 12 report, when he's testifying at the preliminary inquiry 13 in connection with this matter, at paragraph 210, we see 14 that he says: 15 "I'm confident that this is an 16 extraordinarily [probably should be 17 extraordinary] form of blunt trauma. 18 But I don't know whether it's direct 19 impact or whether it's a shaken injury. 20 And obviously the issue accidental 21 versus non-accidental needs to be 22 addressed, and I have not been given 23 any explanation yet that would satisfy 24 me that Dustin suffered an accidental 25 type of injury."

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1 So, it would at least appear here whether 2 the usage is -- is correct or incorrect that -- that he's 3 using the term "blunt trauma" to embrace both a direct 4 impact injury and a shaking injury, is that fair? 5 DR. HELEN WHITWELL: Well, it -- it would 6 seem so, but -- yes, I mean that -- that would be an 7 interpretation of -- of how it's written. 8 MR. MARK SANDLER: All right. 9 DR. HELEN WHITWELL: I mean, I don't 10 really know. Dr. Smith probably would know. 11 MR. MARK SANDLER: Okay. 12 COMMISSIONER STEPHEN GOUDGE: If he is 13 using it that way -- 14 DR. HELEN WHITWELL: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: -- isn't 16 that bad pathology? 17 DR. HELEN WHITWELL: It's certainly not 18 the way that I would describe it at all, no, but in 19 fairness, at that time others may have described it 20 similar, but I don't think I would. 21 COMMISSIONER STEPHEN GOUDGE: Would it 22 have been commonplace back then, Dr. Whitwell, for 23 anybody to describe something that they concluded was 24 shaken baby in terms of blunt trauma? 25 I think of blunt trauma, I confess, as --

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1 DR. HELEN WHITWELL: As an impact. 2 COMMISSIONER STEPHEN GOUDGE: Yes, as an 3 impact. 4 DR. HELEN WHITWELL: An impact. Either 5 the head impacting on something or something impacting on 6 the head. 7 COMMISSIONER STEPHEN GOUDGE: Yes. 8 DR. HELEN WHITWELL: No, I don't think so 9 as a pathologist, no. No, if there is no evidence of 10 blunt trauma then one doesn't use the term. 11 COMMISSIONER STEPHEN GOUDGE: So in, if I 12 can put it this way, the hay day of Shaken Baby Syndrome, 13 would it have been part of the conventional wisdom that 14 we talked about this morning to describe the injuries as 15 having been produced by shaken baby and be described by 16 blunt trauma? 17 DR. HELEN WHITWELL: Not from the 18 pathology point of view, but -- but as I think I 19 mentioned this morning, it may be that the issue is based 20 on the shaking impact that there has been an impact on 21 the soft surface as -- because you need the impact to 22 produce the forces for the subdural -- 23 COMMISSIONER STEPHEN GOUDGE: Yes. 24 DR. HELEN WHITWELL: -- which goes back 25 to the work of Dr. Duhaime.

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1 COMMISSIONER STEPHEN GOUDGE: So in that 2 sense, one might use the term "blunt trauma". 3 DR. HELEN WHITWELL: Yes, but it would be 4 -- it would be incorrect. 5 COMMISSIONER STEPHEN GOUDGE: Okay, thank 6 you. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: All right, and if we 10 can go back then to your report at Tab 26, page 6, and 11 this is 136005. At page 6, you articulated your opinion 12 on the case and much of this you've already covered, but 13 I just want to highlight several features of it that may 14 have not been covered. 15 You've reflected: 16 "The case is hampered by the absence of 17 neuropathological histology due to 18 inadequate fixation of the brain. This 19 was clearly out of Dr. Smith's 20 control." 21 And you've told the Commissioner that. 22 "Dr. Smith opines that the findings of 23 subdural hemorrhages, cerebral edema 24 with optic retinal hemorrhages as 25 pathoneumonic of Shaken Baby Syndrome.

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1 This almost certainly would be the view 2 of many other clinicians and 3 pathologists at the time. 4 However, Dr. Smith goes on to comment 5 that the findings indicate death as 6 resulted from blunt trauma when there's 7 no evidence whatsoever to support that, 8 ie; no evidence of scalp bruising, 9 skull fracture, contusional brain 10 injury. 11 A number of clinicians, at this time, 12 would also raise blunt trauma as a 13 possibility, particularly in light of 14 the research in the late '80's 15 suggesting that impact was required to 16 produce the findings in the so-called 17 Shaken Baby Syndrome and suggesting the 18 reason that no bruising was identified 19 was that impact was onto a soft 20 surface. 21 Aside from the issues of the head 22 injury, this child showed evidence of 23 pneumonia, which potentially could have 24 been the cause of death, with the 25 possibility that shaking as a result of

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1 resuscitation subsequently took place. 2 Review of the histology indicates a 3 chronic pattern of lung pathology with 4 evidence of recent aspiration and 5 chronic inflammatory cells. In 6 addition, there appears to be an acute 7 component. Dr. Smith does not concede 8 this possibility in testimony." 9 And does that continue to represent your 10 opinion? 11 DR. HELEN WHITWELL: Yes. 12 MR. MARK SANDLER: And when you make 13 reference to the fact that there be support in -- in some 14 or all of the views that were being expressed by Dr. 15 Smith in his report, as well, you're aware from reading 16 the materials that there were clinicians -- 17 DR. HELEN WHITWELL: Sorry. 18 MR. MARK SANDLER: -- Dr. Patel, Dr. 19 Padfield, Dr. Pierce, who also provided some support for 20 -- for the diagnosis of shaking? 21 DR. HELEN WHITWELL: Yes. 22 MR. MARK SANDLER: And I say the 23 diagnosis of it, shaking, insofar as Dr. Smith was 24 adopting a shaking scenario as opposed to an impact 25 trauma scenario?

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1 DR. HELEN WHITWELL: Yes. 2 MR. MARK SANDLER: If we can look at his 3 testimony at the preliminary inquiry, briefly. And I'll 4 take you to -- back to the overview report at Tab 28, 5 142940, page 74. And at paragraph 202, he says: 6 "According to him, there are certain 7 detractives from being absolutely 8 confident of the diagnosis of Shaken 9 Baby Syndrome. Let me share with you 10 the fact I cannot be absolutely certain 11 that the injury in Dustin was a shaken 12 injury. And the two (2) detractives of 13 this are: 14 Number 1. The pattern of hemorrhage on 15 the surface of the brain is very good 16 for shaking injury, but it's not 17 perfect because in a vast majority of 18 instances the hemorrhages, although it 19 occurs over the surfaces of the brain, 20 over the cerebral complexities, it 21 tends to be bilateral symmetrical. And 22 here we have subdural hemorrhage on the 23 right. There may or may not be 24 subdural hemorrhage on the left. It's 25 not as great as on the right, so that

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1 is one (1) minor detract." 2 So stopping there for a moment. You 3 remember one (1) of the issues raised in Amber, which 4 predated this, was failure to give sufficient attention 5 to the unilaterality of the subdural hematoma in that 6 case, right? 7 DR. HELEN WHITWELL: Yes. 8 MR. MARK SANDLER: And in fairness to Dr. 9 Smith, in this case he's acknowledging that the majority 10 of cases in the literature or in the experience that deal 11 with shaken cases, again assuming the validity of the -- 12 of the syndrome involve bilateral subdural hemorrhages, 13 is that right? 14 DR. HELEN WHITWELL: Yes, that's correct. 15 MR. MARK SANDLER: And he says the -- the 16 second minor detract is that he can't be absolutely 17 certain that there's not evidence of head injury 18 somewhere. And -- and he goes on: 19 "And so for that reason -- though this 20 reason fits with the published 21 description of Shaken Baby Syndrome, we 22 can argue it may not be that. If it's 23 not that, then what is it? Well, if 24 it's not an acceleration to 25 deceleration injury then it represents

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1 the application of blunt force trauma 2 to this boy's head. So my conclusions 3 are that he suffered a traumatic injury 4 to his head. Though I'd prefer the 5 explanation that it was a shaking type 6 injury, I cannot rule out the 7 possibility that, in fact, he was 8 struck by some blunt object, which 9 presumably left little marks on him 10 exteriorly." 11 You -- you've already outlined in great 12 detail the -- the science that existed then and now on 13 shaken baby and -- and impact injury. Just asking as a 14 matter of communicative skill or concerns about what 15 message is being communicated systemically, here he's 16 saying: 17 "In the absence -- as you've described 18 it -- of positive pathological 19 evidence of impact injury, I cannot 20 rule out the possibility that he was 21 struck by some blunt object, which 22 presumably left little marks on him 23 exteriorly." 24 Is that the way that you would have framed 25 the issue if you were giving that testimony?

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1 DR. HELEN WHITWELL: No, I wouldn't. I 2 think, perhaps his first point to that, is the issue that 3 he's reliant on information from Dr. Nag in the 4 photographs. But basically, there was no evidence of 5 blunt trauma, but so I'm -- what I think he's saying is, 6 Well, maybe there was blunt trauma, but it hasn't left 7 any marks. 8 That's, I presume, what he's saying. 9 MR. MARK SANDLER: All right. And -- and 10 do you have any concern about how that message is 11 communicated? 12 DR. HELEN WHITWELL: Well -- well, yes, 13 because there isn't any blunt trauma, so what he's doing 14 is speculation. 15 MR. MARK SANDLER: All right. If you go 16 to page 77, paragraph 206. He says in the second 17 sentence in paragraph 206: 18 "According to Dr. Smith, there was some 19 controversy as to whether you can have 20 a lethal head injury by direct impact 21 blunt trauma and not leave any marks. 22 There was a spectrum of opinion on the 23 issue. Dr. Smith was of the view that 24 it might be possible, and I don't know 25 that I'm of that firm opinion myself

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1 anymore. I have to think it may be 2 possible, though I have trouble 3 thinking in cases where in my own mind, 4 I'm absolutely convinced. But that's 5 one (1) of the controversies." 6 Two (2) questions arising out of that. Is 7 that particular issue -- in your view, was that a 8 controversy? In other words, whether you could have a 9 lethal head injury by direct impact blunt imit -- trauma 10 without leaving any marks? 11 DR. HELEN WHITWELL: Yeah, well, that was 12 the issue of Duhaime -- 13 MR. MARK SANDLER: All right. 14 DR. HELEN WHITWELL: -- in terms of you 15 needed impact to generate forces. So -- and hence the -- 16 the term "Shaken Impact" came. 17 MR. MARK SANDLER: And -- and again it 18 would appear here, in fairness to Dr. Smith, that he's 19 acknowledging that there's a spectrum of issue -- of 20 opinions on this issue. Whereas in the Amber case, he 21 had been criticized for -- for failing to direct his mind 22 to this issue by Justice Dunn. 23 DR. HELEN WHITWELL: Yes, I mean he 24 covers the Duhaime work, and he does it in the following 25 paragraph actually.

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1 MR. MARK SANDLER: All right. And then 2 if you go at paragraph 207 at page 78. He also indicated 3 there was some controversy surrounding the question of 4 whether it was possible to shake a baby to death. 5 He believed it was possible to kill a 6 young person by shaking alone. And what we see in the 7 last four (4) lines of the quoted passages: 8 "What's the truth? 9 My feeling is that it's possible to 10 kill a young person by shaking alone. 11 Will we ever know for sure? 12 I don't know. But certainly I've been 13 involved in cases, where in this 14 province, where we've accused people 15 who have admitted to shaking an infant 16 resulting in their death and not having 17 -- and not having directed any blows at 18 the head and neck region. 19 Are such statements believable? 20 I don't know." 21 And again, in fairness to Dr. Smith, he's 22 acknowledging the controversy and expressing a lack of 23 certainty about where it goes? 24 DR. HELEN WHITWELL: Yes, that's correct. 25 MR. MARK SANDLER: Okay. Now if we can

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1 go to page 82 of the overview report. In -- in these 2 paragraphs, 215 and 216, Dr. Smith expresses the opinion 3 that -- that the explanation provided by the parent was 4 not an acceptable explanation, and goes on to say that: 5 "The changes in the lung [and this 6 refers to Dr. Nag's finding of 7 respiratory failure secondary to 8 bronchopneumonia and aspiration] were 9 attributable to Dustin's arrest and 10 resuscitation." 11 And -- and he says at page 83, and I'm not 12 going to read all of that, but about two thirds (2/3s) of 13 the way down, starting with the words: 14 "Now in Dustin, [if you have that] we 15 have the pattern of an RDS, [which he 16 describes above as a Respiratory 17 Distress Syndrome] we have pneumonia 18 and aspiration. The RDS tells us he 19 suffered some form of injury. That 20 injury can simply be because of the 21 shock that he went into as he crashed 22 in Belleville before he was transported 23 and resuscitated to Kingston. That 24 tells me his lungs suffered an injury. 25 But you've not given me, and I haven't

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1 seen any explanation anywhere that 2 would reasonably ascribe the RDS and 3 pneumonia in Dustin to anything other 4 than the changes intendant upon his 5 shock-like state and resuscitation and 6 his life on ventelur -- ventilatory. 7 Well, Dr. Nag says bronchopneumonia's 8 present. I agree with her on that. 9 But I disagree with her in terms of 10 timing. The pneumonia and the RDS are 11 part and parcel of the same response. 12 The pneumonia is in response to 13 aspirated material, which the 14 aspiration would have occurred in this 15 case on the basis of vomiting. You 16 have the pattern of the hyaline 17 membrane disease of the RDS which is a 18 response to injury. Now I don't know 19 if I've explained that point well, but 20 I'm absolutely convinced that all the 21 changes in his lung can be attributed 22 to his arrest and resuscitation." 23 And in your view, can -- can one be 24 definitive that the -- that the changes in the lung are 25 attributable to arrest and resuscitation?

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1 DR. HELEN WHITWELL: No, not in this 2 case, no. 3 MR. MARK SANDLER: All right. And -- and 4 why not? 5 DR. HELEN WHITWELL: Because this issue 6 of the timing from the pathological aspect. There are -- 7 there's also evidence of chronic changes, and I don't 8 think one can be as dogmatic as Dr. Smith was, no. 9 MR. MARK SANDLER: Okay, and then at the 10 following page, page 84, he testified that Du -- Dustin's 11 thymus provided soft evidence in support of the 12 conclusion that the lung changes were attributable to 13 Dustin's arrest and resuscitation, and he notes that: 14 "The thymus will undergo a change in 15 response to major stress. Change takes 16 a week, or perhaps more than a week to 17 develop fully. But after it's 18 developed, if you have survival, the 19 thymus will reconstitute itself and 20 return to more normal architecture. 21 So we look at the thymus and say, What 22 stage does his stress reaction have? 23 And in Dustin's case, his thymus is at 24 a stress reaction stage, which is a 25 day, or less than a day.

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1 And again, that's going back to the 2 point where the circulation is stopped 3 in the hospital; life support was cut- 4 off. So the thymus tells us that he 5 was not a sick boy, prior to maybe 18 6 to 24 hours before discontinuation of 7 life support." 8 Is that evidence that supports Dr. Smith's 9 conclusion, that the lung changes are attributable only 10 to Dustin's arrest and resuscitation? 11 DR. HELEN WHITWELL: No, I don't think 12 so. 13 MR. MARK SANDLER: And -- 14 DR. HELEN WHITWELL: No. 15 MR. MARK SANDLER: And why not? 16 DR. HELEN WHITWELL: Well, one view is 17 that it -- it could potentially be a -- a non-specific 18 finding or a reaction to any number of things. I -- I 19 wouldn't put much emphasis on that. And in defence, he 20 does say a soft -- soft evidence, by which I -- I presume 21 he means, he doesn't mean it's absolute evidence. 22 MR. MARK SANDLER: All right. And then, 23 if you can go to page 88, at paragraph 228, Dr. Smith 24 said the following about the autopsy performed on 25 Dustin's body:

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1 "This is a botched autopsy. The report 2 of the autopsy, the paper that this 3 autopsy's written on, is not worthy of 4 filing as an Exhibit. It should be 5 filed in the garbage can. 6 I'm sorry to say it, but I would not 7 accept this report from a Resident in a 8 pathology. I don't care who signed 9 their name to it, it's wrong from the 10 word go. If you look at the 11 demographics on this report, the 12 information's wrong. Whoever signed 13 this report, either didn't read the 14 hospital chart, did not read the report 15 before they signed it, or they didn't 16 care. 17 I don't know which of these three 18 explanations is correct." 19 And then he's cross examined about whether 20 others have alleged that he's done shoddy work in the 21 past: 22 "Judges have said that about you, 23 you've done shoddy work. One (1) judge 24 -- I'm told by you one (1) judge wrote 25 that in his submission.

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1 I don't know, I don't know what he 2 wrote. That's Judge Dunn, who prior to 3 hearing the defence experts, in fact, 4 told me on more than one (1) occasion, 5 private conversations, how hasty he was 6 with the work I had done and others had 7 done at the hospital. 8 But experts came in on that particular 9 case. Experts came in and said you did 10 shoddy work. 11 A: That's right. 12 Q: The gentlemen from out west in 13 Winnipeg. What's his name -- the expert 14 out there that was flown in from 15 Winnipeg? 16 A: The paid mouth. There's an expert 17 from Winnipeg who's regarded as a paid 18 mouth." 19 Two (2) questions arising out of that. 20 The first is, in your view, is the manner and content of 21 -- of this testimony in keeping with the role of a 22 forensic pathologist? 23 DR. HELEN WHITWELL: Well, it -- it -- 24 in my view -- and I've already commented on the autopsy 25 before -- in my view the terminology is -- it -- it's

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1 over worded and it -- it's not language that one would 2 expect a forensic pathologist to use, in an English court 3 anyway. 4 MR. MARK SANDLER: The other aspect of 5 it, is that he reflects that: 6 "I don't know what he [and that's 7 Justice Dunn] wrote, in his judgment." 8 And we actually see a reference elsewhere 9 in the transcript that I won't take you to -- to the fact 10 that Dr. Smith says that he hadn't read the judgment in 11 the Dunn case -- or sorry, in the Amber case, by Justice 12 Dunn. 13 As a matter of practice as a forensic 14 pathologist, what advice would you give as to whether or 15 not cases in which you've been involved under the subject 16 of judgment should be reviewed by the forensic 17 pathologist in which -- in which they were engaged? 18 DR. HELEN WHITWELL: It's absolutely 19 essential. I've -- I've certainly done that in -- in any 20 cases I've known about judgments. It's just essential to 21 know what comments have been made. 22 MR. MARK SANDLER: Is there any systemic 23 approach in England and Wales to ensure that -- that you 24 do obtain the judgments in cases in which you are 25 involved or -- or do you initiate that -- that aspect of

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1 your -- can you help us out as to that? 2 DR. HELEN WHITWELL: Yes. Latterly, in 3 the last two (2) or three (3) years, the -- the home 4 office have tended to circulate important judgments to 5 everybody on the so-ca -- the Home Office list. Prior to 6 that, then -- and for example with the shaken baby 7 appeals, which was 2005, then one tend -- you tended to 8 go and track the judgment down. 9 And -- for example, in the Sally Clark 10 case, which I was involved in then -- you know, one knew 11 when the Appeal Court was sitting and you knew when the 12 judgment was coming out and you went and downloaded it 13 from the internet. 14 MR. MARK SANDLER: All right. 15 DR. HELEN WHITWELL: Or before then -- 16 you know, before the internet then you -- you got a hold 17 of it. 18 MR. MARK SANDLER: Here - 19 DR. HELEN WHITWELL: I'm not -- I can't 20 imagine not trying to get a hold of any judgment on -- on 21 cases that I had been involved in, and if I knew that 22 they were at the Appeal Court or subject to a judgment. 23 MR. MARK SANDLER: Okay. 24 DR. HELEN WHITWELL: I mean, sometimes 25 infanti -- and perhaps, is the difference of the legal

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1 systems -- sometimes, for example -- well, usually the 2 pathology evidence is referred to and the judge is 3 summing up in an English trial. Now, you may not always 4 see that. 5 MR. MARK SANDLER: All right. 6 DR. HELEN WHITWELL: But I think that's 7 rath -- rather different from a -- from a judge -- 8 MR. MARK SANDLER: A judge alone case? 9 DR. HELEN WHITWELL: -- a -- a -- yes. 10 MR. MARK SANDLER: And do you have judge 11 alone cases in England, as well? 12 DR. HELEN WHITWELL: Not in the -- not 13 initially at the criminal trials, no. 14 MR. MARK SANDLER: Okay. 15 DR. HELEN WHITWELL: No. They -- it's 16 the Appeal Courts that have judges only. 17 MR. MARK SANDLER: I'm just intrigued by 18 something you said. On occasion, do you ever actually 19 obtain what the judge has instructed the jury, by way of 20 summing up? 21 DR. HELEN WHITWELL: In a -- in a case, 22 if I was giving evidence for either the prosecution or 23 defence, possibly only if it became an issue later or 24 somebody specifically asked to me look at it. I mean, I 25 -- I've reviewed a number cases which have gone through

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1 the criminal process, and then if ones -- referred those 2 to give an opinion on, then often they -- judges summing 3 up is in -- is in part of the -- the paperwork. 4 MR. MARK SANDLER: Okay. And just 5 finally under -- under this case, paragraph 234 at page 6 90. We see that when Dr. Smith is commenting upon Dr. 7 Nag's performance at the autopsy, he says: 8 "The fact that the spinal cord was not 9 examined was not acceptable. [And 10 stated] I've never met a 11 neuropathologist who does not examine 12 spinal cords routinely in infants. 13 This is what surprises me about this 14 case." 15 Any comment about that? 16 DR. HELEN WHITWELL: Well, certainly 17 pediatric pathologists and neuropathologists tend to 18 examine the spinal cord, and this -- this is a younger 19 infant than Amber. Probably in the past -- I'm not 20 saying now, but I -- I think, you know, ten/fifteen 21 (10/15) years ago, there may have been cases where it 22 wasn't examined. 23 Now, you know, that's not good practice, 24 but, as I've said, before we started doing peer review 25 and having protocols and having quality issues that, you

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1 know, may not necessarily have happened. 2 MR. MARK SANDLER: Okay. 3 DR. HELEN WHITWELL: But it's not -- you 4 know, shouldn't happen. 5 MR. MARK SANDLER: All right. Let's 6 move, if we may, from the Dustin to the Gaurov case. And 7 I'm going to take you to the same volume, Volume IV, Tab 8 34, PFP143828. And at page 3 of the overview report, it 9 is reflected that Gaurov was born in Toronto on February 10 the 11th of 1992. 11 He died in Toronto on March the 20th of 12 1992 at the age of five (5) weeks. His father was 13 charged with second degree murder. On December the 3rd 14 of 1992, his father pleaded guilty to a new charge of 15 criminal negligence causing death and was sentenced to 16 ninety (90) days in custody to be served on weekend and a 17 period of probation. 18 Gaurov had an older brother. Due to 19 suspicions about Gaurov's death, the older brother was 20 apprehended by the Children's Aid Society on March the 21 20th of 1992. As I understand it, as part of the Chief 22 Coroner's review, you were assigned to be the primary 23 reviewer for this case, as well. 24 DR. HELEN WHITWELL: Correct. 25 MR. MARK SANDLER: It was decided to give

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1 you all the easy cases, I take it? 2 DR. HELEN WHITWELL: No. I think I got 3 some of the most difficult ones. 4 MR. MARK SANDLER: All right. If I can 5 take you to Tab 32, and this is your medicolegal report 6 relating to the death of Gaurov, and at the bottom of 7 page 2 of the medicolegal report, you set out the 8 background, history, and circumstances as you gleaned 9 them from the materials which you reviewed. 10 DR. HELEN WHITWELL: Yes. 11 MR. MARK SANDLER: Could you outline for 12 the Commissioner that background, history, and 13 circumstances? 14 DR. HELEN WHITWELL: Yes, Gaurov was born 15 on the 11th of February, 1992. According to the history 16 available, he was a term infant. Two (2) days after the 17 child was born, his mother became unwell, necessitating 18 subsequent removal of a brain tumour. 19 "On the evening of March the 17th, the 20 father arrived home. The mother went 21 to bed leaving the child in the care of 22 the father. At around 9:30 p.m., the 23 father put the child to sleep in a 24 crib. At around 12:30 a.m. on the 18th 25 of March, the child awoke and he was

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1 fed again. 2 He went back to sleep. A short while 3 later he started crying, at which time 4 the father went to the child; he went 5 limp and turned blue. The father 6 attempted mouth-to-mouth resuscitation 7 and patted him on the back. 8 The ambulance was called and the child 9 was taken to the hospital, initially to 10 Scarborough, and subsequently 11 transferred to the Hospital for Sick 12 Children Toronto. 13 According to the parents, the older 14 brother had suffered possible episodes 15 of not breathing. The child was 16 admitted to the Emergency Unit of 17 Scarborough Hospital; there was no 18 heart rate and no spontaneous 19 breathing. 20 The pupils were fixed. A number of 21 investigations were taken on admission, 22 including CSF, which was reported as 23 showing uniform blood staining. The 24 second sample was xanthrochromic when 25 centrifused. The child was then

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1 transferred to the Hospital for Sick 2 Children where he underwent further 3 investigations, including CT Scan, 4 which was recorded by Dr. Chan. The 5 changes identified on the CT included 6 bilateral subdural effusions, more 7 prominence on the left side with a eff 8 -- effusions in the posterior fossa. 9 MR. MARK SANDLER: If you could just stop 10 there for a moment. We're very familiar with subdural 11 hematoma and -- and hemorrhages, what are subdural 12 effusions? 13 DR. HELEN WHITWELL: They're fluid 14 collections. 15 MR. MARK SANDLER: And -- and is there a 16 distinction between a subdural effusion and a subdural 17 hemorrhage? 18 DR. HELEN WHITWELL: Well, what we've 19 been talking up until now are the acute subdural 20 hematomas, which show acute blood. Effusions, and this 21 is a radiological diagnosis, but effusions usually 22 comprise -- dissolve blood and -- and various fluids, so 23 you're not looking at an acute hemorrhage; that's the -- 24 the contrast. 25 MR. MARK SANDLER: All right. I

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1 interrupted you. You -- you had just completed that 2 sentence and were going to move from there. 3 DR. HELEN WHITWELL: 4 "There was no cephal hematoma in the 5 parietal region. There was a right 6 frontal parietal subdural hemorrhage 7 with hemorrhage along the follix 8 (phonetic) and in the peritentorial 9 region. 10 There was mild brain edema. The 11 ventricles were normal in size. The 12 findings were reported as consistent 13 with old subdural effusions and acute 14 subdural bleeds and bilateral retinal 15 hemorrhages were identified. 16 Despite management, including 17 ventilation, the child died on March 18 the 20th, 1992 after life support 19 services were withdrawn. The clinical 20 diagnosis by Dr. Huyer and supported in 21 correspondence by Dr. McGreal indicated 22 the most likely diagnosis was Shaken 23 Baby Syndrome." 24 MR. MARK SANDLER: Okay. Now, we know 25 that in this case the autopsy was done on March the 21st

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1 of 1992 by Dr. Smith. And if I can take you back to the 2 overview report, page 16 -- 3 DR. HELEN WHITWELL: Sorry, which tab is 4 that? 5 MR. MARK SANDLER: This is Tab 34. 6 DR. HELEN WHITWELL: Yeah. 7 MR. MARK SANDLER: This is 143828, page 8 16 -- 9 DR. HELEN WHITWELL: Yes. 10 MR. MARK SANDLER: -- paragraph 41. 11 These are the investigating officer's notes of the 12 autopsy and -- and he's reflected subdural hemorrhages, 13 subarachnoid hemorrhage, optic nerve hemorrhage, 14 bilateral retinal hemorrhage, hemorrhage along spinal 15 cord, more at lower as opposed to upper, substantial head 16 injury, Shaken Baby Syndrome or blunt force. 17 "If child fed properly then it 18 indicates injury hadn't occurred. 19 Could have resulted as an incident of 20 ignorance. Testing of brain will not 21 likely provide much further evidence." 22 Knowing that we're trying to interpret 23 what an officer has taken down in the autopsy, can you 24 assist us in what some of the concepts might be that are 25 being discussed here, other than the -- the abnormal

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1 findings, which -- which speak for themselves? 2 DR. HELEN WHITWELL: Well, I think 3 there's the discussion around the Shaken Baby Syndrome 4 with the issue of blunt trauma. And then I presume there 5 was discussion about whether or not the child could have 6 fed with any injury. 7 I'm not certain about the instance of 8 ignorance and certainly the statement, "testing of brain 9 will not likely provide much further evidence," doesn't 10 indicate that he -- that the -- to me that implies the 11 brain -- even if the brain is examined it may not provide 12 any further evidence, which wouldn't be correct. 13 MR. MARK SANDLER: All right. We know -- 14 and I'll take you to page 22 of the overview report -- 15 that on paragraph 54: 16 "On May the 28th, 1992, Dr. Becker, the 17 staff neuropathologist, at the Hospital 18 for Sick Children issued his report 19 concluding that Gaurov had suffered 20 major central nervous system trauma. 21 And stopping there for a moment. 22 Do you agree with that conclusion as drawn 23 by Dr. Becker based upon the neuropathology in this case? 24 DR. HELEN WHITWELL: Do you mean -- sorry 25 -- back to paragraph 54?

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1 MR. MARK SANDLER: 54. He concluded that 2 Gaurov had suffered major central nervous system trauma. 3 DR. HELEN WHITWELL: Well, there's 4 potentially evidence of trauma. I -- I don't think I 5 would have described it as major centr -- not in -- I 6 wouldn't have described it in that way. 7 MR. MARK SANDLER: All right. If you go 8 to page 24 and 25 of Dr. Becker's report, he's listed 9 under CNS diagnosis: 10 "Epidural hemorrhage, acute at the 11 spinal cord, subdural hemorrhage, 12 acute, of the frontal convexity, flax 13 cerebri, tentorium cerebr -- cerebelli, 14 optic nerves right and left and spinal 15 cord, subdural hemorrhage, old, focal 16 of the occipital lobe, tentorium 17 cerebelli, and cervical cord, 18 subarachnoid hemorrhage, acute, focal 19 of the basal cistern optic nerves, 20 right and left, retinol hemorrhages, 21 acute, right and left, cerebral edema, 22 and hypoxic ischemic encephalopathy." 23 What is the issue that's -- that's raised 24 in this case, if I might ask you that directly? 25 DR. HELEN WHITWELL: Well, the issue

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1 raised in this case is the infant was five (5) weeks old. 2 There's evidence of old subdural bleeding and the issue 3 is could that have resulted from birth. And then the 4 potentially subsequent rebleeding occurred either with or 5 without trauma. 6 MR. MARK SANDLER: Okay. And we're going 7 to come back to the rebleeding issue in a moment, but if 8 we can -- if we can go from -- from there to Dr. Smith's 9 post-mortem report, which is at page 28. 10 And we see that these are the abnormal 11 findings, many of which are tracked -- 12 DR. HELEN WHITWELL: Mm-hm. 13 MR. MARK SANDLER: -- from -- from the 14 abnormal findings that we just saw from Dr. Becker, the-- 15 DR. HELEN WHITWELL: Yes. 16 MR. MARK SANDLER: -- neuropathologist. 17 At page 25, we see at paragraph 55 that: 18 "Dr. Smith issued his post-mortem 19 examination report and listed the cause 20 of death as -- as head injury." 21 And -- and was that an accurate cause of 22 death in this case? 23 DR. HELEN WHITWELL: It's -- it's the 24 cause of death that would be reasonable at -- at that 25 time, because the issue of re-bleeding in the background

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1 of chronic collections have not really been raised. 2 MR. MARK SANDLER: All right. So, if I 3 can tease out a couple -- 4 DR. HELEN WHITWELL: Although in 5 fairness, no evidence of blunt trauma is described, so in 6 contrast to the last case, he's diagnosed that one as 7 head injury whereas the other one was Shaken Baby. 8 Slightly confusing. 9 MR. MARK SANDLER: Okay. Leave aside any 10 consistency issues, was this a case that presented as the 11 triad again? 12 DR. HELEN WHITWELL: It presented with 13 acute subdural hematomas but with old collections. There 14 was a degree of brain swelling present and I think 15 retinal hemorrhages did develop, so you could loosely put 16 it at -- you could put it in the triad group. 17 MR. MARK SANDLER: All right. And -- and 18 I want to get to the re-bleeding issue in a moment, but 19 before we do, when Dr. Smith was expressing his opinions 20 on this case back in 1992, was the issue of re-bleeding 21 front and centre within the forensic pathology community? 22 DR. HELEN WHITWELL: It was recognized 23 that in some -- in cases of suspected or in cases of 24 infant head injury, that you could see evidence that 25 previous bleeding. The -- how -- whether or not that

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1 could occur -- sorry, of older bleeding. I'm sorry. 2 But in fairness, the issue of the 3 potential for re-bleeding in the background, for example, 4 birth injury with older collections, was assumed not to 5 occur. So it was assumed that there had been another 6 traumatic -- there would have -- have had to be another 7 traumatic event or another event. 8 MR. MARK SANDLER: All right. And how, 9 if at all, has the state of science either developed in 10 terms of either another controversy or something more 11 that's known about -- about this issue since 1992? 12 DR. HELEN WHITWELL: Well firstly there 13 has been mainly radiological work done on normal 14 deliveries. In fact screening of babies when they're 15 born, which has dem -- does demonstrate a proportion of 16 them, in both normal and abnormal deliveries, may have 17 subdural bleeding. 18 MR. MARK SANDLER: So just stopping there 19 for a moment. So -- so the radiological studies have 20 shown that subdural bleeding can exist -- 21 DR. HELEN WHITWELL: At birth. 22 MR. MARK SANDLER: -- as a birth injury? 23 DR. HELEN WHITWELL: Correct. 24 MR. MARK SANDLER: All right. Go on 25 please.

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1 DR. HELEN WHITWELL: Now what isn't known 2 because the -- the studies of which there are few, have 3 only been done in the last two (2) or three (3) years, is 4 how long the evidence of subdural bleeding can remain. 5 And -- and the issue of whether or not re- 6 bleeding can occur in the background of older bleeding 7 without trauma. 8 MR. MARK SANDLER: All right. So -- so 9 the issue that's being raised, as I understand it, is 10 whether or not -- and -- and perhaps it's the wrong 11 terminology to say spontaneously, but whether or not old 12 bleeds in effect can re-bleed without the intervention of 13 trauma? 14 DR. HELEN WHITWELL: That's correct. 15 MR. MARK SANDLER: And -- 16 COMMISSIONER STEPHEN GOUDGE: How would 17 they start if it wasn't for an intervening event? 18 DR. HELEN WHITWELL: Well -- 19 COMMISSIONER STEPHEN GOUDGE: Just 20 theoretically. 21 DR. HELEN WHITWELL: Because in -- in 22 older hematomas or older collections you've got tiny 23 blood vessels which are quite thin walled. 24 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 25 DR. HELEN WHITWELL: So potentially they

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1 can start re-bleeding. And we know in adults that can 2 happen. 3 COMMISSIONER STEPHEN GOUDGE: In a way 4 that -- and Mr. Sandler used the word spontaneous -- in 5 a way that's spontaneous? That is -- 6 DR. HELEN WHITWELL: I think the -- you 7 know, that -- that has to be considered in the background 8 of -- of birth trauma. We probably don't know enough to 9 say that it can't. It has to be taken into account as a 10 possibility. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right. And -- and 14 I'm just interested -- I'm -- I'm actually looking even 15 though we haven't reproduced it, but I'm looking in your 16 text book on forensic neuropathology, at -- at page 147, 17 and -- and it's a single paragraph and I'll just read it 18 out perhaps to -- 19 DR. HELEN WHITWELL: Can I -- sorry, can 20 I find that -- 21 MR. MARK SANDLER: You can. 22 23 (BRIEF PAUSE) 24 25 MR. MARK SANDLER: Through the magic of

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1 modern technology, see if I can read it: 2 "Re-bleeding and subdural hematomas. 3 It's well recognized in adults that a 4 process of organization and 5 liquefaction of a subdural hematoma 6 will occur within several days with 7 membrane formation. It has been said 8 by some authors that re-bleeding in a 9 subdural hemorrhage is not an 10 explanation for symptoms or 11 presentation in the young. 12 This is also subject to debate. 13 Evidence of subdural hemorrhages of 14 various ages is seen in cases of infant 15 head injury. Work referred to before 16 indicates that scanning reveals 17 intercranial pathology, including 18 subdural hemorrhages in a number of 19 asymptomatic children. And 20 disappearing subdurals have been 21 described." 22 What does that mean a "disappearing," 23 probably self-evident but a "disappearing subdural"? 24 DR. HELEN WHITWELL: Well that was from a 25 paper of Duhaime, and essentially what it means, they

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1 appear, but then resolve. 2 MR. MARK SANDLER: All right. 3 "Clinically chronic subdural 4 hemorrhages are not uncommon, and it's 5 logical to assume that they, at some 6 point, were acute. It does not 7 necessarily mean that the injury was 8 hidden, but rather that the injury was 9 not severe enough to be considered 10 serious at the time. 11 It is well recognized that subdural 12 hemorrhages occur as a result of birth, 13 including normal deliveries. The 14 mechanism of membrane formation with 15 reabsorption of a chronic subdural 16 hemorrhage has never been demonstrated 17 to be different from that in adults. 18 Re-bleeding and subdural hemorrhages 19 may occur with minimal or no trauma in 20 the adult population. Clearly, each 21 case needs to be considered in the 22 light of all available evidence." 23 So as I understand it, this too, 24 represents another controversy in forensic pathology. 25 The -- the extent to which re-bleeding can or is likely

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1 to occur in these infant cases where there's an original 2 birth injury. 3 DR. HELEN WHITWELL: That's correct. 4 MR. MARK SANDLER: And, as a matter of 5 interest, are there cases where this re-bleeding issue 6 presents itself in the work that you do in England and 7 Wales; and if so, how is that issue now accommodated 8 within the Criminal Justice System? 9 DR. HELEN WHITWELL: There are. And the 10 last case I had at both the prosecution -- I was acting 11 for the defence -- the prosecution forensic pathologist 12 and neuropathologist raised that possibility, and the 13 case didn't proceed to trial. 14 MR. MARK SANDLER: All right. So it -- 15 it was raised not only by you as defence consultant 16 pathologist, but also at the initiative of the 17 pathologist retained by the Crown? 18 DR. HELEN WHITWELL: Yes, it did -- was, 19 yes. 20 COMMISSIONER STEPHEN GOUDGE: How old was 21 the infant? 22 DR. HELEN WHITWELL: It was a few weeks. 23 I can't -- I'm afraid I can't remember the exact age. 24 COMMISSIONER STEPHEN GOUDGE: I mean, I 25 assume there's a --

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1 DR. HELEN WHITWELL: It was a young, yes, 2 it was a young -- 3 COMMISSIONER STEPHEN GOUDGE: Yeah, 4 there's an outer time line beyond which a birth induced 5 bleed would not re-bleed. 6 DR. HELEN WHITWELL: Well, we don't know 7 the outer limit. But in fact, the scanning series tends 8 to suggest, you know, four (4) weeks or so -- or the 9 scanning series that have been done. The infant in 10 question was around the age of this child. I'm sorry, I 11 just can't remember the exact age. 12 COMMISSIONER STEPHEN GOUDGE: Right, 13 right. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. So if we 17 go back to your medical -- 18 COMMISSIONER STEPHEN GOUDGE: Sorry, I 19 just -- I'm interested in -- in the medicine, Dr. 20 Whitwell. If an older child suffers a bleed like this, 21 does it run the risk of a re-bleed within, say, four (4) 22 weeks? Injury say based on trauma, a blow? 23 DR. HELEN WHITWELL: Well -- in fact, in 24 adults, chr -- chronic subdural -- from an acute subdural 25 -- we don't know the answer in fairness. I have seen

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1 infants who've been in hospital following subdural 2 hematomas and a degree -- 3 COMMISSIONER STEPHEN GOUDGE: Infants 4 older than four (4) weeks like. 5 DR. HELEN WHITWELL: Yeah. And -- and 6 I'm -- with evidence of subdural hematomas and brain 7 damage, and rebleeding has occurred whilst in the 8 hospital was spontaneously. 9 COMMISSIONER STEPHEN GOUDGE: Right. So 10 it's not something that is unique to newborns. 11 DR. HELEN WHITWELL: No. I think in this 12 case, was the issue of the birth -- potential birth 13 injury and then -- 14 COMMISSIONER STEPHEN GOUDGE: Yeah, well 15 that cause -- that would cause the original bleed. 16 DR. HELEN WHITWELL: Yeah, correct. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 Thanks. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: All right. Now, if I 22 can take you back, and we're only going to briefly deal 23 with -- with this case today, but if you can go to Tab 24 32, which is your medicolegal report, 136013, at page 6. 25 DR. HELEN WHITWELL: Yes.

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1 MR. MARK SANDLER: And you've reflected 2 under opinion that: 3 "The male infant had old subdural 4 hematomas. It's now recognized that 5 subdural bleeding may occur in a 6 proportion of normal as well as 7 assisted deliveries. In addition, 8 there were areas of fresh bleeding. 9 This raises the issue of whether or not 10 re-bleeding can occur in the background 11 of chronic subdural hematomas. This is 12 a contentious and debated issue." 13 And just stopping there for a moment. Two 14 (2) points arising out of this. The first is that -- 15 that Dr. Pollanen told us, when -- when he did a 16 presentation on the controversies surrounding the Shaken 17 Baby Syndrome, that this is indeed a very highly 18 controversial and contested matter and that there are 19 some that are, to put the term -- charitably extremely 20 sceptical about -- about this theory being advanced in 21 favour of -- of an accused in -- in criminal case. 22 And -- and you're aware of the extent and 23 depth of the controversy over the re-bleeding issue? 24 DR. HELEN WHITWELL: Yes. Whether or not 25 that related specifically to the potential of a birth

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1 injury and then re-bleeding or whether it related to 2 older children, I -- I'm not certain in what context he 3 was talking. But I'm talking spec -- you know, in this 4 case -- 5 MR. MARK SANDLER: All right. 6 DR. HELEN WHITWELL: -- of this case. 7 MR. MARK SANDLER: Okay. I mean, simply 8 put that -- that if one were to canvass views of forensic 9 pathologists in the community today about this case, it's 10 fair to say that within the forensic pathology community 11 there would be considerable support for the proposition 12 that re-bleeding does not explain the events that's 13 described here. Is that a fair -- 14 DR. HELEN WHITWELL: I would suspect that 15 forensic pathologists in England would bat it off to 16 pediatric pathologists and neuropathologists in the main. 17 And in -- in fairness, the case I've referred to, the 18 forensic pathologist did take the view that it had to be 19 considered a possibility as did the neuropathologist. 20 But you're correct, other forensic 21 pathologist may say, you know, I don't believe it, it 22 doesn't happen. 23 COMMISSIONER STEPHEN GOUDGE: So when you 24 saw the issue was contentious, you mean there are some 25 forensic pathologists who say it cannot, theoretically,

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1 occur; it being a re-bleed. And some who say, yes, it 2 can, theoretically, and we have to recognize it as a 3 possibility. 4 DR. HELEN WHITWELL: Yes, that's correct. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Now, the other issue 9 that -- that is of interest here is the -- is the 10 history. And -- and you described the history, as you 11 understood it, and part of that history, back at page 3 - 12 - and this is apart from the rebleeding issue -- part of 13 that history, as you understood it, was that -- was that: 14 "The child was fed again shortly after 15 12:30 a.m., went back to sleep, started 16 crying, the father went to the child, 17 the child went limp and turned blue. 18 The father attempted mouth to mouth 19 resuscitation and patted him on the 20 back." 21 And -- and if I can take you to the 22 overview report and -- and simply add some of the 23 potential facts to the equation. And in that regard, I'm 24 going you to paragraph 66 -- 25 DR. HELEN WHITWELL: Yeah.

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1 MR. MARK SANDLER: -- which is at page 2 34. 3 DR. HELEN WHITWELL: Yes, I have it. 4 MR. MARK SANDLER: And -- and this 5 reflects that: 6 "The investigating officer received 7 written statements from the fire 8 department personnel who attended on 9 scene the evening of March the 18th, 10 '92. Two (2) of the firefighters 11 advised that Gaurov's aunt had picked 12 up Gaurov and shaken him in their 13 presence. One (1) of the firefighters, 14 Paul Rooney, stated that she shook 15 Gaurov quite hard, once or maybe twice. 16 Detective Prisor called Mr. Rooney to 17 clarify his statement. According to 18 Detective Prisor, Mr. Rooney stated 19 that the aunt picked up the baby, 20 extended her arms out and back enough 21 to cause head to snap back and forth. 22 Detective Prisor subsequently spoke 23 with Mary Hall [that's the Crown 24 attorney] and left a message for Dr. 25 Smith to call him. Detective Prisor

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1 called Mr. Rooney again, later that 2 day, to clarify his statement." 3 The notes of that conversation stated 4 "hard shake, two (2) or three (3) 5 times, head snapped back and forth." 6 Detective Prisor spoke with two (2) other 7 firemen. One (1), Kendrick stated that the baby was 8 shaken three (3) or four (4) times, not violent. Captain 9 Martin stated that there were two (2) shakes, not 10 violent. All three (3) conversations were audio taped. 11 And the Detective later spoke with Dr. Smith about that 12 history. And his notes of the response stated that 13 "this would not have caused the 14 injuries as the child was lifeless, no 15 circulation, and hemorrhaging would not 16 occur. Advised shaking was non- 17 violent." 18 How does one factor in, if at all, 19 assuming for the purposes of our discussion, the accuracy 20 of that history, as described by -- by the officer, how 21 does one factor that in -- into the issues that are 22 raised by this case, if one does? 23 DR. HELEN WHITWELL: Well, we've covered 24 the potential of the birth, sorry the birth subdurals. 25 And we've covered the issue of whether or not these can

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1 re-bleed spontaneously. They would more like -- they 2 would be more likely re-bleeding, if there has been an 3 element of trauma. 4 And, you know, that could produce an 5 explanation. The description that I've read, or you've 6 read rather. 7 MR. MARK SANDLER: All right. And -- and 8 I want to understand because we've been using the term 9 "trauma." When you use "trauma," what do you mean there? 10 DR. HELEN WHITWELL: Well, that -- that 11 is -- that is described as trauma with the head going 12 back and forth; that's what I'm meaning. And the -- 13 enough to cause the head to move back and forth -- shook, 14 quite hard, once maybe twice. 15 MR. MARK SANDLER: Okay. And finally, I 16 want to ask you, back to your report at Tab 32, page 6, 17 and just at the bottom, you've reflected, after Item 1, 18 sorry, under Item 1: 19 "At the time of this case, 1992, the 20 common prevailing view was similar to 21 that of Dr. Smith, with clinicians in 22 particular, holding these opinions. 23 The expressed opinions of Dr. Smith and 24 the clinicians were conventional for 25 the time. However, these opinions

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1 would be subject to challenge in view 2 of the advances in medical knowledge. 3 This case illustrates that not only did 4 Dr. Smith make a diagnosis of head 5 injury, with opinions on causation that 6 would now be challenged, but the 7 clinicians involved in the management 8 also had similar views. 9 Dr. Smith's descriptive report was 10 detailed. No opinion as to the 11 mechanisms involved in the causation of 12 the head injury, or discussion relating 13 to the findings was included in the 14 report. I do note, however, that Dr. 15 Smith in a meeting on June the 26th, 16 1992, and this is referable to notes in 17 a police report, indicated that the 18 injuries were definitely non-accidental 19 in nature, and the injuries were 20 consistent with previous Shaken Baby 21 Syndrome. 22 He also comments that the damage was 23 probably the result of continuous 24 shaking as opposed to a single violent 25 shake."

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1 What do you say about the last comment? 2 "That the damage was probably the 3 result of continuous shaking as opposed 4 to a single violent shake." 5 DR. HELEN WHITWELL: Well, I don't think 6 we can say that. That again, may well, however, been the 7 view in that -- in that era. 8 MR. MARK SANDLER: All right. In your 9 view, does the current state of the science support that 10 view? 11 DR. HELEN WHITWELL: No. 12 COMMISSIONER STEPHEN GOUDGE: I take it 13 we get two (2) issues intertwined here. 14 DR. HELEN WHITWELL: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: One (1) is 16 whether Shaken Baby can -- 17 DR. HELEN WHITWELL: Yes, yes. 18 COMMISSIONER STEPHEN GOUDGE: -- as a 19 matter of pathology, produce these effects. And 20 secondly, the re-bleed issue. 21 DR. HELEN WHITWELL: Correct. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Okay. Professor 25 Whitwell, you'll be happy to hear, those are all the

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1 questions I'm gonna ask you today. We'll deal with your 2 second grouping of cases, tomorrow morning. And I'm 3 going to turn to Dr. Saukko now. 4 You've been very patient, Dr. Saukko, and 5 I'm very grateful. We're going to deal with the Delaney 6 case, if we may, Doctor, and if you have your volume, 7 Volume I, if I can take you to Tab 6, which is PFP142877. 8 And if you'd go to page 4 of the overview report, we see 9 that Delaney was born in Woodstock, Ontario on December 10 the 20th of 1992. 11 Delaney was the child of Olga and 12 Fernando. Delaney was pronounced dead on May the 23rd of 13 1993 at Woodstock General Hospital. And he was five (5) 14 months old at the time of his death. Criminal 15 proceedings were initiated against his mother. 16 On April the 25th of 1994, she was 17 convicted by a jury of infanticide and shortly, 18 thereafter, was given a suspended sentence and three (3) 19 years probation. As I understand it, Doctor, as part of 20 the Chief Coroner's review, you were assigned to be the 21 primary reviewer in this case, am I right? 22 DR. PEKKA SAUKKO: That's correct. 23 MR. MARK SANDLER: And if I can take you 24 to your medicolegal report, which is reproduced in the 25 same volume at Tab 4. And at page 4 of your report,

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1 135429, you set out the background history and 2 circumstances that you gleaned from your review of the 3 file. 4 And could you relate those to the 5 Commissioner, please? 6 DR. PEKKA SAUKKO: Yes. 7 "The coroner's investigation statement 8 stated that at 1500 hours on May 23rd, 9 1993, Delaney, a five (5) month old, 10 previously healthy male infant was 11 brought to the Woodstock General 12 Hospital by extended family members. 13 The child showed no vital signs and was 14 cold and stiff and did not respond to 15 resuscitat -- resuscitation. With the 16 exception of a few scratches of the 17 face, there were no obvious signs of 18 trauma. The mother, Olga Policarpo had 19 a history of dreams, of visions, of the 20 Virgin Mary or Our Lady of Fatima since 21 the age of five (5) and these had been 22 increasing since late 1992. 23 On Friday, May 21st, 1993, Olga 24 Policarpo had informed her coworkers 25 that they should pray this weekend as a

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1 miracle was about to take place and 2 informed her mother that Our Lady of 3 Fatima requested that the family pray 4 together for peace and salvation. 5 Her mother's residence was prepared for 6 this purpose, and in the evening of May 7 22nd, nineteen (19) family members 8 gathered there. Through the evening 9 hours, many of them decided to leave or 10 were asked to leave by Olga Policarpo 11 until at 10:00 p.m. all were asked to 12 leave and asked not to return until 13 next day. 14 But she herself intended to stay there 15 with Delaney and her sister's two (2) 16 year old daughter, Leanne, and continue 17 to pray for the latter's health. 18 In the afternoon of the following day, 19 between 1400 and 1430 hours when some 20 of the family members returned into the 21 house, they found Olga Policarpo 22 sitting in the middle of the bed with a 23 rosary in one (1) hand and a piece of 24 broken glass in the other and her face 25 covered with dry blood around her

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1 mouth, holding Leanne, wrapped in a 2 blanket, rocking back and forth. 3 Delaney was lying motionless on his 4 back in the middle of the bedroom floor 5 on a pillow. He appeared to be blue 6 and was cold to touch. Attempts at 7 mouth to mouth resuscitation were made 8 to no avail, and Delaney was taken to 9 the Woodstock General Hospital. They 10 arrived at 1511 hours and despite 11 attempted resus -- resuscitation, 12 Delaney did not respond and Woodstock 13 City Police was notified. A forensic 14 autopsy was ordered and performed by 15 Dr. Charles Smith the following day, 16 May 24th, 1993." 17 MR. MARK SANDLER: Thank you. And if I 18 can take you to the overview report at Tab 6 again, page 19 20. 20 21 (BRIEF PAUSE) 22 23 MR. MARK SANDLER: Here we have the 24 observations made by Dr. Smith during the internal 25 examination at paragraph 42 of page 20, and you see under

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1 item A, little two (2), mediastinum, there was dark red 2 hemorrhage in the connective tissues of the superior 3 mediastinum, can you see that? 4 DR. PEKKA SAUKKO: Yes. 5 MR. MARK SANDLER: And where is the 6 mediastinum? 7 DR. PEKKA SAUKKO: Mediastinum is the 8 central compartment of thor -- thoracic cavity containing 9 the heart, the blood vessels of the heart, esophagus, 10 trachea, thymus and lymph nodes of the central chest. 11 MR. MARK SANDLER: All right. And then 12 on the next page, page 21, and I'm just going to take you 13 to two (2) items right -- right now, under Respiratory 14 System, we see trachea: 15 "The endotracheal tube was properly 16 positioned; the tracheal lumen was 17 otherwise unobstructed..." 18 And in this portion, which is the one (1) 19 that I want to ask you about in a moment: 20 "...in the lower cervical region there 21 was dark red discolouration of the 22 para-tracheal connective tissues." 23 Whereabouts is the -- are the paratracheal 24 connective tissues? 25 DR. PEKKA SAUKKO: Well, they are beside

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1 the trachea. 2 MR. MARK SANDLER: All right. You ask a 3 stupid question and -- and you get a direct answer. All 4 right, so I want to ask you about those two (2) findings 5 that are described, or observations that are described by 6 Dr. Smith in his report of post-mortem examination. 7 And -- and if I can take you back to your 8 medicolegal report at Tab 4, you address those two (2) 9 observations by Dr. Smith in your report, do you not? 10 DR. PEKKA SAUKKO: Yes. 11 MR. MARK SANDLER: And at page 5, you 12 make some observations under photographs and could you 13 explain to the Commissioner what conclusions you arrived 14 at from -- from your examination under photographs? 15 DR. PEKKA SAUKKO: Yes, the region that 16 was photographed was supposed to show the hemorrhagic 17 areas described in the connective tissues of the upper 18 mediastinum, but they were not shown on the photo. 19 MR. MARK SANDLER: All right. And on -- 20 DR. PEKKA SAUKKO: And then there was 21 this other -- other finding of hemorrhage which had not 22 been photographed, or at least, there was no photo, so no 23 evidence of -- of the second change suggesting possible 24 hemorrhage. 25 MR. MARK SANDLER: All right, so just

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1 breaking that down for a moment, in connection with the 2 upper mediastinum, there were photographs of the region 3 as I understand it, but it's -- it's your opinion that 4 the photographs didn't demonstrate what you would expect 5 to be there if Dr. Smith's observations were correct, is 6 that right? 7 DR. PEKKA SAUKKO: Yeah, in my 8 understanding, it should have been seen on the 9 photograph, but there was no such change. 10 MR. MARK SANDLER: All right. And then 11 in so far as it related to the dark red discolouration of 12 the para-tracheal connective tissues, as I understand 13 your evidence, no photographs were taken one (1) way or 14 the other to speak to that issue. 15 DR. PEKKA SAUKKO: At least such a 16 photograph was not included with the material. 17 MR. MARK SANDLER: All right. Now, if I 18 can go back, and I apologize that I'm -- I'm going back 19 and forth from overview report to your report -- if you 20 go back to Tab 6, paragraph 43, this is at page 21. 21 DR. PEKKA SAUKKO: Yes. 22 MR. MARK SANDLER: It says: 23 "According to the report of post-mortem 24 examination, Dr. Smith made the 25 following microscopic and laboratory

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1 findings." 2 And as I understand it, just stopping 3 there for a moment, these would be findings that relate 4 to the -- to the histology, as opposed to simple 5 macroscopic examination, is that right? 6 DR. PEKKA SAUKKO: That's -- that's 7 correct. 8 MR. MARK SANDLER: And what is said here 9 is that: 10 "The epiglottic region -- ." 11 And I'll just stop for a moment. The 12 epiglottic region refers to what? 13 DR. PEKKA SAUKKO: Epiglottic is lint- 14 like structure of elastic cartilage covered by a mucous 15 membrane which -- attached to the roof of the tongue and 16 it closes the -- when you swallow it closes the trachea 17 so that food, whatever you are swallowing goes into the 18 esophagus, not in the trachea. 19 MR. MARK SANDLER: Okay. So it's 20 basically the lid for the trachea. 21 DR. PEKKA SAUKKO: The lid. 22 MR. MARK SANDLER: And so it says: 23 "The epiglottic region showed acute 24 ulceration and necrosis of the covering 25 stratified squamous epithelium."

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1 What is the covered -- covering stratified 2 squamous epithelium? 3 DR. PEKKA SAUKKO: That's the mucous 4 which is covering the epiglottis. 5 MR. MARK SANDLER: All right. 6 DR. PEKKA SAUKKO: Because in different 7 parts of the body you have different kinds -- types of 8 epithelial tissue. 9 MR. MARK SANDLER: Okay. And then it 10 says: 11 "Associated with this was disruption of 12 the local tissue with foreign material 13 embedded in the subepithelial regions." 14 And I take it the subepithelial regions 15 are the regions below the epitheia? 16 DR. PEKKA SAUKKO: That's correct. 17 MR. MARK SANDLER: 18 "Some bundles of skeletal muscle 19 demonstrated acute ischemic necrosis. 20 Focal acute hemorrhage was seen in the 21 connective tissues and the trachea was 22 unremarkable." 23 Now did you have occasion to examine the 24 histology in order to determine whether or not those 25 findings were supported?

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1 DR. PEKKA SAUKKO: Well, the problem with 2 this -- this particular finding was that there was no 3 such block according to the blocking list. And no -- no 4 slides about -- taken from epiglottis. 5 MR. MARK SANDLER: So, I mean as a lay 6 person, I -- I want to understand this. That -- that Dr. 7 Smith has made a finding about what the epiglottic region 8 showed and according to your review of the histology, no 9 histology was taken of the epiglottic region, is that 10 right? 11 DR. PEKKA SAUKKO: That's correct. Not 12 according to the blocking list. 13 MR. MARK SANDLER: Okay. 14 DR. PEKKA SAUKKO: And the available 15 slides. 16 MR. MARK SANDLER: All right. 17 Commissioner, that would be a convenient point if we 18 could? 19 COMMISSIONER STEPHEN GOUDGE: We'll rise 20 then until 3:30. 21 22 --- Upon recessing at 3:14 p.m. 23 --- Upon resuming at 3:31 p.m. 24 25 THE REGISTRAR: All rise. Please be

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1 seated. 2 COMMISSIONER STEPHEN GOUDGE: Mr. 3 Sandler...? 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Thank you, 7 Commissioner. If we can go to Tab 4, your medicolegal 8 report, Doctor, 135429, and I'm looking at page 7. 9 DR. PEKKA SAUKKO: Yes. 10 MR. MARK SANDLER: And in page 7, you 11 deal with several issues. We've already dealt with the 12 first sentence under histology. Namely: 13 "The review of the histology could not 14 confirm the diagnosis in connection 15 with the epiglottic region." 16 You've also dealt with the other part of 17 Dr. Smith's microscopic and laboratory findings that I 18 read out of earlier. Could you advise the Commissioner, 19 under histology, what it is that you determine in 20 connection with the balance of Dr. Smith's opinion? 21 DR. PEKKA SAUKKO: Well, all the observed 22 changes could have been post-mortem which was supposed to 23 -- I mean, the detachment of the epithelium and also -- 24 yes, the detachment of the epit -- epithelium either due 25 to com -- decomposition or manipulating during the

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1 resuscitation. And there was also post-mortem bacterial 2 growth which supports that, but no vital reaction of the 3 tissue. 4 MR. MARK SANDLER: So your opinion 5 disagreed with what Dr. Smith found to be significant 6 microscopic and laboratory findings on the histology? 7 DR. PEKKA SAUKKO: Yes, that's correct. 8 MR. MARK SANDLER: And if we can move 9 from there to look at Dr. Smith's abnormal findings, and 10 we're back in the overview report at Tab 6, 142677, at 11 page 22. 12 DR. PEKKA SAUKKO: Yes. 13 MR. MARK SANDLER: And at paragraph 44, 14 the abnormal findings are summarized, and I'm going to 15 ask you about -- about them as we go through. 16 Item 1 is asphyxia and in parenthesis is 17 Digital Airway Obstruction 18 And I'm going to come back to that for a 19 moment, but I'll just ask you generally now. In your 20 opinion, can one find asphyxia -- digital airway 21 obstruction in this case -- based upon the pathology that 22 exists? 23 DR. PEKKA SAUKKO: No. 24 MR. MARK SANDLER: And then we see acute 25 hemorrhage. And -- and these would be -- I -- I take it

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1 the way this is structured -- pathology that supports the 2 existence of asphyxia? Acute hemorrhage involving the 3 epiglottis. And you've already spoken to the issue of 4 the epiglottis. 5 DR. PEKKA SAUKKO: That's correct. 6 MR. MARK SANDLER: 7 "The thymus, the soft tissues of the 8 superior mediastinum, and the soft 9 tissues adjacent to the lower cervical 10 trachea". 11 So could you comment upon the existence of 12 these findings and how they bear upon asphyxia? 13 DR. PEKKA SAUKKO: Well, asphyxia to 14 begin with is a slightly problematic expression. To be 15 exact, it literally means -- it comes from Greek, it 16 means without pulse or heartbeat. And it -- that's all 17 it tells unless you explain it in -- in detail related to 18 something else. 19 So the term alone is -- is not specific. 20 MR. MARK SANDLER: All right. What about 21 the -- the findings that are contained under asphyxia? 22 "Acute hemorrhage involving the 23 epiglottis, thymus, soft tissues of the 24 superior mediastinum, and the soft 25 tissues adjacent to the lower cervical

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1 trachea?" 2 DR. PEKKA SAUKKO: Thymus bleedings and 3 these others are -- well, there was no evidence about the 4 soft tissue hemorrhage as it was not shown in -- in the 5 photo. And neither there was any evidence -- no 6 documentary about the soft tissue adjacent to lower 7 cervical trachea which was suggesting bleeding. 8 MR. MARK SANDLER: All right. And -- 9 DR. PEKKA SAUKKO: And these petechial 10 hemorrhages involving thymus, pulmonary pleura, 11 epicardium and respiratory diaphragm, they are all 12 unspecific. 13 MR. MARK SANDLER: And we've heard from 14 the other three (3) members of the Chief Coroner's review 15 about that topic previously, so I won't ask you to 16 elaborate upon that. And what about the cerebral edema? 17 Does that contribute to a finding of asphyxia? 18 DR. PEKKA SAUKKO: Well, it's also 19 unspecific. 20 MR. MARK SANDLER: Now, at paragraph 45, 21 we see that according to the report of post-mortem 22 examination, Dr. Smith opines that the cause of death was 23 asphyxia. And - - and you've already commented upon the 24 difficulties associated with -- with the use of that 25 term.

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1 Let me ask you a question that I posed to 2 the other forensic pathologists when they were here 3 several weeks ago. In your opinion, is asphyxia properly 4 characterized as a cause of death? 5 DR. PEKKA SAUKKO: No. 6 MR. MARK SANDLER: And the opinions that 7 were expressed previously by the forensic pathologists 8 suggested that, at the very least, asphyxia, even if it 9 is used, should be coupled with -- with a specificity as 10 to a -- a mechanism of death. 11 And do you agree with that? 12 DR. PEKKA SAUKKO: That's correct. 13 MR. MARK SANDLER: And one (1) of the 14 things that we see here, apart from the use of asphyxia, 15 we see under paragraph 44 this parenthesis comment, 16 (Digital Airway Obstruction). And I want to ask you two 17 (2) questions about that. 18 The first is, leaving aside whether one 19 could characterize this case as a case of asphyxia -- 20 leave that aside for a moment -- was there pathology that 21 would support that if it was an asphyxial case, it 22 involved a mechanism of digital airway obstruction? 23 DR. PEKKA SAUKKO: No. 24 MR. MARK SANDLER: Was there anything to 25 support that?

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1 DR. PEKKA SAUKKO: No. No pathologist 2 would support that. 3 MR. MARK SANDLER: All right. And we see 4 that it is in parenthesis and I'm going to ask you the 5 same question that I asked Professor Whitwell and -- and 6 all of the others. There is some evidence that, in at 7 least two (2) transcripts that we've seen here, Dr. Smith 8 explained the use of parenthesis as a convention that 9 involved matters -- items that were suspected, but could 10 not be verified. 11 Is that a convention that you're familiar 12 with? 13 DR. PEKKA SAUKKO: This is the first time 14 I've heard about it. 15 MR. MARK SANDLER: Okay. And if we can 16 move from the abnormal findings that are contained here, 17 back to your medicolegal report at Tab 4, and I want to 18 take you through your opinion on the case and ask you 19 several followup questions in connection with that 20 opinion, and you'll see it at page 8 of your report. 21 DR. PEKKA SAUKKO: Yes. 22 MR. MARK SANDLER: And -- and by the way, 23 Commissioner, this is a case where no testimony was given 24 by Dr. Smith, so there's no reference to the testimony. 25 You've reflected at page 8:

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1 "This is an obvious case of a Sudden 2 Unexpected Death of an Infant where the 3 circumstances are suspicious and where 4 the possibility of a homicide has to be 5 taken into account." 6 And I -- and I take it you were aware of 7 the circumstances as -- as you outlined them earlier in 8 your report in the history and background and -- and the 9 like. 10 DR. PEKKA SAUKKO: Yes. 11 MR. MARK SANDLER: And -- and it's fair 12 to say that the circumstances including the scene and 13 what was observed and the mental state of the mother and 14 so on would be circumstances that -- that could lend one 15 to conclude that the circumstances are suspicious and -- 16 and give rise to the possibility of a homicide? 17 DR. PEKKA SAUKKO: That's correct. 18 MR. MARK SANDLER: 19 "Apart from the minimal scratch marks 20 in the face that may have been caused 21 during the resuscitation attempt, 22 there's nothing to suggest the use of 23 violence." 24 And again, stopping there for a moment -- 25 nothing in the pathology, I take it, you mean?

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1 DR. PEKKA SAUKKO: Yes. 2 MR. MARK SANDLER: 3 "Toxicology, radiology and histologic 4 examination did not reveal any specific 5 or significant findings that would have 6 explained the cause of death. 7 And although the circumstances are 8 suggesting a homicide, there's no 9 pathology to substantiate it, although 10 the pathology does not exclude it and 11 therefore, the death must be classified 12 as un-ascertained. 13 And stopping there for a moment. If you 14 had been preparing the report of post-mortem examination 15 in this case, is that how you would have characterized 16 it? 17 DR. PEKKA SAUKKO: Yes, that's correct. 18 MR. MARK SANDLER: Now, you've indicated 19 under "Issues Raised by the Case", three (3), and I want 20 to deal with two (2) of them, if I may. The first is 21 under "Pathology Knowledge", and you've reflected: 22 "The review of the microscopic slides 23 were not able -- was not able to 24 confirm the findings reported by Dr. 25 Smith and there's discrepancy, or at

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1 least inaccuracy, as to one (1) of the 2 anatomical regions where findings were 3 reported, but there's no record of such 4 a sample having been retained at 5 autopsy. This is worth mentioning 6 insofar as the additional comments to 7 the cause of death by Dr. Smith implied 8 that these findings may have been 9 important for his reasoning. 10 However, it's not possible to comment 11 on the grounds of his reasoning in 12 detail as there was no discussion or 13 opinion given apart from the cause of 14 death." 15 And we're going to come back to that in 16 the context of how autopsy reports systemically should be 17 prepared, so I'll leave that for a moment. 18 "This again was reported inconsistently 19 as asphyxia, compression to the neck, 20 in the Death Certificate; asphyxia 21 fillicide by the mother in the final 22 report with the letterhead of the 23 Hospital for Sick Children Department 24 of Pathology; and as asphyxia digital 25 airway obstruction in the final report

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1 with the heading "The Coroner's Act", 2 Province of Ontario report of post- 3 mortem examination." 4 So stopping there for a moment, and I 5 won't take you to each of the documents, but in the 6 certificate of death, you noted that this was reported as 7 asphyxia to compression to the neck, is that right? 8 DR. PEKKA SAUKKO: Yes. 9 MR. MARK SANDLER: And stopping there for 10 a moment, there's -- there's no evidence in the overview 11 report that I'm aware of that -- that Dr. Smith authored 12 or provided the information that caused asphyxia 13 compression to the neck to be set out in the death 14 certificate, but I take it you're reflecting that there 15 should be consistency between the content of the death 16 certificate and the content -- 17 DR. PEKKA SAUKKO: Yes. 18 MR. MARK SANDLER: -- of the report of 19 post-mortem examination. 20 DR. PEKKA SAUKKO: That's correct. 21 MR. MARK SANDLER: And then you make 22 reference to what we've heard as an internal document 23 prepared for the Hospital for Sick Children, also called 24 a final autopsy report, as asphyxia fillicide by mother. 25 And, where does filicide by mother fit

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1 into the role of the forensic pathologist as you 2 understand it? 3 DR. PEKKA SAUKKO: Well, I understand 4 that in -- your coronial system, that's a matter to the 5 coroner. 6 MR. MARK SANDLER: All right. That would 7 be a manner of death? 8 DR. PEKKA SAUKKO: That would be the 9 manner of death, yes. 10 MR. MARK SANDLER: And -- and just to be 11 clear, in the Finnish system, would the -- assuming that 12 the pathology supported it, would you be able to opine 13 that asphyxia occurred as result of fillicide by the 14 mother? 15 DR. PEKKA SAUKKO: Yeah, we have to -- we 16 have always to give our -- our opinion as to the cause of 17 death and also to the manner of death. 18 MR. MARK SANDLER: Right. 19 DR. PEKKA SAUKKO: In our system. 20 MR. MARK SANDLER: Okay. And then 21 finally, you've made reference to asphyxia digital airway 22 obstruction. And you've already told the Commissioner 23 the difficulty with that. 24 I'll ask you, in connection with asphyxia, 25 compression to neck, recognizing that it's in a death

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1 certificate, was there positive pathology to support 2 asphyxia by that mechanism, namely, compression to the 3 neck? 4 DR. PEKKA SAUKKO: None whatsoever. 5 MR. MARK SANDLER: Okay. And then you've 6 gone on to say at the bottom of the page: 7 "The inconsisty -- is -- is 8 inappropriate. None of the suggested 9 mechanisms can be substantiated by the 10 pathologic anatomical findings of the 11 autopsy. It's well known that 12 petechial hemorrhages of the thymus and 13 the cirrus membranes such as the pleura 14 or pericardium are non-specific." 15 And then you've said: 16 "This raises also the general issue and 17 concern as to what extent medical 18 doctors performing medicolegal 19 autopsies have received training in 20 forensic pathology. As the problems 21 and questions arising in forensic cases 22 are often different from what 23 encounters during clinical or 24 histopathology training, and can't be 25 learned, without specific training in

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1 forensic pathology." 2 Now let me ask you, in Finland, autopsies 3 conducted in criminal -- criminally suspicious or 4 homicide cases, are -- are they always done by 5 pathologists who are specifically certified as forensic 6 pathologists? 7 DR. PEKKA SAUKKO: Either forensic 8 pathologists or trainees to become forensic pathologists, 9 under supervision in departments of med -- forensic 10 medicine. 11 MR. MARK SANDLER: And -- and can I take 12 it from that, that under supervision, by a forensic 13 pathologist? 14 DR. PEKKA SAUKKO: Exactly. By the 15 trainer. 16 MR. MARK SANDLER: One (1) of the issues 17 that was raised with the previous panel, and with Dr. 18 Pollanen, is -- is this concept of double doctoring; 19 namely, that -- that in some cases of -- of infant 20 deaths, it -- it might be appropriate that the forensic 21 pathology -- pathologists perform the autopsy in 22 conjunction with a pediatric pathologist. 23 Is the concept of double doctoring 24 something that's -- that has been introduced or present 25 in Finland?

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1 DR. PEKKA SAUKKO: Well, not in Finland, 2 but it's standard practice in medicolegal autopsy in 3 Germany, and also in Sweden for instance. 4 MR. MARK SANDLER: All right. And I take 5 it you've got familiarity with that as a result of your 6 work in the European Union. 7 DR. PEKKA SAUKKO: Oh yeah. But 8 sometimes it helps, sometimes it's just a problem. I've 9 been reviewing at least one case where they performed a 10 second autopsy in Sweden and -- so it doesn't always 11 guarantee a higher quality. It depends on the 12 individuals who are performing the post-mortem. 13 COMMISSIONER STEPHEN GOUDGE: And is it 14 usually, Dr. Saukko, a forensic pathologist doing the 15 autopsy together with a pediatric pathologist? Is that 16 the way -- 17 DR. PEKKA SAUKKO: No. 18 COMMISSIONER STEPHEN GOUDGE: -- double 19 doctoring is used in Germany -- 20 DR. PEKKA SAUKKO: No. 21 COMMISSIONER STEPHEN GOUDGE: -- and 22 Sweden? 23 DR. PEKKA SAUKKO: I don't know for sure 24 in pediatric cases, but in Germany and Sweden, one of 25 them has to be a pedia -- has to be a forensic

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1 pathologist. The other one can be a trainee or another 2 doctor. 3 But I don't know their practice in -- in 4 pediatric pathol -- forensic cases. So they might be 5 using, but we don't. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: All right. 9 DR. PEKKA SAUKKO: Because there are -- 10 there aren't too many pediatric pathologists in Finland, 11 so -- 12 MR. MARK SANDLER: Well, that's what I 13 was about to ask you. I mean, can you -- can you tell 14 the Commissioner the extent to which there pediatric 15 pathologists? 16 DR. PEKKA SAUKKO: I don't know how many 17 there are, histopathologists who are sort of more trained 18 in pediatric cases, but I -- I can't tell you the number. 19 We have also a shortage of histopathologists. 20 MR. MARK SANDLER: Okay. Is there any 21 jurisdiction that you know of where they -- where they 22 have a surplus of forensic pathologists? 23 DR. PEKKA SAUKKO: No. I don't know. 24 MR. MARK SANDLER: Okay. All right. 25 COMMISSIONER STEPHEN GOUDGE: So none of

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1 your five (5) universities would have a Chair of 2 Pediatric Pathology, the way there's a Chair of Forensic 3 Pathology? 4 DR. PEKKA SAUKKO: Not to -- not to my 5 knowledge. 6 COMMISSIONER STEPHEN GOUDGE: That's 7 interesting. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: And just while we're 11 talking about universities, you -- you do have an 12 affiliation with -- with the University and -- and you 13 heard me ask Professor Whitwell about any tension that 14 exists in the relationship between a university setting 15 for forensic pathologists and the practice of forensic 16 pathology. 17 Do you have any comments upon that aspect? 18 DR. PEKKA SAUKKO: Well, I'm -- I'm a 19 full time University Professor. Well, of course, we have 20 similar problems, but so far we have managed reasonably 21 well, but, there are the same problems everywhere. 22 MR. MARK SANDLER: All right, and do -- 23 do you find in your experience that your University 24 encourages forensic pathology research and -- and -- 25 DR. PEKKA SAUKKO: No, no --

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1 MR. MARK SANDLER: -- funds it? 2 DR. PEKKA SAUKKO: -- definitely not. 3 MR. MARK SANDLER: Okay. 4 DR. PEKKA SAUKKO: We are funding our 5 research from our income from our services, but it's 6 quite, I would say, impossible to get finance -- 7 financial support for any purely medicolegal research 8 project, so -- anywhere. 9 COMMISSIONER STEPHEN GOUDGE: So you have 10 to take whatever comes in by way of income from doing the 11 service and -- 12 DR. PEKKA SAUKKO: Yes. 13 COMMISSIONER STEPHEN GOUDGE: -- devote 14 it to research? 15 DR. PEKKA SAUKKO: We have developed a 16 high standard histo -- histopathology laboratory which 17 brings us some additional money which we can use for 18 research purposes. 19 COMMISSIONER STEPHEN GOUDGE: I see. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: All right, now if I 23 can take you to page 9 of the -- of your report, under 24 "Autopsy report" you've identified another issue and this 25 issue has -- has been dealt with at some length

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1 previously, so I want to ask you about some followup 2 questions arising out of it. 3 You've reflected that: 4 "The autopsy report should not be a 5 bare recitation of the physical 6 findings, with no discussion or 7 interpretation of the significance of 8 those findings. As especially in 9 suspected criminal deaths or in cases 10 where the cause of death is not 11 obvious, these conclusions are of most 12 interest and use to the investigating 13 officers, lawyers, and Courts. After 14 the detailed description of the 15 external and internal appearances a 16 short resume should be offered of the 17 major positive findings and their 18 relationship to the cause of death. 19 When the findings are less clear-cut or 20 are multiple, then the alternatives 21 should be discussed, giving a 22 differential diagnosis of the cause of 23 death and detailing the possible 24 sequence of events. If it is 25 possible..."

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1 And I'm going to come back to ask you 2 about this in a moment. 3 "...a ranking order of probability of 4 the various alternatives can be 5 offered. The time of death and the 6 limitations of accuracy should be set 7 out when the issue is relevant to the 8 investigation." 9 Now, is there a protocol in Finland that 10 conforms to the approach that you advocate here? 11 DR. PEKKA SAUKKO: No, it -- it varies 12 quite a lot from department to department, depend -- 13 depending where the individual forensic pathologist has 14 been trained and what's -- how -- how he -- there are 15 certainly instructions, but they are not so detailed. 16 MR. MARK SANDLER: All right. I want to 17 ask you about one (1) feature of this because I guess 18 what -- what -- therefore, what you are reflecting is 19 what you see as the ideal approach to -- to the 20 preparation of an autopsy report, is that -- 21 DR. PEKKA SAUKKO: Yes. 22 MR. MARK SANDLER: And -- and in effect, 23 at -- at the risk of paraphrasing, what -- what you're 24 reflecting is that the report of post-mortem examination 25 should be responsive to the needs of the people who are

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1 going to be reading it. 2 DR. PEKKA SAUKKO: Yeah. 3 MR. MARK SANDLER: It should address the 4 issues and -- and as they arise in the individual case. 5 DR. PEKKA SAUKKO: That's correct. 6 MR. MARK SANDLER: One (1) of the things 7 that you said, and I'll come back to it now, is 8 "if it's possible, a ranking order of 9 probability of the various alternatives 10 can be offered." 11 This is a topic that -- that we've 12 discussed with all of the forensic pathologists who have 13 testified. First of all, is it always possible to rank? 14 DR. PEKKA SAUKKO: No, no. 15 MR. MARK SANDLER: Do you have a ranking 16 system, or can you help the Commissioner out as to how 17 you would rank various alternatives should they arise in 18 difficult cases? 19 DR. PEKKA SAUKKO: When it's possible we 20 use the five (5) grade ranking and I think -- I've 21 understood that the wording may be slightly different, 22 but it's -- in sense, it's the same, for instance, in 23 Germany. We use very probable, somewhat probable, 24 possible, somewhat improbable, and very improbable; 25 that's a simple scale.

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1 COMMISSIONER STEPHEN GOUDGE: Do those 2 again? Do those five (5) again for me? 3 DR. PEKKA SAUKKO: Very probable, 4 somewhat probable, possible, somewhat improbable, and 5 very improbable. 6 COMMISSIONER STEPHEN GOUDGE: Very 7 improbable, that's the last one? 8 DR. PEKKA SAUKKO: Yes. 9 MR. MARK SANDLER: All right. 10 COMMISSIONER STEPHEN GOUDGE: Can you 11 turn those into percentage terms, Dr. Saukko? 12 DR. PEKKA SAUKKO: I think there -- there 13 is some scale; I think very probable is over 75 percent 14 and possible is 50/50. 15 COMMISSIONER STEPHEN GOUDGE: And 16 somewhat probable is 66 2/3? 17 DR. PEKKA SAUKKO: Of course you can't 18 really be -- 19 COMMISSIONER STEPHEN GOUDGE: It's hard 20 to do that. It's hard to have to have a formula. 21 DR. PEKKA SAUKKO: No. But I mean, at 22 least the forensic pathologist when he gives his 23 statement and opinion of the case should point out to the 24 lay people the dangers that may lie behind so that -- 25 that it's understood what is possible and what is not

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1 possible and what are the alternatives. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. I take it 5 at the -- I'd like to just explore what the end of the 6 spectrum is, in a sense. 7 Do you ever feel that you're in a position 8 to express an opinion to a reasonable degree of medical 9 certainty? Do you ever use the term "certainty"? 10 DR. PEKKA SAUKKO: Well in -- in those 11 cases we -- there's no need for this creating. I mean if 12 you have aortic rupture in traffic accident, you know 13 quite well after the -- after post-mortem, if you have 14 performed a full post-mortem, that that definitely is the 15 cause of death. 16 MR. MARK SANDLER: So you'd -- 17 COMMISSIONER STEPHEN GOUDGE: That's even 18 more than very -- 19 DR. PEKKA SAUKKO: No, at least it's very 20 probable. 21 COMMISSIONER STEPHEN GOUDGE: It's at 22 least very probable. Probably even beyond that. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: I guess that's what

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1 I'm asking. Is -- is -- is there something beyond "very 2 probable" where you would simply express your opinion 3 without having to grade it? 4 DR. PEKKA SAUKKO: There are rare cases, 5 but it depends if -- to give you an example, I once 6 examined a man from -- he was a hospital patient. And at 7 the post-mortem there was a fresh infarction to the naked 8 eye in the myocardium, which was about 75 percent of the 9 myocardium. 10 And if I had shown the heart lets say to a 11 hundred (100) pathologists and asked, are you satisfied 12 that this is the cause of death? I think the majority 13 would have been. But it was not the cause of death. The 14 man had -- man had hanged himself. 15 So sometimes what looks quite probable or 16 very probable may not be the -- the cause of death. So 17 there seldom is a full certainty of -- of these things. 18 MR. MARK SANDLER: And -- 19 COMMISSIONER STEPHEN GOUDGE: Are these 20 ways of differentiating diagnosis European wide, Dr. 21 Saukko? Is this something that's being introduced to try 22 to standardize European practice in this area, or has it 23 just developed in Germany for example? 24 DR. PEKKA SAUKKO: No, we have -- we have 25 a European recommendation for -- for medicolegal autopsy

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1 protocol, but that's -- that's more detailed than our 2 national instructions, but it could be also be more 3 detailed. 4 COMMISSIONER STEPHEN GOUDGE: But is this 5 way of describing differential diagnosis -- 6 DR. PEKKA SAUKKO: No, I think -- 7 COMMISSIONER STEPHEN GOUDGE: -- shared 8 across Europe? 9 DR. PEKKA SAUKKO: No, I don't -- depends 10 with whom you ask -- talking. It's more individual. 11 COMMISSIONER STEPHEN GOUDGE: The French 12 and the Germans don't share? 13 DR. PEKKA SAUKKO: Learn the hard way. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. You made 17 reference to a European document. Is there an actual 18 document that sets out these -- these scales? 19 DR. PEKKA SAUKKO: It's by the -- the 20 Council of Europe. It's a recommendation 99 -- I don't 21 know what year it was. 22 MR. MARK SANDLER: All right. Well 23 perhaps -- 24 DR. PEKKA SAUKKO: It includes all the 25 Eur -- U countries by most of the European countries.

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1 And it's -- in a way it is also to some extent legally 2 binding because all the members of the European Union 3 promised to implicate these recomm -- European Council -- 4 Council of Europe recommendations into their own 5 legislation. 6 The problem is that it's seldom done very 7 quickly because there is no... 8 MR. MARK SANDLER: All right. Perhaps 9 we'll get a copy of the document, Commissioner, and have 10 a look at it. It -- is it in English or -- 11 DR. PEKKA SAUKKO: Yes, -- 12 MR. MARK SANDLER: All right. 13 DR. PEKKA SAUKKO: -- in English and 14 French, I think. 15 MR. MARK SANDLER: Professor Whitwell, I 16 promised that -- that you'd have some reprieve from the 17 course of the day, but it just seems like a convenient 18 time to ask you a question that everyone else has been 19 asked, and that is: Do you have any views in -- on the 20 extent to which you can grade opinions in the case and -- 21 and differential diagnosis? 22 DR. HELEN WHITWELL: Well, firstly, I -- 23 I'm certain I haven't been used to a grading system that 24 Dr. Saukko's outlined. The cause of death that we give 25 to the coroner is an opinion based on the best -- you

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1 know, the -- the available evidence and the post-mortem 2 examination. And -- and it is in an opinion. 3 Now, in fairness, one can be 100 percent 4 certain -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. HELEN WHITWELL: -- that somebody 7 whose head is blown with a gun has died of a gunshot 8 wound. There may be issues, for example, if they knew 9 suddenly -- then -- then it's found on toxicology there 10 are also toxic levels of -- you know, high level of 11 heroin or whatever. 12 But it's an opinion based on the best 13 information. One (1) of the problems that -- that we 14 have in England, which was particularly highlighted by 15 the Shipman Inquiry, and which -- which hasn't been 16 implemented, is that, for example -- and -- and I 17 reviewed a number of the cases that Dr. Shipman was 18 alleged to have been involved in who'd had post-mortem 19 examinations. 20 And they were a group generally of elderly 21 people. And the causes of death were generally things 22 like ischemic heart disease, natural causes of death. 23 The problem was that in none of the cases had toxicology 24 been undertaken. 25 Therefore, it was really going to be

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1 impossible to say in a number -- and particularly in 2 elderly people you get chronic conditions, which could 3 explain death rather than the ruptured aorta that would 4 definitely explain death, to say that an individual 5 hadn't been poisoned by a toxic substance. 6 COMMISSIONER STEPHEN GOUDGE: But if you 7 assume, Dr. Whitwell, that all the tests that can be done 8 have been done, depending on the results of those tests, 9 your opinion will have a greater or lesser level of 10 certainty attached to it, depending on the circumstances, 11 will it not? 12 DR. HELEN WHITWELL: Yes, that -- that's 13 correct, but unfortunately in England and Wales most of 14 the coro -- the routine coroner's cases don't have 15 toxicology. So -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. Let 17 us assume a perfect world where there is the full range 18 of necessary tests. 19 Is it desirable for the pathologist to try 20 to articulate the level of certainty with which the 21 opinion of cause of death is asserted? 22 DR. HELEN WHITWELL: It is, but how often 23 it's done is unclear. 24 COMMISSIONER STEPHEN GOUDGE: Okay. If 25 one were to do it, what kind of language would one use?

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1 DR. HELEN WHITWELL: Well, one could say 2 one's 100 percent certain of the gunshot wound to the 3 head or if, for example, there's -- there's ischemic 4 heart disease, but no evidence of an acute coronary, -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. HELEN WHITWELL: -- you could say in 7 view of the circumstances and all the information, the 8 most likely cause of death is ischemic heart disease. 9 COMMISSIONER STEPHEN GOUDGE: So one 10 could use terminology like "most likely." 11 DR. HELEN WHITWELL: Most likely or -- 12 COMMISSIONER STEPHEN GOUDGE: Or the kind 13 of terminology that Dr. -- 14 DR. HELEN WHITWELL: Yes, that's correct. 15 COMMISSIONER STEPHEN GOUDGE: -- Saukko 16 has given us? 17 DR. HELEN WHITWELL: Yes. And in a 18 percentage of deaths, you may not be able to find a cause 19 of death. 20 COMMISSIONER STEPHEN GOUDGE: And then it 21 would, perhaps, very improbable to give any opinion or 22 you could give no opinion as to the cause -- 23 DR. HELEN WHITWELL: Well, what you could 24 do is to say, for example, unascertained. 25 COMMISSIONER STEPHEN GOUDGE: Right.

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1 DR. HELEN WHITWELL: And then go through 2 a -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. HELEN WHITWELL: -- a series of 5 comments how you came to that conclusion. It might be 6 unascertained because it's a completely decomposed body. 7 COMMISSIONER STEPHEN GOUDGE: Right. But 8 in the abstract it does seem desirable to try to 9 articulate the degree of certainty with which the opinion 10 is held, otherwise, all opinions will be heard as having 11 the same level of certainty -- 12 DR. HELEN WHITWELL: That's correct. 13 COMMISSIONER STEPHEN GOUDGE: -- when 14 they do not? 15 DR. HELEN WHITWELL: Yeah. No, that's 16 correct. 17 COMMISSIONER STEPHEN GOUDGE: Thanks. 18 DR. PEKKA SAUKKO: May I comment? 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Yes, of course. 22 DR. PEKKA SAUKKO: Just all these things 23 depend very much on the system where you operate. 24 DR. HELEN WHITWELL: Hmm. 25 DR. PEKKA SAUKKO: For instance, I once

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1 asked my Hungarian fellows, colleagues, that how often 2 you certify the death as unascertained, the manner of 3 death or -- or the cause of death. There's never because 4 the police doesn't like it. 5 MR. MARK SANDLER: Remind me not to 6 practice in that jurisdiction. 7 COMMISSIONER STEPHEN GOUDGE: So what do 8 they do when they truly think that it is unascertained, 9 what do they put down? 10 DR. PEKKA SAUKKO: I don't know what they 11 -- invent -- must invent something. And -- and another 12 example, for instance, in Germany the investigating -- 13 the procedure's directed by the prosecutor, by the public 14 prosecutor, and the public prosecutor decides whether 15 there's going to be toxicology or histology. So it's not 16 the forensic pathologist, but the prosecutor who not -- 17 necessarily understands all the -- 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: All right. Thank you 22 very much. We're going to turn from the Delaney case, 23 Commissioner, to the -- the Kenneth case, if we may. 24 And, Doctor, I'm going to take you to Tab 13 of your 25 binder of materials, PFP144159.

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1 And if you go to page 4 of the overview 2 report we see that: 3 "Kenneth was born in Scarborough, 4 Ontario on May the 18th of 1991. He 5 died on October the 12th of 1993 at the 6 Hospital for Sick Children in Toronto. 7 At the time of his death, Kenneth lived 8 with his mother and the step-father in 9 Oshawa, Ontario. They had been married 10 in 1993. Kenneth's biological father 11 was not involved in Kenneth's 12 upbringing, and Kenneth was two (2) 13 years and five (5) moths old at the 14 time of his death. Criminal 15 proceedings were initiated against 16 Kenneth's mother. The criminal 17 proceedings concluded on October the 18 24th of 1995, when she was convicted of 19 second degree murder. She was 20 sentenced to life imprisonment with 21 parole ineligibility of ten (10) years. 22 The Court of Appeal dismissed her 23 appeal on January the 22nd of 1998. 24 The local Children's Aid Society 25 initiated proceedings regarding a child

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1 born to her while she was on bail 2 awaiting trial. Her child was born and 3 then apprehended by the Children's Aid 4 Society in August of 1994." 5 As I understand it, as part of the Chief 6 Coroner's review, and Doctor, you were assigned to be the 7 primary reviewer for this case, is that right? 8 DR. PEKKA SAUKKO: That's correct. 9 MR. MARK SANDLER: If I can take you to 10 your medicolegal report, it is contained at Tab 11 of 11 your binder and it's PFP135439. And if you'd go with me 12 to page 4 of the medicolegal report, you've set out the 13 background, history, and circumstances as revealed in the 14 materials that you examined in the course of your review, 15 and could you outline those for the Commissioner, please? 16 DR. PEKKA SAUKKO: Yes. 17 "Kenneth was a two (2) years and four 18 (4) month old child with a history of 19 asthma, lactose intolerant and a 20 seizure disorder. For asthma and 21 seizures, Kenneth had to receive 22 medication. According to a letter on 23 May 31st, 1993 by M. Mian, MD, 24 addressed to the Hospital for Sick 25 Children, the first six (6) or seven

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1 (7) seizures had been in connection 2 with fever, but the last one (1) 3 without fever. On six (6) -- on 4 September 6th, 1993, Kenneth had been 5 brought to the Oshawa General Hospital 6 with a relatively un-displaced spiral 7 fracture of the mid shaft of the right 8 femur. 9 Kenneth's mother had had problems with 10 her parenthood because of which Kenneth 11 had been placed a few times in the 12 interim care and custody of the 13 Children's Aid Society of Metropolitan 14 Toronto. 15 In the afternoon of Saturday night, 16 October 1993, as told by Kenneth's 17 mother, she heard him call -- calling 18 out, "Mommy", when she went to the 19 bathroom. His voice sounded muffled, 20 but it took approximately fifteen (15) 21 -- ten (10) to fifteen (15) minutes 22 before she went to see Kenneth in the 23 room where he had his afternoon nap and 24 found him wrapped up in the bed sheet 25 from his waist up to the top of his

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1 head. 2 She had difficulties unwrapping him as 3 he was kicking and calling out, "Mommy, 4 Mommy", and the more he kicked, the 5 more he seemed to stay tangled. 6 According to her it took fifteen (15) 7 to twenty (20) minutes to untangle him, 8 and while doing this, Kenneth had 9 stopped kicking, but had called out 10 "Mom" a few more times. 11 When she eventually got him free she 12 realized that Kenneth was not 13 breathing, carried him to the couch in 14 the livingroom and called 911. The 15 ambulance arrived shortly thereafter 16 and he was found vital signs absent. 17 He was resuscitated and transported to 18 the Oshawa General Hospital where heart 19 function was restored and Kenneth was 20 transferred under manually assisted 21 respiration to Hospital for Sick -- 22 Sick Children. On arrival he was in 23 deep coma with Glasgow Coma, GCS-3. CT 24 scan on October 9th revealed diffuse 25 brain edema and small posterior

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1 parafalcine subdural hematoma. There 2 was no restitution of cerebral 3 activity, and he was declared brain 4 dead on Tuesday, October 12th. 5 Organ harvesting was undertaken 6 thereafter." 7 MR. MARK SANDLER: All right. And we 8 know that the autopsy was done on October the 13th of 9 1993 by Dr. Smith. Now, at page 5 of your report, you 10 address the adequacy of materials and reflect that: 11 "The appropriate pathological and 12 ancillary investigations for the error 13 were conducted in this case and are 14 available. [You do note that] Because 15 of organ harvesting, the aorta, the 16 liver, the spleen, the right adrenal 17 gland, and the kidneys were not 18 available for examination. Also, the 19 heart has been examined first after 20 harvesting of the pulmonary and aortic 21 valves. Post-mortem toxicology had not 22 been performed." 23 And just stopping there for a moment. 24 You've identified as an issue at page 10 of your report 25 the fact that organ harvesting had been done in this

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1 case. And it's probably self-evident, but perhaps you 2 could advise the Commissioner what your views are as to 3 appropriateness of organ harvesting in a case of this 4 nature, pre-autopsy? 5 DR. PEKKA SAUKKO: Well, in -- at least 6 in our system, if we have an obvious suspicious case like 7 this, we don't allow organ harvesting because it 8 increases the uncertainty. You cannot reliably exclude 9 that som -- that we might miss something if organs are 10 harvested. 11 Firstly, in the organs that have -- have 12 been harvested, and secondly, through the process -- 13 surgical process itself, which might cause artifacts. 14 MR. MARK SANDLER: All right. It's inc - 15 - it's increasing the likelihood that -- that you'll have 16 to address the difficult issues of whether something's 17 artifactual or not? 18 DR. PEKKA SAUKKO: Yes. 19 MR. MARK SANDLER: As well as it provides 20 less material for the forensic pathologist to examine. 21 DR. PEKKA SAUKKO: Yeah, 'cause we have 22 to also be able to exclude pathology -- pathology. 23 MR. MARK SANDLER: All right. And if we 24 can go from there to the overview report at Tab 13, 25 paragraph 111. And paragraph 111 is found at page 36.

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1 This is 144159. And we see that -- that Dr. Smith has 2 outlined his -- in his summary of abnormal findings the 3 following: 4 This is paragraph 111 near the bottom of 5 the page: 6 "Asphyxia...? 7 And we'll -- again we'll come back to that 8 in a moment. 9 ...with petechial hemorrhages of the 10 thymus, pulmonary pleura, and 11 epicardium." 12 And stopping there for a moment. This has 13 been the subject of much testimony, so I'll ask you. Do 14 petechial hemorrhages of the thymus, pulmonary pleura, 15 and epicardium support a diagnosis of cause of death or 16 presence of asphyxia? 17 DR. PEKKA SAUKKO: No, they do not. 18 MR. MARK SANDLER: And for the same 19 reasons you've already articulated? 20 DR. PEKKA SAUKKO: Yes. 21 MR. MARK SANDLER: And then item 2 is: 22 "Status post-resuscitation with hypoxic 23 ischemic encephalopathy, recent severe, 24 with neuronal necrosis, wide spread, 25 cerebral edema with hippocampal uncal,

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1 and cerebellum tonsillar herniation and 2 necrosis." 3 And 2.2: 4 "Acute broncho pneumonia focal." 5 And do I take it correctly that based upon 6 how these abnormal findings have been set out that -- 7 that Dr. Smith is -- is treating these as post- 8 resuscitative pathological findings? 9 DR. PEKKA SAUKKO: They are normal 10 findings in a -- in a person who has been on life support 11 several days -- 12 MR. MARK SANDLER: Okay. 13 DR. PEKKA SAUKKO: -- with -- with brain 14 death. 15 MR. MARK SANDLER: All right. And item 3 16 is: 17 "Healing fracture of the right femur." 18 And -- and again, the Commissioner has 19 heard all about healing fractures. Can I take it from 20 the description as healing fractures that -- that this is 21 a pathology item of significance, but not as contributing 22 to the death itself? 23 DR. PEKKA SAUKKO: That's correct. 24 MR. MARK SANDLER: And then item 4 is 25 Status Post Organ Donation. And that's simply a

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1 reflection of the fact that there's been organ 2 harvesting, as you've described? 3 DR. PEKKA SAUKKO: Yes. 4 MR. MARK SANDLER: So based upon the -- 5 the abnormal findings that are set out in the report of 6 post-mortem examination here, what is your opinion as to 7 what the appropriate cause of death was in this case? 8 DR. PEKKA SAUKKO: In essence, it means 9 that Dr. Smith doesn't know what's the cause of death. 10 MR. MARK SANDLER: All right. And we -- 11 we -- well, I'll ask you this. Again, in connection with 12 this file, insofar as this case is treated as a case of 13 asphyxia, does the pathology, as -- as you see it, 14 support that diagnosis? 15 DR. PEKKA SAUKKO: Well, as we already 16 dealt with asphyxia, and it's not a cause of death. 17 MR. MARK SANDLER: All right. 18 DR. PEKKA SAUKKO: So -- 19 MR. MARK SANDLER: So you're -- the same 20 answer that we dealt with on Delaney has equal 21 application here? 22 DR. PEKKA SAUKKO: Yeah, exactly. 23 MR. MARK SANDLER: Okay. Now, if I can 24 move from the abnormal findings to paragraph 109 and a 25 synopsis indicated that when Dr. Smith conducted the

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1 autopsy -- this is what's recorded: 2 "There was nothing remarkable found on 3 the body of the deceased that would 4 indicate an obvious case of death." 5 And I think that should be cause of death. 6 "Dr. Smith categorized it as a 7 suffocation death caused by an 8 obstruction of the air ways, nose, and 9 mouth." 10 Now, just stopping there for a moment. 11 Assuming the accuracy of the synopsis as describing what 12 was said by Dr. Smith at the autopsy, was this a 13 reasonable conclusion to characterize it as a suffocation 14 death caused by an obstruction of the airways? 15 DR. PEKKA SAUKKO: No, because there's no 16 pathology to substantiate it. 17 MR. MARK SANDLER: All right. It goes on 18 to say: 19 "He felt that a bedsheet, as described 20 by the mother, would be porous and 21 allow air to flow freely unlike a 22 plastic bag or a dry-cleaning garment 23 bag. It was also noted that a seizure 24 was unlikely because according to the 25 mother, the child was calling out up

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1 until the time it went unconscious. If 2 a child was having a seizure, it would 3 not have been calling out. Further 4 tests would, however, be completed 5 before a final conclusion could be 6 made." 7 And I'm going to come back to those issues 8 when we look at the testimony of -- of Dr. Smith that was 9 given at the Preliminary Inquiry and at the trial. If we 10 can -- excuse me for a moment. If we can go back to the 11 -- your report at Tab 11. And I'm looking at page 8 12 here. 13 And under your opinion on the case, you've 14 reflected: 15 "This is an obvious case of a Sudden 16 Unexpected Death of a child where the 17 circumstances are suspicious and where 18 the possibility of a homicide has to be 19 taken into account. There were no 20 macroscopic findings to suggest the use 21 of violence. The microscopic 22 hemorrhage in the sample taken from the 23 neck cannot be given any significance 24 whatsoever due to its minimal size and 25 the unavoidable manipulation of the

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1 neck region that must have taken place 2 during resuscitation at the scene, 3 during the transportation to and at the 4 hospital, as well as during more than 5 three (3) days on life support." 6 Now, what it is you're making reference to 7 there in -- in describing the hemorrhage in the neck? 8 Was that one (1) of the abnormal findings that was being 9 described? 10 DR. PEKKA SAUKKO: Yeah, in -- in the 11 microscopy; a small minute hemorrhage. 12 MR. MARK SANDLER: Okay. And we'll 13 actually come back to see how that's dealt with in the 14 testimony a little bit later on: 15 "Radio -- radiology and histological 16 examination did not reveal any specific 17 or significant findings that would have 18 explained the cause of death and post- 19 mortem toxicology had not been 20 performed, hence the death must be 21 considered as unascertained." 22 And you reflected at the top of the 23 following page under pathology knowledge: 24 "None of the suggested mechanisms can 25 be substantiated by the pathologic

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1 anatomical findings shown in this case 2 as it is well known that petechial 3 hemorrhages of the thymus and the 4 serous membranes such as pleura or 5 pericardium are non-specific." 6 And that's the point that you've already 7 made in looking at his abnormal findings. 8 DR. PEKKA SAUKKO: That's correct. 9 MR. MARK SANDLER: Now, we're going to 10 turn, if we may, to the testimony that was given by Dr. 11 Smith, both at the preliminary inquiry and at the trial. 12 And Commissioner, I -- this is actually a -- a segment 13 that I'm going to deal with, and I'm actually right on 14 time, and I'm going to suggest that -- hopefully, it's 15 refreshing that we break a little bit early today, and 16 continue on tomorrow morning. 17 COMMISSIONER STEPHEN GOUDGE: Great. 18 Okay. We'll rise then until 9:30 tomorrow morning. 19 Thank you. 20 21 (WITNESSES RETIRE) 22 23 --- Upon adjourning at 4:35 p.m. 24 25

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1 2 Certified correct, 3 4 5 6 7 __________________ 8 Rolanda Lokey, Ms. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25