In November 2015, ten-year-old Maya was rushed to the emergency room with Complex Regional Pain Syndrome (CRPS), a central nervous system disorder causing chronic pain. Maya’s mother insisted her child receive ketamine at high doses unavailable at the treating center.
This interaction prompted a social worker to call the Department of Children and Family Services abuse hotline under mandatory reporting requirements, and an investigation ensued. Maya was placed under hospital care as the legal authorities obtained a no-contact order with her mother, pending psychological evaluations. For over three months, Maya had little to no contact with her parents, which she testified “infuriated her.”
During that time, Maya’s mother committed suicide. She left behind notes that expressed her anguish over being separated from Maya and the abuse accusations. Maya also claimed the treatment she received at the hospital was abusive, and she sued, resulting in a $200-million-dollar verdict against the hospital. In October 2025, that judgment was reversed by the appellate court, largely on technical grounds. We can expect a new trial.
In both the fictional and actual versions, the parent was exonerated (either by law or public opinion) based on testimony from the allegedly abused children, who were in their teens. But what happens when the victim is an infant who can neither exculpate nor accuse an alleged perpetrator?
Criminal Justice Goes Askew
The criminal justice system has lagged behind civil courts in interpreting scientific evidence. In civil cases, the causation issue—“who or what did it”—is bifurcated into two separate inquiries:
1. Can the subject under investigation theoretically cause the harm? (general causation)
2. Did the subject before the court cause the harm in this case? (specific causation)
In criminal law, no clear demarcation exists, leading to confusing decisions and miscarriages of justice—perhaps none so blatant as in cases alleging shaken baby syndrome (SBS).
In these cases, an infant—often weeks or months old and frequently premature—is brought to the emergency room with sudden, horrendous injuries (often after normal pediatric exams shortly before). Injuries prompting suspicion of SBS often include the trademark “triad of symptoms”—subdural hematoma, retinal hemorrhages, and encephalopathy (1)—but skull fractures and severe swelling are not uncommon. The diagnosis is made by a specialized pediatrician after all other possible explanations are ruled out, an accepted methodology in medicine called differential diagnosis. As the New England Journal of Medicine noted in its December 23, 2023, edition celebrating 100 years of diagnostic sleuthing:
“This clinical case feature continues to be an essential resource for today’s learners, educators, and seasoned clinicians alike. While the science underpinning medical care has evolved, the essential, required skills for expert physician decision-making remain: to generate and hone an appropriate differential diagnosis, choose diagnostic tests wisely, and prescribe treatments judiciously.” [emphasis added]
The differential diagnosis methodology has also been recognized in legal cases. As one court noted: “Differential diagnosis, which is used to rule in or out alternative causes, is the ‘hallmark’ of internal medicine.” The Restatement of Torts (a compilation of laws throughout the country, though not binding) states:
“Courts frequently refer to the elimination of other known causes for a plaintiff by employing the medical terminology of ‘differential diagnosis.’ Assessing whether other causes can be ruled out (or in) as potential causes of a plaintiff’s disease can provide probative evidence of specific causation.”
Other courts agree, and accept differential diagnoses as admissible evidence where most alternative causes of the disease have been known and eliminated, as the issue in question focuses on specific causation: who caused the harm.
In April 2023, the New Jersey Appellate Court rejected the differential diagnostic technique in State of New Jersey v. Nieves, calling it a guessing game as applied to SBS. That case concerned two horribly injured children whose sudden injuries, per the state, had no other likely cause than repeated shaking—a determination made after the examining physician conducted an extensive physical examination and ruled out all other possible causes.
While scores of medical associations and hundreds of thousands of doctors around the world validate and support the diagnosis, the court ruled that the consensus of biomechanics was relevant and necessary. In this capacity, five ad hoc biomechanists offered written briefs and one testified that there was no proof that the force generated by shaking could cause the injuries in question.
Based on this testimony, New Jersey—then a Frye state (see here and here for explainers)—ruled that the necessary consensus of both medical and biomechanics communities was missing and nullified the diagnosis. No longer can suspects be indicted for child abuse based on shaking—at least in New Jersey—even if there was no other agreed-upon explanation for the child’s injuries.
In November 2025, New Jersey’s highest court affirmed the decision. The ramifications are horrendous. In the U.S., roughly 1,200 to 1,400 children suffer serious injuries from Shaken Baby Syndrome annually, with about a quarter dying and 80% of survivors facing severe, lifelong disabilities such as brain damage, blindness, seizures, cerebral palsy, learning disorders, and paralysis, making it the leading cause of child-abuse deaths. It is undoubtedly true that some convictions are made in error—although the number touted by the defense bar may be excessive. One study identified 1,431 unique SBS criminal convictions with appellate rulings since 2008. Of those, 49 convictions (3%) were overturned, and 1,382 (97%) were affirmed/upheld.
But the issue of overturned convictions or rulings that the defense was not robust and did not present contrary evidence on the issue of specific causation—did this defendant cause the harm?—remains. The New Jersey appellate court, however, turned the case into a general causation one, rejecting the diagnosis outright so that no cases may be brought for abuse by shaking.
Disregarding worldwide medical consensus, the court focused on several studies brought on behalf of the accused, where dolls or lambs or monkeys were used as substitutes for babies and shaken, most only once. The biomechanists, whose briefs assessed the impact of external forces on the body, opined that the force inflicted by shaking wasn’t strong enough to cause a doll or a lamb or a monkey to suffer SBS, extrapolated that to human data, and then double-extrapolated to the “average” baby (The court simply disregarded the lamb study where one-third of the lambs died after shaking).
Nowhere does the court recognize that internal forces are at work after head impact—along with the ricochet of the brain backward against the skull and forward again (contrecoup lesion), exacerbated by repeated shaking, the small size of the baby’s head (which gives it more room to resonate and vibrate after shaking), cascading to cause continued damage after the shaking has stopped, including hemorrhage and edema.
The opinion contains numerous errors, carefully delineated in the single dissent. However, one notable and hypocritical error is that while the court focused on reliability (i.e., consistency) as the pivot for admissibility, the two medical doctors testifying on behalf of the defendant reached different conclusions as to what caused the children’s condition.
Probably most offensive is the court’s reliance on People v. Bailey, which focused on specific causation: did Ms. Bailey assault the child? It granted her a new trial “because advancements in science and medicine constituted newly discovered evidence calling into question the validity of the SBS/AHT diagnosis,” which wasn’t adequately presented in her defense. Nowhere do they or the opinions mention that on the eve of the new trial, stunningly, Bailey pleaded guilty and was sentenced to 12 and a half years in prison.
Since New Jersey is now a Daubert state, the court left open the possibility of revision pending new studies showing contrary evidence. That, however, is rather unlikely, as it is ethically impermissible to experimentally shake babies.
The Contrast to Footballers—Chronic Traumatic Encephalopathy
While SBS cases proceed throughout the criminal system with highly regarded and well-financed champions of the accused calling SBS “junk science”—a mantra adopted by the press—another realm of head-banging cases claiming brain injuries goes relatively uncontested. In fact, it generated a large settlement. It’s called Chronic Traumatic Encephalopathy, and can be caused when football players bang their heads against their helmets, resulting in horrific consequences that are difficult to diagnose.
Notwithstanding the difficulty in establishing a causal connection, the NFL settled the dementia cases (although the settlement is running into obstacles). No sound input has come from the biomechanics testifiers, nor, to my knowledge, has their input been sought. Could the difference be that the injured football players and their families have loud voices, while the innocent child is mute—or dead?
1. Brain dysfunction, damage, or disease.
