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State v. Herrera

Supreme Court of Nebraska

December 5, 2014


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Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge.

David S. MacDonald, Deputy Scotts Bluff County Public Defender, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.



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[289 Neb. 578] Stephan, J.

Carlos R. Herrera and Jennifer Herrera are the biological parents of A.H. and S.H., both minor children. In 2012, Carlos and Jennifer were separately charged in the district court for Scotts Bluff County with child abuse resulting in serious bodily injury to A.H. Following a consolidated jury trial, both were convicted of the lesser-included offense of child abuse. Carlos perfected this timely direct appeal.


In an information filed on November 15, 2012, Carlos was charged with one count of intentional child abuse resulting in serious bodily injury, a Class II felony.[1] The alleged victim was A.H., and the alleged abuse occurred in Scotts Bluff County between January 2007 and October 12, 2011. A.H. was born on November 1, 2005. Similar charges were filed against Jennifer, and the two cases were subsequently consolidated for trial, at which Carlos and Jennifer were represented by separate counsel.

1. Pretrial Motions

(a) Daubert/Schafersman Hearing

Prior to trial, Carlos filed a motion requesting a Daubert/Schafersman [2] hearing on the admissibility of expert testimony related to the medical diagnosis of " psychosocial dwarfism." Jennifer joined in this motion. At this hearing, the State presented two witnesses. Dr. Bruce Buehler, a geneticist and pediatrician, testified first. He explained that psychosocial dwarfism is also known as psychosocial short stature (PSS). [289 Neb. 579] Although various witnesses used the two terms interchangeably, the district court utilized the PSS nomenclature, and we do likewise.

Buehler testified that PSS occurs when the body stops making growth hormone in response to a stressful environment. He stated that PSS can be diagnosed by measuring the body's production of growth hormone before and after changing the individual's environment. If the production increases substantially after the change, the diagnosis is made. Buehler also testified that the diagnosis can be made empirically if only one variable, the individual's environment, is changed and growth then occurs.

Buehler testified that he first saw A.H. in approximately 2011. At the time, A.H. presented with short stature, failure to thrive, and developmental delays. Buehler did a myriad of tests on A.H. in order to discover why he was not growing. These included metabolic tests, chromosomal tests, and autism tests. According to Buehler, he tested for every possible known medical reason for A.H.'s lack of growth and found nothing. After A.H. was removed from his parents' home, his growth increased substantially, without medical intervention. That growth empirically proved to Buehler that A.H.'s condition was PSS. Buehler testified that while it is rare, the diagnosis of PSS has been peer reviewed and published and is considered a medical diagnosis recognized by insurance companies.

On cross-examination, Buehler readily admitted that he did not know anything about the environment A.H. was living in and did not know whether A.H. was being

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abused. He also admitted that he initially thought A.H. had a genetic condition, and he acknowledged that there are genetic conditions which are currently unknown and therefore undiagnosable. But he explained that for his purposes of diagnosis, it was enough that the removal from the environment caused A.H. to grow; he did not need to pinpoint the specific factor in the environment that caused lack of growth. On redirect, Buehler clarified that a change in the environment could not cure a genetic condition and that he was 100-percent certain A.H. suffered from PSS.

[289 Neb. 580] Dr. Suzanne Haney, a child abuse pediatrician, also testified for the State. She testified that PSS has been a medically recognized diagnosis since 1947 and has been subjected to peer review and publication. She stated that the condition is a rare condition but is generally recognized and accepted in the scientific community. It is diagnosed by ruling out all medical and genetic reasons for lack of growth, changing the environment, and seeing growth. Unlike Buehler, Haney had reviewed records of A.H.'s history and considered the allegations of abuse and neglect when making the diagnosis of PSS. She testified that indicators of PSS are a child of short stature, no medical cause for the lack of growth, and a history of " clear neglect, abuse." She testified that PSS could not be diagnosed without knowing the child's history and that the stress to the child must be severe.

On cross-examination, Haney admitted she had reviewed the case file and reports but otherwise had no knowledge of the environment A.H. had lived in. She also admitted that it is possible A.H. has a genetic condition that is currently unknown. She testified that the stress which causes PSS must be severe, but that the medical community does not know exactly why or how the stress causes the body to stop producing growth hormone. She also testified that it was highly unlikely that an undiagnosed genetic condition was the cause of A.H.'s lack of growth, because genetic conditions do not change based on environment.

Following the hearing, the district court issued a written order in which it identified the issue before it as " whether the diagnosis of . . . PSS . . . passes muster under a Daubert/Schafersman analysis and can go to the jury by way of witnesses Dr. Buehler, and Dr. Haney." The order noted that its gatekeeping function required the court to make a preliminary assessment whether the reasoning or methodology underlying the expert testimony was valid and whether that reasoning or methodology could properly be applied to the facts in issue.[3]

[289 Neb. 581] The district court found that Buehler and Haney were both qualified experts as medical doctors and pediatricians. Buehler was additionally qualified in the areas of genetics, metabolism, endocrinology, and development. The court also found that the " 'technique'" they used to conclude that A.H. suffered from PSS was a medical diagnosis, the process of determining the existence of a condition or disease that requires treatment. The technique here included obtaining a history, ruling out all other causes for the lack of growth, and monitoring A.H.'s response to his change in environment. The court also found that PSS is a generally accepted, medically recognized diagnosis in the medical community and has been for several decades. It also found that PSS has been the subject of peer review and publication and that there are standards in the medical community which must exist before a diagnosis can be made. Based on these

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factors, the district court determined that the reasoning and methodology used by Buehler and Haney were sound.

The district court further determined that the diagnosis of PSS was relevant to the facts at issue in the case, because it was the State's theory that PSS constituted the " serious bodily injury" charged in the information. The court specifically found that the diagnosis of PSS " can properly be ...

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