San Antonio, Texas
MEMORANDUM OPINION No. 04-16-00344-CV
IN THE INTEREST OF A.A.T., a Child
From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 31,313 Honorable Enrique Fernandez, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Jason Pulliam, Justice
Delivered and Filed: December 28, 2016
AFFIRMED
This is an appeal from a trial court’s order terminating appellant mother’s (“Mother”) rights
to her child, A.A.T. [1] On appeal, Mother contends: (1) the trial court erred in excluding certain testimony from Mother’s expert; (2) the evidence is legally and factually insufficient to support the jury’s findings under section 161.001(b)(1)(D), (E), and (O); and (3) the evidence is legally and factually insufficient to support the jury’s finding that termination was in A.A.T.’s best interest. We affirm the trial court’s order.
[*2]04-16-00344-CV disputed. And, indeed, the Department was contacted by the hospital and opened a case, placing
the matter in family-based services. Grandmother was no longer permitted to care for the children, who were placed in a protective daycare while Mother was working.
On December 13, 2013, J.G. was examined by pediatrician James Louis Lukefahr of the Center for Miracles (“the Center”). The Center reviews and provides expert consultations with
regard to the medical aspects of child abuse investigations. Dr. Lukefahr testified he reviewed the emergency room records and agreed with Dr. Sanchez that J.G.’s facial injuries were not the result of a fall, but a result of a series of hand slaps to the face — slaps Dr. Sanchez described as “fairly forceful.” Because there were questions regarding the cause of J.G.’s facial injuries — abuse as opposed to a fall — Dr. Lukefahr ordered a skeletal survey to determine if J.G. had suffered any broken bones as a result of the November incident; none were found.
Around Christmas time, Mother, accompanied by R.T., returned to the hospital with J.G., who was suffering from congestion. He was prescribed medication and thereafter, Mother took him home. On December 31, 2013, Mother testified that at approximately 2:00 a.m., she was
awakened by J.G., who was crying and fussy. Mother denied he was upset at any point earlier in the day. As she changed his diaper, she noticed his left leg was swollen. Mother testified she believed he might be suffering from a reaction the previously prescribed medication, so she took
J.G. to the emergency room. Again, R.T. accompanied them to the hospital.
At the emergency room, an X-ray revealed J.G. had suffered two fractures to his left leg just above the ankle. Dr. Lukefahr subsequently described these fractures as a “pretty dramatic fracture of the left tibia just above the ankle,” and a “pending fracture” of the fibula. [3] According to Department caseworker Melanie Torres, Mother suggested that perhaps one of her older 04-16-00344-CV children had accidentally dropped J.G., resulting in the fractures. J.G.’s leg was placed in a cast and he was again referred to the Center for additional examination. Dr. Lukefahr conducted a second full skeletal survey of J.G. on January 17, 2014. At that time, the skeletal survey revealed three additional fractures: (1) two fractures to the left arm — both the ulna and radius were broken close to the left wrist, and (2) a single fracture to radius — the larger bone — of the right arm.
[*3]Dr. Lukefahr testified the arm fractures showed signs of healing, and therefore, were more than ten days old. A radiologist estimated they were two to three weeks old. Thus, J.G. it appeared suffered five fractures in the span of less than one month. Dr. Lukefahr stated J.G. would have
been in pain and would have likely cried and screamed at least for the first few hours after the fractures, perhaps as long as two days. Moreover, he would have stopped using his arms. Mother
claimed she was unaware of the fractures — other than the previously diagnosed fracture to the left leg, testifying she did not notice any damage or signs of pain. Dr. Lukefahr testified “a reasonable mother would have known something serious was wrong with the child.”
As for the left leg fractures, the doctor stated the “bone was also bent pretty significantly,”
“angulated,” and that some kind of force was used to “snap that bone and bend it off in an angle.”
He said it would have required “really a significant amount of force” to be applied to cause the fractures, which he opined occurred simultaneously.
Mother suggested J.G.’s injuries were caused: (1) when his older siblings dropped him; (2) by organic bone issues — Vitamin D deficiency, metabolic bone disease, Osteogenesis Imperfecta; or (3) when he was aggressively pulled from a crib with slats at daycare. Dr. Lukefahr testified
J.G.’s injuries were not consistent with being dropped by a sibling — the siblings were of a young
age and the height at which they would have held J.G. was not sufficient to cause the injuries, and J.G. was not of an age where he could have held his arms out to catch himself in such a fall. Dr.
[*4]04-16-00344-CV
Lukefahr opined the arms fractures required “a lot of force,” and it was unlikely they were the result of a fall. Dr. Lukefahr’s opinion was the same regarding the leg fractures.
As to alleged organic causes for J.G.’ injuries, Dr. Lukefahr stated he tested J.G. to rule out a vitamin deficiency or metabolic bone disease. Dr. Lukefahr also ruled out Osteogenesis
Imperfecta — not by genetic testing — but once J.G. was removed from the home, he suffered no additional fractures. The doctor opined that if a child has multiple fractures over the course of a month, but none thereafter, the child does not suffer from Osteogenesis Imperfecta. In a subsequent skeletal survey, no new fractures were found.
One of the managers from the protective daycare testified and provided evidence that the daycare did not use slatted cribs at the time J.G. was there. Although Mother and R.T. testified
they saw such cribs when they picked the children up from daycare, the director stated that at the time of J.G.’s care, only netted bassinets were used for infants in accordance with mandated requirements. According to the director, the slatted cribs were removed and replaced in January
2013, eleven months before J.G. began attending.
As set out above, the Department submitted evidence from doctors and others to establish
J.G.’s injuries were the result of abuse. As for the facial injuries, the Department admitted in discovery responses they were caused by Grandmother, but subsequently suggested this may not
have been the case — based on who the Department believed caused the multiple fractures. The Department presented evidence that beginning in October 2013 and through the end of the year
(and perhaps to date), Mother was engaged in a relationship with R.T., becoming pregnant with
A.A.T early on in the relationship. R.T. is admittedly the father of A.A.T, but he is not the father of any of Mother’s other children, including J.G. The evidence suggested all of J.G.’s fractures occurred during the course of the relationship — though both Mother and R.T. denied the existence of any relationship in the past or present. There was evidence R.T. was in the home during the 04-16-00344-CV times J.G. was injured — though he and Mother denied it. Mother’s three oldest children made statements to their current caregiver that R.T. hit them with a belt or spanked them when they asked for food, cried, or refused to get up in the morning. 4 R.T. claimed he never really spent any time in the home and had little to do with the children. Yet, all three children described R.T. as
[*5]“mommy’s boyfriend,” and even stated they were told by Mother to call him “dad.” They also stated R.T. grabbed J.G. by the leg and pulled it, causing J.G. to hit his head on the floor, and there was some evidence from Mother and R.T. that he was in the home the day before J.G.’s leg fractures were discovered.
Ultimately, the Department sought to terminate Mother’s parental rights to J.G. and her three older children based primarily on the injuries to J.G. Specifically, the Department alleged
Mother: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her children, who had
been in the Department’s custody for more than nine months as a result of removal for abuse or neglect. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). The Department also alleged termination would be in the children’s best interests. After a jury trial, the jury found Mother violated the provisions of the Code as alleged by the Department and that
termination would be in the bests interests of the children. See In re A.A.R., 04-15-00464-CV, 2016 WL 231964, at *5 (Tex. App.—San Antonio 2016, no pet.) (mem. op.); see also TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E), (O). In accordance with the jury’s verdict, the trial court
4 A.R., A.N., and C.N. were placed with the paternal grandmother of A.N. and C.N. J.G. was later placed in the home as well.
[*6]04-16-00344-CV signed an order terminating Mother’s parental rights to A.R., A.N., C.N., and J.G. Mother appealed to this court, challenging the sufficiency of the evidence supporting the jury’s findings of the statutory grounds for termination. A.A.R., 2016 WL 231946, at *1. We affirmed the order of termination, holding the evidence was sufficient, both legally and factually, to establish Mother violated subsection (E), i.e., she engaged in conduct or knowingly placing her children with persons who engaged in conduct that endangered the physical or emotional well-being of her children. Id. at *6; see TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
After A.A.T.’s removal, the Department prepared a new service plan for Mother (and R.T.)
with a stated goal of reunification. The trial court held the statutorily-required status and permanency hearings. Ultimately, the Department moved to terminate Mother’s parental rights to
A.A.T., asserting the same grounds as in the previous termination action. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E), (O). After a lengthy final hearing, at which Mother appeared with appointed counsel, a jury found Mother: (1) knowingly placed the children or allowed the children
to remain in conditions that endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with someone who engaged in conduct that endangered their physical or emotional well-being; and (3) failed to comply with the provision of a court order that specifically established the actions necessary for her to obtain the return of A.A.T., who had
been in the Department’s custody for more than nine months as a result of removal for abuse or neglect. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O). The jury also found termination of Mother’s parental rights would be in A.A.T.’s best interest. See id. § 161.001(b)(2).
Accordingly, the trial court rendered an order terminating Mother’s parental rights. Thereafter, Mother perfected this appeal.
[*7]04-16-00344-CV
ANALYSIS
As noted in the introduction, Mother contends: (1) the trial court erred in excluding certain testimony from Mother’s expert; (2) the evidence is legally and factually insufficient to support
the jury’s findings under section 161.001(b)(1)(D), (E), and (O), see id. § 161.001(b)(1)(D), (E), (O); and (3) the evidence is legally a factually insufficient to support the jury’s finding that termination was in A.A.T.’s best interest. See id. § 161.001(b)(2). We will address the trial court’s exclusion of the expert testimony first.
Exclusion of Expert Testimony
In her first issue, Mother contends the trial court erred in excluding testimony from her expert, Dr. Marvin E. Miller. Although the trial court determined Dr. Miller, a pediatric geneticist and pediatrician, is an expert in genetics, it concluded his hypothesis of temporary brittle bone
disease (“TBBD”), which the doctor also referred to as metabolic bone disease, was unreliable, failing to meet the standards required under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993) and E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
Standard of Review
Appellate courts review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 347 (Tex. 2015);
Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 262 (Tex. App.—San Antonio 1999, pet. denied).
This includes rulings on the reliability of expert testimony. Gharda USA, Inc., 464 S.W.3d at 347;
Aguiniga, 9 S.W.3d at 262. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. In re R.O.C., 131 S.W.3d 129, 134 (Tex.
App.—San Antonio 2004, no pet.) (citing Robinson, 923 S.W.3d at 558). A reviewing court should not find an abuse of discretion simply because it might have ruled differently or because the trial court committed a mere error in judgment. Id. at 134–35. “Admission of expert testimony 04-16-00344-CV that does not meet the reliability requirement is an abuse of discretion.” Gharda USA, Inc., 464
[*8]S.W.3d at 347–48 (quoting Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.
2006)). In other words, when “an expert’s testimony lacks a reliable scientific basis, its admission
by the trial court constitutes an abuse of discretion.” R.O.C., 131 S.W.3d at 135 (quoting Aguiniga, 9 S.W.3d at 262). Exclusion of evidence, even if erroneous, does not entitle an appellant to a
reversal unless the exclusion probably resulted in an improper judgment. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015); see TEX. R. APP. P. 44.1(a)(1).
Application
The crux of the decision to terminate Mother’s parental rights to her four older children and to seek termination of her rights as to A.A.T. was based on the numerous fractures suffered by
J.G. in the span of approximately one month, and in light of those injuries, Mother’s failure to recognize risks to her children and acknowledge the abuse suffered by J.G. Mother’s expert, Dr.
Miller, sought to opine that J.G. suffered from TBBD or metabolic bone disease, which Dr. Miller described as referring to multiple unexplained fractures (“MUFs”) in infants. The Department filed a motion to exclude Dr. Miller’s testimony, alleging it was unreliable.
Expert testimony is most commonly presented in the form of an opinion. Aguiniga, 9
S.W.3d at 262. Thus, it is “especially important” a for trial court to scrutinize such evidence for “scientific reliability,” particularly when it is based “upon novel scientific theories, sometimes referred to as ‘junk science.’” Robinson, 923 S.W.2d at 554. Whether a proffered opinion rises to the level of admissible evidence is determined by the rules of evidence. See generally TEX. R.
EVID. 702; Aguiniga, 9 S.W.3d at 262. Rule 702 requires that an expert be qualified “by knowledge, skill, experience, training, or education,” and that his testimony assist the trier of fact
in understanding the evidence or determining a fact in issue. TEX. R. EVID. 702. In addition, expert testimony must be relevant — sufficiently tied to the facts of the case such that it will aid 04-16-00344-CV the jury in resolving a factual dispute — and reliable — grounded in the methods and procedures of science, i.e., more than subjective belief or unsupported speculation. Robinson, 923 S.W.2d at
[*9]556; Aguiniga, 9 S.W.3d at 262. In Robinson, the Texas Supreme Court espoused six factors that it determined would be helpful in determining whether expert testimony is reliable: (1) the extent
to which the theory underlying the expert’s testimony has been tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory. See Robinson, 923
S.W.2d at 556–57. However, application of these factors does not preclude a trial court from measuring an expert’s methodology under the analytical gap analysis set out in Gammill v. Jack
Williams Chevrolet, 972 S.W.2d 713, 726 (Tex. 1988). Transcontinental Ins. Co. v. Crump, 330
S.W.3d 211, 215–16 (Tex. 2010); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 579 (Tex. 2006).
Under this analysis, the trial court must determine whether there is “too great an analytical gap
between the data and the opinion proffered.” Crump, 330 S.W.3d at 215–16 (quoting Gammill, 927 S.W.2d at 726) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). In other words, the two methods of review are not mutually exclusive. Crump, 330 S.W.3d at 215–16; Tamez, 206 S.W.3d at 579. As the court reiterated in Crump:
[I]n very few cases will the evidence be such that the trial court’s reliability determination can properly be based only on the experience of a qualified witness to the exclusion of factors such as those set out in Robinson, or, on the other hand, properly be based only on factors such as those set out in Robinson to the exclusion of considerations based on a qualified expert’s experience.
330 S.W.3d at 216 (quoting Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009)).
At the Daubert/Robinson hearing, Dr. Miller testified to his belief in the existence of temporary brittle bone disease, which he also referred to as metabolic bone disease. Dr. Miller - 10 -
04-16-00344-CV
opined that the presence of certain factors in infants with MUFs could indicate the presence of such disease. Dr. Miller opined the disease could result in fractures in infants — fractures that might otherwise be determined to have resulted from abuse — even during normal care routines.
Dr. Miller advised that he undertook a study of MUFs in infants in 1994. He then explained his research process from which he concluded the following factors are indicative of the existence of metabolic bone disease, i.e., TBBD: (1) maternal and/or infant Vitamin D deficiency; (2) fetal
bone loading; (3) gestational diabetes; (4) intrauterine growth retardation; (5) maternal use of medication; (6) premature birth; and (7) the existence of Ehlers-Danlos Syndrome. Dr. Miller stated a child with the hypothesized disease usually does not have bruising, but will on occasion.
And he admitted there would be swelling if the fracture were to a “long bone.” To his knowledge, there was no mention of any swelling or bruising to the J.G.’s arms, suggesting to him the existence of metabolic bone disease.
As to Mother and J.G., Dr. Miller stated “there was historical evidence that some of the risk factors might be present.” Dr. Miller admitted, as to Vitamin D deficiency, that in March
2014, J.G. tested in the normal range, but because this was several months after the fractures were found, he could not make a judgment as to the possible existence of a deficiency at that time. He opined Mother might have had this risk factor because of her BMI, but he did not know. He also opined that because Mother was “relatively small” and J.G. was of normal birth weight, there might have been intrauterine growth retardation due to confinement — this might have caused decreased bone density in the womb. He also opined, though he had no proof, that Mother might have suffered from Ehlers-Danlos Syndrome because she reported that she bruises easily, suffers from constipation, and suffers dizziness when she stands. There is no diagnostic test for the syndrome.
Dr. Miller thought that if Mother suffered from the syndrome, J.G. might as well, and those with
- 11 - 04-16-00344-CV the syndrome have lower bone density and are at a slightly greater risk of fractures than the general population. Based on his research and subsequent hypothesis of the possible existence of metabolic bone disease, i.e., TBBD, in infants with MUFs, Dr. Miller opined there “is a strong possibility” that J.G.’s fractures resulted from metabolic bone disease, i.e., TBBD. He further advised that J.G.’s x-rays “looked abnormal . . . and were consistent with what I call metabolic bone disease.” He noted “abnormal bone mineralization” in certain bones. He said this raised the strong possibility that J.G.’s fractures were not necessarily caused by abuse, but the fractures could be “fragility fractures” that could occur during routine handling of a young infant with metabolic bone disease, i.e., an infant with “a skeletal system that’s weaker than normal,” or even during the skeletal surveys. However, he admitted it was not possible to make an accurate judgment of bone density simply based on an x-ray unless there is osteopenia, i.e., “a washing out of the bone.” On cross-examination, Dr. Miller stated his belief that J.G.’s x-rays appeared abnormal prompted him to “look for the risk factors” he believes indicate the existence of metabolic bone disease of TBBD. He acknowledged that while in Mother’s care, J.G. suffered numerous fractures, but once removed, he suffered no additional fractures. He said J.G.’s condition “seem[ed] to be” temporary. In Dr. Miller’s view, J.G. suffered the disease based on what happened while he was in the womb, but that over time, the condition resolved itself. According to Dr. Miller, he initially used the phrase TBBD, but because the phrase was “politically charged” and metabolic bone disease is “more comprehensive,” he started using the phrase metabolic bone disease instead of TBBD. He admitted the chairman at Wright University where he works had advised him three or more years ago to stop doing consulting work with regard to TBBD. He conceded the concept of TBBD is controversial, acknowledging that many pediatric - 12 - 04-16-00344-CV child abuse specialists do not believe in its existence. He further conceded the idea that a Vitamin D deficiency causes brittle bones in infants is also very controversial. Dr. Miller admitted he never spoke directly to Mother, nor did he examine her or J.G. He was unable to say with reasonable medical certainty that Mother or J.G. had a Vitamin D deficiency. Similarly, he could not say whether Mother or J.G. suffered from Ehlers-Danlos Syndrome. Dr. Miller admitted J.G. was a full-term infant and there is no evidence any medication taken by Mother during pregnancy would have led to metabolic bone disease. He acknowledged there was no evidence Mother suffered from gestational diabetes or that J.G. suffered from intrauterine growth retardation. Dr. Miller also admitted fractures that result from his theory of metabolic bone disease “usually occur” in the first six months of an infant’s life. However, it is undisputed that no fractures were noted in J.G. until he was seven months old. He concluded by admitting he could not rule out the possibility that J.G. was abused, resulting in the noted fractures. Dr. Miller’s testimony, when considered as a whole, shows Dr. Miller could not say for certain that Mother or J.G. suffered from any of the risk factors he contends are indicative of infantile metabolic bone disease. Dr. Miller was able to opine only that Mother and/or J.G. might have had three of seven noted risk factors. Thus, he was unable to show his pre-determined risk factors — even assuming their presence is indicative of the existence of his hypothesized metabolic bone disease — supported a conclusion of metabolic bone disease with regard to J.G. See Gammill, 972 S.W.2d at 726–27. There was an analytical gap between Dr. Miller’s data and his proffered opinion that J.G. suffered from metabolic bone disease, resulting in the fractures. See id. Moreover, the Department presented evidence from expert Dr. Maria Gisela Mercado- Deane, a pediatric radiologist and consultant for the Center. Dr. Mercado-Deane, after establishing her qualification, first testified about a conference she attended just two weeks before the - 13 - 04-16-00344-CV termination hearing. She testified the conference, which was entitled “The Imaging of Child Abuse: From Exam Room to X-ray Room to Court,” drew attendees from the fields of child abuse and neglect, pediatrics, radiology, orthopedics, neurology, and emergency medicine. According to the doctor, Dr. Miller’s theory of metabolic bone disease was discussed at the conference where it was criticized. Dr. Mercado-Deane testified Dr. Miller’s theories “are not accepted in the community of child abuse experts.” She stated his ideas have not been proven, stating they are pure speculation. The doctor advised there has not been any publication establishing proof with regard to Dr. Miller’s ideas and theories. Dr. Mercado-Deane pointed to an article entitled “Critical Review of Temporary Brittle Bone Disease,” which was prepared by the ad hoc committee on child abuse for the Society for Pediatric Radiology (“SPR”). The article was endorsed by both boards for the SPR and the European Society for Pediatric Radiology (“ESPR”) at their 2005 meeting. In that article, the members of SPR and ESPR stated the purpose of the article was “to instruct courts on the most current and widely accepted imaging methods and to refuse expert testimony that lacks a sound medical basis.” The members sought to “expose irresponsible medical expert testimony in the field of pediatric diagnostic imaging.” In that article, the authors discuss Dr. Miller’s theory of TBBD, refuting it and specifically stating the methodology and reliability of the theory is wrong and unreliable. In the article, the authors stated that the key concept “in this alleged condition is that a young infant had a problem that made the bones susceptible to fractures for a short period of time, but the condition resolved spontaneously, leaving no pathology to identify.” The authors advised it was their “professional responsibility to provide the courts with reliable scientific information” and “a diagnosis of TBBD does not meet this standard because it lacks appropriate grounding in scientific methods and procedures.” The authors stated the theory “is based on the unsupported speculation and subjective beliefs of [a] small number of medical professionals,” and - 14 - 04-16-00344-CV allowing the presentation of evidence in court on this theory creates a grave risk that non-scientific fact finders will be misled or confused by “unreliable and/or irrelevant expert opinion.” The authors of the article concluded this would threaten the quality of legal decisions and poses “an unacceptable risk to the safety of children.” In sum, the article strongly advised evidence on the theory of TBBD should not be admitted as evidence in court. Dr. Mercado-Deane then pointed to a second article published in February 2016 — just a month before trial — entitled “The Etiology and Significance of Fractures in Infants and Young Children: A Critical Multidisciplinary Review.” According to the doctor, the article was put together by a coalition of experts from the SPR and includes information regarding Vitamin D deficiency and brittle bones, among other things. In the article, the authors concluded Vitamin D deficiency “does not have direct correlation to bone disease.” As Dr. Mercado-Deane pointed out, this refutes Dr. Miller’s assertion that Vitamin D deficiency is indicative of metabolic bone disease, i.e., TBBD. The article specifically advised that courts are not proper forums for the presentation of “new or unsubstantiated theories of causation of disease.” The article concluded the “[c]ourts can avoid promulgating unsubstantiated and unsafe theories and opinions by relying on medical and ethical guidelines from,” among others, “the Society for Pediatric Radiology and the American Academy of Pediatrics.” And, as is particularly pertinent here, the article stated: As an example, the Committee on Child Abuse of the Society for Pediatric Radiology helped refute the legitimacy of temporary brittle bone disease, a disease that has not been proven to exist. (emphasis added) The doctor also contradicted Dr. Miller’s assertion that x-rays of J.G.’s bones showed “loose zones.” She testified the zones described by Dr. Miller were actually the result of “normal healing of a fracture.” Dr. Mercado-Deane stated the healing fractures were not indicative of mineralization issues, opining that J.G.’s bones were “normal in mineralization.” - 15 - 04-16-00344-CV As to some of the information relied upon by Dr. Miller in developing his theories, particularly a study by Dr. Kathy Keller and Dr. Patrick Barnes, Dr. Mercado-Deane testified the study was flawed — not just in her opinion, but in the opinion of several commentary authors. The Keller and Barnes study was for the purpose of engendering discussion, not as an answer to infant fractures. The doctor provided detailed criticism of the study. She also noted that in 2013, an article advised that “[t]he hypotheses set forth in Keller and Barnes thus remain hypothetical and unsubstantiated,” and “[p]erhaps better stated, the hypotheses of Keller and Barnes have been disproved.” According to Dr. Mercado-Deane, when Dr. Keller presented her findings at the 2008 annual meeting of the SPR, people left because the presentation was “so outrageously not accepted, and there were [sic] even some booing.” Dr. Mercado-Deane testified, in sum, that the prevailing thought about TBBD among pediatric radiologists and child abuse experts is that it does not exist. Put another way, she stated Dr. Miller’s ideas regarding metabolic bone disease are not generally accepted by pediatricians or other medical doctors. She stated Dr. Miller’s ideas about TBBD cannot even be categorized as a theory; rather, he merely has opinions because there is no proof, only conjecture. The doctor stated there are two peer-reviewed articles on TBBD — one by Dr. Miller and one by Drs. Keller and Barnes — and both have been refuted. And, in fact, there are numerous medical articles that state TBBD is not a valid theory and does not, in fact, even exist. The doctor stated her concern regarding presentation of Dr. Miller’s ideas to a jury, stating that she fears jurors might interpret his ideas as “proved science when it is not.” She then went through each of the factors Dr. Miller opined might be attributable to J.G. and/or Mother and testified that none of them have a proven association with the type of bone fragility Dr. Miller discusses. - 16 - 04-16-00344-CV The Department also presented evidence from Dr. Lukefahr at the Daubert/Robinson hearing. [5] As previously noted, Dr. Lukefahr is a child abuse pediatrician and is board certified in both general pediatrics and child abuse pediatrics. Dr. Lukefahr testified that during his career, he has become familiar with the idea of TBBD. He stated that as a pediatrician, he does not recognize such a disease. Although he knows many other pediatricians, he does not know of one that endorses the ideas propounded by Dr. Miller. According to Dr. Lukefahr, the idea “defies logic,” stating: [T]he idea that a child could suddenly develop a medical condition at the age three months or so that is then totally gone by 12 months, it’s not logical, it doesn’t — it defies common sense. And in actual fact, it does turn out that there’s no scientific evidence that’s ever been put forward to support it. Dr. Lukefahr pointed to two articles that contradict Dr. Miller’s ideas. First, in an article entitled “Vitamin D Status in Abused and Nonabused Children Younger Than 2 Years Old With Fractures,” the authors stated that low Vitamin D levels are common in the United States, but there is no difference in such levels between children with fractures due to abuse and children with fractures due to accidents. Thus, according to Dr. Lukefahr, this strongly suggests that low Vitamin D levels are not associated with increased fractures, disqualifying law Vitamin D as a “factor” for Dr. Miller’s theory. The second article, “Evaluating Infants and Young Children With Multiple Fractures,” is a clinical report from the committee on child abuse and neglect of the American Academy of Pediatrics. The report is prepared by the committee, but then it goes through five or so levels of review with the Academy before it is released. Relevant here, the article, which Dr. Lukefahr testified is the “kind of thing” he follows in his work, states that a few articles have hypothesized the existence of TBBD, but the existence of such a disease “is neither