STA TE OF ILLINOIS IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

DUPAGE COUNTY

Randy Liebich, Petitioner

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Cir. Ct. No. 02-CF-654

V. Post Conviction No.

People of the State of Illinois

AFFIDAVIT OF DR. SHAKU TEAS

I, Shalrn Teas, hereby declare and state:

1. My name is Shalru Teas. I am board certified in anatomic, clinical and forensic pathology. My curriculum vita is attached.

2. I have conducted more than 6,000 autopsies, approximately 10% of which were on children. From 1977 to 1991, I worked for the Cook County Medical Examiner's office. From 1991-2005, I worked for Coroner's offices in Illinois, including DuPage County. I was also a member of the Aurora Child Death Review Team, which included DuPage and surrounding counties, from 1995-2005. I was the Chair of that team for approximately two years, including at the time of Mr. Liebich's trial.

3. In Mr. Liebich's case, I agreed with the Cook County Medical Examiner's office that Steven Quinn's death was a homicide (which in forensic pathology means at the hands of another, irrespective of intent) and that the injuries occurred approximately five days before the child's death. Since the injuries occurred before the period that Mr. Liebich cared for the child, I agreed to testify for the defense.

· Initial case review and testimony

4. This case involved a child who had abdominal and head injuries and who had been kept alive for 66 hours after hospital admission. For most of this period, the child was brain dead and on life support. These factors complicate the assessment of the precise course of events that led to the death and the relationship between the various medical findings.

5. The autopsy identified three types of injuries: abdominal injuries; head injuries; and bruising. The abdominal findings consisted of an ischemic necrotic bowel (approximately 7 inches) with a very small (.1 inch) bowel perforation; peritonitis (inflammation/infection in the peritoneal cavity surrounding the abdominal organs); peripancreatitis and pancreatitis (inflammation or infection surrounding and entering into the pancreas); and a healing liver lllJUry.

6. There were two medical findings in the head: a hypoxic-ischemic brain, i.e., a brain that had been deprived of oxygen for an extended period, and relatively small subduraVsubarachnoid hemorrhage.

7. The external injuries consisted of a wide variety of marks (bruises, lines, etc.), most notably on the back.

8. Given the complexities of the case, my initial focus was on determining the timing of the various findings based on the microscopic slides of the tissues. Pathologists time injuries based on the presence or absence of various types of"healing" cells that can be seen under a microscope. The progression of healing is established in the literature. To heal an injury, the body sends neutrophils to the injured area, followed by macrophages and fibroblasts. If the pathologist sees only hemorrhage or neutrophils, the injury is new, with the time measured in hours. If there are macrophages and granulation tissue with few if any neutrophils, the injury is at least 5 days or more since it takes that long for the fibroblasts to reach that stage of healing (granulation tissue).

9. In looking at timing, it is critical to look at the oldest part of an injury. Once healing occurs, the delicate vessels in the granulation tissue can rebleed easily. Injuries that do not heal can . _ also expand, as occurred in this case. Thus, the presence of fresh blood does not tell you that the injury is new. Instead, to determine when the injury occurred, one must look at the oldest area of the injury.

10. The healing in the initial slide review established that Steven's injuries occurred approximately five days before he was removed from life support. Since Steven was taken off life support at February 11 at noon, this meant that the injuries most likely occurred by noon on February 6 or earlier. It is also possible that the injuries occurred early on February 7. Some portions of the injuries appeared to be even older, closer to the seven day range.

11. Before giving my opinion, I obtained the handwritten slide review notes by Dr. Mileusnic, the forensic pathologist who conducted the autopsy at the Cook County Medical Examiner's office. These notes indicated that Dr. Mileusnic dated the injuries at approximately five days, or two days before Mr. Liebich cared for the child. I also spoke with Dr. Mileusnic, who confirmed,Mi:-written opinion. u~··g.,~· ~,,

12. After I gave my opinion, Mr. Ruggiero, the prosecutor, called me. In our conversation, he inquired about the part of the autopsy report in which Dr. Mileusnic had opined that the injuries were 5 days old. I pointed out pages in the autopsy report where the timing was

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mentioned. At the time, it was my impression that Mr. Ruggiero had not been aware that the medical examiner had timed the injuries to a period before Mr. Liebich cared for the child.

13. When I was consulted, I advised Mr. Holman and Mr. Casey that they needed to thoroughly understand how pathological timing is done, and I further advised them to go to Tennessee to review the slides with Dr. Mileusnic so they could understand the basis for her opinion. This would also refresh her memory since she had left the Cook County Medical Examiner's Office and would not have access to the slides or other materials. Since the medical records that I received were incomplete and in some cases illegible, I asked them to subpoena the records directly from the hospitals. Finally, I advised that they needed to establish that the child had been symptomatic in the days before his collapse, as evidenced by his weight loss and the Tylenol in his system. In my opinion, it would not be possible for a Court to consider the issues without complete information.

Verdict

14. When I learned after trial that Mr. Liebich had been convicted of causing the injuries despite pathological evidence establishing that the injuries occurred before the child was in his care, I advised the Court that the amount of reaction and healing in the tissues was inconsistent with injuries occurring on February 8 and that the child's 4-5 pound weight loss between his November 2001 checkup and hospital admission further confirmed that this process began well before February 8.

15. In February 2012, I learned that the Court relied on my testimony to place the injuries within the time period that Mr. Liebich cared for the child. In her judgment, the Court correctly states that I timed the injuries to 5 days, plus or minus 1 day, based on my review of the slides. However, the Court went on to say that this timing places the injuries between February 4-8 or February 5-9 based on the healing shown on the slides. This was not my testimony and does not follow from the timing that I provided. Since the body does not recognize calendar days, pathological timing is measured in hours, with a day being a full 24 hour period.

16. Since Steven was removed from life support at noon on February 11, the 5 days of healing shown on the slides goes back to at least noon on February 6. With one day on either side, the timing for the injuries goes from noon on February 5 to noon on February 7. As I made clear in my testimony, the healing shown on the slides was highly unlikely to have occurred after noon on February 7 and likely occurred much earlier. The court's dating appears to have been a mathematical miscalculation.

d.l,,I,,also just learned that Mr. Casey suggested in his closing argument thBf"d~was not sure whether I saw older injuries, i.e., injuries occurring before February 8. This was not my testimony. While pathological timing is not precise and in medicine one can rarely say "never," my testimony was that the healing and reaction seen in the slides represented injuries that occurred on or before the morning of February 7. This testimony was based on established pathological principles.

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18. In the verdict, the Court relies heavily on the testimony of the neurosurgeon, Dr. Munoz, who timed the injuries based on the color of the blood seen at surgery. What is seen visually and what is seen under the microscope can, however, be quite different. The principles are the same in forensic and clinical pathology. Gross examination of blood or tissue is not a reliable method to assess healing or timing or pathology. A surgeon who takes a tissue sample from a breast does not rely on a visual review to determine whether cancer is present. Instead, the tissue is sent to a pathologist who examines it under the microscope. The same is true in forensic pathology. Often an injury that looks fresh visually may prove to be days, weeks or even months old when the oldest portion of the injury is viewed under the microscope.

19. Since Steven continued to deteriorate in the hospital, I agree that Dr. Munoz would have seen fresh blood and a very swollen brain at surgery. I also agree with the treating doctors that Steven would not have been able to eat, drink or behave normally in the condition he was in when he arrived at the hospital since by then he had acute pancreatitis and a hypoxic brain. However, this does not indicate or suggest when this process began or what started it. For that, it is necessary to review the pathology, which in this case confirmed that the process had been ongoing for more than a day before hospital admission.

20. I have been told that the Court emphasized that the damage to the bowel, pancreas and liver represented a straight line of force. While these organs are in the same area, the organs and injuries are not in a straight line.

New information: slides

21. Since the court's verdict was contrary to my review of the slides, I immediately double checked my work. I first took photomicrographs of the slides to a professional conference and asked several other forensic pathologists to review the slides and date the injuries. All of the reviewing pathologists found that the key injuries were at least five days old, with some suggesting that they were even older.

22. I also had some unstained slides that I had not used before the trial since the medical examiner and I agreed on timing. Additional testing is usually done only when there is disagreement. Iron and Masson stains are two of the more common stains used to assist in determining timing. When a slide is stained with iron stain, hemosiderin from breakdown of red blood cells shows up as bright blue. While scattered iron may appear by 72 hours, significant areas or clumps of iron do not appear before 72 hours. The Masson stain makes collagen easier to see and appreciate by turning it bright blue. The presence of collagen indicates that scarring has begun. ~~1. ";- ~

23. Since the trial, I have had stains done at my own expense to see if this would shed any further light on timing. The iron and Masson stains have confirmed that the injuries were at least five days old and that some were even older.

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24. I have reviewed some of the photographs of these slides with Mr. Escuder, Mr. Liebich's counsel. As I am leaving for India tomorrow, I do not have time to prepare a presentation on specific slides but I am willing to do so on my return or at an evidentiary hearing. I can, however, identify a few of the slides that confirm older injury.

25. On my initial review, slide #4 (bowel) showed many macrophages and very few neutrophils. Fibroblasts were attempting to heal the injury and beginning to form a scar. This placed the injuries at approximately 5 days, plus/minus 1 day. Recent iron staining shows significant iron, confirming that the injury was approximately 5 days old or even older.

26. On my initial review, slide # 16 (pancreas) showed a large area of normal pancreatic tissue with an older injury in the surrounding connective tissue with fibroblasts and well­established granulation tissue (scarring). There was some continuation of healing, with a few neutrophils. This placed the injury at more than 5 days. Recent Masson staining shows clear blue staining ( collagen or scarring), indicating that the area of granulation tissue is approximately 7-10 days old.

27. On my initial review, slide # 19, which appears to be forehead skin, had many fibroblasts and macrophages but no neutrophils. This placed the injury at approximately 5 days. The recent iron stain shows very heavy iron.

28. Iron and/or Masson stains on other slides, including slides# 29 and #33 (bowel) and #37 (liver) produced similar results, confirming that the significant injuries were 5 days old or older.

New evidence: coagulopathy

29. I have recently learned that, based on the laboratory tests, Dr. Michael Laposata, a national expert on coagulation, has confirmed that Steven had pancreatitis and disseminated intra vascular coagulation (DIC) at the time of hospital admission.

30. Since DIC causes spontaneous bruising or bruising from trivial trauma, including medical intervention and treatment, DIC would provide a satisfactory explanation for many of the bruises and lines that appeared on Steven's body after hospital admission. Other marks attributed by the State to trauma, including the Cullens sign (a bruise like mark around the umbilicus), are simply indicia of pancreatitis and were recognized as such in the hospital records. The only marks that are concerning to me as an indicator of trauma are the bruises on the lower part of the child's back, which could represent a push or shove, resulting in a crush injury.

31. DIC may also explain the head findings, which consisted of a small subdural or subarachnoid hemorrhage and a hypoxic-ischemic brain. Both of these findings can be caused by a coagulopathy (bleeding/clotting disorder) such as DIC. Since DIC causes thrombosis as well as hemorrhage, the CT scan should be re-read by a qualified pediatric radiologist, with particular emphasis on possible thrombosis.

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32. Based on the slides and history, it is possible to suggest the most likely progression of Steven's medical findings. Based on currently available information, it appears that the child had an ischemic bowel beginning at least five days before death, leading to peritonitis, pancreatitis, a small perforation and DIC, with rapid deterioration shortly before presentation to the hospital. The hypoxic-ischemic brain, small subdural hemorrhage and many of the bruises and lines on the child's body are likely secondary to infection and DIC.

33. It is unfortunate that the abdominal CTs and treatment were cancelled since this would have provided more accurate information on the progression of the injuries and may have improved the chances for survival.

Changes in the medical literature

34. There have been major changes in the medical literature since Steven's death in 2002 and the trial in 2004. In the early 2000s, it was widely believed that swollen brains were caused by the traumatic tearing of axons (the nerve fibers that connect the cells of the brain) throughout the brain and that subdural hemorrhages were caused by the traumatic rupture of the bridging veins that connect the brain to the superior sagittal sinus (the large vein that drains the brain). It was further believed that such traumatic tearing would require a major force, often described as equivalent to a major motor vehicle accident or fall from a multistory building.

35. In 2001, a position paper published in the journal of the National Association of Medical Examiners (NAME), the professional organization for forensic pathologists, adopted these hypotheses and suggested that the force was caused by violent shaking. (1). This position paper was not approved by the reviewers and was accompanied by an editorial caveat intended to make clear that it was not an official NAME position paper but rather represented the views of the authors. Despite these red flags, this paper became the foundation of many criminal prosecutions.

36. While this case was not a shaken baby case, the Rush diagnosis included shaken baby syndrome and the state's key trial witnesses relied heavily on the underpinnings of this theory, as set forth above.

37. Soon after the NAME paper was published, a series of research and review papers established that many of the assumptions in this paper were incorrect. Perhaps most important, neuropathological research papers published in 2001 confirmed that the brain swelling in infants was hypoxic-ischemic rather than traumatic and is also found in natural deaths. (2, 3) The same papers found that the subdurals seen in allegedly abused infants are small and:,,tJa~,-m1d are similarly seen in natural deaths. (2, 3) A third paper, also pubMshed= in 2001, found that short falls can produce the same findings, disproving the former belief that it required the force of a fall from a multistory building. ( 4) A 2003 paper published in the NAME journal found that there was no scientific or evidence-based research support for the shaken baby hypothesis. (5). The current consensus is that there are numerous accidental and natural causes for the medical findings previously attributed to shaking or abuse, and that

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such findings may be secondary to other injuries or illnesses. (6, 7, 8, 9). There is also considerable consensus that children may have lucid intervals (periods of normality or relative normality) of up to 72 hours after a head injury that ultimately proves fatal. (10, 11)

38. In October 2006, the 2001 NAME position paper expired and the NAME annual meeting included papers with titles such as "The Use of the Triad of Scant Subdural Hemorrhage, Brain Swelling, and Retinal Hemorrhage to Diagnose Non-Accidental Injury Is Not Scientifically Valid." (12)

39. In 2009 and 2010, new research confirmed that the small subdurals seen in allegedly abused children are too small to represent traumatic bridging vein rupture (13) and that retinal hemorrhages are related to brain swelling and life support, rather than the traumatic rupture ofretinal veins. (14) Other research has further supported the role of hypoxia. (15)

40. There have been similar changes in our understanding of abdominal injuries. Forensic medicine has long recognized that slow collapse from abdominal injuries is common. This is a well-known phenomenon in children who hit the handlebars of bicycles or are impacted by a seatbelt and who present with abdominal injuries a day or more after the event. (16). In her judgment, the Court stated that there is no lucid interval concept or theory with abdominal injµries and that there is an immediate onset of symptoms. It is my understanding that this was based on the testimony of a pediatric intensivist. In 2006 and 2009, however, the leading textbooks written or edited by child abuse pediatricians confirmed that abdominal injuries may progress slowly. (17, 18)

41. In view of these major changes in the literature, the courts are beginning to review child cases from the late 1990s and early 2000s that were based on misunderstandings of the progression ofinjury and disease in children. (19, 20, 21) While Mr. Liebich was not accused of shaking Steven, the prosecutors and the prosecution witnesses relied heavily on the tenets of shaken baby syndrome to support their claims, including the outdated beliefs that swollen brains and subdural hemorrhages represent torn axons and ruptured bridging veins, requiring the force of a multistory fall or major motor vehicle accident, and that there are no lucid intervals for head or abdominal injuries.

Conclusion

42. The microscopic slides, including the new stains, establish that the abdominal injuries were five days old or older, putting them outside the period that Mr. Liebich cared for the child. Based on newly available information, including the new literature, it is likely that the small intracranial hemorrhage, the hypoxic-ischemic brain and many of the marks and bruises

~-oi-·'"'-"'- identified at autopsy were secondary to hypoxia, septicemia, peri~niti~abdominal infection/inflammation) and DIC rather than trauma.

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I swear under penalty of perjury that the foregoing is true and correct.

~~:) Shaku S. Teas, M.D.

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