United States v. Sanchez

UNITED STATES, Appellee

v.

Luis D. SANCHEZ, Specialist
U.S. Army, Appellant

No. 06-0617

Crim. App. No. 20010943

United States Court of Appeals for the Armed Forces

Argued January 17, 2007

Decided June 21, 2007

RYAN, J., delivered the opinion of the Court, in which BAKER,
ERDMANN, and STUCKY, JJ., joined. EFFRON, C.J., filed a
dissenting opinion.

Counsel

For Appellant: Captain Seth A. Director (argued); Lieutenant
Colonel Steven C. Henricks and Major Fansu Ku (on brief).

For Appellee: Captain Michael C. Friess (argued); Colonel John
W. Miller II, Lieutenant Colonel Michele B. Shields and Captain
Tami L. Dillahunt (on brief).

Military Judge: Debra Boudreau

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sanchez, No. 06-0617/AR

Judge RYAN delivered the opinion of the Court.

In this case we are asked to decide whether the military

judge abused her discretion when she denied the motion in limine

to exclude testimony from an expert in child sexual abuse that

was based in part on findings from a physical examination of the

victim, findings which Appellant claims are unreliable. See

Military Rule of Evidence (M.R.E.) 702; Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 141 (1999); Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); United States

v. Billings, 61 M.J. 163, 166 (C.A.A.F 2005). We conclude that

the military judge’s determination that the expert opinion had a

sufficient factual basis and was reliable was not “‘manifestly

erroneous.’” General Electric Co. v. Joiner, 522 U.S. 136, 142

(1997) (quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)).

Therefore, we hold that the military judge did not abuse her

discretion.

I. Background

A.

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of rape and

forcible sodomy of his eight-year-old stepdaughter, JA, in

violation of Articles 120 and 125, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 920, 925 (2000). The sentence

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adjudged by the court-martial and approved by the convening

authority included a dishonorable discharge, confinement for

nine years, forfeiture of all pay and allowances, and reduction

to the lowest enlisted grade. The Court of Criminal Appeals

affirmed. United States v. Sanchez, No. ARMY 20010943 (A. Ct.

Crim. App. Apr. 12, 2006) (unpublished).

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY
ADMITTING EXPERT TESTIMONY REGARDING THE ALLEGED VICTIM’S
MEDICAL EXAMINATION OVER DEFENSE OBJECTION.

B.

JA, Appellant’s eight-year-old stepdaughter, complained to

her mother that Appellant sexually molested her over a period of

more than two years. She presented details to her mother and to

medical professionals regarding the instances of rape and

forcible oral and anal sodomy of which Appellant was convicted.

In early January 2001, a few days after the last act of

forcible anal sodomy, Ms. Lori Long, a forensic examiner and

sexual assault nurse examiner at the Chrisus Santa Rosa

Children’s Hospital, examined JA. Ms. Long concluded that JA’s

vagina was abnormal, “concerning”1 for abuse, and consistent with

the history of sexual abuse she took from JA.

1
“Concerning” is a medical term for evidence that is consistent
with possible sexual abuse.

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At the end of January 2001, Dr. Nancy Kellogg, the Medical

Director of the Alamo Children’s Advocacy Center, reviewed Ms.

Long’s conclusions and the patient history taken from JA by Ms.

Long, interviewed JA, and conducted her own physical examination

and medical evaluation of JA.

At trial, Appellant moved in limine to exclude the

testimony of Dr. Kellogg, who was an expert witness for the

prosecution, under M.R.E. 702 and Daubert. The defense accepted

Dr. Kellogg as an expert in child sexual abuse and did not argue

that expert testimony on child sexual abuse was irrelevant to

the facts at issue in the case.2 Instead, the defense argued

that the expert’s testimony was not the product of reliable

methodology. Id.

The military judge conducted an Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000) hearing, to assess the reliability of

this testimony. At the hearing, Dr. Kellogg explained the

methodology she used in arriving at her opinion that JA was

concerning for sexual abuse. Dr. Kellogg testified that she had

2
Dr. Kellogg was a board-certified pediatric physician with
thirteen years of experience focusing on child sexual abuse.
She was a full professor in the pediatrics department of the
University of Texas Health Science Center in San Antonio, Texas.
She was the Director of the Alamo Children’s Advocacy Center,
where she had examined more than 6,000 children in possible
sexual abuse cases. She had published twenty articles on child
sexual abuse in scholarly and professional journals and been
elected to the Ray Helfer Society, which is composed of the 100
physicians in the world considered to be experts by their peers
in the field of child sexual abuse.

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conducted a physical examination of JA, taken fluid samples,

conducted laboratory tests on those samples, reviewed JA’s

medical history, consulted with a professional colleague, and

spoken with JA, who made certain comments about the sexual abuse

that implicated Appellant. Dr. Kellogg testified that it is

standard practice in her field to look at all of these factors

together: “the diagnosis in medicine is made on the basis of a

constellation of findings.”

Dr. Kellogg explained why, using this methodology, she

concluded that JA was concerning for sexual abuse. One of the

most important factors was the consistent patient history.

Relevant to the instant appeal are three specific medical

findings from Dr. Kellogg’s physical examination of JA that she

considered: (1) a thickened hymen; (2) a high vaginal white

blood cell count; and (3) anal dilation. Dr. Kellogg elaborated

on the significance of each of these findings as it related to

her conclusion that JA was concerning for sexual abuse.

Dr. Kellogg testified that the hymenal tissue in a

prepubertal child should be thin and sheet-like, not thickened.

JA’s hymen had focal thickening. Moreover, the vaginal swabs

revealed that JA had numerous white blood cells inside of her

vagina.

These findings were concerning for sexual abuse because

while the hymen does thicken over time due to estrogen as the

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child matures and sexual development occurs, focal thickening of

the sort observed in JA, who was only eight, is not normal and

is usually the result of trauma. Trauma includes both

irritation and penetration, which are consistent with sexual

abuse. Further, in light of JA’s prepubertal state of maturity,

a high white blood cell count was unusual. It could be caused

by either an infection or irritation. JA did not have an

infection. A hymen that was torn or attenuated could account

for the presence of white blood cells because the protective

shield is less effective in shielding the vagina from bacteria.

JA’s hymen did not cover her vaginal opening. The medical

findings and patient history were the basis of Dr. Kellogg’s

medical assessment that JA’s vagina was concerning for sexual

abuse.

Dr. Kellogg next described her examination of JA’s anus

while JA was in the knee/chest position. There was no stool,

and both the external and internal sphincters immediately

dilated. Dr. Kellogg acknowledged that there were certain other

circumstances where anal dilation might be considered normal.

But because none of those circumstances existed, the anal

dilation was concerning for sexual abuse. Dr. Kellogg admitted

that reliance on anal dilation findings to support a conclusion

of sexual abuse is relatively controversial in her field.

Dr. Kellogg further explained that her medical findings

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were congruent with both the patient history that Dr. Kellogg

had reviewed and JA’s statements during her examination. A

consistent patient history is one of the strongest indicators of

sexual abuse.

Dr. Kellogg admitted that no formal studies addressed the

error rates for the medical findings she used as part of the

basis for her conclusion that JA was concerning for sexual

abuse. She was unaware of any studies that compare “normal with

abnormal, sexually abused kids” and that purported to study

normal, nonabused children. She explained that she believed

that it would be impossible to conduct such a study, given the

nature of child sexual abuse, which made her doubtful as to the

validity of a “normal” nonabused control group.

During the Article 39(a) UCMJ, session, defense counsel,

using studies and journal articles written by other experts in

the field of child sexual abuse, vigorously cross-examined Dr.

Kellogg on her findings. Dr. Kellogg was familiar with the

studies cited by defense counsel and had coauthored articles

with some of the individuals cited. Dr. Kellogg explained,

during both direct and cross-examinations, why she disagreed

with the methodology in some of the studies. She acknowledged

that people in her field give different weight, or no weight, to

certain anogenital findings. She also explained why a prudent

doctor would take into account the “constellation of findings”

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in making a determination, rather than subscribe to a single

diagnostic rubric.

In response to the military judge’s question whether other

experts in the field would rely on the same findings that Dr.

Kellogg had used to evaluate whether a child had been the victim

of sexual abuse, Dr. Kellogg responded that she could not speak

for every other expert in the field. But the colleague to whom

she had shown the file agreed with her findings in this case.

Dr. Kellogg also stated that while there is not one universally

accepted methodology for relating medical findings to child

sexual abuse, there are recognized standards in the medical

profession that are relevant to determining if there is sexual

abuse.

The military judge stated that Dr. Kellogg’s testimony was

relevant and admissible because “the members . . . will want to

know whether there were any physical manifestations” of the

alleged sexual abuse. The military judge opined that Dr.

Kellogg’s testimony would help the members understand the

medical evidence including the physical examination. The

military judge concluded that Dr. Kellogg possessed specialized

medical knowledge of and experience with the physical

manifestations of child sexual abuse, and that she had done

specialized work in identifying physical manifestations that had

been mistaken for sexual abuse. The military judge further

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found that Dr. Kellogg’s testimony had sufficient factual basis

because she had personally examined JA, had conducted over 6,000

similar examinations, and was very familiar with the work of

other experts in the field.

Specifically addressing the methodology applied by Dr.

Kellogg in arriving at her opinion in this case, the military

judge ruled that it was reliable. The military judge recognized

that there is disagreement as to the meaning to be ascribed to

any one measurement or factor between experts in the field, but

stated that Daubert does not require general acceptance. The

military judge found that the conclusions drawn from anogenital

findings relied upon by Dr. Kellogg had been subject to “peer

review and publication; apparently hotly so.” She accepted that

there could be no known error rate because of the lack of a

normative population, but nonetheless found that at least to

some extent, the use of anogenital measurements is accepted by

experts in the field, and that the “meaning to be given to the

specific measurement” goes to the weight of the opinion rather

than to its admissibility. In light of these conclusions, and

after conducting a M.R.E. 403 balancing test, the military judge

permitted Dr. Kellogg to testify on the merits.

Before the panel, Dr. Kellogg presented her medical

findings, illustrated her points by referring to pictures and

exhibits, and opined that her findings were concerning for child

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sexual abuse. She was subjected to vigorous cross-examination

by the defense counsel. JA also testified at trial. The panel

convicted Appellant of the charged offenses.

The lower court summarily affirmed the approved findings

and sentence in a per curiam opinion.

II. Discussion

A.

This Court reviews a military judge’s decision to admit or

exclude expert testimony over defense objection for an abuse of

discretion. Billings, 61 M.J. at 166; see also Joiner, 522 U.S.

at 139. “[W]hen judicial action is taken in a discretionary

matter, such action cannot be set aside by a reviewing court

unless it has a definite and firm conviction that the court

below committed a clear error of judgment in the conclusion it

reached upon a weighing of the relevant factors.” United States

v. Houser, 36 M.J. 392, 397 (C.M.A. 1993) (citation omitted).

Furthermore, “the abuse of discretion standard of review

recognizes that a judge has a range of choices and will not be

reversed so long as the decision remains within that range.”

United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing

United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir.

1992)). As long as a military judge properly follows the

appropriate legal framework, we will not overturn a ruling for

an abuse of discretion unless it was “‘manifestly erroneous.’”

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United States v. Sanchez, No. 06-0617/AR

United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999)

(quoting Joiner, 522 U.S. at 142). This standard “applies as

much to the trial court’s decisions about how to determine

reliability as to its ultimate conclusion.” Kumho Tire Co., 526

U.S. at 152.

B.

M.R.E. 702 dictates the admissibility of expert testimony.

As relevant to this case, M.R.E. 702 permits expert testimony in

the “form of an opinion or otherwise” only if the testimony:

(1) is “based upon sufficient facts or data,” (2) is “the

product of reliable principles and methods,” and (3) the

principles and methods have been “applied . . . reliably to the

facts of the case.” Interpreting the analogous Fed. R. Evid.

702 in Daubert, the Supreme Court both rejected the requirement

that a scientific theory be “generally accepted” in the

scientific community and made clear that the trial court has a

“gatekeeping” role. 509 U.S. at 589.

As gatekeeper, the trial court judge is tasked with

ensuring that an expert’s testimony both rests on a reliable

foundation and is relevant. Id. at 597; Kumho Tire Co., 526

U.S. at 141. This Court also recognizes the gatekeeping role of

the military judge with respect to expert testimony offered

pursuant to M.R.E. 702. Billings, 61 M.J. at 167.

In Daubert, the Supreme Court identified four factors that

11
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a judge may use to determine the reliability of expert

testimony. Those four factors are: (1) whether a theory or

technique can be or has been tested; (2) whether the theory or

technique has been subjected to peer review and publication; (3)

the known or potential rate of error in using a particular

scientific technique and the standards controlling the

technique’s operation; and (4) whether the theory or technique

has been generally accepted in the particular scientific field.

Daubert, 509 U.S. at 593-94.

This Court has often cited the Daubert factors, along with

those in Houser, 36 M.J. at 398-99, as firm ground upon which a

military judge may base a decision. But while satisfying every

Daubert or Houser factor is sufficient, it is not necessary. As

Daubert itself states, the test of reliability is “flexible,”

and the factors do not constitute a “definitive checklist or

test.” Daubert, 509 U.S. at 593-94. The focus is on the

objective of the gatekeeping requirement, which is to ensure

that the expert, “whether basing testimony upon professional

studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice

of an expert in the relevant field.” Kumho Tire Co., 526 U.S.

at 152.

The inquiry is “a flexible one,” Daubert, 509 U.S. at 594,

and “the gatekeeping inquiry must be tied to the facts of a

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particular case.” Kumho Tire Co., 526 U.S. at 150 (citation and

quotation marks omitted). The trial judge “must have

considerable leeway in deciding in a particular case how to go

about determining whether particular expert testimony is

reliable.” Id. at 152. Consequently, the trial judge has “the

same kind of latitude in deciding how to test an expert’s

reliability . . . as it enjoys when it decides whether that

expert’s relevant testimony is reliable.” Id. at 152.3

The focus of the military judge’s inquiry into reliability

is on the principles and methodology employed by the expert,

without regard to the conclusions reached thereby. Daubert, 509

U.S. at 595. At a minimum, the military judge is required under

M.R.E. 702 to determine whether the conclusion could reliably

follow from the facts known to the expert and the methodology

used, mindful that “conclusions and methodology are not entirely

distinct from one another. Trained experts commonly extrapolate

from existing data.” Joiner, 522 U.S. at 146. Whether

attempting to determine if there is “too great an analytical gap

between the data and the opinion proffered,” id., or whether the

3
The dissent, while citing Daubert and Kumho Tire Co., gives
neither latitude nor leeway to the military judge. Moreover, it
gives no credence to the methodology of a medical expert,
despite her unquestioned experience, application of the same
diagnostic methodology in this case as she used in daily
practice, and unrebutted evidence that she had given expert
testimony based on the same methodology in approximately 600
other cases.

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proffered testimony falls “outside the range where experts might

reasonably differ,” Kumho Tire Co., 526 U.S. at 153, the goal is

to ensure that expert testimony or evidence admitted is relevant

and reliable, as well as to shield the panel from junk science.

C.

Turning to this case, we begin with the observation that

the military judge understood and applied the correct law in

deciding whether to admit Dr. Kellogg’s testimony. At the

outset of her ruling, the military judge correctly summarized

the standard for the admission of expert testimony, specifically

stating the requirements under M.R.E. 702 and Daubert. While

this Court’s case in Houser, 36 M.J. at 397-99, was not

explicitly mentioned, the military judge did analyze the

qualifications of Dr. Kellogg, the subject matter of the expert

testimony, the basis for the testimony, and the legal relevance

of the testimony in compliance with the Houser framework. The

military judge specifically addressed the relevance and

reliability aspects of the gatekeeping function as developed

under the precedents of this Court and the Supreme Court.

While Houser sets forth the correct framework for analysis

of Daubert issues, in this case only the fifth Houser factor --

the reliability of the evidence -- is in dispute. Consequently,

the question for this Court is only whether the military judge

abused her discretion in determining that Dr. Kellogg’s

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conclusion that JA was concerning for sexual abuse was reliable.

We conclude she did not.

The military judge’s ruling properly evaluated the

methodology employed by Dr. Kellogg in determining that JA was

concerning for sexual abuse. The military judge’s findings are

supported by Dr. Kellogg’s testimony about her physical

examination of JA, the laboratory test results, her review of

JA’s medical history, her consultation with a professional

colleague, and her discussion with JA in the course of the exam.

She testified that it is standard practice in her field to look

at all of these factors together: “the diagnosis in medicine is

made on the basis of a constellation of findings.” That

evidence is unrebutted. Moreover, Appellant submitted a study

as part of his motion in limine,4 which contains a classification

system for the “overall assessment of likelihood of abuse,” that

rests on an amalgam of physical, laboratory, and medical history

findings.

Further, the military judge properly reviewed and

personally questioned Dr. Kellogg as to her years of experience,

her publications, her usual methodology, prior expert testimony

relying on the same methodology, and her knowledge of other

experts’ work in the field of child sexual abuse. See Kumho

4
The study was Evolution of a Classification Scale: Medical
Evaluation of Suspected Child Sexual Abuse, by Joyce A. Adams.
The defense referred to Ms. Adams as an expert.

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Tire Co., 526 U.S. at 150 (reasoning that “the expert’s

particular expertise” is an indicia of reliability).

Finally, Dr. Kellogg’s testimony established that the

methodology she employed with JA was the same methodology she

used in her examination of more than 6,000 patients. Dr.

Kellogg also confirmed to the military judge that she had been

qualified as an expert and been allowed to provide expert

testimony on whether a patient was concerning for sexual abuse

based on the methodology she used in this case, in reliance on

the same universe of facts, approximately 600 times.5 On these

undisputed facts, we do not think it unreasonable for the

5
The military judge specifically probed this area in her
questions to Dr. Kellogg:

Q. Okay. And have you been recognized as an expert in
each of those 600 [cases]?
A. Yes I have.
Q. And have you been allowed to testify in the past that
your findings were “concerning” for child sexual
abuse?
A. Yes I have.
Q. As the form of your opinion in that exact manner?
A. Yes, ma’am.
Q. About how many times?
A. “Concerning” specifically? Is that what you’re
saying?
Q. Yes. Concerning that type of an opinion, that “X,”
“Y,” and “Z” findings were “concerning” or
“consistent” with child sexual abuse.
A. Based on exam alone or everything?
Q. Based on everything.
A. Based on everything. I have probably -– I would say
about 90 percent of my actual testimony has been to
that effect that the findings, the history and/or
exam, was consistent with possible child abuse.

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military judge to have found Dr. Kellogg’s methodology reliable.

Appellant does not so much challenge the overall

methodology employed by Dr. Kellogg, however, as he does

question the analytic connection between the physical findings

from Dr. Kellogg’s examination of JA and her testimony that

those findings supported the opinion that JA was concerning for

sexual abuse. But Appellant’s challenge is rooted in a

fundamental misapprehension of Dr. Kellogg’s methodology. Dr.

Kellogg did not identify any single physical finding as a litmus

test for sexual abuse. Instead it was her “constellation of

findings” that was the basis for her expert opinion. See United

States v. Traum, 60 M.J. 226, 236 (C.A.A.F. 2004) (approving an

expert doctor’s use of all facts available in reaching a medical

opinion).6

We observe that this case is not one where Appellant

asserts that Dr. Kellogg was deficient because she failed to

perform other relevant medical tests that would either bolster

6
The dissent’s reliance on In re Agent Orange Prod. Liab.
Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), for a contrary view
is unwarranted. That case, of course, is a pre-Daubert case, a
mass tort case, and does not address the admissibility of expert
testimony. Moreover, Chief Judge Weinstein based his ruling in
part on the fact that the experts in that case had not examined
the victims. Id. at 1235. In re Agent Orange does not stand
for the proposition that a medical doctor, basing her opinion on
a constellation of observed anogenital findings in an eight-
year-old girl (after ruling out other explanations for the
findings), laboratory results, and medical history findings, is
providing an opinion that is either subjective or speculative.

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or refute her medical opinion. Appellant’s challenge is more

narrow and focused. In Appellant’s view, the hymenal thickening

and anal dilation findings are unreliable because they fail to

satisfy the Daubert factors.

We reject this assertion for three reasons. First, Dr.

Kellogg testified to both hymenal thickening and anal dilation

as objective medical and physical findings at the sites of the

alleged sexual abuse. Moreover, she described how factors, such

as age, and other physical conditions, might cause these

findings. Those factors were ruled out before she considered

the findings relevant to possible sexual abuse. Second, defense

counsel provided an expert study at trial that specifically

included these findings, placing the use of anal dilation and

hymenal thickening in the realm of findings where reasonable

experts might disagree. Third, the military judge clearly

understood the Daubert factors, the manner in which the hymenal

and anal dilation findings did not conform to those factors, and

nonetheless found the evidence reliable.

We cannot say that it was manifestly erroneous for the

military judge to find that the evidence relating to hymenal

thickening and anal dilation was reliable. Nothing in the

precedents of the Supreme Court or this Court requires that a

military judge either exclude or admit expert testimony because

it is based in part on an interpretation of facts for which

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there is no known error rate or where experts in the field

differ in whether to give, and if so how much, weight to a

particular fact in deriving an opinion. See United States v.

Norris, 217 F.3d 262, 269-71 (5th Cir. 2000) (holding testimony

admissible under Daubert even though “no error rate was known”

and “no independent validation” of the expert’s testing had

occurred); McReynolds v. Sodexho Marriott Servs., Inc., 349 F.

Supp. 2d 30, 34 (D.D.C. 2004) (holding testimony admissible

under Daubert although experts “might well differ . . . over

various details of their analyses”). “Such a bright-line

requirement would be at odds with the liberal admissibility

standards of the federal [and military] rules and the express

teachings of Daubert.” Amorgianos v. Amtrak, 303 F.3d 256, 267

(2d Cir. 2002). Daubert expressly recognizes that the adversary

system, including “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking

shaky but admissible evidence.” 509 U.S. at 596.

As the military judge recognized, and as the testimony of

Dr. Kellogg and the two exhibits submitted by the defense at the

motion supported, different experts in the field of child sexual

abuse give different weight to anogenital findings, and some

discount certain types of anogenital findings altogether. One

expert study provided by the defense lists both a thickened

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hymen and anal dilation as factors in assessing child sexual

abuse. Another expert study provided by the defense would not

rely on anal dilation as a factor in assessing child sexual

abuse. Given these facts, it does not appear that the analytic

gap between these physical findings and Dr. Kellogg’s conclusion

that they supported her diagnosis that JA was concerning for

sexual abuse was too great, or that Dr. Kellogg’s testimony on

these points “fell outside the range where experts might

reasonably differ.” Kumho Tire Co., 526 U.S. at 153 (citing

Daubert, 509 U.S. at 596).

Nor was the military judge’s admission of Dr. Kellogg’s

consideration of the increased white blood cells in JA’s vagina

unreasonable, given the diagnostic approach taken by Dr.

Kellogg. This finding is different than the others, not

qualitatively, but because there was no explicit reference to

JA’s increased white blood cells in the military judge’s ruling,

and, unlike the other anogenital findings, this factor is not

itself mentioned in any of the articles written by experts

presented at the motion hearing.

Nonetheless, we conclude that it was not manifestly

erroneous for the military judge to admit this testimony. The

military judge ruled that Dr. Kellogg’s “role [was] to assist

[the panel] in understanding the physical examination” and

therefore permitted her to address “any physical manifestations”

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of sexual abuse. The evidence in the record supports this

ruling by the military judge.

Dr. Kellogg described why she thought the increased white

blood count was an “unusual” and concerning finding. She

explained that it was unusual because young children do not have

an increased white blood cell count except under a few specific

circumstances, which she ruled out. She further explained that

“the hymen acts as a protective shield in normal children,” and

that a larger than normal hymenal opening could lead to

irritation and increased white blood cells in the vagina. She

elaborated on this point, testifying that “we sometimes see [it]

[] in victims of sexual abuse.” She therefore concluded that

the increased white blood cell count, in conjunction with the

patient history and other findings, was concerning for sexual

abuse because she had ruled out infection, JA’s hymen did not

cover her vaginal opening, and a girl of JA’s age does not

normally have increased white blood cells in her vagina.

We observe there was some conflict in Dr. Kellogg’s expert

testimony as to the exact size of a hymenal opening that is

clinically significant. In her Article 39(a), UCMJ, testimony,

Dr. Kellogg states that JA’s hymen is abnormally short because

it covers only 2.5 millimeters of the opening. At another point

in her Article 39(a), UCMJ, testimony she states that the hymen

only covers one-eighth to one-tenth of the opening when it

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should cover one-third. On cross-examination defense counsel

pointed out that Dr. Kellogg had previously stated that a normal

range for this particular measurement could be between one and

four millimeters, and because JA’s hymenal rim measured 2.5

millimeters it fell within what could be considered normal

range. These statements were not harmonized during the Article

39(a), UCMJ, testimony.

Notwithstanding this point, we do not consider any slight

flaw with regard to this single finding so significant as to

undermine the otherwise proper reliability determination of the

military judge. See Amorgianos, 303 F.3d at 267 (“The judge

should only exclude the evidence if the flaw is large enough

that the expert lacks ‘good grounds’ for his or her

conclusions.”); Roane v. Greenwich Swim Comm., 330 F. Supp. 2d

306, 317 (S.D.N.Y. 2004) (quoting In re Paoli, 35 F.3d 717, 746

(3d Cir. 1994)) (“Minor flaws in an expert analysis or slight

modifications of otherwise reliable methods will not render an

expert opinion per se inadmissible.”).

In light of Dr. Kellogg’s testimony, and in the context of

other anogenital medical findings, it was reasonable for the

military judge to admit testimony on JA’s increased white blood

count. See Daubert, 509 U.S. at 593-94. “Trained experts

commonly extrapolate from existing data.” Joiner, 522 U.S. at

146. We do, however, have serious reservations regarding

22
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whether this individual finding would have been admissible

without being presented in the context of the other medical

findings in this case.

Given the standard of review in this case, we cannot say

that the military judge abused her discretion. It was not

manifestly erroneous for the military judge to leave this

admissible but, in Appellant’s view, shaky evidence to the

adversarial process. Daubert, 509 U.S. at 596. It is the

members who “must decide among the conflicting views of

different experts, even though the evidence is ‘shaky.’” Kumho

Tire Co., 526 U.S. at 123 (citing Daubert, 509 U.S. at 596).

III. Conclusion

In summary, the linchpin of this case is Dr. Kellogg’s

reliance on a “constellation of findings” generated from a

reliable methodology as the basis of her expert opinion. We

conclude that the military judge properly performed her

“gatekeeping” duty established in Daubert. 509 U.S. at 593-94.

The decision of the United States Army Court of Criminal Appeals

is affirmed.

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United States v. Sanchez, No. 06-0617/AR

EFFRON, Chief Judge (dissenting):

The majority opinion concludes that the military judge did

not err in determining that Dr. Kellogg based her testimony on a

reliable methodology under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). For the reasons set

forth below, I respectfully dissent.

I. ADMISSIBILITY OF SCIENTIFIC EVIDENCE UNDER DAUBERT

In Daubert, the Supreme Court placed ultimate

responsibility on the trial judge to ensure that scientific

evidence is reliable by critically examining the methodology

from which the expert’s conclusions are derived. Id. at 588,

592-93. The Court stated that:

in order to qualify as “scientific knowledge,” an
inference or assertion must be derived by the
scientific method. Proposed testimony must be
supported by appropriate validation –- i.e.,
“good grounds,” based on what is known. In
short, the requirement that an expert’s testimony
pertain to “scientific knowledge” establishes a
standard of evidentiary reliability.

Id. at 590. The Court reasoned that the trial judge’s inquiry

must be “a flexible one [whose] overarching subject is the

scientific validity –- and thus the evidentiary relevance and

reliability –- of the principles that underlie a proposed

submission.” Id. at 594-95 (footnote omitted).
United States v. Sanchez, No. 06-0617/AR

Under Daubert, the trial judge must make “a preliminary

assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that

reasoning or methodology properly can be applied to the facts in

issue.” Id. at 592-93. The Court provided a nonexclusive list

of factors that may be used for assessing reliability,

including: (1) whether the theory or technique can be or has

been tested through use of scientific methodology; (2) whether

the theory or technique has been subject to peer review and

publication; (3) the known or potential rate of error; (4) the

existence and maintenance of standards and controls; and (5)

whether the theory or technique has been generally accepted in

the expert community. Id. at 593-94.

In crafting the Daubert test, the Court rejected the

previous standard, which asked only whether a scientific theory

enjoyed “general acceptance” in the relevant professional

community. Id. at 588; see Frye v. United States, 293 F. 1013,

1014 (D.C. Cir. 1923). Although Daubert includes a broader

range of scientific or technical evidence than the Frye general

acceptance test, it is more restrictive than Frye because it

requires a determination of whether that evidence is reliable

even if it meets a general acceptance test. See Edward J.

Imwinkelried et al., 1 Courtroom Criminal Evidence 222-24 (4th

ed. 2005).

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United States v. Sanchez, No. 06-0617/AR

The Daubert reliability assessment must be narrowly

tailored to the precise issue before the court. Kumho Tire Co.

v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert, 509

U.S. at 597). Evidence of an expert’s qualifications and

general approach is not sufficient to establish the reliability

of a particular technique used by the expert to analyze data and

draw conclusions. Id. at 153-54. The specific theory or

technique that is the subject of expert testimony must be

sufficiently reliable to perform the “task at hand.” Daubert,

509 U.S. at 597; Kumho Tire, 526 U.S. at 153-54; see also

Weisgram v. Marley Co., 528 U.S 440, 455 (2000) (opining that

“[s]ince Daubert . . . parties relying on expert evidence have

had notice of the exacting standards of reliability such

evidence must meet”).

The scientific methodology required by Daubert and its

progeny is embodied in Military Rule of Evidence (M.R.E.) 702,

which provides:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of an
opinion or otherwise if (1) the testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied the
principles and methods reliably to the facts of
the case.

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United States v. Sanchez, No. 06-0617/AR

See Daubert, 509 U.S. at 589-90; Fed. R. Evid. 702. As noted by

the drafters of the parallel Federal Rule of Evidence, “[t]he

more subjective and controversial the expert’s inquiry, the more

likely the testimony should be excluded as unreliable.” Fed. R.

Evid. 702, Notes of Advisory Committee on 2000 Amendments.

II. ADMISSION OF DR. KELLOGG’S TESTIMONY

At the time of Appellant’s court-martial, Dr. Nancy Kellogg

was a physician and the director of the Alamo Children’s

Advocacy Center. Doctors at the Children’s Advocacy Center

examined all children referred by the local hospital as

potential victims of sexual abuse. Dr. Kellogg estimated that

she has examined approximately 6,000 children referred for this

reason as well as approximately 2,000 children referred for

other conditions. The Government moved to permit Dr. Kellogg to

testify as an expert witness in the field of child sexual abuse

regarding the conclusions she derived from her physical

examination of JA, the victim in this case.

In a hearing on the motion under Article 39(a), Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 839(a) (2000), Dr.

Kellogg explained that she would testify about three physical

findings that led her to conclude JA was “concerning” for sexual

abuse: (1) hymenal measurement; (2) anal dilation; and (3)

vaginal white blood cell count. Dr. Kellogg defined

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United States v. Sanchez, No. 06-0617/AR

“concerning” for sexual abuse as “a finding or a group of

findings that I cannot readily explain as being normal or

[attributed] to a condition other than sexual abuse. . . .

they’re concerning in the sense that they signify possible

trauma to the genitals”; however, “it could also be attributed

to a nontraumatic event.” Additionally, Dr. Kellogg explained

that the most important factor in her assessment is a patient’s

history, or account of abuse, especially if it remains

consistent over time.

Trial defense counsel opposed admission of Dr. Kellogg’s

testimony, contesting the reliability of her methodology under

M.R.E. 702 and Daubert. Specifically, trial defense counsel

challenged reliability under three of the Daubert factors: the

failure to calculate an error rate for these studies, the

absence of direct peer review and publication, and the lack of

general acceptance of Dr. Kellogg’s standards. The defense

argued that Dr. Kellogg’s experience at the sexual abuse clinic

had not been subjected to “any statistical analysis, any

verification, nor has she gone out into the community to

determine the extent of these concerning findings in normal

children.”

The military judge granted the prosecution’s motion to

admit Dr. Kellogg’s testimony, concluding that her methodology

was reliable under M.R.E. 702 and Daubert. The military judge

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United States v. Sanchez, No. 06-0617/AR

determined that Dr. Kellogg’s findings were based on sufficient

facts or data under M.R.E. 702(1) because “[e]ven if there is a

disagreement on matters within this area of expertise, Dr.

Kellogg herself still has a basis of her own 6,000 examinations

to fall back upon . . . .” With respect to the Daubert factors,

the military judge stated that: (1) although Dr. Kellogg’s

methods were not universally accepted, lack of general

acceptance is not a bar to admissibility; (2) Dr. Kellogg’s

factors “have been subject to peer review and publication;

apparently, hotly so. But that is still peer review and

publication”; and (3) “while there can be no known error rate

because of the lack of a normative population, that at least to

some extent the use of measurements and more than one

measurement is accepted in that field.”

III. DISCUSSION

“When expert testimony’s factual basis, data, principles,

methods, or their application are called sufficiently into

question, . . . the trial judge must determine whether the

testimony has a reliable basis in the knowledge and experience

of [the relevant] discipline.” United States v. Billings, 61

M.J. 163, 168 (C.A.A.F. 2005) (quoting Kumho Tire, 526 U.S. at

149) (quotation marks omitted). In the present case, the

military judge referred to the Daubert factors but failed to

6
United States v. Sanchez, No. 06-0617/AR

either properly apply these factors or employ adequate

alternative factors to assess the reliability of Dr. Kellogg’s

methodology.

Dr. Kellogg stated that she had testified previously in

approximately 600 cases “on numerous subjects” involving a

variety of matters related to child sexual abuse. However, the

record does not identify which methodologies were at issue in

those cases –- which Dr. Kellogg said involved issues such as

patterns of child disclosure and conditions confused with sexual

abuse; nor does the record indicate that the methodology at

issue in the present case -- see Part II supra (reliance on

hymenal measurement, anal dilation, and vaginal white blood cell

count) -- was litigated and determined to be reliable under

Daubert in the prior cases. Assuming that her prior testimony

“on numerous subjects” was sufficient to qualify her as an

expert, it was not sufficient to establish the reliability of

the specific methodology used to support her testimony in the

present case. See Kumho Tire, 526 U.S. at 153; Margaret A.

Berger, The Supreme Court’s Trilogy on the Admissibility of

Expert Testimony in Reference Manual on Scientific Evidence 9,

34-35 (Federal Judicial Center, 2d ed. 2000) [hereinafter

Admissibility of Expert Testimony].

The military judge was required to examine the specific

issue of whether Dr. Kellogg’s methodology supported her

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United States v. Sanchez, No. 06-0617/AR

conclusion that JA was “concerning” for child sexual abuse.

Kumho Tire, 526 U.S. at 154-55. In that regard, the military

judge was required to ensure that the methodology not only

enabled the expert to ascertain the existence of a physical

condition, but also enabled the expert to testify as to the

causation of that condition. See, e.g., Berger, Admissibility

of Expert Testimony at 34-35; Edward Imwinkelried, Forensic

Science: The Relativity of Reliability, 40, No. 4 Crim. L.

Bull. 386 (2004). Assuming that Dr. Kellogg’s testimony would

have been admissible, based on her clinical experience, to

describe JA’s physical characteristics, Dr. Kellogg went beyond

that scope to draw conclusions about the causation of those

characteristics –- that they were “concerning” for sexual abuse.

See Berger, Admissibility of Expert Testimony at 34-35. The

military judge failed to ascertain whether Dr. Kellogg’s

methodology reliably supported this precise conclusion. Kumho

Tire, 526 U.S. at 154-55.

As the majority opinion notes, Dr. Kellogg made “objective

medical and physical findings at the sites of the alleged

abuse.” The conclusions Dr. Kellogg derived from her physical

findings, however, were subjective. Dr. Kellogg did not

tabulate or verify her data and could not correlate the findings

to a concrete likelihood of abuse. Dr. Kellogg’s observations

were based primarily on her experience as a clinician, which in

8
United States v. Sanchez, No. 06-0617/AR

the absence of her own or other empirical support does not

qualify such observations as evidence “derived by the scientific

method.” Daubert, 509 U.S. at 590. As noted in David L.

Faigman et al., 1 Modern Scientific Evidence: The Law and

Science of Expert Testimony 182 (2006-2007 ed.) [hereinafter

Modern Scientific Evidence]:

For scientists, the key word in the phrase
“scientific method” is method . . .

[C]laims [that do not utilize the scientific
method] are likely to be defended by statements
that the truth of the assertion rests on “my many
years of experience,” . . . . [but w]ere the
findings based on evidence produced by the
scientific method, the expert should be able to
present those studies to any audience, including
a court, along with the methodology and the
results of the studies.

Dr. Kellogg’s conclusions constituted “merely an hypothesis,”

not the product of a reliable scientific method. Whiting v.

Boston Edison Co., 891 F. Supp. 12, 25 (D. Mass. 1995) (finding

a methodology unreliable when it could not be tested, was

rejected by scientists in peer-reviewed journals, and had no

known or potential rate of error).

Dr. Kellogg considered findings to be “concerning” for

abuse when there was no other readily attributable cause for

“possible trauma.” Dr. Kellogg also explained that the most

important factor in her appraisal is the patient’s verbal

account of abuse. Dr. Kellogg’s hypothesis appears to be as

9
United States v. Sanchez, No. 06-0617/AR

follows: if the child is telling the truth, and there is no

other readily apparent cause for the findings of “possible

trauma,” then the findings are “concerning” for sexual abuse,

meaning only that the possibility of sexual abuse cannot be

ruled out. This is the same type of ungrounded testimony Chief

Judge Weinstein rejected in In re Agent Orange Product Liability

Litigation, 611 F. Supp. 1223, 1238-39, 1250-51 (E.D.N.Y. 1985).

Agent Orange foreshadowed Daubert in its critique of the Frye

standard and emphasis on reliability of the expert’s

methodology. Daubert, 509 U.S. at 586 n.4 (citing Michael D.

Green, Legal Theory: Expert Witnesses and Sufficiency of

Evidence in Toxic Substances Litigation: The Legacy of Agent

Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643 (1992)).

In that case, the court barred proposed expert testimony

that was based on the following hypothesis: if the plaintiffs

accurately reported symptoms, and if there was no evidence of

other causes, then exposure to the Agent Orange chemical was

“more likely than not” the proximate cause of the plaintiffs’

symptoms. In re Agent Orange, 611 F. Supp. at 1237-38. In

rejecting the proposed testimony, the court found that it was

“speculative,” “so guarded as to be worthless,” and lacked “any

foundation in fact.” Id. at 1238.

The military judge’s assessment of Dr. Kellogg’s

methodology is similar to the assessment rejected by the United

10
United States v. Sanchez, No. 06-0617/AR

States Court of Appeals for the Fifth Circuit in Black v. Food

Lion, Inc., 171 F.3d 308 (5th Cir. 1999). The plaintiff in

Black alleged that she developed fibromyalgia as a result of

falling in defendant’s grocery store. Id. at 309-10. The trial

judge admitted the plaintiff’s diagnosing physician as an expert

witness on the issue of causation. Id. The physician’s

methodology consisted of: taking a patient history; diagnosing

fibromyalgia; attempting to eliminate other causes; and

concluding that the fall was the only possible remaining cause

of the disease. Id. at 313.

In rejecting this testimony as unreliable scientific

evidence, the Fifth Circuit stated that the Daubert inquiry

required that the expert’s specific conclusion –- that the fall

could have caused the plaintiff’s condition –- must be the

product of a reliable methodology. Id. at 311. The court

determined this methodology was unreliable under Daubert because

it had not been tested or peer reviewed, lacked a rate of error,

and was not generally accepted in the medical community. Id.

313-14. Although the expert followed the “approved protocol for

determining fibromyalgia,” a methodology used in medical

practice, it did not constitute reliable scientific evidence.

See Berger, Admissibility of Expert Testimony at 34-35 (citing

Black, 171 F.3d at 313). The Fifth Circuit determined that the

trial judge, in admitting the expert testimony, “fatally erred

11
United States v. Sanchez, No. 06-0617/AR

by applying [Daubert’s] criteria at a standard of meaninglessly

high generality rather than boring in on the precise state of

scientific knowledge in this case.” Black, 171 F.3d at 314.

The military judge in Appellant’s case committed a similar

error. Assuming that Dr. Kellogg’s methodology may be used in

clinical practice, such use is not sufficient to establish

reliability under Daubert and its progeny. See Berger,

Admissibility of Expert Testimony at 34-35.

Examination of the Daubert factors identified by the

military judge –- error rate, peer review and publication, and

general acceptance –- further underscores the unreliability of

Dr. Kellogg’s findings.

A. Error Rate

Dr. Kellogg’s methodology for assessing physical findings

did not utilize the scientific method. Dr. Kellogg did not

offer any support from the scientific community for the validity

of her observations or the conclusions she drew from them.

Despite her recognition that other studies have employed

scientific research principles in this area, Dr. Kellogg did not

record measurements, tabulate data, or otherwise conduct formal

studies with her examination results. Although Dr. Kellogg

examined approximately 2,000 children who were not referred for

possible sexual abuse, she did not attempt to study them as a

control group and record the findings. Further, Dr. Kellogg did

12
United States v. Sanchez, No. 06-0617/AR

not test her conclusion that the findings introduced into

evidence were “concerning” for sexual abuse in a blind case

study. That is, she did not compare examination results of

abused versus non-abused children, nor did she research the

prevalence of abused children who did not present physical

evidence of abuse versus those who did.

Dr. Kellogg maintained that there could be no measurable

rate of error for the predictive value of her findings due to a

lack of a normative population of non-abused children despite

recognizing that “numerous studies” have calculated error rates

for factors that may be indicative of child sexual abuse. The

military judge improperly relied on Dr. Kellogg’s claim that

child sexual abuse is so rampant and hidden that no normative

population could be identified in light of her acknowledgment

that such studies are regularly conducted. See, e.g., John

McCann et al., Perianal Findings in Prepubertal Children

Selected for Nonabuse: A Descriptive Study, 13 Child Abuse &

Neglect 179 (1989) [hereinafter Perianal Findings in Prepubertal

Children].

Even if Dr. Kellogg’s findings were potentially useful for

treatment purposes in her clinic, they were not sufficiently

reliable to be admitted in a court of law. See Faigman, 1

Modern Scientific Evidence at 182. Her assessments of what

constitutes trauma and when trauma is “concerning” for abuse

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United States v. Sanchez, No. 06-0617/AR

have not been empirically verified and therefore do not evoke

sufficient guarantees of reliability to be admitted as expert

testimony before a court-martial panel.

B. Peer Review and Publication

The military judge found that Dr. Kellogg’s methods “have

been subject to peer review and publication; apparently, hotly

so. But that is still peer review and publication.” However,

the peer review and publication factor “does not necessarily

correlate with reliability.” Daubert, 509 U.S. at 593; Faigman,

1 Modern Scientific Evidence at 60. Rather, the value of peer

review lies in the likelihood that other experts will detect

flaws in and refine the methodology. Daubert, 509 U.S. at 593.

“The courts, no less than the scientific community, should be

concerned not with the mere formal act of submission to the

scrutiny of the scientific community, but with what the

community concluded following such scrutiny.” Faigman, 1 Modern

Scientific Evidence at 60.

Dr. Kellogg did not refer to any peer-reviewed article or

scientific study that supported her findings. A study cited by

the defense directly contradicted her finding that the hymenal

rim measurements are significant. Joyce A. Adams, Evolution of

a Classification Scale: Medical Evaluation of Suspected Child

Sexual Abuse, 6 Child Maltreatment 31, 33 (2001) [hereinafter

Evolution of a Classification Scale] (stating that “[t]here are

14
United States v. Sanchez, No. 06-0617/AR

currently no published research studies that show that a smooth

but narrow posterior rim of hymen, or an enlarged hymenal

opening diameter, or any combination of findings, are any more

common in abused than in nonabused children”). The pertinent

studies in the record, which were submitted by the defense,

underscore the absence of a scientific basis for Dr. Kellogg’s

views regarding the significance of focal hymenal thickness or a

high vaginal white blood cell count as “concerning” for sexual

abuse. Joyce A. Adams et. al., A Proposed System for the

Classification of Anogenital Findings in Children with Suspected

Sexual Abuse, 5 Adolescent Pediatric Gynecology 73 (1992);

Adams, Evolution of a Classification Scale at 31; McCann,

Perianal Findings in Prepubertal Children at 179.

C. Support in the Scientific Community

The record demonstrates that the three factors Dr. Kellogg

identified as “concerning” for sexual abuse have attracted

little support in the scientific community. Dr. Kellogg cited

the thickening of JA’s hymen in only a localized area as the

reason for classifying the hymen as “concerning,” but she

acknowledged that there is no data to support her theory that

focal hymenal thickening is “concerning” for sexual abuse.

Likewise, Dr. Kellogg was aware of only one study that measured

anal dilation, and there is no evidence as to how many

physicians employ the method and with what criteria, as its use

15
United States v. Sanchez, No. 06-0617/AR

is “very controversial” in the field. Third, Dr. Kellogg

testified that JA’s white blood cell count was “concerning” for

abuse due to the finding of lack of adequate hymenal tissue.

The high white blood cell count had no independent significance

–- it was “concerning” for abuse only if the hymenal findings

were the reliable product of a proven methodology, which Dr.

Kellogg acknowledged was not the case. Lastly, the patient’s

consistent history, or account of abuse over time, to which Dr.

Kellogg gave the greatest weight in making her assessment, is

simply not scientific evidence. It is the victim’s account of

what occurred, and in this case, it was clinically unverifiable.

Dr. Kellogg’s testimony was admitted to clarify medical

evidence for the panel. M.R.E. 702. In this context, the

military judge should have ensured that a reliable scientific

methodology supported Dr. Kellogg’s conclusions. Daubert, 509

U.S. at 591-92 (reasoning that Fed. R. Evid. 702 “requires a

valid scientific connection to the pertinent inquiry as a

precondition to admissibility”); Billings, 61 M.J. at 168.

Instead, Dr. Kellogg’s findings were based on unverified

hypotheses. Even though Dr. Kellogg conducted thousands of

examinations for “objective medical and physical findings,” she

did not use a reliable scientific methodology to evaluate those

findings.

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IV. CONCLUSION

In the present case, the military judge was required to

determine “whether the expert’s theory can be challenged in some

objective sense, or whether it is instead simply a subjective,

conclusory approach that cannot reasonably be assessed for

reliability.” Fed. R. Evid. 702, Notes of Advisory Committee on

2000 Amendments. Here, the military judge did not recognize

that there was no independent scientific support for Dr.

Kellogg’s findings and Dr. Kellogg had failed to test her

observations through a reliable scientific method. Accordingly,

I would conclude that the military judge abused her discretion

in admitting Dr. Kellogg’s testimony. See Billings, 61 M.J. at

167-68.

17