Gipfert trial: Both sides rest after Wednesday morning session

After five days of testimony in the State of Nebraska vs. Nancy Gipfert, both the defense and the prosecution presented the remainder of their cases and rested.

Gipfert is charged with one count of child abuse causing serious bodily injury, a felony for her alleged part in the incidences leading up the hospitalization of an infant who was in her care prior to suffering seizures and brain injuries.

Megan Gipfert, Nancy Gipfert’s daughter, testified for the defense Wednesday morning. She told the jury that her mother opened the day care 21 years ago, when Megan Gipfert was a baby. Megan Gipfert assisted her mother with the daycare throughout junior high and high school, as well as when she was home for breaks during college. She testified to her mother’s gentle nature.

“My mom, how she would care for an infant is in a loving way,” Megan Gipfert said.

Her mother would do whatever was necessary to comfort a baby. If one couldn’t be consoled, Nancy Gipfert would place him or her on the bed upstairs and allow the child to cry itself to sleep, Megan Gipfert said.

The next defense witness was Elise Tanquary, who had two children enrolled in Gipfert’s daycare when it was shut down in Sept. 2011. Tanquary had issues with day care facilities that her children attended previously and ultimately decided to use Gipfert’s services.

“Everyone I talked to recommended Nancy,” Tanquary said.

Tanquary even asked Gipfert if there was any way Gifpert could continue to watch Tanquary’s children after Gipfert’s daycare was closed. The prosecution questioned Tanquary about the number of children present at Gipfert’s daycare. Tanquary said she wasn’t sure.

“There was never anything to indicate she had a problem with the number of children she had,” Tanquary said.

Wendi Schuessler, grandmother of the alleged victim, took the stand for the second time yesterday. She testified to how Gipfert was acting when she arrived at the hospital on the evening that the alleged victim was taken to the emergency room.

“She was upset,” Schuessler said. “She was crying.”

The defense’s last witness was Christine Radtke, a long time friend of Gipfert’s as well as a fellow in-home daycare provider for the past 13 years. Radtke testified that she and Gipfert spoke on the phone two to three times per day during the work week. During these phone calls the two women would engage in normal small talk and consult about various ways to deal with the children in their care.

Radtke spoke with Gipfert at 9 a.m. on the morning of Sept. 13, 2011, the same day the prosecution alleges Gipfert injured a two-month-old in her care. Throughout the conversation, Radtke could hear the alleged victim crying and Gipfert’s attempts to soothe him, she told the courtroom. Gipfert was calm at that point, Radtke added.

“I could hear a little bit of disappointment in her voice because everybody wants a happy baby,” Radtke said.

Radtke claimed that the alleged victim’s cry that she heard during the 9 a.m. phone call did not sound like a normal cry.

The first phone call lasted about an hour, Radtke said. The second phone call between the two ladies occurred at around 11:30 a.m. when Gipfert reportedly told Radtke that she’d finally gotten the alleged victim to sleep but he was still fussy. Gipfert seemed puzzled that the infant couldn’t be comforted, Radtke said.

“It’s hard to tell what’s wrong with an infant,” she said.

Over the phone, Radtke heard the baby whimpering after he ate. Gipfert never seemed angry or frustrated, in Radtke’s opinion. She also spoke about her knowledge that Gipfert in the past had performed CPR on an infant that wasn’t breathing.

Gipfert again called Radtke at around 3:30 p.m. and seemed very concerned about the alleged victim’s continued inconsolability, Radtke testified. The women spoke about many possible solutions to the problem none of which seemed to work. Gipfert felt comfortable placing the alleged victim on the middle of the bed upstairs because he wasn’t able to roll over.

“She was pretty concerned about [the infant],” Radtke said.

His level of fussiness wasn’t normal, but this was his first day, Radtke said which could account for the baby’s behavior.

Radtke received a fourth call from Gipfert around 5 p.m. that day after the alleged victim’s mother picked him up. Gipfert’s attitude had changed, she said.

“She was upset,” Radtke said. “She was really concerned for the baby.”

Gipfert told Radtke that the baby was lethargic and limp when the mother picked him up. Radtke said she would call 911 if she found an infant that appeared limp, lethargic and pale. Radtke’s actions would change if the baby’s mother was with her, she said.

“The mother should have been the one to call 911,” Radtke said.

Gipfert again called Radtke after visiting the emergency room. She was crying and wondering what she’d missed, Radtke said.

Radtke testified that she didn’t remember the specific details of other particular days in 2011, but remembered Sept. 13, 2011 because it was a scary day. Radtke admitted that the only reason she knew anything about what was going on at Gipfert’s daycare on Sept. 13 was because Gipfert told her what was happening. Radtke had no firsthand knowledge of the events of the day, she said.

On questioning from the prosecution, Radtke said she was aware of restrictions placed on the number of children an in-home provider could have in a daycare at any point. Radtke said she was surprised to find out that Gipfert had 18 children, including two infants in her care at one point during September 13, 2011. Radtke confirmed that this was in violation of the rules.

Earlier testimony established that a facility such as Gipfert’s known as a family child care home I, could only care for eight children, including two infants as well as two additional school aged children after school.

The state’s final witness in the trial was Dr. Suzanne Haney, a child abuse pediatrician with Children’s Hospital Medical Center in Omaha, and the medical director of its child advocacy team. Haney has testified as an expert witness around 100 times, but has only testified for the defense once.

The prosecution questioned her about the earlier testimony of expert for the defense Dr. Ronald Uscinski, who believes that shaken baby syndrome doesn’t exist and that medical literature disproves it.

Haney replied that hundreds of studies were done on children who suffered abusive head trauma, a more inclusive medical term for what lay people call shaken baby syndrome. More than 700 peer reviewed articles were written about abusive head trauma and this diagnosis is acknowledged by many medical societies as well, she said.

“Unfortunately children are harmed by adults and we have many children who suffer the consequences,” Haney said.

There is only a small subset of doctors and researchers who disagree with the rest of the medical community, who largely believe in the existence of abusive head trauma, Haney told the court. This subset of doctors believe there isn’t enough evidence to support its existence. Haney explained why there are no experimental studies that confirm this diagnosis, only case studies.

“We can’t do an experimental study where we shake babies,” Haney said. “It’s abusive and wrong.”

The best studies that exist for this diagnosis are case studies, she said. This injury is much different than accidental injury, she explained.

Haney has seen around 100 children during her career who suffered abusive head trauma. Some leave the hospital doing well, some have permanent injuries and quite a few died, she said. Abusive head trauma usually features injuries and blood all over the brain while accidental trauma typically causes focal injuries, she told the courtroom. Slamming a baby against a soft surface like a bed or carpet could cause these injuries, she added.

“Even a soft surface is going to provide angular deceleration significant enough to cause injury,” Haney said.

Miller cited many biomechanical studies in which adults shook dolls with instruments attached to measure the force of the shaking.

Uscinski testified last week that these studies proved humans weren’t capable of shaking babies hard enough to cause subdural hematomas, one of the injuries suffered in shaken baby syndrome. These studies did not take into account the impact of the back of the baby’s head and its chin on its own body, Haney countered.

Although biomechanics are moving forward, human bodies are complex and difficult to replicate, she told the court. These studies are flawed because they are based on experimental studies using adult monkeys who have much different brains and bodies than human babies.

Haney confirmed that a subdural hematoma can have various causes such as a bleeding disorder or metabolic problems.

Haney also confirmed that birth can cause sudural hematomas, but disagreed with Uscinski that a sudural hematoma from birth can re-bleed. Severe subdural hematomas can spontaneously re-bleed, Haney said, but she’s never heard of a birth-caused sudural hematoma doing this. She admitted that a baby with a small amount of bleeding could be asymptomatic, but an infant with more severe bleeding would not.

Doctors can’t know exactly what forces caused abusive head trauma in every case, because the brain is still partly a mystery, Haney said.

The doctor does not come to the conclusion of abusive head trauma lightly, she explained.

“I clearly understand the ramifications of making a diagnosis of abuse,” Haney said.

One third of the cases she sees are not abuse, she added.

Both sides rested their cases following the morning’s session. The parties return to court on Thursday.