United States v. Sanchez , 65 M.J. 145 ( 2007 )

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 Apr. 12, 2006) (unpublished).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.
3
United States v. Sanchez, No. 06-0617/AR
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.
4
United States v. Sanchez, No. 06-0617/AR
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
6
United States v. Sanchez, No. 06-0617/AR
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”
7
United States v. Sanchez, No. 06-0617/AR
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
8
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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.’”
10
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
United States v. Sanchez, No. 06-0617/AR
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
12
United States v. Sanchez, No. 06-0617/AR
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.
13
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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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United States v. Sanchez, No. 06-0617/AR
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.
15
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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.
16
United States v. Sanchez, No. 06-0617/AR
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.
17
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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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United States v. Sanchez, No. 06-0617/AR
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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United States v. Sanchez, No. 06-0617/AR
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”
20
United States v. Sanchez, No. 06-0617/AR
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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United States v. Sanchez, No. 06-0617/AR
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
United States v. Sanchez, No. 06-0617/AR
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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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
4
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
7
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
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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
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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.
16
United States v. Sanchez, No. 06-0617/AR
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