Motion for Reconsideration Denied – Newly Discovered Evidence

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Edward S. Kuchinskas

Case No.: 2020AP369

Officials: Brash, C.J., Donald, P.J., and Dugan, J.

Focus: Motion for Reconsideration Denied – Newly Discovered Evidence

Edward S. Kuchinskas appeals from an order of the circuit court denying his motion to vacate his conviction and grant him a new trial. Kuchinskas asserts that the report and opinions of Dr. Michael Weinraub attached to his motion constitute newly discovered evidence. We conclude that they do not. Dr. Weinraub’s report and opinions do not show that there has been a shift in mainstream medical opinion regarding the issue of whether short falls can cause brain injuries in infants and toddlers.

We further conclude that Dr. Weinraub’s opinions that injuries to an infant or toddler’s head may result from a short fall involving occipital—back of the head—impact are not relevant to this case because in his report, Dr. Weinraub acknowledges that the record shows there was no occipital impact in this case. In his report, he describes the falling incident as follows: “[Oliver] fell on the ground first onto a thick carpeted floor, landing on his right side, then rolled over onto his back and then [Kuchinskas] fell landing with his hand on [Oliver].” Dr. Weinraub’s reference to occipital impact in this case is not consistent with the facts in the record and, thus, renders his opinions speculative and not relevant to this case.

We also conclude that Dr. Weinraub’s report and opinion are merely a challenge to Dr. Angela Rabbitt’s—a pediatric child abuse specialist—opinions in the nature of a Daubert challenge that should have been brought at the time of trial. Dr. Weinraub’s report discusses evidence that he believes should have been introduced during trial. Dr. Weinraub also opines that opinions by other experts, such as a radiologist and an ophthalmologist, are necessary to determine the causes of Oliver’s injuries. First, Dr. Weinraub does not opine that opinions from those experts could not have been obtained at the time of the trial. Second, Kuchinskas has not submitted any reports from those experts. Therefore, if opinions from those experts are necessary to determine the cause of Oliver’s injuries, any opinion by Dr. Weinraub regarding the cause of Oliver’s injuries is speculative.

Thus, we conclude that Kuchinskas has not presented newly discovered evidence, and we affirm the circuit court’s order denying Kuchinskas’s motion without a hearing.

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Derek A Hawkins is Corporate Counsel, at Salesforce.