Positional asphyxiation

Positional asphyxiation is a fallacious medical theory misused to obtain criminal convictions. The theory is physically implausible and intrinsically entails reasonable doubt such that no reasonable jury would convict based on it. Dorland's Illustrated Medical Dictionary (p. 166) defines "positional asphyxiation" as the "pathologic changes caused by lack of oxygen in respired air, resulting in hypoxia and hypercapnia[,]" due to one's position. Note that it does not describe it as commonly fatal in the absence of being completely crushed by an avalanche or stampede.

Improperly relying on a biased Wikipedia entry, the Michigan Supreme Court declared that:

“  |  "Positional asphyxia refers" to suffocation that results when someone's position prevents them from breathing properly. See < http://en.wikipedia.org/wiki/ Positional_asphyxia> (accessed July 27, 2004).  |  ”

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Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 415 n.2, 684 N.W.2d 864, 867 (2004).

As of Nov. 18, a total of 608 court decisions -- 408 federal and 200 state -- refer to this bogus, unscientific theory. The U.S. Supreme Court has never used this term.

The first court decision to use the term "positional asphyxiation" was in 1981, by an appellate state court in Massachusetts which simply repeated what a coroner alleged was a cause of death for someone found badly beaten with his face down with his head in a gutter:

“  |  At some point the defendant returned to the bar alone. At approximately 10:00 P.M. police arrived and found the victim lying in the gutter outside the bar. He was pronounced dead on arrival at Boston City Hospital. The cause of death was "positional asphyxia," apparently the result of his having lain face down in the gutter. He had been rendered unconscious by multiple blows.  |  ”

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Commonwealth v. McDonald, 11 Mass. App. Ct. 944, 945, 416 N.E.2d 992, 993-94 (1981).

There were no other references to "positional asphyxiation" in a court decision until 1985, when a federal appellate court uncritically repeatedly an assertion that an individual being taken into custody by police had died from positional asphyxiation:

“  |  After being cradle cuffed, Peter continued to kick, alternating between going into a rage and being calm. In his quiet periods, Peter moved his head from side to side and conversed with his parents. During one of the calm periods, the officers noticed that Peter had stopped breathing, and they immediately tried to resuscitate him. Their efforts proved to be of no avail, and Peter died of positional asphyxiation as a result of his inability to breathe.  |  ”

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Vizbaras v. Prieber, 761 F.2d 1013, 1015 (4th Cir. 1985).

## Contents

* 1 False basis for denying compensation for vaccine injury
* 2 Eighth Circuit
* 3 Fifth Circuit
* 4 Use in Chauvin trial

## False basis for denying compensation for vaccine injury[edit]

Positional asphyxiation is fake science used by the government to deny compensation for vaccine injury: "For these reasons, a preponderance of the evidence establishes that the cause of Mat's death was positional asphyxia, a factor not related to his earlier receipt of the DTaP vaccine. Consequently, Ms. Nordwall is not entitled to compensation." Nordwall v. Sec'y of HHS, 2008 U.S. Claims LEXIS 86, *34.

As of November 2022, a total of about a dozen court decisions denied compensation for vaccine injury based on this fake science, including:

* Bohn v. Sec'y of HHS, No. 16-0265V, 2021 U.S. Claims LEXIS 2005, at *22 (Fed. Cl. Aug. 23, 2021) (*Dr. McCusker concurs with Dr. Kohlmeier's determination that G.B.'s death resulted from "probable positional asphyxia.'").
* Vandergriff v. Sec'y of HHS, No. 18-919V, 2019 U.S. Claims LEXIS 2320, at *11-13 (Fed. Cl. Dec. 31, 2019): "the Pentacel vaccine on March 28, 2017" and the infant "developed a fever that persisted until the day he died." But the court used "positional asphyxiation" in order to deny vaccine compensation "as a result of asphyxia due to crib positioning. ... [The pathologist]] determined the cause of death to be "positional asphyxiation due to prone sleeping position." ... The significant condition listed on the death certificate is "unsafe sleep position." Id. How the injury occurred is listed on the death certificate as "placed in prone position for nap."
* Lord v. Sec'y of HHS, No. 12-255V, 2016 U.S. Claims LEXIS 144, at *3 (Fed. Cl. Feb. 9, 2016) (relying on the above Nordwall decision) (mot. for review denied, 83 Fed. Cl. 477 (Fed. Cl. 2008)).

## Eighth Circuit[edit]

The Eighth Circuit has never adopted positional asphyxiation as a cause of death. Its reference to it as second opinion by an expert is illustrative:

“  |  Post-mortem examination and testing revealed that Gilbert had a large amount of methamphetamine in his system and significant heart disease. The St. Louis City Medical Examiner's autopsy report categorized the manner of death as accidental and determined that the cause of death was arteriosclerotic heart disease, exacerbated by methamphetamine and forcible restraint. The autopsy report also noted that Gilbert had contusions and lacerations on his face and upper and lower extremities, a small contusion on his left shoulder area, and a fractured sternum. Lombardo secured a second expert report, which opined that Gilbert's cause of death was forcible restraint inducing asphyxia.  |  ”

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Lombardo v. City of St. Louis, 38 F.4th 684, 689 (8th Cir. 2022).

In a district court within the Eighth Circuit, positional asphyxiation was absurdly referenced in a challenge to methods of capital punishment:

“  |  Petechial hemorrhages are seen in deaths resulting from mechanical or positional asphyxia; they can result from seizure activity and hypoxia  |  ”

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McGehee v. Hutchinson, 463 F. Supp. 3d 870, 899 (E.D. Ark. 2020).

## Fifth Circuit[edit]

Only 17 decisions by the Fifth Circuit have ever accepted this term, the most prominent of which merely cited the Tenth Circuit:

“  |  This conclusion comports with the decisions of our sister circuits that have considered similar facts. See McCue v. City of Bangor, 838 F.3d 55, 64 (1st Cir. 2016) (holding that "it was clearly established in September 2012 that exerting significant, continued force on a person's back 'while that [person] is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force'" (citation omitted)); Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (holding that "the law was clearly established," by December 2002, "that applying pressure to [a subject's] upper back, once he was handcuffed and his legs restrained, was constitutionally unreasonable due to the significant risk of positional asphyxiation associated with such actions"); Abdullahi v. City of Madison, 423 F.3d 763, 764-66 (7th Cir. 2005) (holding that the record supported an inference of deadly force when an officer restrained a mentally ill individual in the prone restraint position with bodyweight force for thirty to forty-five seconds until the individual lost consciousness); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (holding that the law in April 2000 clearly established that "putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constituted excessive force"); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061 (9th Cir. 2003) (holding that the continued use of a prone restraint with weight force "despite [the arrestee's] repeated cries for air, and despite the fact that his hands were cuffed behind his back and he was offering no resistance" constituted excessive force).  |  ”

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Timpa v. Dillard, 20 F.4th 1020, 1036 (5th Cir. 2021).

Another Fifth Circuit decision traced the theory to expert testimony for a plaintiff that cited:

“  |  a bulletin published by the United States Department of Justice that was provided to local law enforcement agencies in 1995 addressing the dangers of positional asphyxia precipitated by "cocaine-induced excited delirium," a condition Aguirre was suffering from according to his autopsy. Notably, this bulletin recommends against the use of "maximally prone restraint techniques" when excited delirium is evident, as, according to the bulletin, this factor is "found frequently in deaths involving positional asphyxia."  |  ”

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Estate of Aguirre v. City of San Antonio, 995 F.3d 395, 405 (5th Cir. 2021).

## Use in Chauvin trial[edit]

Positional asphyxiation played a prominent role in the Chauvin trial bias. A trial court order explained:

“  |  Floyd was taken by ambulance to the Hennepin County Medical Center (HCMC) in downtown Minneapolis where he was pronounced dead at 9:25 p.m. on May 25, 2020. According to the Hennepin County Medical Examiner (HCME) Andrew Baker, Floyd's death resulted from "cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression," HCME Autopsy Report & HCME Press Release Report, and the "manner of death" was "homicide."18 Id. A separate autopsy review by the federal Armed Forces Medical Examiner System agreed with the HCME's autopsy findings and cause of death certification, concluding that Floyd's "death was caused by the police subdual and restraint in the setting of severe hypertensive atherosclerotic cardiovascular disease, and methamphetamine and fentanyl intoxication," and that the "subdual and restraint had elements of positional and mechanical asphyxiation."  |  ”

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State v. Chauvin, 2020 Minn. Dist. LEXIS 443, *39-40.