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.

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

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"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).

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

False basis for denying compensation for vaccine injury

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."

Fifth Circuit

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

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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:

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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).