Toxicologist Exclusion: Monroe v. UMMC 3

The Baltimore Medical Malpractice Lawyer Blog regularly discusses Maryland appellate opinions in medical malpractice cases, usually based on negligence. On May 24, 2024, the Appellate Court of Maryland issued an unreported opinion in Monroe v.  University of Maryland Medical Center, LLC (“UMMC”), No. 1550. That case also asserted claims in the medical care setting, but they were intentional torts, not negligence. In this third and final part of the Blog series on this court decision, I examine the Appellate Court’s analysis of the toxicologist exclusion under Daubert. Expert testimony is one of the most frequent topics for Mayland appellate opinions related to medical malpractice.

In part 1 of the Blog series on this court opinion, I examined the first holding that the Appellate Court discussed involving reporter immunity. The Appellate Court held that the Circuit Court for Baltimore City properly denied summary judgment on the issue of lack of good faith in reporting the abuse or neglect of a child. In part 2, I looked at the second holding involving discovery disputes, specifically, a late motion to compel under Rule 2-432.

Factual Background on Toxicologist Exclusion

The Plaintiff, Ms. Monroe, had two daughters, ages 5 and 6, who had flu symptoms. She gave them several brands of over-the-counter cough medicine over a few days. (Op. at 4, 6). Ms. Monroe then called 911 to report that her children, half-sisters, were unconscious and barely breathing. Afterward, an ambulance took them to UMMC. (Id. at 1).

The staff administered several tests at the emergency room, including VITROS rapid urine tests. That test came back positive for opiates in both children. The staff treated them for acute respiratory failure, intubated them, and they remained in comas and on ventilators for several days. (Id. at 1).

Ms. Monroe told the UMMC toxicologist, Dr. Kim, about giving the kids several OTC medications for flu symptoms. She specifically theorized they were to blame for the kids’ condition. Dr. Kim noted in his records that he disagreed and that there are no known false positives of opiates due to DXM, the active ingredient in the OTC medications. (Id. at 6-8).

The police notified the Department of Social Services (DSS), and the reporter immunity issue arose when the doctors shared the results of the VITROS. UMMC then received blood test results, which were negative for opiates. Afterward, UMMC promptly notified DSS. The hospital discharged the kids after 11 days, but they would not go home to their mother for four months. The court system removed the children from Ms. Monroe. Still, ultimately, the court adjudicated the children not to be children in need of assistance (CINA). The children made a full medical recovery. (Id. at 1-2). However, tragically, three years later, the older daughter died by suicide. (Id. at 2). 

Appellate Court Analysis on Toxicologist Exclusion

To prove their claims, the plaintiffs retained an expert toxicologist. The Appellate Court clarified the scope of the testimony of the plaintiff’s offered toxicologist. This case was not a medical malpractice case. Specifically, the issue was the defendant toxicologist’s bad faith. As a result, the offered testimony was not to prove that the OTC medications caused the kids’ health crises. Instead, it was to show that the likelihood of the OTC medications being the cause was so high that no reasonable toxicologist would have dismissed it for a reason other than bad faith. (Id. at 98-99).

Maryland Rule 5-702 provides three prongs to the admissibility of an expert’s testimony. The Appellate Court agreed with the circuit court that the plaintiff’s toxicologist met the first two: 1) “The witness is qualified as an expert by knowledge, skill, experience, training, or education;” and 2) “the appropriateness of the expert testimony on the particular subject.” The issue in this case was the third prong: “whether a sufficient factual basis exists to support the expert testimony.”

Daubert Factors on Toxicologist Exclusion

The Appellate Court reviewed the relevant Daubert factors and noted the circuit court’s findings.

1. Whether a Theory or Technique Can Be and Has Been Tested

Part of the basis for toxicologist exclusion in the circuit court was the plaintiff’s expert toxicologist, Dr McKay, not performing any calculations about ingestion amounts or drug metabolism of the DXM. At the same time, the defense experts easily did so. (Id. at 109).

2. Whether a Theory or Technique Has Been Subject to Peer Review and Publication

The trial judge found that Dr. McKay based his theory on studies that dealt with other drugs that did not support his opinion. There were no reports of people who were impaired metabolizers of DXM having a toxic response to therapeutic doses of cold medicine.

3. Whether a Particular Scientific Technique has a Known or Potential Rate of Error; and 4. The Existence and Maintenance of Standards and Controls

The Appellate Court found that Dr. McKay failed to satisfy these factors 3 and 4. The defense used data from peer-reviewed studies to determine the kids’ likely rates of metabolism of both DXM and opiates. Dr. McKay did not make such calculations (Id. at 110).

5. Whether a Theory or Technique is Generally Accepted

The Appellate Court agreed with the trial judge that Dr. McKay laid out a timeline, reviewed the evidence, and explained what happened.

8. Whether the Expert has Adequately Accounted for Obvious Alternative Explanations

The Appellate Court agreed that Dr. McKay failed to account for the alternative that the kids ingested an opioid. (Id. at 111).

6. Whether Experts are Proposing to Testify About Matters Growing Naturally and Directly Out of Research They Have Conducted Independent of the Litigation or Whether They Have Developed Their Opinions Expressly for the Purposes of Testifying

The Appellate Court found this factor supported toxicologist exclusion. The court observed that Dr. McKay had not, independent of litigation, conducted studies on the effects of DXM on kids or the potential of DXM to cause on the VITROS test. He did not have personal knowledge of a case where doctors had traced to DXM a coma or false positive on a VITROS test. By contrast, the defense toxicologist had extensive experience treating children for toxic doses of DXM and described their presentation as different from Ms. Monroe’s kids in almost every way. (Id. at 111-12).

7. Whether the Expert has Unjustifiably Extrapolated from an Accepted Premise to an Unfounded Conclusion

Dr. McKay cited a letter called Clinica Chimica Acta to show that DXM can cause a false positive with no opioid or opiate. It involved one urine sample with a large amount of DXM added to it in a lab. However, the defense experts testified that the kids would have to ingest 60 and 46 bottles of OTC medicine for the DXM to cause a coma. 

The Appellate Court stated that Dr. McKay’s use of the letter to extrapolate that therapeutic doses of DXM, even if metabolized at a reduced rate, could cause the comas was a leap over an analytical chasm. (Id. at 112-13).

The Appellate Court summarized that Dr. McKay’s opinions markedly failed to meet that basic standard, and there was no error or abuse of discretion in the circuit court’s exclusion of the expert testimony. (Id. at 113).

With the toxicologist exclusion of Dr. McKay’s, plaintiffs were not able to show that therapeutic doses of OTC medications were the cause of the kids’ medical crises. Nor could they show that no reasonable toxicologist would have blamed the crises on anything other than the OTC medications for any reason other than bad faith. (Id.).

Commentary by the Baltimore Medical Malpractice Lawyer on Toxicologist Exclusion

The Monroe opinion shows how difficult it can be for plaintiffs to prove scientific matters. There was evidence that the kids had the flu and ingested OTC medications over several days. Further, the DXM active ingredient can be toxic, and these kids had conditions that impaired the processing of that drug. Despite no evidence of opiate exposure in the home, the medical staff ignored Ms. Monroe’s attempts to explain the OTC medication use. A negative blood test followed a positive urine test for opiates.

The plaintiffs had a toxicologist who everyone agreed had the training and experience to testify on the issues in this case. The toxicologist explained that the DXM had caused a false positive on the urine test and that the medical staff should have disregarded it. However, the court upheld toxicologist exclusion because he did not have adequate medical studies to support his opinion.

No one can say whether the urine test result was a false positive. The plaintiffs could not prove it for purposes of their legal claims.

This case also raises questions about the child protection system. The system ultimately exonerated Ms. Monroe and returned her kids to her. Where the OTC medications provided an explanation of the kids’ condition, and there was no evidence of exposure to opiates in the home, is there a better way to investigate that does not involve removing the kids from their mother for four months?

Additional Cases

For more reading on related topics, look at the cases in the expert testimony category of the Blog. To read more on expert exclusion under Daubert, then review the Blog post on Asokere v. Waldrop.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.