Friedel v. Osunkoya

• Decision Date: 07 May 2010
• Docket Number: Civil Action No. 06C-11-233-JOH.
• Parties: Peggy FRIEDEL, Individually and as the Administratrix of the Estate of Mandy K. Friedel and as Next Friend of Makayla Friedel and David T. Wheat, minors, and David Friedel, Individually, Plaintiffsv.Abimbola O. OSUNKOYA, M.D., Individually and as Agent for Delaware Primary Care, LLC, Defendants.
• Court: Delaware Superior Court

994 A.2d 746

Peggy FRIEDEL, Individually and as the Administratrix of the Estate of Mandy K. Friedel and as Next Friend of Makayla Friedel and David T. Wheat, minors, and David Friedel, Individually, Plaintiffsv.Abimbola O. OSUNKOYA, M.D., Individually and as Agent for Delaware Primary Care, LLC, Defendants.

Civil Action No. 06C-11-233-JOH.

Superior Court of Delaware,

New Castle County.

Submitted: Dec. 14, 2009.

Decided: May 7, 2010.

Upon Motion of the Plaintiffs to Preclude the Testimony of Defendants' Pathology Expert-DENIED.

Upon Motion of the Plaintiffs to Limit the Testimony of Dr. Bruce Goldberger-GRANTED.

Upon Motion of the Plaintiffs to Preclude Evidence of Prior Suicide Attempts-DENIED.

Upon Motion of the Defendants to Preclude the Testimony Dr. Osunkoya Violated a Federal Law-DENIED, Without Prejudice.

Upon Motion of the Defendants to Preclude Plaintiffs Standard of Care Testimony by Dr. John Kirby-DENIED.

Upon Motion of the Defendants to Preclude Dr. Jack Rosenberg's Standard of Care Testimony-GRANTED.

Martin J. Siegel, Esquire, of the Law Offices of Martin J. Siegel, Wilmington, DE, for the Plaintiffs.

Colleen D. Shields, Esquire, of Elzufon Austin Reardon Tarlov & Mondell, P.A., Wilmington, DE, for the Defendants.

OPINION

HERLIHY, Judge.

Background

This is a wrongful death medical negligence action against Dr. Amibola O. Osunkoya. The decedent, Mandy Friedel, was twenty-four years old when she died. The complaint alleges she saw Dr. Osunkoya on November 24, 2004, with various complaints including opiate withdraw and stress. On that occasion he prescribed methadone for her. She came back to see him on November 30th complaining of chest pain, shortness of breath, nose congestion, fever, and sore throat. Dr. Osunkoya continued Mandy Friedel on methadone and prescribed an additional drug Ketek for those new symptoms.

On December 2, 2004, she was found on the floor of her home in an unresponsive condition. She was taken to Kent General Hospital where she died two days later. The Assistant State Medical Examiner lists the cause of Mandy Friedel's death as “anoxic ancephalopathy due to cardiovascular pulmonary arrest, status post resuscitation, most likely secondary to ingestion to prescription medications including Methadone, Toprol, Rispardril, Wellbutrin and Depakote. Contributory causes include bronchopneumonia of the upper right lung as well as morbid obesity.”

As the discussion will soon show, the autopsy and this report are controversial.

Plaintiffs, Friedel's parents, children, grandmother, and her estate filed a medical negligence action against Dr. Osunkoya and his practice Delaware Primary Care, LLC.¹ They allege that Dr. Osunkoya was negligent specifically by:

• Prescribing a 30 days supply of methadone without monitoring.

• Treating Friedel for opiate withdrawal in a non-opiate maintenance program as required by 21 C.F.R. § 291.505 and without a license as required by Federal or State law.

• Exceeding the usual starting dose of methadone.

• Failure to properly monitor Friedel while on a methadone regiment to determine if a smaller dosage was more appropriate.

• Prescribing methadone when it was unnecessary to her symptoms.

• Prescribed methadone and other drugs which had a dangerous combination. ²

Both parties have filed a number of motions in limine. The case is scheduled to go to trial on September 27, 2010.

Plaintiffs' Motion to Preclude Testimony of Defendants' Pathology Expert

Dr. Osunkoya has retained David Strayer, M.D. as an expert to opine about the adequacy of Dr. Judith Torbin's autopsy. Dr. Strayer is a board certified pathologist. He teaches pathology at Jefferson Medical College and is an attending pathologist at Thomas Jefferson University.

In his discovery deposition, Dr. Strayer was very critical of the autopsy and identified a member of areas where he believed it was deficient.³ At various times in his deposition he testified:

Q. Is it fair to say that you cannot testify within a reasonable degree of medical probability as to any specific cause of Miss Friedel's death?

A. It is fair to say that there is nothing I have seen that establishes a cause of death in this case.

* * * * * *

A. Part of the process of making a determination of an individual's cause of death is excluding other possible causes of death and that simply cannot be done on the basis of the autopsy protocol that is reported.

* * * * * *

A. I would say that if the autopsy had been done the way the autopsy should have been done or reported-and reported the way an autopsy should have been reported, that it is certainly possible that it would have been able to exclude methadone as a potential contributor to this woman's death.⁴

In a somewhat confusing answer, Dr. Strayer also said:

A. And in that respect the incompleteness of the autopsy is a critical problem in analyzing or trying to understand how this woman died. So I am not-and I'll repeat that. I am not asserting that methadone absolutely-with any reasonable probability or whatever the terminology is in Delaware, we call it reasonable probability, I am not asserting that methadone did not have an effect. What I am saying is it cannot be established that it did. Okay. ⁵

Plaintiffs seek to limit Dr. Strayer's testimony about alternative causes of Mandy Friedel's death. They also seek to exclude him from saying whether methadone can be excluded as a cause of death. Plaintiffs claim that because the autopsy was not complete, by Dr. Strayer's own admission, that he does not then have the necessary basis to opine on Friedel's cause of death, nor can he exclude methadone as its cause.

In response, Dr. Osunkoya represents that Dr. Strayer was contacted to review the material and to offer an opinion regarding whether the medical examiner's determination of cause of death was reasonable. He stated that he was not able to ascertain a definitive cause of death because the autopsy was incomplete. However, based upon the evidence, Dr. Osunkoya argues, he is able to opine on other causes of death in an effort to show that there are other factors more likely than a methadone overdose.

In reading the deposition transcripts on the above-quoted pages along with others,⁶ it appears that Dr. Strayer is not able to testify to a reasonable degree of medical probability that there were any other causes of death other than methadone. However, it does appear that he should be permitted to attack the plaintiffs' conclusion that methadone was the causal agent in Friedel's death, because, in his opinion, the autopsy was inadequately performed.

The crux of his opinion is that the autopsy was insufficient to establish a cause of death. His testimony should be limited to that fact. It leads to the conclusion that if he determines that the autopsy report are insufficient to establish a cause of death, he cannot definitively state a cause of death. Any testimony about her cause of death would be speculative and lack the required medical probability. However, he can testify how a finding that methadone caused her death is impossible from the autopsy as it was performed. His conclusion chips away at the plaintiffs' argument (for which they have the burden of proving) that Dr. Osunkoya's alleged breaches of the standard of care caused Friedel's death vis a vis his methadone prescription. After reading his deposition, it does not appear that Dr. Strayer is going to offer opinions with reasonable medical probability about what did cause Friedel's death. Nor based on his answers would the Court allow such testimony at trial.

The plaintiffs' motion is DENIED.⁷

Plaintiffs' Motion to Limit Dr. Bruce Goldberger's Testimony

Dr. Osunkoya intends to call Bruce Goldberger, Ph.D., a forensic toxicologist for these apparent purposes:

Dr. Goldberger is expected to testify that the dose of Methadone prescribed by Dr. Osunkoya is typical for the treatment of pain.

Dr. Goldberger is expected to testify that the methadone concentrations reported by the Office of the Chief Medical in femoral blood (110ng/mL) and by NMS Labs in Cardiac blood (60ng/mL) are unremarkable, and thus, methadone ingestion is not the proximate cause of death. Dr. Goldberger will also testify that, although the medical examiner's autopsy report contributes the ingestion of Toprol, Risperdal, Wellbutrin, and Depakote to Ms. Friedel's death, the Office of the Chief Medical and NMS Labs do not report results for these drugs.⁸

Plaintiffs' argument boils down as follows:

As a toxicologist, Mr. Goldberger is qualified to testify about the “actions of a drug on a biological system like a human” as well as a drug's toxic effects. During his deposition, Mr. Goldberger noted, when asked about contributing factors to a cause of death, that he was not a pathologist, and could not speak to those matters as an expert. He also frequently mentioned that he could not testify to any standard of care issues, such as typical dosages a physician may prescribe, as he was not a physician. Finally, the decedent's response to Narcan is irrelevant to the toxicology of methadone.⁹

The plaintiffs seek to limit his testimony concerning:

1. Mandy Friedel's cause of death.

2. Her lack of response to Narcan.

3. “Typical dosages” of methadone.

The Court serves as a “gatekeeper” whenever expert testimony is challenged.¹⁰ That function involves the following inquiry:

(1) the witness is qualified as an expert by knowledge, skill, experience, training or education; (2) the evidence is relevant; (3) the expert's opinion is based upon information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and (5) the expert testimony will not create unfair prejudice or confuse or mislead the jury.¹¹

Dr. Goldberger's credentials include being head of the toxicology lab at the University of Florida College of Medicine. He obtained his Ph.D. from the University of Maryland in 1993....