State v. Mcmullen

• Decision Date: 01 June 2006
• Docket Number: DEF. ID: 0507014155.
• Citation: 900 A.2d 103
• Parties: STATE of Delaware, v. Stephanie McMULLEN, Defendant.
• Court: Delaware Superior Court

Page 103

900 A.2d 103

STATE of Delaware, v. Stephanie McMULLEN, Defendant.

DEF. ID: 0507014155.

Superior Court of Delaware, New Castle County.

Submitted: May 18, 2006.

Decided: June 1, 2006.

COPYRIGHT MATERIAL OMITTED

Upon Consideration of Defendant Stephanie McMullen's Motion in Limine to Limit Expert Testimony.

GRANTED

in part and

DENIED

in part.

Christina M. Showalter and Josette D. Manning, Delaware Department of Justice, Deputy Attorneys General, Wilmington, DE, for the State.

Edmund D. Lyons, Jr., The Lyons Law Firm, Wilmington, DE, for the Defendant.

OPINION

SLIGHTS, J.

I.

In this opinion, the Court must decide whether the State's proffered medical experts reliably have reached a diagnosis of Pediatric Condition Falsification ("PCF") for an alleged victim of child abuse.¹ The opinions have been challenged under Delaware's Daubert standard as both irrelevant and unreliable.²

The Defendant, Stephanie McMullen ("McMullen"), is the natural mother of the alleged victim, Reilly McMullen ("Reilly"), and is charged with Assault by Abuse or Neglect³ and Reckless Endangering in the First Degree.⁴ At trial, the State's medical experts are expected to testify that the facts of this case justify a diagnosis of PCF. McMullen has filed a motion to exclude such testimony under Daubert.⁵ According to McMullen, testimony regarding PCF, MSBP, or any other derivation or characterization of that disorder/syndrome (such as Factitious Disorder by Proxy ("FDBP") or Illness Falsification ("IF")), is inherently unreliable as a matter of medical science. She also argues that the physicians involved with Reilly employed unreliable methodologies to make the diagnosis in this case. Accordingly, she urges the Court to fulfill its role as evidentiary gatekeeper by striking the unreliable expert opinion testimony.

After reviewing the initial and supplemental briefing, and conducting an extensive evidentiary hearing, the Court is satisfied that the State has met its burden of establishing by a preponderance of the evidence that expert testimony from Drs. Allen DeJong and Basil Zitelli regarding PCF is sufficiently relevant and reliable to pass through the Daubert filter.⁶ The two doctors employed objective diagnostic techniques and sound methodology in diagnosing PCF in this case. Their testimony is based on "scientific knowledge" and is sufficiently reliable to be presented at trial. The proffered testimony will assist the trier of fact at trial and will not confuse the issues. As to these experts, McMullen's motion is DENIED.

The diagnosis of PCF (or MSBP, FDBP, and IF) made by the State's other experts—Drs. Keith Mann, Christopher Franz, Cecelia DiPentima, and Stephen Schaffer—is not sufficiently reliable to pass muster under Daubert. The State has failed to demonstrate that these witnesses possess the expertise to make the diagnosis or that they employed a reliable methodology in doing so. Accordingly, McMullen's motion is GRANTED as to these experts.

II.

A. Background

Between January 6, 2005 and April 21, 2005, the alleged victim, Reilly McMullen, was admitted to Alfred I. duPont Hospital for Children ("A.I.") on three different occasions for fever, vomiting, and diarrhea.⁷ He was 18 months old at the time of the first hospitalization. Throughout his various stays at A.I. (totaling 64 days), Reilly's treating physician, Dr. Patricia Scott (a pediatrician), along with several medical specialists in the areas of hematology, rheumatology, gastroenterology, oncology, infectious disease, genetics, neurology, opthamology, and immunology, conducted an exhaustive battery of invasive and noninvasive medical tests on Reilly. Until early April 2005, with the exception of an influenza diagnosis during his first hospitalization in January, no definitive diagnosis could be made to explain Reilly's seemingly persistent illnesses.⁸

In April, during Reilly's last hospitalization, blood cultures revealed three different types of bacteria in his blood—two of the bacteria (e-coli and klebsiella) are commonly found in fecal matter and the third (stentrophomonas maltophilia) is commonly found in a hospital setting. His doctors opined that these bacteria were the causes of his illness. After ruling out "sick gut syndrome" (a perforated intestine/bowel) and infection from a catheter or intravenous line as potential sources of the bacteria, Reilly's doctors became concerned that someone (namely his mother, McMullen) was purposely introducing the bacteria into Reilly's system intravenously. This concern caused Dr. Scott to contact the Division of Family Services ("DFS") and file a report of abuse. In her report to DFS, Dr. Scott noted "that documented cases of Munchausen Syndrome by Proxy/Factitious Disorder include [victims'] IVs being injected with fecal matter causing sickness symptoms." She also conveyed to DFS that Reilly's "mother [McMullen] is a nurse at A.I. ... and has medical knowledge."⁹

DFS commenced an investigation and also notified the New Castle County Police Department ("NCCPD"), which started its own investigation. The NCCPD was able to secure and execute search warrants on McMullen's vehicles, residence, and place of employment. McMullen ultimately was arrested and charged with Assault by Abuse or Neglect and Reckless Endangering in the First Degree. Specifically, she is accused of recklessly causing serious physical injury to her son, Reilly, by an act of abuse or neglect in violation of DEL. CODE ANN. tit. 11, § 615, and recklessly engaging in conduct which created a substantial risk of death to Reilly by introducing harmful substances into his body in violation of DEL.CODE ANN. tit. 11, § 604.¹⁰

B. The Daubert Hearing

A hearing was held on May 3, 2006. The State presented testimony from two of its proffered experts, Allen DeJong, M.D. and Basil Zitelli, M.D. McMullen called no witnesses.

1. Allen DeJong, M.D.

Dr. DeJong is a board certified pediatrician with a specialty in diagnosing sexual and physical abuse in children. Since 1997, he has been employed by A.I. as the Medical Director for the Children at Risk Evaluation Program—a program designed to assess and evaluate suspected child abuse. Dr. DeJong is also a Clinical Professor of Pediatrics at Jefferson Medical College.¹¹

Throughout his more than 30 year career in pediatrics, Dr. DeJong has examined between 4,000 and 5,000 children to assess whether they have been exposed to sexual or physical abuse. He has diagnosed PCF six times during his career and describes the condition as a type of child abuse where a child's caretaker inflicts physical or psychological injury on a child through one of several mechanisms—either by falsifying the child's medical symptoms or history, exaggerating the child's legitimate medical symptoms, or intentionally inducing the symptoms in the child through physical means.¹²

According to Dr. DeJong, there are over 400 published papers in pediatric and medical journals relating to PCF. Over half of those papers are case reports and a majority of the papers have been subjected to peer review. In addition, many medical textbooks have chapters dedicated to PCF and one pediatric text in particular is devoted entirely to disorders related to MSBP and PCF. He acknowledges, however, that there are no reliable control group studies or experimental design studies of PCF. The absence of such data is not surprising to Dr. DeJong given that PCF is not a medical condition that easily lends itself to a controlled experimental design. Specifically, Dr. DeJong explained that too many uncontrollable confounders would be present in any control study of PCF, any one of which could skew the data.¹³ For instance, the only control study known to Dr. DeJong is entitled "Evaluation of Covert Video Surveillance in the Diagnosis of Munchausen Syndrome by Proxy: Lessons From 41 Cases."¹⁴ This study involved monitoring by hidden video cameras suspected cases of MSBP from 1993 to 1997 at the Children's Healthcare of Atlanta at Scottish Rite Hospital. The study revealed a diagnosis of MSBP in 23 of the 41 suspected cases. Dr. DeJong explained that the results of this study were questionable given that it was susceptible to both false positives (incorrectly diagnosing MSBP) and false negatives (failing to diagnose MSBP when it is the correct diagnosis) because of the inability covertly to monitor the patients 24-hours a day. The abuse could have been occurring outside of the hospital at the child's home or other locations where the cameras could not monitor the activity. Hence, the time frame away from the hospital was a confounder that could not be controlled and, thus, directly affected the reliability of the study.¹⁵

Dr. DeJong testified that PCF is a generally accepted diagnosis in the pediatric community. He admits, though, that diagnosing PCF can be extremely difficult because the child's medical history is typically false (often by design of the caretaker), the medical record is not always in one location, the diagnosis cannot be made within a short time frame (it often takes months or even years), and there is no specific medical, psychiatric, or other test that will lead a doctor to a definitive diagnosis. Dr. DeJong maintains, nevertheless, that there is a medically sound methodology that leads to the diagnosis of PCF.¹⁶

In explaining the methodology, Dr. DeJong stated that, initially, a doctor collects as much medical history of the child as possible, looks for specific medical explanations for the child's symptoms, and discusses the medical history with the child's primary care physician and any consultants or specialists involved in the child's care. The doctor then proceeds to engage in a differential diagnosis.¹⁷ To work through a differential diagnosis that includes PCF requires the diagnostician to engage in a "diagnosis of exclusion." That is, the doctor looks for medically plausible conditions that may be the cause of the child's symptoms....