Holtje v. Waterman

11 Mass. L. Rptr. 89
CourtMassachusetts Superior Court
DecidedNovember 29, 1999
DocketNo. 9504775F
StatusPublished

This text of 11 Mass. L. Rptr. 89 (Holtje v. Waterman) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holtje v. Waterman, 11 Mass. L. Rptr. 89 (Mass. Ct. App. 1999).

Opinion

Smith, J.

INTRODUCTION

In this case, the plaintiffs, Peter W. Holtje and Marcelline G. Holtje (“plaintiffs”), allege that the defendant, William E. Waterman, M.D. (“defendant”), committed medical malpractice by negligently managing the psychiatric medication of their son, Steven Holtje (“Steven”). The plaintiffs have filed two motions in limine in which the plaintiffs seek to exclude certain evidence and expert testimony. The first motion seeks exclusion of any references and expert testimony related to cocaine at trial. The second motion seeks exclusion of any testimony from the defendant’s expert, Brian Pape, Ph.D., that has been inadequately disclosed as well as any testimony that relates to temezapam/oxazepam (TMZ/OXZ) redistribution and ratios.1

After an extensive hearing, consideration of the parties’ submissions, and for the reasons set forth below, both of the plaintiffs’ motions in limine are DENIED.

FINDINGS OF FACTS

Based on the parties’ submissions and credible testimony at the Daubert hearing, this Court makes the following findings of fact.

In 1992, the defendant, William E. Waterman, M.D. treated Steven Holtje, the plaintiffs’ son, for panic attacks and clinical depression. As part of this treatment, the defendant provided Steven with a prescription for temazepam (“TMZ”). Later, on August 29, 1992, Steven committed suicide with a gunshot to the head. An autopsy of Steven’s body was conducted on August 30, 1992.

About three and a half months later, on or about December 12, 1992, the Massachusetts Department of State Police Crime Lab performed several toxicology tests on Steven’s blood which had been preserved by freezing. The report indicated a benzoylecgonine (“BE”)2 level of 65 ug/dl and negative results for alcohol, barbiturates, methamphetamine, and morphine. Supplemental tests for temazepam (“TMZ”) and oxazepam (“OXZ") were conducted on or about March 4, 1993, March 8, 1993, and March 11, 1993. These results indicated a TMZ level of 97 ug/dl and an OXZ level of 31 ug/dl.3

In response to the plaintiffs’ motions, this Court held a hearing on September 21, 1999 and on September 22, 1999 during which the parties presented several witnesses and exhibits. Lisa L. vonMoltke, M.D., a pharmacologist, and Marc A. Whaley, M.D., a psychiatrist, testified for the plaintiffs. Brian Pape, Ph.D., a toxicologist, and Bernard Levy, M.D., a psychiatrist, testified for the defendant.

1. Plaintiffs’ Experts

A. Dr. Lisa vonMoltke

The plaintiffs presented Lisa vonMoltke, M.D, a pharmacologist, as their expert regarding the proffered testimony of the defendant’s expert, Dr. Pape, who opined about the doses of cocaine taken by the decedent as well as the time of ingestion. Dr. vonM-oltke provided testimony based upon her educational and professional background and opined that the analysis completed by Dr. Pape as to the time and amount of cocaine Steven used prior to his death is unreliable because it lacks sufficient information to support its conclusions.

Dr. vonMoltke described her qualifications at length as follows. She is a graduate of Wellesley College and the College of Human Medicine at Michigan State University. After graduation, she completed an internship and residency in internal medicine at the New England Medical Center as well as a clinical pharmacology fellowship at Tufts University School of Medicine. Additionally, she is board certified by the American Board of Clinical Pharmacology and is a Diplomat of the American Board of Internal Medicine. Currently, Dr. vonMoltke works as a Research Assistant Professor in the Department of Pharmacology and Experimental Therapeutics at Tufts University School of Medicine and as a Staff Physician in the Department of Medicine at the New England Medical Center. She is also the author of numerous articles on the subject of pharmokinetics, a subject matter that involves analysis of blood levels, metabolic processes, and molecular biology.

The thrust of Dr. vonMoltke’s testimony centered on her opinion that the methodology used to determine the time and amount of cocaine Steven used prior to his death is unreliable because it lacked the necessary information. She contended that utilizing the BE level alone to make timing and dosage determinations pres[90]*90ents difficulty because false readings of BE levels may result from redistribution, a process in which “concentrations of certain drugs in certain organs (typically the heart, lung, and liver) leach into the blood supply of the body” after death so that “drug concentrations [in the blood) appear artificially high.” She referenced a study that cautioned reliance on metabolite levels at death to determine cocaine dosage amount.4

Yet given the potential for false readings of the BE levels at death, Dr. vonMoltke nevertheless acknowledged that by utilizing different scenarios, the quantity of BE can reveal the quantity of cocaine consumed. She explained that factoring in the half-life of BE, along with the route of administration, and the time the cocaine was ingested, a “backward” analysis can be conducted to determine possible amounts of the cocaine used. Dr. vonMoltke asserted that in Steven’s case, this analysis could not be conducted because insufficient information exists regarding the route of administration and the time of ingestion. In her view, the BE level does not give way to any one particular time scenario. Nevertheless, she acknowledged that the BE level does allow the determination that Steven used cocaine sometime within the three days of his suicide.

Additionally, Dr. vonMoltke’s testimony addressed the reliability of determining the effect cocaine had on Steven’s mental state. While acknowledging that cocaine can affect an individual’s mental state, she explained that determining the extent of the impact remains dependent upon the time the cocaine was taken and the route of its administration. She emphasized that because no cocaine amount can be determined, its mental effect on Steven could not be conclusively established.

At the conclusion of her direct testimony, Dr. von-Moltke asserted that Steven’s August 1992 prescription for sixty 30mg pills and thirty 50 mg pills of TMZ5 authorized by the defendant exceeded a therapeutic dose. As she explained, the standard prescription for TMZ typically involves 15 to 30 mg, with one pill taken per day. Dr. vonMoltke further explained that the toxicology report’s reading of thirty percent of OXZ was particularly high when compared with normal levels that remain virtually undetectable or extremely low. Reported levels at their highest only reach 5%. Given this information, along with the knowledge that OXZ is a metabolite of TMZ that is formed as a result of the body’s metabolism of TMZ, Dr. vonMoltke concluded that such high OXZ levels resulted from Steven’s overdose of TMZ.

During cross-examination, Dr. vonMoltke however agreed that the decomposition of cocaine may result when blood is stored post mortem. She also stated that it is possible that at the time of Steven’s autopsy his blood contained cocaine. Additionally, she acknowledged the possibility that Steven used cocaine on the day of his death.

B. Dr. Marc A. Whaley

The plaintiffs also presented Dr. Marc A.

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