Occupational Medicine Expert’s Testimony About Professional Standards for Drug Testing Admitted
Posted on August 6, 2025 by Expert Witness Profiler
Plaintiff Ruben Wills, a former New York City Council member, brought claims for negligence and violation of his Fourteenth Amendment right to procedural due process against Microgenics Corporation and Sheila Woodberry, respectively.
Plaintiff was convicted on corruption charges, although his conviction was later reversed on direct appeal. While still incarcerated, and shortly before his scheduled parole, officials from the New York State Department of Corrections and Community Supervision (“DOCCS”) selected him for random drug testing. The officials used a urinalysis test and testing protocol that was designed, manufactured, and sold by Microgenics. The test returned what Plaintiff claims was a false positive. State officials revoked Plaintiff’s eligibility for parole, and Plaintiff remained incarcerated for several additional months. He is now out of prison.
Microgenics filed a motion to exclude the testimony of Plaintiff’s expert, Dr. Robert B. Swotinsky.
Occupational Medicine Expert Witness
Dr. Robert Brian Swotinsky is a board-certified physician in occupation medicine with thirty-eight years of experience. This includes five years working with buprenorphine-assisted treatment of opioid-dependent patients, which involved urine testing for buprenorphine. Swotinsky has thirty-five years of experience as a medical review officer reviewing workplace drug test results. He is also the co-author of a physician certification examination for workplace drug testing, and he consults with government agencies on workplace drug testing. He has written two textbooks on the subject.
Discussion by the Court
To begin with, Swotinsky opined that “the standard of practice for forensic urine drug testing includes complete chain of custody procedures and positive results supported by specific confirmatory tests,” and that Plaintiff’s drug test “had neither.”
Basically, Swotinsky’s testimony explains what the relevant standard of care is, and his opinion that Microgenics deviated from it. This will be helpful to the trier of fact in determining whether Microgenics breached a duty of care owed to plaintiff, one of the elements plaintiff must prove to prevail on his negligence claim.
Microgenics asserted that the relevant standard of care was that “an assay-based drug test [be] at least 98 percent accurate,” and that it complied with this standard of care because its Assay was 98% accurate. The Court ruled that Swotinsky’s testimony, that conducting drug screening tests that are 98% accurate without any confirmatory testing does not satisfy the standard of care, is thus necessary to rebut Microgenics’ assertion that it followed the proper standard of care.
Moreover, Swotinsky’s opinion that “[t]he reliable identification of a drug following a preliminary positive result requires using a second analytical method for confirmation, one based on a different and, in most cases, more specific chemical principle,” is not an inadmissible legal conclusion.
Microgenics’ assertion that Swotinsky ignored reliable data showing that the Assay was 98% accurate misses the import of Swotinsky’s opinion. Swotinsky does not dispute that the Assay is 98% accurate. Rather, he opined that conducting drug testing with a 98% accurate Assay, without confirmatory testing, falls short of the relevant professional standards for drug testing. Swotinsky supports this opinion with literature on workplace drug testing, Microgenics’ own product insert accompanying the Assay, and Swotinsky’s own experience with drug testing.
Held
The Court denied the Microgenics’ motion to exclude the testimony of Plaintiff’s expert Robert B. Swotinsky.
Key Takeaway:
A witness may have sufficient experience to qualify him as an expert even if his experience is in a slightly different area than the one he will testify about. The fact that Swotinsky’s experience with drug testing is in the occupational setting does not mean that he lacks the qualifications to provide opinions about the forensic setting.
Similarly, Swotinsky’s methodology is not unreliable just because he applies workplace drug testing standards to forensic drug testing standards, as Microgenics argues. In New York, the standards of care applicable to proprietary functions of a prison, such as the provision of medical care, are the same as in the private setting.
Case Details:
| Case Caption: | Wills Et Al V. Microgenics Corporation Et Al |
| Docket Number: | 1:20cv4432 |
| Court Name: | United States District Court, New York Eastern |
| Order Date: | August 01, 2025 |
