New York’s Appellate Division, First Department affirmed a decision of the Bronx County Supreme Court, which precluded plaintiff’s expert evidence submitted in opposition to a summary judgment motion and following a Frye hearing, thereby, granting defendants summary judgment. Allen v. Consolidated Edison of N.Y., 2022 N.Y. Slip. Op. 02220 (April 5, 2022). The plaintiff’s expert contended that exposure to natural gas and carbon monoxide, due to gas leaks in the plaintiff’s apartment over several months, triggered early onset Huntington’s Disease, a neurodegenerative disease, because plaintiff was caused to suffer hypoxia, which led to oxidative stress, which in turn triggered Huntington’s, to which she was already genetically predisposed. The trial court found that a link between this exposure and Huntington’s Disease has not gained any level of acceptance. Moreover, there were no scientific studies showing low levels of gas could cause hypoxia. Plaintiff’s expert’s reliance on symptoms and medical records to show “plaintiff must have sustained toxic exposure” was an “inverse approach” squarely rejected by the Court of Appeals. See Sean R. v BMW of N. Am., LLC, 26 N.Y.3d 801 (2016). The First Department affirmed this decision, as plaintiff failed to meet their burden of showing specific causation, consistent with Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006).
Both Parker and Sean R. derive from the Frye rule, as outlined in Frye v. United States, 293 F. 1013 (1923), and followed by New York Courts, holding that expert evidence based on scientific principles or procedures is admissible only after the principle or procedure has “gained general acceptance” in its specialized field, and the proponent of the evidence bears the burden of establishing general acceptance. A Court may determine that an expert’s testimony should be precluded, either by relying on other rulings concerning the admissibility of the same or a similar theory or through a Frye hearing. People v. LeGrand, 8 N.Y.3d 449, 458 (2007).
This case demonstrates the importance of raising Frye issues at the time of summary judgment, and not just at the time of trial. Although Frye hearings are not required to dismiss a causation case on summary judgment, they can be useful to address unreliable expert testimony prior to trial, especially after expert disclosure, in the form of expert affidavits, is exchanged. A Frye motion to preclude plaintiff’s expert evidence altogether can be the most effective way to win a summary judgment motion when a plaintiff’s expert offers a novel or unusual scientific theory, or, as in the Allen case, where the expert uses an “inverse approach” by working backwards from symptoms to divine the cause. Issues concerning admissibility under Frye should be considered whenever a plaintiff opposes a summary judgment motion using expert evidence that is speculative, unreliable and not based on generally accepted principles such as that reflected by published literature.
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