'Frye' Motions in New York Personal Injury Litigation

By Robert F. Danzi and Joan M. Ferretti

Recent personal injury cases highlight the procedural and tactical issues faced by New York litigants on motions addressed to scientific evidence based ostensibly on Frye v. United States.¹

New York courts have adopted the Daubert style² in limine motion and hearing practice of federal courts, without adopting either the "relaxed" approach to admissibility of scientific evidence under FRE 702,³ or the procedural safeguards which are provided in the Fed. R. Civ. Proc.

The various New York approaches to Frye motions are not provided for in the CPLR, nor are they necessarily consistent with New York civil practice rules.⁴ Although there may be an appropriate gatekeeper role for New York courts, and for federal courts in Daubert, it is incumbent upon New York courts and the state Legislature to adopt uniform protocols to prevent prejudice caused by lack of procedural safeguards.

Of particular importance in New York is the need to make potentially dispositive Frye motions comport with the time limits for summary judgement motions, and the need for enforcement of disclosure rules, so that both sides can timely assess proffered experts and the Frye risks.

'Daubert' as Gatekeeper

Although the U.S. Supreme Court Court in Daubert "relaxed" the Frye general acceptance test, it set up a gatekeeping function for the court for testing proffered scientific evidence, within the confines of the Federal Rules, before its admission at trial:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

The Court cautioned, "The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."⁵

In Kumho Tire Co. v. Carmichael,⁶ the Supreme Court applied its Daubert analysis to "technical or other specialized knowledge," not merely proposed expert scientific testimony.

Federal practice contemplates in limine motions, including so called Daubert or Kumho motions, in advance of trial, either in tandem with or as part of summary judgment motions, or on a schedule established by order. Pretrial discovery of experts is full and complete; Rule 26 provides for timely exchange of detailed signed expert reports, including a list of materials reviewed, prior testimonies and publications within the last ten years, a curriculum vitae, and a fee statement followed by depositions.

The Federal Rules contemplate full and fair disclosure, and avoidance of surprise at trial. Motions to preclude expert testimony on Daubert grounds are contemplated in advance of trial, but after the close of discovery. A Daubert or Kumho hearing is generally held before the jury is empaneled.

These procedures afford an opportunity to prepare in advance for an anticipated Daubert or Kumho attack on scientific or technical expert testimony. Because all parties have a right to depose expert witnesses, Daubert and Kumho issues can be resolved based on deposition testimony and affidavits, rather than an extra round of hearings. There is no incentive to use a Daubert hearing as an opportunity to take pretrial discovery of an expert, since such discovery is amply provided for under the rules.

Garden variety foundation issues can be addressed in advance because an expert must specify which evidence has been reviewed in formulating the opinion. Because the Daubert motion does not occur until after the close of discovery, it is not a way to determine whether there is a need for additional experts or additional opinions.

Horse of Many Colors

There are few parallels between New York's approach to expert witness testimony and the federal model.

Expert statements pursuant to CPLR 3101(d) need not be signed by the expert; they need not recite the materials reviewed; a CV need not be attached, nor is there any requirement that fee arrangements, publications, or prior testimony be disclosed.

There is no right to depose an adversary's expert witnesses⁷; CPLR 3101(d) statements need not be served until shortly before the trial. In medical malpractice cases, the statement need not even contain the name of the expert witness.

These factors set the stage for misuse of so called Frye motions to obtain litigation advantages which are not contemplated by the CPLR.

Neither Daubert nor Kumho have been adopted by the New York Court of Appeals, but trial level courts in the state are applying them in cases involving not only proposed expert scientific testimony, but also in cases involving expert technical or engineering testimony,⁸ and a case involving hiring policies, which had little science or technology.⁹

These motions frequently have dispositive effect, but are not required to be made within the time specified for summary judgement motions. Because Frye motions may effectively preclude claims, they should be governed by the applicable limitations on the time in which summary judgment motions may be made. Otherwise, the Frye motion affords a second bite at the apple for parties who have either not timely moved for summary disposition of the case, or who have not prevailed on such a motion.

Armed with plaintiff's opposition to a prior summary judgment motion, defendants are well situated to move again, in the guise of a Frye objection, to preclude the very claim or part thereof which has already survived a motion for summary judgment.¹⁰

Unlike in federal practice, where a Daubert motion is typically made after the date on which discovery is closed, the making of a New York Frye motion is not so constrained.

In New York, a party can move under Frye, before he has even served his own CPLR 3101(d) statement. This places the adversary in the untenable position of having to oppose the motion and meet his burden of proof, without even having had the benefit of seeing the movants' 3101(d) statement.

Also, because of the in-depth additional disclosure that is typically necessitated by the opposition to such motions, the motion itself gives the movant a detailed road map to the selection of his own experts, and the structuring of his own expert statements, for subsequent submission shortly before the trial of the action.

A Frye motion also places a burden on parties to amplify the 3101(d) statement with the affidavit of the expert, and copies of published literature and other studies, as well as the affidavits of other experts in support of his methodology and conclusions, at peril of dismissal.¹¹

Merely having to respond to a Frye motion forces a party to disclose more about his proposed expert than is contemplated by the CPLR and disadvantageously increases costs.¹²

The lack of expert depositions under the CPLR is also an incentive for misuse of Frye motions in New York personal injury actions, even when the scientific issues are not new or novel. See, for example, Tavares, a medical malpractice action, in which plaintiffs argued, as a threshold matter, that their proffered medical opinion testimony did not involve any new or novel science.

A Better Way

What better means is there to take the testimony of an opposing expert in advance of trial testimony than on a Frye motion? This supplies sworn testimony that can be used at trial.

In Lara v. NYC Health and Hospitals Corp., the Frye hearing was held outside the presence of the jury, during a break in the trial, affording defendants a dress rehearsal for the cross examination of the witness before the jury returned.¹³

In Wahl, the ATV design defect case, a hearing outside the presence of the jury was also held.

In In re Rezulin Litigation,¹⁴ a pharmaceutical product defect case, the Court ordered a pre trial hearing of at least one of plaintiffs' experts on the issue of causation, if any of them were to be permitted to testify, holding that the scientific evidence was "sufficiently novel.

The Frye motion can also be used as a discovery device, to ascertain publications, experience, prior testimony, and the like, none of which is required to be furnished under the CPLR.

The costs of opposing Frye motions and meeting the burden of proof at a Frye hearing add dramatically to the costs of the action, increasing litigation risks.

In New York personal injury practice, CPLR 3101(d) statements need not be served until shortly before trial. Unlike motions for summary judgment which must be made not later than 120 days after filing of the Note of Issue (or other date according to local rule), there is no rule governing when, in the course of a litigation, a Frye motion must be made.

Frye motions have been and/or can be made many months before trial, for example, Tavares,¹⁵ on the eve of trial; In re Rezulin, after jury selection but before opening; or during the trial proper, as in Lara and Wahl.

Conclusion

The weight of the evidence should be tested in a robust cross examination, in the presence of the jury.

In their scheduling orders, New York courts should employ procedural safeguards which (a) establish enforceable timetables for all potentially dispositive motions, including Frye motions; (b) insure that discovery is complete before Frye motions are entertained; and (c) encourage the use of CPLR 3101(d) disclosure that really means something, in advance of Frye motions.

Robert F. Danzi is an attorney in Westbury. Joan M. Ferretti, a partner at Lustberg & Ferretti in Glen Falls, is of counsel to Mr. Danzi.

Endnotes:

1. 293 F. 1013 (DC Cir. 1923).

2. Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).

3. See, e.g., Lewin v. County of Suffolk, NYLJ Oct. 30, 2003 (Suffolk County Supreme Court).

4. See, e.g., Tavares v. NYC Health and Hospitals Corporation, 2003 WL 22231534 (Supreme Court, Kings County, June 23, 2003).

5. In 1984, the Court of Appeals, in People v. Wesley, 83 NY 2d 417, held that scientific opinion testimony is admissible, but only after a principle or procedure has gained general acceptance in its specified field. It does not appear that this standard has been "relaxed," nor has there been any attempt to codify or make uniform any procedural mechanism for applying it. Nor has the Court of Appeals adopted either Daubert or Kumho. See infra.

6. 526 U.S. 137 (1999).

7. But see, New York CPLR 3101 (a) (3) and 3117 (a) (4). A party is entitled to take the deposition of his own treating expert witness. This has potential for a party to create a record to be used in opposition to a Daubert motion.

8. E.g., Wahl v. American Honda Motor Company, 181 Misc. 2d 396 (Suffolk Co. S. Ct. 1999) (stability of ATV)(holding that Frye was not applicable because the "evidence is not new or novel", but ordering a Daubert hearing nevertheless); Valentine v. Grossman, 283 AD2d 571 (2d Dept. 2001)(reversing preclusion of defendant's biomechanical expert on Frye grounds).

9. Giangrasso v. Ass'n for Help of Retarded Children, 2001 WL 91428 (Suffolk Co. S. Ct) (2001) (policies for hiring bus drivers to transport retarded individuals).

10. See, for example, E.g., Meija v. NYC Heakth and Hospitals Corp., Index No. 112614, 2002); see Fitzzgerald, J.E., NYLJ Oct. 1, 2003.

11. E.g., Mejia, supra, (case dismissed where plaintiff did not oppose the motion with affidavits and exhibits); Selig v. Pfizer, Inc. ( products liability case summarily dismissed) 290 AD2d 319 (1st Dept. 2002); Tavares, supra note 4 (Frye motion denied, but extensive disclosure of plaintiff's expert occurred).

12. E.g., Wall, supra, note 8. At the Daubert/Kumho hearing, the expert "testified as to his schooling, his qualifications, his presented papers and the courses he has taught. . . . Also . . . the papers were subject to peer review prior to presentation and subject to comment upon presentation. With respect to peer review, Dr. Wright testified that the 'peers' are all experts in the field of engineering. No evidence of comments disputing the positions taken by Dr. Wright has been provided."

13. NYLJ Oct. 4, 2000, aff'd 305 AD2d 106 (1st Dept. 2003).

14. 2002 WL 31107923 (S. Ct. New York Co. 2002).

15. Supra, note 4, on a motion addressed to the sufficiency of a 3101(d) statement.