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SERVING THE BENCH
AND BAR SINCE 1888
Web address: http://www.nylj.com VOlUmE 237—NO. 113 WEDNESDAY, JUNE 13, 2007 By Jeffrey M. KiMMel
‘Frye's' Applicability to Medical Malpractice Cases Recent Frye decisions in both the labor cause compression to the brain resulting First Department (Marsh v. Smyth, in brain damage?) (Del Maestro v. Grecco, 269 12 AD3d 307 [1st Dept. 2004]) and AD3d 250 [2d Dept. 2005]); nerve damage (can Second Department (Zito v. Zabarsky, the placement of electrodes of electrical muscle- 28 AD3d 42 [2d Dept. 2006]) strongly suggest stimulating unit on anterior neck of patient cause that New York Appellate Courts are cautioning permanent nerve damage?) (Hooks v. Court against applying Frye principles too restrictively Street Medical PC, 15 AD 544 [2d Dept. 2005]); in medical malpractice cases. hyperabduction (can malpositioning of an arm The onslaught of "gatekeeping" motion during surgery cause nerve damage?) (Marsh v. practice spawned by Daubert and its progeny has Smyth, 12 AD3d 307 [1st Dept. 2004]); silicone prompted defendants in medical malpractice cases toxicity (can facial injections of liquid silicone to increasingly move for summary judgment and, administered as an acne treatment cause silicone if they lose, file Frye motions challenging the toxicity?) (Pauling v. Orentreich Medical Group, basis of the expert's opinions. 14 AD3d 357 [1st Dept. 2005]).
In essence, under the guise of Frye, defendant Procedurally, a party challenging expert physicians are taking two bites at the apple. established to have gained general acceptance testimony pursuant to Frye must make a prima To discourage such unnecessary and abusive in the particular field in which it belongs." Thus, facie showing, in the first instance, that a motion practice, defendants need to know that proposed expert testimony is precluded if an particular principle or methodology underlying the state courts are frowning upon utilizing opinion or conclusion has not achieved "standing proposed expert opinion has not been generally Frye in medical malpractice cases.
and scientific recognition among physiological accepted in the relevant scientific community, Each of these insightful decisions, analyzed and psychological authorities." Id.
and therefore represents a novel theory. Zito v. more fully below, suggests that preclusion of expert New York has adhered to the Frye standard, Zabarsky, 28 AD3d 42 (2d Dept. 2006). This is testimony under Frye is a drastic remedy to be despite federal reliance on the U.S. Supreme Court frequently accomplished by submitting an expert used only sparingly in the medical malpractice case of Daubert v. Merrel Dow Pharmaceuticals Inc., affidavit containing supporting references to arena. These cases favor allowing jurors to 509 US 579 (1993), which permits an expert to studies and professional publications. Id.
weigh the credibility of expert medical opinion testify if "scientific, technical, or other specialized Once a party has made a prima facie showing rather than permitting judges to determine its knowledge will assist the trier of fact to understand that the proposed expert opinion is not reliable, the evidence or to determine a fact in issue." Id. at the burden shifts to the proponent of such Even the recent Court of Appeals Frye 588. Under Daubert, federal trial courts perform a evidence to establish general acceptance. It has decision (People v. LeGrand, 2007 NY Slip Op "gatekeeper" role to determine if proposed expert been held that the proponent's burden in this 02588), albeit a criminal case involving an testimony is both relevant and reliable. In regard regard is to provide proof amounting to "a fair eyewitness expert, espouses a liberal application of to reliability, and the question of whether or preponderance of the credible evidence." DeMeyer not a particular theory or technique constitutes v. Advantage Auto, et al., 7th Judicial District, scientific knowledge, a trial court could take Wayne County, New York (J. Raymond Cornelius, General Applicability of ‘Frye'
into consideration certain nonexclusive factors, June 27, 2005).
In New York, the test for determining the including whether it was tested, subjected to peer reliability and admissibility of expert testimony review and publication, the potential rate of error ‘Zito' Case
and opinion remains governed by
and general acceptance.
Frye v. United In Zito v. Zabarsky, 28 AD3d 42 (2d Dept. 2006), States, 293 F 1013 (1923), which ruled that plaintiff alleged that the defendant doctor departed before any expert is permitted to express an Use in Medical Malpractice Cases
from good and accepted practice by prescribing opinion or conclusion, "the thing from which In the medical malpractice arena, Frye an excessive dose of Zocor (a cholesterol-lowering the deduction is made must be sufficiently has been applied almost exclusively to issues drug), causing polymyositis (an autoimmune surrounding causation. Frye has been utilized condition). Plaintiff's experts claimed that a causal Jeffrey M. Kimmel is a partner at Salenger, Sack,
to test the principles of causation regarding a nexus existed between an excessive dose of Zocor Schwartz & Kimmel. birth defect (can a prolonged second stage of and the onset of polymyositis. The Queens County NEW YORK lAW JOURNAl WEDNESDAY, JUNE 13, 2007 trial court held a Frye hearing after the experts ‘Marsh' Case
involve anything novel or experimental as testified at trial and ruled that plaintiff's experts' contemplated by the Frye test. Rather, it is opinions were inadmissible since the plaintiff failed Similarly, in Marsh v. Smyth, 12 AD3d 307 (1st exactly that which is often the primary point to produce any medical literature that reported a Dept. 2004), the Appellate Division again reversed of contention in a personal injury action, causal nexus between an excessive dose of Zocor a trial court's ruling to preclude expert testimony where the plaintiff offers an opinion that and the development of polymyositis. The trial based on Frye. The plaintiff in Marsh claimed the defendant's conduct caused the injury, court was critical of plaintiff's experts' reliance a compressive nerve injury from improperly and the defendant denies any such conduct on merely a single reference to the literature to positioning her arm in a "hyperabducted" state and counters that the injury resulted from support the expert opinion: a may 1997 article for an extended period during a hysterectomy. some other causative agent, unrelated to from a medical journal. The trial court reasoned In granting the Frye motion, the trial court the defendant. Such expert testimony that Frye could not be satisfied without medical reasoned that the bulk of the evidence showed simply does not warrant a preliminary Frye- literature that expressly reported a connection that plaintiff's theory of causation was not type hearing; these types of competing between an excessive dose of Zocor and the onset generally accepted in the medical community claims are adequately dealt with at trial. of the disease.
and relied on the defense assertion that the term On appeal, the Second Department reversed, "hyperabduction" was different from the term Id. at 311-312.
finding this application of Frye overly restrictive "excessive abduction." The defense argued that The proper inquiry for the trial court, according and stating, "the fact that there was no textual the absence of the term "hyperabduction" in to Justice Saxe, was, at most, simply to ensure authority directly on point to support the the medical literature completely invalidated that the expert opinions of plaintiff's experts expert's opinion is relevant only to the weight plaintiff's reliance on that term. moreover, the "found some support in existing data, studies or to be given the testimony, but does not preclude trial court chose to ignore plaintiff's experts' literature." Despite plaintiff's experts reliance on its admissibility." The Zito court agreed with reliance on a 1947 article that used the term medical terms that did not exactly match those a prior First Department ruling that "it is not "hyperabduction," accepting the defense expert's in the relevant literature, and plaintiff's reliance necessary that the underlying support for the assertion that such article was irrelevant. The on a 1940s study as proof of their position, the theory of causation consist of cases or studies experts also battled over whether the brachial Appellate Division found in plaintiff's favor on considering circumstances exactly parallel to plexus nerve group was separate and distinct from the Frye issue.
those under consideration in the litigation. the long thoracic nerve, with the judge adopting Perhaps most instructive, Justice Saxe states Marsh v. Smyth, 12 AD3d 307 (1st Dept. 2004) the defendant's contentions. The trial court ruling that, "the focus of the inquiry…should not be (the Marsh case is discussed more fully below). was reversed.
upon how widespread the theory's acceptance The Zito court further found that "general is, but should instead consider whether a acceptance does not necessarily mean that a reasonable quantum of legitimate support exists Under the guise of ‘Frye,' majority of the scientists involved subscribe in the literature for the expert's views. Nor is it to the conclusion. Rather it means that those defendant physicians are necessary, as the motion court seems to have espousing the theory or opinion have followed taking two bites at the apple. To believed, that the underlying support for the generally accepted scientific principles and theory of causation consist of cases or studies discourage such abusive motion methodology in evaluating clinical data to reach considering circumstances exactly parallel to their conclusions." Beck v. Warner-Lambert Co., practice, defendants need to those under consideration in the litigation. It is 2002 NY Slip Op 40431[U], 6-7. know that the state courts sufficient if a synthesis of various studies or cases The Zito court found that in addition to the reasonably permits the conclusion reached by the are frowning on using one study cited, plaintiff's experts supported plaintiff's expert." their theory with generally accepted scientific ‘Frye' in medical principles and existing data. Specifically, plaintiff's experts explained generally accepted side effects of cholesterol-lowering drugs, which included The Zito and Marsh cases make clear that Frye myopathy, or muscle inflammation, which in The majority decision in Marsh is brief, but does not require medical malpractice experts to turn causes elevated CPK, which is indicative in a lengthy and thoughtful concurring opinion, find documented support in the medical literature of muscle toxicity, and triggered the autoimmune Justice David Saxe provides a detailed history that exactly matches their opinions. Similarly, response. It was undisputed that plaintiff's CPK and analysis of Frye as it relates to personal battles over semantics and medical terminology levels were extremely elevated after the onset injury, medical malpractice and other cases. This are not properly fought under the auspices of Frye. of her symptoms. moreover, upon learning of concurring opinion is cited as support in the Zito An expert's reasoned medical opinion, consistent her elevated CPK, defendant discontinued the case discussed above. Specifically, Justice Saxe with the spirit and nature of the specialty in Zocor therapy. Plaintiff's experts also relied makes clear that given the facts in Marsh, "where question, should suffice. The recent trend seems on the scientific theory of the dose/response the proposed expert testimony concerns a claim to favor the old fashioned way to resolve these relationship, which holds that both the beneficial that the plaintiff's injury was caused by the actions issues: let the jury decide.
and toxic effects of a drug will be greater with taken by the defendants, the whole concept of increased doses.
the Frye analysis is of limited applicability." Id. In reversing the trial court and permitting this at 311. Justice Saxe emphasizes that it was not expert testimony, the Zito court cautioned against the trial court's job to decide which expert's the potential chilling effect Frye motions present conclusions were right, even though trial judges to the aggrieved, stating that, "a strict application may be tempted to do just that:of the Frye test may result in disenfranchising Expert testimony as to whether the asserted Reprinted with permission from the June 13, 2007 edition persons entitled to sue for the negligence of conduct of the defendants was the causative of the New York law Journal 2007 Alm Properties, Inc. All rights reserved. Further duplication without permission is tortfeasors." Zito at p. 46.
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