The cases that require expert scientific support are quite common in the personal injury field. Take for example a typical medical malpractice case in which the plaintiff claims that Dr. “X” through his negligence caused injury “Y”. Typically, and at least thirty days prior to trial, plaintiff must, in accordance with the New York rules, serve a statement upon the defense attorney setting out the specific field of the plaintiff’s medical expert, qualifications, and opinions that will be offered at trial (Rule 3101 [d]). The defendant must also comply with the rule by serving plaintiff’s counsel with a similar statement. The reason for the rule is to avoid surprise at trial, in addition to generally limiting the expert to that which is set forth in the 3101 [d] statement.
What is ultimately presented to the jury are questions of fact concerning the qualifications of the expert, general scientific acceptance of the conclusions reached, etc. In essence, so long as an expert is produced, such expert would normally be permitted to render an opinion to the jury. Interestingly enough however, for almost 90 years there has been a case that is still solid law to this day that makes the judge the “final arbiter” as to whether a proposed expert should be permitted to testify in the first instance. The case in question, Frye v. United States, decided in the Federal Court in 1923, established a standard that the expert’s proposed testimony must be based upon “general acceptance” by the scientific community, the rationale being to block “junk science” from being presented to a jury. Later cases that followed (Daubert v. Dow, 1995), refined the Frye rule by making the trial judge the “gatekeeper” in either allowing or blocking an expert’s testimony, thus raising such issues based not only upon the experts’ knowledge, skill, experience, training, and education, but also determining whether the expert’s conclusions are “relevant and reliable”, a “product of sound methodology” (clinical trials, peer reviewed scientific papers generally accepted by a recognized “scientific community”).
Thus what is generally a question of fact and the province of a jury (weight to be attached to an experts “in court testimony”) becomes an issue of law to be decided by a judge as to whether the expert meets the necessary criteria to testify in the first instance. This issue comes before the court prior to trial in what is called a Frye hearing, a procedure followed in New York and in other jurisdictions.
Most recently, the issue came up once again in, published in the New York law Journal, August 22, 2012, Justice Battaglia, Supreme Court, Kings County. There, the plaintiff brought suit against his landlord claiming that mold within the apartment caused certain pulmonary injuries. The court held a Frye hearing and concluded that the expert’s opinion in connecting mold to that type of injury was indeed based upon “generally accepted” scientific studies, and denied defendant’s motion seeking to block the expert’s testimony at trial.
Frye and Daubert motions are being employed more commonly today by the defense bar, not only as a means of blocking the expert in court, which if successful, could defeat plaintiff’s case entirely, but also as a strategic device to flush out in advance of trial what the expert’s specific testimony will be. Since at present, there is no time constraint as to when in the litigation process a Frye hearing can be called for (which works to the great advantage of the defendant), the state legislature should enact a rule wherein such a motion is deemed to be waived if not made within a limited and prescribed period.
The Frye motion and its possible resulting dismissal of the plaintiff’s case, should serve as a warning and signal to those who sustained personal injury, to seek counsel fully versed and experienced in dealing with such significant and crucial issues that could have such a devastating impact upon the plaintiff’s cause of action.