In a recent decision, Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801 (2016), New York's highest court, the Court of Appeals, reaffirmed that under the Frye standard, an expert's opinion in any tort or negligence matter must rely on "general accepted principles" that are deemed "reliable" within the scientific community, in order to be admissible in court.
In this matter, the plaintiff claimed that his birth defects were allegedly caused by in utero exposure to unleaded gasoline vapors emanating from his mother's vehicle. The plaintiff's mother stated that while she was pregnant, the odor "came and went," and that at times it would cause headaches, dizziness, nausea and throat irritation. According to the plaintiff's experts, this in utero exposure to the gasoline vapors was the proximate cause of his birth defects.
Following motion practice, the trial judge held that the plaintiff's experts were precluded from testifying, because their methods were not "generally accepted as reliable in the scientific community," as established by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which has remained the standard for the New York courts even after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.579 (1993), the more flexible "reliability" standard used in federal court.
In affirming the lower court's decision, the Court of Appeals found not only that the plaintiff's experts failed to identify "any text, scholarly article or scientific study...that approves of or applies" the type of methodology they used to establish their opinion as to causation, but did not establish "a 'consensus' as to its reliability." While finding the experts may have established that the plaintiff's mother's symptoms were caused by the inhalation of 1,000 parts per million (ppm) of gasoline vapors during her pregnancy, the Court of Appeals held that the methodologies failed to establish the sufficient level of exposure to the toxin that allegedly caused the plaintiff's injuries in utero.
Comments: This decision reaffirms New York's requirement that an expert opinion must be generally accepted and deemed reliable within the scientific community. Whether you are an insurer or company in New York that is involved in environmental or toxic claims, or other tort-based causes of action based in products liability, motor vehicle accidents and premises liability, it is important to remember that liability theories premised on "junk science" remain subject to court scrutiny and exclusion at the time of trial.