United States: New York Reaffirms General Acceptance Standard In Frye For Scientific And Technical Issues

In a recent opinion handed down by New York's highest state court – the Court of Appeals –Sean R. v. BMW of N. Am., LLC, 2016 N.Y. Slip. Op. 01000 (Feb. 2016) reaffirmed New York's continued adherence to Frye's "general acceptance" standard.

Factually, the Sean R. case involved a toxic tort claim related to an alleged product defect in BMW's gasoline feeder fuel hoses. It was claimed that these hoses had a propensity to split, potentially permitting gasoline fumes to enter the vehicle. The fuel hoses were the subject of a recall campaign. The claim was brought by a woman who asserted to have been personally exposed to the fumes while pregnant. She further claimed that her baby's derivative exposure in utero resulted in severe mental and physical disabilities. As one might imagine, the opposing experts disputed whether the in utero baby's injuries were causally connected to the plaintiff mother's ingestion of gasoline fumes.

Plaintiff's experts opined that the in utero exposure during the first trimester caused the injuries. Those expert causation opinions were heavily based on scientific findings that "[i]n controlled studies, for symptoms such as those experienced by the mother that occur immediately [i.e., dizziness, headaches, throat irritation], a gasoline vapor concentration of at least 1000 ppm...is required." Defendants challenged these expert opinions, claiming through their own expert team that the opinions did not rely on generally accepted principles and methodologies (and that the conclusions were novel).

The Court of Appeals agreed with BMW, holding that the plaintiff's expert exposure causation opinion that was partly based on the existence of "symptoms" (exhibited by the mother) has not been generally accepted in the scientific community. Arguably incorporating Daubert's scientific reliability standard, the Court wrote "[n]ot only is it necessary for a causation expert to establish that the plaintiff was exposed to sufficient levels of a toxin to have caused the injuries, but the expert must also do so through methods found to be generally accepted as reliable in the scientific community." However, at the end of the day, in conclusion and clarifying fashion, the Court stood true to the Frye general acceptance standard, holding that the "[plaintiff's] experts did not rely on generally accepted principles and methodologies in concluding that plaintiff was exposed to sufficient concentration of gasoline vapors to cause his injuries."

So when in New York, counsel needs to remember that Frye's general acceptance standard still rules the day. Although the Sean R. case involved a toxic tort exposure issue, the Court's reaffirmation of the "general acceptance" standard to "causation–related" issues that are based on expert testimony applies equally in non-toxic-tort product liability cases and should therefore continue to present opportunities to challenge the admissibility of speculative and prejudicial expert testimony prior to trial.

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