Court: Appellate Division of the Supreme Court of the State of New York; April 15, 2014; New York; State Appellate Court
The court addressed whether the trial court correctly granted defendants' motions to exclude plaintiffs' neurological experts from testifying. The plaintiffs' first expert's causation theory was deemed negated by a supplemental report, and the second expert's theories were either not timely presented or did not meet the Frye standard for admissibility. The court concluded that the proposed testimony should not have been excluded. The experts’ central claim—that the trauma from a vehicle collision was a contributing factor to the plaintiff's embolic stroke—did not necessitate a Frye hearing. Even if such a hearing were required, the evidence was adequate to allow the testimony under Frye standards.
The case stemmed from a motor vehicle accident on October 2, 2006, involving plaintiff Kamal Sadek and defendant Aaron Jenkins. Following the collision, Sadek experienced symptoms leading to a diagnosis of an embolic stroke at St. Luke’s Roosevelt Hospital. Medical tests revealed a mobile thrombus and atheroma, and he was treated with aspirin and Plavix. Sadek claimed negligence by the bus driver, asserting the accident aggravated a previously asymptomatic condition.
Dr. Nabil Yazgi, designated as the neurological expert, indicated a probable causal relationship between the accident and the stroke in his initial report. However, his June 28, 2011 supplemental report noted that subsequent examinations showed no thrombus or atheroma present, suggesting the initial findings might have been erroneous. Dr. Yazgi hypothesized that if the clot had existed, trauma could have dislodged it, leading to the stroke.
When the trial began, defense counsel moved to exclude all of plaintiffs' expert witnesses, resulting in the trial court granting the motion against Dr. Yazgi based on the perceived inconsistency in his reports and the lack of definitive causation. The court allowed the plaintiff a four-day continuance to find a new neurologist, stipulating that the new expert could not propose a different theory.
Plaintiff engaged Dr. Sang Jin Oh as a neurological expert on October 20, 2011, informing defendants that Dr. Oh would testify that the motor vehicle accident on October 2, 2006, caused the plaintiff's embolic stroke that day, and that he supported Dr. Yazgi’s earlier findings. Defendants contested Dr. Oh’s testimony, citing their expert, Dr. Alan Segal, who argued that an embolic stroke cannot result from trauma and accused plaintiff's expert of relying on an unaccepted theory. The court granted a Frye hearing to assess the admissibility of Dr. Oh’s testimony. In his affidavit dated November 2, 2011, Dr. Oh referenced two studies to counter Dr. Segal's claims: one Israeli study suggested that sudden body position changes could trigger strokes, while a Finnish study indicated that stress and high blood pressure increased stroke risk. Dr. Oh argued that increased systolic pressure could lead to plaque rupture, resulting in emboli. During the Frye hearing, Dr. Oh asserted that the accident caused the embolic stroke with reasonable medical certainty. Defendants argued that Dr. Oh proposed at least four new causative factors not mentioned in Dr. Yazgi's report, including a spike in blood pressure and trauma from the accident. Ultimately, the court ruled to exclude Dr. Oh's testimony, determining that his theories were novel and lacked general acceptance in the medical community. The court also noted inconsistencies regarding the theory of shearing in the relied-upon studies, leading to the conclusion that the plaintiff could not establish a causal link between the accident and his stroke, leaving him without proof of serious physical injury after withdrawing claims for orthopedic injuries.
The court dismissed the complaint, but the appeal centered on the causation of the plaintiff's embolic stroke resulting from an accident. The trial court incorrectly granted the defendants’ motion in limine to exclude the testimony of the plaintiff’s neurological experts. Specifically, Dr. Yazgi's initial report indicated a "probable causal relationship" between the accident and the embolic stroke, supported by medical records detailing a mobile thrombus. Although Dr. Yazgi's supplemental report introduced some doubt regarding the embolus's origin, it did not invalidate his primary testimony on causation. The defendants also improperly argued that Dr. Yazgi's CPLR 3101 (d) statement lacked sufficient explanation of the stroke's mechanism; they had ample opportunity to seek clarification prior to trial but chose to exclude his testimony instead.
Furthermore, the court ruled that the mechanism of the embolic stroke, involving dislodged clotting, did not depend on pinpointing the embolus's exact origin prior to dislodgment. The defendants could challenge the expert's claims but could not bar the plaintiff from proceeding based on the expert's ability to trace the embolus's path. Similarly, the testimony of Dr. Oh, another neurological expert, was also wrongly excluded. Although he introduced a possible new theory related to blood pressure spikes, he maintained that the accident was still a probable cause of the embolus’s dislodgment, aligning with the plaintiff's previously disclosed theory.
The court rejected the necessity for a Frye hearing, as the defendants did not provide adequate justification. Their expert's affidavit merely claimed a lack of support in medical literature for the plaintiff's theory without providing evidence to the contrary.
Plaintiffs provided evidence from reputable literature supporting the causation theory linking the accident to the embolic stroke, which effectively negated the defendants' claims and eliminated any factual dispute. The jury was tasked with determining if the collision's impact was a competent cause of the stroke. The plaintiffs' expert’s opinion, explaining the physiological link between the accident and the stroke, was not considered a novel theory requiring a Frye hearing, as it was not based on new or experimental concepts. Even if the defendants' expert warranted such a hearing, the evidence presented already established the reliability of the plaintiffs' claims.
Frye hearings assess whether expert deductions are based on widely accepted principles, particularly useful for novel theories. However, in cases where the plaintiff's injury is caused by the defendant's actions, the Frye analysis is less applicable. General acceptance of a theory does not require universal scientific consensus but adherence to accepted scientific methodology. The court's inquiry should focus on whether the expert's opinion appropriately relates existing data to the plaintiff's situation.
The plaintiffs' expert demonstrated that the conclusion of the accident causing the blood clot's dislodgement was supported by credible evidence, including an Israeli study on stroke triggers. The dissent's claims of novelty and insufficient acceptance within the medical community, as well as the suggestion that the stroke may have predated the accident, lacked factual support. Evidence showed that stroke symptoms emerged shortly after the accident, confirming the temporal relationship.
The dissent's suggestion that the plaintiff's stroke could have occurred prior to the accident and caused it is viewed as more rhetorical than plausible. The majority maintains that the causation question is appropriate for jury determination, rather than a question of law. The dissent's claim that the stroke's timing relative to the collision was coincidental fails to counter the more plausible scenario that the collision, particularly the impact from a 37,000-pound bus, caused the plaintiff's injury by dislodging an embolus. The dissent's argument regarding the collision's minor impact is deemed inappropriate for dismissing the plaintiffs' causation claim legally. Furthermore, the defendants' decision to serve seven in limine motions to exclude all of the plaintiff's expert witnesses on the day the jury was empaneled is criticized as an improper tactic that resembles an ambush, undermining the procedural fairness required by the CPLR. The dissent's assertion that the plaintiff's novel theory on the eve of trial caused this situation misrepresents the timeline, as it was the defendants' late motions that prompted the need for a stronger response from the plaintiff. Consequently, the Supreme Court's order precluding the testimony of the plaintiff's neurological expert and dismissing the complaint is to be reversed, restoring the matter to the trial calendar.
