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Expert Witnesses And Admissibility


									Expert Witnesses And

                 Prepared and Presented by:

                       Robert A. Barrer
                 Hiscock & Barclay, LLP
                          One Park Place
                    300 South State Street
                    Post Office Box 4878
         Syracuse, New York 13221-4878
               Telephone: (315) 425-2704
               Facsimile: (315) 425-8544
 Real Evidence For The Trial Practitioner In New York

VI.    Expert Witnesses And Admissibility

       The use of experts is an integral part of modern litigation. Though often the

subject of public derision over the use of “junk science” and the attendant increase in the

cost of litigation, the trial practitioner who properly prepares his or her case must be

attuned to a myriad of issues surrounding the proper use of experts. Failure to comply

with the relevant provisions of the CPLR or the Federal Rules of Civil Procedure can

have disastrous consequences to a client’s case and could subject the practitioner to

malpractice liability. This outline addresses the basic requirements of successful expert

practice at trial from proper disclosure of the intent to use an expert witness through

expert qualifications and competency at trial as well as the key distinction between

New York’s adherence to the “Frye” Rule and the Federal Court’s reliance on the

Daubert case and its progeny.

       A.      Disclosure

               1.      Formal Expert Disclosure

       In order to use an expert at trial, the expert must be identified to your adversary

and to the Court. The trial practitioner must take special care to comply with not only the

CPLR and the Federal Rules of Civil Procedure, but also any specially imposed case-

specific scheduling order.
              a.      CPLR 3101

The relevant provisions of the CPLR provide as follows:

       CPLR § 3101 Scope of Disclosure

       (d) Trial Preparation. 1. Experts. (i) Upon request, each
       party shall identify each person whom the party expects to
       call as an expert witness at trial and shall disclose in
       reasonable detail the subject matter on which each expert is
       expected to testify, the substance of the fa cts and opinions
       on which each expert is expected to testify, the
       qualification of each expert witness and a summary of the
       grounds for each expert’s opinion. However, where a party
       for good cause shown retains an expert an insufficient
       period of time before the commencement of trial to give
       appropriate notice thereof, the party shall not thereupon be
       precluded from introducing the expert’s testimony at the
       trial solely on the grounds of noncompliance with this
       paragraph. In that instance, upon motion of a party, made
       before or at trial, or on its own initiative, the court may
       make whatever order may be just. In an action for medical,
       dental or podiatric malpractice, a party, in responding to a
       request, may omit the names of medical, dental or podiatric
       experts but shall be required to disclose all other
       information concerning such experts otherwise required by
       this paragraph.

       (ii) In an action for medical, dental or podiatric
       malpractice, any party may by written offer made to and
       served upon all other parties and filed with the court, offer
       to disclose the name of, and to make available for
       examination upon oral deposition, any person the party
       making the offer expects to call as an expert witness at trial.
       Within twenty days of service of the offer, a party shall
       accept or reject the offer by serving a written reply upon all
       parties and filing a copy thereof with the court. Failure to
       serve a reply within twenty days of service of the offer
       shall be deemed a rejection of the offer. If all parties
       accept the offer, each party shall be required to produce his
       or her expert witness for examination upon oral deposition
       upon receipt of a notice to take oral deposition in
       accordance with rule thirty-one hundred seven of this
       chapter. If any party, having made or accepted the offer,

               fails to make that party’s expert available for oral
               deposition, that party shall be precluded from offering
               expert testimony at the trial of the action.

               (iii) Further disclosure concerning the expected testimony
               of any expert may be obtained only by court order upon a
               showing of special circumstances and subject to restrictions
               as to scope and provisions concerning fees and expense as
               the court may deem appropriate. However, a party, without
               court order, may take the testimony of a person authorized
               to practice medicine, dentistry or podiatry who is the
               party’s treating or retained expert, as described in
               paragraph three of subdivision (a) of this section, in which
               event any other party shall be entitled to the full disclosure
               authorized by this article with respect to that expert without
               court order.

       In order to protect expert witnesses from alleged retaliation or possible shunning

in the community, there is an exception to the rule requiring each party, upon demand by

the other, to reveal the name and background of any expert it intends to call at trial.

While the party must reveal the background data, it may conceal the name of the expert

before trial. Rojas v. McDonald, 267 A.D.2d 130, 131, 701 N.Y.S.2d 21, 22 (1st Dep’t

1999); Carrasquillo v. Rosencrans, 208 A.D.2d 488, 617 N.Y.S.2d 51 (2d Dep’t 1994).

       This rule has even been extended to dispositive motions. Id. (plaintiff may submit

expert affidavit in opposition to motion for summary judgment in which the name of the

expert was redacted). Interestingly, the rule is precisely the opposite for a party moving

for summary judgment. See Marano v. Mercy Hosp., 241 A.D.2d 48, 50, 670 N.Y.S.2d

570, 571 (2d Dep’t 1998) (holding that a party moving for summary judgment may not

rely upon redacted expert affirmations or affidavits, even with unredacted copies

provided for in camera inspection, since to do so would violate the opposing party’s

rights to fundamental fairness).

        b.      Fed. R. Civ. P. 26

Fed. R. Civ. P. 26(a)(2) Disclosure of Expert Testimony

(A)     In addition to the disclosures required by
paragraph (1), a party shall disclose to other parties the
identity of any person who may be used at trial to present
evidence under Rules 702, 703, or 705 of the Federal Rules
of Evidence.

(B)      Except as otherwise stipulated or directed by the
court, this disclosure shall, with respect to a witness who is
retained or specially employed to provide expert testimony in
the case or whose duties as an employee of the party
regularly involve giving expert testimony, be accompanied
by a written report prepared and signed by the witness. The
report shall contain a complete statement of all opinions to be
expressed and the basis and reasons therefor; the data or other
information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support
for the opinion; the qualifications of the witness, including a
list of all publications authored by the witness within the
preceding ten years; the compensation to be paid for the
study and testimony; and a listing of any other cases in which
the witness has testified as an expert at trial or by deposition
within the preceding four years.

(C)     These disclosures shall be made at the times and in
the sequence directed by the court. In the absence of other
directions from the court or stipulation by the parties, the
disclosures shall be made at least 90 days before the trial date
or the date the case is to be ready for trial or, if the evidence
is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under paragraph
(2)(B), within 30 days after the disclosure made by the other
party. The parties shall supplement these disclosures when
required under subdivision (e)(1).

Fed. R. Civ. P. 26(b)(4) Trial Preparation: Experts

(A)      A party may depose any person who has been
identified as an expert whose opinions may be presented at
trial. If a report from the expert is required under

               subdivision (a)(2)(B), the deposition shall not be conducted
               until after the report is provided.

               (B)      A party may, through interrogatories or by
               deposition, discover facts known or opinions held by an
               expert who has been retained or specially employed by
               another party in anticipation of litigation or preparation for
               trial and who is not expected to be called as a witness at
               trial, only as provided in Rule 35(b) or upon a showing of
               exceptional circumstances under which it is impracticable
               for the party seeking discovery to obtain facts or opinions
               on the same subject by other means.

               (C)     Unless manifest injustice would result, (i) the court
               shall require that the party seeking discovery pay the expert
               a reasonable fee for time spent in responding to discovery
               under this subdivision; and (ii) with respect to discovery
               obtained under subdivision (b)(4)(B) of this rule the court
               shall require the party seeking discovery to pay the other
               party a fair portion of the fees and expenses reasonably
               incurred by the latter party in obtaining facts and opinions
               from the expert.

                         c.   Pretrial Scheduling Orders

       Active trial practitioners in New York State will recognize that a discovery

motion seeking almost any type of relief will frequently be met with correspondence

from the assigned Justice providing a proposed Preliminary Conference Scheduling Order

for all counsel to stipulate to and return in accordance with Section 202.12 of the

Uniform Rules. The standard order permits the parties to assign dates for the timing of

expert disclosure. Unfortunately, the CPLR does not contain any concrete provisions

mandating the timing of expert disclosure and it is left to the parties to come up with a

schedule of their own.

       In Federal Court, a Pretrial Scheduling Order is required to be put in place

following the mandatory Initial Preliminary Conference required by Fed. R. Civ. P. 16.

This Conference is conducted by the assigned Magistrate Judge. The Pretrial Scheduling

Order will contain a set schedule for the timing of expert disclosure. Failure to adhere to

the time periods established in the Order can lead to preclusion.

               2.      Expert Depositions

        A simple rule of thumb on the difference between New York State and Federal

practice in this area is that expert depositions are permitted under the Federal Rules of

Civil Procedure while the CPLR provides that they may not be conducted without leave

of court.

        Often the determining factor in the success or failure of a case will turn on expert

testimony. The “battle of the experts” is one that can make or break your case. Thus, if

the circumstances are appropriate (i.e., you are permitted to conduct a deposition of an

opposing expert and the case is worth the expense), you should strongly consider

conducting an expert deposition. The experienced trial practitioner will also recognize

that, in the current climate, most cases are not tried to verdict and that conducting a

deposition is often the substitute for a trial and the only practical time when you will see

an opposing expert and have an opportunity to gauge his or her credibility.

        There are pro and cons of this strategy. For example, taking an opposing expert’s

deposition will frequently (a) provide you with insight into the strengths and weaknesses

of opponent’s case; (b) permit you to gain a better understanding of the strengths and

weaknesses of your own case; (c) delve into credibility and bias issues of the expert;

(d) obtain useful information from which to conduct further research; and (e) create a

record from which you can base a motion to preclude or strike. However, cond ucting an

expert deposition also has the following potentially adverse consequences: (a) loss of the

opportunity to surprise your opponent (i.e., “giving away the store”); (b) the time to

arrange and conduct the deposition may be “tight;” and (c) there are often substantial

costs involved from experts who frequently view these depositions as a license to extract

exorbitant fees. 1

                           a.        Methods to Impeach

         An expert is like any other witness and may be impeached for any of the

traditional reasons such as bias, interest in the outcome of the proceeding, or some form

of corruption. As stated in R. Farrell, PRINCE—RICHARDSON ON EVIDENCE § 6-401 (11th

ed. 1995), the standard methods of impeaching the credibility of any witness include

(a) showing a bad reputation for truth and veracity; (b) exploration of immoral, vicious,

or criminal acts affecting character; (c) showing prior inconsistent statements;

(d) showing bias in favor or against a party; (e) establishing conviction of a crime; and/or

(f) showing that witness was under influence of drugs or alcohol or was mentally ill or

deranged at the time of the events in question.

         In most circumstances, you will not be lucky enough to be presented with an

expert witness who is a master criminal, has committed vicious or immoral acts, or who

has a known reputation as a liar. It does not mean that it cannot occur, but your

impeachment of an expert witness will likely come from the fact that the expert is biased,

 For an interesting scenario relating to the costs of an expert deposition, see the Appendix to the outline, an
actual letter sent to a Magistrate Judge addressing a neurosurgeon’s attempt to gouge an exorbitant fee for
submitting to a deposition.

has an interest in the outcome, has made prior inconsistent statements, or lacks a

foundation for his or her opinions.

                       b.     Pre-Deposition Research

       Before conducting an expert deposition, find out as much as possible about the

expert. An excellent starting place is your client and your own expert who may know

others in the field. The Internet, LEXIS/NEXIS, and Westlaw are also a must in

uncovering prior news articles or cases in which the expert has had some mention or

involvement. Bar groups such as ATLA, DRI, and specialty, trade, or industry groups

are also important sources of information about experts.

       The goal of conducting expert research is to assemble a comprehensive picture of

the expert and find out what he or she has been saying in other cases. An expert may be

consistent in his or her opinions on a given subject or may flow back and forth on a

subject depending on who is paying the retainer.

       The expert disclosure provided by your adversary can be an important source of

information. In State Court, CPLR 3101(d) requires that you disclose “the qualification

of each expert witness.” This type of disclosure may or not be helpful.

       By contrast, expert disclosure in Federal Court must include:

               a written report prepared and signed by the witness. The
               report shall contain a complete statement of all opinions to
               be expressed and the basis and reasons therefor; the data or
               other information considered by the witness in forming the
               opinions; any exhibits to be used as a summary of or
               support for the opinion; the qualifications of the witness,
               including a list of all publications authored by the witness
               within the preceding ten years; the compensation to be paid
               for the study and testimony; and a listing of any other cases

               in which the witness has testified as an expert at trial or by
               deposition within the preceding four years.

Fed. R. Civ. P. 26(a)(2)(B).

       For experts who are professional witnesses (and there are many of them), the

amount of source material will be large. For a new expert, you may not find anything

concrete. This does not mean that the expert is not qualified, but it may be a clue that

there will be a problem qualifying the expert and having the testimony admitted into

evidence if it is unusual. For a physician opining about the cause and permanency of an

injury, this will not be a problem. Often a physician who has never testified before

makes a terrific appearance. However, for an expert to come forward on an unusual topic

that has never been the subject of testimony before, bells and whistles should be going off

in your mind and you should be thinking on one word — Daubert.

                       c.      Conducting the Deposition

       The deposition of an expert is an attempt by the questioner to determine

everything that the expert knows about the case and all opinions that may be expressed at

the trial. Unlike a party’s deposition where a poorly chosen question could come back to

haunt you later, there is little danger of a very negative response to a question at a

deposition being used against you at trial.

       Accordingly, ask the expert about his or her backgr ound, training, experience, and

history as a paid expert. Do not forget the question of compensation. Ask the basis of

the compensation (hourly or by task), whether the compensation agreements are reduced

to writing, the source of the compensation, the amount of time spent to date and expected

to be spent up to the time of the trial, the expert’s experience with the party or

representatives of like parties (e.g., does the expert only testify for or against a particular

trade or industry), the expert’s experience with opposing counsel and counsel’s law firm

(including other offices), and whether the amount of the compensation is dependent on

the outcome of the case. You can sometimes be amazed at what experts and other

witnesses will disclose.

        Ask the exp ert’s own opinion of what he or she believes is their range of

expertise. Be direct and comprehensive. Questions could include questions as simple as

the following:

                 Do you believe that you are in expert in the diagnosis and
                 treatment of carpal tunnel syndrome?

                 Do you believe that you are an expert in pain management?

                 Do you believe that you are an expert in determining
                 whether a patient’s subjective complaints of pain are
                 consistent with the patient’s objective findings?

                 Do you believe that you are an expert in assessing the
                 reasonableness of costs for medical care, surgery and

You may be surprised at the responses that you receive. So, too, may be your adversary

when the poorly-prepared expert states that he or she does not believe himself or herself

to be an expert in an area already designated.

                        d.      Attacking the Opinion

        Once you have conducted your expert deposition, or even if you have not conducted

the deposition but have amassed enough information from which to base a motion, cons ider

a motion to preclude or strike expert testimony. This can be done directly on a motion to

preclude the expert from testifying, or indirectly by moving to strike the claim as opposed to

                                                 - 10 -
the expert. See, e.g., Hammond v. Alekna Construction, Inc., 269 A.D.2d 773,

703 N.Y.S.2d 332 (4th Dep’t 2000) (striking claims of multiple chemical sensitivity as

opposed to expert opinions on same); Frank v. State of New York, 972 F. Supp. 130

(N.D.N.Y. 1998) (same).

        With respect to the motion to strike the expert and his or her testimony, the Supreme

Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), is the seminal decision in the area and one with which all trial practitioners must be

familiar. In Daubert, the Supreme Court determined that the language of Fed. R. Evid. 702

must be the focal point for the trial judge’s determination of admissibility of expert

testimony. In its review of prospective expert’s opinion, the trial court must determine as a

matter of law whether the testimony reflects “scientific knowledge,” will be of assistance to

the fact-finder (i.e., there must be a connection or “fit” between the testimony and the issues

of the particular case), and whether the scientific knowledge is properly grounded in the

methods and procedures of science. 5 R. Barker and V. Alexander, EVIDENCE I N


        In other words, the trial judge must serve as a “gatekeeper” who must make “a

preliminary assessment of whether the reasoning or methodology underlying the expert

testimony is scientifically valid and whether such reasoning can be properly applied to the

facts at issue.” Id. The trial judge is to consider (a) whether the scientific theory or method

can and has been tested; (b) whether it has been subjected to peer review and publication;

(c) the potential rate of error and the existence of standards controlling the operation of the

                                                 - 11 -
technique; and (d) the extent of “general acceptance” in the relevant scientific community.


        In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court

expanded upon Daubert’s “gatekeeping” obligation and required an inquiry by the trial

court into both relevance and reliability not only to scientific testimony but to all expert


        B. and C.       Qualifications and Competency

                1.      New York Rule

        “Generally speaking, a predicate for the admission of expert testimony is that its

subject matter involve information or questions beyond the ordinary knowledge and

experience of the trier of the facts. Moreover, the expert should be possessed of the

requisite skill, training, education, knowledge, or experience from which it can be

assumed that the information imparted or the opinion rendered is reliable.” Matott v.

Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 647 (1979) (citing McCormick, Evidence

[2d ed], §§ 10, 13; Wigmore, Evidence, vol 2, §§ 555-567; vol 7, §§ 1917-1929;

Richardson, Evidence [10th ed. — Prince], §§ 366-368.); see also Rosen v. Tanning Loft,

16 A.D.3d 480, 791 N.Y.S.2d 641 (2d Dep’t 2005).

        Specialized training or education is not a prerequisite. The expert need only

establish that he or she possesses the requisite qualifications. See Price v. New York City

Housing Auth., 92 N.Y.2d 553, 559, 684 N.Y.S.2d 143, 146 (1998) (expert qualifications

can be established through long observation and actual experience).

                                                 - 12 -
       “The qualification of a witness to testify as an expert in a particular area is a

question addressed to the discretion of the trial court and the court’s ruling will not be

disturbed absent a serious mistake, an error of law, or an abuse of discretion.” Hong v.

County of Nassau, 139 A.D.2d 566, 566, 527 N.Y.S.2d 66, 67 (2d Dep’t 1988) (citations

omitted). Accordingly, where the witness’s attempts to testify as to areas with which he

or she has no experience or qualifications, it is well within the court’s discretion to

exclude that testimony. Id.

       To be admissible, expert opinion evidence must be based upon facts either found

in the record, personally known to the witness, derived from a professionally reliable

source, or obtained from a witness. Brown v. County of Albany, 271 A.D.2d 819,

706 N.Y.S.2d 261 (3d Dep’t 2000). A speculative, unsubstantiated, and conclusory

opinion of an expert is insufficient to raise a triable issue of fact and should be excluded.

Aungst v. Slippery Slats & All That, Inc., 6 A.D.3d 1078, 775 N.Y.S.2d 617 (4th Dep’t

2004); Glorioso v. Schnabel, 253 A.D.2d 787, 677 N.Y.S.2d 604 (2d Dep’t 1998).

       Expert opinions which are “‘contingent, speculative or merely possible’ lack

probative force and are, therefore, inadmissible.” Barker v. Mattison Mach. Works,

244 A.D.2d 934, 934, 668 N.Y.S.2d 120, 120 (4th Dep’t 1997). Further, “it is

well-established that, unless the jurors are unable or incompetent to evaluate the evidence

and draw inferences and conclusions, the opinions of experts, which intrude on the

province of the jury, are both unnecessary and improper.” Fortunato v. Dover Union

Free School Dist., 224 A.D.2d 658, 658-659, 637 N.Y.S.2d 727, 728 (2d Dep’t 1999)

(citing Kulak v. Nationwide Mutual Ins. Co., 40 N.Y.2d 140, 386 N.Y.S.2d 87 (1976)).

                                                - 13 -
Therefore, the threshold question is whether expert testimony is even necessary. That

question, and the determination of admissibility of expert testimony “on a particular point

is a mixed question of law and fact, addressed primarily to the discretion of the trial

court, and such expert testimony will generally be permitted to offer an opinion on an

issue which involves professional or scientific knowledge or skill that is not within the

range of ordinary training or intelligence.” Id.

       The example offered by the Court of Appeals in Kulak is illustrative:

               While it might be suggested that an experienced trial
               attorney – or even an observant court attendant – who has
               had frequent occasion to observe the results of juries’
               deliberations in personal injury actions might be expected
               reliably to predict the outcome in a particular case, we
               know of no empirical support for such a conclusion.
               Moreover, any such result would be based on exposure
               rather than expertise, and would treat of subject matter
               calling for no special scientific or professional education,
               training or skill. Any experience advantage enjoyed by
               such witnesses would not establish the inability or
               incompetence of jurors, on the basis of their day-to-day
               experience and observation, to comprehend the issues, to
               evaluate the evidence, and finally, to estimate the likely
               outcome of a specific action.

Id., 40 N.Y.2d at 148, 386 N.Y.S.2d at 92. “Absent such inability or incompetence, the

opinions of experts, which intrude on the province of the jury to draw inferences and

conclusions, are both unnecessary and improper.” Id.

               2.      Federal Rule

       In determining whether to admit expert testimony, “the trial judge has broad

discretion in the matter of the admission or exclusion of expert evidence, and his action is

to be sustained unless manifestly erroneous.” United States v. Brown, 776 F.2d 387, 400

                                               - 14 -
(2d Cir. 1985) (quoting Salem v. United States Lines Co., 370 U.S. 31, 35 (1962). The

general principles for making the admissibility determination were succinctly

summarized by the Court in TC Systems, Inc. v. Town of Colonie, 213 F. Supp. 2d 171

(N.D.N.Y. 2002):

                  Fed. R. Evid. 702 governs the admissibility of expert
                  testimony and provides that if scientific, technical, or other
                  specialized knowledge will assist the trier of fact to
                  understand the evidence or to determine a fact in issue, a
                  witness qualified as an expert by knowledge, skill,
                  experience, training, or education, may testify thereto in the
                  form of an opinion or otherwise. Thus, the two basic
                  prerequisites of Rule 702 are: 1) that the witness be
                  qualified as an expert in scientific, technical or specialized
                  matters, see Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81
                  (2d Cir. 1997); and 2) the expert’s testimony will assist the
                  trier of fact to understand the evidence or to determine a
                  fact in issue. See United States v. 31-33 York Street,
                  930 F.2d 139, 141 (2d Cir. 1991).

                  Finally, the burden is on the proponent of the expert
                  testimony to establish its admissibility by a preponderance
                  of the evidence. Id. at 592. Nonetheless, the admissibility
                  of expert testimony should be viewed within the context of
                  the entire rules of evidence and the presumption of
                  admissibility of evidence. Borawick v. Shay, 68 F.3d 597,
                  610 (2d Cir. 1995). Indeed, “doubts about the usefulness of
                  an expert’s testimony should be resolved in favor of
                  admissibility.” Marmol v. Biro Mfg. Co., 1997 U.S. Dist.
                  LEXIS 21718, No. 93 CV 2659, 1997 WL 88854, at *4
                  (E.D.N.Y. Feb. 24, 1997).

Id. at 173-174.

                                                  - 15 -
       D.      Federal –vs- State Standards

               1.      The New York Rule

                       a.      Standard of Admissibility for Scientific Evidence and

       While Daubert and Kumho Tire serve as the standard in Federal Court, when a

party seeks to present novel scientific evidence, New York courts still favor the “old” test

set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Some courts in

New York have begun to recognize Daubert and Kumho Tire and have applied them in

certain circumstances. These cases will be discussed below.

       Frye, as compared to Daubert and Kumho Tire, “poses the more elemental

question of whether the accepted techniques, when properly performed, generate results

accepted as reliable within the scientific community generally.” People v. Wesley,

83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 100 (1994).

       In Wesley, the Court of Appeals noted the distinction between the rigidity of the

Frye rule and the liberal thrust of the Federal Rules of Civil Procedure and its general

approach of relaxing the traditional barriers to opinion. Id. n.2 at 423, 611 N.Y.S.2d at


       The Court of Appeals followed up Wesley with People v. Wernick, 89 N.Y.2d

111, 651 N.Y.S.2d 392 (1996), in which it continued to endorse Frye as the standard for

admissibility as opposed to Daubert. The Court of Appeals noted its endorsement and

application of the “well-recognized rule of Frye (citation omitted) . . . [which] requires

that expert testimony be based on a scientific principle or procedure which has been

‘sufficiently established to have gained general acceptance in the particular field in which

                                               - 16 -
it belongs.’” Id. at 115, 651 N.Y.S.2d at 394, quoting Wesley, 83 N.Y.2d at 423,

611 N.Y.S.2d at 100, quoting Frye, 293 F. at 1014.

        In keeping with the Court of Appeals, the Appellate Divisions have continued to

apply the Frye rule. For example, in Pauling v. Orentreich Medical Group, 14 A.D.3d

357, 787 N.Y.S.2d 311 (1st Dep’t 2005), the court strictly applied the Frye standard in

determining the sufficiency of the proof offered at a Frye hearing. In upholding the trial

court’s determination that the plaintiff’s expert in the medical malpractice case could not

testify, the court commented that:

                Plaintiff’s unpreserved claim that the trial court should
                have applied the more flexible standard for admitting
                expert testimony articulated in Daubert v Merrell Dow
                Pharms. (509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786
                [1993]) is without merit (see Wesley, 83 N.Y.2d at 423, n2;
                see also People v Lee, 96 N.Y.2d 157, 162, 750 N.E.2d 63,
                726 N.Y.S.2d 361 [2001]; People v Wernick, 89 N.Y.2d
                111, 115-116, 674 N.E.2d 322, 651 N.Y.S.2d 392 [1996]);
                in any event, the Daubert standard would not yield a
                different result (see Breast Implant Litigation, 11 F. Supp.
                2d 1217, supra; Meister v Medical Eng’g Corp., 347 U.S.
                App. D.C. 361, 267 F.3d 1123 [DC Cir 2001]).

Id. at 358, 787 N.Y.S.2d at 312.

        The Second Department has cited to both Daubert and Frye in several cases

involving expert testimony. See, e.g., Papa v. Sarnataro, 17 A.D.3d 430; 792 N.Y.S.2d

613 (2d Dep’t 2005); Hoffman v. Toys “R” Us-N.Y. Ltd. Partnership, 272 A.D.2d 296,

707 N.Y.S.2d 641 (2d Dep’t 2000). In so doing, the court commented that “although

federal courts use the broader Daubert test . . . instead of the Frye standard . . . in

connection with determining the admissibility of scientific expert testimony, it is

instructive to examine federal authority for purposes of discussion of accepted scientific

                                                 - 17 -
methodology. Parker v. Mobil Oil Corp., 16 A.D.3d 648, 651, 793 N.Y.S.2d 434, 437

(2d Dep’t 2005).

       In People v. Johnston, 273 A.D.2d 514, 709 N.Y.S.2d 230 (3d Dep’t), appeal

denied, 95 N.Y.2d 935, 721 N.Y.S.2d 612 (2000), the Third Department stated that after

the trial court determines that expert testimony is an appropriate aid to the jury’s

understanding and is based on scientific principles or procedures, it must then also

“confirm that the principles or procedures upon which the expert’s opinions will be based

have gained general acceptance in its specified field.” Id. at 517-518, 709 N.Y.S.2d at

235-236 (citing Wesley as authority). 2 Furthermore, the Third Department made clear

that despite Supreme Court’s opinion in Daubert, it will “continue to apply the stricter

‘general acceptance’ test of Frye in cases where the reliability and admissibility of

scientific evidence are in issue.” Id. at 518, 709 N.Y.S.2d at 236 (internal citations


       In People v. Roraback, 242 A.D.2d 400, 662 N.Y.S.2d 327 (3d Dep’t 1997), the

Third Department addressed the appropriate rule regarding the admission of expert

testimony. The Court observed that:

               using this method [Fourier Transform Infrared
               Spectrophotometer (“FTIR”), a machine that analyzes a
               material’s chemical composition], a forensic scientist can
               compare the major chemical component of a material based
               on its characteristic infrared spectrum against the infrared
               spectrum of a known standard in order to identify it . . . In
               [its] view, this comparison constitutes a scientific test.

 The Third Department’s most recent adherence to the Frye Rule came within the last
month since this outline was prepared. See People v. Cole, 2005 N.Y. App. Div. LEXIS
14374 (3d Dep’t Dec. 22, 2005).

                                                - 18 -
Id. at 405, 662 N.Y.S.2d at 331. In this instance, the court found that State Police

Forensic Scientist’s use of the FTIR for seven years did not establish its general

acceptance in the scientific community.

       The Third Department’s review of case law and literature pertaining to the subject

similarly did not reveal a general acceptance of the method. As such, the Third

Department concluded that the Supreme Court “lacked a proper basis to admit the

forensic scientist’s expert testimony without a preliminary inquiry into the procedure’s

reliability.” Id. at 405, 662 N.Y.S.2d at 331. The case was remitted to the trial court for

a post-trial Frye hearing to consider the reliability of FTIR analysis and report back on its

findings. Id. at 406, 662 N.Y.S.2d at 331.

       In People v. Wooten, 283 A.D.2d 931, 725 N.Y.S.2d 767, 769 (4th Dep’t 2001),

the Fourth Department agreed with the trial court’s denial of the defendant’s motion for a

Frye hearing concerning the use of a lumi- lite in the investigation of the crime scene

because the use of luminol is universally accepted. The Fourth Department noted that a

Frye hearing is required only with respect to “novel scientific evidence requiring a

determination as to its reliability.” Id. at 932, 725 N.Y.S.2d at 770 (citing Wesley,

83 N.Y.2d at 422, 611 N.Y.S.2d at 100). The Fourth Department also agreed with the

trial court’s decision to deny the defendant’s request for a Frye hearing on the

admissibility of evidence of blood spatter interpretation, for “[s]uch evidence has long

been deemed reliable.” People v. Barnes, 267 A.D.2d 1020, 1021, 701 N.Y.S.2d 201,

202 (4th Dep’t 1999). The above quoted language indicates Frye as the standard by

which to judge “novel scientific evidence.”

                                               - 19 -
       Similarly, the Fourth Department dismissed allegations that a group of plaintiffs

suffered from Multiple Chemical Sensitivity Syndrome. The reasoning behind the Fourth

Department’s dismissal echoed the Frye standard: the plaintiffs had “failed to adduce

evidence sufficient to raise an issue of fact whether ‘such a diagnosis has gained general

acceptance in the scientific community after defendants had made a prima facie showing

that it has not.’” Hammond, supra (emphasis added) (citing Oppenheim v. United

Charities, 266 A.D.2d 116, 698 N.Y.S.2d 144 (1st Dep’t 1999)).

       In another Fourth Department case (albeit a trial level court), Justice Kane

reaffirmed reliance on the Frye rule in Stiner v. A.P. Green Industries, Inc. (In re Eighth

Judicial District Asbestos Litigation), 1998 N.Y. Misc. LEXIS 722 (Sup. Ct. Erie County

Nov. 20, 1998). There, the court indicated that the legal standard for admissibility of

admittedly novel scientific opinion is clear and it is Frye: “the Frye rule is referred to

and followed by virtually every New York Court which has considered the issue in both

criminal and civil cases.” Stiner, 1998 N.Y. Misc. LEXIS 722 at *3. The court noted

that the Supreme Court replaced the Frye rule with its opinion in Daubert but that the

New York Court of Appeals had specifically declined to follow Daubert in Wesley,

instead relying upon the Frye rule. Id.

                       b.      Is a Frye Hearing Required?

       While the Frye rule continues to govern the admissibility of novel scientific

evidence in New York courts, New York courts are not required to hold a Frye hearing

when a party seeks to introduce “non- novel” expert opinion or evidence. See People v.

Persaud, 244 A.D.2d 577, 665 N.Y.S.2d 671 (2d Dep’t 1997); People v. Roraback,

                                                - 20 -
supra. In addition, Daubert and Kumho Tire have managed to lure at least some courts

away from the Frye rule in cases in which they have considered other forms of expert


       As stated previously, some courts have concluded that when presented with claims

of a dubious or previously unaccepted nature, a hearing is not required. For example, in

Oppenheim, supra, the First Department held that:

               The IAS properly precluded plaintiff’s expert from
               testifying with respect to Multiple Chemical Sensitivity
               Syndrome, without a hearing, on the ground that plaintiff
               failed to adduce evidence sufficient to raise an issue of fact
               as to whether such a diagnosis has gained a general
               acceptance in the scientific community after defendants
               have made a prima facie showing that it has not (see Frank
               v. State of New York, 972 F. Supp. 130; Collins v. Welch,
               178 Misc. 2d 107, 678 N.Y.S.2d 444). There being no
               proof of other injuries caused by defendants’ alleged
               negligence, the complaint was properly dismissed.

266 A.D.2d at 116, 698 N.Y.S.2d at 144 (emphasis added). Similarly, in Hammond, the

Appellate Division, Fourth Department, held that:

               Plaintiffs allege that, as a result of their initial exposure to
               toxic materials, they have recurring symptoms in response
               to common chemical compounds, a condition referred to as
               Multiple Chemical Sensitivity (MCS) Syndrome. Supreme
               Court should have granted those parts of the motions of
               Alenka and USM and properly granted those parts of the
               motions of Giruzzi and Raulli seeking summary judgment
               dismissing the complaints insofar as they allege that
               plaintiffs suffer from MCS Syndrome. Plaintiffs failed to
               adduce evidence sufficient to raise an issue of fact whether
               “such a diagnosis has gained general acceptance in the
               scientific community after defendants had made a prima
               facie showing that it has not.”

Id., 269 A.D.2d at 774, 703 N.Y.S.2d at 335 (citations omitted).

                                                - 21 -
       In People v. Roraback, supra (discussed in the preceding section), the People

sought to introduce dog-tracking evidence obtained with the aid of a trained canine, and

in the court’s view, “there [was] no scientific principle or procedure at issue . . . [because]

the use of a trained canine is an investigative rather than a scientific procedure.” Id. at

404-405, 662 N.Y.S.2d at 330-331, citing People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d

388 1054 (1990), cert. denied, 501 U.S. 1219 (1991). The court made reference to

Daubert recognizing that it had replaced the Frye general acceptance test in the Federal

Courts as the standard of admissibility of scientific evidence; however, the Third

Department did not apply Daubert as an alternative to Frye regarding the dog-tracking


       In Wahl v. American Honda Motor Co., 181 Misc. 2d 396, 693 N.Y.S.2d 875

(Sup. Ct. Suffolk County 1999), the trial court held that an engineer’s expert opinion, in

order to be admissible on the issue of the defectiveness of a three-wheeled all-terrain

vehicle, had to pass muster under the multi- factor analysis of Daubert. The court found

the engineer’s opinion admissible because it was based on technical rather than novel

scientific knowledge.

       In Clemente v. Blumenberg, 183 Misc. 2d 923, 705 N.Y.S.2d 792 (Sup. Ct.

Richmond County 1999), the court advanced a thoughtful hybrid opinion in which it

applied both Frye and Daubert. The court noted that the New York Court of Appeals has

not embraced the Daubert standard of scientific reliability, but instead has retained the

Frye general acceptance test. Id. at 932, 705 N.Y.S.2d at 799. Nevertheless, the court

applied both standards and concluded as follows:

                                                - 22 -
               [The expert] may not render an opinion based upon his
               report and testimony at the Frye hearing because the source
               of the data and methodology employed . . . in reaching [the
               expert’s] conclusion is not generally accepted in the
               relevant scientific or technical community. Moreover,
               applying the Daubert/Kumho factors to the proposed
               [expert] opinion, this court finds that the data and the
               methodology employed by the biomechanical engineer are
               not scientifically or technically valid. Therefore, such
               testimony is not reliable and may not be presented to the

Id. at 934, 705 N.Y.S.2d at 800.

       In an interesting commentary, the court in Clemente expressed its concern that

Frye may have lost its ability to keep pace with the speed at which science travels today

as compared to 1923 when Frye was written. “Breakthroughs in science which are valid

may be relevant to a case before the courts. Waiting for the scientific community to

‘generally accept’ a novel theory which is otherwise valid and reliable as evidence may

deny a litigant justice before the court.” Id. at 932, 705 N.Y.S.2d at 799. The court

pointed out that “[t]here may be more than one valid scientific or technical opinion on a

particular point which may be generally accepted by the rele vant scientific community.

The opinions presented need not be the majority opinion. There may be valid minority

opinions which are scientifically valid which may rightfully be presented to the trier of

fact.” Id. at 933-934, 705 N.Y.S.2d at 800.

       The lesson to be learned from the cases cited above is simple and direct in theory.

Namely, a Frye hearing is not required if the scientific tests at issue are not novel and

their reliability has been generally accepted by the scientific community. People v.

Valez, 298 A.D.2d 213, 213, 748 N.Y.S.2d 554, 555 (1st Dep’t), appeal denied,

                                               - 23 -
99 N.Y.2d 565, 754 N.Y.S.2d 218 (2002). Whether the trial practitioner can convince the

court of this rule is, of course, another issue entirely.

                2.      The Daubert Rule

                        a.      Standard of Admissibility for Scientific Evidence and

        The United States Supreme Court, in Daubert, held that the Federal Rules of Civil

Procedure had superseded the test for admissibility set forth in Frye and applied those

basic rules to expert scientific testimony. The Court held that a trial court judge was

charged with the responsibility of a gatekeeper with respect to the admissibility of expert

testimony, stating that:

                Faced with a proffer of expert testimony . . . the trial judge
                must determine at the outset, pursuant to Rule 104(a),
                whether the expert is proposing to testify to (1) scientific
                knowledge that (2) will assist the trier of fact to understand
                or determine a fact in issue. This entails a preliminary
                assessment of whether the reasoning or methodology
                underlying the testimony is scientifically valid.

Id., 509 U.S. at 593.

        The trial court has to consider various factors in determining whether an expert

should be allowed to render an opinion in a case. Among the factors listed by the

Daubert court were testing, peer review, error rates, and acceptability in the relevant

scientific community.

        Most importantly, the Supreme Court, in Daubert, reinforced the trial court’s

obligation to test the admissibility of expert opinion testimony. Although the Court held

that the admissibility of expert testimony was within the trial court’s discretion, the Court

also indicated that abdication of that responsibility constituted an abuse of that discretion.

                                                  - 24 -
       In Daubert, application of the new standard resulted in the exclusion of expert

testimony that opined that Bendicton, a morning sickness drug, caused birth defects in

newborns. The Supreme Court held that the scientific testimony admitted at trial did not

reflect the consensus in the scientific community as to the cause of birth defects. On

remand, the Ninth Circuit Court of Appeals held that scientists “simply do not know how

teratogens . . . do their damage. The biological chain of events cannot be presently

reconstructed.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1314 (9th

Cir. 1995).

       In addition, subsequent to Daubert, the Court expanded the trial court’s

gatekeeping function to expert testimony that was not scientific in nature, including

testimony that was technical in nature or any other specialized field on knowledge. Thus,

in March 1999, the Supreme Court in Kumho Tire held that a trial court had the

obligation to insure the reliability of expert testimony of technical issues as well as

scientific issues. The reliability test is flexible and a trial court may consider one or more

of the specific Daubert factors when determining the reliability of proffered technical

testimony. To determine whether a proffered expert’s testimony is reliable, the court

must focus on the methodology used to draw a conclusion and not on the conclusion

itself. In Daubert, the Supreme Court enunciated several non-exclusive factors which

may be considered, such as: (1) whether the expert’s conclusions have been tested or are

testable; (2) whether the expert’s conclusions have been published and subjected to peer

review; (3) whether the scientific technique has a potential on known error rate; and

(4) whether the expert’s conclusions have gained general acceptance within the scientific

                                                - 25 -
community. These factors are “helpful, [but are] not definitive.” Kumho Tire, 526 U.S.

at 150. Indeed, “the factors identified in Daubert may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the expert’s particular

expertise, and the subject of his testimony.” Id.

       As a result, Federal Courts, since Daubert, have taken a more active role in

determining the admissibility of opinion testimony by expert witnesses no matter what

the subject matter of the testimony.

                       b.      Is a Daubert Hearing Required?

       Fed. R. Evid. 104 specifically authorizes and directs Federal District Courts to

preliminarily determine questions concerning the qualifications of any person to be a

witness and to conduct such hearings as are necessary to make that determination. As

more fully described in the preceding section, the Supreme Court in Daubert held that

Fed. R. Evid. 702 requires a trial court to determine (i) whether the reasoning or

methodology underlying the testimony is scientifically valid, and (ii) whether the

reasoning or methodology can properly be applied to the facts in issue. Whether to

conduct a hearing to determine these threshold questions must be determined on a case by

case basis.

       The first prong of the Daubert test is a reliability inquiry which involves four

factors: (1) whether a theory or technique can be (or has been) tested; (2) whether it has

been subjected to peer review and publication; (3) whether in respect to a particular

technique, there is a high known or potential rate of error and whether there are standards

controlling the technique's operation; and (4) whether the theory or technique enjoys

                                                - 26 -
“general acceptance” within a “relevant scientific community.” The second Daubert

prong — the relevance or fit of the expert testimony — requires the court to determine

whether the expert’s opinions “fit the facts of the case at hand.” Fox v. Cheminova, Inc.,

387 F. Supp. 2d 160, 175 (E.D.N.Y. 2005) (citation omitted).

       The Court in Kumho Tire granted to the District Courts wide discretion in

determining how precisely to determine whether to admit proffered expert testimony. As

the court in Berk v. St. Vincent’s Hospital & Med. Center, 380 F. Supp. 2d 334 (S.D.N.Y.

2005) explained, although “in general, Rule 104(a) pretrial evidentiary hearings are

‘highly desirable’ because they allow parties to present expert evidence and conduct

cross-examination of the proposed expert,” Colon [ex rel. Molina v. Bic USA, Inc.],

199 F. Supp. 2d at 69 (quoting Borawick v. Shay, 68 F.3d 597, 608 (2d Cir. 1995)),

‘nothing in Daubert, or any other Supreme Court or Second Circuit case, mandates that

the district hold a Daubert hearing before ruling on the admissibility of expert testimony,

even when such ruling is dispositive of a summary judgment motion.’” Id. at 351

(citation omitted). See generally Derienzao v. Trek Bicycle Corp., 376 F. Supp. 2d 537,

553 (S.D.N.Y. 2005) (permitting court to make Daubert determination on papers

including deposition testimony and affidavits).

                                              - 27 -
Honorable ______
United States Magistrate Judge
________ District of New York
United States Courthouse
________, New York

RE:    Smith v. Jones
       Civil Action No. CV-97-1804 (ABC)

Dear Magistrate Judge _____:

         I represent the defendant in the above-referenced matter and wish to apprise the
Court of a problem that has developed with the depositions of plaintiff's experts previously
scheduled for this Thursday, December 11, 1997. Plaintiff has designated Dr. A as his
expert cardiologist and Dr. B as his expert neurologist. The problem that has arisen is
Dr. B’s demand that he be paid the startling sum of Six Thousand Dollars ($6,000.00) for
his testimony.

        We understand that experts are professionals and are entitled to reasonable
compensation for their time. In that regard, Dr. A has advised that he will charge $400.00
per hour and we have agreed to pay that sum. Defendant’s expert, C is scheduled to be
deposed on December 19, 1997 in Boca Raton, Florida, and plaintiff has agreed to pay Dr. C
his requested fee of $1,500.00.

       I respectfully submit that the proposed fee requested by Dr. B is absurd and cannot
be considered under any circumstance to be the type of “reasonable fee” contemplated by
Fed. R. Civ. P. 26(b)(4)(C). Plaintiff's counsel has requested that Dr. B reduce his fee to a
more reasonable level, but Dr. B has apparently refused to do so. Enclosed is a letter that I
received from plaintiff's counsel late last week in which the Six Thousand Dollar fee is

        Plaintiff's counsel advises that he is still attempting to resolve the matter directly
with Dr. B, but we believe that it is necessary to obtain the Court’s guidance on this issue.
We request that the Court set a reasonable fee to be paid to Dr. B for what should be, at the
most, two hours of his time at his own office. In the absence of some assistance from the
Court, we propose to formally move to preclude the use of Dr. B as an expert in the case.

        We are available for a telephone conference at a mutually agreeable time if the Court
deems it necessary. Thank you in advance for your consideration and attention to this

                                      Very truly yours,

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