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.
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
(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
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
(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
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
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
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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
NEW YORK STATE AND F EDERAL COURTS § 7:5 (2001).
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
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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).
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“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)).
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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
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(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
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.
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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
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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
) 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 ; People v Wernick, 89 N.Y.2d
111, 115-116, 674 N.E.2d 322, 651 N.Y.S.2d 392 );
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
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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).
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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.”
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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,
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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).
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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
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:
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[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,
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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
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.
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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
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
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).
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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
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,