Recent outcomes in New York state underscore the need for defendants to challenge plaintiff’s novel causation theories and pursue a Frye hearing when applicable, particularly in the medical malpractice context when plaintiffs fail to establish that causation is supported by generally accepted scientific principles.
Plaintiff’s expert’s testimony on theory of causation that polymicrogyria (“PMG”), a brain surface abnormality, can be caused by post-delivery events, was found inadmissible as not generally accepted with the medical community under the Frye standard, following a Frye hearing. Washington v. Todd (Sup. Queens November 13, 2019).
Plaintiffs alleged the physician defendants failed to provide appropriate prenatal and obstetrical care during plaintiff mother’s pregnancy with infant-plaintiff, born prematurely at 23-24 weeks of gestation, resulting in the diagnosis of PMG ten years later. The Frye rule, which New York courts follow, is that expert testimony based on scientific principle or procedures is admissible only after the principle or procedure has “gained general acceptance” in its specialized field, and plaintiff bears the burden of establishing general acceptance.
The Washington Court held a Frye hearing. All experts agreed PMG can be caused by genetic abnormalities, congenital abnormalities and/or ischemic injury to the immature brain on an intrauterine basis and PMG ordinarily occurs before birth. However, plaintiffs’ expert alleged PMG was the result of white matter injury associated with extreme prematurity and its complications and that infant plaintiff’s brain hemorrhage caused both PMG and periventricular leukomalacia. Plaintiffs’ expert opined infant-plaintiff’s neurological problems were due to the fact he was born extremely prematurely, had significant complications during and post-delivery, and because PMG is caused by injury to the cells that are deep in the brain, the same effect can occur in an infant child after birth.
Defendants’ expert refuted plaintiffs’ allegations, opining neither PMG or PVL is caused by premature birth; instead, they argued PMG occurs prior to birth as a result of malformation of the brain in utero, and cannot be caused by conditions developing after birth. The defendants’ expert asserted there was no scientific basis for plaintiffs’ expert’s theory. Notably, plaintiffs’ expert acknowledged there was no general acceptance within the medical scientific community and field of pediatric neurology of a causative association between extreme prematurity and PMG.
Quoting Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63 (2d Dept. 2011), the Court held when “an expert seeks to introduce a novel theory of medical causation without relying on a novel test or technique, the proper inquiry begins with whether the opinion is properly founded on generally accepted methodology, rather than whether the causal theory is generally accepted in the relevant scientific community”. In light of plaintiff’s expert’s own admission there was a scarcity of literature to support plaintiff’s theory, and the concession that there was no general acceptance of the causation theory, the Court held plaintiff’s expert’s testimony was inadmissible.
