Practice point: Typically, a qualified expert's opinion that plaintiff's injuries were caused by a deviation from relevant standards would preclude a grant of summary judgment. However, where the expert's ultimate assertions are speculative or without evidentiary foundation, the opinion is of no probative force and is insufficient to withstand summary judgment.
Applying the test in Frye v United States, New York courts permit expert testimony based on scientific principles, procedures or theories only after they have gained general acceptance in the relevant scientific field. The burden of proving general acceptance is on the proponent of the disputed expert testimony.
Here, the Appellate Division affirmed the motion court's finding that plaintiff failed to submit evidence sufficient to raise a triable issue of fact that his experts' opinions were generally accepted in the medical community. Although plaintiff submitted numerous articles in medical literature concerning adverse reactions to Lipitor and Azithromycin, none of the articles linked atrioventricular (AV) heart block to the drugs prescribed by defendant. Biological plausibility and convergence in time between the administration of the drugs and the AV heart block diagnosis are insufficient, where no scientific evidence of causation was provided. The Appellate Division noted that observational studies or case reports are not generally accepted in the scientific community on questions of causation.
Student note: The motion to renew was denied because plaintiff failed to submit new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221 [e][2]. The additional case reports did not raise an issue concerning the general acceptance of plaintiff's experts' causation theory in the medical community. Denial of the motion to reargue is not appealable.
Case: Pullman v. Silverman, NY Slip Op 01707 (1st Dept. 2015)
Here is the decision.
Monday's issue: Commencing a foreclosure action.
