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Brouard v. Convery

Supreme Court, Suffolk County

February 9, 2018

Denise Brouard and GERALD BROUARD, Plaintiffs,
James Convery, PV HOLDING CORP., and AVIS RENT A CAR SYSTEM, INC., Defendants.

          BONNIE PETERS-LAWSTON, ESQ. Attorney for Plaintiffs.

          FLOMENHAFT LAW FIRM, PLLC Trial Counsel for Plaintiffs Michael Flomenhaft, Esq.

          WHITE, FLEISCHNER, FINO, ESQS. Attorneys for Dependants Matthew I. Toker, Esq.

          James Hudson, J.

         Based upon the papers submitted and the argument of counsel, it is

         ORDERED that the Plaintiffs' motion (seq. no.:12) for the Court to take judicial notice of certain technology and for an order of preclusion is denied. Defendants cross-motion (seq. no.:13) for an order of preclusion concerning said technology is granted.

         The matter at hand is an action for damages sounding in negligence. It arises from an automobile accident which occurred on December 14th, 2004 at an intersection in Stony Brook, County of Suffolk, State of New York. Plaintiffs Denise Brouard and Gerard Brouard, (hereinafter referred to as "the Brouards") allege, inter alia, that the Defendant, James Convery, was making a left-hand turn with his vehicle when he struck the front of Plaintiff Denise Brouard's car, causing mild traumatic brain injury ("MTBI"), as well as neck, back, shoulder and knee injuries.

         Plaintiffs now move for an order from this Court for various relief: (1) to take judicial notice of the general acceptance and acceptability of technology known as Diffusion Tensor Imaging ("DTI") pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); and (2) to preclude Defendant from contesting any expert testimony put forth by Plaintiffs in this regard.

         Defendants oppose the motion and cross-move pursuant to CPLR §4532-a for relief which consists of the following: (1) an order precluding certain neuroradiological studies including DTI to diagnose minor traumatic brain injury ("TBI") based upon the Frye standard; or (2) to conduct a Frye hearing to determine the admissibility of methods, technologies and theories for determining minor traumatic brain injury allegations. Alternatively, the Defendants seek an order of preclusion on the basis that Plaintiffs failed to respond to a prior Court Order directing disclosure and for failing to comply with CPLR §4532-a. If the Court declines to grant an order of preclusion, Defendants request an order directing Plaintiffs to disclose the actual data and information regarding the subject neuroradiological studies which Plaintiffs' experts relied upon in coming to their conclusions.

         In the event that the above requests for relief are not viewed with favor by the Court, the Defendants ask that the Court hold a Parker hearing on the question of the reliability of the advanced radiological studies techniques and methods utilized by Plaintiffs' experts and whether there is sufficient probative value to allow its consideration by the jury.

         The facts which have prompted the Plaintiffs to make the above referenced motion are that methodology and technology utilizing DTI was used to examine Plaintiff in 2008 and 2014. Plaintiffs claim that this specific technology enjoys general acceptance by the scientific and medical community and therefore passes the long-recognized rule contained in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (D. C. Cir. 1923). Given the status of DTI, Plaintiffs contend that the Defense must be precluded from adducing any expert testimony claiming that any MRI using DTI technology is not generally accepted by the scientific/medical community to investigate mild TBI's.

         Oral argument was held before this Court between the two very capable and eloquent attorneys, Michael Flomenhaft, Esq. for the Plaintiffs and Matthew I. Toker, Esq. for the Defendants. The Court would be remiss if it did not thank learned counsel for their scholarly advocacy.

         The march of science is inexorable. This has created a challenge for trial courts in deciding what "scientific" evidence is truly worthy of the name. How is a Judge, a presumed expert in jurisprudence, but a lay person in science, to make such a determination? It is the Court's solemn duty to winnow the proof, finding and separating the modern day alchemy from chemistry as a metallurgist would remove dross from gold. In the ninety-five years since Frye was handed down to us, case law and medicine have both developed. Other jurisdictions have abandoned the Frye analysis and embraced the reasoning in Daubert v. Merrell Dow Pharmaceuticals, (509 U.S. 579 [1993], (see FRE Rule 702]). New York, however has continued to follow the Frye rule, wisely leaving innovation to scientists and legislators (e.g. Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584');">824 N.Y.S.2d 584 [2006]; People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97');">611 N.Y.S.2d 97 [1994]).

         As Frye evolved, its progeny added the refinement that the term "general acceptance" did not refer to a mere head-count of experts. Instead, it became clear that there should be a clinical (not just scientific) consensus, and that the proper foundation be laid as well as acceptable methods employed in each particular case (Parker v. Mobil Oil Corp., supra, Sadek v. Westley, 117 A.D.3d 193');">117 A.D.3d 193 [1st Dept. 2014] 986 N.Y.S.2d 25aff'd27 ...

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