PETERS-LAWSTON, ESQ. Attorney for Plaintiffs.
FLOMENHAFT LAW FIRM, PLLC Trial Counsel for Plaintiffs
Michael Flomenhaft, Esq.
FLEISCHNER, FINO, ESQS. Attorneys for Dependants Matthew I.
upon the papers submitted and the argument of counsel, it is
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
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
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.
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.
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
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.
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.
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 , (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 ; People v. Wesley, 83
N.Y.2d 417, 611 N.Y.S.2d 97');">611 N.Y.S.2d 97 ).
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 ...