Herzfeld & Rubin, P.C.- Publications

Products Liability *'Gatekeeping' Gems Give Guidance* By Michael Hoenig - New York Law Journal - July 11, 2005	Print article

This article returns to the subject of judicial "gatekeeping," i.e., the judge's task to assure that expert testimony is not only relevant but reliable.

Since many prior decisions, both state and federal, have been elaborated in prior columns,¹ including those dealing with gatekeeping experts' use of unreliable hearsay literature,² the reader is presumed to be familiar with past developments.

Here we move forward to report on two recent "gatekeeping" decisions by New York state judges that offer considerable guidance on our challenging subject.

Two Cases Give Guidance

The first is DeMeyer v. Advantage Auto,³ issued on June 27 by Supreme Court Justice Raymond E. Cornelius of Rochester. This decision involving an occupational asbestos exposure claim focuses on whether New York's Frye test would allow admission of certain causation opinions by plaintiff's experts. Justice Cornelius reviews New York law, identifies and answers several important procedural questions and elaborates on why there should be a Frye hearing before trial. The second decision surveyed in this article is Ficic v. State Farm Fire & Casualty Co.,⁴ by Supreme Court Justice Joseph J. Maltese of Staten Island which was published in the New York Law Journal on April 15 at p. 20. Justice Maltese elaborates why testimony of an expert witness rendered at trial was struck during post-trial motions causing a judgment to be set aside and a verdict to be directed in favor of the party who lost at trial.

In DeMeyer, the decedent had malignant mesothelioma allegedly resulting from occupational exposure to asbestos. From 1967 to 1982 he was, along with other jobs, a machine operator at Garlock Inc. Thereafter, he was owner and operator of a business called "Tire Rack" where he worked as an automotive mechanic including brake repairs. As often typical in asbestos litigation, Mr. DeMeyer sued a slew of defendants associated with the manufacture, sale or handling of asbestos products. He also sued automobile manufacturers such as DaimlerChrysler Corp., General Motors and Ford Motor Co. alleging asbestos exposure during brake repairs. Mr. DeMeyer died and his wife was substituted as plaintiff.

Pursuant to an asbestos litigation case management Order, plaintiff provided expert witness disclosure including a report from two medical doctors: Dr. Moline, a board-certified internist specializing in occupational health, and Dr. Abraham, board-certified by the National Board of Medical Examiners and specializing in anatomic pathology. Each expert concluded that decedent died from mesothelioma resulting from occupational asbestos exposure. Neither physician attempted to distinguish between the decedent's exposure while working for Garlock as opposed to the brake work in his own business.

Expert's Affidavit

DaimlerChrysler Corp. challenged the experts' opinions as scientifically unreliable via a motion in limine to preclude the physicians' opinions at trial. Defendant submitted the affidavit of Dr. Mary Jane Teta, a degreed expert in chronic disease epidemiology with over 25 years experience specializing in occupational and environmental epidemiology studies and regulatory risk assessment. She had published a number of cancer epidemiology studies including some dealing with a causal relationship between asbestos and cancer.

Dr. Teta explained that scientific and medical communities require epidemiological studies to determine causation of a particular disease. Epidemiology studies disease patterns in humans by determining the relevative risk of developing a condition from exposure to a substance. Studies usually follow one of two designs — cohort studies or case control studies. Although some studies demonstrated an elevated risk of mesothelioma resulting from asbestos exposure in certain occupations, there were none for automobile mechanics working on friction products such as brakes.

On the contrary, 17 epidemiological studies involving garage mechanics showed no evidence of an increased risk for developing mesothelioma as a result of brake work. Dr. Teta emphasized the importance of distinguishing between occupational groups because work on brake friction products predominantly involves chrysotile short-fiber asbestos while other products contain amphibole fibers. In essence, the products are different. Because no epidemiological studies demonstrate causation in regard to brake mechanics, neither of plaintiff's expert's opinions are scientifically reliable. Case reports and case studies, alone, are not an accepted method for determining medical causation without epidemiological studies. Defendant also relied on the Second Department's decision in Parker v. Mobil Oil Corp.,⁵ dealing with a leukemia allegedly caused by occupational exposure to benzene, where the Appellate Division ruled the experts' causation opinions should be precluded because of the scientific unreliability of their methodology.

Justice Cornelius observed that, under Frye, courts, in effect, "perform a gatekeeper function by making an initial determination as to whether or not the basis of expert opinion has gained sufficient general acceptance in a particular field in order to be considered reliable and to justify admission at trial."⁶ Many Frye decisions involve issues of medical causation. Gatekeeping in federal courts follows the Daubert approach seeking to determine whether the proposed expert testimony is both relevant and reliable. Under the Frye standard, a court is only required to conduct an inquiry as to general acceptance where a party seeks to rely upon novel scientific, technical or other concepts involving expertise. "[I]f a principle, theory or methodology forming the basis for an expert opinion has been generally accepted in the relevant scientific community, it would not be novel, and therefore, not require a hearing or other inquiry by the court." Changing conditions, however, could justify reconsideration of the general acceptance question despite a prior court determination.

Proof Burdens

Justice Cornelius also offered the following guidance on the process of such gatekeeping determinations:

(1) The party challenging expert testimony should make a prima facie showing, in the first instance, that a particular concept, principle or methodology has not been generally accepted in the relevant scientific community, and therefore, represents a novel theory.

(2) Once the prima facie showing of non-reliability is made, the burden shifts to the proponent of such evidence to establish general acceptance.

(3) The appropriate standard for this burden of proof in civil cases (a question seemingly not addressed by New York courts to date) should be the usual "fair preponderance of the credible evidence" standard.

(4) As to the type of evidence and the manner by which such evidence may be considered by the court on the "general acceptance" issue, Justice Cornelius found a useful analysis in the steps taken in People v. Fortrin,⁷ involving a psychiatrist's testimony on the so-called "parental alienation syndrome."

Occasionally, reliability is established by the concept being "so notorious or obvious that judicial notice should be taken of its general acceptance" (e.g., the law of gravity). Next, reference should be made to legal writings and opinions, within this state and other jurisdictions (e.g., today there is no question that court consideration of DNA evidence is generally accepted). In Fortrin there was no consensus from the foregoing types of sources, so a Frye evidentiary hearing was ordered.

In applying the foregoing steps, Justice Cornelius addressed elements of plaintiff's showing in opposition to the motion in limine. Although plaintiff referred to three unreported New York decisions permitting medical causation opinions notwithstanding absence of epidemiological studies relating specifically to brake mechanics, each was not deemed persuasive. One issued because of a belated motion to preclude; in another the trial judge simply did not wish to address the issue; and, in all three, none of the judges undertook a "detailed or careful analysis of evidence of general acceptance, but rather, summarily denied the applications to preclude expert opinion . . . ." Moreover, most of the other legal opinions by both sides on the necessity for epidemiological studies were decided under Daubert where the role of the judge as gatekeeper is different. Under Frye, a consensus in the scientific community as to reliability is the key.⁸ Justice Cornelius declined to apply Daubert to the facts of this case.⁹

Purported scientific literature relied on by plaintiff was countered by a supplemental affidavit from Dr. Teta. She reiterated that case reports may be useful for generating hypotheses but epidemiological studies are "the best tool available to assess cause and effect relationships." Thus, opinions such as the ones advanced by plaintiff's experts, without consideration of epidemiological studies, "would not be accepted within the scientific community." Based on the uncontroverted sworn affidavits of Dr. Teta, the court "has no means by which to make a finding of general acceptance based simply on a review of the voluminous documents" submitted by plaintiff. Because there are questions of fact which cannot be resolved by the motion papers, the court directed that a Frye evidentiary hearing be held before trial. Plaintiff will bear the burden of proof, by a fair preponderance of the credible evidence, to establish general acceptance of the methodologies employed by her experts in reaching their causation opinions. This should be proved by producing sworn witnesses, subject to cross examination, and introducing documentary evidence after establishing a sufficient foundation.

Fire Cause

In Ficic v. State Farm Fire & Casualty Co., the battle was over an insurance claim for "total loss" fire damage to a used Cadillac which burst into flames after being pulled over onto a shoulder of the Staten Island Expressway. The carrier refused to pay the stipulated $34,000 value because it believed the claim to be fraudulent. Defendant alleged the vehicle was intentionally burned to obtain the insurance proceeds. A jury trial ensued before Justice Stephen J. Maltese. Plaintiff's case was crisp: the showing of insurable interest in the vehicle destroyed by fire and her brother's authorized use. The defendant insurance company presented one witness, a "consulting engineer" with a Bachelor of Science degree in "nuclear science." However, the witness was not a degreed engineer or a licensed professional engineer. He said he attended a class in fire protection engineering at Polytechnic Institute of New York; attended courses offered by General Motors, Chrysler and Ford; grew up around cars; and was a New York State Motor Vehicle Inspector authorized to inspect vehicles for emission levels and mechanical inspections. However, plaintiff did not conduct a voir dire of his qualifications and did not object. Thus, the witness was permitted to give opinion testimony in the field of auto mechanics and fire investigation.

He had inspected the vehicle two weeks after the fire and took 13 photographs which were admitted into evidence without objection. The expert could not detect a point of origin or defect that caused the fire. He made no analysis of what fuses may have blown, conducted no tests nor sent any parts out for testing. He found no combustible material in the vehicle and could not say how the fire started or what materials were used to ignite the fire. He never reviewed the Fire Department report (which did not find arson). He could not rule out that the fire was caused "accidentally." Most importantly, he did not state that the fire was intentionally set. Instead, he characterized the fire as "suspicious." Finding no electrical defects, wiring problems, or leakage in the fuel system, the expert did, however, determine from the interior burn patterns that the fire originated on the floor behind the driver's seat. Defendant's attorney, in summation, argued that these findings led to only one thing, arson. The jury heard no testimony to refute or question the opinion that the fire was "suspicious." Five of the six jurors found that plaintiff had the fire intentionally started.

Plaintiff moved to set aside the jury verdict as against the weight of the evidence. Following his review of the circumstances, Justice Maltese struck the opinion of the carrier's expert and consequently set the verdict aside. The court discerned the critical issues to be whether the opinion that the fire was "suspicious" was a "generally accepted" opinion utilized by the fire investigative community and whether such opinion evidence sufficiently supported the jury's verdict. The court's answer to both questions was "No."

The purpose of an expert witness is to render an opinion that assists the judge or jury with information about a fact in issue concerning science, technology or other specialized knowledge not ordinarily known by the triers of fact. In New York courts the opinions should be based upon sound principles and methods generally accepted within the expert's field or discipline. Here the expert's methodology was "a form of inductive reasoning to prove arson." His opinion was never prefaced with a statement to a "reasonable degree of engineering," "fire safety certainty," or even "probability" that the fire was intentionally set.¹⁰

Gatekeeper Decides

The trial judge is the "ultimate gatekeeper" of admissible testimony. Here the expert's opinion was "equivocal" in determining whether the fire was accidental or set intentionally. His opinion was based on conjecture and speculation. Additionally, the court expressed skepticism that the opinion, "suspicious," was a proper opinion because "suspicion should have been the moving force of the investigation rather than conclusory assertion."¹¹ The court observed that the witness had listed himself as a member of the Association of Arson Investigators (IAAI). This organization's Web site advises that members use the National Fire Protection Association 921 Guide For Fire and Explosion Investigations.

The court's review of that Guide revealed the following: "Use of the term suspicious is not an accurate description of a fire cause. Mere suspicion is not an acceptable level of proof for making a determination of cause . . . and should be avoided. Such fires should be classified as undetermined (emphasis by court)." Other sections counseled against opinions where the level was only "possible" or "suspected." Again, in such cases the opinion should be expressed as "undetermined."

As prescribed, after reviewing this NFPA Guide material, the court forwarded copy to both counsel and requested that they or their experts comment by way of supplemental affidavits on the motion. In a footnote, the court cited Appellate Division, First Department Justice George D. Marlow's highly respected article in the 1998 St. John's Law Review dealing with ethical implications of judge-acquired information.¹² Defense counsel responded saying merely that such material was dehors the record, was not considered by the jury and should not be considered by the court in the post-trial motion. Plaintiff submitted an affidavit by a fire investigator, himself a member of the association using the NFPA Guide, stating that an opinion that the fire was "suspicious" was not a recognized classification of a fire cause.

Justice Maltese found that the trial expert's erroneous opinion was not recognized by the expert's peers and misled the jury into making an irrational decision that a suspicious fire is proof of an intentionally set fire. Thus, the verdict could not stand. Justice Maltese observed that it is certainly more efficient to screen out false expert testimony before the witness testifies. However, "on rare occasions the court must do so after such testimony by striking the testimony in order to preserve the integrity of the court system." With the expert's testimony struck, plaintiff's proof prevailed.

Conclusion

Each decision deserves to be read by counsel preparing to present or challenge expert testimony. Justice Cornelius in DeMeyer reviews the role of Frye in New York and answers some practical procedural and evidentiary questions about the gatekeeping process and conduct of Frye hearings. DeMeyer also illustrates the value of expert affidavits regarding aspects of the "general acceptance" inquiry, especially when literature and court decisions issued elsewhere are submitted as evidence of "general acceptance." Justice Maltese's decision in Ficic likewise illustrates the importance of the judge's gatekeeping role — a responsibility that, occasionally, requires decisive action during the post-trial phase.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________
1.See Hoenig, "'Gatekeeping' Experts: 'Daubert' Boils and 'Frye' Sizzles," New York Law Journal, April 11, 2005, p. 3; Hoenig, "Unreliable Causation Proof Dooms Claims," NYLJ, Jan. 10, 2005, p. 3; "Report Disputes Radiology Experts' Opinions," NYLJ Sept. 13, 2004, p. 3; "Evaluating the Experts: Reliability, Qualifications and Methodology," NYLJ, Aug. 9, 2004, p. 3; "'Gatekeeping' of Experts: The New 'Compurgators,'" NYLJ, July 12, 2004, p. 3; "Expert Reliability Issues," NYLJ, June 14, 2004, p. 3

2. See Hoenig, "Experts' Reliance on 'Unreliable' Hearsay," NYLJ, Nov. 12, 2002, p. 3; See also our columns in the NYLJ on Experts and Professionally Reliable Hearsay dated, respectively, April 11, June 18, July 8 and Aug. 12, 2002, each article commencing at p. 3.
3. 2005 NY Slip Op 25252 (Sup. Ct. Wayne Co. June 27, 2005) (Justice Raymond E. Cornelius).

4. 2005 NY Slip Op 25153 (Sup. Ct. Richmond County) (Justice Joseph J. Maltese), NYLJ, April 15, 2005, at p. 20 .
5. 16 AD 3d 648 (2d Dept. 2005). The Parker decision was discussed in our April 11 column, "'Gatekeeping' Experts: 'Daubert' Boils and 'Frye' Sizzles," supra n. 1.

6. DeMeyer, 2005 NY Slip Op 25252, at p. 5.
7. 184 Misc. 2d 10 (2000).
8. DeMeyer, Slip Op. at pp. 8-9.
9. Id. at p. 12.
10. Ficic, NYLJ, April 15, 2005, p. 20, col. 3.
11. Id.
12. Ficic, Id. at p. 20, col. 4, n. 1. For a recent article regarding the potential for judges using the Internet, see D.H. Tenant and L.M. Seal, "Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding A Case?", NYSBA State Bar News, pp. 10, 24 (May/June 2005).