In general, Frye gets obeisance but not without some awareness that Daubert criteria can help supply guidance. On April 12, the day after that column was published, the Appellate Division, First Department, issued its decision in Rodriguez v. Ford Motor Co.,2 upholding a ruling by Bronx Supreme Court Justice Stanley Green which granted a motion to exclude certain expert testimony under the Frye rule. Here, initially, we survey that decision because it supplements last month's "gatekeeping" update and offers a number of salient lessons. Then we report on a new book available to practitioners, "New York Motions in Limine,"3 exclusively devoted to providing a convenient road map on motion in limine practice. Rodriguez is a good transition point into reviewing this new text because the Frye reliability question, as many gatekeeping motions do, was raised via a motion in limine. However, as New York Supreme Court Justice Helen E. Freedman has incisively noted in her sparkling book, "New York Objections,"4 in limine motions have both advantages and disadvantages: timing is important; there are important practice guidelines and "tips" to follow; and appealability of preliminary rulings is quite limited. Expert's Theory First, Rodriguez. In 1997, a driver of a double-parked 1988 Grand Marquis, made by defendant Ford Motor Co., put his car into reverse gear to take advantage of a parking space made available behind him. Instead, the car smashed into a building, pinning the plaintiff pedestrian against the wall with tragic injuries. The driver claimed the vehicle "suddenly accelerated" in reverse, that his brakes were ineffective and his steering wheel was frozen. There was strong evidence, however, that the driver was intoxicated. Thus, defendant contended that the cause of the accident was pedal misapplication by a driver under the influence. Nevertheless, plaintiff claimed that the mishap resulted from a defect. Specifically, plaintiff's expert posited that the acceleration occurred due to a malfunction in the vehicle's electronic throttle control system. This theory came to be known as the "transient signal theory." Plaintiff's expert, Samuel J. Sero, said that transient electronic signals can be generated by unknown vehicle components. Such impulses could travel along pathways not intended by the design and eventually lead to the cruise control's circuit board and signal the throttle to wide-open. Mr. Sero's theory applied to all cruise-control cars. Defendant contested this theory as not only wrong but asserted that any electronic malfunctions implicated in sudden acceleration incidents always leave a physical manifestation. Here there was none. At the start of trial but prior to jury selection, both sides advanced a number of motions in limine on evidentiary matters. The manufacturer moved to exclude the testimony of plaintiff's expert on the ground that the transient signal theory had no basis in scientific fact. The trial court held a Frye hearing. The expert, according to the judge, had very broad experience in forensics investigation and consulting for litigations, having apparently "given opinions and testified about virtually every type of accident that can exist," yet "never according to his curriculum vitae (CV) published anything about anything." His sole experience with sudden acceleration cases was in the context of litigation. The expert's opinion, said the trial court, "is not generally accepted in the scientific community. He is the only one he testified to that specifically espoused this opinion in all the years that he has been working on it." He has never duplicated or replicated his theory although he tried some 50 or 60 times with different transients. He has never been successful and knows of no one else who was. His theory has never been published or peer-reviewed. He did submit a paper to the American Trial Lawyers Association but the court did not deem that to qualify as "publication." Flunks 'Frye' Although plaintiff claimed that the expert had used an accepted methodology, namely, FMEA (Failure Modes and Effects Analyses) and a Fault Tree Analysis, the trial judge found the expert here actually did the opposite. He worked backwards from the effect, the sudden acceleration, to see what could have caused it. After eliminating everything else, "he says it must be the defect that caused it. And the problem with that is that there is no proof." Both sides inspected the vehicle and "there was no physical evidence, no footprint, nothing that anybody could point to to say that that is what caused it." The court concluded that, in this case, one "cannot separate out methodology from conclusion. They are so inextricably intertwined . . . he must prove his theory and not just say, well I eliminate A, B, C and D and therefore it must be E." The theory had not been proved to be generally accepted and relevant in the scientific community. Faced with this and other in limine rulings, plaintiff chose to abort the trial and pursue appeal. The problem is that appeals from evidentiary rulings made before trial are tricky business. Generally, such rulings are reviewable only in connection with an appeal from the judgment rendered after trial. There are exceptions as, for example, appeals allowed from an order which limits the scope of issues to be tried. This exception was recently discussed by the authors of the Appellate Practice column in their April 28 article, "Motions in Limine," in the Law Journal.5 In Rodriguez, however, the First Department deemed the orders being challenged on appeal as not limiting the legal theory of the liability case and, hence, not falling within an exception to the general rule of non-reviewability before a judgment after trial. Accordingly, the appeal had to be dismissed. However, the First Department added that, were the issues raised to be reached on the merits, the appellate court would find no error. As to the Frye ruling the court said that "in order for a particular scientific principle — or a particularly novel theory — to be considered sufficiently reliable to serve as the basis for an expert's opinion, it must first be shown to have general acceptance in the relevant field." Here the trial judge conducted a lengthy hearing on the proposed evidence, "where it was clearly revealed that the theory propounded had never been examined by the witness's engineering peers, much less widely accepted in the scientific community. Thus, the exclusion of such expert testimony was not an improvident exercise of discretion."6 New In Limine Resource Resources providing pragmatic guidance for busy litigators are virtually indispensable. This column has reported about grand, but immensely practical, treatise-like work products such as New York Supreme Court Justice Helen E. Freedman's "New York Objections,"7 mentioned above, and the two-volume "New York Civil Practice Before Trial" by authors Michael H. Barr, the late Appellate Division, Second Department Justice Myriam J. Altman, Burton N. Lipshie and Sharon S. Gerstman.8 These books are periodically updated, relatively inexpensive, comprehensive and very user-friendly. If the reader has not yet obtained his or her copy, check them out or visit our reviews describing their features. Now the practitioner can add to the foregoing mainstay, bread-and-butter reference works a new, specialized, inexpensive guide book devoted to one topic: motions in limine. Entitled, "New York Motions in Limine" and subtitled, "Evidence Exclusion Guide," this loose-leaf text by attorneys Carolyn Greenwald and David N. Finley was issued just this year by Litigation ONE Publishing of Tustin, Calif., with a discount price of $99.95. The purchaser gets not only the printed text but also a companion CD-ROM containing the complete text numbered to correspond with sections in the book. This can help in research and with copying and pasting of material into the lawyer's brief. The text is bound in dark green cover with white print. On a desk or bookshelf, clients seeing the title could mark the owner as a litigation specialist. Presented in a somewhat smaller loose-leaf size (yet readable format), this resource becomes easier to handle and readily portable. What is within? Well, unlike many traditional treatises that contain elaborate discussion and narrative, this book focuses somewhat extended discussion only in Chapter One, which surveys in limine law and procedure along with drafting suggestions for such specialized motions. Even then, the narrative is crisp, lean and divided into subsections by bold-print, numbered titles informing the reader about the subject matter. Here one will find (along with supporting case citations, quotes and descriptive parentheticals) such topics as the purpose of and authority for the motion, its typical use, limitations on use, timing, appealability and a caution about the possible influence of local rules. The first chapter also contains a sample in limine motion, a supporting memorandum of law, and proposed Order. Other samples provided throughout the balance of the text relate to specific subjects covered in the particular chapter. The rest of the chapters are "all business" as they tell lawyers, by subject matter, what to do and why, providing relevant case law including page cites and specific parentheticals. Each of the chapters follows a pattern format headlined by bold titles for subsections dealing with specific topics. The pattern is: the general topic title, for example, Chapter Two's "Motion to Exclude Prejudicial Evidence"; followed by a "Suggested Motion Text" containing a notice of motion; a "Motion Summary," which tells what the motion is used for; a listing of "Supporting Authorities"; followed by "Opposing Authorities" for the proposition at hand. In the latter two subsections one finds case citations and descriptive parentheticals, with some quoting the court's language. This gives the reader a quick view of both sides' potential arguments on an issue. The "Opposing Authorities" feature may help hurried counsel assess the value of the motion and adjust the argument accordingly. The same format follows for Chapter Two's "Motion to Exclude Evidence that Will Waste Court's Time." There is the suggested text of such a notice of motion; the motion summary indicating the purpose with citations and, sometimes, the authors' "Comment," i.e., a tip for the reader's consideration. Then there is a descriptive listing of "Supporting Authorities" followed by one of "Opposing Authorities." Chapter Two will similarly provide the same type of evidence exclusion guide for motions addressed to confusing or misleading evidence (see 2:103); evidence creating an emotional bias (2:104), such as the "Golden Rule" Argument (see 2:104(c)(2)(ii)); and cumulative evidence (see 2:105). The chapter ends with a sample notice of motion to exclude cumulative evidence along with a supporting memorandum of points and authorities. Numerous Topics Chapter 3, with identical format, elaborates the broad subject of "Irrelevant Evidence," which is broken down into three separate motions: those to exclude "Irrelevant Evidence, Generally"; "Evidence of Matters Not in Controversy"; and "Speculative Evidence." The chapter ends with two sample motions and supporting memoranda of law. The foregoing are respectively parsed in subsections to include discrete topics such as "collateral issues," "unpleaded issues"; "speculative expert testimony"; and "speculative damages." One of the sample motions to exclude irrelevant evidence deals with "Immigration Status." (See 3:201) Chapter 4 on "Writings and Physical Evidence" guides readers on motions to exclude: evidence that lacks foundation; writings; gruesome or inflammatory photographs; prejudicial film or videotape; published articles; accident reports; letters; maps, models, diagrams and related demonstrative evidence; and improper medical records or reports. The sample motion and memo of law deals with gruesome photographs. Chapter 5 deals with "Tests and Scientific Evidence" including experiments and "junk science." The sample motion and memo of law deals with exclusion of evidence of statistical analysis. This is an important chapter elaborating potential arguments on expert evidence and Frye's "general acceptance" reliability standard. Case law subsections cover citations for such specifics such as truth serum evidence, polygraphs, psychological tests and syndromes, rape trauma syndrome, psychological profiling, voice spectrograph identification, accident reconstruction evidence, biomechanics, low-speed impact cases, statistics, hypnosis and many others. Expert testimony also comprises some of the subject matter of chapter 8 called, "Witness Motions." But there is other important matter here too, such as, excluding nonparty witnesses from the courtroom; excluding testimony of incompetent witnesses, lay opinion or experiments and legal opinions, among others. The listing of supporting and opposing authorities on such propositions can be a real work-saver. There is a chapter on "Character Evidence" (chapt. 7); one on "Discovery Motions" such as motions for evidentiary sanctions, motions regarding expert depositions; to exclude evidence of claims not raised during discovery, and more (chapt. 6); and a chapter on "Personal Injury Motions," an evidence exclusion guide on numerous topics (chapt. 10). The chapter on "Trial Presentation" features motions to exclude: improper argument in the opening statement; reference to lost or destroyed evidence (including spoliation); evidence of damages in a bifurcated trial; improper terminology (e.g., confusing evidence, terms containing legal conclusions, ultimate issues, misused terms, meaning of statutes and the like) (chapt. 9). Practical Guide The book contains more than 600 pages. Thus, because the material is crisply and tersely presented, and heavily reliant on case law summaries identified by many topics and subtopics, there truly is an abundance of legal material here. Although there is a Table of Statutes, there is no table of cases. One drawback of a case-heavy presentation is that the reader really has to do one's homework and "Shepardize" the cited authorities, in order to make certain that the case cited actually is "fresh." In chapter 5 dealing with the "'Frye' Standard Generally," the text cited the trial court's decision in Selig v. Pfizer, with the Supreme Court citation dated in year 2000 but did not list the Appellate Division's later decision in Selig at 290 AD2d 319, 735 NYS2d 549 (1st Dept. 2002). For a book issued at the beginning of 2005, one might expect more. Still, one also should expect the practitioner to update the book's and his or her own citations anyway. This risk therefore applies most to those who neglect the task of updating. The authors admonish as much in their preliminary, "How to Use this Book," saying: "Once you have found a helpful case, read it in full to be sure that the point is applicable to your facts and 'Shepardize' it to ensure that it is still good law." A Comprehensive Checklist This book is a well-structured, rich, no-nonsense, practical guide for attorneys who may need to consider making motions in limine. The headings and index do a good job of steering the reader to the particular chapter and section he or she may want but, in order not to miss something related to one's objective, the reader should be prepared to browse more broadly into other sections. For around $100, the practitioner will get not only a copious case finder, amply categorized by subject matter, but a useful road map on the many problematical evidentiary items that might require such motions. In essence, cumulatively, the book and companion CD-ROM is a comprehensive checklist of potential in limine motions backed by case authorities. Busy lawyers can use helpful checklists. Add this book to the two texts previously mentioned and the busy lawyer will have a formidable litigation reference arsenal with which to do battle before and during trial. Michael Hoenig is a member of Herzfeld & Rubin Endnotes:________________________________________________________________________________________________________ 1. New York Law Journal, April 11, 2005, p. 3. 2. 2005 NY Slip Op. 02767 (1st Dept., April 12, 2005). 3. By Carolyn Greenwald and David N. Finley (Litigation ONE Publishing 2005). For information about this text call 1-888-577-3771 or contact www.litigationone.com. 4. Helen E. Freedman, New York Objections, "Motions In Limine," §§1:250 - 1:300, pp. 1-23 to 1-29 (James Publishing Inc., updated November. 2004). 5. Thomas R. Newman and Steven J. Amhuty, Jr., "Motions in Limine," NYLJ, April 28, 2005, p. 3 (discussing Parker v. Mobil Oil Corp., 2005 WL 712312 (2d Dept., March 28, 2005), a case also discussed in this writer's Products Liability column in the Law Journal of April 11, 2005, p. 3). 6. Rodriguez v. Ford Motor Co., 2005 NY Slip Op 02767, at p. 3 (1st Dept., April 12, 2005). 7. Hoenig, "A Resource on Making Objections," New York Law Journal, Jan. 10, 2000, p.3. 8. Hoenig, "A Resource on Litigation Practice," NYLJ, Feb. 13, 2002, p. 3. |
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