Herzfeld & Rubin, P.C.- Publications

Products Liability *Speculative, Unfounded Expert Opinions* By Michael Hoenig - New York Law Journal - July 10, 2006	Print article

Judicial "gatekeeping" of reliability of expert testimony unquestionably is a "glamour" issue. Decisions applying the Frye "general acceptance" standard or the federal Daubert reliability criteria issue abundantly as courts struggle to screen expert opinions.

Gatekeeping seeks to weed out experts' offerings based on flawed methodologies or other indicia of unreliability.¹ Exactly where to draw the line can be a source of tension. The Court of Appeals recently granted an appeal in Parker v. Mobil Corp.,² a case alleging disease from exposure to benzene in which the Frye test was applied. Plaintiff argues the Frye test is too stringent.

Oral argument is scheduled in early September. The decision in Parker undoubtedly will give the trial bench and bar guidance regarding certain kinds of "gatekeeping" issues.

Last month this column reported on the First Department's 3-2 decision in Nonnon v. City of New York,³ upholding expert testimony that alleged a causal nexus between plaintiffs' disease and a toxic landfill site.

These kinds of complex science controversies stimulate much tension and attention since they challenge the court system to adjudicate reliability questions involving disciplines beyond the normal expertise of judges.

Although Frye and Daubert screening criteria clearly have center stage, deservedly so, it would be a mistake to conclude that, absent a specific Frye question which is timely raised, New York courts are then bereft of efficient gatekeeping tools with which to sift out unreliable opinions. On the contrary, abundant precedents, wholly apart from the Frye doctrine or Daubert criteria, demonstrate that New York courts have adequate muscle to heave some shoddy expertise out of the courtroom.

Vigorous 'Gatekeeping'

In other words, in the great cauldron where day-to-day litigation simmers, stews and sometimes boils over, trial and appellate judges are constantly engaged in important gatekeeping of expert testimony independent of formalistic Frye and Daubert controversies. In the trial pits of the state, screening of experts often goes forward vigorously without even mentioning the word Frye, yet with decisive impact nonetheless.

Indeed, although the Frye reliability test may, over the years, have evolved into something broader in practice than its classical role,⁴ in its pure doctrinal essence, Frye's "general acceptance" test seems properly to apply only to novel scientific evidence.⁵ But then what happens when the evidence is not "novel" or not "scientific"? Does gatekeeping for reliability stop? Are judges paralyzed? Is the rule of admissibility "anything goes"? Are counsel seeking to exclude speculative or conclusory opinions frozen into advocative silence? Of course not. Gatekeeping goes forward robustly either on a non-Frye basis or on a kind of broader, Frye-type reliability analysis that seems to have evolved over time.⁶

Truth be told, there are solid gatekeeping avenues to help weed out junky expert testimony apart from Frye. The attorney opposing an expert opinion simply has to become aware of available weaponry and then use it when appropriate. A powerful illustration of the foregoing is Buchholz v. Trump 767 Fifth Ave., LLC,⁷ a Court of Appeals decision focusing on an expert's affidavit submitted in opposition to defendant's motion for summary judgment.

Following their attendance at a St. Patrick's Day parade, four coworkers returned to their employer's offices, on the 13th floor of the General Motors building. During "play fighting," one of the four was pushed and fell through the center panel of a three-panel bay window, plunging to his death. Decedent's wife sued the building owner alleging failure to provide shatterproof glass windows and a safety rail across the window's face. She also charged a violation of the City's Administrative Code.

After discovery, defendant moved for summary judgment asserting that there was no evidence of defendant's negligence and inapplicability of the code regulation. Plaintiff submitted the affidavit of an expert who was a registered architect and licensed professional engineer. The expert said the window's "low sill" made it highly susceptible to accidental human contact. He suggested the window installation was "similar" to storm doors which required tempered glass and, therefore, an Administrative Code regulation referring to "similar installations" applied to the window as well. He also called for a push bar, grille or other protective barrier. The expert said that there had been a departure from good and accepted engineering and building safety practices at the time the tower was built.

The trial judge denied defendant's motion for summary judgment but the Appellate Division, First Department reversed, granted the motion and dismissed the complaint. As a matter of law, the Administrative Code provision did not apply and, further, the plaintiff's expert's testimony was held conclusory and unsupported. The Court of Appeals affirmed. After analyzing the code provisions and finding them inapplicable, the Court turned to the common-law negligence claim. It viewed the expert's opinions as "conclusory" and insufficient to raise a question of fact. The expert "cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion that good and accepted engineering and building safety practices called for the installation of tempered glass in 1968 or that there should have been a retrofit in 1998 of non-tempered glass windows with bars."

Speculative Opinions

The Court quoted from Diaz v. New York Downtown Hosp.:⁸ "Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment."⁹ There, a patient was sexually assaulted by a hospital technician during a sonogram. She sued and claimed negligent supervision by the hospital. Plaintiff's expert physician submitted an affirmation citing guidelines promulgated by two national radiological organizations which recommended an examiner or chaperone for vaginal sonograms. A split Appellate Division panel held that the guidelines failed to establish an industry standard and the expert failed to show existence of an actual practice or custom in the radiological community. The Court of Appeals affirmed for the reasons quoted above.

In Diaz, no triable issue regarding existence of an accepted industry practice or standard was presented. The guidelines themselves clearly stated they "are not rules." Moreover, the expert failed to provide any factual basis for her conclusion that the guidelines establish or are reflective of a generally accepted practice in hospital settings. The doctor "made no reference either to her own personal knowledge acquired through professional experience or to evidence that any hospitals have implemented such a standard." Thus, the expert's affirmation "lacked probative force and was insufficient as a matter of law to overcome" the defendant's motion for summary judgment.¹⁰

In Reyes v. City of New York,¹¹ plaintiff alleged that injury occurred because of a dangerous condition on a sidewalk. The defendants, owners and contractors, moved for summary judgment. The Appellate Division, Second Department said the trial court "properly rejected the affidavit of the plaintiff's expert on the grounds that it was speculative and conclusory." The Appellate Division said that an expert's affidavit, proffered as the sole evidence to defeat summary judgment, "must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor." Here, the expert's affidavit "provided no data to indicate the scientific basis for the expert engineer's conclusion as to the age of the various portions of the sidewalk." The same kind of deficiency caused a different Second Department panel in Mayer v. Mahopac Central School Dist.¹² to disregard plaintiff's expert's affidavit for "speculative and conclusory opinions" regarding appropriate school supervision during a physical education class.

Such deficiencies in expert proofs are ubiquitous. In DeRosa v. City of New York,¹³ decided on June 27, a patron fell down a stairway leading to Monument Park in Yankee Stadium. His expert said that there were violations of building code requirements for exit stairs as well as height and width requirements. The trial judge denied defendants' motion for summary judgment but the Appellate Division, First Department, reversed. First, the interpretation of the code was a question of law for the court and not a question of fact for the jury. Second, plaintiff failed to establish triable issues from which defendants' negligence could be inferred. The court's language is arresting: "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient."

In Amaya v. Denihan Ownership Co.,¹⁴ also decided on June 27, the First Department ruled summary judgment was justified when an engineer's affidavit "contained speculative conclusory assertions as to the alleged defects, and cited to various broad or inapt engineering rules, regulations and standards." The court observed that the engineer did not conduct an investigation of the accident site until some three and one-half years later. Said the appellate court: "Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative effect and is insufficient to withstand summary judgment."

Reliability Concerns

The standards requiring nonspeculative, reliable expert opinions apply, whether the case involves a simple pedestrian's trip and fall on a sidewalk, as in Canizzaro v. Simco Mgt. Co.,¹⁵ or a more complex medical malpractice scenario, as in Wager v. Hainline.¹⁶ In both cases speculative conclusions by an expert doomed the claims.

Sometimes, the expert's affidavit may rely on hearsay writings to try to establish the defendant's negligence. Opposing counsel must then look at the writing to find flaws. In Soldano v. Bayport-Blue Point Union Free School Dist.,¹⁷ the plaintiff's expert relied on a handbook of the U.S. Consumer Product Safety Commission (CPSC) but this was held inadequate. Standards promulgated by the CPSC, a federal agency, "are not mandatory but are merely suggested guidelines." And, in Scanga v. Family Practice Associates of Rockland, P.C.,¹⁸ a defense pathologist testified that he had examined recut biopsy slides not admitted into evidence. The Appellate Division said the testimony should have been stricken because the defendants failed to meet the "professional reliability exception." They "failed to establish the reliability of the recut biopsy slides as there was no evidence, except the expert's conjecture, that the slides were actually recut from the original biopsy sample."

In D'Auguste v. Shanty Hollow Corp.,¹⁹ an experienced skier was injured on a difficult trail and sued the ski binding makers, among others. Plaintiff's expert said there was a defective binding but his professional background was not related to ski bindings. His affidavit lacked probative value since "it was not supported by foundational facts, such as the results of actual testing of the binding, a deviation from industry standards, or statistics showing the frequency of consumer complaints or injuries resulting from the alleged product defect." The affidavit's assertions regarding a defect having caused the subsequent appearance of a crack in the binding constituted "sheer speculation."

"Bottom line," "net opinion"-type expert testimony can be a fatal flaw at trial as well as during summary judgment proceedings. In Kim v. New York City Transit Authority,²⁰ expert testimony regarding safety procedures and warnings for subway trains to stop safely when the motorman sees a person on the tracks was considered "wholly conclusory expert testimony, unsupported by any factual basis to show the necessary relationship between the injuries and the train in question." Plaintiffs failed to establish that defendant was negligent or that its negligence was the proximate cause of the injuries. A substantial verdict was vacated and the complaint dismissed. One Justice dissented.

Conclusion

Although Frye and Daubert gatekeeping analyses are notable, exciting attention-getters, expert reliability concerns of the non-Frye variety actually inhere in a broad array of important principles frequently applied by New York courts. The practitioner really has to visualize the gold nuggets in what some consider routine fare. This writer has summarized a number of these in his chapter on reliability of expert testimony in the New York State Bar Association book, "Preparing For and Trying the Civil Lawsuit."²¹ Space limitations here preclude a discussion. But consider, for example, that the opinion of a qualified expert "must be based on facts in record or personally known to the witness."²² Expert opinions not fulfilling these conditions are deemed "worthless."²³

Or consider the vast subject of the "professional reliability exception" to the foregoing rule. Experts can rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion.²⁴ Obviously, a healthy measure of "reliability" is thereby made a cornerstone of allowing many experts to opine. Or, consider that experts are expected to state opinions with a reasonable degree of certainty.²⁵ Certainty connotes a need for reliable underpinnings. These and other considerations present potent gatekeeping weapons, wholly apart from the Frye standard.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:
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1. See e.g., M. Hoenig, "'Gatekeeping Experts: 'Daubert' Boils and 'Frye' Sizzles," New York Law Journal, April 11, 2005, p. 3; "Notable Recent Decisions," NYLJ, June 13, 2006, p. 3 (contrasting Parker v. Mobil Oil Corp., 16 AD3d 648 (2d Dept.), leave granted, 6 NY3d 702 (2005), with Nonnon v. City of New York, 2006 NY Slip Op 04373 (App. Div., 1st Dept., June 6, 2006).

2. Id., 6 NY3d 702 (2005).
3. Supra n. 1.
4. See W.J. Relihan, Jr., "Considering the Frye Rule in New York," NYLJ, Sept. 15, 2000, p. 1.
5. People v. Wesley, 83 NY2d 417 (1994); Marsh v. Smyth, 785 NYS2d 440, 442-446 (1st Dept. 2004) (Justice David B. Saxe concurring opinion); DeMeyer v. Advantage Auto, 797 NYS2d 743 (Sup. Ct. Wayne Co. 2005) (Justice Raymond E. Cornelius). DeMeyer was discussed in Hoenig, "'Gatekeeping' Gems Give Guidance," NYLJ, July 11, 2005, p. 3.

6. See W.J. Relihan, Jr., supra n. 4.
7. 5 NY3d 1 (2005).
8. 99 NY2d, 542, 544 (2002).
9. Buchholz, 5 NY3d at 10-11.
10. Diaz, 99 NY2d at 544.
11. 2006 NY Slip Op 03754 (App. Div. 2d Dept. May 9, 2006).
12. 2006 NY Slip Op 03741 (App. Div. 2d Dept. May 9, 2006).
13. 2006 NY Slip Op 05139 (App. Div. 1st Dept., June 27, 2006).
14. 2006 NY Slip Op 05140 (App. Div. 1st Dept., June 27, 2006).
15. 2006 NY Slip Op 01271 (App. Div. 2d Dept., Feb. 21, 2006).
16. 2006 NY Slip Op 03575 (App. Div. 2d Dept. May 2, 2006).
17. 2006 NY Slip Op 04070 (App. Div. 2d Dept., May 23, 2006).
18. 2006 NY Slip Op 01788 (App. Div. 2d Dept., March 14, 2006).
19. 26 AD3d 403 (2d Dept. 2006).
20. 2006 NY Slip Op 02274 (App. Div. 1st Dept., March 23, 2006).
21. Hoenig, "Gatekeeping: Reliability of Expert Testimony under Daubert (and Frye)," in Vol. 2, Preparing For and Trying the Civil Lawsuit, Chapt. 14, § 14.35, pp. 669-675 (NYSBA 2d ed. 2004).

22. Hambsch v. New York City Transit Authority, 63 NY2d 723, 725 (1984).
23. Caton v. Doug Urban Constr. Co., 65 NY2d 909, 911 (1985).
24. Hambsch, supra n. 22, at 726.
25. People v. Allweiss, 48 NY2d 40, 50 (1979).