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2 Recent Decisions Serve as Reminders About Expert Evidence

August 14, 2020 in  News

The pandemic-related restrictions on in-person litigation and jury trials as well as evacuation from our law offices for months has disrupted litigators’ routines. For some, this includes slowing the flow of information about court decisions normally useful to the practitioner. In an attempt to alert readers who might have missed them, this article briefly reports about two Appellate Division decisions dealing with expert testimony and other issues.


In Mercedes v. 248 JD Food, 2020 NY Slip Op 03592 (1st Dep’t, June 25, 2020), the plaintiff, a butcher in a supermarket, was injured when he was cleaning meat out of the hopper of a mixer-grinder. The machine turned on causing the mixing paddles to rotate injuring the worker. He claimed a design defect caused the mishap. The defendant, however, successfully moved for summary judgment that was granted by the Bronx Supreme Court. The Appellate Division, First Department, affirmed because the defendant submitted cogent evidence that it was not liable.

The defendant established, via its engineer, that the butcher’s injury resulted from a post-sale modification of the product that disabled the machine’s safety system. The engineer submitted evidence that the mixer-grinder had been made in conformity with industry standards. It was equipped with a magnetic interlock system meant to cut power to the motor when the hopper guard was opened. Thus, the machine left the defendant’s control in a safe condition.

However, the mixer-grinder was later rewired to bypass the interlock system. The defendant had nothing to do with that. The substantial alteration defeated the safety device. The plaintiff further claimed that the cover of the foot pedal was defective. But the defendant’s engineer showed that the defendant was not the manufacturer of the pedal. Further, irrespective of whether the pedal was defective, had the interlock system been working properly as designed and when it was sold, the power would have been cut and the plaintiff would not have sustained injury.

The First Department panel summoned up established products liability law. A manufacturer is not liable for harm that results from the product alteration because “substantial modifications of a product from its original condition by a third party that render a safe product defective are not the responsibility of the manufacturer.” (Citing Robinson v. Reed-Prentice Division, 49 NY2d 471, 479 (1980); Hoover v. New Holland North America, 23 NY3d 41, 56-57 (2014)).

In what ways did the plaintiff’s opposition to summary judgment fall short? The court said the plaintiff failed to raise a triable fact. He “presented no evidence to exclude the probability that the mixer-grinder’s operation while the hopper guard was open was the result of alterations made to the machine after the defendant sold it.” Furthermore, the plaintiff’s expert, a construction engineer with no background in industrial meat processing machines, provided only a conclusory opinion. He did not refer to any standards. He did not opine that alternative designs were available or financially feasible.

As readers continue to work remotely from home, without scrambling to rush to in-person hearings, jury selections and trials, it may be a good time to ponder which matters in their caseloads are candidates for summary judgment motions. What facts and expert submissions would be needed for motions in each matter? It’s a good time to consider the dignity of proofs and how to structure high-level showings in such motions. The foregoing Mercedes decision reminds us that working from home can still be productive work time.

Biomechanical Expert

In Guerra v. Ditta, 2020 NY Slip Op 03771 (2d Dep’t July 8, 2020), the Second Department’s decision reminds litigators about proper application of the Frye and Parker proof standards for expert testimony in New York state courts. (Frye v. United States, 293 F. 1013 (D.C. Cir.); Parker v. Mobil Oil, 7 NY3d 434). Amazingly, one discerns these all-important “reminder” lessons in this ordinary rear-end collision case where the parties disputed whether the plaintiff’s back injury even met the “serious injury” threshold to maintain suit within the Insurance Law.

The defendant took his foot off the brake and his vehicle struck the rear of the plaintiff’s car. Kings County Supreme Court granted summary judgment to the plaintiff on the issue of liability and a trial was held on damages. The defendant disputed the seriousness of the claimed back injury. The jury found for the defendant that there was no “serious injury” within the meaning of the Insurance Law. The plaintiff unsuccessfully moved to set aside the jury verdict in the interests of justice and for a new trial on damages.

Prior to trial, the plaintiff moved to preclude the defendant’s proffered biomechanical expert, Kevin K. Toosi, from testifying. Alternatively, the plaintiff moved that a Frye hearing be held to assess the expert’s reliability. The motions were denied. Toosi testified at trial that the plaintiff’s injuries could not have been caused by the accident. Since the jury returned a verdict for defendant, it seems that the expert’s testimony was influential. The plaintiff appealed.

The appellate court opened with the guidelines applicable to a motion to set aside a verdict in the interests of justice and for a new trial pursuant to CPLR 4404(a). But then the panel jumped right into the fray on the Frye issue. The plaintiff argued that the court below should have allowed a so-called Frye evidentiary hearing on whether defendant’s biomechanical expert could properly opine on damages. The appellate court disagreed. The defendant was correct. A Frye hearing was not warranted. Why?

A court need not hold a Frye hearing “where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony.” Thus, “absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted.” The court below properly determined that “biomechanical engineering is a scientific theory accepted in the field.”

Did that conclusion doom the appeal regarding the expert? No. The appellate court added that there was no proper foundation for admitting Toosi’s opinions and testimony. Why? Because “separate and distinct from the Frye inquiry is the ‘admissibility question applied to all evidence —whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case.’”

As the Court of Appeals in Parker put it: does the expert’s opinion “sufficiently relate” to existing data or connect to such data “only by the ipse dixit of the expert?” Here the Second Department panel concluded that the defendant failed to establish that Toosi’s opinions related to existing data and were the result of properly applied accepted methodology. Accordingly, a new trial on damages was required.

These pithy decisions (and others) might easily be overlooked as we struggle to practice law out of office. Nevertheless, the foregoing rulings remind us that “big” lessons or significant reminders can lurk in seemingly small or relatively routine cases. The rules applying to experts’ evidentiary standards cut across litigation big and small, bread-and-butter or bet-the-company levels. Now’s a good time to focus on retooling for return to the battles ahead.


Just two brief decisions. Yet, we learn about no liability when post-sale modifications make a safe product defective. We learn that summary judgment motions require lots of attention and structure; that biomechanical expert testimony does not warrant a Frye hearing but does require sound foundational predicates under Parker. Perhaps most important, we learn that brief Appellate Division decisions contain loads of valuable nuggets that can make us think more about perfecting our craft.

Michael Hoenig is a member of Herzfeld & Rubin.