On Dec. 5, 2018, a unanimous panel of the Appellate Division, Second Department issued its decision in Shah v. Mo. M. Rahman, 2018 N.Y. Slip Op 08342, upholding the trial court's ruling (Justice Marc Partnow) not to grant plaintiff's counsel's application to hold a Frye hearing before admitting into evidence the testimony of a defense biomechanical engineering expert. In so doing, the court, citing, well established Court of Appeals authority (discussed below), has arguably dealt the biomechanical Frye hearing its final death blow.

Briefly, New York's Frye standard (on the admission of expert testimony) stems from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), where the court held that expert testimony must be based on scientific methods that are sufficiently established and accepted in the relevant scientific community. (Note: New York continues to reject the standard used in the majority of state jurisdictions and the one used in federal court based on Daubert v. Merrill Dow Pharmaceuticals, 500 U.S. 579 (1993)).

In Shah, 2018 N.Y. Slip Op 08342, the appellate court was faced with the central question of whether the trial court was required to hold a Frye hearing on the admissibility of a biomechanical expert where the proposed testimony was “to the effect that the collision could not have caused plaintiffs injuries.” Plaintiff's counsel made the application based on the contentions that “the expert's testimony was not based on generally accepted principles and methodologies and that there was not a proper foundation for the admission of the experts opinion.” The trial court denied plaintiff's counsel's motion, citing in part that the trial judge had “recently presided over a trial where the same expert (Dr. Kevin Toosi) was permitted to testify regarding biomechanics and causation.” See id. Following the admission of this expert, the jury in Shah returned a verdict in favor of the defendant thus activating the appeal.

In affirming the trial court, the Appellate Division made pointed reference to the Court of Appeals decision in Parker v. Mobil Oil, 7 N.Y.3d 434 (2006), which made it clear that no Frye hearing was mandated merely because an application for same had been made by a party to a lawsuit. In fact, no such hearing is mandated after a particular scientific principle “has gained general acceptance in its specified field (and) general acceptance can be demonstrated through scientific or legal writings, judicial opinions or expert opinions other than that of the proffered expert.” See Shah, 2018 N.Y. Slip Op 08342. Thus, the Shah court concluded that “a Court need not hold a Frye hearing where, as in the case at bar, it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony.” See id.

Thus, the recent decision by the appellate court in Shah joins a long line of cases throughout New York that recognizes the general acceptance of biomechanical science. (For a more detailed discussion of the general acceptance of biomechanical science, please refer to “Winning the Biomechanical Frye Hearing,” N.Y.L.J. (May 30, 2018).

A canvass of all four appellate departments in New York reveals the following support for the Shah decision and a possible answer to the headline in this article.

First Department

In Vargas v. Sabri, 115 A.D.3d 505 (1st Dept. 2014), the court unanimously affirmed the order of Justice Laura G. Douglas of Supreme Court, Bronx County, which denied plaintiff's request for a Frye hearing to determine the admissibility of the anticipated testimony of Dr. McRae, a biomechanical engineer for the defendant. The court held that McRae's stated education, background, experience and areas of specialty rendered him qualified to testify as to the mechanics of plaintiff's alleged injuries. The court stated in relevant part as follows: “The court did not improvidently exercise its discretion in denying plaintiffs' request for a Frye hearing to determine the admissibility of the anticipated testimony of Dr. McRae, a biomechanical engineer. The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained. Dr. McRae's stated education, background, experience, and areas of specialty, rendered him able to testify as to the mechanics of injury.” Plaintiffs challenge to Dr. McCrae's qualifications … goes to the weight and not to the admissibility.” See Vargas, 115 A.D.3d at 505, 506. The court in Shifrel v. Singh, 61 A.D.3d 401 (1st Dept. 2009) found that the jury assessed the biomechanical evidence and appropriately concluded that the accident did not cause a permanent consequential limitation or significant limitation of a body function. Thus, biomechanical experts in the First Department have been permitted to opine on causation testimony.

Second Department

In Valentine v. Grossman, 283 A.D.2d 571 (2d Dept. 2001), the court was confronted with a case where the Trial Court had excluded the proposed testimony of a biomechanical engineer who would have testified that the forces generated in a motor vehicle accident were insufficient to cause a herniated disc. The Second Department, reversing the Trial Court, noted that the proposed testimony was clearly relevant insofar as it tended to make the defendant's contention more probable that the accident was not severe enough to have caused the injuries alleged. The appellate court held that testimony proffered—that the forces generated in a motor vehicle accident were insufficient to cause a herniated disc—was probative of the central issue of the case and thus admissible. Similarly, in Plate v. Palisade Film Delivery, 39 A.D.3d 835 (2d Dept. 2007), the Second Department granted a new trial due to the Trial Court's refusal to accept biomechanical testimony. The appellate court determined that the lower court erred in its determination that the defendant's biomechanical engineering expert was not qualified to testify regarding whether the force of the impact in the subject accident could have caused a serious injury or exacerbated a preexisting injury to the plaintiff's cervical spine in precluding that testimony.

Third Department

In Fitzpatrick v. Currie, 52 A.D.3d 1089 (3d Dept. 2008), the court in granting summary judgment accepted the affidavit of an engineer with biomechanical experience in impact trauma in granting said motion. The court found persuasive this expert's opinion about injuries that were in fact avoided due to the deployment of airbags.

Fourth Department

In Stamps v. Prudenti, 137 A.D.3d 1755 (4th Dept. 2016), the court held that an expert who held an advanced degree in mechanical engineering was qualified to “offer an opinion regarding the biomechanics or physics of the collision.” See Stamps, 137 A.D.3d at 1757.

Conclusion

Given the overwhelming authority in New York recognizing the general acceptance of biomechanics as a legitimate science, the litigant need no longer fear the automatic granting of a Frye hearing in relation to the introduction of a biomechanical expert for trial testimony. The time to question the general acceptance of biomechanical science from a legal perspective has now passed. The question for litigants and the courts following the Shah decision is “why should we even have a Frye hearing”? Given the current state of the law, the answer to this article's headline question “Requiem for the Biomechanical Frye Hearing?” … is a resounding “yes.”

Steven Balson-Cohen is trial counsel at Baker, McEvoy, Morrissey and Moskovits.