Prior columns have elaborated on the ripening of New York law regarding judicial screening, or “gatekeeping,” of the reliability of expert testimony.1 Particularly after the New York Court of Appeals’ pivotal October 2006 decision in Parker v. Mobil Oil Corp.,2 courts and lawyers were alerted to a remarkably clear, yet substantially nuanced, road map on approaching questions of experts’ reliability. Clear road maps, however, do not mean the roadways to be traveled are always straight or smoothly paved or sans obstacles or detours. Complexities can intrude to distract or divert attention from or obfuscate the quest for true reliability in the particular expert’s methodology, foundational predicates and opinions. Our Sept. 16 column dealing with reliability concerns when experts use or misuse scientific articles sets forth examples.3
On paper, the reliability-policing rules seem simple enough. If novel scientific evidence is involved, New York’s application of the Frye “general acceptance” test has the judge determine “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” If the answer is “no,” the testimony flunks and is precluded or excluded. If the answer is “yes,” the proponent of the novel expert opinion has survived the threshold test but must also meet a second reliability standard—one I have called the “foundational reliability” question.
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