The 2013-14 term of the Court of Appeals has produced—so far—three significant decisions from the court discussing the admissibility of expert testimony and the trial court’s “gatekeeping” role—Matter of State v. Floyd Y., 22 N.Y.3d 95 (2013); People v. Oddone, 22 N.Y.3d 364 (2013); and Cornell v. 360 West 51st Street Realty, 2014 N.Y. Slip Op. 02096 (March 27, 2014). Floyd Y. and Oddone were discussed at length in two prior columns. (See, Hutter, “‘Floyd Y.’: The Professional Reliability Basis for Expert Opinion,” NYLJ, Dec. 5, 2013, p. 3, col. 1; Hutter, “‘Oddone’: Frye’s (Non)-Applicability to Experience-Based Expert Opinion,” NYLJ, Feb. 6, 2014, p. 3, col. 1). This column will discuss Cornell.1
In Cornell, the court held that the expert opinion in issue was not admissible because Frye’s “general acceptance” standard was not met by “some support” in the scientific literature, and the expert’s “differential diagnosis” was insufficient to establish a foundation for the opinion in any event. Differential diagnosis is a generally accepted methodology by which a physician considers the known possible causes of a patient’s symptoms and then by utilizing diagnostic tests eliminates causes from the list until the most likely cause remains.
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