This column reports on an appellate ruling issued in February that focused on reliability issues posed by proposed expert testimony. Sean R. v. BMW of North America,1 is an important decision by the New York Court of Appeals in a case claiming that a youngster’s mental and physical disabilities were caused by in utero exposure to unleaded gasoline vapor attributable to a defective gas hose in the pregnant mother’s BMW. New York’s highest court provided the state’s trial bench and bar with yet more guidance about what is needed in the way of reliable expert testimony in a toxic tort claim. BMW, thus, is another link in a chain of decisions by the court offering a road map regarding how expert proofs may suffice as opposed to those that do not.
Our prior columns often elaborated well-established New York law on judicial screening or “gatekeeping” of expert testimony.2 The Court of Appeals made it clear in Parker v. Mobil Oil Corp.3 that questions regarding reliability of experts’ testimony required diligent policing by courts. The basic rules seem simple enough. If “novel” scientific evidence is involved, the court applies the Frye “general acceptance” test to 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 has flunked and must be precluded or excluded. If the answer is “yes,” the proponent of the novel scientific testimony has survived the threshold test but still has to get past the admissibility “gate.” The evidence must meet a second, “foundational reliability” inquiry.
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