Chapter 12 Evidentiary Issues Unique to New York Products Liability Litigation

• Jurisdiction: New York

CHAPTER TWELVE EVIDENTIARY ISSUES UNIQUE TO NEW YORK PRODUCTS LIABILITY LITIGATION Scott R. Jennette, Esq.
Tony R. Sears, Esq.

I. INTRODUCTION

There are a number of evidentiary issues unique to products liability litigation in New York that can dictate the outcome of any particular case. For example, with the increase of toxic tort and pharmaceutical products liability litigation, where causation is often the determinative issue, the trial courts have become particularly aware of the need to evaluate the reliability of expert opinion evidence to guard against the danger of having a scientifically ignorant jury guided by junk science. No longer do courts admit expert testimony on the asking and then leave it up to the jury to weigh the credibility of the proffered opinion. Appellate courts have handed down a clear message that trial courts have a fundamental screening function to assess whether the expert opinion is based on a reliable scientific foundation

Moreover, products liability is one of the few areas of substantive tort law in which the question of culpability is directed to the defendant’s conduct both before and after the injury-producing accident. Cases can be won or lost depending upon a party’s ability to introduce evidence regarding state-of-the-art technology, pre- and post-accident changes in the product, compliance with government regulations and industry and trade association standards, other accidents, and consumer complaints. Admissibility of this evidence is often driven by considerations of relevancy, as balanced against the danger of unfair prejudice, confusion of issues, and cumulative evidence

Finally, because the most important evidence in a products liability action is the product itself, preserving the integrity of the post-accident condition of the product is imperative. If the duty to preserve evidence is breached, drastic consequences can ensue

This chapter addresses these important evidentiary issues

II. ADMISSIBILITY OF EXPERT TESTIMONY IN NEW YORK STATE COURTS

A. Introduction

The standards for the admissibility of expert testimony in New York traditionally have been difficult to define to the extent trial courts had broad discretion to decide whether the testimony, overall, was “helpful to the jury.” As a matter of course, as long as the expert was qualified and propounded technical or scientific opinions on a relevant subject matter “beyond the ken” of the average juror, the testimony was allowed. Courts spent little time examining whether the opinion was actually based on a foundation that would pass muster in the pertinent scientific discipline. ²²³²

Perhaps due to the influences of the United States Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., ²²³³ the trend in New York has been toward making a more objective assessment of whether the expert testimony is reliable, trustworthy, and relevant. Opinions determined to be unduly speculative or conjectural, or without any basis in science or a tether to the record evidence, have been precluded on the ground that they lack probative value and, therefore, are not helpful to the jury. ²²³⁴

In an effort to assist the lower courts, the Court of Appeals has provided the following guidelines for assessing the admissibility and weight of expert testimony on scientific issues. ²²³⁵

First, where the expert opinion is based on the application of a novel scientific methodology, it is evaluated under the test of Frye v. United States ²²³⁶ to determine whether, “theoretically, the accepted techniques, when performed as they should be, generate results generally accepted as reliable within the scientific community.” ²²³⁷

Second, a foundational inquiry is made to determine whether the methods and techniques were properly employed to reach the opinion and whether the assumptions drawn have relevance to the case. Thus, to be admissible, an expert’s opinion must be based on sufficient facts or data and must be the product of reliable scientific principles and methods. ²²³⁸ As the gatekeeper of evidence, a trial court’s goal is to guard against the “danger in allowing unreliable or speculative information (or ‘junk science’) to go before the jury with the weight of an impressively credentialed expert behind it” without imposing “an insurmountable standard that would effectively deprive . . . plaintiffs of their day in court.” ²²³⁹

Finally, assuming the first two inquiries are satisfied, the jury is permitted to hear the evidence and consider infirmities in collection and analysis, not affecting the trustworthiness, and to determine the weight of the opinion. ²²⁴⁰

This section will summarize the rules governing the admissibility of scientific and technical expert testimony in New York and address the procedural methods available to obtain preclusion.

B. Standard for Admitting Novel Scientific Expert
Testimony

1. The Frye General Acceptance Test

Although most states have embraced the multi-factored test set forth in the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., ²²⁴¹ New York courts continue to adhere to the Frye test to assess the admissibility of novel scientific evidence. ²²⁴² Frye established the “generally accepted by the scientific community” standard, which provides a somewhat objective assessment by which to measure the validity and reliability of scientific theory and opinion for evidentiary purposes. ²²⁴³

In Frye, a defendant charged with murder attempted to bolster his defense by showing that he had passed a “systolic blood pressure test” (which predated the polygraph test). On appeal, the U.S. Court of Appeals for the District of Columbia upheld the trial court’s exclusion of the evidence, holding that expert testimony concerning scientific evidence must rest on a scientific principle that is demonstrably reliable and not still in the experimental stage:

• Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.²²⁴⁴

From this emerged the Frye test—novel scientific expert opinion testimony is reliable, and hence admissible, if it is based on scientific methods and procedures that have achieved “general acceptance” in the relevant scientific community. ²²⁴⁵

The purpose of the Frye inquiry is to screen “novel” scientific evidence to determine whether it is “experimental” (and therefore inadmissible) or “demonstrable” (and therefore competent). ²²⁴⁶ In applying Frye, jurists “perform a gatekeeper function by making an initial determination as to whether the basis of expert opinion has gained sufficient general acceptance in a particular field in order to be considered reliable, and to justify admission at trial.” ²²⁴⁷ Frye does not allow litigants to test a scientific hypothesis for the first time in court. As Chief Judge Kaye wrote in Wesley, “[i]t is not for a court to take pioneering risks on promising new scientific techniques, because premature admission both prejudices litigants and short-circuits debate necessary to determination of the accuracy of a technique.” ²²⁴⁸

Unlike Daubert, Frye is objective and mechanical. The inquiry is limited to whether the proposed scientific technique or method already has been accepted as reliable based upon evidence that reflects a consensus in the relevant scientific community. If the theory or methodology is endorsed by a “majority” of experts in the relevant field, reliability for admissibility purposes is presumed. ²²⁴⁹

Accordingly, where neither an expert’s deductions nor the methodologies employed to reach the conclusions are premised on “novel science,” the concerns articulated in Frye are not implicated. New York courts routinely decline to scrutinize expert testimony under the guise of Frye where the proffered expert opinion is not based on novel methods or scientific principles. ²²⁵⁰

2. The Scope of Frye’s Application—Expansion to Novel Scientific Theories

Although Wesley appeared to limit Frye to the reliability of a particular scientific methodology or technique, its scope has been extended to opinions based on a novel scientific or medical theory. However, courts have espoused varying views on the extent to which an expert’s theory must be endorsed by the scientific literature before “general acceptance” is found ²²⁵¹

Many courts have taken a deferential approach reasoning that Frye is not concerned with the reliability of a particular conclusion, but instead, focuses on whether an expert’s deductions are based on generally accepted scientific principles. ²²⁵² In these cases, courts have held that the underlying support for a theory need not include scientific literature or specific cases involving circumstances exactly parallel to those at issue in the litigation provided that a synthesis of the literature and science “reasonably permits” the conclusion drawn by the expert. The lack of textual authority directly on point can affect the weight, but not the admissibility, of expert opinion testimony. ²²⁵³

In Diejoia v. Gacioch, ²²⁵⁴ the trial court precluded an expert vascular surgeon’s causation opinion because the expert had conceded that there were no similar cases reported in the medical literature. The Fourth Department reversed and stated that the trial court had applied Frye “too restrictively.” The Appellate Division noted that the expert’s conclusions were based upon well-settled medical principles established through

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