Second Department Issues Two Recent Decisions Applying Frye

Two panels of the Second Department recently issued decisions concerning Frye and the admissibility of expert testimony on medical causation.  In Ratner v. McNeil-PPC., Inc., at issue was the plaintiff's claim that there was a causal connection between the plaintiff's ingestion of Tylenol and her subsequent development of liver cirrhosis.  According to the plaintiff's experts, by extrapolating data from several observational studies, there is a causal connection between long-term use of acetaminophen in Tylenol and liver cirrhosis.  The Court, however, disagreed and upheld the trial court's order to preclude.  According to the Court, the plaintiff did not produce any clinical or epidemiological data or peer reviewed studies showing that there is a causal link between the therapeutic use of acetaminophen and liver cirrhosis.  As such, the plaintiff was required to provide some of other generally accepted method of establishing causation, but failed to do. Instead the plaintiff relied on a few case studies and case studies are not generally accepted methods of proving causation.  Furthermore, the case studies the plaintiff relied upon failed to conclude that acetaminophen caused liver cirrhosis.  Thus, given the abundance of clinical studies over the last fifty years which concluded that the theraputic levels of acetaminophen in Tylenol were safe, the Court concluded that there was "too great an analytical gap" to allow such opinion testimony.

In Lugo v. New York City Health & Hosp. Corp., the issue was whether the plaintiff's expert could opine that the infant plaintiff's brain injuries were caused by an episode of severe neonatal hypoglycemia lasting 81 minutes. The Court held that the trial court applied the Frye test too narrowly in excluding the evidence and reversed allowing the plaintiff's experts to opine on the issue.  According to the Court, the defendant's expert conceded that it is generally accepted that hypoglycemia can cause brain damage, that the scientific community does not recognize any level or duration of hypoglycemia considered safe and incapable of causing brain damage, and that individual susceptibility to toxic states varies among newborns.  Furthermore, the plaintiff produced studies showing that glucose levels lower than the plaintiff's for several hours duration may increase the risk for brain injury. Thus, when combining these studies with the defendant's concession, the Court concluded that the plaintiff's theory of causation was based on more than theoretical speculation and could be presented to a jury.