Klenburg v Forley
Annotate this CaseDecided on February 22, 2005
Supreme Court, New York County
Jana Klenburg, Plaintiff,-against-Bryan Forley, and BRYAN FORLEY, M.D., P.C., Defendants.
101054/03
Stanley L. Sklar, J.
Plaintiff moves to preclude portions of the proposed testimony of Dr. Clinton McCord which are not generally accepted in the medical community or for a Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir., 1923)).
FACTS
On August 11, 2000 defendant Dr. Bryan Forley performed plastic surgery upon the eyes, brow and face of plaintiff, Jana Klenburg. Ms. Klenburg alleges that Dr. Forley removed too much upper eye lid skin during the surgery and also that he erred by doing a combination endoscopic brow lift and upper lid blepharoplasty during the surgery. As a result, she developed lagophthalmos, a condition that prevents her from fully closing her eyes. Ms. Klenburg then treated with five other doctors, including Dr. McCord, each of whom performed procedures intended to correct the lagophthalmos. Regrettably, none succeeded.
Pursuant to an Open Commission, a non-party deposition of Dr. McCord was held in Georgia on September 22, 2004. Defense counsel asserts that he is a "preeminent expert in the field of Occuplastic Surgery", referring to his writings, lectures and other qualifications (De Noto affirmation, paragraph 8)
Dr. McCord stated in his deposition that since 2002 he and his partners, who treat numerous patients, concluded that the elevation of the lateral corners of the eyes impacts on the functioning of the upper eyelids. He was unable to explain the biomechanics as to why the placement of the lateral canthal anchors impacts on the upper eye lids. However, he asserted that their observations were embodied in "an article coming out in the Plastic and Reconstructive Surgery fairly soon" (Exh E, p. 22). This newly developed causation theory would be of great aid to defendant since it negatives plaintiff's claim that too much skin was removed during surgery, and introduces a causation theory that could not have been known to defendant when performing the surgery.
Defendant urges that Dr. McCord is qualified to offer expert testimony regarding the field of occuplastic surgery. The court assumes arguendo that he is qualified. That assumption of course does not bear upon whether the opinions that he proposes to offer are [*2]generally accepted in medicine or in the specialty of occuplastic surgery. "If the underlying body of knowledge is not generally accepted by the professional community of that particular field, the testimony regardless of the brilliance of the expert is inadmissible". Clemente v. Blumenberg, 138 Misc 2d 923, 928 (Supreme Ct., Richmond, 1999).
Defendant argues that "Dr. McCord's conclusion regarding the placement of the canthal anchors impacting the biomechanics of plaintiff's upper eyelids is admissible because it is based upon his own observations in treating plaintiff and patients like her and comports with generally accepted scientific methodology". (De Noto affirmation, paragraph 19). Defendant urges that cases have held that Frye hearings are not needed when the opinion is based on scientific techniques rather than novel scientific theories. Thus no Frye hearing should be held, for example, regarding shoe print comparisons because all that was involved was physical comparisons rather then a novel scientific technique. People v. Abduel, 244 AD2d 237 (1st Dept, 1997). Because Dr. McCord's conclusion is "premised upon generally accepted medical and scientific research techniques" (De Noto affirmation, paragraph 32) defense counsel argues that his conclusion should be admissible. Counsel does not share with us what these generally accepted medical research techniques are other than the broadside "(to) reach his stated conclusion, Dr. McCord and his partners have examined, treated, and observed thousands of patients" (De Noto affirmation, paragraph 29). This general assertion, especially from an attorney rather then a physician, is manifestly inadequate. Dr. McCord is espousing a novel theory of the causation of plaintiff's lagophthalmos. A novel theory of causation was also urged and rejected after a Frye hearing in Pauling v. Orentrich Group, NYLJ Jan 12, 2005, pg. 29, col 2 (1st Dept). Plaintiff's expert there theorized that facial injections of liquid silicone caused the plaintiff's conditions, as reflected in a condition that the expert called "silicon toxicity". The expert conceded that the theory of silicon toxicity is novel, not recognized in standard textbooks, "and indeed, except for his own unpersuasive observational studies (citation omitted), no supporting medical literature whatsoever was admitted into evidence. Plaintiff's expert further admitted that no scientific organization or national board has recognized a causal relationship between silicon and systematic disease, and that reputable scientific institutions * * * have issued statements that there is no evidence of such relationship".
This is not a case such as Gayle v. Port Authority, 6 AD3d 183, 184 (1st Dept, 2004) in which "no scientific or novel application of science was at issue". Rather Dr. McCord has reached a novel conclusion. In Lara v. New York City Health and Hospitals Corporation, 305 AD2d 106 (1st Dept, 2003) the Court said that, "Since plaintiff's malpractice claim rested solely on a theory, which is neither recognized nor accepted, Supreme Court properly granted defendant's motion to preclude plaintiff's expert's testimony".
In Selig v. Pfizer, 290 AD2d 319, the First Department precluded testimony by plaintiff's expert on causation when the expert's theory of causation was not supported by clinical data supporting their expert's theory. In Saulpaugh v. Krafte, 5 AD3d 934, at 936, (3rd Dept, 2004) the Court, citing Lara and Selig, (supra), said that "absent any controlled studies, clinical data, medical literature, peer review or supportive proof indicating that the expert's theory (of causation) was generally accepted by the relevant medical community, Supreme Court properly excluded testimony regarding that theory (citations omitted). As the motion papers failed to raise an issue of fact, it was unnecessary for the Court to hold a Frye hearing". [*3]
Defendant however relies upon some of the language in the cases just discussed to support the argument that since Dr. McCord and his partners were using standard observational techniques to compile their data, Dr. McCord should be permitted to testify as to their observations and their conclusions. The argument is impersuasive. In People v. Wesley, 83 NY2d 417, at 422 (1994), the Court of Appeals, considering the standard of admissibility stated, "While foundation concerns itself with the adequacy of the scientific procedures used to generate the particular evidence to be admitted, the test pursuant to Frye v. United States (293 F1013) poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. Only that Frye question is before us. The issues of a proper foundation and of the adequacy of laboratory procedures here are not before us, though some of the arguments made by the parties appear not to make this distinction". That distinction governs this application. Dr. McCord and his partners may have utilized generally accepted scientific techniques. However, the real problem with his proposed testimony is that the results generated by the use of those techniques have not been accepted as reliable within the medical community.
At oral argument it became clear that despite the passage of time since Dr. McCord's deposition, his article has not been published. Obviously the medical community cannot have accepted the results set forth in a proposed article that they cannot have read. In fact, as of the time of oral argument, it was not clear that the article had even been submitted for publication.
Dr. McCord's article not even having been published, (or even if it had been published) at this point, without reaction from the medical community, his conclusion as to causation amounts to nothing more than his "ipse dixit". See, Tannon v. Eppler, 5 AD3d 667 (2nd Dept, 2004). See, also Frankson v. Brown Williamson Tobacco Corp., 4 Misc 3d 1002 (Kings City, 2004). Accordingly, unlike Marsh v. Smyth, 12 AD3d 307 (1st Dept, 2004), here there is no literature, not even Dr. McCord's, supporting his conclusion.
Finally, as plaintiff notes, even Dr. McCord's ebt reflects that he was not as firm in his conclusion as defendant might wish. He said at one point "We're just now figuring out how some of this works and I think this- it's possible that this different vector of pull would help the mechanical action of that upper lid." (Dr. McCord deposition, p 47, 11, 19-22, Ex A to De Noto affirmation) (emphasis supplied).
Under all the circumstances, there is no issue to even send for a Frye hearing. Defendant is precluded from offering Dr. McCord's testimony as to his and his partner's theory of the placement of the lateral canthal anchors impacting on the upper eye lid and "this different vector of pull".
It is so ordered.
Dated:
J.S.C.
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