Brown v Allerton Assoc.
Annotate this CaseDecided on October 5, 2006
Supreme Court, Bronx County
Angeline Brown, Plaintiff,
against
Allerton Associates, Defendants.
17917/03
Plaintiff's Counsel: Ruth E. Bernstein, Esq.
Defendant's Counsel: Christian D. Lofaro, Esq.
Alexander W. Hunter, J.
Upon the foregoing papers, the motion by the defendant seeking to preclude the testimony of plaintiff's proposed PET Scan Expert, Monte S. Buchsbaum, M.D. is denied.
The cause of action is for personal injuries sustained by the plaintiff on September 7, 2002, when a portion of her bathroom ceiling collapsed on her head while she was in her apartment in the Bronx.
Defendant, in its motion, asserts that PET scans are not generally accepted in the medical community in the role of evaluation of minor brain trauma and, therefore, plaintiff's PET scan evidence must be excluded. Defendant further asserts that Dr. Buchsbaum is not qualified to interpret the PET scan results because he is not a Board Certified Nuclear Medicine Specialist.
Both parties agree that New York's standards of admissibility for expert testimony based on scientific principles or procedures are governed by the "general acceptance test" set forth in Frye v. United States, 293 F.Supp 1013 (D.C. Cir. 1923).
Plaintiff's affirmation in opposition cites Marsh v. Smith, 12 AD3d 307 (1st Dept. 2004), wherein the First Department clarified the limited role of a Frye Hearing, namely, to determine whether the expert's deductions are based on principles that are sufficiently established to have gained general acceptance. Plaintiff also cites C.P.L.R §4532-a to establish the legislature's intent regarding the admissibility of graphic, numerical, symbolic or pictorial representations of medical or diagnostic tests.
In 1993, the legislature amended C.P.L.R. §4532-a to include positron emission tomographs (PET scans). The section reads in part, "[in] an action in which a claim for personal injuries is asserted, an X-ray, magnetic resonance image, computed axial tomography, positron emission tomography, electromyogram, sonogram or fetal heart rate monitor strips of any party thereto is admissible in evidence ." (L.1993, c. 482 Legislation) [*2]
In 2001, the legislature again amended C.P.L.R. §4532-a, removing the list of specific scientific tests, and broadening the language of the statute to avoid having to amend the statute every time a new test is developed.
The 1993 New York State Legislative Annual clarifies the legislative intent. Senator Michael J. Tully Jr. stated in a memorandum, "This bill represents a recognition of the advances in medical technology by allowing these well accepted diagnostic procedures to receive the same treatment that x-rays currently receive for authentication purposes in personal injury cases (emphasis added)." (Chapter 482 S.5992)
While other states, as well as the Federal Government, may have varying standards for admitting expert testimony based on scientific principles, New York remains a Frye state. In Marsh v. Smith, the court stated, "The important purpose of the Frye test is to ensure that courts do not rely upon an expert's testimony regarding a novel procedure, methodology or theory unless it has been "generally accepted" within the relevant scientific community as leading to reliable results (citations omitted). Id. at 310.
Citing Chief Judge Kaye in her concurring opinion in People v. Wesley, 83 NY2d 417 (1994), the court in Marsh v. Smith clarified the reliability analysis under Frye. "[It] is not for our Court to determine whether the method was or was not reliable but whether there was consensus in the scientific community as to its reliability. The Frye test emphasizes counting scientists' votes, rather than on verifying the soundness of a scientific conclusion." Id. at 311.
Finally, the court in Marsh v. Smith stated that, "where the challenged theory of causation finds no objective support, but instead is based solely upon the expert's own unsupported beliefs," this would be a fertile ground for a successful challenge. Id. at 312. Here, Dr. Buchsbaum's use of PET scans to diagnose traumatic brain injury is neither a novel procedure nor an unsupported personal belief. Plaintiff, in her affirmation in opposition, attached three peer review articles which provide objective support of Dr. Buchsbaum's particular use of PET scans. The peer review articles are helpful in establishing both the "general acceptance" and reliability of PET scans for diagnosing brain injury.
Defendant, in its motion, cites the federal standard that was established under Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). However, New York courts have repeatedly declined to accept the federal standard for admitting scientific evidence, and this court is bound by this precedent. Citing C.P.L.R. §4515 as support for its argument, the defendant misinterprets the statute as implying an outright duty on the expert's part to provide support for their opinion. Yet, the statute states that, "Upon cross-examination, [an expert] may be required to specify the data and other criteria supporting the opinion (emphasis added)." According to C.P.L.R. §4515, defendants are within their right to cross-examine the basis of the opinion. But the statute does not provide any support for excluding the scientific evidence.
Defendant asserts that Dr. Buchsbaum's lack of board certification should preclude him from interpreting PET scan results and testifying as an expert witness. Dr. Buchsbaum is the Director [*3]of the Neuroscience PET Laboratory at Mt. Sinai School of Medicine and has published well over 400 articles in his field of study. He has testified as an expert interpreting PET scans at many trials and his lack of board certification does not bar his testimony here. (See, Steinbuch v. Stern, 2 AD3d 709 [2nd Dept., 2003], where the trial court abused its discretion in disqualifying the proffered expert because he did not have a medical degree. The court was required to assess his qualification based upon his professional background, training, study, and experience.)
Both parties in their motion also cite to United States v. Gigante, 996 F. Supp. 194 (E.D.NY 1998). In this case, Dr. Buchsbaum's testimony was admitted in evidence during the sentencing phase of that trial. After admitting the evidence, the judge, as fact finder, determined that Dr. Buchsbaum's use of PET scans and his expert opinions derived therefrom were not helpful in making his determination. Therefore, it is appropriate that Dr. Buchsbaum's testimony be admitted at this trial for the jury, as fact finder, to determine its validity. The jury is free to accept or reject his testimony in whole or in part.
The proffered expert opinion represents the consensus of the medical and scientific community by clear and convincing evidence. People v. Williams, 6 NY2d 18 (1958).
Accordingly, defendants' motion to preclude the PET scan images and expert testimony by Dr. Buchsbaum in reference to these images is denied.
This opinion constitutes the decision and order of this court.
Dated October 5, 2006________________________
Bronx, New YorkJ.S.C.
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