Rowe v Fisher

Rowe v Fisher 2011 NY Slip Op 01721 Decided on March 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 10, 2011
Tom, J.P., McGuire, Acosta, Renwick, Freedman, JJ.
2011 3546 8213/00

[*1]Carol Rowe, etc., et al., Plaintiffs-Appellants,

v

Norma P. Fisher et al., Defendants, -and- New York City Health and Hospitals Corporation, Defendant-Respondent.



 
Gorayeb & Associates, P.C., New York (Mark J. Elder of
counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York
(Elizabeth I. Freedman of counsel), for resopndent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 8, 2009, which, insofar as appealed from as limited by the briefs, granted defendant New York City Health and Hospitals Corporation's motion to preclude plaintiffs' expert from testifying that plaintiff Carol Rowe should have been provided chelation therapy during pregnancy and to dismiss that allegation, unanimously affirmed, without costs.

The motion court properly precluded plaintiffs' expert testimony on chelation because the expert's theories were contrary to the medical literature on the subject and therefore "unreliable" (Parker v Mobile Oil Corp., 7 NY3d 434, 447 [2006]).

Furthermore, the court properly precluded the testimony pursuant to Frye v United States (293 F 1013 [1923]). Although we find that plaintiffs' theory that chelating Carol at the start of her third trimester would have prevented or reduced the claimed injuries to the infant plaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebut defendant's showing that this theory was not generally accepted within the relevant scientific community. Plaintiffs' [*2]position was based solely on their expert's own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2011

CLERK