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World City Foundation, Inc. v. Sacchetti

Other Lower Courts

January 28, 2008

World City Foundation, Inc. and Charles D. Brown, in his capacity as Personal Representative of the Estate of John Rogers, decedent, Plaintiffs,
Vito Sacchetti and T.M.S. Management Co., Defendants

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Joan A. Madden, J.

In this action, plaintiffs allege that the decedent John Rogers' ("Rogers") multiple myeloma was exacerbated by stress resulting from defendants' conduct during the last several years of their approximately 15-year landlord-tenant relationship. [1]

Defendants moved for summary judgment to dismiss, inter alia, plaintiffs' cause of action for the intentional infliction of emotional distress on the grounds that plaintiffs cannot establish by competent medical evidence that defendants' conduct resulted in severe emotional distress. Defendants also argued that Rogers cannot establish his allegations that defendants' conduct exacerbated his multiple myeloma since there is no general acceptance in the scientific community that a cause and effect relationship exists between stress and the exacerbation of multiple myeloma.

In connection with the motion, the parties submitted conflicting affidavits of their respective medical experts. In the affidavit submitted by defendants, Jeffrey Schneider, M.D., a board certified physician specializing in oncology/hematology, [2] opined that there is no medical support for plaintiffs' theory that stress exacerbates multiple myeloma, and that there are no reported studies in the medical literature to support this theory.

In opposition, plaintiffs relied on the affidavit of Dr. Brian Durie, a physician who is board certified in oncology, hematology and internal medicine and who specializes in multiple myeloma and related diseases and is the Chairman and Medical Director of the International Myeloma Foundation. [3] Dr. Durie opined that there is a strong correlation between stress and multiple myeloma, and that there is a "link between stress which John Rogers describes and the progression of his case from MGUS [4] to myeloma which occurred during the same period [as the stress] is clear and medically predictable." [5] Based on the conflicting opinions stated in the affidavits, a hearing was ordered to determine the admissibility of evidence regarding plaintiffs' theory of causation.

New York courts apply the standard established by Frye v United States, 293 F 1013 (1923) for screening of novel scientific evidence. Under the rule in Frye, scientific evidence, including expert testimony, must be based on "a principle or procedure [which] has gained general acceptance' in its specified field." People v Wesley, 83 N.Y.2d 417, 422 (1994)(quoting Frye, supra, at 1014).

"The particular procedure need not be unanimously endorsed' by the scientific community but must be generally accepted as reliable."' Id at 423 ( quoting People v. Middleton, 54 N.Y.2d 42, 49 [1981]). " [G]eneral acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather, it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions." Zito v. Zabarsky, 28 A.D.3d 42, 44 (2d Dept 2006)(quoting Beck v. Warner-Lambert Co., 2002 WL 31107923, NY Slip Op. 40431(U) [Sup Ct. NY Co. 8-16-02]).

The question is "whether the proffered expert opinion properly relates existing data, studies or literature to the plaintiff's situation, or whether instead it is connected to existing data only by the ipse dixit of the expert."' Marsh v. Smythe, 12 A.D.3d 307, 312 (1st Dept 2004) (concurring opinion, Saxe, J.) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 [1997]). When, as here, the issue concerns a causal connection, a plaintiff's expert must set forth scientific evidence based on generally accepted principles showing such a causal link. Selig v. Pfizer, Inc., 290 A.D.2d 319, 320 (1st Dept), lv denied, 98 N.Y.2d 603 (2002). Such a showing can be made "through judicial opinions, texts, laboratory standards or scholarly articles." Marsh v. Smythe, 12 A.D.3d at 311 (quoting People v Wesley, 83 N.Y.2d at 437, concurring opinion, Kaye, J.). However, it is not necessary that "the underlying support for the theory of causation consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the plaintiff's expert." Marsh v. Smythe, at 312-313.

Here, plaintiffs do not rely on studies or literature which specifically and directly find that stress exacerbates multiple myeloma. Rather, plaintiffs rely on a synthesis of the opinion and research of Dr. Durie, a clinical oncologist/hemotologist, Dr. Janice Kiecolt-Glaser, a psychologist, and Dr. Ronald Glaser, a psychologist/virologist and various scientific studies and articles which they reference in their testimony. [6] Plaintiffs contend that their theory is generally accepted in the field of psychoneuroimmunology "PNI" which Dr. Durie identified as an emergent interdisciplinary field of psychiatrists, neurologists and immunologists. Dr. Ronald Glaser described the field as beginning to coalesce in the late 1970's early 1980's and involving the study of the interaction of the central nervous system, and the immune and endocrine systems. Plaintiffs acknowledge that PNI is not recognized by the American College of Physicians nor by the American Medical Association. However, they contend the lack of recognition is not relevant, as the American College of Physicians identifies categories of clinical specialties and PNI is not such a specialty, and the American Medical Association identifies areas of treatment and PNI is not an area of treatment.

Plaintiffs contend, as Dr. Ronald Glaser testified, that recognition of a field of study such as PNI occurs gradually when the field through research, publications, grants and other means gains credibility in the medical and scientific community. Plaintiffs further contend that PNI is a recognized field based on the publication in the field of numerous articles and studies subject to peer review, on a review of PNI by the Institute of Medicine, the medical arm of the National Academy of Science to identify areas of research being conducted within PNI, on the decision of the National Cancer Institute to encouraged research in PNI as to the relationship between stress and cancer, and on the existence of the Society of PNI which publishes a journal, "Brain, Behavior and Immunology." Furthermore, Dr. Kiecolt-Glaser and Dr. Ronald Glaser testified their research is conducted in PNI, they and others have published numerous studies in the field, and have received substantial grants, including finding from the National Institute of Health. Furthermore, Ronald Glaser testified that he is the Director of the Institute for Behavioral Medicine Research ("IBMR") at the Ohio State University Medical Center which has faculty engaged in research involving various disciplines, which comprise PNI, including psychology, endocrinology, immunology and neuroscience.

Defendants contend that PNI, while an area of interdisciplinary research, is not the relevant scientific community relevant to the issues raised in the Frye hearing. Rather defendants contend that the relevant community is the medical community, and specifically the specialty of hematology/oncology, i.e. the treatment and study of cancer of the blood. Defendants' expert, Dr. Schneider, who, as previously mentioned, is board certified in hematology/oncology, testified that there is no support in the medical literature nor is it generally accepted in the hematology/oncology community that stress exacerbates multiple myeloma. According to Dr. Schneider, the official position of the National Cancer Institute is that it has not been established that there is any connection between stress and worsening multiple myeloma.

It is well settled law, that plaintiffs as the proponents of the theory have the burden of proof at the Frye hearing. See Lara v. New York City Health & Hospitals Corp.,305 A.D.2d 106 (1st Dept 2003). For the reasons delineated below, this court concludes that plaintiffs have failed to meet their burden. This court rejects plaintiffs' contention that PNI is the relevant scientific community, and their contention regarding the general acceptance and implications of the studies and research cited as a basis for a synthesis supporting their theory. In essence, plaintiffs argue that general acceptance in the relevant scientific/medical community of a causal relationship between stress and the progression of multiple myeloma can ...

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