The opinion of the court was delivered by: Freedman, J.
Frye v Montefiore Med. Ctr.
Appellate Division, First Department
Decided on September 18, 2012
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.
Peter Tom,J.P. John W. Sweeny, Jr. Dianne T. Renwick Helen E. Freedman Sheila Abdus-Salaam, JJ. Index 49939/02
Plaintiff appeals from the order of the Supreme Court, Bronx County (Stanley Green, J.), entered June 10, 2011, which granted defendants' motion pursuant to Frye v United States (293 F 1013 [DC Cir 1923]) to preclude plaintiff from offering evidence that a neural tube defect develops gradually over the first 10 to 12 weeks of gestation, that infant-plaintiff's encephalocele is a cause of his neurological damage, and that rupture/trauma of an encephalocele during a vaginal delivery caused or exacerbated the infant plaintiff's neurological damage, and thereupon dismissed the case; from the order same court and Justice, entered on or about June 10, 2011, which granted defendants' motion to strike plaintiff's supplemental bill of particulars; and from the order, same court and Justice, entered on or about September 14, 2011, which, inter alia, denied plaintiff's motion to renew defendants' Frye motion.
In this obstetrical medical malpractice action, we are called upon to decide, inter alia, whether the denial of defendants' summary judgment motion(s) (70 AD3d 15 [1st Dept. 2009]) prevents our considering defendants' motion in limine to preclude plaintiff's expert, Dr. Chone Ken Chen, from offering evidence specifically related to the cause of the infant plaintiff's neurological impairments. We find that it does not because the summary judgment motion focused on different issues from those in the evidentiary motion before us now and because the posture of the case differed when each motion was presented. We further find that motion court properly granted the motion to preclude, finding that Dr. Chen's theories were not generally accepted in either the obstetrical or neurological community (see Frye v United States, 293 F 1013 [DC Cir 1923]), and accordingly, properly dismissed the case as plaintiff would not be able to make out a prima facie case. We also find that defendants' motion to strike plaintiff's supplemental bill of particulars advancing a new theory of causation was properly granted, and that plaintiff's motion for leave to renew and reargue was properly denied.
Plaintiff's son, Sherkell RichardLee Frye-Samuels, now 12 years old, was born with an 2.5-centimeter occipital encephalocele, which is a skin-covered, sac-like protrusion of brain tissue and related membranes through an opening in the back of the skull. An encephalocele originates from the failure of a neural tube to close, as it should, during the early days of fetal development.
Plaintiff claims that the moving defendants, who provided her obstetrical care, deviated from good and accepted medical practice by failing to properly treat her diabetes with insulin following her discharge from their facility in December 1999, by failing to diagnose the encephalocele during her pregnancy, and by not performing a cesarean section, and that all those departures contributed to the infant's neurological damage. By their motion in limine, defendants now seek to preclude testimony by plaintiff's expert, Dr. Chen, that a neural tube defect develops gradually over the first 10 to 12 weeks of gestation (by which time plaintiff was under defendants' care), that the encephalocele rather than or in addition to the neural tube defect is a cause of his neurological damage, and that trauma to or rupture of an encephalocele during a vaginal delivery can or did cause additional neurological damage.
Defendants argue that the neural tube failure was the sole cause of the infant's impairment and that the failure occurred before plaintiff came under their care. Accordingly, defendants contend, the alleged departures could not have been a proximate cause of the infant's injuries.
Although the motion court offered both parties an opportunity to present witnesses in a Frye evidentiary hearing, defendants opted to rely on their papers, and plaintiff rejected the opportunity either for a hearing or to submit further papers on the ground that the there was no basis to consider the reliability of her expert before trial. However, plaintiff did submit unredacted versions of previously submitted opposition affidavits, and further responsive papers but waived her right to submit further papers or to a hearing (see Matter of York v Zullich, 89 AD3d 1447 [4th Dept. 2011]).
Although we previously affirmed the denial of defendants' summary judgment motions (70 AD3d 15 [1st Dept. 2009]), at which time some of the same issues were raised, defendants now seek a specifically focused evidentiary ruling and furnish evidence that challenges the entire basis of Dr. Chen's causation theories. The very experts whose work Dr. Chen cited in support of his causation theories have submitted affidavits that directly controvert those theories and explain how Dr. Chen has misinterpreted their works. While the summary judgment motions concerned both liability and damages, further examination of the underlying basis of plaintiff's expert's theories as to the cause of the infant's impairments demonstrates that they are neither reliable nor generally accepted in the medical community (see Frye v United States, 293 F 1013 [DC Cir 1923]; People v Wesley, 83 ...