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Reeps ex rel. Reeps v. BMW of North America, LLC

Supreme Court of New York, New York County

May 10, 2013

Sean REEPS, an Infant by His Mother and Natural Guardian, Debra REEPS, Plaintiffs,
v.
BMW OF NORTH AMERICA, LLC, BMW of North America, Inc., BMW(US) Holding Corp., Martin Motor Sales, Inc., Hassel Motors, Inc., Defendants. No. 100725/08.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Phillips & Paolcelli, LLP, New York, for Plaintiff.

LeClair Ryan, P.C., New York, for Defendant.

LOUIS B. YORK, J.

Plaintiffs move, pursuant to CPLR 2221(d) and (e) and 5701(c) for (a) a hearing (either at trial or pretrial) on the admissibility of plaintiffs' witnesses as to causation, Drs. Frazier, Bearer, Kramer, Adler and Sadler; (b) reargument or reconsideration of this court's decision of December 16, 2012 (" Decision" ) precluding the testimony of Drs. Frazier and Kramer; (c) renewal of the said decision, based upon new scientific evidence and new case authority; (d) an order granting plaintiffs the right to appeal the said decision to the Appellate Division, First Department.

Motion to reargue

Plaintiffs allege that this court misapprehended or ignored the factual record before it, impermissibly resolved credibility disputes between the parties' experts, and misapplied settled legal precedent (George Aff. at ¶ 3). Counsel for plaintiffs lists 15 " facts overlooked by the court" ( id., at ¶¶ 27-31). The very first " fact" in this list misrepresents the court's decision. The court allegedly stated that " plaintiff's experts did not opine on quantification." In reality, the court stated: " Plaintiffs' experts expressed opinions on all three required elements of proof of causation." (Decision, P.9). The reason counsel finds " mistakes" in the Decision is that she is not aware of differences between a " threshold" and a " dose-response relationship" (" mistake" No 6), between general and specific causation (" mistake" No. 7), does not know what a controlled epidemiological study is (" mistake" No. 8) or what " systematic" means (" mistake" No 14). In general, attorney for plaintiffs misrepresents the substance of this court's Decision. The court did not prefer conclusions of defendants' experts to that of plaintiffs— disagreement among experts is to be expected, since causation analysis involves professional judgment in interpreting data and literature. An expert opinion is precluded when it is reached in violation of generally accepted scientific principles. The court determined that Drs. Kramer and Frazier did not follow generally accepted scientific methodology.

Both experts did not cite a single scientific publication that establishes a causal link between exposure to gasoline vapors during pregnancy and the birth defects found in Sean Reeps. Gasoline is a common substance, frequently reviewed for toxicity by federal and state regulatory agencies. The Agency for Toxic Substances and Disease Registry (ATSDR), an agency of the U.S. Department of Health and Human Services, publishes detailed peer-reviewed analyses of potentially toxic agents based on all available scientific evidence. The volume on gasoline, which Dr. Frazier cites only for data about gasoline composition, did not find gasoline to be a developmental toxin (capable of producing defects in a developing fetus).[1]. The State of California, under Proposition 65, The Safe Drinking Water and Toxic Enforcement Act of 1986, continuously updates its list of reproductive and developmental hazardous materials. The list is compiled by expert committees under peer review. The latest list, issued on April 19, 2013, does not include developmental effects of gasoline. [2] Contrary to established scientific practices, Drs. Kramer and Frazier pass over these negative results in silence. Instead, they claim to have found a causal link between gasoline and developmental outcomes that escaped other scientists.

Methods that Drs. Kramer and Frazier claim to use are those developed in epidemiology, including Bradford Hill criteria, as well as the general weight-of-evidence method and differential diagnostics. The court will cite the Reference Manual on Scientific Evidence, produced by the Federal Judicial Center and the National Research Council (hereafter " Reference Manual" ) which sets forth accepted methodologies in epidemiology and toxicology.

Three basic issues arise when epidemiology is used in legal disputes, and the methodological soundness of a study and its implications for resolution of the question of causation must be assessed:

1. Do the results of an epidemiological study or studies reveal an association between an agent and disease?
2. Could this association have resulted from limitations of the study (bias, confounding, or sampling error), and if so, from which?
3. Based on the analysis of limitations in Item 2, above, and on other evidence, how plausible is a causal interpretation of the association? [3]

The authors of the reference guide on epidemiology offer a number of important caveats. These caveats address the same deficiencies in experts' opinions pointed out in the Decision. It is well known that there can be no specific causation (the agent causing disease in a particular individual) in the absence of general causation (the agent is capable of causing disease). [4] Epidemiology deals with general causation, specific causation is beyond its limits.[5] The first question an epidemiologist addresses is whether an association exists between exposure to the agent and disease. The standard guidelines for inferring causation are based on Bradford Hill criteria. " These guidelines are employed only after a study finds an association to determine whether that association reflects a true causal relationship." [6] (emphasis in the ...


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