A Frye hearing is required where two sides have opposing literature on a contested novel serviceOctober 27, 2016
Sepulveda v Dayal, 2016 NY Slip Op 06949 (2016)
(1) To paraphrase, there were many experts who offered differing testimony “whether the infant plaintiff’s neuroblastoma could have been discovered before birth”
(2) “Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing”
(3) “As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing.”
This one is quite interesting for a variety of reasons. Fist, Plaintiff’s have provided a new or novel theory on a medical proposition of fact, that is supported with peer reviewed literature. Second, Defendants have provided evidence that the theory is not reliable. The Court has set the matter down for a Frye hearing.
In the world we practice in, I am thinking of platelet theory and laser acupuncture?