The cause of action for this case is for personal injury sustained by the plaintiff on September 7, 2002, when a portion of her bathroom ceiling collapsed on her head while she was in her apartment in the Bronx.
A Bronx Personal Injury Lawyer said that Defendant, in its motion, asserts that PET scans are not generally accepted in the medical community in the role of evaluation of minor brain trauma and, therefore, plaintiff’s PET scan evidence must be excluded. Defendant further asserts that the doctor is not qualified to interpret the PET scan results because he is not a Board Certified Nuclear Medicine Specialist.
Both parties agree that New York’s standards of admissibility for expert testimony based on scientific principles or procedures are governed by the “general acceptance test”.
Plaintiff’s affirmation in opposition cites a case wherein the First Department clarified the limited role of a Hearing, namely, to determine whether the expert’s deductions are based on principles that are sufficiently established to have gained general acceptance. Plaintiff also cites a case to establish the legislature’s intent regarding the admissibility of graphic, numerical, symbolic or pictorial representations of medical or diagnostic tests.
The 1993 New York State Legislative Annual clarifies the legislative intent. A Senator stated in a memorandum, “This bill represents a recognition of the advances in medical technology by allowing these well accepted diagnostic procedures to receive the same treatment that x-rays currently receive for authentication purposes in personal injury cases.”
While other states, as well as the Federal Government, may have varying standards for admitting expert testimony based on scientific principles, New York remains a Frye state. In a case, the court stated, “The important purpose of the Frye test is to ensure that courts do not rely upon an expert’s testimony regarding a novel procedure, methodology or theory unless it has been “generally accepted” within the relevant scientific community as leading to reliable results.
Finally, the court in a case stated that, “where the challenged theory of causation finds no objective support, but instead is based solely upon the expert’s own unsupported beliefs,” this would be a fertile ground for a successful challenge. Here, the doctor’s use of PET scans to diagnose traumatic brain injury is neither a novel procedure nor an unsupported personal belief. Plaintiff, in her affirmation in opposition, attached three peer review articles which provide objective support of the doctor’s particular use of PET scans. The peer review articles are helpful in establishing both the “general acceptance” and reliability of PET scans for diagnosing brain injury.
Defendant, in its motion, cites the federal standard that was established. However, New York courts have repeatedly declined to accept the federal standard for admitting scientific evidence, and this court is bound by this precedent as support for its argument, the defendant misinterprets the statute as implying an outright duty on the expert’s part to provide support for their opinion. Yet, the statute states that, ”
Defendant asserts that the doctor’s lack of board certification should preclude him from interpreting PET scan results and testifying as an expert witness. The doctor is the Director of the Neuroscience PET Laboratory at Mt. Sinai School of Medicine and has published well over 400 articles in his field of study. He has testified as an expert interpreting PET scans at many trials and his lack of board certification does not bar his testimony here.
Both parties in their motion also cite to a case where the doctor’s testimony was admitted in evidence during the sentencing phase of that trial. After admitting the evidence, the judge, as fact finder, determined that the doctor’s use of PET scans and his expert opinions derived therefrom were not helpful in making his determination. Therefore, it is appropriate that the doctor’s testimony be admitted at this trial for the jury, as fact finder, to determine its validity. The jury is free to accept or reject his testimony in whole or in part.
The proffered expert opinion represents the consensus of the medical and scientific community by clear and convincing evidence.
Accordingly, defendants’ motion to preclude the PET scan images and expert testimony by the doctor in reference to these images is denied.
For injuries sustained on one’s head, you can consult our Bronx County Brain Injury Lawyers here in Stephen Bilkis and Associates, who will give you an advice on the steps to take to pursue a claim. For other matters, you can consult our Bronx County Injury Attorneys.