Ann Styles et al., Respondents-Appellants, v General Motors Corporation, Appellant-Respondent, and Philip Wiener et al., Respondents, et al., Defendant.
Supreme Court, Appellate Division, First Department, New York
July 21, 2005
799 N.Y.S.2d 38
Ann Styles et al., Respondents-Appellants, v General Motors Corporation, Appellant-Respondent, and Philip Wiener et al., Respondents, et al., Defendant. [799 NYS2d 38]
Appeal from judgment, Supreme Court, New York County (Donna Mills, J.), entered October 1, 2002, after a jury trial, in favor of plaintiffs in the amount of $5,206,553, held in abeyance, and the matter remanded for a Frye hearing.
Plaintiffs’ decedent sustained fatal injuries when the Chevrolet Suburban SUV in which he was a passenger overturned after being hit by another vehicle. The parties agreed that plaintiffs were without fault in the accident, which happened when the Wiener defendants’ vehicle suddenly crossed a median divider and struck plaintiffs’ SUV head-on, causing it to spin counterclockwise, slide on its side and roll over, eventually coming to rest on its roof, which collapsed on the front passenger‘s side. Sharp factual disagreements about the SUV‘s crashworthiness were submitted for the jury‘s determination including how many times plaintiffs’ vehicle rolled over, how much force was applied to the front passenger roof area, and whether any automobile manufacturer could adequately protect a passenger from the force to which the roof was subjected.
According to plaintiffs’ experts, the first part of the test is substantially similar to the generally accepted
With respect to the second phase of plaintiffs’ experiment, it is uncontroverted that “drop testing” of vehicles to determine the crashworthiness of roofs is a routine, widely accepted scientific technique. Internal documents of General Motors indicate that the company had contemplated, if not actually conducted, drop tests from a height of 5 1/2 feet, at a pitch angle of 0 degrees and a roll angle of 45 degrees, which is substantially similar to plaintiffs’ test. Plaintiffs’ experts explained the reasons for the particular angles and height selected for their experiment, and defendants conducted a thorough cross-examination and presented their own experts.
Where, as here, the trial court admits expert testimony without conducting a preliminary inquiry into the reliability of the procedures utilized by the experts, the proper course is to hold the appeal in abeyance while the matter is remanded for a posttrial Frye hearing (see People v Roraback, 242 AD2d 400, 406 [1997], lv denied 91 NY2d 879 [1997]). At such a hearing, plaintiffs’ experts would need to establish, inter alia, the general acceptance of their combination of the tests discussed, supra, and substantiate how the precise measurements of angle, weight, height, time, and other components were taken. Plaintiffs’ experts would be limited to discussing the experiment they presented at trial, and would be precluded from offering any new or supplemental tests. Concur—Buckley, P.J., Mazzarelli and Gonzalez, JJ.
Friedman and Catterson, JJ., concur in a separate memorandum by Catterson, J., as follows: Although I join with the majority in remanding the matter for a posttrial Frye hearing, I write separately in order to point out that the record supports going further, and ordering a new trial as to liability. As set forth below, it is clear from the existing record that the testimony and proof of the plaintiffs’ experts was deficient.
Plaintiffs’ decedent sustained fatal injuries when the Chevrolet Suburban sport utility vehicle in which he was a passenger overturned after being hit by another vehicle. The jury returned a liability verdict against General Motors, the Suburban‘s designer and manufacturer, finding that the Suburban had a defective roof structure and that such defect was a substantial factor in enhancing the decedent‘s injuries and causing his death.
The results of a test intended to show the nature or tendency of an object are only admissible at trial if the test was conducted under conditions “sufficiently similar to the ones at issue to make the results achieved relevant.” (Cramer v Kuhns, 213 AD2d 131, 138 [3d Dept 1995], lv dismissed 87 NY2d 860 [1995].) While the test conditions need not be identical, there must be sufficient similarity to permit the inference that the results of the experiment shed light on what occurred in the accident. Where plaintiff fails to make the necessary showing of similarity, the experimental evidence must be excluded. (People v Cohen, 50 NY2d 908, 910 [1980]; see also Weinstein v Daman, 132 AD2d 547, 548-549 [2d Dept 1987], lv dismissed 70 NY2d 951 [1988].)
It is uncontroverted that the test performed by plaintiffs’ experts was not conducted under conditions “sufficiently similar” to that of the accident in question. Indeed, under cross-examination, plaintiffs’ expert testified that the test conditions only represented the crash “in a general way.” Additionally, the time frame of the test as well as the altitude at which the test vehicle was suspended did not match the uncontested details of the accident in any way whatsoever.
There is an additional reason that evidence heard on the Nash experiment should not have been admitted. It is well settled in New York that scientific opinion evidence will only be admitted at trial if the procedure and results are generally accepted as reliable in the scientific community. (People v Wernick, 89 NY2d 111, 115-116 [1996]; People v Wesley, 83 NY2d 417, 423 n 2 [1994]; People v Hughes, 59 NY2d 523, 537 [1983]; see also Frye v United States, 293 F 1013 [DC Cir 1923]; Selig v Pfizer, Inc., 290 AD2d 319 [2002], lv denied 98 NY2d 603 [2002].)
This “general acceptance” or “Frye test” applies to all areas of scientific analysis including engineering. (Clemente v Blumenberg, 183 Misc 2d 923 [Sup Ct, Richmond County 1999].) It puts upon the proponent of scientific evidence the “burden of establishing the general scientific acceptance of the expert‘s theories.” (People v Kanani, 272 AD2d 186, 187 [2000], lv denied
In order to satisfy the Frye test, proponents of opinion testimony must show that the theories propounded by their experts were based on tests, procedures or methodology which have been “sufficiently established to have gained general acceptance in the particular field in which it belongs.” (People v Wesley, 83 NY2d at 423, quoting Frye v United States, 293 F at 1014 [emphasis omitted].) While this does not mean that the methodology used must be “unanimously indorsed by the scientific community[, it must be shown to] be generally acceptable as reliable.” (Id., quoting People v Middleton, 54 NY2d 42, 49 [1981] [internal quotation marks omitted.])
The trial court failed to address this issue at all. Plaintiffs’ experts conceded that the test described above has never been used to assess the structural strength of a vehicle. There was no recognized protocol for the test and no body of scientific or engineering data to verify the results of the test and the conclusions drawn therefrom. Plaintiffs’ experts could not show that the Nash experiment had gained general acceptance, and evidence of the experiment and its purported results should not have been admitted in evidence. (Lara v New York City Health & Hosps. Corp., 305 AD2d 106, 106 [2003] [court properly struck expert testimony where plaintiff “failed to meet his burden of proof at the Frye hearing held during trial, that his expert‘s theory is generally accepted in the medical community” (citation omitted)]; see Selig v Pfizer, Inc., 290 AD2d 319 [2002] [same]; see also People v Wesley, 83 NY2d at 422 [“(i)t should be emphasized that the inquiry here is into the reliability of the DNA evidence at the time of the proceedings in this case” (emphasis added)].)