New York's Appellate Division Affirms Summary Judgment Based On Lack Of Specific Causation Of Toxic Exposure To Gas

• Published date: 28 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation
• Law Firm: Harris Beach
• Author: Ms Judi Abbott Curry and Thomas M. Porrazzo

New York's Appellate Division, First Department affirmed a decision of the Bronx County Supreme Court, which precluded plaintiff's expert evidence submitted in opposition to a summary judgment motion and following a Frye hearing, thereby, granting defendants summary judgment. Allen v. Consolidated Edison of N.Y., 2022 N.Y. Slip. Op. 02220 (April 5, 2022). The plaintiff's expert contended that exposure to natural gas and carbon monoxide, due to gas leaks in the plaintiff's apartment over several months, triggered early onset Huntington's Disease, a neurodegenerative disease, because plaintiff was caused to suffer hypoxia, which led to oxidative stress, which in turn triggered Huntington's, to which she was already genetically predisposed. The trial court found that a link between this exposure and Huntington's Disease has not gained any level of acceptance. Moreover, there were no scientific studies showing low levels of gas could cause hypoxia. Plaintiff's expert's reliance on symptoms and medical records to show "plaintiff must have sustained toxic exposure" was an "inverse approach" squarely rejected by the Court of Appeals. See Sean R. v BMW of N. Am., LLC, 26 N.Y.3d 801 (2016). The First Department affirmed this decision, as plaintiff failed to meet their burden of showing specific causation, consistent with Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006).

Both Parker and Sean R. derive from the Frye rule, as outlined in Frye v. United States, 293 F. 1013 (1923), and followed by New York Courts, holding that expert evidence based on scientific principles or procedures is admissible only after the principle or procedure has "gained general acceptance" in its specialized field, and the proponent of the evidence bears the burden of establishing general acceptance. A Court...