Leffler v. Feld

Appellate Division of the Supreme Court of New York

Leffler v. Feld

51 A.D.3d 410, 856 N.Y.S.2d 106

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 1, 2008

StatusPublished

Cited by1 cases

This text of 51 A.D.3d 410 (Leffler v. Feld) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leffler v. Feld, 51 A.D.3d 410, 856 N.Y.S.2d 106 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, Bronx County (Edgar Walker, J.), entered June 12, 2007, which granted defendant’s motion for a Frye hearing, unanimously affirmed, without costs. Order, same court and Justice, entered July 18, 2007, which, after the Frye hearing, precluded the testimony of plaintiffs’ expert, unanimously reversed, on the law, without costs, and defendant’s motion to preclude denied.

The court correctly concluded that the theory of causation in this medical malpractice action was a novel one (see Frye v United States, 293 F 1013 [DC Cir 1923]) and thus warranted a Frye hearing (see Zito v Zabarsky, 28 AD3d 42, 44 [2006]). However, the court erred in concluding that plaintiffs failed to establish that there is general acceptance in the medical community of a causal link between Altace and the development of pemphigus vulgaris. The medical literature cited by plaintiffs’ expert, which included a Food and Drug Administration mandate that pemphigus be added to the manufacturer’s list of adverse reactions to Altace, supported his theory that Altace can cause pemphigus, thus satisfying the Frye standard (see Zito, 28 AD3d at 45-46; DieJoia v Gacioch, 42 AD3d 977, 978-980 [2007]; Marsh v Smyth, 12 AD3d 307 [2004]). Concur— Lippman, P.J., Gonzalez, Moskowitz and Acosta, JJ.

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Order, Supreme Court, Bronx County (Edgar Walker, J.), entered June 12, 2007, which granted defendant’s motion for a Frye hearing, unanimously affirmed, without costs. Order, same court and Justice, entered July 18, 2007, which, after the Frye hearing, precluded the testimony of plaintiffs’ expert, unanimously reversed, on the law, without costs, and defendant’s motion to preclude denied.

The court correctly concluded that the theory of causation in this medical malpractice action was a novel one (see Frye v United States, 293 F 1013 [DC Cir 1923]) and thus warranted a Frye hearing (see Zito v Zabarsky, 28 AD3d 42, 44 [2006]). However, the court erred in concluding that plaintiffs failed to establish that there is general acceptance in the medical community of a causal link between Altace and the development of pemphigus vulgaris. The medical literature cited by plaintiffs’ expert, which included a Food and Drug Administration mandate that pemphigus be added to the manufacturer’s list of adverse reactions to Altace, supported his theory that Altace can cause pemphigus, thus satisfying the Frye standard (see Zito, 28 AD3d at 45-46; DieJoia v Gacioch, 42 AD3d 977, 978-980 [2007]; Marsh v Smyth, 12 AD3d 307 [2004]). Concur— Lippman, P.J., Gonzalez, Moskowitz and Acosta, JJ.

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Bluebook (online)

51 A.D.3d 410, 856 N.Y.S.2d 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leffler-v-feld-nyappdiv-2008.

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