Rowe v. Fisher

82 A.D.3d 490, 918 N.Y.2d 342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2011
• Status: Published

Opinion

The motion court properly precluded plaintiffs’ expert testimony on chelation because the expert’s theories were contrary to the medical literature on the subject and therefore “unreliable” (Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]).

Furthermore, the court properly precluded the testimony pursuant to Frye v United States (293 F 1013 [1923]). Although we find that plaintiffs’ theory that chelating Carol at the start of her third trimester would have prevented or reduced the claimed injuries to the infant plaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebut defendant’s showing that this theory was not generally accepted within the relevant scientific community. Plaintiffs’ position was based solely on their expert’s own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]). Concur— Tom, J.E, McGuire, Acosta, Renwick and Freedman, JJ.