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Application of the Frye Standard to Medical Expert Testimony

By Steven Glickstein and Robert Grass

This article addresses a recent decision of a New York state appellate court concerning the admissibility of expert medical testimony to establish causation in a case involving injuries allegedly incurred from treatment with a prescription medication. In Zito v. Zabarsky, 28 A.D.3d 42 (2d Dep't Jan. 24, 2006), the appellate court held that expert testimony that a plaintiff's injury was caused by a prescription medication was admissible when that testimony was based on a single case report indicating a link between the medication and the injury. The court's holding is inconsistent with other New York appellate decisions addressing the admissibility of expert testimony concerning medical causation and threatens to dilute New York's standard for making that assessment, and could have the same effect in other states that apply the same standard.

New York state courts apply the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine the admissibility of 'novel scientific evidence.' People v. Wesley, 83 N.Y.2d 417, 422 (1994). In People v. Wernick, 89 N.Y.2d 111, 117 (1996), the state's highest court, the Court of Appeals, held that the Frye test applies 'in all instances when a party seeks to present novel scientific or … medical evidence.' (Emphasis added.) Specifically, the court held that a defendant's attempt to offer expert testimony in 'an attempt to establish a 'pattern,' 'profile,' 'theory' or 'syndrome' to show certain characteristics of women who kill their newborns immediately after birth was subject to the Frye standard. The Court of Appeals affirmed the exclusion of that 'novel hypothesis' because that theory was 'not generally recognized in the relevant medical context and community.' Id. at 115.

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