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Application of the Frye Standard to Medical Expert Testimony
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.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.