Rigorous application of New York Frye test results in exclusion of plaintiff's experts in gasoline vapor case

February 16, 2016

Products Alert

Author(s): Benjamin R. Dwyer, Vivian M. Quinn

The New York Court of Appeals recently affirmed exclusion of plaintiff’s expert witnesses in a toxic tort matter, reinforcing the trial court’s role as a gatekeeper. This alert discusses what businesses need to know.

If there was any question whether New York’s standard for admissibility of expert evidence in toxic tort lawsuits is less robust than in other jurisdictions, that notion should be laid to rest. On February 11, the New York Court of Appeals upheld the exclusion of two plaintiff’s experts in a case involving exposure to gasoline vapor in utero. The case, Sean R. v. BMW of North America, [1] joins Parker v. Mobil Oil Corp. [2] and Cornell v. 360 West 51st Street Realty [3] in demonstrating that New York courts are as rigorous as any in scrutinizing proposed expert testimony.


The plaintiff was born in 1991 with severe neurological abnormalities and a congenital heart defect. He claims his physical condition was caused by his exposure in utero during the first trimester to unleaded gasoline fumes in the passenger compartment ‎of his mother’s car. The car was found to have a split fuel line in the engine compartment that was repaired at approximately the end of the first trimester of his mother’s pregnancy.

To establish his causation case, the plaintiff had to establish (1) that in utero exposure to unleaded gasoline fumes may cause the type of condition(s) plaintiff experienced (general causation) and (2) that exposure to such fumes caused the condition(s) in the plaintiff’s case, ruling out of other possible causes (specific causation). There were no epidemiology studies supporting an association between unleaded gasoline vapor and birth defects. Given this, to show general causation, the plaintiff’s experts tried to extrapolate from cohort studies involving occupational exposures to some minor constituents of gasoline vapor and from case studies involving birth outcomes from leaded rather than unleaded gasoline. In addition, there had been no measurement of vapor levels in the plaintiff’s mother’s car. As to specific causation, the experts did not attempt to model the likely levels of gasoline vapor in the passenger compartment, but rather used reports by the plaintiff’s mother and others who smelled gasoline vapor and complained of headache and nausea at the time to estimate the vapor concentration to be at least 1000 ppm.

The trial court wrote two lengthy opinions and, applying the Frye standard, deemed the experts’ methods not generally accepted on both general and specific causation. The Appellate Division affirmed and certified the case to the Court of Appeals. The Court of Appeals unanimously affirmed.

The Court’s decision

In affirming the trial court’s exclusion of the experts, the Court of Appeals focused on specific causation only. The Court took issue with the experts’ methodology of using study conclusions about the threshold for experiencing mild toxic effects of gasoline (headaches, nausea) to “work[] backwards from reported symptoms to divine an otherwise unknown concentration of gasoline vapor.” The Court stressed that the experts had not identified any study, report, article or opinion that employs such a methodology and that they did not show that this “symptom-threshold” methodology has been generally accepted in the scientific community. The Court of Appeals thus held that the trial court properly excluded the expert testimony.

The Court of Appeals sidestepped general causation. It therefore let stand without comment the trial court’s rejection of the plaintiff’s experts’ employment of a “weight-of-the-evidence” analysis. The plaintiff and his amici had argued that the lack of relevant epidemiology did not mandate dismissal of the case on general causation grounds. The trial court agreed but nevertheless repeated the oft-cited proposition that there must be a generally accepted methodology underlying an expert’s conclusions and reliability of the procedures followed to establish a foundation for the reception of the proffered evidence at trial. The trial court faulted the plaintiff’s experts for relying on case studies with different exposures (leaded gasoline) and different endpoints (outcomes different than the plaintiff’s). It also faulted the experts for focusing on the constituents of unleaded gasoline vapor when those constituents only accounted for 2% of its content.

Looking ahead

The Court of Appeals used the Sean R. case to reinforce the trial courts’ role as a gatekeeper to prevent introduction of testimony based on a methodology that is not generally accepted and experts’ conclusions lacking sound foundation. Another challenge to the courts’ role is winding its way through the appellate process now. In In Re New York City Asbestos Litigation (Juni v. A.O. Smith Water Products) [4] a trial court set aside a plaintiff’s verdict in a case alleging exposure to asbestos fibers in brake linings caused mesothelioma. There the plaintiff’s experts opined that there is no safe level of asbestos exposure (and therefore even the slightest exposure acts as a contributing factor to disease). The Juni trial court held that the experts’ testimony was not based on generally accepted methodology. It is foreseeable that the Juni case will provide the Court of Appeals’ next opportunity to address admissibility of experts in New York.

  1. 2016 BL 38721, N.Y., No. 3, 2/11/16. [Back to reference]
  2. 7 N.Y.3d 434 (2006). [Back to reference]
  3. 22 N.Y.3d 762 (2014). [Back to reference]
  4. 48 Misc. 3d 460 (Sup. Ct. N.Y. Co. 2015). [Back to reference]

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