Expert Testimony

Rowe v Fisher, 2011 NY Slip Op 01721 (App. Div. 1st 2011)

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 Mobile 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' [*2]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]).

Williams v Hooper, 2011 NY Slip Op 01683 (App. Div. 1st 2011)

The expert's opinion about this safety cushion was supported by nothing (see Jones v City of New York, 32 AD3d 706, 707 [2006] [rejecting expert's opinion regarding ostensible safety practice because "no support was offered for th(e) assertion, either in the form of a published industry or professional standard or in the form of evidence that such a practice had been generally accepted in the relevant industry"]). But as defendant Transit Authority failed to object to the expert's testimony, the point must be conceded to plaintiff for purposes of this appeal [FN1]

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