Although there is not much literature written for non-lawyers on the subject, it is probably the most important question that needs to be considered before undertaking a products liability lawsuit in New York: is the claim supported by reliable scientific data?

In Myancela v. Biro Manufacturing Co., a New York defective design and failure to provide adequate warnings case that was reported upon earlier today in the New York Law Journal, the plaintiff sustained serious personal injuries, including a particularly bad laceration to her hand which was caught in the poultry cutter that was supposedly manufactured by the defendant.  In a move that has now become common fare for defendants in products liability cases, the defendant sought to preclude the plaintiff's expert from testifying at trial, and therefore, to dismiss the complaint, on the grounds that the expert's conclusions (and the complaint) were neither based upon nor supported by reliable scientific evidence.

Under the circumstances, and given the importance of the issue, I thought it would be worthwhile to review the standard under which a New York State court would have to evaluate the defendant's motion.

Here's the Frye test that New York's State courts (there is a slightly different test used in the Federal Courts) employ to determine whether an expert will be allowed to testify, and the test is two-fold:

First, when dealing with 'novel scientific evidence,' the Court must ask "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally."

Second, and assuming that the first prong of the test is met (and the expert's testimony and claim is based upon valid, reliable and accepted science), the Court must then ask, just as in any case, whether there is a proper foundation to determine whether the accepted scientific methods were used in this specific case.

If the plaintiff's evidence fails either of these two tests, the claim will fail, and the complaint will be dismissed. Consequently, it is of paramount importance that this issue be clarified - before you bring any lawsuit claiming that you were injured by a defective product.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer