PAULING v. Allen M. Epstein, M.D., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Geraldine PAULING, Plaintiff-Appellant, v. ORENTREICH MEDICAL GROUP, et al., Defendants-Respondents, Allen M. Epstein, M.D., et al., Defendants.

Decided: January 06, 2005

ANDRIAS, J.P., SAXE, FRIEDMAN, GONZALEZ, JJ. The Law Firm of Harry Issler, PLLC, Lido Beach (Daniel J. Dillon of counsel), for appellant. Martin Clearwater & Bell LLP, New York (Ellen B. Fishman of counsel), for respondents.

Judgment, Supreme Court, New York County (Paula J. Omansky, J.), entered May 18, 2004, dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff failed to meet her burden of proof at the Frye hearing (Frye v. United States, 293 F. 1013 [1923] ) that her theory of causation is generally accepted in the medical community (see Lara v. New York City Health & Hosps. Corp., 305 A.D.2d 106, 757 N.Y.S.2d 740 [2003], citing, inter alia, People v. Wesley, 83 N.Y.2d 417, 422-423, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ).   The theory is that facial injections of liquid silicone over a long period of time, administered to plaintiff as an acne treatment, can cause a systemic disease that plaintiff's expert calls “silicon toxicity.”   Plaintiff's expert conceded that such disease is novel and is not recognized in standard text books, and indeed, except for his own unpersuasive observational studies (see In re Breast Implant Litig., 11 F.Supp.2d 1217, 1230-1231 [D. Colo. 1998] ), no supporting medical literature whatsoever was entered into evidence.   Plaintiff's expert further admitted that no scientific organization or national board has recognized a causal relationship between silicon and systemic disease, and that reputable scientific institutions, including the Mayo Clinic, the American College of Rheumatology and the American Medical Association have issued statements that there is no evidence of such relationship.   Accordingly, the trial court properly precluded defendant's expert from testifying (see Lara, id.).   Plaintiff's unpreserved claim that the trial court should have applied the more flexible standard for admitting expert testimony articulated in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 [1993] is without merit (see Wesley, 83 N.Y.2d at 423, n. 2, 611 N.Y.S.2d 97, 633 N.E.2d 451;  see also People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63 [2001];  People v. Wernick, 89 N.Y.2d 111, 115-116, 651 N.Y.S.2d 392, 674 N.E.2d 322 [1996] );  in any event, the Daubert standard would not yield a different result (see Breast Implant Litigation, 11 F.Supp.2d 1217, supra;  Meister v. Medical Eng'g Corp., 267 F.3d 1123 [D.C. Cir.2001] ).   Nor does plaintiff have a claim for local, i.e., topical, injuries, where she failed to provide CPLR 3101(d) notice of expert testimony as to the acceptable standards of dermatological care, or to show that her rheumatologist, originally offered as a causation expert with respect to her systemic injuries, had the requisite knowledge of dermatology (compare Erbstein v. Savasatit, 274 A.D.2d 445, 445, 711 N.Y.S.2d 458 [2000], with Weinstein v. Daman, 132 A.D.2d 547, 550, 517 N.Y.S.2d 278 [1987], lv. dismissed 70 N.Y.2d 951, 524 N.Y.S.2d 678, 519 N.E.2d 624 [1988] ).   Without expert testimony, plaintiff cannot establish a prima facie case of medical malpractice in this case (see Prince, Richardson on Evidence § 7-302, at 459-460 [Farrell 11th ed.] ).