DRAGO v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK

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Supreme Court, New York County, New York.

Anthony DRAGO and Kathleen Drago, Plaintiffs, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK s/h/a Tishman Construction Co., Inc., Defendants.

Decided: May 28, 2004

Frank Gulino, Esq., of Brecher, Fishman, Pasternack Popish, Heller, Rubin & Reiff, P.C., New York, for plaintiff. Gregory S. Pinter, Esq., of Cozen O'Connor, New York, for defendant.

This motion raises a surprisingly unaddressed question and, hence, an issue of first impression of whether, and if so under what circumstances, in a case on the trial calendar, a defendant in a personal injury action may be granted access to raw data resulting from tests administered to plaintiff by plaintiff's expert.   In addition, defendant challenges the admissibility of the test results and any resulting scientific testimony, which raises separate and distinct Frye and trial admissibility issues.

Defendant Tishman Construction Corporation of New York s/h/a Tishman Construction Co., Inc. (“Tishman”), moves for access to the raw data produced by approximately eleven tests of plaintiff's memory, perception and personality administered by testing professionals acting under a neurologist's control and supervision.   Each test produces numerical scores, each has a scale or percentile ranking, and many have a stated level of statistical confidence.   Such testing is relatively common where, as here, it is claimed that a plaintiff's injury has produced a loss or diminution of employment opportunities.

Plaintiff claims he has impairments as a consequence of a depressed skull fracture resulting from a trip and fall at a construction site.   He asserts the testing documents his impaired or diminished concentration, short term visual memory, attention to details, visual/spatial perceptual processing, and visual scanning, resulting from neuropsychological impairment secondary to cerebral dysfunction due to traumatic brain injury, as well as post concussion syndrome.   The plaintiff is now approximately 65 years of age, suffers from a chronic muscle disease known as polymyocitis, and retired following the incident which occurred on March 30, 2000.

Request for Testing Data in a Trial-Ready Case

 Defendant requests access to the raw data from testing administered by plaintiff's designated expert.   The testing was disclosed in the report of plaintiff's expert which was served after the matter was placed on the trial calendar.

 If the testing had been administered during the discovery phase of litigation, the issue of access to raw data from testing in a tort case would be weighed under normal discovery standards (Knauer v. Anderson, 184 Misc.2d 621, 709 N.Y.S.2d 386 [Sup.Ct. Erie Co.2000, Howe, J.] ).   Additionally, if discovery were ongoing, defendant could have requested that plaintiff be tested by defendant's own expert, with due recognition that such a request is not automatically approved.1

 However, more often than not and as is true here, an expert report is furnished after the matter is on the trial calendar and it is that report which discloses the testing.   Plaintiff objects that disclosure of raw testing data should not be permitted now that the matter is on the trial calendar.   In this instance, for reasons of both practicality and policy, and taking into consideration the number of tests administered and the methods of analysis used, the court holds that the application for disclosure of the testing raw data made when the matter is on the trial calendar will be viewed under the standards applicable to pre-trial discovery and that the application for access to the raw data will be granted.

As to practicality, a primary consideration is whether a typical trial presentation of the raw data is appropriate to this case.   Commonly, absent a pre-trial review of raw data, the data simply would be presented during testimony by an expert (Gayle v. Port Authority of New York, New Jersey, 6 A.D.3d 183, 184, 775 N.Y.S.2d 2, 2004 WL 636249, *1 [1st Dept.2004], medical expert opinion is to be supported by “relevant examples and data” and it is “the jury's prerogative to resolve [any] conflicting testimony”).   If interpretative assistance were needed by opposing counsel, such party may have its own expert present in the courtroom while the testing expert testifies (People v. Santana, 80 N.Y.2d 92, 100, 587 N.Y.S.2d 570, 600 N.E.2d 201 [1992], rearg. dismissed 81 N.Y.2d 1008, 599 N.Y.S.2d 806, 616 N.E.2d 161 [1993], “reasons for exclusion do not apply to expert witnesses.   It has been pointed out that the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate understanding of the testimony as it evolves before the jury” [citations and internal quotation marks omitted] ).

The typical trial approach is ill-suited to the situation present here.   Because a battery of tests was administered, it cannot be envisioned that a defense expert swiftly and almost instantaneously for each test could confirm the scoring, reassess the percentile rankings and statistical levels of confidence, and review the propriety of the conclusion drawn by plaintiff's expert, and then coolly assist defense counsel to prepare a comprehensive, thoughtful examination of plaintiff's expert.   To delay access to the raw data until the trial, in this case, could be projected to lead to extensive trial delays for defense preparation of both a voir dire and cross examination bearing upon the tests and their results.

In relation to policy, the court finds support for disclosure under CPLR 3101(d)(1)(i), which governs the content and timing of disclosure of an expert's report.   This provision permits courts to assure no prejudice results when the expert report is furnished “an insufficient period of time before the commencement of trial to give appropriate notice thereof,” by allowing the court, in its discretion, to “make whatever order may be just” (see Siagha v. Salant Jerome, Inc., 271 A.D.2d 274, 706 N.Y.S.2d 634 [1st Dept.2000], lv. app. denied 96 N.Y.2d 714, 729 N.Y.S.2d 441, 754 N.E.2d 201 [2001], determination regarding application of CPLR 3101[d] approved as “a proper exercise of discretion”;  see 44 N.Y. Jur.2d Disclosure § 96, Expert's Identity and Subject of Testimony ).

The same policy of procedural fairness and permitting the opposing party an opportunity for proper trial preparation which underlie CPLR 3101(d)(1)(i) also has been recognized in the context of criminal cases.   In People v. Almonor, 93 N.Y.2d 571, 693 N.Y.S.2d 861, 715 N.E.2d 1054 (1999), the court addressed a defense failure to furnish in a timely fashion raw data underlying one expert's tests prior to the trial.   The Court of Appeals observed that “CPL 250.10 contemplates timely disclosure so that the trier of fact may benefit, after psychiatric issues are sharpened and engaged to the fullest extent possible.   At the other extreme, and to be avoided, lies the prospect of psychiatric hide and seek” (93 N.Y.2d at 581-582, 693 N.Y.S.2d 861, 715 N.E.2d 1054;  citation omitted). Further, in People v. Santana, supra, 80 N.Y.2d at 99, 587 N.Y.S.2d 570, 600 N.E.2d 201, quoting Ake v. Oklahoma, 470 U.S. 68, 80, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), it was noted that “without the assistance of a psychiatrist to * * * assist in preparing the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of ․ [psychiatric] issues is extremely high.”   Indeed, only in child custody disputes have reasons been found to limit the disclosure of raw test results and related notes.2

Accordingly, in this personal injury litigation by reason of the considerations set forth above, the court finds it proper to compel the disclosure of the raw data of the multiple tests administered to plaintiff.   The moving party shall not to be precluded from access to raw testing data merely because the opposing expert's testing was done and report prepared after this matter was on the trial calendar.   The raw data shall be provided within ten days of the date of this decision.

To the extent that Tishman alternatively asks that the testimony of neurologist Dr. Jason W. Brown be precluded, the application is denied.   Plaintiff has complied with the formalities of expert disclosure under CPLR 3101(d).  Preclusion could, of course, be sought in the event that the testing data is not produced (Andruszewski v. Cantello, 247 A.D.2d 876, 877, 668 N.Y.S.2d 297 [4th Dept.1998], preclusion permitted for failure to produce the complete files of treating psychologists, “The fact that plaintiff's doctors were uncooperative in producing reports does not relieve plaintiff of her burden of providing defendant with the documentation necessary to prepare a defense”).

Procedures Relating to a Frye Inquiry and a Trial Foundation Inquiry

 Although Tishman requests a Frye inquiry, in actuality, the defendant is requesting entry into the pre-trial procedural anteroom in which there is an exchange of scientific information and the court thereafter may be asked to limit the potential evidentiary tender of a scientific opinion to a jury.3  In this pre-trial anteroom, two distinct requests can be made:  (1) for a Frye inquiry, or (2) for an inquiry into whether a sufficient trial foundation is available to render the scientific information admissible.

 In either instance, a moving party must interpose a motion in limine seeking a preliminary order excluding the introduction of anticipated evidence.   A motion in limine challenges evidence which is claimed to be inadmissible, immaterial, or prejudicial, or requests a limitation on the use of evidence (State of New York v. Metz, 241 A.D.2d 192, 198, 671 N.Y.S.2d 79 [1st Dept.1998] ).

 Such a motion is not governed by any particular formal requirements (Wilkinson v. British Airways, 292 A.D.2d 263, 264, 740 N.Y.S.2d 294 [1st Dept.2002], “there is no requirement that an in limine motion be made in writing and be in accordance with CPLR 2214.   The court, therefore, properly considered defendant's oral application”).   However, in relation to a motion addressed to scientific evidence, movant should support its motion in limine by reference to some scientific material of evidentiary value, for a court cannot undertake an independent review of scientific literature (George D. Marlow, From Black Robes to White Lab Coats:  the Ethical Implications of a Judge's Sua Sponte, Ex Parte Acquisition of Social and Other Scientific Evidence During the Decision-Making Process, 72 St. John's L.Rev. 291 [1998] ).

If the motion in limine asserts that an expert will tender an opinion which cannot be made with a reasonable degree of scientific certainty, the movant is requesting a Frye inquiry.   A Frye inquiry has a limited scope for “the test pursuant to Frye v. United States, 293 F. 1013, poses the ․ elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” and “attention must focus on the acceptance of such evidence as reliable by the relevant scientific community” (People v. Wesley, 83 N.Y.2d 417, 442, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994];  People v. Angelo, 88 N.Y.2d 217, 223, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996], test is “general acceptance of the procedures and methodology as [being] reliable within the scientific community”).   The judicial goal is to assure that an expert opinion be tendered with a reasonable degree of certainty, a question well explored in Matter of Miller v. National Cabinet Co., 8 N.Y.2d 277, 289-290, 204 N.Y.S.2d 129, 168 N.E.2d 811 (1960), which held that expert testimony about a “possibility” and an “informed guess” fell short of the reasonable degree of certainty standard.

 Either in the alternative or in addition, the challenge may assert some practical deficiency renders testimony about scientific data or opinion inadmissible and request a trial foundation inquiry.   The trial foundation inquiry is addressed to “the scientific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial” (People v. Wesley, supra, 83 N.Y.2d at 442, 611 N.Y.S.2d 97, 633 N.E.2d 451).   Absent a specific pre-trial motion in limine, in the general course, “arguments concerning ․ adherence to accepted procedures for collection, storage or analysis of such evidence ‘relate[ ] to trial issues of foundation and weight of the evidence’ ” (People v. Kelly, 288 A.D.2d 695, 696, 732 N.Y.S.2d 484 [3rd Dept.2001], internal quotation marks and brackets omitted).   If it is determined the evidence is admissible, the weight of the evidence is a question for the trier of fact (People v. Middleton, 54 N.Y.2d 42, 51, 444 N.Y.S.2d 581, 429 N.E.2d 100 [1981] ).

Both of these inquiries best are raised prior to the commencement of trial.   Such timing often is required on the criminal side (People v. Almonor, supra, 93 N.Y.2d at 572, 693 N.Y.S.2d 861, 715 N.E.2d 1054, addressing expert scientific testimony to be tendered by a psychiatrist, “the court will direct compliance and the exchange of information well enough before trial so that the parties may prepare adequately, in full confidence that the [scientific] issues will be appropriately addressed,” and the pre-trial “opportunity for discussion and distillation” of scientific opinions renders a court “able to evaluate the parties' positions and deal with whatever subtleties or complications arise”).

In relation to the conduct of the civil litigation, there is an evolving preference for early presentation because scientific issues may involve a time-consuming analysis of an expert's methodology and the pertinent literature (see, for example, Clemente v. Blumenberg, 183 Misc.2d 923, 705 N.Y.S.2d 792 [Sup.Ct. Richmond Co.1999, Maltese, J.], accident reconstruction;  Gallegos v. Elite Model Management Corp., 195 Misc.2d 223, 226, 758 N.Y.S.2d 777 [Sup.Ct. N.Y. Co.2003, York, J.], second hand smoke, pre-trial motion permits presentation of affidavits and exhibits, without the cost of paying for an expert's time to testify).   Further, the rights of the civil litigants are best protected by an early presentation, for in limine decisions are appealable only if the order “will limit the issues to be tried, * * * clearly involves the merits of the controversy * * * and affects a substantial right” (Scalp & Blade, Inc. v. Advest, Inc., 309 A.D.2d 219, 225, 765 N.Y.S.2d 92 [4th Dept.2003], discussing at length appealable and non-appealable decisions on motions in limine;  see also, 4 N.Y. Jur.2d Appellate Review § 43, Pretrial Orders as to Admissibility of Evidence ).

An early careful approach to scientific inquiries should allay some of the doubts expressed by commentators as to whether the judiciary has sufficient skills to determine scientific matters (see, for example, Craig Lee Montz, Trial Judges as Scientific Gatekeepers after Daubert, Joiner, Kumho Tire, and Amended Rule 702:  Is Anyone Still Seriously Buying This?, 33 U.W.L.A. L.Rev. 87 [2001] ).   It appears to this jurist that the advocacy system itself offers the best assurance of a balanced decision on complex scientific issues, in that it contemplates that such issues will be presented to a court by well-prepared attorneys, utilizing their analytical and explanatory skills and advancing reliable scientific information tendered by well-credentialed scientists.   Such a record offers the best opportunity for a court to exercise the well-honed judicial skill of distinguishing a silk purse from a sow's ear.

In this instance, defendant has not made the requisite first start of justifying the need for a Frye hearing by showing a lack of scientific support on relevant issues (compare, Selig v. Pfizer, Inc., 290 A.D.2d 319, 320, 735 N.Y.S.2d 549 [1st Dept.2002], once defendant showed “the absence of any clinical data supporting their expert's theory that there is a causal link ․, it was incumbent upon plaintiffs to set forth other scientific evidence based on accepted principles showing such a causal link”).   Nor does defendant now challenge and indeed it will be unable to do so until it examines the raw data from the testing the trial foundation of the testing and any evidence which might flow from such testing.

Accordingly, the request for either a Frye or trial foundation inquiry is denied at this time without prejudice to renewal after defendant's receipt and analysis of the raw data.

* * *

This decision constitutes the order of the court.

FOOTNOTES

1.   When a case is not yet on the trial calendar, a testing request by the defendant is governed by normal discovery principles (Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, 953-954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998], “Although the plain language of CPLR 3121[a] authorizes physical or mental examinations ‘by a designated physician,’ and defendant's vocational rehabilitation expert was not a medical doctor, CPLR 3121 does not limit the scope of general discovery available, subject to the discretion of the trial court, under CPLR 3101”;  see also, for discussion of relevant considerations, Freni v. Eastbridge Landing Associates, LP, 309 A.D.2d 700, 767 N.Y.S.2d 5 [1st Dept.2003] ).   Psychological or vocational testing does fall under the medical examination provisions of CPLR 3121 when such testing is “providing only a diagnostic tool for the physician, [and the non-physician administering tests] is only acting as an agent for, and under the direction of, the designated physician” (Paris v. Waterman S.S. Corp., 218 A.D.2d 561, 564, 630 N.Y.S.2d 716 [1st Dept.1995], app. withdrawn 87 N.Y.2d 860, 639 N.Y.S.2d 309, 662 N.E.2d 789 [1995] ), but not otherwise (Barenboim v. Schindler Elevator Corp., 250 A.D.2d 413, 671 N.Y.S.2d 659 [1st Dept.1998], “disclosure under CPLR 3121 does not extend to an examination of a party by someone other than a physician”;  see also Agli v. Turner Const. Co., Inc., 241 A.D.2d 312, 313, 660 N.Y.S.2d 12 [1st Dept.1997], noting Uniform Rules for Trial Courts contains the same restriction).

2.   In child custody disputes, “special circumstances” have been found to support a limitation of access to test results and psychiatric notes (Ochs v. Ochs, 193 Misc.2d 502, 506-509, 749 N.Y.S.2d 650 [Sup.Ct. Westchester Co.2002, Spolzino, J.];  Nicholson v. Nicholson, 2 Misc.3d 1002[A], 2003 WL 23312877 [Sup.Ct. Kings Co.2003, Sunshine, J.];   see also, Feuerman v. Feuerman, 112 Misc.2d 961, 447 N.Y.S.2d 838 [Sup.Ct. Nassau Co.1982, McCaffrey, J.], access to raw data of county psychiatrist and psychologist found not justified by special circumstances, including raw data from thematic apperception, rorschach, figure drawing, and sentence tests).

3.   This opinion does not address whether the scientific evidence or opinion to be tendered is admissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), nor does it weigh the federal rules governing the admissibility of such evidence or opinions under the Supreme Court's more recent trilogy of expert evidence opinions such rules (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 [1993], General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 [1997], and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 [1999] ).   Excellent discussions of those issues are advanced by David E. Bernstein, Frye, Frye, Again:  the Past, Present, and Future of the General Acceptance Test, 41 Jurimetrics J. 385 (2001), and Erica Beecher-Monas, The Heuristics of Intellectual Due Process:  a Primer for Triers of Science, 75 N.Y.U. L.Rev. 1563 (2000), and an example of a detailed exploration of the intricacies of such issues under the federal rules is contained in (Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77 [1st Cir.1998] ).   New York cases, both reported and unreported, are collected in articles by Michael D. Shalhoub, “Frye” Hearings in Medical Malpractice Actions Judges Act as Gatekeepers for Deciding Admission or Preclusion of Experts, N.Y.L.J. March 15, 2004, p. 6, col. 1, by Stephen W. Schlissel, ‘ Frye’ and ‘Daubert’ Questions Crop Up in Family Law Arena, N.Y.L.J. July 1, 2003, p. 16, col. 1, and by Michael Hoenig, Trend Towards Hearings on Experts, N.Y.L.J. October 16, 2002, p. 3, col. 1.   The Daubert factors are not utilized as a consolidated, single bright line standard in New York courts, although any one factor might serve as a basis for an objection to some aspect of the admissibility of scientific testimony, such as the two separate inquiries addressed in this decision, or to the qualification of a scientific expert as a witness.

DIANE A. LEBEDEFF, J.

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