By Michael Hoenig - New York Law
Journal - March 15, 2016
This column reports on an appellate ruling issued in February
that focused on reliability issues posed by proposed expert
R. v. BMW of North America,1 is
an important decision by the New York Court of Appeals in a case
claiming that a youngster's mental and physical disabilities
were caused by in utero exposure to unleaded gasoline vapor
attributable to a defective gas hose in the pregnant mother's
BMW. New York's highest court provided the state's trial bench
and bar with yet more guidance about what is needed in the way
of reliable expert testimony in a toxic tort claim. BMW,
thus, is another link in a chain of decisions by the court
offering a road map regarding how expert proofs may suffice as
opposed to those that do not.
Our prior columns often elaborated well-established New York law
on judicial screening or "gatekeeping" of expert testimony.2 The
Court of Appeals made it clear in
v. Mobil Oil Corp.3 that
questions regarding reliability of experts' testimony required
diligent policing by courts. The basic rules seem simple enough.
If "novel" scientific evidence is involved, the court applies
acceptance" test to determine "whether the accepted techniques,
when properly performed, generate results accepted as reliable
within the scientific community generally." If the answer is
"no," the testimony has flunked and must be precluded or
excluded. If the answer is "yes," the proponent of the novel
scientific testimony has survived the threshold test but still
has to get past the admissibility "gate." The evidence must meet
a second, "foundational reliability" inquiry.
This second admissibility standard applies to all expert
testimony, not just "novel" scientific evidence. In Parker,
the court said the Frye inquiry is "separate and distinct from
the admissibility question applied to all evidence—whether there
is a proper foundation—to determine whether the accepted methods
were appropriately employed in a particular case." Parker declared
that the focus moves "from the general reliability concerns of
the specific reliability of the procedures followed to generate
the evidence proffered and whether they establish a foundation
for the reception of evidence at trial." These points were
confirmed by the court in its Cornell
v. 360 W. 51st Realty decision
in 2014, a claim that toxic mold caused illness.4
In BMW the
plaintiff was born in May 1992 with severe mental and physical
disabilities. The timeline underlying the claim that the child's
deficits were caused by a defective fuel hose emitting gas
vapors that damaged the baby in utero was as follows. In May
1989, the father purchased a new BMW 525i for his wife, the
car's exclusive driver. In the spring of 1991 she began to
notice a smell of gasoline that "came and went." When the
windows were down, for example during summer, she could tolerate
the smell. But at other times the strong odor caused headaches,
dizziness and throat irritation. Family members who rode in the
car noticed the odor; one said it made her nauseous and dizzy.
The dealer couldn't identify any problem and made no repairs. In
July or August 1991, the wife became pregnant with plaintiff.
The husband took the car to the dealer, and a split fuel hose
was discovered. Plaintiff was born in May 1992. Subsequent
testing revealed the child had, among other things, spastic
quadriparesis (a form of cerebral palsy), developmental delays,
ventricular asymmetry, aortic stenosis and impaired vision
function. Two years later, BMW recalled the vehicles due to
defects in the feed fuel hoses. The recall report noted that
customers had associated the defect with a "conspicuous fuel
The lawsuit against BMW and others was commenced in January
2008. The claim was that failure to discover and fix the
defective hose exposed plaintiff in utero to toxic gasoline
vapor. Plaintiff's primary causation experts were Dr. Linda
Frazier and Dr. Shira Kramer. They were prepared to testify that
the in utero exposure to gasoline vapor proximately caused the
birth defects. Dr. Frazier concluded that plaintiff's mother
inhaled 1,000 parts per million (ppm) of gasoline vapor based on
the mother's symptoms of "acute toxicity" during exposure, such
as suffering headaches, nausea and throat irritations.
After ruling out other possible causes, Frazier concluded that
the mother's "high peak exposure" to the vapors during the first
trimester of pregnancy was the "most likely cause of plaintiff's
injuries." Dr. Kramer reached similar conclusions using a
"different analysis." Specifically, she said that toluene and
benzene, constituent elements of gasoline vapor are "causally
related to an elevated risk of birth defects."5
BMW moved to preclude these causation experts from testifying at
trial. Alternatively, defendant asked for a Frye hearing to
determine whether Drs. Frazier and Kramer were reaching novel
conclusions and not using generally accepted principles and
reviewing lengthy submissions and supplemental expert reports,
the trial court precluded the causation experts. The Appellate
Division affirmed but certified the question to the Court of
The state's highest court held that the experts should be
precluded from testifying. The opinion for the court, by Judge
Eugene F. Pigott, Jr., explained that in toxic tort cases an
expert opinion on causation must set forth (1) a plaintiff's
exposure to a toxin, (2) that the toxin is capable of causing
plaintiff's particular injuries (general causation) and (3) that
the plaintiff was exposed to sufficient levels of the toxin to
cause such injuries (specific causation).7 The
expert must establish such exposure levels "through methods
'found to be generally accepted as reliable in the scientific
community.'" This "general acceptance" requirement, also known
as the Frye test, "governs the admissibility of expert testimony
in New York."8
In a footnote, the court explained that its analysis and holding
were limited to the Frye "general acceptance" inquiry due to the
procedural posture of the case. Thus, the court expressed no
opinion on the "separate and distinct" question of "whether
there was a proper foundation for their opinions."9 The
significance of this clarification by the court should not be
overlooked. As mentioned above, after the "novel" science Frye
test is passed, there is a second "foundational reliability"
test for admissibility of the expert opinion, as stated in the
Parker case. That reliability test applies in all non-novel
science cases as well. In the BMW case, the Frye analysis was
The Frye "general acceptance" test asks "whether the expert's
techniques, when properly performed, generate results accepted
as reliable within the scientific community generally." Although
unanimity is not required, the proponent must show "consensus in
the scientific community as to the [methodology's] reliability."10 In
the BMW case, the experts failed to make that showing. Here are
highlights of the experts' shortcomings. Drs. Frazier and Kramer
concluded from the occasional nausea, dizziness and throat
irritations experienced by the mother that a "sufficient amount
of gasoline vapor" caused the child's injuries. But they cited
no text, scholarly article or study that approves of or applies
this type of methodology, let alone a "consensus" as to its
None of the reports or studies advanced by the experts
established that Frazier's methodology, "when properly
performed, generate results accepted as reliable within the
scientific community generally."11 They
merely supported her own "conclusion" that there is a
dose-response relationship between exposure to the chemical
constituents of gasoline and symptoms of toxicity. Those studies
did not support her approach of "working backwards from reported
symptoms to divine an otherwise unknown concentration of
gasoline vapor." Her methodology was not supported by the
Although "odor threshold" analysis has been admitted in certain
settings, the odor threshold of a substance can be "far below"
its toxicity. Indeed, one of plaintiff's sources, an article in
the American Journal of Industrial Medicine, explained:
"Smelling organic solvents is not indicative of a significant
exposure, as the olfactory nerve can detect levels as low as
several parts per million, which is not necessarily associated
with toxicity. As an example, the odor threshold of toluene is
0.8 parts per million, whereas the [threshold limit value] is
100 parts per million."13
Since unleaded gasoline in the early 1990s had a "very low" odor
threshold of between 0.50 and 0.76 ppm, a person would have been
able to detect the odor of gasoline vapor at less than 1 ppm.
The only expert conclusion that could be reached, using odor
threshold methodology, was that plaintiff was exposed to at
least 1 ppm of unleaded gasoline—the minimum level at which
gasoline is detectable by human smell. Instead, Dr. Frazier
concluded that there is a minimum vapor threshold below which
individuals do not experience headache, nausea or dizziness.
Because the mother experienced those symptoms, Frazier concluded
she must have been exposed to at least that concentration. But
it was not shown that Frazier's approach "has been generally
accepted in the scientific community."14
Although it is sometimes difficult, if not impossible, to
quantify a plaintiff's past exposure to a substance, it remains
a requirement of the causation expert in a toxic tort case to
show, via generally accepted methodologies, that a plaintiff was
exposed to a sufficient amount of a toxin to have caused his
injuries. Here the plaintiff's experts failed to meet their
burden to show that their methodology was "generally accepted in
the scientific community."
Toxic tort cases often present statistical literature noting
"associations" between a toxin and disease. Such murky
"connections" do not reliably establish either general or
specific causation. The BMW holding confirms the courts' task to
gatekeep expert opinions for reliability. The court's analysis
of the proposed expert testimony offers litigators lots of
practical guidance. Put BMW on
your reading list.
1. 2016 N.Y. LEXIS 134 (N.Y. Ct. App. Feb. 11, 2016).
2. See M. Hoenig "'Cornell' Ruling on Mold Clarifies 'Reliability'
Needed From Experts," New York Law Journal, April 14, 2014, p.
3; "Experts 'Frye'd' on Tylenol-Cirrhosis Link," NYLJ, Dec. 12,
2011, p. 3; "Testifying Experts and Scientific Articles:
Reliability Concerns," NYLJ, Sept. 16, 2011, p. 3 (citing prior
articles on experts' use of unreliable hearsay, scientific
papers questioning the reliability of biomedical articles, and
reporting serious shortcomings even in those that were peer
reviewed); "'Parker,' 'Frye' and Gatekeeping of Experts: an
Update," NYLJ, June 17, 2009, p. 3; "Judicial Gatekeeping:
'Frye,' 'Foundational Reliability,'" NYLJ, Feb. 11, 2008, p. 3;
"'Gatekeeping' of Experts and Unreliable Literature," NYLJ,
Sept. 12, 2005, p. 3. The articles are also available on LEXIS.
3. 7 N.Y. 3d 434 (2006).
v. 360 W. 51st Realty, 22 N.Y. 3d 762 (2014).
2016 N.Y. LEXIS 134, at *4-*6.
6. A Frye hearing is so-named after the decision in Frye
v. United States, 293 F. 1013 (DC Cir. 1923).
LEXIS at *7 (citing Parker
v. Mobil Oil Corp., 7 N.Y. 3d 434, 448 (2006)).
9. Id. LEXIS at *8 n.1.
10. Id. LEXIS at *7-*8.
11. Id. LEXIS at *9 (citing People
v. Wesley, 83 N.Y. 2d 417, 423 (1994)).
12. Id. LEXIS at *10.
13. Id. LEXIS at *11 (quoting from McMartin, et al, "Pregnancy
Outcome Following Maternal Organic Solvent Exposure: A
Meta-Analysis of Epidemiologic Studies," 34 Am. J. of Indust.
Med. 288-292, 289 (1998)).
14. Id. LEXIS at *12.
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