In personal injury actions, expert witnesses can often make or break your case. For this reason, defendants will often challenge a plaintiff’s experts and ask the court to preclude them from testifying at the time of trial. The Court recently considered a case in which the question of whether a plaintiff’s neurological expert should be permitted to testify at trial.
Plaintiff in this case, was involved in a motor vehicle accident that occurred between a limousine he was driving and a Greyhound bus. He claimed that during the accident his head slammed against his side window. After both drivers exited their vehicles and began an angry verbal exchange, the plaintiff became faint and dizzy, started to shake, and found that he needed to sit down. He became unresponsive, and was transported to a hospital, where he was diagnosed with an embolic stroke, also called a cerebral vascular accident (CVA). A report from the hospital, following the accident, described the results of two tests performed on plaintiff. An echocardiogram disclosed a mobile thrombus (a large blood clot) anchored to the left subclavian artery, and an angiogram, reportedly disclosed, atheroma (plaque) in the aortic arch.
Injured driver hired a neurological expert. In his pre-trial expert exchange, it stated that the neurologist was expected to testify that there was a “probable causal relationship” between the motor vehicle accident and the stroke (in essence, that the accident caused the stroke). In an additional pre-trial expert exchange, the neurologist pointed out that a medical report, issued eight weeks after the hospital report, stated, that the clot and plaque observed in the initial tests were no longer evident. He also concluded that this situation was an unlikely occurrence which suggests the first report was possibly “artifact”. He then remarked that if the clot was present at the time of the accident the trauma could have dislodged it, or a portion of it, causing an embolic stroke.
At trial, the Greyhound bus driver’s attorneys served a pre-trial motion (called a motion in limine) seeking to preclude all of plaintiff’s expert witnesses. The trial judge conducted what is known as a Frye hearing to determine whether to preclude plaintiff’s neurological expert. Frye hearings are used to determine whether the experts' opinions are based on established and reliable scientific principles. The test is particularly useful for newly minted or experimental processes or newly posited psychological theories, in order to weed out baseless and unreliable theories. There is no need for a scientific consensus, just that those supporting the opinion have followed generally accepted scientific principles.
The court granted the motion as to the neurologist and precluded his testimony. The injured limo driver appealed. The appellate court held that while the trial court has broad discretion to rule on the admissibility of evidence, it should not have granted the part of defendants’ pre-trial motion seeking to preclude plaintiff's neurological expert from testifying, thereby preventing plaintiff from proving his case. The appellate court found that while the neurologist's supplemental report provided grounds to impeach his anticipated trial testimony as to where the embolus that caused the stroke had been formed, it did not absolutely invalidate the neurologist's proposed testimony regarding the cause of plaintiff's stroke; it merely created some doubt as to the initial source of the embolus.
The appellate court did not believe that a Frye hearing was necessary. However, even if the Frye hearing was necessary, the appellate court found that the expert met generally accepted scientific criteria. Accordingly, the appellate court directed that the case be sent back down for a trial on the merits.
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