Opinion
Index No. TS-300285-19
05-02-2022
ESTATE OF Carmen SANTIAGO BY its Administrator Reinaldo SANTIAGO, Plaintiff, v. Pablo SANTIAGO, Juan Escano and RJ Lease Management Corp., Defendants.
Recitation as Required by CPLR § 2219(a) :
The following papers were read on this Motion in Limine. Papers Numbered:
Plaintiff's Motion in Limine in Support of Preclusion 1
Defendants Juan Escano and RJ Lease Management Corp.’s Affirmation in Opposition and Exhibits 2
Defendant Pablo Santiago's Affirmation in Opposition and Exhibits 3
For the reasons discussed herein, the motion in limine by plaintiff Estate of Carmen Santiago to preclude the testimony of defendants’ expert witness, biomechanical engineer Arkady Voloshin, Ph.D., or in the alternative for a Frye hearing, is denied.
The Estate asserts a claim for personal injuries allegedly sustained by now-deceased Carmen Santiago ("Carmen") in a motor vehicle accident occurring on January 6, 2014. Carmen was a front seat passenger in a vehicle driven by her son, defendant Pablo Santiago, that was in a collision with a second vehicle driven by defendant Juan Escano, and registered to defendant RJ Lease Management Corp. One issue to be addressed at trial is whether the collision caused Carmen's injuries.
Preclusion of Expert Testimony
As a threshold matter, the Court rejects defendants’ assertion that the motion in limine is untimely (cf. Sadek v. Wesley , 117 AD3d 193, 203 [1st Dept 2014] [motion in limine served on day jury was empaneled tantamount to "ambush"]; see also Uniform Civil Rules for the Supreme Court & the County Court, Rule 27 ["[t]he parties shall make all motions in limine no later than ten days prior to the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial conference, unless otherwise directed by the court"]).
On the merits, the Estate cites various grounds upon which it contends Voloshin's testimony should be precluded. First, because Voloshin is not a medical doctor, the Estate insists he is not legally qualified to opine as to the causation of Carmen's injuries. However, appellate courts have soundly rejected that position (see Vargas v. Sabri , 115 AD3d 505 [1st Dept 2014] [biomechanical engineer's lack of medical training did not render him unqualified to provide expert opinion that force of motor vehicle accident could not have caused alleged injuries]; see also Aspromonte v. Judlau Contracting, Inc. , 162 AD3d 484, 485 [1st Dept 2018] [biomedical engineer opining on cause of injuries]); Plate v. Palisade Film Delivery Corp. , 39 AD3d 835, 837 [2d Dept 2007] [trial court erred in finding biomechanical engineer unqualified as to whether car accident caused injuries]; Gonzalez v. Palen , 48 Misc 3d 135[A], *1 [App Term, 1st Dept, 2015] [biomedical engineer's lack of U.S. medical license did not render him unqualified concerning cause of injuries]).
Next, the Estate maintains that Voloshin has not identified any peer reviewed articles upon which he relied in forming his expert opinion. Yet, defendants’ CPLR § 3101(d) disclosure provides that "the publication references included in this report are all peer-reviewed," followed by a list of reviewed documents (Defendant's Expert Disclosure at 6).
Next, the Estate makes a variety of claims challenging Voloshin's methodology. It asserts he has not set forth the methodology employed to conclude Carmen's injuries were not caused by the accident; the methodology used was inappropriate for evaluating injuries to a particular person in a particular accident; the expert did not examine the vehicle or speak with defendants, and was not aware of the road conditions; the report does not set forth the speed the vehicles were traveling; and a particular crash test is an inappropriate comparator. These arguments are insufficient to warrant preclusion of Voloshin's testimony. First, Voloshin details his methodology in the report, including under two separate headings entitled "Analytical Methodology" (cf. Munoz v. Rock Group NY Corp. , 200 AD3d 486 [1st Dept 2021] ). Further, as already discussed, the First Department has accepted the reliability of expert testimony based on biomechanical engineering (id. ; Vargas v. Sabri , supra at 505). Any specific challenges plaintiff makes to Voloshin's methodology or conclusions go to the weight, not the admissibility, of his testimony, and are matters for the jury's consideration; plaintiff may raise such concerns during cross-examination (Vargas at 505-06; see also People v. Wells , 53 AD3d 181, 191 [1st Dept 2008] ["The import to be accorded to expert testimony is generally within the province of the trier of fact"]). Accordingly, that part of plaintiff's motion seeking to preclude Voloshin's testimony is denied.
Although it has not done so, plaintiff also had the opportunity to call its own expert witness to counter Voloshin's expert opinion.
Frye Hearing
Alternatively, plaintiff seeks a Frye hearing. It argues that the use of biomechanical engineering principles to determine that a specific injury cannot occur to a specific individual in a specific accident is not generally accepted by the scientific community, and has been rejected by numerous courts under Frye v. U.S. (293 F. 1013 [D.C. Cir. 1923] ). The Frye test asks "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" ( Sean R. v. BMW of N. Am., LLC , 26 NY3d 801, 809 [2016] [citation omitted]). The above discussion belies plaintiff's position. Moreover, "[g]eneral acceptance by the relevant scientific community [ ] does not require that the procedure be ‘unanimously endorsed’ " ( People v Wakefield , ––– NY3d ––––, 2022 WL 1217463, *6 [Apr. 26, 2022] ). As such, plaintiff's motion for a Frye hearing is denied.
This constitutes the decision and order of the Court.